being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
general words which are more remote and not to the words of qualification which are néerer unto them Pretended rights 3 The Statute of 32 H. 8. 9. provides Pl. Co. 88. 6. in Partridges case that none shall buy rights of titles in land unlesse such person c. have béene in possession of it or of the reversion or remainder of it or have taken the rents and profits of it by the space of one whole yeare next before Here these words by the space of one whole yeare shall be onely referred to the sentence next before viz. the taking of the rents and profits Abbey Lands Leases 3 The Statute of 31 H. 8. 13. ordaines Pl Co. 107. a Fulmerstons case that farmers of Abbey lands which had then Leases in being should enjoy them for 21 yeares from the time of the making of such leases if so many years were therein limited or else they should enjoy them for so many yeares as in such lease or leases were expressed so that the same lease or leases exceeded not 21 yeares Here this last sentence so that c. relates to the clause next going before it and not to the first Ad proximum antecedens fiat relatio Alienation of an entail 4 Sir Th. Cheyney in 1 El. deviseth c. to H. his sonne Co. l. 5. 68. a. The Lord Cheyneys case and to the heires male of his bodie remainder to Th. Cheyney of D. and the heires male of his bodie upon condition that he or they or any of them shall not discontinue The question was whether or no H. the sonne was included within these words he or they And it was resolved by Wray and Anderson after conference had with other Iudges that those words should not be referred to the grant made to H. the sonne but onely to the grant made to Th. Ch. of D. Tithes 5 Qu. El. grants to I. S. Totam illam portionem decimarum Co. l. 4. 35. a. Bozoms case c. in L. in com N. cum omnibus aliis decimis suis quibuscunque in L. in dict com N. nunc vel nuper in occupatione I. C. Here these last words nunc vel nuper c. referre to the whole sentence and not to the later part of it onely viz. cum omnibus aliis c. 1 Because the first words are Totam illam portionem Decimarum c. So that this pronoune illam sheweth plainly that there ought to be subsequent words to explain and reduced into certaintie what portion by the intention of the Qu. shall be granted The reference of illam viz. that which was in the occupation of I. C. And therefore this pronoune illam is not satisfied untill you come to the full end of the sentence 2 This Conjunction cum omnibus aliis c. couples the last words with the former and makes the subsequent words referre to the whole sentence Vide supra Max. 8 Case 11. Dyer 46. b. P. 31 32. H. 8. 6 An Indictment found in this manner that Eliz. fuit in pace Indictment c. quousque A. vir prefatae Eliz. de D. in com S. yeoman did kill her is good for the addition yeoman must of necessity referre to the husband because a woman cannot be a yeoman But an Indictment Quousque Alicia S. de D. in comit S. uxor I. S. Spinster c. is not good again Alice S. for there Spinster being an indifferent addition both to man and woman must referre to I. S. being the next antecedent and so the woman hath no addition 9 E. 4. 48. so likewise an indictment against I. S. serviens I. D. de D. in com Midd. yeoman is not good for servant is no addion and yeoman referreth to the Master which is the next antecedent Dyer 15. b. 28 H. 8. 7 A man makes a lease for life the remainder in taile In forma pâ—dicta the remainder to I. S. in forma praedicta this shall not referre to the estate which is the next before but to the first estate because there wants the word heires to cause him to have an estate taile Dyer ibid. 8 A man is bound to abide the award of I. S. who awards Relation of time that the one party shall pay before such a feast 10 l. to the other and that then the other shall make him a release This word then shall not be referred to the feast but to the time of payment of the money Dyer ibid. 9 In a Cui in vita brought by a feme the writ is Cui in vita Cui ipsa in vita sua contradicere non c. this word sua shall not be referred ad proximum antecedens viz. ipsa but to the baron 11 The Law delighteth in apt expressions Co. Inst pars 1 302. a. 1 Whensoever a Confirmation doth enlarge or give an estate of Inheritance there ought to be apt words as Littl. expresseth them Sect. 533 used for the same Apt words Co. ibid. 297. a. 2 If a disseisor make a lease for 100 yeares Confirmation the disseisée may confirme parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the estate of the Lessée for in that case though it should be but for an houre it gives the disseisor fee simple for ever as you have it in Littl. Sect. 519 and 520. and then also the addition of parcel of the terme would be repugnant if the whole were confirmed before but the confirmation must be of the Land for part of the terme Co. l. 1 85. a. in Corbets Case 3 Iudges ought to know the intention of the parties by certaine and sensible words Certain and uncertain words which are agréeable and consonant to the Rules of Law And therefore if land be given by déed to two to have and to hold to them haeredibus this is voide for the insensibility and uncertainty And albeit they have a clause of warranty to them and to their heires this shall not make the first words which are uncertain and without sense to be of force and effect in law although his intent appeare for his intent ought be declared by words certaine and consonant to law Co. l. 6. 26. a. Sharps Case 4 If one saith thus unto another Improper words I do here demise unto you my house for terme of your life this is a good beginning if actual livery be made accordingly or if he use apt words which may amount to so much but without livery or such words such a demise doth amount but to a Lease at will Vide Thorough goods case Co. l. 9. 137. b. Co. l. 6. 43. a. 5 In Sir Anthony Mildmayes case it was observed Compendiousness that in the Proviso there to restraine the tenant in tail from alienation found at large by the speceial
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
any Lord during the fathers life because the Law of Nature requires that the father during his life shall have the marriage of his heir apparent rather then the Lord or any other person whatsoever The Law is the same if D. had béen a daughter It is otherwise where the father dies living the mother when the Land holden by Knight-service descends to the son on the part of the father because the Law in that Case confides more in the father then in the mother c. Again this priviledge extends not to any collateral heir but onely to the son or daughter being heir apparent for albeit a man shall have an Action of Trespasse Quare consanguinem haeredem coepit and albeit the words be cujus maritagium ad ipsum pertinet because the wel bestowing of his heir apparent in marriage is a great establishment of his house yet that is to be understood as against a wrong-doer but not against a Guardian in Chivalry and the mother shall have the like writ for taking away of her son and heir apparent and yet the mother shall not bar the Lord by Knight-service of his wardship of his body as Littleton saith § 114. Qui ex filia tua nascitur in potestate tua non est sed patris sui Fleta l. 5. cap. 6. The like 3 Put the case there be Lord and Feme-tenant by Knights-service of a Carve of Land Co. ib. 84. b. 2. the Feme maketh a feoffment in fée upon condition and taketh the Lord to husband and have issue a son the wife dieth the issue entreth for the condition broken the Lord entreth into the Land as Guardian by Knights-service and maketh his executors and dieth In this Case the executors shall have the wardship of the Land during the minority of the heir but not the wardship of the body For albeit the Lord séemeth to have a double interest in the wardship of the body one as Lord and another as father yet as father and not as Lord in judgment of Law he shall have the wardship of the body of his son and heir apparent in respect of nature which was before any wardship in respect of Seigniories by Knights-service began And that wardship by reason of nature cannot be waved and claim made in respect of the Seigniorie And the executors of the father shall not have such a wardship which the testator had as father neither can such a wardship be forfeited by Outlawrie 33 H. 6. 55. 6. because it is due to the father in respect of privity of nature 9. 4 If the Sheriff or other Officer be of kindred or affinity to the Plaintiffe or Defendant Challenge to â—he Array and â—â—rour and that such affinity continue Co. ibid. 156. a 2. and 4. this is a cause of challenge to the Array as if the Sheriffe marry the daughter of either party or è converso this is a principal challenge so if there be affinity betwéen the son of the Sheriffe and the daughter of either party or è converso or the like albeit this is no principal Challenge yet is it a Challenge to the favour c. 5 If a Iuror be of blood or kindred to either party Consanguineus Co. ib. 157. a. 3 which is compounded of con and sanguìne â—o the Polles quasi eodem sanguine natus this is a principal Challenge to the Polles because the Law presumeth that one kinsman doth favour another before a stranger and how remote so ever he is of kindred yet the Challenge is good And if the Plaintiffe challenge a Iuror for kindred to the Defendant it is no Counter-plea to say that he is of kindred also to the Plaintiffe though he be so in a néerer degrée for the words of the venire facias forbiddeth the Iuror to be of kindred to either party 6 If a Body politique or incorporate sole or aggregate of many bring an Action that concerns their Body politique or incorporate Co. ibid. The like if the Iuror be of kindred to any that is of that body albeit the Body politique or incorporate can have no kindred yet for that those Bodies consist of natural persons it is a principal Challenge c. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge The like and to the favoâ—â— and equivalent to Consanguinity when it is betwéen either of the parties as if the Plaintiffe or Defendant marry the daughter or Couzen of the Iuror or the Iuror marry the daughter or Couzen of the Plaintiff or Defendant and the same continues or issue be had And if the son of the Iuror hath married the daughter of the Plaintiff c. albeit this be no principal Challenge because it is not betwéen the parties yet is it a Challenge to the favour c. Co. l. 3. 38. b. 4. in Ratcliffes Case 8 Martha Wilcocks A maid conveyed away and married one of the daughters and co-heirs apparent of Eliz. the relict of William VVilcocks and then the wife of Ralph Ratcliffe dwelling in her mothers house at Hitchin being then under the age of sixtéen years and about fourtéen went from thence at two of the clock in the morning with the consent of the said Ralph to Bramfield being eight miles distant from Hitchin and there married Edw. Ratcliffe And in an Ejectione firmae brought by Luke Norton upon the demise of the said Edw. the issue was whether Eliz. the mother had the custody of Martha at the time of the said marriage for if she had then the Land of the said Martha being in soccage was to be lost for her life by force of the Statute of 4 5. P. M. cap. 8. which prohibiteth the conveying of a maid c. out of the custody and contracting Matrimony with her without the consent of her father if he be living or of her mother in case her father be dead c. in pain for the man to suffer imprisonment c. and for the maid to lose her land as aforesaid c. And in that Case it was resolved that Eliz. the mother had the custody of the said Martha at the time of the Marriage within the provision of the said Act for that Statute hath ordained two manner of new custodies viz. by reason of nature and by assignation And here the father of Martha being dead she is by nature left in the custody of her mother neither yet was the assent of Ralph Ratcliff the husband any thing at all material for the Statute hath annexed the custody to the person of the mother jure naturae which is inseparable and cannot by the marriage be transferred to the Baron but after the marriage remains onely in the mother c. Co. l. 3. 39. a. 4. in Ratcliffes Case 9 It is said No wardship during the â—â—thers life that if there be Lord and Feme tenant by Knights-service and the tenant make
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
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.
Villein to the stranger in respect of his confession So likewise in a writ of â—ativo habendo if the Plaintiffe as he ought offereth in his Count to prove the Villeinage by the Cousins and kindred of the Defendant and thereupon produceth the Vncles of the Defendant who upon examination confesses themselves to be Villeins to the Demandant this confession being entred of record doth so bind that albeit they were frée before yet they and the heirs of their bodies are by this confession bound and Villeins for ever c. â—â—â—chisâ—â— 6 If the Lord deliver seisin of Lands to his Villein Litt. §. 206 108. Co. ib. 138. a. 4 b. 3. to hold in fée fée taile for life or for yeares or make him any other certaine Estate or if the Lord sue against his Villein a praecipe quod reddat and recover or be non-suit or sue against his Villein any other personal action as debt account covenants trespass or the like These are maâ—â—missions because in the first Case the Lord may enter into the land of his Villein and in the other may imprison his Villein or take his goods at his pleasure without suit but by such suits the Lord maketh the Villein to be a person able to render the Lord in the first Case the land and in the other damages by course of Law In like manner if before indictmest the Lord bring an appeal of felony against his Villein whereupon the Villein is acquit this is an enfranchisement because upon the aquittal the shall recover damages against the Lord by the Statute of West 2. cap. 12. quia multi per malitiam c. In summe wheresoever the Lord giveth to the Villein a just cause of Action he is enfranchised and therefore if the Lord kill his Villein his son and heire shall have an appeale and thereby the heire shall be enfranchised because the offence of the Lord gave to the heire a just cause of Action against the Lord. 〈◊〉 in 〈◊〉 7 If there be two Coperceners Co. ib. 14â— b. 2 and the one bring a Rationabili paâ—â—e or a Nuper obijt against the other and the defâ—ndant claimes by purchase and disclaimes in the bloud here the Plaintife shall have a Mortdancester against her as a stranger for the whole Co. ib. 170. b. 4 8 When partition is made by the two Barons in the life time of their Femes Coperceners although such partition be unequal Unequal partition Feme covert Infant yet it is not void but voidable For if after the decease of the husband the wife entreth into the unequal part and agreeth thereunto this shall bind her and her heires for ever There is the same Law of an Infant when his part is unequal Co. ib. 171. a. 4 for by his entry at full age the partition is made good for ever Co. ib. 172. b. 3 173 a. 3. Litt. §. 260 261. 9 If a man having Issue two Daughters die seised of Fée-simple lands and also of as much in taile Coperceneâ— of fee-simplâ— and entâ—â—â— Lands and the eldest sister takes the entailed land for her proper part an the youngest sister enters into the Fée-simple lands and having issue aliens them to a stranger and dies In this Case the issue in taile may enter into the intailed lands and occupie them in Copercenery with her Aunt for it was the folly of the eldest sister to take the entailed lands for her part Litt. §. 286. Co. ib. 185. a. 3 10 If there be joint-tenants in fée Joint-tenanâ— Rent-charge Release and the one granteth a Rent charge out of his part and dieth in this Case the survivor shall hold the land discharged of the Rent because he claimeth the land by a title paramont viz. from the first feoffor and not by his companion but here if after the land is charged with the rent the other joint-tenant accept of a release from his ompanion that so charged the land in such case he shall hold the land charged with the rent for now by acceptance of such release he is not in by survivorship but from his companion Co. ib. 202. a. 2 11 The demand of a Rent or other sum to take advantage of a re-entry or condition broken ought by the law to be made where no other place or time is limited for the payment thereof upon the Land at the most notorious place there as at the fore-dore gate Demand of Rent c. upâ—â— a re-entry Condition or the like and at the last part of the day so as the money may be conveniently numbred before Sun set yet if upon the day of payment thereof the lessée or feoffée happen to méet the lessor or feoffor upon any part of the Land although it be not the most notorious place or at any time of the last day although it be not the last part as afore-said in such case if the Lessor or feossor refuse it In Wades Ca. Co. l. 5. 14. b. 2 he shall not take advantage of a re-entry or Condition broken as afore-said for by such refusal being his owne Act he hath barred himselfe of that advantage Co. ib. 202. b. 3 12 A. is bound to B. to pay 10 l. to C. A. tenders to C. Payment 〈◊〉 stranger and he refuseth in this Case the bond is forfeit for it shall be imputed the folly of A. to undertake to pay it to C. of whom he had no power to compel him to receive it Co. Inst p. 1. 209. a. 2 Co. l. 6. 31. a. 2 in Bothies Ca 13 If a man be bound to A. in an obligation with condition to enfeoffe B. who is a méere stranger before a day Obligation with Condition to enseâ— the obligor doth offer to enfeoffe B. and he refuseth the obligation is for the obligor hath taken upon him to enfeoffe him and his refusal cannot satisfie the condition because no feofment is made but if the feofment had béen by the condition to be made to the obligée or to any other for his benefit or behoofe in such Case a tender and refusal shall save the bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not give himself cause of action so also if A. be bound to B. with Condition that C. shall enfeoffe D. In this Case if C. tender and D. refuse the obligation is saved for the obligor himself undertaketh to do no act but that a stranger shall enfeoffe a stranger and in such case it shall be intended that the feofment should be made for the benefit of the obligée Litt. §. 340 Co. ib. 210. a. 4 14 If A. make feofment or be bound to B with condition to pay 20 l. No place â— payment at such a day no place being limited for the payment thereof here A. is bound to seeke B. if he be in
like the Law imputeth it to the Laches and folly of the grantée that he will not perform the Condition while he may and believeth against him these and the like things done to his owne prejudice Co. l. 3. 65. b. 2. in Penuants Case 32 If he that hath a Rent-service or Rent-secke â—cquittance the last Rent accept the Rent due at the last day and thereof make an acquittance all the arrearages due before are thereby discharged and so it was adjudged betwixt Hopkins and Merton in that Common Place H. Rot. 950. Vide 10 El. Dier 271. But there the Case is left at large with this also agrées 11 H. 4. 24. 1 H. 5 7 6. But note that the barre to the avowrie ought to be with conclusion of judgment Si encounter cest fait d'acquittance il doit faire Avowry as appeares by the Record of 10 El. and he ought not to demand judgment si action Co. ib. 66. a. 4. 33 If there be Lord and Tenant by Knight-service A extance shall lose thâ— ward and the Tenant enfeoffe his son and heire within age by Collusion In this Case if the Lord accept the services by the hands of the feoffée he shall lose the ward for the Statute of Malbridge cap. 6. making such feofment by Collusion void and of no effect as to the Lord if the Lord will affirm the feofment and waive the benefit of that act by acceptance of the feoffée for his Tenant he shall thereby purge the collusion and therefore deserveth to lose the ward Co. l 4. 1. a. 2 b. 4. Vernous Case 34 B. enfeoffes to the use of himselfe for life jointure in hew of dower remainder to his wife for life with Condition to perform his last will and for her jointure and dies the wife enters agrées to it and after brings her writ of dower In this Case if after the death of the husband the wife accept of that conditional Estate such acceptance shall barre her from having dower for albeit dower at the Common Law in liew whereof a jointure is granted be an absolute Estate for life yet in as much as an Estate for life upon Condition is an Estate for life it is within the words and intent of the Statute of 27 H. 8. 10. to barre the wife of her dower if after the death of her husband she accept thereof So if the husband enfeoffe to the use of himselfe for life the remainder to the use of his wife durante viduitate for her jointure this is an Estate to her for life and cannot determine without her own Act and therefore a jointure also within the Statute if after the husbands death she accept thereof Co. l. 4 9. b. 2. in Bevils Ca. 35 If there be Lord and Tenant by fealty and Rent Rent-service made Rent-secke and the Lord grant over the fealty saving the Rent or if a man make a gift in taile or lease for life rendring Rent and grant over the reversion except the Rent in these Cases the nature of the Rent is altered by the parties owne Act and therefore the ancient seisin when it was Rent-service will not in such case suffice because by his own act the nature of the Rent is changed neither can he have for it an Assise as of a Rent-secke because he was never seised of any such Rent Co. l. 4. 11. b 2. in Bevils Ca. 36 If there be Lord and Tenant by fealty and two shillings Rent Rent by incroachment and the Lord by encroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Tenant shall not in avowry avoid such seisin had by accroachment unlesse it be in some special Cases which sée ubi suprà â—â—â—ges irâ—â—â—able 37 If A. hath Rent-service or Rent-charge in fée or for life Co. l. 4. 50. b. 4. in Andrew Ogwels Case and the Rent is arreare and after A. grants over the Rent to another and the Tenant attornes and after A. dies his Executors are not within the branch of the Statute of 32 H. 8. 37. which gives power to Executors c. to recover Debt due to the Testator at the time of his death for by the grant over the arrecages were lost and were not due to the Testator at the time of his death And therefore when the Testator by his own Act in his life time had dispenced with the arrerages the said Act gives no remedy to recover them â—il revolâ— by maâ—e 38 If a Feme sole make a Will and after take Baron Co. l. 4. 61. a. 4. in Forse and Hemblings ca. this is a revocation thereof for the making of a Will is but the Inception thereof and it takes not any effect until the death of the Devisor because omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes Husband and after marriage her Will being her Husbands and subject to it by taking Husband she hath wholy revoked the Will formerly made â—â—vise â—y â—â—â—nder 39 A. deviseth Land to B. till 800 l. be raised for the preferment of his daughters A. dies C. being heire conceales the Will Co. l 4. 82. b. 3. Sir Andrew Corbets Case and enters In this Case B. shall have allowance for the time that the Will was concealed and that time shall not be accompted parcel of the time for the levying of the money But if B. had surrendred to C. upon Condition and had entred for the Condition broken Co. l. 5. 13. b. 3. in the Countesse of Shrewesberies ca. that should have béen accounted parcel of the time for that was his own Act. 〈◊〉 40 At the Common Law before the Statute of Glocester cap. 5. 6 E. 1. no remedy lay for waste either voluntary or permissive against Lessée for life or yeares because the Lessée hath Interest in the Land by the Act of the Lessor and it was his folly to make such a lease and not to restraine him by covenant condition or otherwise from making waste And for the same reason it is that at this day Tenant at will shall not be punished for permissive waste but for voluntary waste he may according to Littleton fol. 15. 〈◊〉 â—â—â—der 41 A. demiseth the Mannor of D. to B. for 30 years Co. lib. 5â— 11. Ives Case except the under wood growing upon it and after demiseth the underwood to him for 62 years without impeachment of waste afterwards B. accepts a lease of 30 yeares of the Mannor after the exspiration of the first 30 yeares In this Case because the demise of the underwood did not sever it from the Mannor the intire franktenement notwithstanding such demise remaining still in the Lessor by his acceptance of the last lease for 30 years the former two leases were
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
§. 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
drawes right of property 225. followes the possession 227. may be forfeited 237. preferred before the possession 372. where extinct Et e contr 440. cannot incorporate with wrong 567. favourably expounded 502. cannot dye 504. Present or future may be barred 485 Robbery 110 Return The Court cannot proceed upon a-False returne 272 S. SAles not good upon the Lords day 8. by the Sheriff 707 Scandal magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit 191. not traversable 287. of a Rent by the Feoffor 421 Scire facias 160 613 690. When shall issue out when not followes the Record 229 Seales 743 Seizure of a villaine 162 Seigniory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution 420. Where they may break up a house to deliver Execution or Seisin 678 Sewers 685 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 intire 260 in Law 472 447 450 Suspence Seigniory suspended not grantable 56 personall things once suspended ever gone 154 Statutes what binde the King 13. subsequent expounded by equity of former 23 220 Interpretation of them 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty how taken 355 taken by intendment 501 Stewardship 300 Services Intire 262 263 Divine 285 Summons and severance 337 574 T. TAil what things may be intailed 358 Void for incertainty 405 docked by recovery value 414 Tales 507 Terme not extinct by purchase of the Fee 335 not drowned 339 Tempus sem how to be accounted 12 Tender Of marriage 91 687 of amends 259 of mony to a stranger 200 Upon a mortgage 375 Excused 570. of Livery by the heire 610. Tender and refusall 470. â—or the Redemption of a mortgage by the Guardian 497. For an ideot 497. by a straner where saves a forfeiture 485. of the demy marke 677 Of the debt in Court 689 Tenant by the curtesie 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery and how not 130 131 Tenant in Frankalmoigne 149. cannot disclaime 104 is not to be distrained for Arreares 106 Tenant Right 214 Tenants in common 244. shall joyn in Assise 545 where joyne where sever in actions 611 Tenant in tail after possibility c. 450 Tenant for anothers life 578 Tenant at sufferance 453 Tenures In capite 61. 142. In socage 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure none can dispose of the Kings treasure without licence 303 304 Trade what it is 139 Traverse not without an office found 72. the place not to be traversed in personall actions 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Tryall in a forrain county 224 of villainage 351. of a Peer in Ireland 497. Per medietatem lingue 472 Trover brought by a Lunatick 427 Trusts where they shal go to executors 187 V. VAriance betweene the originall and judgment 637. in circumstances no prejudice 384 Between the writ and the count 636 637 Valore Maritagii 716 Verdict intire 261 in criminall causes not privy 353 where at large 604 708. incertain is insufficient 624. 631. 632. 648. where voided by acts done by the Jurors 697 Et e contr Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seisure 666 View of the vouchee 92 Voyage royall 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Vsurpation 310 318 upon an Infant 444. Vnity of possession doth not extinguish partition 150 Vses 349. Revoked 72 of a recovery after it is suffered declared 109 regarded as E states 202 superstitious draw good uses 231 good and charitable to be preferred 740 741 752. introduced inconveniences 748 Declaration of them 771 good and superstitious how they shall operate 628. W. WAger of Law 429. 644. 697. 714. 716 419. Not by a prisoner for meat and drink 669. Where not in account and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall loose it 37. The second ward shall not sue Livery 37. Revived 40. No Wardship because the tenure begins in the Sons 61. of an use 111. Where though not dying seised 142. Not during the Fathers life 277 278 Way 377 Warrants 366 Waiver of goods To whom the goods belong 501. 502 Warranty 238. 314. 326. No bar e contra 20 256 340. Collaterall and Lineall 39. 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heire not bound to warranty where the Ancestor was not 57. Makes a discontinuance 99. Extinct 118. May increase upon an Estate granted 119 Determined 124. What words imply it 124. void 124. Without the word Heires 187. Implyed in Exchange and partition 191. For life only 206. Followes the Land 250. Intire 256. 262. Deraignment of it 535. Annexed to incorporeall things 411. With Assets bindes the King 411. Expresse and implyed 447. By Husband and wife 555. Continues after Partition 577 Warrantia Charta 157. 469. 719. Not after a Recovery in value 410 Waste 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where 39. Et e contra In Cole mines not opened 67. 573. Against Tenant in Dower and by the curtesie 188. Against the Guardian 575. Successor not charged with it 451. Women Not sworne in Leets 318. Withernam 560 Wills Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words In Grants needlesse 245. Of inferiour Ranck exclude them of higher 270. Construed in the mildeâ— sense 704. Generall Imply no certainty 635 636 Writs Of Customes and services 18 317. not to be changed without Act of Parliamen 68. De secunda superoneratione 273. Of Right oâ— Advowson 294. Of Mesne 371. 380. 445. Of Entry upon an Advowson 421. Oâ— Disceit 560. To the Bishop 112. Adversaâ—ia amicabilia and their difference 482 Where to be brought 496 Wreck 489. FINIS
Finch 11. Tenant in tail in remainder cannot falsifie a recovery 7 A. is Tenant in taile remainder to B. in taile Co. lib. 1. 62. Caples case B. grants a rent charge A. suffers a common recovery and dies without issue Here the Grantée of the rent shall not have it because he cannot falsifie the recovery being suffered by one that could not be chargable with the rent for if B. in the remainder cannot do it may lesse the Grantée that claimes under B. An Infant not remitted 8 If a man by Covin disseise the Discontinuée of Tenant in taile with an intent to enfeoffe the issue in taile being within age 19 H. 8. 8. per six Justices Co l. 3. 78. a. Fermors case although the Infant was not conscious of the Covin c. yet shall he not be remitted because the Infant that is in by him who acted the Covin shall be in the same plight with him that performed the covenous act A Copihold a firm estate 9 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. Murrel and Smiths case that by the severance of the inheritance of the Copihold from the Mannor the Copihold it selfe is not destroyed For in as much as the Lord himselfe cannot out the Copiholder much lesse shall he that claimes under him do it Executors shal lose arrerages 10 If the sonne be Lord and the father Tenant by certaine rent Co. l. 4. 49. a. Ognels case the rent is arreare the Tenant dies and the tenancie descends to the sonne in this case if the sonne also dies the executors of the sonne shall not have an action of debt for the arrearages incurred in the sonnes life because the sonne himselfe by no possibility could have such an action for that the tenure was altogether in the realty and the Tenant could not be charged in any personal action for those arrearages The like 11 If A. hath rent service or rent charge in fée or for life Co. ibid. 50. b. 4 Co. l. 5. 12. b. 1. Sanders case and the rent is arreare and after A. grants over the rent to another and the Tenant attorns and after A. dies in this case the executors of A shall not recover the arrearages by force of the Statute of 32 H. 8. cap. 27. For by the grant the over arrearages were lost and were not due to the Testator at the time of his death and the Statute saith the executors shall recover them c. in as large and ample manner as the said Testator might or ought to have recovered them c. Waste in a Cole-mine 12 A. demiseth a lease to B. for yeares Co. l. 5. 113. a. Mallories case Co. Inst pars 1. 321. b. 1. M. 36 37 El. in Co. B. Rot. 420. Owseys case wherein there is a Cole Mine not opened Here if B. open the Mine it is wast And therefore if after the Mine is open B. assigne his terme to C. and C. taketh the benefit of the Mine C. also committeth wast albeit the Mine was open before for Derivata potestas non potest esse major primitiva Grant of a reversion not good without attornment 13 If a Lease for life or years be made rendring rent c. and after the reversion is granted to B. by fine and before attornment B. disseiseth or outs the Lessée and enfeoffes C. the Lessée re-enters this shall not amount to an attornment in Law to make privity to C. and so to enable him to distraine for the rent for he shall not be in better estate than his Feoffor was it is otherwise if the Lessée had expressely attorned to the Feoffée Co. l. 6. 68. Sir Moile Finches case Demise durante viduitale 14 If a Feme seised of lands durante viduitate Co. 5. 116. a. Olands case make a Lease for yeares and the Lessée sow the land and afterwards the Feme that made the Lease takes Baron Here the Lessée shall not have the graine for although his estate be determined by the act of a stranger yet he shall not be in better case than his Lessor from whom he derives his interest Tenant in tail cannot demise longer then the estate lasts 15 If Tenant in taile make a Lease for lives according to the Statute of 32 Hen. 8. 28. and after die without issue Co. l. 8. 34. a. Pains case per Curiam this Lease being derived out of the estate tail shall not continue longer than the estate taile against the opinion in Dyer 33 Hen. 8. fol. 48. For Cessante statu primitivo cessat derivativus Co. 8. 135. b. Sir John Nedhams case 16 The Ordinary hath not power to give authority to another to sell the goods of the dead Ordinary cannot sell because he himselfe hath not any such authority 9 El. Dyer 255. Co. l. 9. 39. a. Hensloes case Co. 9. 76. b. 2. Combes case 17 A Copiholder may surrender by Attorney A Copihold may be surrendred by attorney but then that Attorney must pursue the manner and form of the surrender in all points according to the Custome as the Copiholder himselfe ought to do as if the surrender ought to be done by the rod or by any other thing or in any other manner the Attorney ought to observe it accordingly for his power shall not excéed the power of the Copiholder that gives him his authority Co. l. 11. 87. a. 4 The case of Monopolies 18 In the 11 Report The grant of a Monopoly void one reason why the grant of the Monopolie of making Cards to Edward Darcie was adjudged void was because he had no skil to make them and therefore albeit the grant extended to his Deputies and that he might appoint Deputies which might be expert yet if the Grantée himselfe be unexpert and so the grant void as to him he shall not make any Deputy to supply his place because Quod per me non possum nec per alium 27 Things are dissolved as they be contracted Unum quodque dissolvitur eo modo quo colligatum est Nihil tam conveniens naturali aequitati unumquodque dissolvi eo ligamine quo ligatum est Bract. l. 5. 413. Fleta l. 2. c. 12. Co. Inst pars 1 54. b. 1. Inst 2. part W. 2. cap. 24. 1 Bracton saith Writs not changed without Act of Parliament that writs original both formed and of course which are extant in the Register had their first authority by act of Parliament and therefore without an act of Parliament they cannot be altered or changed which is proved by Westm 2. cap. 24. whereby remedie is provided in many cases Bractons words are these Sunt quaedam brevia formata in suis casibus quaedam de cursu quae concilio totius regni sunt approbata quae quidem mutari non possunt absque eorundem
the acquital 7 If the husband alien his land Co. ibid. 33. a. 4. and then the wife is attainted of Felony Where the Feme shall have dower and where not now is she disabled but if she be pardoned before the death of the husband she shall be endowed So if the Sonne endow his wife at the age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of 9 yeares the Dower is good for in these two cases the right of Dower tooke effect in the life time of the husband hy reason of the capacity which the wives had to take it But otherwise it is of an original absolute disability as if a man take an Alien to wife and after the husband alien the land and after she is made Denizen the husband dieth she shall not be endoweâ— because her capacity and possibility to be endowed came by the Denization otherwise it were if she were naturalized by Act of Parliament for that makes her as absolutely capable as if she were a subject borne 8 If the Father convey his lands holden by Knight-service either of the King or of any meane Lord Wardship to his middle Sonne in taile Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée and dieth the eldest being within age and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue the King or the Lord shall not have any benefit of the Statute against him in remainder for the Statute was once satisfied and the Statute extendeth not to him in remainder Co. l. 2. 93. 94. Binghams case and Northcots case Co. l. 10. 80. b. Loveyes case â—enures in â—occage 9 When Littleton saith Co. ibid. 86. a. 3. 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage he there speaketh of Soccage as it is largely taken and so called ab effectu that is all Tenures which hath the like effects and incidents belonging to them as Soccage hath are termed Tenures in Soccage albeit originally service of the Plough was not reserved as if originally a Rose a paire of gilt Spurs a Rent or the like were reserved or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum ut alio suspendio Ockam 31. a. 6. alios membrorum detruncatione vel aliis modis juxta quantitatem perpetrati sceleris puniat that is to be a Hangman or Executioner It séemes in ancient times such Offices were not Voluntiers nor to be hired for lucre but were to be bound thereunto by Tenure Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service Chattel vested which Seigniory the Bishop hath in the right of his Bishoprick the Tenant dieth his heir within age the Bishop either before or after seisure dieth neither the King nor the Successor of the Bishop shall have the Wardship but his Executors for albeit the Bishop hath the Seigniory en auter droit yet the Wardship being but a Chattel he hath it in his own right and a Chattel cannot go in the succession of a Sole Corporation unlesse it be in the case of the King Littl. § 350. Co. Inst pars 1 216. b. 1. 217. a. 4. 11 If land be granted to a man for terme of five yeares upon Condition An estate upon condition to have fâ—â— that if he pay to the Grantor within the two first yeares 40 marks that then he shall have fée or otherwise but for the terme of five yeares and Livery of Seisin is made unto him by force of the Grant in this case the Grantée hath Fée simple conditional c. and if he do not pay to the Grantor the 40 marks within the first two yeares then immediately after those two yeares past the Fée and Frank-tenant is and shall be adjudged in the Grantor c. And the reason of this case is grounded upon the effect that the Livery tooke at first for by the rule of Law a Livery of Seisin must passe a present Fréehold to some person and cannot give a Fréehold in futuro as it must do in this case if after Livery of Seisin made the Fréehold and Inheritance should not passe presently but expect untill the Condition be performed And therefore if a Lease for yeares be made to begin at Michaelmas the remainder over to another in fee if the Lessor make Livery of Seisin before Michaelmas the Livery is voide because if it should worke at all it must take effect presently and cannot expect Co. ibid. 217. b. 1. And there is a diversity in the case above put betwéen a Lease for life and a Lease for yeares for in case a Lease for life with such a Condition to have Fée the Fée simple passeth not before the performance of the Condition for that the Livery may presently work upon the Fréehold but otherwise it is in the case of a Lease for yeares There is also a diversity betwéen Inheritances that lie in grant and Inheritances that lie in Livery for if a man grant an Advowson for yeares upon Condition that if the Grantée pay xx s. c. within the terme that then he shall have Fée the Grantée shall not have Fée untill the Condition be performed sic de similibus But otherwise it is where Livery of Seisin is requisite and therefore if the King make such a Lease for yeares upon such a Condition the Fée simple shall not passe presently because in that case no Livery is made Vide 55. 109. 35. 8. Littl. § 359. Co. ibid. 222. b. 3. 227. b. 4. 12 If a man make a Déed of Feofment to another without Condition and when he gives Livery Livery upon condition he clogs the estate with a Condition in this case the estate takes effect by the Livery and not by the Déed of Feofment and therefore shall be subject to the Condition Co. ibid. 228. a. 1. 13 If a Déed be made and dated in a forraigne Kingdome of lands within England yet if Livery and Seisin be made Livery upoâ— forraigne deed Secundum formam cartae the land shall passe for the land passeth and the grant takes effect by the Livery and not by the Déed Co. ibid. 271. b. 3. 14 There is a diversity betwéen a Feofment of land at this day upon confidence or to the intent to performe his last Will A feofment the use of a Will and a Feofment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feofment because after the Feofment the Feoffor was seised in Fée
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
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
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
Coverture shall make their law And also an Infant when he is of the age of twelve years shall take the Oath of Allegiance to the King in the Turn or Léet and this was as Bracton saith secundum leges sancti Edvardi But indéed such was the Law in the time of King Arthur c. Baron and Feme Infants 8 If husband and wife be both within age Co. ib. 337. a. 3 and they by déed indented joyn in a Feoffment reserving a rent the husband dieth the wife may enter or have a Dum fuit infra aetatem But if she were of full age she shall not have a Dum fuit infra aetatem for the non-age of her husband albeit they be but one person in law Infant execut 9 An Administration durante minore aetate at the age of seventéen years of the Infant Co. l. 5. 29. b. Princes case executor ceaseth before which age he cannot assent to a Legacy c. Howbeit if Feme be such an Executrix and she before seventeen take Baron of full age the Administration also in that Case ceaseth because then the Baron is able to administer as executor c. â—ge of the â—â—eir female 10 At the Common Law the full age of the heir female was fourtéen as appears in 35 H. 6. 52. and Litt. 22. Co. l. 6. 70. b. 4. in the Lord Darcies case and if she were of the age of fourtéen at the death of the Ancestor she could not be in ward and if within that age she was to have livery at that age c. but now by the Statute of VVest 1. cap. 22. if she were under 14 at the death of her Ancestor she shall be in ward till sixtéen for the Lord to tender marriage and upon refusal to have the benefit of those two years but not to have any forfeiture of Marriage c. Co. ib. l. 9. 72 b. 3. in Doctor Husseys case 11 The Statute of Merton cap. 6. Anno 20. H. 3. Merton cannot extend to the heir female because it saith 14 ultra and ultra terminum aetatis suae de 21 c. which words must be understood of the heir male and not of the heir female because twelve is the age limited for the heir female to give consent to marriage but fourtéen for the heir male and therefore that Statute gives a forfeiture in case of refusal of Marriage upon tender to the heir male c. Co. Inst p. 1. 78. b. 3. 12 By the Civil Law the full age of a man or woman to alien Age by the Civil Law demise let contract c. is five and twenty years for then the Romans accounted men to have plenam maturitatem and the Lombards at eightéen years 91 In things the Law respecteth every thing according to Worthinesse 1 Littleton saith § 2. If a man be seised of Lands in Fée-simple The most worthiest of blood shall inherit and die without issue Co. Inst p. 1. 10. b 2. Son prochein Cosein collateral del entire sanke c. his next Collateral Cosen of the whole Blood c. shall have it as heir unto him whereupon my Lord Cook puts this Case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth A. purchaseth Lands in Fée-simple and dieth without issue In this Case D. is his next Cosen and yet shall not inherit but the issue of C. because albeit D. be his next Cosen jure propinquitatis yet the issue of C. shall inherit being the more worthy viz. his next Cosen Jure repraesentationis And Littleton there meaneth of the right of representation for legally in course of Descents he is the next of Blood inheritable because the most worthy In such sort that all that Line of C. be they never so remote shall inherit before D. or his Line And therefore Littleton saith well de quel pluis long degree que il soit c. And yet in the Case abovesaid if a Lease for life were made to A the remainder to his next of Blood in fée In that Case D. shall take the remainder because he is next of Blood and capable to take by purchase though he be not legally next to take as heir by Descent And D. takes the purchase by the special limitation of the party but the Law casts the Descent upon the issue of C. as the more worthy Finch p. 116. Litt. §. 4. 5. Co. ib. 14. a. 1 c. Vide Finch page 116. So likewise the Blood of the Fathers side is more worthy then that of the Mothers the male then the female the eldest Son then the younger c. And therefore those shall inherit before these and the female on the Fathers side before the male or female on the Mothers c. Quod priùs est dignius est qui prior est tempore potior est jure Si quis plures filios habuerit jus proprietatis primò descendit ad primogenitum eò quòd inventus est primò in rerum natura Co. ib. 53. a. 3. 2 If the Tenant cut down or destroy any Fruit-trées growing in the Garden or Orchard it is Waste Trees in Orchard waste but if such Trées grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Co. ib. 240 a. 2 3 A dying-seised and a descent A Descent Escheat and not a dying-seised and an Escheat doth take away the entry of the Disseisée because the descent is the worthier title c. 4 It is holden that if there be Bastard eygne and mulier puisat Co. ibid. 244. a. 3. and the Mulier be within age at the time of the dying seised of the Bastard Bastard Mulier Descent that neverthhlesse the Mulier shall be barred because the Issue of the Bastard is in judgement of Law become lawful heirs and the Law doth preferre legitimation before the priviledge of Infancy Laches in an Infant 5 It is regularly true that Laches shall not prejudice an Infant Co. ibid. 246. a. 1. neverthelesse Laches shall be adjudged in him if he present not to a Church within six moneths For the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of Infancy Homage and Fealty the worthiest services 6 Amongst the services due to be performed by the Tenant to his Lord homage and fealty are of greatest estéeme in the Law Co. l. 4. 8. b. 2. in Bevils case viz. Homage as the most honorable and the most humble service of reverence as Littleton saith And Fealty the most sacred being performed by an oath And therefore the Law makes more accompt of them then of other inferiour services for the seisin of them is seisin of all other services whatsoever and no distresse for them of any goods or chattels of what
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
frée-hâ—lds and inheritances incorporeal which lie in grant as advowsons and to Rents Commons Estovers and the like which Issue out of Lands or Tenements And not onely to such inheritances in esse but also to Rents Commons Estovers c. newly created As a man some say may grant a Rent c. out of the land for life in taile or in fée with Warranty for albeit there can be no title precedent to the Rent yet there may be a title precedent to the Land out of which it issueth before the grant of the Rent which Rent may be avoyded by the recovery of the Land in which Case the grantée may help himselfe by a warrantia cartae upon the special matter and so a Warranty in Law may extend to a Rent c. newly created as in Case of a Rent granted upon exchange or for owelty of Partition â—arranty â—es bind the â—eg 17 King H. 3. gave a mannor to Edmond Earle of Corne-wal Ibid. â—70 b. 1 Pl. 134. and 553 554. and to the heires of his body saving the possibility of Reverter and died The earle before the Statute of W. 2. de donis c. by déed gave the said Mannor to another in fée with Warranty in exchange for another Mannor and after the said Statute in the 28 of E. 1. dieth without Issue leaving assets in fée-simple which warranty and assets descended upon E. 1. as Cosin and heire of the said Earle viz. Son heire of H. 3. brother of Rich. E. of Cornewal father of the E. Edmund And it was adjudged that the King as heire to the Earle Edmund was by the Warranty and assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and assets descended upon the natural body of E. 1. as heire to a subject and E. 1. claimed the said Mannor as in his Reverter in Jure Coronae in the capacity of his body Politique in which right he was seised before the Gift Ibid. 372. b. 4 Co. lib. 2. 16. Wisemans Ca. 18 If Prince Henry Son of H. 7. had made a Gift in tail An intaile â—â—mainder in the King cannot be barredâ— the Remainder to H. 7. in Fée which Remainder by the death of H. 7. had descended to H. 8. so as he had the Remainder by descent yet might Tenant in tail barre the Estate tail by a common Recovery notwithstanding the Statute of 34 H. 8. 20. But if H. 7. in consideration of money or of assurance of Land or for other consideration by way of Provision had procured Prince H. by déed indented and enrolled to have made a Gift in tail to one of his Servants and subjects for recompence of service or other consideration the Remainder to H. 7. in Fée and all this appear upon Record This is a good provision within the said Statute and the Tenant in tail cannot by a common recovery barre the Estate tail Ibid. 384. b. 2 19 In a formedon in descender it is a good plea to say Warranty 〈◊〉 assets a good plea against the Issue in tail that the Ancestor of the demandant exchanged the land with the Tenant for other lands taken in exchange which descended to the demandant whereunto he hath entred and agréed or if the demandant hath not so entred and agréed then may the Tenant plead the Warranty in law and other assets descended for in such Cases there ought to be quid pro quo Ibid. 390. a. 4. 20 Tenant in tail maketh a feofment in Fée with warranty Remitter suspended by warranty anâ— assets and disseiseth the discontinuée and dieth seised leaving assets to his Issue some hold that in respect of this suspended warranty and assets the issue in tail shall not be remitted but that the discontinuée shall recover against the Issue in tail and he take advantage of his Warranty if any he hath And after in a Formedon brought by the Issue the discontinuée shall barre him in respect of the Warranty and Assets and so by such mutual recompence every mans right is saved Ibid. 23. 2. 21 If one make a feofment in Fée without valuable consideration to divers particular uses Use remaiâ—â— in the Feoffor so much of the use as he disposeth not is in him as his ancient use in point of Reverter It is otherwise if he make such a feofment for money or other valuable consideration Co. l. 1. 24. 2. 3 Porters Case 22 If a feofment be made to superstitious and unlawful uses A consideration makes thâ— feoffees seiseâ— to their own use the Statute of 23 H. 8. 10. makes the uses void but the feofment remaines good and the feoffées shall stand seised to the use of the feoffor and his heires but if in that Case the Feoffor shall reserve 1 d. Rent or receive from the Feoffées 1 d. consideration upon the feofment the Feoffées shall be seised to the use of themselves and their heires Co. ib. 106. a 4. 23 In Shelleys Case albeit the Recoverée died before execution Recovery iâ— value yet the judgment being to recover in value the Issue is thereby barred because he is thereby to have recompence Cited in the Rector of Chedingtons Case Co. l. 1. 154. a. 2 24 The Lord Paget An use must have good consideration being seised of the Mannor of A. B. c. covenants with I. S. and others that in consideration of the discharge of his funerals and payment of his debts and legacies out of the profits of his land and for the advancement of his Sonne and others of his bloud he and his heires would stand seised of the said Mannors to the use of the said I. S. c. for the life of the said Lord Paget and after his death to the use of Ch. P. and others for the term of 24 yeares and after the expiration or end of that term then to the use of Sir William Paget his Son in taile with divers remainders over and after the Lord Paget was attainted of treason In this Case it was adjudged that the term to Ch. P. c. was void because there wanted good consideration in as much as Ch. P. c. were strangers to the consideration aforesaid But if he had made them executors so that they might have béen chargable towards the payment of his debts and so made privy to the consideration then had such consideration béen good and the Estate made to them had also béen good â— general â—â—sideration 〈◊〉 good 25 An use cannot be raised by any covenant or Proviso C. l. 1. 176. a. 1. Mildmays Case or by bargaine and sale upon a general consideration and therefore if a man by déed intended and inrolled according to the Statute for divers good considerations bargaine and sell his land to another and his heires nihil inde operatur for no use shall be raised upon such general consideration
upon an Infant and present Usurpation upon an Infant which Infant hath an Advowson by discent and after the Incumbent die the Infant shall present and if he be disturbed he shall have an Assise de darreine presentment But if the Infant purchase the Advowson and present and after the Church is void and a stranger presents and usurpes upon the Infant and after the Incumbent dies in this Case the Infant shall not have an Assâ—â— of darreine presentment but shall be put to his writ of right because in the first Case he is in by Act in Law viz. discent but in the last Case by act of the party F. N. B. 34. s. 52 If a Feme purchase an Advowson and takes Baron A Feme hath an Advowson and the Church is void and a stranger presents and the Baron suffers this usurpation here by this usurpation the Feme shall be out of possession after the six moneths past and shall be put to her writ of right of Advowson if she had presented before but if she had not presented before she is without recovery howbeit the Law is otherwise where the Feme hath the Advowson by discent or by course of inheritance which is an Act in Law Gâ—ant good without acâ—â—eament 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant before the Tenant hath attorned Fitz. N. B. 60. I but if a Reversion escheat to the Lord he shall have a Writ of Waste against the Tenant without any Attornment Or if the Lord of a Villain claim a Reversion that the Villain hath here also the Lord shall have a Writ of Waste against the Tenant if he make Waste without Attornment So also if the King grant a Reversion by his Letters Patents the Grantée shall have a Writ of Waste without Attornment because the Grantée being in by matter of Record he is conceived in by act of Law in like manner if before or since the Statute of Wills a man deviseth a Reversion to one in Fée the Devisée shall have a Writ of Waste against the Tenant without Attornment for before the said Statute he was in by Custom and since the Statute by force of the same Statute which are acts in Law A writ of â—esne 54 If Tenant for life be distrained by the Lord Paramount for Services Fitz. N. B. 136. g. a Writ of Mesne doth not lye for him against him in remainder or reversion but against the Mesne yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner because she comes to her Estate by Act of Law 55 In real Writs original if one be summoned and severed Co. l. 10. 134. b 2. in Read Redmans Case and afterwards dies which is the Act of God this shall abate the Writ but the taking of Baron or Entry into the Land by the party that is so summoned and severed shall not abate the Writ because these are acts of the party and the Writ by such acts where there is no summons or severance becomes onely abatable Guardian may â—ead without â—ewing a Deed. 56 A man cannot plead in any action Littl. §. 365. Co. Inst p. 1. 225. b. 4. that the Estate was made in Fée Fée-taile or for life upon Condition without vouching a record thereof or shewing a Writing under Seal proving the same Condition but if a Guardian in Chivalry in the right of the Heir entreth for a Condition broken he shall plead the Estate upon Condition without shewing of any Déed because his Interest is created by the Law And so it is also of a Tenant by Statute Merchant or Staple or by Elegit Howbeit the Lord by Escheat Co. ib. 226. a. 1 although his Estate be created by Law shall not plead a Condition to deseat a Frée-hold without shewing a Déed because the Déed doth belong unto him Vide supra Ru. 34. 〈◊〉 â—iry 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for yeares is alwayes grounded upon a privity and if the privity fail Dyer 4. b. 3. 24 H. 8. the action also failes and so it is adjudged in 18 H. 6. that if a man make a Lease for yeares rendring rent albeit the Lessee never enters or occupies the land yet the Action of Debt lyes for the privity But in 9 H. 6. a man makes a lease for yeares rendring rent the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent because he was not privy but a stranger to the first Lease Howbeit when the Law makes a privity it is otherwise as if a Lease be made to one for yeares rendring rent and the Lessée makes his Executor and dies an action of Debt lies against the Executor for the rent because he is made privy by the Law â—portion â—ct of rent 59 At the Common Law there could be no apportionment of rent Dyer ib â—â— by the act of the party but onely by act of Law for if the Tenant before the Statute of Quia Emptores terrarum Anno 18. E. 2. had made a Feoffment in Fée of part of the Tenancy the Lord might distrain in that part for all the rent but at the Common Law if a man had made a Lease for yeares of two acres of Land the one in Borough English and the other in Gavelkind and had issue two Sonnes and died In this Case this rent should be apportioned because this rent discended to them by Course of Law So if Lessée for years make a Feoffment of parcel of the Land leased and the Lessée enter for the Forfeiture into that parcel In this Case also the rent shall be apportioned because this Title of Entry is given to the Lessor by the Law Dyer 246. 68. 8 Eliz. 60 After the Teste of a Writ of Covenant Fine of Feme Sole and the Dedimus potestatem and the Conusance of a Fine taken of a Feme Sole and before the day in Bank to record and engrosse the Concord the Feme takes Baron yet it shall be recorded and engrossed at the Fine of the feme sole for she had done all that in her lay to do And such a fine shall bind the feme and her Heires and also the Baron as it séems for the marriage of the feme was her own Act It had béen otherwise if in that mean time she had died being the Act of God for then the Writ of Covenant had abated 115 Utique fortior est dispositio Legis quam hominis Co. Inst p. 1 310. a. 1. â—87 b. 2. 1 If a reversion be granted to a man and a woman Attornment 〈◊〉 Baron and Feme they are to have moities in law but if they inter-marrie and then attornment is had they shall have no moities and yet by the purport
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