Kings licence â—â—shops Court 〈◊〉 Rec. certif 13 A Bishop being an Ecclesiastical Iudge Co. ibib 134. b. 2. and sometimes a Lord of Parliament by reason of the Barony annexed to his Bishopricke the Law giveth much Honor and Reverence unto him And therefore none but the Kings Courts of Record as the Court of Common Pleas the Kings Bench Iustices of Goale-delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyaltie of Matrimony and the like Ecclesiastical matter For it is a Rule in Law that none but the King can write to the Bishop to certifie And therefore no Inferiour Court â—â—feriour â—ourt as London Norwich Yorke or and other Incorporation can write to the Bishop but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop â—â—are Impeâ—â— Wales and then remand the Record again and this is the reason why a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop Neither shall Conusance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agréeth Antiquity Bract. l. 3. 106. Fleta l. 5. c. 24. Britton 248. b. Nullus alius praeâ—er Regem potest Episcopo demandare Inquisitionem faciendam And another speaking of Loyalty of Mariage Nec alius quà m Rex super hoc demandaret Episcopo quod inde inquireâ—et Episcopus alterius mandatum quà m Regis non debet obtemperare And herewith also agréeth Britton Co. ibid. 137. b. 3. F. N. B. 79. a. If a Villain remaine in the Ancient Demean of the King a year and a day without clayme or seisure of the Lord Villein Ancient Demesne no 〈◊〉 the Lord cannot have a writ of Nativo habendo or seise him so long as he remains and continues there And the reason of this was in respect of the service he did to the King in Plowing and tillage of the Demeanes and other labours of Husbandry for the Kings benefit Glanv l. 5. c. 5. Fleta l. a. c. 44. Britton fol. 79. Mirr cap. 2. And herewith agrée old books which say that his Immunity was sometimes granted by common consent to the King for his profit and for the helpe and ease of his Villains So likewise Priest Chappel if a Villain be a Priest of the Kings Chappel the Lord cannot seise him in the presence of the King for the Kings presence is a priviledge and protection for him 27 Ass Pl. 49. Co. ibidem 15 If a Villain be professed a Monke or a Wife a Nun Villein the Lord cannot seise them c. Co. ibid. 156. a. 3. 16 If a Peere of the Realme or Lord of Parliament be demandant or Plaintiffe Tenant or Defendant Lord Knight Jury there must a Knight be returned of his Iury or else the Array may be quashed but if he be returned albeit he appeare not yet the Iury may be taken of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight retured the Array shall be quashed against all So also in the like case in Attaint there ought to be a Knight returned of the Iury Note That this present Parliament which commenced Anno 16. Can. Bishops were by Act of Parliament excluded the house of Lords Bishops and therefore Quere whether at this day this Law holds in their Case or no Howbeit it seemes still to hold because they still retaine their Baronies in respect whereof they enjoyed Places and had votes in that house and doublesse shall still retaine divers other Priviledges which of right belong to Temporall Peeres that have Baronies Tamen quaere Co. ibid. 156. l. 6. b. 3. 17 At the Common Law Challenge peremptory any subject under the degrée of a Peere of the Realme upon an Indictment or Appeale of Treason or Felonie against him might in favorem vitae challenge peremptorily viz. 35. or any other number under thrée Iuries But a Lord of Parliament that being a Peere of the Realme is to be tryed by his Peeres shall challenge none of them because they are not sworne as other Iurors be Peere 〈◊〉 Challenge but find the partie guilty or not guilty upon their faith or allegiance to the King and they are Iudges of the fact and every of them doth separately give his Iudgement beginning at the lowest c. How the Common Law hath been altered concerning peremptorie Challenges see Co. ubi in margine Co. ibidem 18 A Péere of the Realme or a Lord of Parliament as a Baron Peere no â—â—ror Viscount Earle Marquesse and Duke propter honoris respectum in respect of honor and Nobility are not to be sworne on Iuries and if neither party will challenge him he may challenge himselfe For by magna Carta it is provided Quòd nec super eam ibimus Lords Commoâ— nec super eam mittemus nisi per legale judicium parium suorum aut per legem terrae Now the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realme Trial per pares The Péeres of the Realme are divided into Barons Viscounts Earles Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrées of Nobility are Péeres to another as if an Earle Marquesse or Duke be to be tryed for treason or felonie a Baron or any other degrée of Nobility is his Péere In like manner a Knight Esquire c. shall be tryed 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 triall either at the Kings suit or betwéen partie and partie a Péere of the Realme shall not be impanesseâ— in any Case Words of conâ—â—son bind in â—he Kings case â—nd of a wil. 19 If a man maketh a Feoffment in Fée ad faciendum or faciendum Co. ibid. 204. b. 4. or ea intentione or ad effectum or ad propositum that the Feoffée shall do or not do such an Act none of these words make the State in the Land conditional For in judgement of Law they are no words of Condition and so was it resolved Hill 18 E. in Co. Banco But this is to be understood in the Case of a common person for in the Kings case these or the like words do create a Condition and so it is also in the Case of the will of a Common person c. Condition not â—estroyed in â—â—e Kings case 20 A Common person being grantée of part of a reversion of Land Co. ibid. 21â— a. 3. shall not take advantage of a Condition by force of the Statute of 32 H. 8. cap. 34. As if
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
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
or other Writing shall be void yet the Law implicitly requires order which ought to be pursued by the Obligor c. As if an Obligation be made to the Sheriffe against the Statute of 23 H. 6. cap. 10. or to one against the Statute of Usury 13 Eliz. cap. 8. in those and the like cases the Defendant ought to conclude Judgement si Action and cannot plead non est factum 7 E. 4 5. 7 E. 6. Br. non est factum 14. against the opinion of Montague in Dyve and Maninghams case in the Commentaries Pl. com 66. Againe when the Obligation or other Writing took at first effect and was once revera his Deed but afterwards before the Action brought became no Déed as by rasure addition alteration breaking of the Seal or the like in these cases albeit it were sometimes his Déed yet may the Defendant safely plead non est factum for doubtlesse at the time of the plea which is in the present tenures it was not his Deed. In Dyer 36 H. 8. 59. In debt the Defendant pleades non est factum and before the day of Apparence of the Inquest the mice had eaten the Label unto which the Seal was fixed by the negligence of the Clerke in whose custodie it was kept whereupon the Iustices commanded the Iury that if they found that it was his Deed at the time of the plea pleaded they should then give a special Verdict which they did accordingly If an Obligation be delivered to another to the use of the Obligée and the Obligée refuseth it upon tender in this case the delivery hath lost its force and the Obligée can never agrée to it afterwards and then also the Obligor may safely plead non est factum against the opinion in Dyer 1 Eliz. 167. So also if an Obligation be made to a Feme Covert and the Baron disagrée to it the Obligor may plead non est factum for by the refusal the Obligation loseth its force and becomes no Déed And by these resolutions the Quaere in Dyer 2. Mar. 112. and the disagreeing opinions in 14 H. 8. 28. Dyve and Maninghams case 66. 1 H. 7. 15. Dyer 1 Eliz. 167. and other places are well reconciled 30 A. Tenant for life the remainder to B. in Fée joyn in a Lease to C. this immediately after the delivery takes effect in this manner Where a Lease enures by grant or confirmatioâ— it is the Lease of A. during his life Co. l. 6. 15. Treports case and the Confirmation of B. and after the death of A. it is the Lease of B. and the Confirmation of A. according to the opinion of Dyer Brown M. 6. and 7 Eliz. 234 235. and therefore in an Ejectione firma brought by C. if he count of a joynt Demise from A. and B. his count is not good And in that case although the Lease be by Déed indented yet shall it not worke any conclusion for when the Déed enures by passing of an interest as in this case it doth it shall not be taken for any conclusion no more than a Lease for yeares of the Tenant for life by Déed indented shall be an Estoppel after his death because at the beginning it took effect by way of passing an Interest Co. l. 6. 74. a. 3. Sir Drue Druries case 31 When Tenant by Knight Service dies his heire within age Marriage dâ— to the Lord. Chattel veâ—â— presently the value of his mariage as a Chattel takes such effect and is so vested in the Lord 24 E. 3. 25. V. N. Br. 27 E. 3. that albeit such an heire within age be made a Knight and to that purpose in Iudgement of Law is estéemed of the full age of 21 yeares yet shall the Lord have the value of his mariage as well as the custodie of his land till his age of 21 yeares which last to remove all doubt was expressely given to the Lord by Magna carta cap. 3. Co. l. 7. 17. b. 3. Calvins case 32 If a King hath a Kingdome by Title of descent where the Laws have taken good effect and rooting The King cannot altâ—â— in as much as by the Laws of that Kingdome he doth inherit it Lawes without Parliament he cannot change those Lawes of himselfe without consent of Parliament So also if a King hath a Christian Kingdome by Conquest as King H. 2. had Ireland after King John had given unto them being under his obedience and subjection the Laws of England for the government of that Country no succéeding King could alter the same without Parliament A Recognisance chargeth a rent after release to the Terre-tenant 33 The Grantée of a rent charge issuing out of land acknowledgeth a Recognisance and afterwards releaseth to the Terre-tenant Co. l. 7. 38. b. 3. c. Lillingstons case the Conusée sueth Execution and extends the rent notwithstanding by the release it is extinguished for the Recognisance took effect to charge the rent before the extinguishment and therefore it shall be liable to the extent in whose hands soever it comes and as to the Conusée shall not be extinct A Chattel vested 34 If the King hath an Advowson in Fée which is void Fitz. 33. N.O. P.a. and during the avoidance the King grants away the Advowson in Fee the King shall not present to this avoidance But if the King hath an Advowson by reason of the temporalties of a Bishoprick which is void and during the avoidance the King restores to the Bishop the temporalties yet he shall present to the Advowson and not the Bishop for this avoidance because the presentation was a Chattel which vested in him before he restored the temporalties So if the heire sue Livery from the King and hath it yet the King shall present to the Advowson which voided during the time that the Advowson and land were in the Kings hand causa qua supra Likewise if a man be seised of an Advowson in Fee in grosse or appendant to a Mannor and the Advowson voides and he dies his Executors shall have the presentation and not the heire because it was a Chattel vested and severed from the Mannor neither shall the heire in taile have the presentation which falls in the life of the Tenant in tail but the Executors of the Tenant in tail c. The like 35 The Termor shall have the presentation Fitz. 34. b. N which happens during the terme albeit during the terme he present not to the Advowson So if a Vicarage happen to be void and before the Parson can present he is made a Bishop c. yet he shall present to that Vicarage because it was a Chatttel vested in him Where the Guardian shall not have ravishment 36 If the Guardian marry the heire after the age of 14 yeares Fitz. 142. h. and after the heire is taken by a stranger yet the Guardian shall not have a Writ of
the land be ancient Demesn again for the estate whereupon the confirmation should enure is defeated Finch 14. Absque impetione vasti determined 67 The priviledg of Absque Impetitione vasti is annexed to the privity of the Estate 3 E. 3. 44. per Shard and Stove so that if the estate Co. l. 11. 83. b. 3 Bowles case unto which that priviledg is annexed be changed the advantage of that priviledge is lost 5 H. 5. 9. a. And therefore if a man make a lease for years without impeachment of wast and after confirms the land to him for life he shall be ever after chargeable with waste 28 H. 8. Dyer 10. b. If a lease be made to one pur auter vie without impeachment of wast the remainder to him for the term of his own life Now is he punishable of wast for the first estate unto which the advantage of Absque impetitione vasti was annexed is drowned and gone and therefore that priviledge is gone also So it is likewise of a Confirmation c. Priviledge of 〈◊〉 by the courâ—â—sie lost by aâ—â—nation 68 It was adjudged in the case of one Ewens M. 28. Co. ibid. 29 Eliz. that where the Tenant in taile after possibility of issue extinct granted over his estate the Grantée was forced in a Quid juris clamat to attorn because by the assignment that priviledge was lost And this judgement was affirmed in the Kins Bench in a Writ of Error and with it also agrees 27 H. 6. tit Aide in Statham No prohibition of wast by the alienee of the heire against tenant in dower 69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower but if the heire grant over the reversion Co. ibid. his Grantée shall not have it for it appears in the Register fol. 72. that such an Assignee in an action of Wast against Tenant in Dower shall recite the Statute of Glocester and then by consequent he shall not have prohibition of Wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. Co. Inst pars 1 12. b. 4. 70 If a man be seized of lands as heire of the part of his mother Priviledg 〈◊〉 by a purchaâ—â— of the land and maketh a feoffment in fee and taketh back an estate to him and his heirs this is a new purchase and if he die without issue the heirs of the part of the father shall first inherit because the estate unto which the property of descending to the heirs of the part of the mother being by the change of the same estate destroyed that property it selfe is also destroyed So likewise if a man so seized makâ—th a feoffment in fee reserving a rent to him and to his heirs this rent shall goe to the heirs of the part of the father c. Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case 71 If there be Lord and Tenant by Castle-guard Castle-guard gone by aâ—â— nation and the Lord granteth over his Seignory to another In this case the Castle-guard is gone because the Grantee hath not the Castle which is the ground of the service For the same reason it is that if one holdeth of me as of my Mannor of D. by fealty and suit of Court if I grant over the services of this Tenant the suit is gone because the Grantée hath not the Mannor But if the Castle be wholly ruinated Si castrum sit penitùs dirutum yet the tenure remaineth by Knight service and it goeth in benefit of the Tenant as to the guarding of the Castle untill it be re-eedified but ward and marriage belongeth unto the Lord in the meane time Co. Inst pars 1. 53. b. 4. 72 After Waste done Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state that it was in at the time of the Waste done for if after the Wast committed the reversion granteth it over though he taketh back the whole estate again yet is the Wast dispunishable So likewise if he grant the reversion to the use of himselfe and his wife and to his heirs yet the Wast is dispunishable and so of the like because the estate of the reversion continueth not but is altered and consequently the Action of Wast for Wast done before which consists in privity is gone also Co. l. 5 28. a. 3. in Middletons case 73 An Executor before probat may release an action Executor may release befoâ—â— probat not the Administrator albeit before probat he cannot bring an action for the right of action is in him So also if two Executors prove the Will and the third refuse yet he may release It is otherwise of an Administrator for if A. release and after take administration that shall not barre him because the right of action was not in him at the time of the release made Co. Inst pars 1 76. b. 3. 74 If there be Lord and Tenant A conditional wardship devested and the Tenant maketh a feoffment in fée of Lands holden by Knight service to the use of the Feoffée and his heirs untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited the Feoffée dyeth his heire within age Here the Lord shall have the wardship of body and lands conditionally For if the Feoffor pay the money and enter into the land the wardship of both body and lands is divested Vide pro ibid. Dyer 155. Pl. 20 4 5. P. M. 75 A. by Indenture enrolled in Chancery in consideration of money Use upon an use bargains and sels to B. the Mannor of D. to have and to hold to B. and his heirs to the use of A. for life the remainder to the use of B. in taile Here because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred out of another the limitation of the two last uses was adjudged void Dyer 186. 1. 2 3 Eliz. 76 A man gives land to two habendum eis pro termino vitae eorum Cestuy que 〈◊〉 eorum alterius diutiùs viventis ad usum A. B. pro termino vitae suae without more and the two Lessées die In this case it seemed to the Court of Common Pleas that the estate was determined because the estate upon which the use was created and raised was gone c. But Quaere if such an estate had béen made before the Statute of 27 H. 8. of uses Dyer 205. 7. 3 4 Eliz. 77 A writ of extent was awarded in the time of Quéen Mary Extent returnable Quindena Martini and the Writ is executed in the life of the Qu but before the return she dies and yet it was returned and a liberate was thereupon
Fée-simple by purchase because his heirs may inherit him And albeit it be true that the Statute extendeth to an estate in Frankmarriage acquired by purchase yet doth it extend also to all estates in tail as well by descent as by purchase Frankmarriage being put there but onely for an example Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple that hath a warranty for life Warranty life either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because in that case the warranty was annexed and did extend to the whole estate of the Feoffée in Fée-simple But if Tenant in taile let the Tenements for life the remainder to another in fée and a collateral Ancestor confirm the estate of the Tenant for life for the terme of his life onely with warranty and die and the Tenant in tail hath issue and die Here the issue is barred during the life of the Tenant for life by the Collateral warranty And in that case if the Tenant for life be impleaded and vouch he shall onely recover in value but an estate for life because the warranty was annexed and doth extend to that estate onely c. â—wo estates â—ade together â—f the same â—nd 29 If a man make a Charter of feofment of an acre of land to A. and his heirs Co. ib. 21. a. 2. and also another Déed of the same acre to A. and the heirs of his bodie and deliver Seisin according to the form and effect of both Déeds In this case he cannot take a Fée simple onely as some hold because Livery was made according to the Déed in tail as well as to the Charter in fée neither can the livery enure onely to the Déed of estate tail with a Fée simple expectant because livery was made as well upon the Déed in Fée simple as the Déed in tail And therefore others hold that in this case it shall enure by moities viz. to have an estate tail in the one moity with the Fée simple expectant and a Fée simple in the other moity And so the livery shall work immediately upon both Déeds And this last séemes to be the opinion of Coke himselfe being put last according to his own rule which he often delivers in this part of his Institutes â—ower of â—ings intire 30 Albeit of many Inheritances that be intire whereof Co. Inst pars 1. 32. a. 1. no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet a woman shall be endowed thereof in a special and certaine manner As of a Mill a woman shall not be endowed by metes and bounds nor yet in common with the heir but either she may be endowed of the third toll-dish or de integro molendino per quemlibet tertium mensem And so of a Villain either the third dayes work or every third wéek or moneth A woman shall also be endowed of the third part of the profit of Stallage of the third part of the profits of a Faire of the third part of the profits of the Office of the Marshalsie of the kéeping of a Park of a Dove-house of a Piscary viz. tertiam piscem vel jactum retis tertium Of the third presentation of an Advowson A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm And herewith agréeth reverend antiquity De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad valentiam Of the third part of the profits of Courts Fines Heriots c. Also a woman shall be endowed of tithes and then her surest way is to take the third sheaf for what land shall be sown is uncertaine â—ower recoveâ—d by parts 31 Regularly the Feme ought to be endowed of an intire third part in severally by metes and bounds Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seised of lands in Fee take a wife and enfeoffe eight persons and dies a Writ of Dower is brought against those eight persons and two confesse the action and the other six plead in barre and descend to issue here the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided and after the issue is found for the Demandant against the other six the Demandant shall have also judgement to recover against them the third part of six parts of the same land in eight parts to be divided â—nsent of â—iage equal 32 If a man of the age of 14 years marry a woman of the age of ten Co. ib. 79. b. 1. at her age of twelve he may as well disagrée as she may albeit he were of the age of consent because in the contracts of matrimonie either both must be bound or equal election of disagréement given to both and so è conversò when the woman is of the age of consent and the man under â—elivery of â—ods by a â—nkrupt 〈◊〉 good El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors which are willing to submit to the order of the Commissioners in that behalfe for the Statute saith that the distribution shall be To every one of the Creditors c. rate and rate like according to the quantity of his or their debt So that one shall not prevent the rest but all may be in equali jure according to that of Cato Ipsae etenim leges cupiunt ut jure regantur Co. ibid. 35 H. 8. tit Testaments Br. 119. 34 A man holds thrée Mannors of thrée several Lords by Knight Service each Mannor of equal value here Devise of 3 Mannors â—â—den by Knigâ— Service he cannot devise two of the Mannors and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills For then he should prejudice the other two Lords but by a favourable and equal construction of the said Statutes he hath power to devise onely two parts of each Mannor So that equality amongst them shall be observed 4 E. 3. tit Ass 178 Co. ibid. 35 The Lord of a Mannor shall not approve it all Approvemeâ— albeit he leave sufficient Common in the lands of other Lords according to the Statute of Merton cap. 4. Co. ib. 48. E. 3 5. 36 In Dower Voucher in Dower if the heir be vouched in three several Wards within the same County execution shall be had against one onely but
Alien Enemy it is a good plea in both Abjured persons 19 A person abjured is dis-abled to sue any Action Co. Inst 1. 128 a. 4. for that he is extra Legem and yet he cannot be properly said to be Out-lawed 90 As concerning the ages of Infants the Law ordereth them in this manner Seven for the Lord to have aid for the marriage of his eldest daughter of that age Nine Litt. §. 36. for a woman to deserve her Dower Twelve for a man to take the Oath of Allegiance in a Turn or Leet and also to binde a woman in matter of Marriage Fourteen the age of discretion and therefore that a competent age to binde the man in matter of Marriage for a Ward in Soccage to chuse his Guardian and for a woman to be out of Ward to the Lord by Knight-service Fifteen for the Lord to have Aid to make his eldest Son of that aâ—e a Knight Seventeen for an Infant Executor to be out of the tuition of Administrators Eighteen for an Infant to have power to make a Will One and twenty their full age to make good any Act they do and for a man to be out of Ward to the Lord by Knight-service Co. Inst p. 1. 33. a. 3. 1 A wife whether she be so de facto Nine years old to have dower or de jure if she be of the age of nine years at the time of the death of her husband shall be indowed of what age soever her husband be viz. although he be but four years old c. And she must be so old at least to have Dower Quia junior non potest dotem promereri neque virum sustinere hec obstabit mulieri petenti minor aetas viri wherein it is to be observed that albeit Consensus non concubitus facit Matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and unperfect marriage from which either of the parties at the age of consent may dis-agree after the death of the husband shall give Dower to the wife and therefore it is to be accounted in Law after the death of the husband legitimum matrimonium a lawful marriage quoad dotem And in that Case the Bishop upon an Issue joyned in a writ of Dower Co. ib. a. 4. Quòd nunquam fuerunt copulati legitimo matrimonio ought to certifie that they were coupled in lawful marriage albeit the man were under fourteen and the wife above nine and under twelve Co. ibid. 2 If a man taketh a wife of the age of seven years The wife of 〈◊〉 yea endowed after alienation and after alien his Land and after the alienation the wife attaineth to the age of nine years and after the husband dieth In this Case the wife shall be indowed for albeit she was not absolutely Dowâ—ble at the time of the marriage yet she was conditionally Dowable viz. if she attained to the age of nine years before the death of the husband for so Littleton saith § 36. So that she passe the age of 9 years at the death of her husband because by his death the possibility of Dower is consummate So likewise if the Son endow his wife at her age of seven years ex assensu patris if she before the death of her husband attain to the age of nine years the Dower is good c. Co. ib. 78. b. 3. Britt 168. b 3 The reason wherefore the Law gave the Marriage of the heir-female to the Lord if she were within the age of fourtéen Marriage oâ— heir female under 14. and that she should not marry her self appears in Antiquity viz. Pur ceo que les heires females de nostre terre ne se mariassent a nos enemys donc il nous convica droit lour homage prendre si elles se pussent marier a lour volunte c. This is a special age for an heir female to be out of Ward if she attain to it in the life-time of her Ancestor for at that age she may have a husband able to do Knight-service c. Ages assigned to the male 4 A man by the law for several purposes hath divers ages assigned unto him Co. ib. 78. b. 3 Fitz. 82 b. viz. twelve years to take the Oath of Allegiance in the Turn or Léet fourtéen to consent to Marriage fourtéen for the heir in Soccage to chuse his Guardian Co. ib. 78. b 2. and fourtéen is also accounted his age of discretion fiftéen for the Lord to have aid pur fair fife Chivaler under 21 to be in Ward to the Lord by Knight-service Co. l. 6. 70. b. 4 in the Lord Darcies Case Co. l. 9. 72. b. 3. in Doctor Husseys case under fourtéen to be in Ward to Guardian in Soccage fourtéen to be out of Ward of Guardian in Soccage and 21 to be out of Ward to Guardian in Chivalry and likewise to alien his lands goods and chattels Also a woman hath seven Ages for several purposes appointed to her by law To the female as seven years for the Lord to have aid pur file marier nine to deserve Dower twelve to consent to Marriage until fourtéen to be in Ward fourtéen to be out of Ward if she attained thereunto in the life of her Ancestor sixtéen for to tender her Marriage if she were under fourtéen at the death of her Ancestor which was granted by the Statute of West 1. cap. 2â— and 21 years to alienate her Lands Goods and Chattels Fitz. 82 b. 149 l. An Infants Will. 5 An Infant when he shall have attained the age of eightéen years Co. ib. 89. b. 2. may make his Testament and constitute Executors for his Goods and Chattels Unequal partition 6 If Perceners of full age of lands in Fée-simple make an equal partition she that hath the least part is bound for ever Co. ib. 170. a. 3 Litt. §. 255 as well as in case of an unequal exchange And if the unequal partition be of lands in tail she that hath the worst part is bound for her life but her issue shall avoid it c. No power to grant before 〈◊〉 Bailiff Receiver Iâ—quest Wager of law 7 The Law hath provided for the safety of a man womans Estate Co. ib. 171. b. 3 Litt. §. 239. that before their age of twenty one yeors they cannot binde themselves by any Déed or alien any lands goods or chattels before which age a man or woman is called an Infant Likewise if before that age he be made a Bailiff or receiver to another he is not chargeable in accompt neither yet can he under that age be put upon an Inquest c. nor make his law of non-summons nor in an action of Debt according to the Maxime Minor jurare non potest yet the husband and wife of full age for the debt of the wife before the
transferred and the Law will not in this case suffer the Disseisor to have it because right and wrong cannot cohabit together and therefore it shall rather extinguish So likewise if the Disseisee disseise the heire of the Disseisor here he gaines the estate by wrong viz. by Disseisin having the ancient right in this case if he make Feoffment in fee to another he thereby passeth away the estate which he gained by Disseisin and extinguisheth his ancient right so that the heire when he re-enters shall retaine the Land as well against the Feoffor as against the Feoffee A Disseisor â—â—e onely â—â—ong-doer 20. If a Disseisor make Feoffment in fee Co. l. 11. 51. a. 4. in Rich. Lifords case and the Feoffee cuts down Trees Grasse grain growing upon the ground c. if the Disseisee re-enter he shall not have an Action of trespass vi armis against the Feoffee that came in by title so it is also if he had made a gift in tail or a lease for life or years of the Land because they come in by title but in such case the Disseisee shall recover all the meane profits against the Disseisor as the Disseisee in such cases should have recovered damages against the Disseisor in an Assise at the common Law before the Statute of Glocester cap. 1. There is the same Law also if the Disseisor be disseised an Action of Trespasse doth not lye against the second Disseisor for he may come in by title and if he should be charged he might then be doubly charged viz. both by the Disseisee and also by the first Disseisor and this fiction of Law that the Frank-tenement hath alwayes continued in the Disseisee which ought to be the ground of the Action of Trespass shall not have relation to make him that comes in by title or upon a second Disseisin to be a wrong-doer against whom an Action of Trespass may be brought Howbeit if one disseise me and during the Disseisin he cuts down the Trees Grass graine c. and after I re-enter in this case I shall have an Action of Trespass vi armis against him for the Trees Grass Graine c. for after my regress the Law by fiction as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwayes continued in me and he onely by construction of Law shall be adjudged the wrong-doer which fiction cannot extend to him that comes in by title or upon a second Disseisin c. Co. l. 11. 72. b. 4. in Magdalen Colledge case 21. The Statute of West 2. cap. 5. The King bound The law preserves right Quod quotiescunque aliquis jus non habens tempore hujusmodi custodiarum c. presentaverit c. which was made to suppress wrong shall bind the King And therefore it is well said in 24 E. 3. 41. That the Law is reason and equity to doe right to all and to preserve men from wrong and mischeif for the Law will never make construction against Law Equity and Right Pl. Co. 64. b. 3. â—in Dive and Maninghams case 22. Albeit the Statute of 23 H. 6. 10. Obligation made to defend one for a wrong void which prohibits Sheriffs to take security of persons taken in execution to the end to let them goe at large had not been made yet a Bond had been void at the Common Law For such a Prisoner by the Common Law is not main parnable and then the letting of him goe at large by Mainprise is a wrong and a thing done against the Law and by consequent the Obligation is made to ayde the Sheriff for a wrong done by him in which case even by the order and course of the Common Law the Obligation is void So if an Obligation be made to save one harmless for killing such a man or to commit such a Trespass c. in such cases the Obligation is void by the Common Law And therefore if the Plaintiff in a Replegiare hath a Withernam out of the Common Pleas by force whereof one of the Sheriffs Bayliffs takes foure beasts in the name of Withernam and after delivers them againe to the Defendant and the Defendant is bound to save the Bayliff harmless for the fource beasts who afterwards being damnified brings his Action of debt upon the Obligation In this case as it held by the better opinion in M. 2. H. 4. fol. 9. Fitz. Obligation 13. and Br. 20. the Obligation is void for the Writ of Withernam is Capias in Withernam c. et ea detineas quousque c. so as the Sheriff ought to have kept the Cattell and not to have delivered them to the party for that was a wrong and therefore the Obligation made to defend him for that wrong is void 147. So as none shall take benefit or advantage of their own wrong Litt. S. 19. Co. Inst pars 1. 23. a. 3. 1. Vpon a gift in tail the Rule of Law is Tenure by Knight-service that the Donees and their issues shall do to the Donor and his heires such services as the Donor doth to his Lord Paramont And yet if a man seised in right of his wife of Land holden by Knight-service in tail that Land generally the Donee shall not hold of him by Knight service because his wife held the land and he had nothing but in her right and in that case the Baron having gained a new Reversion by wrong shall not take advantage of his owne wrong but such a Donee shall only hold by Fealty which is incident to all tenures Rent-charge apportioned 2. Regularly a whole Rent-charge is extinct by the purchase Co. ibid. 148. b. 4. or otherwise gaining of the Possession of part of the Land out of which it is issuing And yet in some cases a Rent-charge shall not be wholely extinct where the Grantee claimeth from and under the Grantor As if B. maketh a Lease for life of one Acre to A. and A. is seised of another Acre in fee A. granteth a Rent-charge to B. out of both the Acres and doth waste in the Acre which he holdeth for life B. recovereth in waste In this case the whole Rent is not extinct but shall be apportioned and yet B. claimeth the one Acre under A. and the reason hereof is for that no man shall take advantage of his own wrong Nullus commodum capere potest de injuria sua propria for seeing the waste was committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole Rent And the whole Rent cannot issue onely out of the other Acre because the Lessor hath the one Acre under the estate of the Lessee and therefore in such case it shall be apportioned So it is also if A. had made a Feoffment in fee and B. had entred for the Forfeiture in that case also the Rent shall be apportioned and not wholely extinct causa qua
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
jointenants of the land and the husband soweth the ground and the land surviveth to the wife 8 Ass pl. 21. 8 E. 3. 54. Dyer 316. It is said that she shall have the Corn and not the executors and the Law seems to be so because they were as one person in Law and held by intietties Co. ibid. 75. b. 4. 6 The tenure by Knight service being at first ordained for the defence of the Commonwealth both against domestique insurrections and forein invasions a Militia being indeed the chief pillar that supports a Commonwealth the due observance thereof was strictly enjoyned by the Laws of Edward the Confessor Knight service where you shall find it thus provided Lamb. 135. Debent enim universi liberi homines c. secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum Domini Regis explendum et peragendum And William the Conquerer confirmed that Law in these words Statuimus et firmiter praecipimus quod omnes Comites Barones Milites et Servientes universi liberi homines totius regni nostri praedicti habeant teneant se semper in armis et in equis ut decet et oportet et quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis et tenementis suis de jure facere c. The like 7 The tenure by Knight service because it was instituted for the Guard and defence of the Commonwealth was so much favoured in Law Co. ibid. 76. b. 4. that betwixt the making of the Statutes of 4 H. 7. 17. and 27 H. 8. 10. of Uses there might lie two wardships for one and the same land as if Cestuy que use before the Statute of 27 H. 8. had died his heir within age the Lord should have had the wardship of his heir by force of the Statute of 4 H. 7. and if the feoffée had died his heir within age the Lord should have had the wardship of his heir also viz. by the course of the Common Law And at the Common Law before the making of those Statutes there might be two wardships in respect of the same land as if tenant by Knight service had made a gift in tail the remainder in fee and tenant in tail had made a feoffment in fee and died his heir within age the Lord should have had the wardship of him and if the feoffee had died his heir within age Co. ibid. 77. a. 1. the Lord should have also had the wardship of his heir and of the land so likewise if tenant by Knight service make a gift in tail and the donee maketh a feoffment in fee and the donee dieth his heir within age the donor shall have the wardship of him because he is his tenant in right but if the feoffee dieth his heir within age the Lord paramount shall have the wardship of his heir because en fait he is tenant to him c. And the Common Law did not remedy this inconvenience because that tenure was deemed serviceable for the Commonwealth Tillage 8 Agriculture or Tillage is much favoured and of great esteem Co. ibid. 85. b. 1. because it is very profitable for the Commonwealth concerning which the goodness of the habit is best known by the privation For by laying of lands used in tilth to pasture six main inconveniences doe daily encrease 1. Idleness Co. l. 4. 39. a. in Tirringhams case which is the beginning and ground of all mischiefs 2. Depopulation and decay of Towns 3. Husbandry which is one of the greatest Commodities of the Realm is decayed 4. Churches are destroyed and the service of God neglected by diminution of Church-livings as by decay of Tithes c. 5. Injury and wrong is done to Patrons and Gods Ministers And 6. The defence of the land against forein Enemies is enfeebled and impaired the bodies of Husbandmen being more strong and able and patient of cold heat and hunger than of any other from which Inconveniences necessarily follow these consequences 1. The displeasure of Almighty God 2. The subversion of the Policy and good government of the Realm And all this appeareth in our books And therefore the Common Law giveth arable land antiently called Hyde or Gaine the precedence before Meadows Pastures Woods Mines or any other ground whatsoever And averia carucae the beasts of the Plough have in some cases more privileges than other cattel c. This imployment was also of high estimation amongst the antient Romans Co. Inst part 1. 161. a. 1. in so much that the grave Senators themselves would put their hand to the plough c. If the Lord will distrain averia carucae where there is a sufficient distress besides the tenant may make rescous O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima Tellus Virg. in Georg. Co. ibid. 99. a. 2. 9 An Abbot or Prior c. who holdeth lands by Knight service Abbot Prior. albeit he ought not in respect of his profession to serve in war in proper person yet must he find a sufficient man conveniently arrayed for the warr to supply his place And if he can find none then must he pay Escuage c. for his possession doth not privilege him but that the Kings service in his warr must be done which belongeth to his tenure and concerneth both the honor and safety of the Common-wealth Co. ibid. 127. a. 4. Bract. lib. 6. fo 6. 10 The life and members of every subject are under the safeguard and protection of the King Life and Member for as Bracton saith Vita et membra sunt in potestate Regis And herewith agréeth a notable Record Pasch 19 E. 1. coram Rege Rot. 36. Northt Vita membra sunt in manu Regis to the end that they may serve the King and the Commonwealth when occasion shall be offered And therefore if the Lord mayhem his Villein the King shall punish him for mayheming his subject Villein by fine ransom and imprisonment until the fine and ransom be paid because he hath thereby disabled him to do the King and Common-wealth service Co. ibid. 130. a. 4. 11 The Protections Quia Profecturus which concerns services of warr as the Kings souldier Protections c. and Quia Moraturus which concerns wisdom and counsel as the Kings Ambassador or Messenger pro negotiis regni being for the publique good of the Realm privat mens actions and sutes must be then suspended for a convenient time for Jura publica anteferenda privatis and again Jura publica ex privatis promiscue decidi non debent And the cause of granting
the Pestilence by reason of the multitude of people and pestering the air whereby it might prove dangerous not only to the Subject but likewise to the King himself and the Great Lords who attend upon his royal person Again if London should be too populous it would become ungovernable by the Magistracy of the City and if that City which is tanquam Epitome totius regni should not be well governed all the parts of the Realm would find the inconvenience thereof whereas when that City shall be well governed all parts of the Commonwealth will be preserved in better order Lastly that City becoming too populous it will not be subject to search c. not only in prejudice of the City it self but likewise of the King and the whole Commonwealth because then fraud and deceit will encrease in all Merchandise and things vendible Plea Accord 27 Accord with satisfaction is a good plea in an Ejectione firmae Co. l. 9. 78 a. 3. Henry Petoes case for that is mixt with trespass and indeed in all actions which suppose a tort to be done where Capias and Exigent do lie there an Accord is a good plea because it redeems the body from imprisonment so as men being at liberty may go about their business which is good for the Commonwealth Co. l. 10. 108. b. 3. Lofiâ—lds case 28 If there be Lord and Tenant by Knight service Tenure and the tenant gives the tenancy to two men and to the heirs of their bodies and they die having issue their issue shall hold severally by Knight service because it is for the defence of the Lord and of the Realm Vide supra 14. Co. l. 11 54. a. The Tailers of Ipswich case 29 An Ordinance of a Corporation Corporation Ordinance that none shall exercise any trade there unless he hath served 7. years as an apprentice in the same and shall also be approved by them to be skilfull therein is not good because against the Common Law which restrained no man from exercising any trade and also prejudicial to the Commonwealth for that it puts a greater restraint upon Tradesmen than the Statute of 5 Eliz. doth ordain in as much as he ought also to be approved by them which the Statute doth not enjoyn for if he be ignorant of his trade an action upon the case lyeth for his misdoing as it did also at the Common Law before the Statute neither doth the Stat. restrain a Taylor or other Artificer retained to exercise his trade in a private house And the Statute of the 19 H. 7. strengthens not any Ordinance against the Law or the Commonwealth though allowed as that Statute ordains the allowance only discharges the penalty of 40 l. for making Ordinances against the Kings prerogative and the Commonwealth Co l. 11. 72. a. b. Magd. Coll. case 30 The King is bound by the Statute De donis though not named Statutes binding the King because it is an Act which concerns the Commonwealth and was ordained for the preservation of the possessions of the Nobility Gentry and others so the Statute of 13 Eliz. 10. made for the prevention of long leases and dilapidations of Colleges Cathedrals Hospitals c. doth bind the King albeit not named because those Corporations were trusted with their possessions pro bono publico for the use of the Commonwealth for the same reason that Act hath in all cases had a benefical and favourable construction to the prevention of all inventions and evasions Co. ibid. 76. a. 2. against the true Intention of the same Act. Co. l. 11. 86 a. 3. b. in the case of Monopolies 31 One of the Chiefest reasons Monopolies why the Monopoly of the sole making and importing of Cards and all other Monopolies are prohibited by Law is for that there are three inseparable incidents to every Monopoly against the Commonwealth 1 The price of the Commodity will be raised for he who hath the sole vendition of any commodity may and will make the price as he pleaseth And this word Monopolium is compounded of these Gréek words μόνοϲ and πωλεομαί id est cum unus solus aliquod genus mercaturae universum emit pretium ad suum libitum statuens And the Poet saith Omnia Castor emit sic fit ut omnia vendat Also it appears by the writ of ad quod damnum F. N. B. 222 that every gift or grant of the King hath this condition either expresly or tacitly annexed unto it Ita quod Patria per donationem iliam magis solito non oneretur seu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Vide 13 H. 4. 14. The second Incident to a Monopoly is that after the Monopoly granted the Commodity is not made so good and merchantable as it was before for the Patentée having the sole trade regards his private benefit only and not the Commonwealth 3. This tends to the impoverishment of divers artificers and others who before by the labour of their hands in their art or trade did sustain themselves and their families in good condition and having also by that means increased their substance were fit and ready to serve the King when néed should require but by the grant of such a Monopoly they are reduced to such necessity that ever after they are constrained to live in idleness and beggary c. Munition Treasure of the King 32 Munition though unserviceable cannot be claimed as fees belonging to the Master of the Ordnance Co. l. 11. 91. b. 4. The Earl of Devons case because they were provided for the defence and safeguard of the King and Commonwealth and therefore albeit the King grant them to him and then he dies yet his executors shall not have them but shall be accountable to the King for them And for the same reason it is that no officer of the King or all of them together can ex officio issue or dispose of the Kings treasure although it be for the honor and profit of the King himself for although it be true that it is for the honor and benefit of the King that good service done unto him should be rewarded yet it ought to be rewarded by the King himself or by his warrant no by other because the treasure of the King being the ligament of Peace the preserver of the Honor and Safety of the Realm and the sinews of Warr all which do much concern the Commonwealth is of so high an estimation in Law in respect of the necessity thereof that the imbezilling of treasure trove although it were not in the Kings Chests was Treason And treasure and other valuable chattels are so necessary and incident to the Crown for the reasons aforesaid that in the Kings case they shall go with the Crown to the successor and not to the executors as in case of a common person as appears in 7