a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
â—ings in Aâ—â—n 97 If the King grant his owne recognisance the suit shall be in the name of the grantée but if he grant an obligation forfeited for outlawrie Dier 1. 7. P. 4 H. 8. the suit shall be in the Kings name â—e like Fuit dit 98 Bruerton who was attained 28 H. 8. had certaine obligations Dier 30. b. 208 28 H. 8. which were forfeited to the King and the King grants them to his Wife without any words that it should be lawfull for the grantée to bring Actions thereupon yet the Feme brings an Information in her owne name for the said obligations And upon demurrer thereupon it was adjudged that the Action was well brought because the King onely may grant a thing in Action Finch as Ley French edition Fol. 22. 99 The King may licence things prohibited by Statute The Kings â—cence as to coyn money which is made Felony by the Statute and before that it was lawfull for any one to do it because it is but malum prohibitum But malum in se as to levie a Nusance in the high way the King cannot licence a man to do but after it is done he may pardon it Howbeit if the Statute saith that his licence shall be void there the licence shall have a clause of non obstante 2 H. 7. grants 73. viz. shall say Notwithstanding any Statute to the contrary otherwise it is not good as the Statute of 23 H. 6. 8. ordaines that the Kings grant to be Sheriffe of any County longer then a yeare shall be void notwithstanding that his Patent shall have a Clause of Non obstante yet with a Clause of Non obstante such Patent shall be good Dier 52. 1. 33 H. 8. but not without that Clause Howbeit neither without such a Clause nor with it can he dispence with a Statute before it be made And therefore a licence to carie Bell-mettal out of the Realme notwithstanding any Statute made or to be made is not good if a Statute be made after to prohibit it for he cannot dispence with an Act of Parliament before it be made Howbeit he may in things wherein he hath an inheritance or interest as to grant to own to be discharged of taxes and subsidies to be granted this is good 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King Knâ—ght not bound by Sâ—â— unlesse they concerne the Common-Wealth or he or the thing they concerne be specially named as the Statute of West 2. of entailes binds the King because it concernes the whole Com. Wealth so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted bindeth the King because Indictments are specially named But if by Statute one be attainted and his Lands forfeit with a proviso that of such Lands as he was seised to the use of any other Cesty que use should enter upon him for it is not for the Common Wealth neither yet is the King named therien Co. l. 4. 35. b. 1. in Bozouns Case 101 When the king by the Common Law cannot make a grant Non obstante there a non obstante of that Common Law will not against the reason of the Common Law make the grant good but when the king may lawfully by the Common Law make a grant and the Common Law onely requires that he be so instructed that he may not be deceived there a non obstante supplying it stands with the reason of the Common Law and shall make the grant of the good And therefore if the King grant a protection in a Quare Impedit or an Assise with a non obstante of any Law to the contrarie such grant is void for by the Common Law a Protection lyeth not in either of those Cases for the damage that may happen to the Plaintife by such great delay And therefore in such Case a non obstante shall not availe where the King by the Common Law cannot grant the thing as it was Ruled in 39. H. 63. 9. Advowson Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriffe without the usuall assembly and Election in the Exchequer Dier 288. 54 12 El. 103 The King may demise a Mannor Qâ— Imp. except the Courts and perquisites so cannot a Common Person Dier 351. 22. 18 El. 104 Some books are that by an usurpation the King shall be out of possession and put to his writ of right of Advowson But 35 H. 8. it is there that the King may gaine possession by presentment and plenartie by 6 moneths and that against an infant who is a purchasor Vide Fitzh Tit. Qu. Impedit 151. 8 E. 3. and M. 16 Trin. 38 E. 3. Stat. Westm 2. c. 5. Hob. 126. 105 In a Quare Impedit if the title appeare to the Court to be in the King albeit he be no party to the suite yet they ought to award a writ to the Bishop in his behalfe The Chancellor c. of Camb. against Walgrave 106 The Kings Certificate under his signet Manual was received as evidence in Chancery without exception Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton 82 Likewise the Law giveth greater priviledges to men then to Women Wardship â—ody Father â—ot Mother 1 A. Tenant of Land holden by Knight-service Litt. §. 114. Co. Inst p. 1. 84. a. 3. hath issue B. a Daughter and his heire apparent who being married to C. hath issue and dies A. dies seised and the Land descends to the issue within age In this Case the Lord shall have a wardship of the Land but not the wardship of the body of the heire for none shall be in ward for his body to any Lord during his fathers life It is otherwise where the Father dies living the Mother when the Land holden by Knight-service descends to the issue on the part of the Father because the Law in that Case confides more in and giveth more respect unto the Father then the Mother c. Villein 2 If a Villein taketh a frée woman to Wife Litt §. 187. and have issue betwéen them the issues shall be Villeins but if a Niefe taketh a Frée-man to her Husband their issue shall be Frée Feme no witâ—esse 3 In some Cases Women are by Law wholly excluded to beare testimonie as to prove a man to be a Villein Co. Inst p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent Fleta l. 2. cap. 44. Fitz. title Villein 32. 36 37. 83 The Law tendreth the weaknesse and debility of other persons as those out of the Realme in Prison Femes covert and other Women also Likewise Infants Lunatiques Ideots and such as have other imperfections â—ortion 1 If Coperceners make partition at full age and un-married Co.
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee must attend there to receive it for if the Obligor then and there tender the money he shall thereby save the penalty of the Bond for ever So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
for the advancement and continuance of Commerce and trade which is pro bono publico for the Rule is that Jus accrescendi inter mercatores pro beneficio commercii locum non habet Trade 5 One of the chiefest reasons why a Condition not to alien Co. ibid. 223. a. 2. annexed to a feoffment devise or gift of lands or goods is void is for that it is flatly against trade and traffique bargaining and contracting betwéen man and man Vide infra 9. Monopolies 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void because it restrained trade and traffique Co. l. 8. 125. a. 3. the case of London which are the very life of every Commonwealth and principally of an Island There is the same reason of all other Monopolies Vide Co. l. 11. 87. Guilda 7 In favour of trade and traffique Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam viz. a Fraternity Society or Incorporation of Merchants to the end that good order and government may be by them observed for the increase and advancement of Merchandising and trade and not for the hindrance and diminution thereof Trade Idleness 8 At the Common Law none could be prohibited to work in any lawfull trade Co. l. 11. 53. b. 4. The Taylors of Ipswich for the Law abhorrs Idleness the Mother of all mischief Otium omnium vitiorum mater and principally in young people who ought in their youth which is their séed-time to learn lawfull sciences and trades which are for the advancement of traffique and profitable to the Commonwealth and thereof they ought to reap the fruit in their old age For Jeunesse Oisense Vieillesse disettense And therefore the Law detests Monopolies which prohibit the exercise of lawful trades And this appears in 2 H. 5. b. where a Dyer was bound that he should not use the Dyers trade by the space of two years and there Hall held that the obligation was against the Common Law and added farther Per dien si le plaintife fuit icy il iroit al prison tanque il feroit fine al Roy. Tail 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion that tenant in tail by a fine might have barred his heir Dyer 32. 28. 29 H. 8. albeit the reversion were in the King because the Law always disfavours restraint of alienation in prejudice of trade and traffique Vide supra 5. 199 Honor and Order Tenant by Curtesie 1 A man shall be tenant by the Curtesie of an house Co. Inst pars 1. 30. b. 2. that is Caput Baroniae or Comitatus because so it may be still preserved intire but it appeareth by 4 H. 3. that a woman shall not be endowed thereof because in such case it should be severed which the Law will not permit for that the Law respecteth Honor and Order Vide Title Dower 180. Villein 2 Amongst the cases where the Villein shall be privileged from the seisure of the Lord albeit he be not absolutely enfranchised Co. ibid. 137. b. 3. this is one viz. Ratione dignitatis as if the Villein be made a Knight the Lord cannot seise him Vide Britton 79. Challenge 3 A Péer of the Realm Co. ibid. 156. b. 3. or Lord of Parliament as a Baron Viscount Earl Marquess or Duke in respect of Honor and Nobility are not to be sworn on Iuries and if neither party will challenge him he may challenge himself for by Magna Carta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae Now in reference to Honor and Order the Common Law hath divided all the Subjects into Lords of Parliament and into the Commons of the Realm The Peers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes And the Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tried for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tried per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a trial either at the Kings sute or between party and party in such case a Peer of the Realm shall not be impannelled Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honor and Dignity there is an antient Book-case in 23 H. 3. Tit. Partition 18. in these words Note Noble women Coparceners if the Earldom of Chester descend to Coparceners it shall be divided between them as well as other lands and the eldest shall not have this Seigniory and Earldom intire to her self Quod Nota adjudged per totam Curiam By this it appeareth that the Earldom viz. the possessions of the Earldom shall be divided and that where there be more daughters than one the eldest shall not have the dignity and power of the Earl that is to be a Countess but in such case the King who is the Soveraign of Honor and Dignity may for the uncertainty conferr the Dignity upon which of the daughters he please And this hath been the usage since the Conquest as is said Vide 3 H. 3. tit Prescription Howbeit if an Earl that hath his dignity to him and his heirs dieth having issue one daughter the dignity shall descend to the daughter and her posterity for there is no incertainty And this appeareth by many presidents and by a late Iudgement given in Sampson Leonards case who maried with Margaret the only sister and heir of Gregory Fines Lord Dacre of the South and in the case of William Lord Ros. Howbeit there is a difference between a dignity or name of Nobility and an office of Honor for if a man hold a Manor of the King to be Constable of England and die having issue two daughters and the eldest daughter taketh husband he shall execute the office solely and before Mariage it shall be exercised by some sufficient Deputy and all this was resolved by all the Iudges of England in the Duke of Buckinghams case 11 Eliz. Dyer 285. But the Dignity of the Crown of England was without all question descendible to the Eldest daughter alone and to her posterity and so it hath béen 25 H. 8. cap. 22. declared by Act of Parliament for Regnum non est divisibile and so likewise was the descent of Troy as appears by Virg. Aeneid 1. Praeterea Sceptrum Ilione quod gesserat olim Maxima natarum Priami Co. l. 1. 24. b. 4. in Porters case 5 Iudges in their resolutions ought to have a special care Goâ—d
default yet may the tenant give evidence and the Recognitors of the Assize may find for the tenant And therefore in these or the like cases the tenant or defendant non amittit per defaltum as the Statute and Littleton speak and they cite F.N.B. in the point Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Neverthelesse others do hold the contrary because albeit in the writ of wast judgement is not given only upon the default yet the default is the principal and the cause of awarding the writ to enquire of the wast as an incident thereunto and the Law alwayes hath respect to the first and principal cause of a thing from whence it takes the first rise and being Co. ibid 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where Ioyn-tenants or Coparceners have one and the same remedie if the one enter the other shall enter also Joyn-tenants and tenants a common but where the remedies be several there it is otherwise As if two Ioyn-tenants or Coparceners joyne in a real action where their entry is not lawfull and the one is summoned and severed and the other pursueth and recovereth the moity the other Ioyn-tenant or Coparcener shall enter and take the profits with her because their remedie was one and the same But where two Coparceners be and they are disseised and a descent is cast and they have issue and die if the issue of the one recover her moity the other shall not enter with her because their remedies were several and yet when both have recovered they are Coparceners againe So if two Ioyn-tenants seised of lands the one of full age the other under age be disseised c. And the disseisor die seised and his issue enter the oâ—e of the Ioyn-tenants being still under age And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives This is a remittor of the moity to him within age because his entry was congeable but the other Ioyn-tenant hath but an estate for life in the other moiâ—y by force of the Lease because his entry was taken away Lit. l. § 656. c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants in fée be disseised by the father of A. who dieth seised his sonne and heire entreth he is remitted to the whole and his companion shall take advantage thereof Otherwise here in the case of Littl. for that the advantage is given to the infant more in respect of his person than of his right whereof his Companion shall take no advantage But if the Grand-father had disseised the Ioyn-tenants and the land had descended to the father and from him to A. and then A. had died the entry of the other would have béen taken away by the first descent and therefore he should not have entred with the heir of A. c. Warranty that begins by disseisin 23 If A. de B. be seised of an house Littl. § 368. and F. de G. enter into the same house clayming it to him and his heires and make a feofment thereof with warranty to certaine Barrettors in the Country to be maintained by them by reason whereof A. de B. dare not stay in the house but goes out This is warranty that beginnes by disseisin because that feofment was the cause why A. de B. left the possession of the same house Tenant in tail the reversion in the King 24 If a subject make a gift in tail Co. ibid. 372. b. 3. the remainder to the King in fée Albeit the words of the Statute of 34 H. 8. cap. 20. be whereof the reversion or remainder at the time of such recovery had shall be in the King c. yet séeing the estate taile was not originlly created by the King the estate taile may be barred by a Common recovery So likewise if Prince H. sonne of H. 7. had made a gift in taile 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 in this case also a Common recovery would have barred the estate taile No fine before admitance 25 Popham Chief Justice said that it was adjudged in Sands his case Co. l. 4 28. a. 3. Copihold cases Hubbert and Hamons case that no fine was due to the Lord either upon surrender or descent untill admittance For the admittance is the cause of the fine and if after the tenant denie to pay it that is a forfeiture And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman The cause must be shewed why the Bishop refuseth to admit 26 If a Clerke be presented to a Bishop to be admitted to a Benefice and he refuseth him in pretence of insufficiency or other defect Co. l. 5. 58. a. â— Specots case In a Quare impedit the Bishop ought to alleadge some particular crime or cause why he did not admit him and not generally quòd non est idoneus quod est criminosus schismaticus inveteratus or the like For although it belongs not to the Kings Court to determine schismes or heresies yet the original cause of the suit being matter whereof the Kings Court hath conusance the cause of the schisme or heresie for which the presentée is refused ought to be alleadged in certaine to the intent that the Kings Court may consult with Divines to know whether it be schisme or no and if the party be dead may thereupon direct the Iury which is to try it Felons goods for flying cannot be forfeited by prescription 27 If a man flie for felony his owne goods are not forfeited Co. ibid. 109. b. 1. Foxlâ—yes case untill it be found by the indictment before the Coroner in case of death or otherwise lawfully found upon record that the felony was the cause of his flight For if the goods of any shall be forfeited onely by reason of this flying without more then a man may have such goods so forfeited by prescription as he may have waifs estrayes treasure trowe c. but in as much as bona fugitivorum are not forfeited untill the flight be lawfully proved upon record and because things forfeited by matter of record cannot be claymed by prescription which is a matter in suit for this cause they cannot be claymed by prescription 28 Deodands are the goods which caused the death of the party killed by misfortune Co. ibid. 110. b. 4. and are not forfeit Deodands not forfeited by prescription in England untill it be found upon record that they were the cause of his death and therefore they cannot be claimed by prescription no more than bona fugitivorum for which Vide suprà 27. M. 30 31. El. Co l. 6. 47. b. Dowdales case Co. Inst pars 1
formal attornment because the Baron cannot attorn to himselfe and his wife in his wives right yet his acceptance of the déed is a good attornment in Law to vest the services in the Feme and her heirs but during the coverture they are suspended c. Grant of the Seigniory to tenant for â—ife of the tenant 11 If there be Lord and Tenant Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for terme of his life saving the reversion to himselfe Here if the Lord grant the Seigniory to the Tenant for life in fée albeit as to all things concerning the right the Seigniory hath his being as if the Tenant die without heire the tenancy shâ—ll escheat to the Grantée c. yet as to the possession during the particular estate the Grantée shall take no benefit of the Seigniory and therefore during that time he shall have no Rent Service Wardship Reliefe Heriot or the like because these duties belong to the possession and he cannot do or pay them to himselfe Remitter 12 The principal cause Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682 683 684 c. why a Tenant in taile in many cases is remitted is because as Littleton saith there is no person against whom he may sue his Writ of Formedon for none is Tenant of the Franktenement but himself and against himself he cannot sue c. There is the same reason also of other Remittâ—rs Finch 19. Co. l. 33. a. 3. in the Marq. of Winchesters case Voucher asâ—ignee 13 If a man make a feoffment in fee to A. his Heirs and Assignes Co. ib. 385. b. 2. A. enfeoffeth B. in fée who re-enfeoffeth A. he or his Assignes shall never vouch because he cannot be his own Assignée but if B. had enfeoffed the heire of A. he might vouch as Assignée for the heire of A. may be Assignée to A. inasmuch as he claimeth not as heire Warranty 14 If Tenant in taile make feoffment to his Vncle Co. ib. 389. b. 3. 390. a. 1. Littl. Sect. 743. and after the Vncle make a feoffment in fée with warranty c. take again an estate to him in fee and then enfeoff a stranger without warranty and die without issue and the Tenant in taile die Here the issue in taile shall not be barred by the warranty made to the first Feoffee because that warranty by the Vncles resuming an estate in fee of the land is utterly defeated For if the warranty should have stood in force then should the Vncle have warranted it to himselfe which could not be c. â— selfe act â—â—id 15 A man cannot present himselfe to a Benefite Finch 19. 8 H. 6. 29. 3 El. Dyer 188 make himselfe an Officer sue himselfe or summon himselfe and therefore if a Sheriffe suffer a common recovery it is Error because he cannot summon himselfe Finch 19. 16 A man cannot be judge and party in a Suit No Judge of two Beâ—châ— at once And therefore if a Iustice of the Common Place be made a Iustice of the Kings Bench though it be but hac vice it determineth his Patent for the Common Place for if he should be Iudge of both Benches together he should control his owne judgments because if the Common Pleas erre that error shall be reformed in the Kings Bench. Co. l. 1. 174. a. 3. Diggs case 17 If a man by Indenture covenant to stand seised to the use of himselfe for life the remainder to others in tail The Feoffâ—â— in without 〈◊〉 try or claâ—â— c. and also reserve unto himselfe power of revocation and doth revoke the uses accordingly immediately upon such revocation the uses so limited are determined without entry or claim because he himselfe was Tenant for life of the land and he cannot enter or make claim upon or against himselfe c. And therefore it is agreed in the 20 E. 4. 18 19. that if a Feoffment be made upon collateral condition and before condition performed the Feoffée demiseth the land to the Feoffor if after the Feoffor perform the condition the land shall be immediately in the Feoffor without entry or claim because he himselfe is already in possession thereof So likewise if a Villain purchaseth rent issuing out of the Lords land that rent shall be in the Lord without entry or claime causa qua suprà Co. l. 2. 51. b. 4. Sir Hugh Cholmleys case 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale and to his Successors None can present hiâ— self this is void as to the Successor because the Successor can never take any benefit thereof by way of presentation for he cannot present himself c. Co. l. 4. 55. a. 1. The Sadlers case 19 In all cases at the Common Law No traâ—â—â— or action against the King when the King was seised of any estate of Inheritance or Franktenement by any matter of record he that right had could not by the Common Law have any travers or real action upon which he might have an Amoveas manum for that the King by his Writ could not command himselfe but he was put to his Petition of right in the nature of his real action to be restored to his Franktenement and Inheritance 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68. b. 3. John Trollops case 20 If a Bishop himselfe be sued Bishop Eâ—communiâ—â—on and he pleads in disability of the party Plaintiff excommangement by himself or his Commissary who is as his Deputy albeit it be for another cause than that in question yet that shall not disable the Plaintiff because in this case the Bishop himselfe is party and with this agrées 16 E. 3. Excom 5. 5 E. 2. Excom 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9. Co. l. 8. 118. a. 1. Doctor Bonhams case 21 The President and five elect of the Colledg of Physitians in London ought not to be Iudges to give Sentence or Iudgement Judge and party Ministers to make summons and parties to have the moity of the forfeiture albeit they have an Act of Parliament to protect them viz. 14 H. 8. cap. 5. For Nemo debet esse judex in propria causa imò iniquum est aliquem suae rei esse judicem Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Mannor of Dale The like yet he shall hold no plea wherein himselfe is party For Iniquum est c. Co. 9. 123. b. 4. Anthony Lowes case 23 The Duchie of Lancaster before it was united to the Crown Duchy
reversion shall have an attaint or Writ of Error living the Tenant for life but this is by the Satute of 9 R. 2. cap. 3. F.N.B. 108. b. 122 In trespasse if the Defendant plead villanage in the Plaintife Attaint by 〈◊〉 heir in villâ—nage and he saith that he is free and he is found free by false verdict c. and after the Defendant dies here his heir shall have an attaint to avoid this Estoppel and false verdict albeit it was given in an a â—â—n personal Sed quaere de hoc Writ of Coveâ—ant by Assigâ—ee 123 Fitz-Herbert saith F.N.B. 145. m. 146. c. the second Lessée shall have a Writ of Covenant against the Lessor if the Lease be made to him and his Assignes with waranty And yet he saith afterwards the Assignée of the Lessée shall maintaine a Writ of Covenant against the Lessor albeit in the Déed of Covenant there is no mention of any Assignée Ideo quaere de hoc Executor â—rivy 124 At the Common Law if lands had béen willed to be sold by Executors or had béen devised to Executors to be sold Co. Inst pars 1. 113. a. 3 if any of them had refused the rest could not have sold them but now that is holpen by the Statute of 21 H. 8. cap. 4. viz. the first by the expresse words of that Statute and the other by the equity of the same Howbeit in neither of those cases when one refuseth can the other make sale to him that so refuseth because he is party and privy to the last Will and remains Executor still The heir sued shall not have contribution 125 If a man seised of 3 acres of land acknowledge a recognisance or Statute c. and enfeoff A. of one acre and B. of another acre Co. l. 3. 12. b. 2. Sir William Herberts case and dies so that the third descends to his heir In this case if execution be sued onely against the heir he shall not have contribution no more than the father should have had if he had béen living for they are privies in bloud And therefore it is said that the heir fits in the seat of the Ancestor Et haeres est alter ipse filius est pars patris mortuus est pater sed quasi non est mortuus quia reliquit similem sibi c. Release of dower 126 The Baron makes a Lease for life and dieth Co. Inst pars 1 265. a. 3. a release made by the wife of her Dower to him in the reversion is good Albeit she hath no cause of action against him in praesenti And this is because of the privity of estate that is betwéen the Tenant in Dower and him in the reversion c. The privity of Executors for wardship 127 Where the Statute of West 1. cap. 22. Co. ib. 79. a. 2. giveth unto the Lord two years of the heir female after her age of 14 thereby is implied that if the Lord dieth within the two years yet his Executors or Administrators although not named shall also enjoy the same for when the Statute so vesteth an Interest in the Lord the Law giveth the same unto his Executors or Administrators because they are privies unto him in representation Then put case that the Lord hath the wardship of the body and land of an heir female and maketh his Executor and dieth before her age of fourtéen years whether the Executor shall in that case have the two years because the Executor is not Lord nor named in the Statute And in this case my Lord Coke takes it that the Executor having the wardship of the body and land shall also have the two years for that they were vested in the Lord and in respect of the privity as aforesaid The privity of Executors 128 Executors and Administrators might take benefit of the general pardon in 43 El. and might plead it as well as the Testator himselfe Co. l. 6. 79. b. in Sir Edward Phittons case So 3 Eliz. Dyer 201 upon the Statute of 23 H. 8. Executors shall have an Attaint 6 E. 6. Bendloes Executors shall have restitution upon the Statute of 21 H. 8. Also Administrators shall have a Writ of Error upon the 27 Eliz. as it was adjudged in 36 Eliz. in the Lord Mordants case in the Exchequer Chamber yet these thrée last Statutes speak onely of the partie and not of his Executors or Administrators Vide 28 Ass Pl. 7. 11 E. 3. Executors 77. â—he husband â—all not have â—hings in actiâ—â— 129 Mariage is an absolute gift of all Chattels personal to the husband and also a gift of all Chattels real sub modo Co. Inst pars 1 351. which the Feme hath in possession and in her own right for which sée R. 93. Ex. 5. but Chattels real or personal consisting méerly in action the husband shall not have by the intermarriage unlesse he â—ecover them in the life of the wife albeit he survive her As a writ of right of Ward a Valore maritagii a forfeiture of marriage arrerages of rent a presentation to a Benefice debts by obligation contract or otherwise which did accrue to the wife before marriage the husband I say shall not have these or the like unlesse he and his wife recover them because they consist in privity and therefore albeit the husband survive the wife yet he shall not have them but the Executors or Administrators of the wife So if a Feme Sole be possest of a Chattel real and be thereof dispossest and then taketh husband and dieth albeit the husband survive yet this right is not given to the husband by the intermarriage but the Executors c. of the wife shall have it So it is likewise where the wife hath but a possibility and of Reliefs c. Howbeit now by the Statute of 32 H. 8. cap. 37. if the husband survive the wife he shall have the arrerages as well incurred before the marriage as after c. Co. Inst pars 1. 169. a. 3. 130 Between Ioyntenants there is a two-fold privity viz. in estate Privity of â—ceners and in possession between Tenants in common there is privity onely in possession and not in estate but parceners have a thrée fold privity viz. in estate in person and in possession Co. Inst pars 1 208. b. 3. 131 There is a diversity Tender of â—ney to a stâ—ger where a condition concerneth a transitory or local act and is to be performed to the Feoffée or Obligee and where it is to be performed to a stranger as if A. be bound to B. to pay 10 l. to C. Here A. tenders to C. and he refuseth In this case the Bond is forfeit because there is no privity betwixt them and A. cannot compel C. to receive it but if it were to be paid to the Obligée upon tender and refusal the bond is saved by reason of the privity
betwixt them Co. ib. 209 a. 2. 132 If a man be bound to A. in an Obligation with condition to enfeoff B. who is a meer stranger before a day The like the Obligor doth offer to enfeoff B. and he refuseth Here the obligation is forfeit for the Obligor hath undertaken to enfeoff B. and there wants privity betwixt him and B. But if the feoffment hâ—d béen to be made to the Obligée himself or to any other for his behoof a tender and refusal shall save the Bond because of the privity betwixt them So likewise if A. be bound to B with condition that C. shall enfeoff B. In this case if C. tender and D. refuse the obligation is saved for it shall be intended that the feoffment should be made for the benefit of the Obligee which implies privity Co. ib. 245. a. 4. 133 A strangers entry of his own head upon the Bastard eigne to the use of the Mulier Bastard â—â—lier entry is not good without the Muliers consent thereunto afterwards Howbeit the entry of the Guardian in soccage or chivalry of their own heads without the Muliers assent is good to avoyd the title of the Bastard eigne because of the privity for they are no strangers Dyer 29 a. 194 28 H. 8. 134 Tenants in Common cannot make partition without deed Partition but Coparceners may because they are privies and as one heir and by consequent have a three-fold privity viz. in estate person and possession Vide suprà 130. 135 Vide Max. 114. c. 58. Hob. 130. Oates and Frith 56 Equal things cannot drown one another contrà Co. Inst pars 1 273. b. 3. 1 If a man make a lease for ten years the remander for 20 years A release of Lessee for years to Leâ— for years he in the remainder releaseth all his right to the Lessee for ten years In this case the Lessee for ten years hath an estate for 30 years for one chattel cannot drown another neither yet can yeares be consumed in years â—estate taile â—not drown 〈◊〉 be extinct 2 If a gift be made to the eldest son and to the heirs of his body Co. ib. 372. a. 4. the remainder to the father and to the heirs of his body the father dieth the eldest son levieth a fine with proclamations and dieth without issue Co. l. 2. 61. a. in Wiscots case this shall barre the second son because the father while the remainder was in him might by levying a fine have barred the youngest son of taking any benefit by it and therefore when the remainder descends to the eldest son a fine levyed by him shall also be of like force to bar the youngest for that an estate tail can neither drown nor be extinct because such an estate was Fee-simple at the Common Law and may by possibility endure for ever â—ease for life â—y uphold a â—se for years 3 If a man letteth lands to another for life Co. Inst pars 1. 54. b. 4. the remainder to him for 21 years he hath both estates in him so distinctly as he may grant away either of them for a greater estate may uphold a lesse in the same person but not è conversò and therefore if a man make a lease to one for 21 years the remainder to him for term of his life the lease for years is drowned c. â—ond annuls â—ontract and Judgment a â—nd 4 A Statute Staple or obligation in nature thereof Co. l. 6. 45. in Higgins case is but an obligation recorded and an obligation be it of record or not of record cannot drown another obligation but if a man hath a debt by simple contract and he takes an obligation for the same debt or any part thereof the contract is determined 3 H. 4. 17. 11 H. 4. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by ordinary course of Law hath judgement thereupon the contract by specialty which is of a meaner nature is by judgement of Law drowned and changed into a matter of record which is of an higher nature c. Vide 61. 7 8. â—xtinguishâ—ent of a Seigniory 5 If the Lord be Guardian of the land Co. Inst pars 1 367. a. 3. or if the Tenant maketh a lease to the Lord for years or if the Lord be Tenant thereof by Statute Merchant Statute Staple or Elegit and maketh a feoffment in fée of the land to a stranger he doth hereby extinguish his Seigniory because by his own act he hath vested the Seigniory and Tenancy into one hand by which means the tenancy is drowned which before was but in suspence So if there be Lord and Tenant by fealty and rent Co. l. 6. 70. a. 3. in Sir Moyle Finches case and the Lord disseise the Tenant of the land and make feoffment in fee to another hereby the Seigniory is extinct â—here joynâ—ancy may 〈◊〉 merged â—d where â—ot 6 If a man make an estate to thrée and to the heirs of one of them Co. l. 2 61. a. in Wiscots case there the one of them hath Fée-simple yet the Ioynture continues for it is all but one estate created at the same time and therefore the Fée-simple cannot merge the Ioynture which took effect with the creation of the remainder in fée but when 3 are Ioyntenants for life and after one of them purchaseth the fée or the fée descends upon him there the Fée-simple mergeth the estate for life and severeth the joynture for the estate for life was in esse before and may be merged or surrendred but so cannot the estate for life in the first case c. Vide Pl. ibid. â—enure exâ—ct 7 Land was held of the Archbishoprick by Knight-service Dyer 154. 18. 4. 5 P. M. and in the time of E. 3. this land was given by fine to one Strangwayes in tail the remainder in fée to E. 3. the tenant in tail dies his issue within age In this case by Sanders and others if the King will accept of the remainder the issue shall hold of none nor be in ward to any because the tenure and service are goue and extinct by the Kings Fée-simple â—chy of Lanâ—ster 8 After the Duchy of Lancaster came into the Kings hands Dyer 209. 22. 3 Eliz. albeit the revenue were kept several yet per nomen Regis nomen Ducis dimergibatur for he could not be Soveraign and Subject too Vide 3 H. 6. 57 Things are to be construed Secundum aequalitatem rationis Finch 20. Bract. l. 1. c. 3. 1 This Rule in Law imports a logical vertue a kind of equity as Bracton calleth it where he saith Aequitas est rerum convenientia quae paribus in causis paria jura desiderat omnia bene coaequiparat Et dicitur aequitas quasi aequalitas whose nature is to amplifie inlarge and add to the letter of
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
of Malbridge c. 9. one is to do the service and the rest are to contribute the same Law being also of their vendées by equity there if any part come to the Lord either by Act of the party or of Law yet the whole service is gone for there contribution failes and the Law will rather suffer things against the principles of the Lord then a man shall be without remedy according to Rule 144. â—verance of Mannor 46 If there be grant and render by fine of the demesnes of a Mannor here albeit this be done in an instant Co. l. 6. 64. a. in Sir Moyle Finches Case so as there was no transmutation of any possession yet the demesnes being once by Act of the party absolutely severed in the fée-simple from the services of the Mannor the Mannor is destroyed for ever So likewise if a man hath a Mannor and he grants part of the demesnes and part of the services to another he shall not have a Mannor for a man by his owne Act cannot create a Mannor at this day But if there be two Coperceners of a Mannor and upon partition the demesnes are allotted to one and the services to another here albeit in this Case there is an absolute severance yet if one of them die without issue and the demesnes descend to her that hath the services the Mannor is again revived because upon the partition they were in by Act in Law and the demesnes and services were again revicted by the Act in Law So also if upon the partition an advowson appendant be allotted to one and the Mannor unto which it is appendant be allotted to the other and after one of them dies without issue whereby the Law unites them again in this Case the advowson which was once severed shall be again appendant to the Mannor Also if two Coperceners have a Mannor and upon the partition each hath parcel of the demesnes and parcel of the services here because each of them is in by Act of Law each of them hath a Mannor In Office not â—â—â—isable for â— yeares 47 The Office of Marshal of the Kings Bench cannot be granted for terme of yeares Co. l. 9. 97. a. in Sir Geo. Requols Case because being then a Chattel and an Office of trust by the death of the Lessée it may happen to fall into the hands of such persons as are not fit to be trusted with that place but yet by Act of Law a term which is but a Chattel may be in such an Office as appeares in 5 E. 4. 3. for the Duke of Norfolke had an Estate-taile in an Office holden of the King in Capite and dies his heire within age and it was found by Office In this Case the King had a Chattel in that Office viz. during the minority and in that Case if the King die it shall discend to the next King and shall not go to his Executors or Administrators for an Act in Law shall not introduce any inconvenience And the King having such an Office during the minority it séemes he cannot grant it for life or yeares or during the minority because that may prove inconvenient for the reasons above alleadged but at will he may grant it for that is no certaine Estate A Seigniory c. suspended 48 By the Act of the party whether right or wrong all a Seigniory c. may be suspended Co. lib. 9. 135. a. 3. in Ascoughs Case And therefore if the Lord or Lessor disseise or out the Tenant or Lessée of any part all is suspended also if a Commoner take a Lease of any part of the land in which c. all the Common is suspended But by Act of Law a Seigniory may be suspended in part and in esse for the other part So if a Lord seise the Wardship of the Land of his Tenant by Knight-service now is the Seigniory suspended but if the guardian endow the Feme of the Tenant of a third part of the Tenancy now is the third part of the Seigniory revived and the Tenant in dower shall be attendant upon the guardian for the third part of the services because Tenant in dower is in by Act of Law and for the same reason if a man seised of lands in fée takes Feme and enfeoffes another the feoffée grants a rent-charge to the Baron and Feme and to the heirs of the Baron the Baron dies the Feme is endowed of a third part of the land out of which the rent issuing in this Case the third part of the rent which the Feme hath for life is extinct and two parts of the rent remaines to her issuing out of the other two parts of the land for although it be a rent-charge which regularly cannot be apportioned yet by Act in Law it shall be apportioned so likewise if the Guardian in Knight-service seise the land of one co-heire within age the other being of full age there the Seigniory is suspended for a moity and in esse for the other moity And if there be two Coperceners of a Seigniory and the one disseise the land Tenant or comes to the land by defeasable title the other may distraine her for her moity of the Seigniory because these also come in by Act of Law Co. l. 10. 94. b. 3. Doctor Leyfeilds Case 49 When the Interest of a thing is gained by Act of the party Shewing forth of a deed in defence of the title thereof the party interessed must produce to the Court the Déed by which he claimes So in Trespas the Defendant pleads the Quéenes grant of the Rectory of O. to A. but shewes not the Letters Patents this is error because this Estate being gained by the Act of the party â—e might in time have provided for his defence but when a particular Estate or interest is created by Law the party interessed shall not be forced to shew forth the Déed So guardian in Chivalry or Tenant in dower may plead a release without shewing it There is the same Law also of Tenant by Statute Marchant Staple Elegit c. because they also come to the possession by execution of Law and against the will of the terre-tenant who hath the déed for Judiciâ—m redditur in invitum Co. l. 10. 104. b. 3. in Alfridus Deubawdes Case 50 A Tales ought not to be granted after a full Iury appeares and is sworne and yet if a Iury be charged A Tales granted and after and before Verdict given in Court one of them is taken away by death which is the Act of God in that Case a Tales shall be awarded and no new venire facias and with this accords 12 H. 4. 10. so likewise if any of the Iurors impannelled die before they appeare and that appeares by the Sheriffs return the Pannel shall not abate but if néed be a Tales shall be awarded Vide 20 E. 4. 11. F. N. B. 31. m. 51 If a man usurpe
588 589. Co. ibid. 323. b. 3. 3. If my Tenant who payes me a Rent-service in grosse Rent paid to a stranger atturnes and payes it to a stranger this shall not put me out of possession of the Rent albeit the stranger die and a Descent is cast for still I may distraine my Tenant for all in arreare and Nemo redditum alterius invito Domino precipere aut possidere potest Release of warranty 4. If one enfeoff two with warranty Co. ibid 393. a. 1. and the one release the warranty yet the other shall vouch for his moyety A Donative 5. If the Patron of a Church Prebend Chantery Chappell c. Co. ibid. 344. a. 2. Donative doth once present to the Ordinary and his Clerk is admitted and instituted it is now become presentable and shall never be Donative after and then also Laps shall incur to the Ordinary as it shall of other Benefices presentable but a Presentation to such a Donative by a stranger and admission and institution thereupon is meerly void Debt Execution 6. If the Defendant in debt dye in execution Co. l. 5. 86. b. 4. in Blumfeilds case the Plaintiff may have a new execution by Elegit or Fieri facias because the Plaintiff shall not be prejudiced nor the Defendant take benefit by the act or tort of the Defendant in not paying his debt when no default was in the Plaintiff he having pursued the due and ordinary course of Law Lord Mesne and Tenant 7. The King is Lord A. Mesne Co. l. 6. 6. a. 1. in Sir Jo. Molyns case and B. Tenant of the Mannor of D. B. commits treason and after Attainder an Office is found and the Mannor seised into the Kings hand afterwards the King grants the Mannor to C. and his heirs Tenendum de nobis heredibus successoribus nostris aliis capitalibus dominis feodi illius per servicia vide debita de jure consueta These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture and the tenure of the Mesne is thereby preserved for it is against reason and equity that the Mesne who did no wrong should lose his services Seisin of rent 8. Where payment of a rent by a Bayliff or Tenant for life Co. l. 6. 59. a. 4. in Bredimans case for years or at will workes a speciall prejudice to the Master or Lessor it shall not be accounted suffcient Seisin thereof as if the Lord hath not had Seisin of his rent within sixty years and the Tenant makes one his Bayliff generally of his Mannor In this case the Bayliff cannot without expresse command of his Master pay this remedilesse rent to the Lord or if he do it otherwise it worketh no Re-seisin thereof so it is also if the Tenant for life for years or at will pay such a rent without order of the Tenant of the Frank-tenement A grant without Attornement 9. If a man be seised of a Mannor part in Lease for life Co. l. 6. 68. a. 1. in Sir Moyle Finches case and other part in Lease for years and he levy a Fine to A. to the use of B. in taile with divers Remainders over In this case B. shall avow for rent or have an Action of Waste without Attornement for when a Reversion is setled in any in Iudgement of Law and he hath no possible meanes to compell the Tenant to atturne and no Laches or default in him in such case he shall avow or have Action of Waste without Attornment for the Rule is Quod remedio destituitur ipsa re valet si culpa absit Quare Impedit abate 10. A Quare Impedit against the Bishop and Incumbent Co. l. 7. 25. b. 4. in Halls case without naming the Patron shall abate for otherwise the Patronage shall be in that case recovered against him who hath nothing in the Patronage and it is against reason that he who is Patron should be dispossest and ousted of his Patronage when he is a stranger and no party to the Writ No damage without notice 11. A. by a writing purporting his Will Co. l. 8. 92 a. 3. in Frances case deviseth Land to B. and his Heires but afterwards without the knowledge of B. enfeoffs C. to the use of B. for life with divers Remainders over provided that B. disturbe not the Executors of A. from carrying away the goods A. dyes B disturbs the Executors the next in Remainder enters upon B. into the Land In this case albeit B. had made disturbance against the words of the Proviso yet he shall not thereby forfeit his terme without notice of the Condition for none shall lose any Estate or Interest which he lawfully hath without some act or default in himselfe and therefore in this case in as much as B. was a stranger to the Feoffment he shall not lose his estate without notice given him of the Proviso Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargaine of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for non-payment of rent reserved upon a Lease upon Demand thereof Co. l. 5. 113. in Mallories case without giving notice thereof to the Lessee The like 12. Co. l. 8. 92. a. 4. in Fraâ—ces case If the estate of the Lord of a Mannor cease by Limitation of an use whereby the use and estate thereof is transferred to another the demand of the rent of a Copy-holder who denies to pay it to him causeth no Forfeiture without giving notice to the Copy-holder of the alteration of the use and estate And so it was adjudged Hill 1. Jac. in Trespasse inter Beconshaw Plaintiff and Southcote and others Defendants So likewise the Bargainee of a Mannor by Deed indented and inrolled shall not take advantage of a Forfeiture of a Copy-holder for denyall of payment of rent without notice to him given of the bargaine and sale for the Law will never compell a man to take notice of acts done amongst strangers Co. ibid. 93. a. 1. or of any uncertainty upon paine of forfeiting a mans Estate or Interest but in such cases notice ought to be given to those that are to suffer the losse It is otherwise when a man binds himselfe to do a thing as to performe an Arbitrement to pay the ovus which such an Auditor assigned shall charge him withall or the like for in such case he takes upon him to doe it Error in a Fine 13. A Fine was levyed of a Mannor and other Lands Co. l. 5. 43. Bohuns case to the value of twenty Marks per annum so as the Kings-silver was forty shillings which was paid but in
Possession of the Land need make no claime upon the Land and therefore the Law shall adjudge the rent void without any claime Claime the like 8. If a man make a Feoffment unto me in fee Ibid. upon condition that I shall pay unto him twenty pounds at a day c. and before the day I let unto him the Land for years reserving a rent and after faile of paying the twenty pounds In this case the Feoffor shall retaine the Land to him and his Heires and the rent is determined and extinct for that the Feoffor could not enter neither hath he need to claime upon the Land because he himselfe was in Possession and the Condition being collaterall is not suspended by the Lease The like 9. If a man by his Deed in consideration of Fatherly love Ibid. b. 1. 237. a. 2. c. covenant to stand seised to the use of himselfe for life and after his decease to the use of his eldest Son in tail the Remainder to his second Son in taile the Remainder to his third Son in fee with a Proviso of revocation c. The Father makes a Revocation according to the Proviso In this case the whole estate is immediately upon the Revocation revested in him without Entry or Claime causa qua supra Release good 10. A Release to a Tenant at sufferance as to one that holds over his terme is void Co. ibid. 270. b. a. Litt. S. 460 461. but a Release to a Tenant at will by the Owner of the Land is good to convey the Inheritance unto him because there is between them a Possession with a privity for it would be in vaine to make an estate by Livery to him who hath already Possession of the Tenements by the Owners consent Averment 11. That which is apparent to the Court by necessary collection out of the Record need not be averred for it were vaine to aver that Co. ibid. 303. b. 3. which is apparent to the Court already Attornment of T. in tail 12. Albeit Tenant in taile may attorne where the Reversion of his estate is granted over yet he is not compellable to attorne Co. ibid. 316. a. 4. although such Grant of the Reversion be by Fine because he hath an estate of Inheritance which may continue for ever and therefore it were a vaine thing to require any Attornment from him Attornment 13. If a Lease be made for life the Remainder to another in tail Litt. S. 578. Co. ibid. 319. b. 1. the Remainder to the right heires of the Tenant for life In this case if the Tenant for life grant his Remainder in fee that Remainder passeth without Attornment for here if any should attorne it should be the Tenant for life and it were in vaine for the Tenant for life to attorne upon his own Grant Attornment 14. In these eases following Co. ibid. 318. a. 4. the Tenant is not compellable to attorne because if he should it were in vaine for him so to do As 1. if an Infant levy a Fine the Tenant shall not be compelled to attorne because the Fine is defeasible by Writ of Error during his minority So if Land be holden in ancient demesne and he in the Reversion levieth a Fine of the Reversion at the common Law in this case the Tenant shall not be compellable to attorne because the estate that passed is reversible by a Writ of Disceit Also if Tenant in tail before the Statutes of 4 H. 7. and 32 H. 8. had levyed a Fine the Tenant should not have been compelled to attorne because it was defeasible by the issue in tail but since those Statutes which give strength to Fines to bar the Issue in tail the reason of the common Law being taken away the Tenant in this case shall now be compelled to attorne as it was adjudged in Iustice Windhams case Co. l. 3. fol. 86. Lastly if an alienation be in Mortmaine the Tenant shall not be compelled to attorne because the Lord Paramont may defeate it Co. l. 5. 21. a. 1. Sir Anthony Maines case 15. A. Leases for one and twenty years to B. and is bound to make a new Lease to B. upon surrender of the old A. Disability to make surrender Leases to another for eighty years by Fine in this case the Bond is forfeit Albeit the first act is to be done by B. viz. to surrender and albeit he never surrender for by the Fine levyed for eighty years A. hath disabled himselfe both to take the Surrender and to make a new Lease And the Law will not enforce a man to doe a thing which will be vain and fruitlesse To make Feoffment Lex neminem cogit at vana inutilia per agenda but it would be a vaine thing to compell B. to surrender to A. when A. is not in a capacity to take it So if a man seised of Lands in fee Covenants to enfeoff I. S. of them upon request and after he makes Feoffment in fee of the said Lands in this case I. S. shall have an Action of Covenant without request because it would be in vaine for I. S. to make request when the other hath disabled himselfe to do it Co. l. 5 121. b 4. in Longâ— case 16. In some cases upon an Indictment of Man-slaughter it may be requisite to expresse the length and depth of the wound A wound upon an Indictment because it may appeare thereby whether or no the wound was mortall but when the wound penetrates through the body it is not necessary to shew them because it were vaine to shew them when the wound appeares to be mortall of it selfe without producing those dimensions Co. l. 9. 54. a. 4. in Batens case 17. In a Quod permittat brought by A. against B. for building an House so neare the House of A. that it jutties over the House of A. it is sufficient to say Nusance Ad nocumentum liberi tenementi ipsius A. without assigning any speciall Nusance for it were in vaine to assigne any such speciall Nusance when it appeares to the Court that it must needs be to the Nusance of the Plaintiff because the raine which falls from the House of the Defendant must of necessity fall upon the House of the Plaintiff And Cujus est solum ejus est usque ad Caelum Also by over-hanging of the Defendants House the Plaintiff is hindred of Aire and building his House higher c. Co. l. 9. 106. a. 4. in Margaret Podgers case 18. A. being Copy-holder for life Remainder for life Fine of a Copyhold in bar the Lord bargaines and sels and levies a Fine to A. with Proclamations and five years passe without any claime by those in Remainder neverthelesse they in Remainder shall not be barred for no Fine or Warranty shall bar any estate in Possession Reversion or Remainder which is not devested
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
§. 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
time out of mind and so hath held in severalty there that proves that it was but in nature of Shack originally because of Vicinage and so continues And therefore in such case he may inclose and keep it in severalty and seclude himself from having Shack with the rest of the Commoners Antient Demesn 13 Lands in antient demesn Dyer 72. b 4. 6 E. 6. which were partable between heirs male were aliened by fine levied at the Common Law nevertheless it seemed to be the better opinion that hereby the course of the Inheritance was not altered and made descendable at the Common Law but that they shall still remain partable as before Custom unreasonable 14 A Custom Dyer 199. 58. 3 Eliz. that the Lord of a Manor hath used to have the best beast of his tenant there dying and if such beast be eloigned before seisure that then the Lord hath used to take the best Beast of any other levant and couchant within the said tenure was adjudged void for the unreasonableness thereof Vide 3 4 Eliz. Rot. 1496. Lands in London 15 Lands in London may be bargained and sold in London by paroll without Indenture or enrollment Dyer 229. 50. 6 Eliz. as before the Statute of 27 H. 8. and this by a Proviso in the same Statute Chilborns case Custom 16 A Custom was alleged Dyer 357. 46 19 Eliz. that the tenant in fée could not make a lease for above six years and it was adjudged a void custom because repugnant to fée and unreasonable Salfords case Co ps 17 A Custom for the Incumbent or Churchwardens of a Parish to be paid for the burial of a Corps of one who is no parishioner Ho. 175. The Lady Ferâ—ars case but only passing that way by accident lodging in an Inne or other lodging or the like is an unreasonable custom and void 207 Licet Consuetudo sit magnae Authoritatis Nunquam tamen Praejudicat manifestae veritati Co. l. 4. 18. a. 1. Oxford and Crosses case 1 The plaintifs bring an action in London Slander for that the defendant called the wife of the plaintif Whore the defendant removes it by habeas corpus into the Kings Bench and it was moved to have a Procedendo to remand it because the action was maintainable in London for the said words but not at the Common Law Howbeit the Procedendo was denyed per per totam Curiam for such a Custom to maintain actions for such brabling words is against Law Licet Consuetudo c. Co. l. 6. 6. b. 1. Sir John Molins case 2 Ed. 3. Lord an Abbot Mesne Records the tenant is attainted of Treason the King grants to Sir John Molins to be holden of him and other chief Lords of the fee by the services c. In this case the Mesnalty is revived and albeit divers Offices licences and other Records were produced to prove the Kings immediate tenure yet the Barons before whom that cause depended said in as much as by construction of Law upon the Letters Patents it appeared that there was no immediate tenure in the King albeit it had been otherwise found in offices or admitted in licenses or other Records yet that could not alter the true tenure which originally appeared to them as Iudges upon Record And it was then also said Licet consuetudo c. Co. l. 11. 75. a. 2. in Magdalen College case 3 In Magdalen College case in the 11 Rep. Grants by Ecclesiastical persons Stat. 13 El. 10 where the Master and Fellows of that College had granted to Queen Eliz her heirs and successors an house in London with proviso that if she did not regrant it within some short time to Bened. Spinola and his heirs that then the grant to her should be void with intent thereby to defraud the Statute of 13 Eliz. 10. it was objected that since that Statute there had been a great number of such grants made by Masters and Fellows of Colleges Deans and Chapters Masters of Hospitals c Howbeit to this it was answered that such grants had been made rather ex consuetudine Clericorum who imitated presidents of such grants made before that Statute than by the sage advice of men learned in the Law and Multitudo errantium non parit errori Patrocinium F. N. B. 118. c. 4 It appears by the Register Accompt Prison that if a man be found in arrearages upon his accompt and the plaintif arrests him in London for those arrearages that then the plaintif may sue forth a writ in Chancery directed to the Sheriff rehearsing this matter and commanding the Sheriff to detain the Accomptant safe in prison until he hath paid the arrerages And it seems also upon the same reason that if a man sue forth a writ of debt upon arrearages of accompt before Auditors and hath the party attached c. that he may have a writ out of the Chancery directed to the Sheriff to keep him in prison until he hath satisfied the arrearages but it seemeth to Fitzherbert that such a writ cannot stand with Law which shall command a man to be kept in prison before he shall have answered to the sute commenced against him 5 Hob. 17. Dr. James his case concerning holding the Court of Audience in the Borough of Southwark which is within the Iurisdiction of the Bishop of Winchester 208 Husband and wife are one Person And therefore Rebutter 1 If a feme heir of a disseisor enfeoff me with warranty Co. Inst pars 1. 365. b. 3. and then marry with the disseisee if after the disseisee bring a praecipe against me I shall rebutt him in respect of the warranty of his wife and yet he demandeth the land in another right So likewise if the husband and wife demand the right of the wife a warranty of the collateral ancestor of the husband shall barr them because the husband and wife are one person in Law Protection And for the same reason it is Co. ibid. 130. a. b. 1. F. N. B. 116. 1. that a protection for the husband shall serve also for the wife Conspiracy 2 A writ of Conspiracy must be brought against two at least for if there be such occasion of action only against one an action upon the case lyeth for the falshood and deceit because one cannot conspire with himself and therefore a writ of Conspiracy for indicting the plaintif of felony lyeth not against Baron and feme only because they are but one person but it may lie against Baron and feme and a third person Accompt 3 In an action of accompt receit made by the Baron by the hands of the feme is the Barons own receit F. N. B. 118 f. and both the writ and Count shall suppose that he received it himself without saying by the hands of the feme Debt Feme covert 4 If a man take
Treason viz. Petty treason and in 19 H. 6. 47. tit Corone 7. Br. Treason 8. upon an Indictment one was arraigned for killing the wife of his Master which he confessed and thereupon it came into question whether or no he should be drawn and hanged or hanged only and it was adjudged by the advice of all the Iustices of both the Benches that he should be drawn and hanged for that it was treason And there it is not taken within the equity of that Statute which speaks only of killing the Master but rather within the words thereof because Master and Mistress import the same being one person in Law Amerciâ—meâ—t 8 If a feme coveâ—t be outragiously amercied F N. B. 75. d. and thereupon the husband be distrained for it he shall have the writ de Moderata misericordia to relieve himself from such outragious amerciament Villein and Nief 9 If a freeman marry a Nief she shall be free for ever F. N. B. 78. g. albeit the Baron die and she survive and this the Law giveth her as Britton saith in favorem libertatis and it séems reasonable that the Law should be so because she and her husband are but one person in Law and she ought to be of the same nature and condition in Law to all intents with her husband Now therefore her husband being free to all intents without any condition in Law or otherwise and she being of the same nature and condition with her husband if she be once clearly discharged of Villeinage to all intents she cannot be Nief after without some special act done by her self as divorce or Conusance in a Court of Record and this is in favour of Liberty Vide Exod. cap. 21. supra 4. A Lady of Honor. 10 A writ of partition was brought against the Duke of Suffolk and his wife and others per Radulphum Haward Armig. Dyer 59. b. 51 6 7 E. 6. Dominam Annam Powes uxor ejus for so she was named in the writ and exception was taken upon the Misnomer because she ought to have béen named only by the name of her husband and not otherwise And by the opinion of Montague Ch. Iustice and Hales Iustice the exception was good because by the Law of God she is sub potestate viri and therefore her name of dignity ought to he changed according to the degree of her husband notwithstanding the curtesie of the Ladies of Honor and the Court whereupon the plaintifs brought a new writ ad reâ—pondendum Radulpho H. Anna uxori suae nuper uxori Domini Powes defuncti 210 They cannot sue one another nor make any grant one to the other or the like Baron cannot gâ—aâ— to the â—â—mâ— 1 A man may at this day by his deed covenant with others to stand seised to the use of his wife Co. Inst para 1. 112. a. 4. Littl. §. 168. or make a feoffment or other conveyance to the use of his wife for now such an estate may be executed to such uses by the Statute of 27 H. 8. 10. because an use is but a trust and confidence which by such a mean may be limited by the husband to the wife so likewise in places where lands were devisable the husbands before that Statute might by his testament devise his tenements to his wife in fée for life or years because such devise took not effect until after the death of the devisor Howbeit at the Common Law a man could not by any conveyance either in possession reversion or remainder limit an estate to his wife neither yet since the said Statute covenant with his wife to stand seised to her use because he and his wife being one person in Law he can grant nothing to her nor covenant with her Co. ibid. 206. b. 3. 2 If a man be bound with a Condition to enfeoff his wife Bond. the condition is void and against Law because it is against a Maxim of Law viz. that a man cannot make any grant to his wife and yet the bond is good but if he be bound to pay his wife money that is good Et sic de similibus Co. l. 4. 29. b. 3. in Buntings case 3 Albeit he that is admitted to a Copyhold estate is in by him Copyhold that made the surrender yet a man may surrender to the use of his wife because the Baron doth it not immediately to the wife but by two means viz. by surrender of the Baron to the Lord to the use of the wife and by the admittance of the Lord according to the surrender but if the estate did immediately pass from the husband to the wife it could not be good Co. l. 8. 136. a. 2. in Sir Iohn Nedhams case 4 It was adjudged M. 30 31 Eliz. that Feme Executrix where in debt against a feme executrix she pleaded fully administred and it was found that the defendant had taken the Obligor to husband and that the husband was dead this was no release in Law neither yet the debt thereby extinct but only suspended during the Coverture for she could not against a Maxim of Law by taking him to husband make a release to him of the debt 5 Hob. 10. Fryer against Gildridge 211 Upon a joynt Purchase during the Coverture either of them taketh the whole Co. Inst pâ—rs 1. 55. b. 2. 1 If a man be seised of land in right of his wife Emblements and soweth the ground and dieth his executors shall have the Corn and if his wife die before him he himself shall have it But if husband and wife be joyntenants of the land and the husband sow the ground and then the land surviveth to the wife in this case it is said that she shall have the Corn. Vide 8 Ass 21. 8 E. 3. 54. Dyer 316. Co. ibid. 187. a. 4 2 If a joynt estate of land be made to a man and a woman and their heirs before mariage and after they intermarry in this case Baron feme hold by intierties the husband and wife have moities betwéen them but if it be during the Coverture they hold by intireties For example William Ocle and Joan his wife purchased lands to them two and their heirs afterwards William Ocle was attainted of high treason for the murder of E. 2. and was executed Joan his wife surviving him E. 3. granted the lands to Stephen de Bitterly and his heirs John Hawkins the heir of Ioan in a petition to the King discloseth this whole matter and upon a Scire facias against the Patentee hath judgement to recover the lands for that William and Joan were one person in Law Co. ibid. 187. b. 2. Vide Pl. Co. 58. b. 4. Wimbish and Talbois 3 If a feoffment were made before the Statute of Vses 27 H. 8. 10. to the use of a man and a woman and their heirs The like and