vocation in Anno 11 Eliz. conveyed his lands to the use of himself for life and after to the use of Philip Earl of Arundel his eldest son in tail with divers remainders over and with proviso that if he should be minded to alter and revoke the said uses and should signifie his mind in writing under his own hand and seal subscribed by three credible witnesses that then c. and afterwards the said Duke was attainted of high treason In this case that proviso or condition was not given to the Quéen by the act of the 33 H. 8. cap. 20. because the performance thereof was personal and inseparably annexed to the person viz. to signifie his mind by writing under his own hand which none could do but the Duke himself upon which point all the possessions of the Dukedome so conveyed as aforesaid were saved and not forfeited by the attainder Vide 44. 8. â—o ib. 13. a. 3. 106 The Templers held divers of their possessions in Frankalmoign which tenure as Littleton saith Privity stâ—â—er then the â—â—neral word 〈◊〉 an Act of â—â—â—liament is annexed in privity to the bloud of the Donor and after they were dissolved and by Parliament Anno 17 E. 2. their possessions were given to the Hospitalers to hold them in the same manner as the Templers held yet by those general words they held not in Frankalmoign because the privity of the tenure on the Tenants part continued not and that privity being personal and inseparable by the general words of the act was not transferred to the Hospitalers There is the same law of the impropriation of a Church Founderâ—â— inseparabâ—â— which is also on incident inseparable to the house of Religion whereunto the Church is impropriate And therefore it is adjudged P. 3. E. 3. that the Hospitalers by the said Act of the 17 E. 2. should not have an Impropriation which was formerly inseparably annexed to the Corporation of the Templers because such a thing as that consisting in inseparable privity by the general words of an Act of Parliament shall not be transferred to others Co. l. 7. 13. a. 4. Englefeilds case 107 In tempore H. 8. Brook tit Corodie 3. it is holden Foundersâ—â— inseparable that a foundership which is inseparably annexed in privity to the bloud of the Founder shall not be forfeited by attainder â—ivity in â—oud estate â—â—d law diâ—â—rsities 108 There are three manner of privities viz. privity in bloud Co. l. 8. 42. b. 4 c. in Whittinghams case privity in estate and privity in Law Privies in bloud are meant of privies in bloud Inheritable and that is in 3 manners viz. inheritable as heir general heir special or heir general and special Privies in estate are as Ioyntenants Baron and Feme Donor and Donee Lessor and Lessee c. Privies in Law are as when the Law without bloud or privity of estate casts the land upon one or makes his entry congeable as the Lord by escheat the Lord that enters for Mortmaine Lord of a Villaine c. And first privies inheritable as heir general shall take benefit of Infancy and therefore if an Infant Tenant in Fée simple make feofment and die his heir shall enter there is the same Law also of him that is heir general and special as if a man give lands to another and the heirs male of his body and the Donée within age make feofment in Fée his Sonne that is heir general and special shall enter It is so also of him that is heir special and not general as if in the same case the Donée hath issue two Sonnes and the eldest hath issue a daughter and the Donee dies and the eldest Sonne within age makes feofment and dies without issue male the youngest Sonne is special heir per formam doni and shall avoid the feofment of his brother although he is not heir general because he is privie in bloud and hath the land by descent So if lands be given to one and the heirs female of his body and the Donee having issue a sonne and a daughter makes feofment within age and dies Here the daughter being heir special unto whom the right of entry descends shall enter and not the sonne unto whom nothing descends So it is likewise of the heir in Borough English for in all cases when any claimes by descent as heir special he shall take benefit of a right of entry which descends unto him for the infancy of his Ancestor There is likewise the same Law if his Ancestor were non compos mentis at the time of making the feofment because in those and such like cases the heir general cannot enter for that no right or title descends unto him but the right descends to the heir special Howbeit privies in estate unlesse it be in some special cases shall not take advantage of the infancy of the other and therefore if Donee in tail within age make feofment in fee and die without issue the Donor shall not enter because there was onely privity in estate betwéen them and no right accrued to the Donor by the death of the Donée So if there be two Ioyntenants in fée within age and the one maketh feofment in fee of his moitie and dies the survivour cannot enter by reason of the infancy of his companion because by his feofment the joynture was severed so long as the feofment remaines in force And therefore in such case the heir of the Feoffor shall have a Dum fuit infra etatem or shall enter into the moity But if there be two Ioyntenants within age and they joyn in a feofment in that case a joynt right shall remaine in them and therefore if one of them die the right shall survive and the survivor shall have the right of the land as from the first Feoffor which makes Littleton seem to hold cap. Discontinuance fol. 44. that the Survivour may enter in respect of the right accrued unto him For otherwise indeed this mischiefe would ensue that the heir of that Feoffor which died cannot enter for that the right survived nor yet the survivor because he shall not take advantage of the infancy of his companion but shall be forced to his writ of Right which without question he may have for that after the feofment the Ioyntenants might have joyned in it c. Lastly privies in Law as Lord by escheat Co. ib. 44. a. 4. c. shall never take advantage of the privity of infancy because he is a stranger to it and when the Infant dies without heire the feofment is unavoydable The same Law of Coverture and non same memory 109 A. grants lands to B. in tail Accruer of estate and farther that if B. or his heirs pay unto A. upon such a day at such a place xx s. that then B. shall have an estate of Fee-simple in the lands to him and his heirs In this case the privity of the estate
the Executrix of the Obligée his Executrix and left assets she could not sue her selfe but the debt was presently satisfied by way of retainer and consequently no new action could be had for that debt Vide suprà 46. 4. Hob. 85. Day and Savage 37 Trial of the Customes of London shall not be by Certificate from the Major and Aldermen of that Citie albeit it be by their Recorder to the superiour Courts of Iustice Customes of London because they cannot be Iudges and parties when their Customes come in question 55 The Law favoureth privity Vide Max. 47. 16. Co. Inst pars 1 28. a. 2. 1 Tenant in tail after possibility of issue extinct hath divers priviledges annexed to his estate Tenant in 〈◊〉 after possiâ—â—â—â—ty which a bare Tenant for life hath not for which see Co. Inst pars 1. 27. b. neverthelesse if he grant over his estate to another his Grantee shall not have them for he hath those priviledges in respect of the privity of his estate and of the inheritance that was once in him And therefore it was adjudged in the case of one Evens Mich. 28 29 Eliz. that where Tenant in tail after possibility of issue extinct granted over his estate to another that the Grantée was compelled to atturn in a Quid juris clamat as a bare Tenant for life Quid jurâ—â— clamat and is so to be named in the writ For by the assignment the privity of the estate being altered the priviledge was gone and this judgement was affirmed in a writ of Error And herewith also agréeth 27 H. 6. Aid Statham 29 E. 3. 1. b. Co. l. 11. fol. 83. b. Bowles case Vide infrà 116. Co. ib. 35. a. 1. 2 If the husband make several feoffments of several parcels Assignment Dower by 〈◊〉 Feoffee 〈◊〉 the heire and dyeth and one of the Feoffées assign dower to the wife of a parcel of land in satisfaction of all the Dower which she ought to have in the lands of the other Feoffées In this case the other Feoffées shall take no benefit of that assignment because they are strangers thereunto and cannot plead the same But in the same case if the husband died seised of other lands in Fée-simple and the same descended to the heire and the heire endoweth the wife of certain of those lands in full satisfaction of all the dower that she ought to have as well in the lands of the Feoffées as in his own lands this assignment is good and the several Feoffées shall take advantage of it And therefore if the wife bring a Writ of Dower against any of them they may vouch the heire and he may plead the assignment which he himself hath made in safety of himself lest they should recover in value against him So as there is a privity in this respect betwéen the Heire and the Feoffées and by this means the assignment may be pleaded by the heire that made it Livery to the Lessee for years 3 If a man let lands for years the remainder over to another in fee Co. ib. 49. a. â— 143. a. 2. Albeit livery be not necessary for the Lessee for years yet because the immediate possession belongeth to him he must of necessity take the livery otherwise no estate can passe to him in remainder And livery being accordingly made unto him it shall convey the estate to him in remainder by reason of the privity of those estates For the particular estate and the remainders which depends upon it though there be never so many do all make in Law but one estate and therefore livery to the Lessee for yeares shall enure to him in remainder c. Waste 4 The advantage of bringing an action of Waste consists in privity Co. ib. 53. b. 3 4. for if after the Waste done the Reversioner granteth away his estate albeit he afterwards taketh back the whole estate again yet as the Waste dispunishable So likewise if he grant the reversion to the use of himself and his wife and of his heirs yet the Waste is dispunishable c. because the estate of the reversion wherein the privity is to that purpose consisted continueth not but is altered c. If an estate taile determines hanging the action of Waste so that the Plaintiff becomes Tenant in taile after possibility c. the action of Waste is gone If the Tenant doth Waste and he in the reversion dieth the heire shall not have an action of Waste for the Waste done in the life of the Ancestor nor a Bishop Master of an Hospital Parson or the like for Wast done in the time of the Predecessor And so if Lessee for years doth Waste and dieth an action of Waste lyeth not against the Executor or Administrator for Waste done before their time But if there be two Coparceners of a reversion and Waste is committed and the one of them die the Aunt and the Niece shall joyn in an action of Waste c. Vide Inst 116. â—mage 5 If there be two Coparceners or Ioyntenants of a Seigniory Co. ib. 67. b. 2. if the Tenant doth Homage and Fealty to one of them he shall be excused against the other and this is by reason of the privity and intirenesse of their estate Homage exâ—inct 6 In homage Ancestrel Co. ib. 102 b. 3. continuance of bloud on the Lords side is not always necessary for an Abbot Prior Bishop or the like may be Lord by Homage Ancestrel but yet there ought to be privity of succession time out of minde in one and the same politique body for if that body be once dissolved though a new one be bounded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone Howbeit if a Prior and Covent be translated Concurrentibus hiis quae in jure requiruntur to an Abbot and Covent or to Deane and Chapter In that case because the privity is preserved the Homage Ancestrel doth also remain for albeit the name be changed yet the body was never dissolved but in effect remaineth still c. Homage exâ—inct upon aâ—ienation 7 If the Tenant that holds by Homage Ancestrel Co. ib. 103. a. 3. Litt. Sect. 147. aliens his land to another the Alienee shall not hold of the Lord by Homage Ancestrel because the privity of the estate is altered and the continuance of it in the bloud of the Tenant is dissolved And if the Tenant take againe an estate in see of the land from the Alienee he then holdeth by Homage but he shall not hold by Homage Ancestrel causa qua suprà So it is also if the Tenant make a feoffment in fee upon condition and dieth his heire performeth the condition and re-entreth Here the Homage Ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate as it was agréed in a Case between the
Lord Cromwel and one Andrews Mich. 14 15 Eliz. But if the Tenant maketh a lease for life or a gift in tail this is a continuance of the privity and estate in the Tenant in respect of the reversion that remaineth in him because in that case the sée was never out of him c. Co. l. 8. 75. b. 3. The Lord Staffords case Co. ib. 103. b. 2. 8 If the Tenant by Homage Ancestrel alien his land The like and the Alienée is impleaded and vouch the Alienor albeit he cometh in by fiction of Law to many purposes in privity of his former estate yet to this purpose he cannot come in as Tenant by Homage Ancestrel because of the discontinuance of the estate and privity for that the tenancy was not continued in the bloud of the Tenant And therefore Britton saith Britt 170. a. Et come ascun soit vouche per homage le Seignior tende à averrer que le tenement dount il est vouche fuit translate hors del sanke del primer purchassour per feoffment ou per ascune autre translation en tiel cas soit le tenant charge de voucher son feoffor ou ses heires c. Howbeit if the land were recovered against the Tenant upon a faint title and the Tenant recover the same again in an action of an higher nature Here the Homage Ancestrel remains because in that case the right was a sufficient mean to preserve the privity and continuance So it is also if he had reversed it in a writ of Errour Co. ib. 103. a. 4. 9 If Cestuy que use after the Statute of 1 R. 3. 1. Cestuy qâ—â— use and before the Statute of Uses 27 H. 8. 10. had made a feoffment in fée upon condition and entred for the condition broken he should have detained the land against the Feoffées for ever for that the estate and privity was for the time taken out of the Feoffées and thereby dissolved for ever Co. ib. 117. a. 2. 10 The Lord shall not take advantage of any obligation covenant Things in action or other thing in action made to the Villein because they lie in privity and cannot be transferred to others Neither shall the Lord have a thing in action by Escheat for the same reason Co. l. 10. 48. a. 3. Lampets case Co. Ibid. Neither yet shall the Lord by voucher or otherwise take advantage of a warranty made to a Villein his heirs and assigns because it is in liew of an action and consists in privity c. Co. Inst pars 1. 130. b. 1. 11 Albeit the Vouchee Tenant by resceit Prayée in aide A protectiâ—â— cast for vâ—â—chee c. or Garnishée be no Parties to the Writ yet before they appear a Protection may be cast for them because when the Demandant grants the Voucher or resceit in judgement of Law they are made privie And although the Demandant counterplead the Voucher or resceit yet if it be adjudged for them and so they made privy in Law a Protection may be cast for them as aforesaid And so it is of the Garnishée a Protection may be cast for him at the day of the return of the Scire facias c. Co. ib. 146. a. 1. 12 If a Rent-charge be granted to A. and B. and their Heires Joyntenants in Avowry A. distraineth the beasts of the Grantor he sueth a Replevin A. avoweth for himself and maketh conusance for B.A. dieth and B. surviveth In this case B. shall not afterwards have a Writ of annuity because the election and Avowry for the rent by A. barreth B. of any election to make it an annuity albeit he assented not to the Avowry and this is by reason of the privity of their estate c. Co. ib. 170. b. 1. 13 Husband and Wife Tenants in special Tail have issue a daughter the Wife dieth Coparcenâ—â— the Husband by a second Wife hath issue another daughter both the daughters enter where the eldest is onely inheritable and make partition here the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not Heir and yet the youngest is a stranger to the Tail but in respect of privity of their persons the partition shall conclude for a petition between meer strangers in that case is void Howbeit the issue of the eldest shall avoid this partition as issue in Tail The like 14 I. S. seised of Lands in Fee hath issue two daughters Co. ib. 170. b. 2. viz. Rose bastard eigne and Anne mulier puisne and dieth Rose and Anne do enter and make partition In this case Anne and her Heirs are concluded for ever and this is by force of the Privity that is betwixt them â—ccompt 15 An action of Accompt must he grounded upon Privity Co. ib. 172. a. 4. for without Privity no Action of Accompt can be maintained viz. either a Privity indeed by the consent of the party as in such an action against a Receiver or Bailife for against a Disseisor or other wronged doer no account doth lie or a privity in Law ex provisione legis made by Law as against a Guardian in soccage c. â—lienation of 〈◊〉 property in 〈◊〉 â—â—parcenary 16 In coparcenarie if one of the parts be evicted by an eigne title Co. ib. 173. b. 2. Littl. Sect. 262. she that so loseth her part shall enter upon the rest to have recompence c. because yet the Privity which the Law creates betwixt them doth still remain but if one of the parceners sell her part and then the part which the other parcener hath is evicted c. In that case the parcener that so loseth her part shall not enter upon the Alienée for that by the alienation the privity is dissolved Littl. §. 260 And therefore if a man hath land in taile and also as much in Fée-simple and hath issue two Daughters and die and the Daughters make partition so that the entailed land is allotted to the eldest and the Fée-simple land to the youngest Here if the youngest Daughter alien the Fee-simple land to another in fée and hath issue and die the issue may well enter into the entailed land and shall hold it in property with her Aunt Yet shall not the eldest sister enter into half of the lands in Fee-simple upon the Alienee because by the alienation the privity of the estate was destroyed c. So it is also Co. ib. 172. b. 4. if the youngest Daughter had made a gift in tail because the reversion expectant upon an estate tail is of no account in Law for that it may be cut off by the Tenant in tail at his pleasure Exchange It is otherwise of an estate for life or years c. And what is said of parcenary is also true of exchange in point of eviction c. â—oparceners 17 If a man is
privity c. So also it is if the Tenant alien hanging the precipe the release of the Demandant to the Tenant the precipe is good and yet he hath nothing in the land c. Co. l. 1. 87. b. Corbets case per Walmsley Co. Inst pars 1. 266. a. 1. 45 In time of vacation an Annuity that the Parson ought to pay Release to 〈◊〉 Patron good may be released to the Patron in respect of the privity But a release to the Ordinary onely seemeth not good because the Annuity is temporal Littl. § 452. Co. ib. 267. b. 1. 46 A release of a right made to him in reversion or remainder Privies in estate shall aid benefit him that hath the particular estate for years or life or an estate taile So likewise shall a release of a right made to the particular Tenant for life or in tail aid and benefit him or them in the remainder c. because they are all privies in estate c. Littl. Sect. 454. Co. ibid. 268. a. 47 If there be Lord and Tenant and the Tenant is disseised Release to privies goâ—d and the Lord release to the Disseisee all his right in the Seigniory and in the land this is a good release and the Seigniory is thereby extinct and this is by reason of the privity that is between the Lord and the Disseisee And therefore there is an observable difference betwixt a Seigniory or Rent-service and a Rent-charge For a Seigniory or Rent-service may be released extinguished to him that hath but a bare right in the land and the reason of this is in respect of the privity between the Lord and the Tenant in right For the Disseisee is not onely in that case as Tenant to the Avowry but if he die his heire within age the heire shall be in ward and if of full age he shall pay relief and if he die without heire the land shall escheat but there is no such privity in case of a Rent-charge for there the charge onely lyeth upon the land A Seigniory may likewise be released by the Demandant to the Vouchee Co. ib. 269. a. 1. as also by the Donor to the Donee after the Donée hath discontinued in fée and this is méerly in respect of privity without any estate or right c. And therefore if the Donée in taile maketh a feoffment in fee and the Donor release to him and his heirs all his right in the land this shall extinguish the rent because the Lord must avow upon him and yet the Tenant in tail after the feoffment hath no right in the land but the reason is in respect of the privity and for that the Donor is of necessity compellable to avow upon him onely For if he should avow upon the Discontinuée then it should appear of his own shewing that the reversion whereunto the rent is incident should be out of him and consequently the Avowry should abate And so it was resolved Trin. 18 Eliz. in the Common Pleas in Sir Thomas Wiats case Much more then shall a release made by the Donor to the Donée being disseised extinguish the rent reserved upon the gift in tail Littl. §. 455. because in that case the Donée had still a right in him Howbeit this is also in respect of the privity that is betwixt the Donor and Donée yet here by such a release no right of the reversion shall passe to the Donée because at the time of the release he had nothing but a right in the land c. For a release of a right in lands and tenements to one that hath but abare right Co. ib. 267. a. 4. 273. a. 2 c. regularly is void And to make such a release available he to whom it is made must have either frée-hold in Déed or in Law in possession or a state in remainder or reversion in fée or fée-tail or for life c. Release beâ—ore entry â—oid 48 A man lets his land to another for terme of years Littl. Sect. 459. Co. ib. 270 a. 3. 4. and the Lessor releaseth to the Lessée all his right c. before the Lessée enter into the land that release is void as to enlarge his estate the Lessée having onely Interesse termini and not possession of the land but if such a Lessée enter and have possession then such a release unto him after entry shall be avaylable to enlarge his estate according to the limitation of the same by reason of the privity that is betwixt them by force of the same lease Howbeit if a man make a lease for years to begin presently reserving a rent if before the Lessée doth enter the Lessor releaseth all the right that he hath in the land albeit this release cannot enlarge his estate yet it shall in respect of the privity extinguish the rent And so it is also if a lease be made to begin at Michaelmas reserving a rent and before the day the Lessor releaseth all his right c. this cannot enure to enlarge the estate neverthelesse it shall extinguish the rent in respect of the privity as it was resolved in the Exchequer 39 40 Eliz. betwéen Sir Henry Woodhouse and Sir William Paston Release of Joyntenant of an advowson 49 A man granteth the next avoydance of an Advowson to two Co. ib. 270. b. â— the one of them may before the Church become void release to the other For albeit the Grantor cannot release to them to encrease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity But after the Church becomes void then is such a release void because it is then as it were but a thing in action Pasc 38 Eliz. in Quare Impedit per Denuet vers l'evesque de Norwich in Com. Banco Release to tenant at will good to tenant at sufferance void 50 A release to a Tenant at will is good Littl Sect. 460 461. Co. ib. 276. b. 3. 271. a. 132. because betwéen the Lessor and such a Lessée there is a possession with a privity but a release to a Tenant at sufferance viz. who cometh to the possession first lawfully and then holdeth over is utterly void because he hath a possession without privity As if Lessée for years hold over his terme c. a release to him is void for that there is no privity betwéen them and so are the books that speak of this matter to be understood for if a man entreth into land of his own wrong and take the profits his own words That he will hold it at the will of the owner cannot qualifie his wrong but he must néeds be a Disseisor and then a release to him is good or if the owner consented thereunto then is he a Tenant at will and that way also a release is good Howbeit there is
a difference when one cometh to a particular estate in land by the act of the party and when by act in Law for if the Guardian hold over he is an abator because his interest came by act in Law c. Privies their several kinds 51 Privity in the understanding of the Law is four-fold Co. ib. 217. a. 3. 1 Privies in estate as betwéen Donor and Donée Lessor and Lessee which privity is ever immediate 2 Privies in Bloud as the heir to the Ancestor or between Coparceners c. 3 Privies in Representation as Executors c. to the Testator 4 Privies in tenure as the Lord and Tenant c. which may be reduced to two generall heads Privies in Deed and Privies in Law To these also may be added Privies in right as Prececessor and Successor unlesse you may ranke them with Privies in Representation Release withâ—â—t privity â—oid 52 A release shall not enure by way of enlarging of an estate Co. ib. 272. b. 4. c. Little Sect. 547. unlesse there be privity of estate as between Lessor and Lessee Donor and Donee for if A. make a lease to B. for life and the Lessee maketh a lease for years and after A. releaseth to the Lessee for years and his heirs this release is void to enlarge the estate because there is no privity between A. and the Lessee for years So likewise if a man make a lease for 20 years and the Lessee make a lease for 10 years if the first Lessor doth release to the second Lessée and his heirs that release is void Likewise if the Donee in tail make a Lease for his own life and the Donor release to the Lessee and his heirs this release is void to enlarge the estate c. Co. ib. 273. a. 4. 53 If a man make a Lease for yeares the remainder for life Release to privies in estate good a release by the Lessor to the Lessee for years and to his heires is good for that he hath both a privity and an estate and a release also to him in the remainder for life and his heires Doct. Leyfields case is good also for these are privies in estate c. But they ought to have the Deed ready in their fist to plead Co. l. 10. 93. a. 4. Littl. §. 470 471. Co. ib. 275. a. 4. 54 If my Tenant for terme of life lets the land to another for terme of the life of the Lessee the remainder to another in Fee The like Here if I release to my Tenants Lessee for life I am barred for ever albeit there be no mention of Heires because at the time of the release I had no reversion but onely a right to have a reversion for by such a Lease and the remainder over which my Tenant made my reversion was discontinued or rather devested c. And such release shall also enure to him in remainder to take advantage thereof as well as the Tenant for life because he and my Tenants Lessee for life are privies in estate c. being as it were but as one Tenant in Law solely seised in his Demesne as in fee at the time of the release made c. So likewise if a Disseisor make a Lease for life Co. ib. 275. b. 2. and the Disseisee doth release all his right to the Lessee this release shall enure to him in the reversion c. Co. ib. 279. b. 2. 55 If there be Lord and Tenant The like and the Tenant maketh a lease for life the remainder in Fee if the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof So also if the heire of the Disseisor be disseised and the Disseisor make a Lease for life the remainder in fee if the first Disseisee release to the Tenant for life that shall enure to him in remainder c. Co. ib. 285. b. 4. 56 A release of actions shall onely extend to such as are privies to the Deed of release and to none other A release of actions extends onely privies and therefore if the Disseisee release unto the Disseisor all actions real and the Disseisor maketh a feofment in Fee and an Assise is brought against them the Feoffee shall not plead the release to the Disseisor for that he is not privie to the release So likewise if a Disseisor make a Lease for life the remainder in Fee and the Disseisee release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not plead that release Also if the Disseisee release all actions to the Disseisor and die this is onely a barre to the Disseisee during his life for after his decease his heir may have an action as some have said 19 H. 6. 23. a. And hereby may appear a manifest diversity between a release of a right Co. ib. 286. a. 4. and a release of actions c. If the heir of the Disseisor make a Feofment in Fee to two and the Disseisée releaseth to one of the Feoffées all actions and that Feoffee dieth the Survivour shall not plead that release c. Co. ibid. 297. b. 1. 57 If the Disseisor make a Lease for life to A. and B Disseisee â—â—firmes to jâ—â— tenant of Dâ—seisor and the Disseisee confirme the estate of A. B. shall take advantage thereof because of the privity for the estate of A. which was confirmed was joynt with B. and in that case the Disseisee shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoffe A. and B. and the heires of B. if the Disseisee confirme the estate of B. for his life this shall not onely extend to his Companion but also to his own whole Fee-simple c. â—elease from Disseisee 58 If a Feme Disseisoresse make a Feofment in Fee to the use of A. for life and after to the use of her selfe in taile Co. ib. 297. b. 4. and the remainder to the use of B. in Fee and then taketh husband the Disseisée who releaseth to A. all his right this shall eâ—â—are to B and to his own wife also for they are all privies in estate c. A Confirmation works not â—ithout priviâ—ie 59 A Confirmation shall never enlarge an estate Co. ib. 296. a. 2. 305. a. 4. b. 2. Littl. Sect. â—38 but when there is privity neither yet shall it regularly abridge Services but where there is privity As if there be Lord and Tenant and the Tenant holds of the Lord by Fealty and 20 s. rent the Lord may by his Déed confirme the estate of the Tenant to hold by 12 d. or by a penny or by an halfe penny and in this case the Tenant is discharged from all other Services but what are contained in the said Confirmation and this is in
respect of the privity betwéen the Lord and the Tenant but if there be Lord Mesne and Tenant the Lord cannot confirme the estate of the Tenant to hold of him by lesser Services for such a Confirmation is void because there is no privity betwéen them c. Attornment to one Joyntenant good 60 If a reversion be granted to two by Déed Co. ib. 310. a. 1. Co. l. 2. 67. b. Tookers case and the Lessée attorne to one of them according to the grant this Attornment shall enure to both the Grantées in respect of the privitie c. Attornment to the partâ—cular tenant vests all the remainders 61 If a reversion be granted for life the remainder in tail Co. Inst pars 1. 310. the remainder in fée the attornment to the Grantée for life shall enure to them in remainder to vest the remainders in them for they are privies in estate c. And in this case albeit the Tenant shall declare in expresse terms that he doth onely attorne to the Grantée for life and that those in remainder shall take no benefit by that attornment after his death yet shall the attornment be good to them all for having attorned to the Tenant for life the Law which he cannot controll doth vest all the remainders in respect of the privity c. Upon grant of a Seigniory or rent service the person to be charged ought to attorne 62 Vpon the grant of a Mannor or a rent service Littl. Sect. 553. Co. ib. 311. a. 1. b. 2. Littl. Sect. 557. none ought to attorne but he that is privie and presently to be charged and without such attornment the grant availeth not As if a man be seised of a Mannor which is parcel in demesne and parcel in service if he alien this Mannor to another all that hold of the Alienor as of his Mannor ought to attorne to the Alienee otherwise the services remaine still in the Alienor But if the Lord make a Lease for years or for life of a Mannor and the Frée-holders attorne to the Lessée here if afterwards the reversion of that Mannor be granted the Attornment of the Lessée for years or life shall bind the Frée-holders for by their former Attornment they have put the Attornment into the mouth of the Lessee their Attornment being involved within his So likewise Littl. Sect. 554. if there be Lord and Tenant and the Tenant lets his land to another for life or makes a gift in tail saving the reversion Here if the Lord grants the Seigniory to another he in the reversion ought to attorne to the Grantee and not the Tenant for life or in tail for he is the true Tenant to the Lord and not they c. Also if there be Lord Mesne and Tenant Littl. Sect. 555. and the Lord will grant the Services of the Mesne In that case albeit in the grant he maketh no mention at all of the Mesne yet the Mesne ought to attorn and not the Tenant peravaile because he is the next privie in tenure that ought to be charged c. And therefore there is a diversity to be observed between a rent service and a rent charge or a rent seck for as to a rent service no man as hath been said can attorne Co. ib 311. b. 2. but he that is privie c. So in case of a rent charge it behoveth that the Tenant of the Freehold doth attorn to the Grantee without respect of any privitie And this is the reason that the Disseisor onely in the case of a grant of a rent charge shall attorn because he is Tenant of the Free-hold but in case of a grant of a rent service the Attornment of the Disseisee sufficeth in respect of the privitie And therefore if there be Lord and Tenant by homage fealty and rent and the Tenant is disseised and the Lord grants the rent to another the Disseisee attorneth this is void but if he had granted over this whole Seigniory the attornment had been good And the reason of this diversity is for that when the rent is granted onely it passeth as a rent seck and consequently the Disseisor being Terre-tenant must attorne but when the intire Seigniory is granted then the Disseisee in respect of the privity may attorn c. Littl. §. 557. Co. Inst pars 1. 312. a. 1. 63 If there be Lord and Tenant Attornmenâ— by the perâ— chargeable good and the Tenant let his Tenement to another for life the remainder in Fee and after the Lord grants the services to another c. and the Tenant for life attornes this is good enough for he that is privie and immediately Tenant to the Lord must attorn and that is in this case the Tenant for life And so on the other side if a Seigniory be granted to one for life the remainder to another in Fée the attornment to the Tenant for life is an attornment to him in remainder also because they are privies in estate c. Vide suprà 61. Littl. Sect. 562. 64 If there be Lord and Tenant Attornmenâ— by the reâ—â—oner and the Tenant make a Lease for life saving the reversion Here if the Lord grant the Seigniory to the Tenant for life in Fée in this case he in the reversion ought to attorne to the Tenant for terme of life because he is the Tenant to the Lord in respect of the privity c. Litt. Sect. 568. Co. ib. 316. a. 1. 65 Regularly upon the grant of a reversion the Terre-tenant shall attorn yet if Tenant in Dower or by the Curtesie Attornmenâ— by Dower 〈◊〉 Curtesie grant over his or her estate and afterwards the heir grant over the reversion in respect of the privity the Tenant in Dower or by the Curtesie shall attorn and not the Grantée and likewise by reason thereof they shall be subject to an action of Wast so long as the reversion remaineth in the heir albeit they have granted over their whole estate because so long as the heir kéepeth the reversion they are to be attendant upon him for that their Grantée cannot â—e Tenant in Dower or by the Curtesie c. F. N. B. 55. e. 56. a. f. Littl. Sect. 571. Co. ib. 317. a. 1. 66 If land be let to a man for terme of years Attornmenâ— by Lessee for life or yeaâ—â— good the remainder to another for terme of life reserving to the Lessor a certain rent by year and livery is made to the Lessée for years in this case if the reversioner grant over his reversion attornment made either by the Lessée for years or by the Lessée for life in remainder shall be available to settle the reversion in the Grantée in respect of the privity of those estates which depend one upon another P. 15. Eliz. in Brasbritches case in Co. Ba. per Dyer Littl. Sect. 574. Co. ib. 318 a. 1 2. Co. l. 2.
the remainder to D. in fée A. makes feoffment in fée the Feoffée suffers a common recovery in which B. is vouched and he over the common Vouchée In this case A. is not bound but B. and all the remainders over are barred For albeit by the feoffment of A. all the remainders were discontinued and the estates of B. C. and D. were converted to méer rights and that the remainder could never be remitted before the estate tail in possession were re-continued Yet in case of a common recovery which is the common assurance of the land he that comes in as Vouchée shall be in judgement of Law in in privity of the estate which he ever had although the precedent estate upon which the estate of the Vouchée depended were devested or discontinued c. Privities of estate diversity 92 There are thrée manner of privities Co. l. 3. 22. b. 4. Walkers case viz. 1 In respect of the estate onely 2 Of the contract onely 3 Of the estate and contract together Privity of the estate onely as betwéen the Grantée of the Lessor and the Lessee or if the reversion escheat between the Lord by escheat and the Lessee so also between the Lessor and the Assignee of the Lessee there is privity in estate onely for that there is no contract betwixt them Privity of contract onely which extends onely to the person of the Lessor and the person of the Lessee as when the Lessee assigns over his interest notwithstanding such assignment the privity of the Contract still remains between them as to bring against the Lessee an action of Debt for rent arrear or the like albeit the privity of the estate be removed by the act of the Lessee himself Privity of estate and contract together is between the Lessor and Lessee themselves so long as the estate is continued betwixt them c. Vide Dyer 4. b. 1. 24 H. 8. The like 93 Lord and Tenant the Tenant makes feoffment in fée Co. ib. 23. a. 4. in this case the privity which was between them in estate or in tenure is gone Neverthelesse for the arrearages due as well before as after the feoffment until notice c. the privity betwéen them as to the avowry doth still remain And at the Common Law before the Stat. of Quia emptores terrarum if the Tenant had made a feoffment to hold of the chief Lord the Feoffée by no tender that he could make could compel the Lord to avow upon him but the Lord might still avow upon the Feoffor for that the privity did still remain and the Tenant by his own Act could not change the avowry of the Lord c. Howbeit in the first case if the Lord grant over his Seigniory or if the Feoffor die there the privity as to the avowry is destroyed for that is personal and holds onely between the Lord and the Feoffor themselves in person So also if after the assignment of the lease the Lessor grant over his reversion the Grantée shall not have an action of Debt against the Lessée For the privity of contract as to the action of Debt holds onely betwéen the Lessor and the Lessée themselves in person So in the same case if the Lessée die the Lessor shall not have an action of Debt against his Executors for the privity consists onely between the Lessor and Lessee c. Co. ib. b. 3. 94 If Tenant in Dower Dower Coâ—â—tesie Waste c. or Tenant by the Courtesie assigne over their estate yet privity of action remains between the heir and them so that he shall have an action of Waste against them for Waste done after the assignment But if the heir grant over the reversion then the privity of the Action is destroyed and the Grantee cannot have any action of Waste save onely against the Assignee because between them there is privity of estate but between the Grantee and the Tenant in Dower or Tenant by the Courtesie there is no privity at all Vide suprà 86. Co. ib. b. 4. 95 If the Lessor enter for the condition broken Privity of contract or the Lessee surrender to the Lessor Now is the estate and term determined and yet the Lessor shall have an action of Debt for the arrearages due before the condition broken or the surrender made as appears by F. N. B. 120 122. 30 E. 3. 7. 6 H. 7. 3. b. against the book of 32 Edw. 3. Tit. Barre 262. which is not law And this is in respect of the privity of the Contract which still remains between the Lessor and the Lessee c. Co. ibid. Vagle Glovers case 96 If the Lessee for years assign over his Interest The like and the Lessor by deed indented and enrolled according to the Statute bargain and sell the reversion to another the Bargainee shall not have an action of Debt against the Lessee because there is no privity between them Nevertheless after the assignment the Lessor himself might have an action of Debt against the Lessee himself for rent due after the assignment because the privity of the contract between the Lessor and Lessee doth still continue as long as the Lessor retains the reversion So likewise if an Executor of a Lessee for years assignes over his interest Co. l. 3. 24. a. 1. Overton and Sydhals case an action of Debt lyeth not against him for Rent due after the assignment Also if Lessee for years assigne over his interest and die the Executor shall not be charged for the rent due after his death For by the death of the Lessee the personal privity of the contract as to the action of Debt in both these cases was determined Co. ibid. Brome and Hores case 97 A. le ts to C. 3 acres of land for years rendring rent Privity of estate and coâ—tract the said C. assignes all his estate in one acre to another A. suffers a common recovery to the use of B. in fee who brings an action of Debt against the first Lessee this action will well lie for inasmuch as the Lessee assignes his interest but for part remains possessed of the residue not onely the Lessor but also his Assignee or he that claims under him shall have an action of Debt for the intire rent against the Lessee because there was not onely privity of contract but also privity in estate and contract together and therefore in this case the action runs with the estate So also at the Common law before the Stat. of Quia emptores terrarum if the Tenant had made feoffment in fee of part of the tenancy In that case there was no apportionment but the Lord or his Grantee shall avow upon the Feoffor for that he remains Tenant in respect of the residue Howbeit if he had made feoffment of all then the Grantee of the Lord shall not avow upon him c. Co. ibid. Marrow and Turâ—ins case 98 In debt
c. â—laim within â—â—e years by â—â—urdance â—c 112 Vpon a fine acknowledged of lande according to the Statute of 4 H. 7. cap. 24. Co. lib. 9. 106. a. Margaret Podgers case The Guardian by nurture or in soccage may enter in the name of the infant who hath right to enter into the same lands and this shall vest the estate in the infant without any commandment or assent because there is privity betwéen them So likewise he in the reversion expectant upon an estate for life or years or the Lord of a Tenant by copy c. may well enter within that Act in the name of the Tenant for life Lessée for years or Tenant by Copy and also in their own right as well to save their own Franktenement and Inheritance as also the said particular interests for the Lessor or the Lord are not Strangers because they are privies in estate And as the entries of those particular Tenants shall availe the Lessor and the Lord in those cases in respect of the privity of their estates So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall availe the same Tenants in regard of the privity of their estates and for the salvation of their several rights without any request precedent or assent subsequent for in these cases the Lessor and the Lord pursue the title and claime which they have to the inheritance by lawfull entry within the five years according to the saying contained in the said Act Howbeit he that is a méer stranger and hath no right shall not by his entry within the 5 years in the name of him that right hath avoid such a fine unlesse he have some request or commandment precedent or assent subsequent to authorize him to do it because the said Act hath appropriated the pursuit thereof by way of action or lawfull entry unto him that right hath either by interest or privity or else by request or Commandment precedent or assent subsequent c. Co. l. 10. 43. b. 4. Jennings case 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against Tâ—â— for life ibid. 13. 44. Ass pl. 35. 5 E. 4. 2. And the reason hereof is because the particular estate and the estate in remainder in respect of the privity make but one estate and one warranty may extend to both and therefore the recompence in value shall also enure to both Co. l. 10. 48. a. 3. in Lampets case 114 Albeit the wisedome and policy of the Sages of our Law hath provided that no possibility right title Right and title may be released 〈◊〉 not transfered or thing in action shall be granted or assigned to strangers to avoid multiplicity of suits oppression of the people principally of the Terre-tenants and the subversion of the due and equal execution of Iustice Neverthelesse all rights titles and actions by the prudence and policy of the Law may be released to the Terre-tenant for the same reason of his repose and quiet and for the avoidance of suits and contentions and to the end every one should live in his calling with peace and plenty And therefore a right or title to the Frank-tenement or Inheritance be it in presenti or futuro may be released in five manners 1 To the Tenant of the Frank-tenement in Déed or in Law without any privity 2 To him in remainder 3 To him seised of the reversion without any privity but an estate cannot be enlarged without privity 4 To him that hath right onely in respect of privity As if the Tenant be disseised the Lord may release his Services in respect of the privity and right without any estate 5 In respect of privity onely without right As if Tenant in tail make Feofment in fée the Donée after the Feofment hath not any right and yet in respect of the privity onely the Donor may release unto him the rent and all services saving the fealty So also the Demandant in a precipe may release to to the Vouchée or to the Tenant after feofment c. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case 115 It is a Maxime in the Law that when he Release 〈◊〉 not plead 〈◊〉 where theâ—â— is privity without â—â—â—ing it that is party or privy in estate or interest or he that justifies in the right of him who is party or privy is forced to plead a Déed albeit he that is privy claimes but parcel of the original estate yet in that case he ought to shew the original Déed to the Court As if the King demiseth land to B. for life B. demiseth the same land to C. for years here if C. be impleaded he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate Vide William Poles assise 3 H. 6. 20 21 22. which was in effect this A. by indenture enfeoffes B. of the Mannor of Dale rendring unto A. and his heirs 5 marks rent per annum with clause of distresse A. grants to C. for life xxvi s. viii d. per annum parcel of the same rent who being first seised and then disseised brings an Assise of the said parcel granted to him and because in the same Assise the Plaintife produced not the original indenture of the reservation of the whole rent made to his Grantor Iudgement was given against him albeit he claimed but parcel of the said rent and the reason thereof was in regard William Pole the plaintife was privy in the estate of the rent and claimed by the first grant And in the case above put the reason holds against the stranger in regard the Lessée might have bound the Lessor by Covenant to have shewed forth the Déed when occasion should have required In 35 H. 6. it was agréed that Guardian in Chivalry shall not plead a release made to his Tenant without shewing it forth So in 14 H. 8. 4. It was agréed by all that he who is privy in estate as Feoffée Lessée for years c. or that justifies as servant to him that is privy ought to shew the Déed to the Court which they plead c. And in Debt against the heir he shall not plead a release made to the Executors without shewing it for there is privity betwixt them and with this agrées the 13 E. 2. Monstrans des faits 4â— Howbeit on the other side where a man is a stranger to the Déed and claimeth not the thing comprised in the grant nor any thing out of it nor doth any thing in right of the Grantée as Bailife or Servant there he shall plead the Patent or Déed without shewing it If the Tenant plead the grant of the Lord with
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
and the same law be parcel of the lawes of England as well as of all other Nations and is immutable and that post-nati we of England are united by birth-right in obedience and ligeance which is the true cause of natural subjection by the law of Nature It cleerly followed that Calvin the Plaintiffe in that cause being borne under one ligeance to one and the same King could not be an alien borne And there is great reason as it was then alledged that the law of Nature should direct that Case wherein five natural operations were remarkable 1 The King had the Crowne of England by birth-right being naturally procreated of the bloud Royal of this Realme Secondly Calvin the Plaintiffe was naturalized by procreation and birth-right since the descent of the Crowne of England Thirdly Ligeance and obedience of the subject to the Soveraigne due by the Law of Nature Fourthly Protection and government also due by the Law of Nature Fiftly It was presently said that this Case of Calvin in the opinion of divers was more doubtfull in the beginning but the farther it procéeded the cleerer and stronger it grew and therefore that the doubt did arise from some violent passion and not from any reason grounded upon the Law of Nature quia quantò violentus motus qui sit contra naturam appropinquat ad suum finem tantò debiliores tardiores sunt ejus motus sed naturalis motus quantò magis appropinquat ad suum finem tanto fortiores velociores sunt ejus motus And for as much as in case of an alien Borne you must of necessitie have two federal ligeances to two several persons but in this Case one person alone is head of both and the post-nati and we now joyned in ligeance so that one head which was copula tanquam oculus of that Case And ligeance of the subjects of both Kingdomes being due to their Soveraigne by one and the same Law viz. by the Law of Nature the post-nati cannot be aliens of either Kingdome but ad invicem naturalized subjects of both for Non adversatur diversitas regnorum sed regnantium non patriarum sed patrum patriarum non coronarum sed coronatorum non legum municipalium sed Regum Majestatum c. Mother guardian 1◠If the Grand-father hath issue a Sonne F. N. B. 1◠and the Sonne take Wife and hath issue and die the Mother of the issue shall have the Wardship of the issue which is her owne Sonne and not the Grand-father Albeit the issue may have the Land which ought to descend unto him from the Grand-father that the Mother shall not have it c. No champerty in the Sonne 13 The Statute of Articuli sup cartas cap. 11. provides Pl. Co. 88. b. 3. Partriges case that no Minister or other whatsoever to have part of the things which are in Plea shall undertake businesses which are so in plea yet if the Tenant hanging a percipe quod reddat against him enfeoffe his Sonne and heire apparent this shall be out of the danger of that Statute as it is taken in 6 E. 3. 274. in a writ of Champertie see it also in Fitz. Champertie 10. and the reason of this is for that the Sonne cannot be said a Maintainer of the Father because he is bound to aide and assist his Father when and as often as he may being enjoyned so to do by the Law of nature c. The Son may a bet his mother 14 By the Statute of West 2. cap. 12. it is ordained Pl. Co. ibid. that in an appeale it shall be inquired who were the Abettors and that they shall render damages to the partie acquit Neverthelesse if the heire abet his Mother to bring the appeale although it is within the words of that Statute yet shall he be out of the danger of it And so Herle tooke it in 6 E. 3. 274. For Common Law and reason say that he ought to be aiding to his Mother and may also abet her Considerations to raise uses 15 Affection for the provision of heires male that one shall engender Finch 25. Co. Inst p. 1. 21. b. 1. Brotherly love c. are good consideration to raise an use But long Acquaintance and familiarity are not Howbeit consideration of Mariage is more favoured in Law then any other Maintenance 16 The Sonne may maintaine his Father and one Brother another c. Finch ibid. 17 Brothers or Cofins shall not wage Battel in a writ of right Finch ibid. c. The Wife may relieve her Husband 18 A Statute Finch ibid. that maketh it Felonie to receive or give meat and drink to one that committeth such or such an offence the partie so receiving or giving having knowledge thereof stretched not to a Woman that receiveth or giveth meat and drink to her Husband in such a Case c. Privitie in Bloud strongest 19 You shall finde three manner of Privities spoken of in the Law Co. l. 8. 42. b. 4. 44. a. 4. in Whittinghams Case viz. Privitie in Bloud Privitie in Estate and Privitie in Law Privite in Bloud is that between the Ancestor the Heire Privitie in Estate as between Iointenants Baron and Feme Donor and Donée Lessor and Lessée c. Privies in Law are as when the Law without Bloud or Privitie of Estate casts the Land upon one and makes his entry Congeable as the Lord by escheate the Lord that enters for Mortmaine Lord of a Villein c. Now of these three sorts of privities onely the first which is by bloud and therefore most natural shall take advantage of Infancie Coverture non sanae memoriae c. and not the other two And therefore if an Infant Tenant in Fée-simple make a Feoffement and die his Heire shall enter There is the same Law also of heires special and of heires general and special unto whom the right of entry descends per formam doni or by the Custome as all Lands in Gavelkind Borough-English c. It is otherwise of privies in Estate and in Law And therefore if the Donée in tale within age make feoffment in Fée and die without issue the Donor shall not enter Because there was onely privitie in Estate betwée them and no right accrued to the Donor by the death of the Donée So if there be two Iointenants in Fée within age and the one makes Feoffment in Fée of his moitie and dies the sur-vivor cannot enter by reason the Infancie of his Companion Because by his Feoffment the joyntenure was severed so long as the Feoffment remaines in force and therefore in such Case the Heire of the Feoffor shall have a dum fuit infra aetatem or shall enter into the moitie In like manner Privies in Law as the Lord by escheate c. shall never take advantage of the Privitie of Infancie because they are strangers to it And in that
pars 1. 112. a. 4. 5 To cover in English is tegere in Latin and is so called Contract for that the wife is sub potestate viri and therefore is disabled to contract with any without the consent of her husband who is her head 213 All that she hath is her Husbands Vide Ho. 216. Co. Inst pars 1. 112. a. 4. 1 Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir Bracton lib. 2. cap. 15. And again Nothing the wives Res licet sit propria uxoris vir tamen ejus Custos cum sit caput Mulieris Bract. lib. 5. cap. 25. Co. ibid. 326. a. 4. 2 The husband is tenant in tail the remainder to the wife in tail Discontinuance the husband makes a feoffment in fee In this case the husband by the Common Law did not only discontinue his own estate tail but his wives remainder also because at the time of the feoffment he was seised of his wifes remainder in her right Howbeit after the death of the husband without issue the wife may enter by the Statute of 32 H. 8. 28. Co. ibid. 351. a. 1. 3 If a man taketh to wife a woman seised in fee Inheritance he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a remitter and yet the estate which the husband so gaineth dependeth upon uncertainty and consisteth in privity for if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the felony be committed after issue had Also if the husband be attainted of felony albeit the King thereby gaineth no freehold for that remaineth still in the wife yet the King shall have a pernary of the profits during the Coverture Co. ibid. a. 3. 4 If a man marry a woman possessed of a term for years Chattel real In this case the baron is also possessed thereof in her right and hath power to dispose thereof by grant or demise he may also forfeit it by Outlawry or Attainder because they are gifts in Law Co. ibid. 5 Vpon an Execution against the husband for his own debt The like the Sheriff may sell the term Howbeit the husband cannot dispose thereof by will Also if he make no disposition or forfeiture of it in his life survive the wife he shall have it by gift in Law but in such case if the wife survive him she shall have it again There is the same Law likewise of estates by Statute Merchant Statute Staple Elegit wardships and other chattels real in possession Vide Hob. 3. Yong and Radford The like 6 Chattels real en auter droit Co. ibid. or consisting meerly in action or use the husband shall not have by the intermarriage but Chattels real being of a mixt nature viz. partly in possession and partly in action which happen during the Coverture the husband shall have by the intermarriage if he survive his wife albeit he reduceth them not into possession in her life-time but if the wife survive him she shall have them As if the husband be seised of a rent-service charge or seck in the right of his wife and the rent becomes due during the coverture the wife dieth the husband shall have the arrerages but if the wife survive him she shall have them and not the executors of the husband So it is of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold Vide 50 E. 3. 13. 28 H. 6. 9. 7 H. 7. 2. But the wife shall have it if she survive him and the husband if he survive her Et sic de similibus But if the arrerages had become due or the Church had fallen void before the marriage In such case they were meerly in action before the marriage Co. ibid. b. 1. And therefore the husband should not have them by the Common Law although he survived her And so it is likewise of Reliefs mutatis mutandis But now by the Statute of 32 H. 8. 37. if the husband survive the wife he shall have the arrerages as well incurred before the mariage as after Chattels personal 7 Things in Action as debts by obligation contract or otherwise Co. ibid. the husband shall not have unless he and his wife recover them But the marriage is an absolute gift of all Chattels personal in possession in her own right whether the husband survive the wife or no so if an Estray happen within the Manor of the wife and the husband die before seisure the wife shall have it But after seisure by the husband the property vesteth immediatly in him and if he die his executors shall have it Howbeit as to personal goods there is a diversity betwéen a property in personal goods as is aforesaid and a bare possession for if personal goods be bailed to a feme or if she find goods or if goods come to her hand as Executrix to a Bailiff and then she take a husband this bare possession is not given to the husband yet in such case the Action of detinue must be brought against husband and wife as regularly in all other actions against the wife it ought to be Coâ—fi mation 8 If a man let land to two men to hold the one moity to the one for life and the other moity to the other for his life Co. Inst pars 1. 299. b 1. and the lessor confirm the estate to them both in the land to hold to them and to their heirs they are tenants in common of the Inheritance for regularly the confirmation shall enure according to the quality and nature of the estate which it doth enlarge and increase But if such a lease for life be made to husband and wife by several moities and the lessor confirm their estate in the land to hold to them and their heirs this confirmation as to the moity of the husband enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are Iointenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation Feme Executor 9 A feme covert cannot make an executor without the assent of her husband Co. l. 4. 51. b. 2. Andrew Ognell and the administration of her goods of right appertains to her husband Replevin 10 If the beasts of a feme sole be taken and after she takes a Baron F. N. B. 69. k the Baron alone may sue a Replevin Trin. 33 E. 3. Obligation 11 If a feme sole be bound in an obligation and take baron F. N. B. 121. c. and after dies the baron shall not be charged therewith if recovery thereof were not had against him
tenant shall recover against the heire of the seisin of his mother viz. out of the residue of his mothers lands so much as the assets afterwards descended shall amount unto Here albeit at the making of the said Act being in 6 E. 1. there were no entailed lands for all Inheritance was then viz. before Westm 2. being 13 E. 1. fée simple absolute or conditional yet entailed lands are since taken to be within the equitie of the said Act of Glocester but not to retaine or recover as in case of fée simple lands the lands entailed but onely the lands which should so descend because otherwise there would be occasion of new suits and contention which would be inconvenient for if the tenant after assets descended might retaine or recover the lands entailed then if the assets were aliened the issues inheritable to the estate taile might by writ of Formedon in Descender recover the entailed lands againe which would beget a new suit and no way answer the intention of the said Act being indeed a good provision for fée simple lands but not for lands entailed without such a Construction by equity as aforesaid And therefore in case of entailed lands so aliened with warrantie the tenant shall have a Scire facias out of the rolles of the Iustices before whom the suit depends to recover the lands descended according to the provision of the said Act of Glocester which prevents the aforesaid inconvenience and in just and proportionable equity agrées with the case of Fée simple lands and the Intention of the same Act. Vide infrà 178. 22. and 38. 5. Interpretation of statutes 10 For the sure and true interpretation of all statutes in general be they penal or beneficial Co. l. 3. 7. b. 3. in Heydons case restrictive or inlarging of the Common Law four things are to be considered 1 What the Common Law was before the making of the Statute 2 What was the mischief and defect for which the Common Law did not provide 3 What remedie the Parliament hath resolved and appointed to cure that disease of the Common-wealth 4 The true reason of the remedie And then it is alwayes the office of the Iudges to make such construction as may represse the mischief and advance the remedie and also to suppresse such subtile inventions and evasions as may continue the mischief pro privato commodo and to adde force and life to the cure and remedie according to the true intention of the makers of the Act pro bono publico And upon this ground in Heydons case in the 3 Report the statute of 31 H. 8. Co. l. 3. 8. a. 3. cap. 13. of Monasteries was by all the Barons of the Exchequer adjudged by the general words thereof to extend to Copihold or Customarie estates and by them this Rule was then also agréed That when an Act of Parliament alters the service tenure interest of the land or other thing in prejudice of the Lord or of the Custome of the Mannor or in prejudice of the tenant there the general words of such an Act shall not extend to Copiholds but when the Act is generally made for the common good and no prejudice may accrue by reason of the alteration of any interest service tenure or custome of the Mannor In such case many times Copihold and Customarie estates are within the general purview of such Acts. 16 Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est Co. Inst 1. 147 a. Co. l. 7. 24. a. Buts case 1 If a rent be granted out of the Mannor of Dale Rent and the grantor grant over that if the rent be behind the grantée shall distraine for the same in the Mannor of Sale this is no grant of rent only but a penaltie in the Mannor of Sale one reason thereof is because the Law néeds not to make construction that this shall amount to a grant of a rent for here the rent is expresly granted to be issuing out of the Mannor of Dale and the parties have expresly limited out of what land the rent shall issue and upon what land the distresse shall be taken and the Law will not make an exposition against the expresse words and intention of the parties when this way stands with the Rule of Law Co. l. 2 55. a. Bucklers c. se 2 A grants land to B. Habendum tenementa praedicta from Christmas next for life Here this grant is void Grant in futuro for an estate of franktenement cannot commence in futuro and the Law will make construction upon the whole grant And therefore albeit the habendum be void and so in effect is no habendum and thereupon the estate should passe by the premisses as in case of repugnancie or the like yet here no estate shall passe by implication of Law against the expresse limitation of the partie although his limitation be void Co. l. 5. 118. Edriches case 3 A seised of Land in fée Rent grants a rent out of it with clause of distresse to B. for the life of C. and dies the heire lets the land thus charged to D. for life the remainder to E. in fée the rent is behind for divers yeares in the life of D. who dies and also C. B. distrains him in the remainder for all the arrearages incurred in the life of D. In this case he in the remainder shall be charged with them by the last branch of the Statute of 32 H. 8. 37. by which an action of debt is given to the tenant pur auter vie after the death of Cesluy que vie against the tenant in demesne who ought to have paid the rent when it was first due and against his executors and administrators and also that he shall distraine for the same arrearages upon such lands c. out of which the said rents c. are issuing in such manner and forme as he ought or might have done if Cesty que vie had been alive Here I say the latter part of this branch doth expresly charge him in the remainder with the payment of the arrearages And the Iudges in that case said that they ought not to make any interpretation against the expresse letter of the Statute for nothing can so well expresse the intent of the makers of an Act as the direct words themselves for index animi sermo and it will be dangerous to give libertie to make construction in any case again the the expresse words when the intent of the makers appeares not to the contrarie and when no inconvenience may happen upon it And therefore in such cases A verbis legis non est recedendum Devise 4 Land was devised to A. for life Co. l. 6. 6. b. Wildes case the remainder to B. and the heires of his bodie the remainder to C. and his wife and after their discease to their children C. and his wife having
paramount but never to recover pro rata against her by force of the warranty in Law upon the partition for by her alienation the unitas juris that was betwixt them is severed and she hath dismissed her selfe to have any part of the land as parcener and as parcener she must recover pro rata upon the warranty in law or not at all Co. Inst pars 1 2. b. 2. 68 If an alien purchase lands Alien Merchant c. upon an office found the King shall have them yet being a Merchant he may take an house and kéep it so long as he useth commerce and for that purpose but when he leaves so to do dies or departs the Realm the King shall have them Dyer 13. 61. 28 H. 8. 69 If a man make his executors and enter into religion A Monk dereigned and after is dereigned In this case he shall have againe all his goods which his executors have not spent for cessante causa c. Dyer 57. b. 1. 25 H. 8. 70 Cestuy que use for terme of life since the Stat. of R. 3. makes a lease for the term of the life of the lessor and dies In this case the estate of the Lessée is determined Cestuy que use and he is after the death of Cestuy que use onely tenant at sufferance The Lo. Zouches case 20 Remoto impedimento emergit actio contra Co. Inst pars 1 128. b. 2. 1 If the defendant plead an outlawry in the Plaintiffe Out lawry in disability of his person and the Plaintiff after that plea pleaded purchase a charter of Pardon because the charter hath restored him to the law the defendant shall answer So note the disability abateth not the writ but dis-inableth the Plaintiff until he obtaineth a charter of Pardon Co. ibid. 133. b. 3. 2 Excommunication may be pleaded in disability of the person Excommunication yet if the demandant or Plaintiff purchase letters of absolution and shew them to the Court he may have a re-summons or re-attachment upon his original according to the nature of his writ 9 H. 7. 27. Co. ibid. 238. b. 2. 3 If a disseisor make a gift in taile Entry revived and the donée hath issue and dieth seised now is the entry of the disseisée taken away but if the issue die without issue so as the estate tail which descended is spent the entry of the disseisee is revived and he may enter upon him in the reversion or remainder 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyle 34 H. 6. 11. a. per Curiam Co. ibid. 3 If there be grandfather father and sonne disseiseth one and enfeoffeth the grandfather who dieth seised The like and the land discendeth to the father now is the entry of the disseisée taken away but if the father dieth seised and the land discendeth to the sonne here is the entry of the disseisée revived and he may enter upon the sonne who shall take no advantage of the discent because he did the wrong unto the disseisée Co. ibid. 4 If a disseisor make a Lease to an Infant for life and he is disseised and a descent cast the Infant enters The like the entry of the disseisée is lawfull upon him Co. ibid 245 b. 1. 5 If the mulier entreth upon the Bastard Bastard Mulier and the Bastard recovereth the land in an assize against the mulier now is the interruption avoided and if the Bastard die seised this shall barre the mulier Littl. § 407. 408. Co. ibid. 248. 6 If I am disseised by an infant within age Entry revived who aliens to another in fée and the alienée dies seised and the tenements descend to his heire the Infant being still within age here my entry is taken away way but if the Infant within age enter upon the heire that is in by descent as he well may because the descent was cast during his nonage then may I well enter upon the desseisor because the infants entry hath defeated that descent The like 7 If I be disseised and the disseisor makes a feofment in fée upon condition and the feoffée dies seised of that estate Here Littl. § 409. Co. ibid. 248. I cannot enter upon the heire of the feoffée But if the condition be broken so that the feoffor doth therefore enter upon the heire Now may I well enter because by the entry of the feoffor the descent was utterly defeated The like 8 If a feme inheritrix take baron and they have a sonne Littl § 636. Co. ibid. 338. and the baron die and she takes another baron and the second baron lets the land that he hath in right of his wife to another for terme of his life and after the feme dies and then the tenant for life surrenders his estate to the second baron Littleton makes a Quaere whether the issue of the feme may enter during the life of the tenant for life but after his death he holds it cléer he may and my Lord Cook proves it plainly that he may also enter upon the baron immediately after the surrender Collateral and lineal warranty 9 A collateral warranty doth not give a right Co. ibid. 372. a. 1. Littl. § 708. but onely bindeth a right so long as the same continueth and therefore if the collateral warranty be determined removed or defeated the right is again revived as in this example If tenant in tail hath issue thrée sonnes and discontinue the taile in fée and the second sonne releaseth by his déed to the discontinuée binding himself and his heires with warranty c. and after the tenant in taile dies and the second sonne dies without issue here the eldest sonne is barred to have any recovery by writ of Formedon because the warranty of the second brother is collaterall unto him in as much as he can by no meanes convey unto himself by force of the entaile any descent by that brother and therefore as to the eldest brother it is collaterall warranty But in this case if the eldest brother die without issue then may the youngest brother well have his writ de Formedon in descender and shall recover the land because the warranty of the second brother is lineall to the youngest sonne in as much as he might have conveyed unto himselfe by possibility the estate by his second brother in case he had survived the eldest c The like 10 If tenant in taile lets lands to a man for term of his life Littl. § 738. Co. ibid. 387. the remainder to another in fée and a collaterall ancestor confirmes the estate of the tenant for terme of life and binds himselfe and his heirs to warranty for the terme of the life of the tenant for life and dies and the tenant in taile hath issue and dies in this case the issue is barred of his
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
nec è converso for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other Condition precedent and subsequent 36 In all cases when an interest or estate commenceth upon a Condition precedent Co. l. 7. 10. a. 1. Ughtreds case be the Condition or Act to be performed by the Plaintife or Defendant or any other or be the condition in the affirmative or the negative there the Plaintife ought to shew it in his Count and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed but it is otherwise when the interest or estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto on Condition subsequent be the Condition or Act to be performed by the Plaintife or Defendant or by any other and be the Condition in the affirmative or the negative there the Plaintife may count generally without shewing the performance of it and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and is for his advantage but none shall be compelled to produce that which makes against him Vide infra 25. 20. A Copiholder may lop trees 37 The Lord of a Copihold Mannor Co. l. 8. 63. Swaynes case within which the Copiholders might by custome lop the timber trées for estovers and necessary repaire of fences c. makes a Lease thereof to A. for 21 years excepting the timber trées A Copihold tenant having lands upon which such timber grew surrendred his estate to another who was admitted by A. the Lessée of the Mannor and lops the trées for necessary repair of fences Now the question was whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exception Co. l. 4. 21. a Browns case fol. 23. b Clark and Pennyfathers case fol. 24. a. P. 26. Eliz. 29. b. 2. Buntings case had power to lop them because Nemo potest plus juris ad alium transferre quám ipse habet And it was resolved that he might lawfully lop them because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Mannor for the Lord is but as it were an Instrument to convey the grant of the Copihold but the Custome of the Mannor after the grant is made is that which establisheth and makes it firme to the Grantée So that although the grant be new yet the title of the Copiholder to the profit of the trées is ancient and so ancient that by force of the Custome it excéeds the memory of man Vide Co. 4. 27. b. Taverners case 28 b. Westicks case Vide 30. 22 23. Co. l. 9. 81. Agnes Gores case 38 Gore the husband of Agnes being sick It may be murder though not intended Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband and the 18 of May gives part thereof to her husband who thereupon became very sicke Roper also and another eating part thereof became very sick at last Martin being taxed for making the Electuary in that manner the 21 of May stirres it and also eats part thereof and dies the next day And it was resolved by all the Iudges of England that this was murder in Agnes and that this case did not differ from Sanders case in the Commentaries Plowd 474. although Martin by stirring it made the poison more forcible for the stirring c. without putting in the poison could not be the cause of his death and the Law joynes the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event which insued thereupon viz. the death of Martin for the putting in of the poison was the cause and the poisoning and death of Martin was the event Quià eventus est qui ex causa sequitur dicuntur eventus quià ex causis eveniunt So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar stirres it drinks it and dies this is murder in A. It is otherwise where Rats-bane is layd with an intention to kill rats and one takes it eats it and dies for there was no felonious intent c. Co. l. 9. 85. a. Connyes case 39 Vpon grant of a Mannor An Infant shal do his services c. attornement of an infant being tenant of the same Mannor is good and in a Per quae servitia against an infant that hath the tenancy by descent he shall not have his age because at first the Lord departed with the land in consideration that the tenant should hold of him performe services pay a yearely rent c. and the tenant is in Law called tenant paravaile because the Law presumes that he hath benefit and availe above the services which he doth and the rent which he payes to the Lord And therefore it is against the reason and purpose of the creation of the tenure that when the heire hath the tenancy paravaile by descent he should not pay the annual rent c. which was reserved upon the Creation of the tenancy And this is the reason that the heire of the tenant who hath the tenancy by descent may be distreined for the rent c. arrere during the minority and shall not therefore have his age c. Co. l. 9. 113. a. Maryes case 40 For every féeding of the Cattle of a stranger upon a Common Trespass for common contrà the Commoner shall not have an Assise nor action upon the case as his case lies but the depasturing ought to be such per quòd le Commoner c. Common de pasture c. for his Cattle c. habere non potuit sed proficium suuminde per totum idem tempus amisit c. So that if the trespasse be so little that he hath not any losse but that still sufficient remaines for him to depasture his cattle In that case the Commonor shall not take the Strangers Cattle damage fesant neither shall he have any action for it but the tenant of the soile may in that case have an action So if a servant be beaten the Master shall not have an action for that battery except that by reason thereof he loseth his servants service but the servant for every slight battery may have an action and the cause of this diversity is for that the Master receiveth no damage by the personal battery of his servant but by reason of a per quod per quod
therefore if Tenant in taile seised of divisable lands alien them in fée to his brother who afterwards deviseth the same lands to another with warranty against him and his heires and dies without issue This warranty shall not barre the heire in taile of his Formedon because this warranty did not descend to the issue in taile for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time neither yet could he warrant the Lands in his life time in as much as the devise could not take effect till after his death And now because the Vncle in his life time was not bound to warranty such warranty cannot descend from him to the issue in tail c. For nothing can descend from an Ancestor to his heire but that which was first in the Ancestor So likewise if a man make feoffment in fée and bind his heires to Warranty this is void as to the heir because the Ancestor himself was not bound c. Tenant in tail cannot grant any remainder of estate 10 He in the remainde in taile bargains and sels his land Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease and all his estate c. by indenture inrolled c. to I. S and his heirs male c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. c. Here the remainder to the Queen is void for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen because a remainder is but a remnant of the estate of the Grantor and the Queen cannot have any such remnant of estate when he had granted away all his estate before to to I. S. And therefore it was agréed Hill 35. El. in Blithemans case that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life and after his death to the use of his eldest sonne in taile and after this Covenant the Covenantor takes feme and dies in this case the feme shall be endowed for when tenant in taile hath limited the use to himselfe for his own life he cannot limit any remainder over because an estate for his own life is as long as he himselfe can limit by the Law and therefore the limitation of the remainder is void and by consequent the Dower good c. Entty taken away from issue in tail 11 The Baron seised to the use of himself and his wife for life Co. l. 3. 61. a. 3. Lincolne Colledge case and the heires of the body of the Baron dies the issue in the life of the feme then Tenant of the Frank-tenement for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alleadged 4 H. 8. suffers a common rocovery with single voucher by agréement that the recoverors shall enfeoffe Litster and others to divers uses and that the feme shall release to them with Warranty which was done accordingly 11 H. 8. the feme dies after that the issue dies and afterwards his issue in the third degrée enters The question was whether the collaterall warranty shall bind for the recovery came not in question because by the pleading it shall be intended that the issue was seised by another Title then the intaile and so the single voucher not material or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved that the warranty shall bind the Demandant and was not void by that Statute because when the first issue by the common recovery had against him by his own agréement had disabled himselfe to take benefit of the forfeiture given by the Statute after his death another issue claiming from him shall not take benefit of it for if the Ancestor being in esse at the time of the forfeiture could not enter much lesse shall any person which was not in rerum natura nor had the immediate interest Title or Inheritance at the time of the forfeiture ever enter or take benefit of that Act And although there was error in the recovery yet the Warranty of the feme shall barre the first issue of his writ of Error because by his own act he hath barred himselfe of the entry which the Statute prescribes and the like in effect was adjudged in Sir Geo. Brownes case Co. ibid. 51. b. ◠where the issue in tail in the life of his mother having the reversion in fée levies a fine without proclamations for there the issue against his own fine could not enter although it was erroneous Copihod Custome 12 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. 1. Murrel and Smiths case that by the Severance of the Inheritance of the Copihold from the Mannor the Copihold is not destroyed for in as much as the Lord himselfe cannot out the Copiholder no more shall any claiming under him have power to do it because Nemo potest plus juris c. A release by bail not good 13 In debt Marshall was baile for the Defendant Co. l. 5. 70. b. Hoes case Co. Inst pars 1 265. b. 2. and before Iudgement the Plaintife releaseth to Marshall all actions duties and demands and after judgement was given against the Defendant upon whose default Scire facias issued out against Marshall who pleads the said general release but it was adjudged that the release was not effectual to barre the Plaintife because the words of the baile being conditional viz. Si contigit Defend c. non solvere c. there cannot be by the baile any present and certaine duty before judgement given for before that it cannot be known to what summe the debt and damages will amount neither is he that bailes at first bound in any certaine summe but his recognisance being general it shall be reduced to a certainty by the Iudgement A release not good 14 In Trin. 4. El. Rot. 1207. in Com. Banco Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a release of all actions suits and quarrels a covenant before the breaking of it is not released because there is not any cause of action nor any certaine duty before the breaking of it c. Payment of rent by a termor no seisin 15 A. deviseth rent to B. for life out of the Mannor of D. and deviseth the Mannor it selfe to C. for yeares Co. l. 6. 57. a. 4. Bredimans Case C. enters and payes the rent during the term but after the term the Terre-tenant refuseth to pay the rent whereupon B. brings an Assise And in this case it was adjudged by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the
of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding the Lessor shall enter for the forfeiture because the Lessor for life had a Frank-tenement in him whereupon the Livery might work but if Lessée for yeares make a feoffment in fée and a Letter of Attorney to the Lessor to make Livery and he make Livery accordingly this Livery shall bind the Lessor and shall not be avoided by him for the Lessor cannot in this case make Livery as Attorney to the Lessée because the Lessée had no Freehold whereof to make Livery but all the Fréehold was in the Lessor Dyer 5. b. 1. 26 H. 8. 27 A man seised of devisable land before the Statute of Uses Rent devisable makes a Lease for yeares rendring rent and deviseth that rent to a stranger and dies and the stranger is seised of the rent and dies In this case the executors and not the heire of the devisée shall have the rent because the rent was but a Chattel in the devisée Dyer 90. b. 8. 1 Mar. 28 If there be Lessor and Lessée Trees sold by the Lessor and the Lessor sells all his trées growing in such a close Here nothing passeth to the Vendée for albeit the Lessor hath a general property in them yet the special property thereof is in the Lessée because the wood and trees are parcel of the Lease who shall by force of his Lease have the shade and fruit thereof as also the branches and loppings for fuel and mending of fences And therefore if the Lessor fell trees without the licence or will of the Lessee a good action of trespasse lyeth for the Lessée against him So likewise in 5 H. 4. 59. the heire in Chivalry being in ward fells trées in the land in ward and the Guardian brings trespasse against him and he pleads the special matter in barre Sed non allocatnr per curiam c. 25 Things are construed according to that which was the beginning of them Vide Max. 63. 21. Priviledge of tenant by the courtesie 1 Tenants after possibility of issue extinct Co. Inst pars 1 28. a. 2. although upon the matter he be but a Tenant for life yet hath he 8 priviledges incident to his estate which the Law alloweth not to a bare Tenant for life in respect of the inheritance which was once in him which priviledges you may see Co. In. part 1. 28. a. 2. The like 2 If a woman Tenant in taile general taketh an husband and hath issue which issue dieth and the wife dieth also without any other issue Co. ibid. 30. a. 1 there albeit the estate in tail be determined yet shall the hushand be Tenant by the Curtesie because he was intitled to be Tenant per Legem Angliae at first upon having the issue before the estate in taile was spent And although in this case the estate be not consummate untill the death of the wife yet it hath such a beginning after issue had in the life of the wife as is respected in Law for divers purposes for 1 After issue had he shall do homage alone and is become Tenant to the Lord and the Avowry shall be made onely upon the husband in the life of the wife 2 If after issue a 34 E. 2. Cui in vita 13. 2 E. 2. Cui in vita 26. 10 E. 3. 12. Dyer 21. El. 3â—3 29 E. 3. 27. the husband maketh a feofment in fée and the wife dieth the feoffée shall hold it during the life of the husband and the heire of the wife shall not during his life recover it in a sur cui in vita for it could not be a forfeiture because the estate at the time of the feofment was an estate of tenancy by the Curtesie initiate and not consummate And it is adjudged in 29 E. 3. that the Tenant by the Curtesie cannot claime by a Devise and waive the estate of his tenancy by the Curtesie because saith the Book the Fréehold commenced in him before the Devise for terme of his life A Voyage Royal. 3 When the King makes Voyage Royal into Scotland to subdue the Scots Co. ibid. 71. a. 4. Littl. § 96. Co. ibid. 70. a. 1 Co. ibid. 108. a. 4. Vide infrà 10. c. M. 43. 12. Co. ibid. 164. a. 4. c Bracton l. 1. 66. Britt cap. 71. Fleta l. 5. c. 9. 6. c. 47. the Law accompteth the beginning of the forty dayes to be after the King entreth into the forreigne Nation for then the Warre beginneth and till he come there he and his host are said to go towards the Warre and no military service is to be done till the King and his host come thither Tenure in Capite 4 If one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of Treason he holdeth of the person of the King but not in Capite because the original tenure was not created by the King 3 E. 3. B. tenures 94. 30 H. 8. 43. 28 H. 8. B. livery 57 c. Descent in Capita stirpes 5 In case of Coparceners sometimes the descent is in Stirpes viz. to Stocks and Roots and sometimes in Capita to Heads As if a man hath issue two daughters and dieth this descent is in Capita viz. that each daughter shall inherit alike as Littleton saith Sect. 241. But if a man hath issue two daughters and the eldest daughter hath issue thrée daughters and the youngest but one daughter All those four shall inherit but the daughter of the youngest shall have as much as the thrée daughters of the eldest Ratione Stirpium in respect of their mothers estate from which theirs took beginning and not Ratione Capitum for in judgement of Law every daughter hath a seveaal Stock or Root So if a man hath issue two daughters and the eldest hath issue divers sonnes and divers daughters and the youngest hath issue divers daughters the eldest sonne of the eldest daughter shall onely inherit and all the daughters of the youngest for this also is not in Capita but in Stirpes and in this case the eldest sonne is Coparcener with the daughters of the youngest and shall have one moity viz. his mothers part So that men descending of daughters may be Coparceners as well as women and shall joyntly implead and be impleaded c. Vide 26. 2. Littl. § 2â—2 Co. ibid. 178. b. 2. 6 The Lands in Frank-mariage to be put into Hotchpot Frankmariage Hotchpot and the Lands in Fée simple which descend ought to move from one and the same person for if they moved from several Ancestors they cannot be put into Hotchpot c. Co. ibid. 187. a. 4. 39 H. 6. 45. 21 R. 2. judg 63. M. 33. E. 3. 7 If Lands be given to
Finch 11. Tenant in tail in remainder cannot falsifie a recovery 7 A. is Tenant in taile remainder to B. in taile Co. lib. 1. 62. Caples case B. grants a rent charge A. suffers a common recovery and dies without issue Here the Grantée of the rent shall not have it because he cannot falsifie the recovery being suffered by one that could not be chargable with the rent for if B. in the remainder cannot do it may lesse the Grantée that claimes under B. An Infant not remitted 8 If a man by Covin disseise the Discontinuée of Tenant in taile with an intent to enfeoffe the issue in taile being within age 19 H. 8. 8. per six Justices Co l. 3. 78. a. Fermors case although the Infant was not conscious of the Covin c. yet shall he not be remitted because the Infant that is in by him who acted the Covin shall be in the same plight with him that performed the covenous act A Copihold a firm estate 9 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. Murrel and Smiths case that by the severance of the inheritance of the Copihold from the Mannor the Copihold it selfe is not destroyed For in as much as the Lord himselfe cannot out the Copiholder much lesse shall he that claimes under him do it Executors shal lose arrerages 10 If the sonne be Lord and the father Tenant by certaine rent Co. l. 4. 49. a. Ognels case the rent is arreare the Tenant dies and the tenancie descends to the sonne in this case if the sonne also dies the executors of the sonne shall not have an action of debt for the arrearages incurred in the sonnes life because the sonne himselfe by no possibility could have such an action for that the tenure was altogether in the realty and the Tenant could not be charged in any personal action for those arrearages The like 11 If A. hath rent service or rent charge in fée or for life Co. ibid. 50. b. 4 Co. l. 5. 12. b. 1. Sanders case and the rent is arreare and after A. grants over the rent to another and the Tenant attorns and after A. dies in this case the executors of A shall not recover the arrearages by force of the Statute of 32 H. 8. cap. 27. For by the grant the over arrearages were lost and were not due to the Testator at the time of his death and the Statute saith the executors shall recover them c. in as large and ample manner as the said Testator might or ought to have recovered them c. Waste in a Cole-mine 12 A. demiseth a lease to B. for yeares Co. l. 5. 113. a. Mallories case Co. Inst pars 1. 321. b. 1. M. 36 37 El. in Co. B. Rot. 420. Owseys case wherein there is a Cole Mine not opened Here if B. open the Mine it is wast And therefore if after the Mine is open B. assigne his terme to C. and C. taketh the benefit of the Mine C. also committeth wast albeit the Mine was open before for Derivata potestas non potest esse major primitiva Grant of a reversion not good without attornment 13 If a Lease for life or years be made rendring rent c. and after the reversion is granted to B. by fine and before attornment B. disseiseth or outs the Lessée and enfeoffes C. the Lessée re-enters this shall not amount to an attornment in Law to make privity to C. and so to enable him to distraine for the rent for he shall not be in better estate than his Feoffor was it is otherwise if the Lessée had expressely attorned to the Feoffée Co. l. 6. 68. Sir Moile Finches case Demise durante viduitale 14 If a Feme seised of lands durante viduitate Co. 5. 116. a. Olands case make a Lease for yeares and the Lessée sow the land and afterwards the Feme that made the Lease takes Baron Here the Lessée shall not have the graine for although his estate be determined by the act of a stranger yet he shall not be in better case than his Lessor from whom he derives his interest Tenant in tail cannot demise longer then the estate lasts 15 If Tenant in taile make a Lease for lives according to the Statute of 32 Hen. 8. 28. and after die without issue Co. l. 8. 34. a. Pains case per Curiam this Lease being derived out of the estate tail shall not continue longer than the estate taile against the opinion in Dyer 33 Hen. 8. fol. 48. For Cessante statu primitivo cessat derivativus Co. 8. 135. b. Sir John Nedhams case 16 The Ordinary hath not power to give authority to another to sell the goods of the dead Ordinary cannot sell because he himselfe hath not any such authority 9 El. Dyer 255. Co. l. 9. 39. a. Hensloes case Co. 9. 76. b. 2. Combes case 17 A Copiholder may surrender by Attorney A Copihold may be surrendred by attorney but then that Attorney must pursue the manner and form of the surrender in all points according to the Custome as the Copiholder himselfe ought to do as if the surrender ought to be done by the rod or by any other thing or in any other manner the Attorney ought to observe it accordingly for his power shall not excéed the power of the Copiholder that gives him his authority Co. l. 11. 87. a. 4 The case of Monopolies 18 In the 11 Report The grant of a Monopoly void one reason why the grant of the Monopolie of making Cards to Edward Darcie was adjudged void was because he had no skil to make them and therefore albeit the grant extended to his Deputies and that he might appoint Deputies which might be expert yet if the Grantée himselfe be unexpert and so the grant void as to him he shall not make any Deputy to supply his place because Quod per me non possum nec per alium 27 Things are dissolved as they be contracted Unum quodque dissolvitur eo modo quo colligatum est Nihil tam conveniens naturali aequitati unumquodque dissolvi eo ligamine quo ligatum est Bract. l. 5. 413. Fleta l. 2. c. 12. Co. Inst pars 1 54. b. 1. Inst 2. part W. 2. cap. 24. 1 Bracton saith Writs not changed without Act of Parliament that writs original both formed and of course which are extant in the Register had their first authority by act of Parliament and therefore without an act of Parliament they cannot be altered or changed which is proved by Westm 2. cap. 24. whereby remedie is provided in many cases Bractons words are these Sunt quaedam brevia formata in suis casibus quaedam de cursu quae concilio totius regni sunt approbata quae quidem mutari non possunt absque eorundem
their heirs because the tenancie was originally charged with the Condition which is paramount the descent for the Condition remaines in the same essence that it was in at the time of the creation of it and the estate of the Tenant is conditional in whose hands soever the tenancie comes c. So it is likewise if such a Tenant upon Condition be disseised and the Disseisor die thereof seised and the land descends to the heire of the Disseisor In this case albeit the entry of the Tenant upon Condition that was disseised is taken away yet if the Condition be broken then may the Feoffor or Donor that made the estate upon Condition or their heires enter Causa qua suprà and also for that a Condition cannot be devested or put out of possession as Lands and Tenements may â—ower paraâ—ount a desâ—nt 13 If a Disseisor die seised and his heire enter who endoweth Co. Inst pars 1 240. b. 4. Littl. § 393. the Feme of the Disseisor of the third part of the Tenements c. In this case as to this third part which is so assigned to the Feme in Dower presently after the Feme entreth and hath the possession of the same third part the Disseisee may lawfully enter upon the possession of the Feme into the same third part because albeit the heire entred yet when the wife is endowed she shall not be in by the heir but immediately by her husband being the Disseisor for her life and that by a Title paramount the dying seised and dscent And therefore in judgement of Law the descent as to the Free-hold and Possession which the heire had is taken away by the endowment for that the Law adjudgeth no mean seisin between the husband and the wife â—wer paraâ—unt the â—â—or title 14 A man makes a gift in taile reserving twenty shillings rent Co. Inst pars 1 241. a. 4. and dies the Donee takes wife and dieth without issue the heire of the Donor entreth and endoweth the wife Here the wife is not in by the heir of the Donor but by title paramount of the estate of her husband And therefore albeit the estate taile be spent and the rent reserved thereupon determined yet after she is endowed she shall be attendant to the heire in respect of the said rent 15 If there be Lord Mesne and Tenant and the Mesne grant by Fine the Services of his Tenant to another in fée Co. Inst pars 1 321. b. 1. Littl. § 583. Co. l. 5. 113. a. Mallories case Temps E. 2. Attorn 18. 39. H. 6. 38. per Prisot The Lord Paramount may distrain without attornment after the Grantee dies without heir here the Services of the Mesnalty shall escheat to the Lord paramount and in this case if the services of the Mesnalty be afterwards behind the Lord Paramount shall distraine the Tenant although the Tenant did never attorne because the Lord Paramount commeth to the Mesnalty by a Seigniory paramount and therefore there needs no Attornement As if there be Lessee for life of a Mannor and he surrenders his estate to the Lessor there needeth no Attornement of the Tenants because the Lessor is in by a Title Paramount Co. Inst pars 1 327. b. 4. 16 A Discontinuance made by the husband Discontinuance of the wives land takes not away the entâ—â— of him that hath a title paramount did take away the entry onely of the wife and her heires by the Common Law and not of any other which claimed by Title Paramount above the Discontinuance as if lands had been given to the husband and wife and to a third person and to their heires and the husband had made a Feofment in fee this had been a Discontinuance of the one moity and a Disseisin of the other moity And if the husband had died and then the wife had died the Survivour should have entred into the whole for he claimed not under the Discontinuance but by Title Paramount from the first Feoffor And séeing the right by Law doth survive the Law doth give him a remedie to take advantage thereof by entry for other remedy for that moity he could not have Co. Inst pars 1. 338. b. 2. 17 If a Bishop be seised of a rent charge in fée A title paramount avoid rent and charges the Tenant of the land enfeoffes the Bishop and his Successors the Lord enters for the Mortmaine he shall hold it discharged of the rent for the entry for the Mortmaine affirmeth the Alienation in Mortmaine and the Lord claimeth under his estate But if Tenant for life grant a rent in fée and after enfeoffe the Grantée and the Lessor enter for the forfeiture the rent is revived because the Lessor doth claime above the Feofment Co. Inst pars 1 351. a. 3. 18 If a Feme Sole possest of a Lease for yeares takes Baron Chattels real returns to the feme if she survived who deviseth it by his Will or disposeth not of it at all in his life time the Feme if she survive shall have it againe because her estate is paramount the interest of the Executor And there is the same reason of estates by Statute Merchant Statute Staple Elegit Wardships and other Chattels real in possession So likewise if the husband charge the Chattel real of his wife 7 H. 6. 2. it shall not bind the wife if she survive him causa qua supra Co. Inst pars 1 385. a. 3. 19 If lands he given to two brethren in Fée simple Title paramount by â—â—â—vivorship with a warranty to the eldest and his heires the eldest dieth without issue the Survivour albeit he be heire to him yet shall he neither vouch nor rebate nor have a Warrantia cartae because his Title to the land is by relation above the fall of the Warranty and he commeth not under the estate of him to whom the Warranty is made Co. l. 2 68. a. 1. Tookers case 20 If the Lessée for life or yeares attorne upon any condition subsequent the condition is void Attornment paramount condition for if the reversion or remainder be once vested it cannot be devested by any condition annexed to the Attornement because the Grantée thereof is not in by the Lessée but by the Grantor but if one Attorn upon a condition precedent there it is no Attornement before the condition be performed Co. l 3. 83. a. 3 Vpton and Bassets case in Twines case 21 In Upton and Bassets case in 3 Report fol. 83. it was agréed An ancient right not â—â—red that by the Common Law an estate made by fraud shall be avoided onely by him that hath a former Right Title Interest Debt or Demand as in the 33 of H. 6. Sale in market overt by Covin shall not barre a more ancient Right neither shall a covenous Grant defeat an execution in respect of a former Debt as it is
agréed 22 Ass P. 72. But he that hath onely a later Right Title Interest Debt or Demand shall not at the Common Law avoid a precedent Grant or estate made by fraud The Copiholder is in by him that surrenders and not by the Lord. 22 When a Copiholder surrenders to the use of another Co. l. 4. 27. b. 2. Taverns case Co. l. 8. 63. Swains case Co. ibid. pars 4 28. b. 3. Westwicks case and the Lord admits him now he that is so admitted is in by him that made the surrender For in a Plaint in the nature of a writ of Entry in te per he shall be supposed in the per by him that made the surrender because the Lord is but an instrument to make the admittance and he that is admitted shall not be subject to the charges and incumbrances of the Lord for that the Lord hath but a customary power to make admittance secundum formam effectum sursum redditionis And therefore albeit the Lord grant the land over to another by copy that is done without warrant and the Lord may notwithstanding that make admittance according to the surrender and it shall be good causa qua supra So also if the Lord after such surrender grants the land to Cestuy quae use and to a stranger all shall enure to Cestuy quae use or if he admit Cestuy quae use upon condition the condition is void For after the admittance he is in by him that made the surrender and by the custome which is paramount the power of the Lord. Vide 21. 37. The like 23 If a man devise a terme to I. S. and the Executors agrée and assent that I. S. and I. D. shall have it Co. ibid. 28. b. 4. Westwicks case or that I. S. shall have it upon condition in these cases I. S. shall have the terme solely and absolutely for after the assent of the Executors he is in by the devise So likewise it was adjudged in the case of one Bunting Co. ibid. 29. a. 4 Buntings case that if a Copiholder surrender into the Lords hands to the use of another for life and the Lord admit him to hold to him and his heires yet he which is so admitted hath but an estate for life because he is in after admittance by the surrender Vide 21. 37. Issue in tail not barred 24 In Formedon in descender if the Demandant be barred by verdict or demurrer Co. l. 6 7. b. 3. Ferrers case yet the Issue in taile shall have a new Formedon in descender upon the construction of the Statute of West 4. cap. 2. So also if he be barred in a Writ of Error upon the release of his Ancestor his issue shall have a new Writ of Error For he claimes in not onely as heire but per formam doni and by the Statute which are paramount the verdict or demurrer and he shall not be barred by the faint or false pleading of his Ancestor so long as the right of the entaile remaines And with this agrées 10 H. 6. 5. 3 Eliz. Sir Ralfe Rowlets case Dyer 188. The like 25 If there be two Ioyn-tenants both within age Litt. § 634. Co l. 8. 43. a. 4. Whittinghams case and they joyn in a feofment in this case a joynt right remaines in them and therefore if one of them die the right will survive and the Survivour shall have the right of the land as from the first Feoffor A condition Paramount 26 If a man make a lease for yeares upon condition Co. l. 8. 76. a. 2. In the Lord Staffords case that if the Lessor out him within the terme that he shall have fée in this case if the Lessor do out him the interest of the terme is turned into a right and yet there the Lessée shall have fee and one reason thereof is because the Title of the Lessee is by force of the condition which is paramount the Ouster Title Paramount dscharges dower c. of debts c. 27 A Feme shall not be distrained for the Debts due to the King by the Baron in the lands which she held in Dower Fitz. N.B. 150. q. nor in the lands of the Inheritance of the Feme nor in the lands which she hath by purchase made by the Baron to him and the Feme and their heires because she claimes by Title paramount the Debts and if she be therefore distrained by the Sheriffe she shall have a Writ to discharge her which see Fitz. N. Br. 150 q. Paramount administration 28 An Executor recovereth and dieth intestate Finch 13. administration of the goods of the first testator is committed to I. S. Here I. S. shall not sue execution upon this recovery Finch ibid. 29 Dower cannot be assigned reserving a rent Dower a title paramount or with a remainder over for she is in from the husband and not from him that assigneth Dower Co. l. 4. 53. a. 3. in Rawlins case 30 If a man make a Lease for 21 yeares rendring rent with clause of re-entry A Lease Paramount and after the Lessee make a Lease to the Lessor for 6 years to beginne two yeares after and afterwards the rent being lawfully demanded is arreare here the Lessor may lawfully re-enter and take advantage of the condition notwithstanding the acceptance of the said future interest and by the re-entry shall defeat the future interest which vested in him Co. ibid. 31 If a man make Feofment in fee upon collateral condition A paramount feofment with condition and after the Feoffee redemise the land to the Feoffor and afterwards the condition is performed Here the re-demise of the land being no suspension of the condition is no impediment but that the Feoffor shall take advantage of the condition and shall thereby destroy the term that he himselfe had accepted as it is holden 20 E. 4. 19. 8 H. 7 8. 20. H. 7. 4. Fitz. â—6 c. 31 If the eldest sonne by the first venter present and die without issue and after the Church happens to be void A descent paramount the youngest sonne of the second venter shall not present nor have that Advowson so if there be two daughters of several venters and after partition one of them presents and dies the other shall not have it but if they make partition to present by turn and one of them die before any presentment is made in that case the other shall have the Advowson for she then claimes paramount the descent from her sister viz. immediatly from their Ancestor Dyer 54. 21. 34 H. 8. 32 Tenant in tail makes a feofment before the Statute of 27 H. 8. to the use of his wife for life Remitter the remainder to his sonne and heir in fee and after the Statute is made and the Feoffor dies and his wife also and the sonne enters In this case it seemes that
have one Attaint for the false verdict upon the forcible entry and A. shall have another single Attaint for the finding of the detainer Contract by a â—ervant 26 A servant makes a bill Dyer 230. 56. 6. El. testifying the buying of ware to the use of his Master and this without Seale in which he binds himselfe to pay the debt yet In this case debt lyeth not against the servant but onely an Action upon the case for it is the debt of the Master and the Assumpsit of the servant Copihold Dower 27 The Custome of a Mannor is that the Lord the Surveyor Dyer 251. 89. 8 Eliz. or his deputy may demise by copy the Lord deviseth authority to two fo make Customary estates for payment of his debts and dies they hold Court in their own names and grant copies in reversion according to the Custome the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Mannor in Dower And it was held that she should avoid the grant made by the two assigned because she claimes by Title of Dower which is paramount the devise 32 According to the end Knight-service the defence of the Realm 1 The Tenant in Knight-service Co. Inst pars 1 70. b. 2. that is able to performe the Service himselfe may neverthelesse if he please performe it by another as well as he that is sick or an Infant or a Corporation aggregate of many c for Sapiens incipit a fine and the end of this Service is for defence of the Realme And therefore if it be done by an able and sufficient man and the end for which the Law ordained it be effected it is duly performed as it ought to be Tender to the heir female 2 If the Lord tender a comoenable mariage to the heire female within the two yeares Co. Inst pars 1 79. a. 1. 35 H. 6. tit gard 71. and she marry elsewhere within those two yeares the Lord shall not have the forfeiture of the mariage because the onely end which the Statute of West 1. cap. 22. giveth those two yeares is for the Lord to make his tender Co. l. 6. 71. a. The Lord Darcies case or rather that he should not lose the advantage of making his tender And the benefit of those two yeares are given unto him as it were in lieu of the forfeiture in case the heire female should refuse his tender for if he make tender within the two yeares and she accept the same and marry immediately after mariage she is out of ward Errour sued against a villain 3 If Villanage be pleaded by the Lord in an action real mixt Co. Inst pars 1 127. b. 4. 18 E. 4. 6. 7. or personal and it is found that he is no Villaine the bringing of a Writ of Error is no enfranchisement because the end of bringing that Writ against the Villaine is not to commence any new suit against him but onely to defeat the former Iudgement 4 If a Castle that is used for the necessary defence of the Realme Co. Inst pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9. Britton 186 187. Co. ibid. 31. b. 3 descend to two or more Coparceners Castles for defence and others this Castle might be divided by Chambers and Roomes as other houses be but yet for that it is pro bono publico pro defensione regni it shall not be divided for as one saith Propter jus gladii dividi non potest And another saith Pur le droit del esche que ne foeffre division en aventure que la force del Realme ne defaille par taut But Castles ordained for another end viz. for habitation and private use and not for the necessary defence of the Realme ought to be parted betwéen Coparceners as well as other houses and wives may also be thereof endowed but cannot be of Castles for defence c. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19. That Avowry upoâ— distress for rent if the Lord shall distraine upon the lands and tenements holden c. he may then avow c. upon the same lands c. as in lands c. within his Fee or Seigniory c. without naming any person certaine and without making Avowry upon any person certaine c. Here albeit the purview of this Act be general yet all necessary incidents are to be supplied and the Scope and end of the Act to be taken And therefore though he néed not to make his Avowry upon any person certaine yet he must alleadge Seisin by the hands of some Tenant in certaine within forty yeares for otherwise rent and other annual payments are not recoverable by the expresse limitation of the Statute of 32 H. 8. cap. 2. Co. Inst pars 1 288. b. 1. Littl. § 503. 6 If a man be out-lawed in a personal Action by Process upon the Original and bring a Writ of Error if he Release of aâ— actions no plea in erroâ— at whose suit he was out-lawed will plead against him a Release of all manner of Actions personal that séemes to be no plea for by that Action he shall recover nothing in personaltie But the end of the Writ of Error is onely to reverse the out-lawry Co ibid. 368. a. 3. Plowd Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assise of an house desire the Plaintife to dine with him which the Plaintife doth accordingly Licence no seisin and so they be both in the house together and in truth one pretendeth one Title and the other another Title yet the Law in this case shall not adjudge the possession in him that right hath because the Plaintife came not thither to claime his right but onely to dine there at the instance of the Tenant And it would be to his prejudice if the Law should adjudge him in possession and doubtlesse a Trespasser he cannot be for that he came thither upon the Tenants invitation Co. ibid. 369. a. 4. 8 A Lease for yeares to another to the intent to trie the Title in an Ejectione firma is out of the Statute of 32 H. 8. cap. 9. An ejectione firma no bought title which prohibits the buying and selling of pretenced Rights or Titles because it is directed to a lawful end and is in a kind of Course of Law but if it be made to a great man or any other with purpose to sway or countenance the cause that is to be taken within the same Statute being chiefly intended for the suppression of such abuses in the Common-wealth Co. Inst pars 1 381. b. 3. 9 Such construction must be made of a Statute that the end Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be alwayes
simple as he was before Co. l. 6. fo 17. 18. Sir Edward Cleres case But in the latter case the Will pursuing his power is but a direction of the uses of the Feofment and the estates passe by execution of the uses which were raised upon the Feofment Howbeit in both those cases the Feoffees are seised to the use of the Feoffor and his heires in the mean time â—â—mainder â—od though â—e particular â—â—ate taile 15 If the Lessor disseise A. Lessee for life Co. Inst pars 1. 298. a. 2. and make a Lease to B. for the life of A. the remainder to C. in fee here albeit A. re-enter and defeat the estate for life yet the remainder to C. being once vested by good Title shall not be avoided So it is if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet is the remainder good because it was once vested by good Title And therefore although it be regularly true that when the particular estate is defeated the remainder depending thereupon shall be also defeated yet that rule failes in these and the like cases But in both these cases there was a particular estate at the time of the remainder created An estate sâ—tled by Attornâ—ent 16 If the Lord grants the services of his Tenant to a man Littl. § 552. Co. ibid. 310. a. 3. and after by a Deed bearing a later date he grants the same Services to another and the Tenant attornes to the second Grantee here the last Grantee shall have the Services and albeit afterwards the Tenant will attorne to the first Grantee it is cleerly void c. Devise by Tenant in taile not good 17 If a man seised of lands in taile Littl. § 624. Co. ibid. 334. b. 3. deviseth them to another in fee and die and the other enter c. this is no discontinuance because no discontinuance can be made by Tenant in Tail but such as is made and taketh effect in his life time Severance of Joynture 18 If two Ioyn-tenants within age make a Feofment in Fee Littl. § 634. Co. ibid. 337. a. 3. Co. l. 8. 43. a. 3. and one of them dies and the other survives in as much as both the Infants might have joyntly entred in their lives that right shall wholly accrue to him that survives and he shall enter into the whole c. but in this case if one of the Ioyn-tenants had made a Feofment in Fee and died the right would not have survived because the severance of the Ioynture took effect in both their lives time Whittinghams case Warranty makes a discontinuance 19 In many cases a Warranty added to a conveyance is said to make a discontinuance ab effectu Co. ibid. 339. a. 3. 9 E. 4. 19. 12. E. 4. 11. 21 E. 4. 97. although he that made the conveyance was never seised by force of the estate taile because it taketh away the entry of him that right hath as a discontinuance doth As if Tenant in taile be disseised and dieth and the issue in taile release to the Disseisor with Warranty In this case the issue was never seised by force of the taile and yet this hath the effect of a discontinuance by reason of the Warranty Warranty of an infant void 20 If a man of full age and an Infant make a Feofment in Fee with Warranty this Warranty is not void in part Co. ibid. 367. b. 4. and good in part but it is good for the whole against the man of full age and void against the Infant for albeit the Feofment of an Infant passing by Livery of Seisin be voidable yet his Warranty which taketh effect onely by Deed is meerely void Judge Richels case 21 Iustice Richel in the time of R. 2. Littl. §. 720 722. Co. ibid. 378. 28 29 H. 8. 33 a. Dyer Co. l. 1. 85. b. 4. Corbets case gave his lands to his eldest Sonne upon Condition that if he should alien them in Fee c. that then his estate should cease and be void and that they should remaine to the second Sonne and the heires males of his body c. this was a void limitation because if the eldest Sonne should alien the lands in Fee c. then is the Frank-tenement and the Fee simple in the Alienee and must needs settle and take effect in him and none other and then how can it remaine to the second Sonne c. or how can the second Sonne enter upon the Alienee when he had no right before the Alienation neither since the Alienation could he possibly have any A fine cannot operate doubly 22 If a man make a Lease for life upon Condition Co. ibid. 378. b. 3. that if the Lessor grant over the reversion that then the Lessee shall have Fee here if the Lessor grant the reversion by Fine the Lessee shall not have Fée for when the Fine transferreth the Fée to the Conusée that estate is so setled and takes such effect in him that the same Fine cannot work an estate in the Lessee also for one Alienation cannot vest an estate of one and the same land to two several persons at one and the same time Co. l. 2. 23. b. 4. Balwins case 23 When things that lie in grant Premisses and Habendum dâ—versity and take their essence and effect by the delivery of the Déed without other Ceremony are granted to one and his heires Habendum for yeares or life there the Habendum is repugnant and void as if a man grant rent Common c. out of his land by the premisses of the Déed to one and his heires Habendum for yeares or life the Habendum is repugnant for Fee did passe by the premisses by the delivery of the Déed and therefore the Habendum for yeares or for life is void Againe if one by Déed grant a rent in esse or a Seigniory in the premisses to one and his heires Habendum to the Grantee for yeares or for life Here albeit another Ceremony is requisite viz. Attornement besides the delivery of the Déed yet in as much as they are things that lie in grant and all the estates viz. in Fée for yeares or life ought to have one and the same Ceremony to passe them viz. Attornement for that cause the Habendum is in that case also adjudged void 3. when land is given by Déed in Fee by the premisses Habendum to the Lessee for life there also the Habendum is void because the same Ceremony is requisite to both the estates and it shall be taken most forcibly against the Feoffor 4. When to the estate limited by the premisses a Ceremony is requisite to the perfection of the estate and to the estate limited by the Habendum nothing is requisite to the perfection and essence of it but onely the delivery of the Deed
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
the land descends to his heire and a Stranger abates and after the Sonne when he comes to full age releaseth all his right to the Abator In this case the heire of the Disseisor shall not have an Assise of Mortdancester against the Abator but shall be barred because the Abator is armed with the right of the Sonne of the Disseisee by his release and the entry of the Sonne was congeable for that he was within age at the time of the descent cast It is otherwise where a man of full age is disseised and a descent cast c. for then a release to the Abator c. is not good because in that case the entry of the Disseisee being taken away the release of the Disseisee to the Abator wants a good foundation upon which it may be grounded viz. the title of entry which in the other case it hath Co. Inst pars 1 295. b. 3. 17 It is said of a Confirmation Confirmation where good 〈◊〉 bad that it cannot strengthen a void estate Confirmatio est nulla ubi donum praecedens est invalidum ubi donatio nulla omnino nec valebit confirmatio For a Confirmation may make a voidale or defeasible estate good but it cannot work upon an estate that is void in Law Littl. §. 521. Co. ibid. 297. a. 3. 18 If my Disseisor make a Lease for terme of life Confirmation not good the remainder over in Fee and I confirme the estate of him in the remainder without any Confirmation made to the Tenant for terme of life In this case I cannot enter upon the Tenant for life because the remainder depends upon that estate and therefore if his remainder should be defeated the remainder should be also defeated and it were not reasonable that I should by my entry upon the Tenant for life defeat the remainder against my own Confirmation There is also the same Law and Reason if the Disseisor had made a Lease for life reserving the reversion to himself Co. ibid. 298. a. 1. c. for in that case neither could I have entred upon Tenant for life least I should have thereby also destroyed the reversion against my own Confirmation c. And therefore it hath been adjudged that if a Disseisor make a Lease for life and after levie a Fine of the reversion and the five yeares passe so as the Disseisee is for the reversion barred he shall not afterwards enter upon the Lessee for life Reported by Sir John Popham Chiefe Justice because then the Disseisee by entry upon the Tenant for life should also regaine the reversion which was irrecoverably lost by force of the Statute Co. ibid. 298. a. 2. 19 It is regularly true that when the particular estate is defeated Remainder where defeatâ—ble and where not the remainder thee by shall be also defeated neverthelesse it faileth in divers cases Pl. Com. Colthirsts case for where the particular estate and remainder depend upon one title there the defeating of the particular estate is the defeating of the remainder but where the particular estate is defeasible the remainder by good title there although the particular estate be defeated yet the remainder continues good As if the Lessor disseise A. Lessée for life and make a Lease to B. for the life of A. the remainder to C. in Fée albeit A. enter and defeat the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the Lessor should have the remainder againe against his own Livery So it is also if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet the remainder stands good for that it was once vested by good title And in both these cases there was a particular estate at the time of the remainder created A void remainder 20 If the Lord grant by Deed his Seigniory to A. for life Co. â—bid 310. a. 1. the remainder to B. in fee A. dieth and then the Tenant attorns to B. this attornement is voide because it is not according to the Grant for then B. should have a Remainder without any particular estate to support it and the particular estate being void for want of attornement the Remainder which depends upon it is also void Revâ—rsion void 21 Tenant in taile makes a Lease for life to A. for the life of A. and after grants the reversion to B. in fee the Tenant in taile dies Co. ibid. 333. a. 2. and after that A. dies In this case the entry of the issue in taile is lawfull because by the death of the Lessée the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also Rent Common c. charged upon the land where good or void 22 If Tenant in taile enfeoffe the heire in taile being under age Litl §. 660. Co. ibid. 349. a. 1. and when the heir is at full age he chargeth the land with a Rent Common c. and after the Tenant in taile dies whereupon the heire is remitted In this case by the remitter the grant of the Rent Common c. is determined because the Grantor had not any right of the estate in taile in him at the time of the grant but onely the estate in Fee simple gained by the Feofment which is wholly defeated and the state of the land out of which the Rent Common c. issued being defeated the rent is defeated also But if Tenant in taile make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granteth a rent charge out of the reversion and after Tenant for life dieth whereby the Grantor becometh Tenant in taile againe and the reversion in fee defeated yet because the Grantor had a right in the entaile in him cloathed with a defeasible Fée simple the rent charge remaineth good against him but not against his issue c. The like 23 If the heire apparent of the Disseisée disseise the Disseisor Co. ibid. a 3. and grant a rent charge and then the Disseisee dieth the Grantor shall hold it discharged for his former estate being defeated by the remitter the rent which was granted out of it is also defeated So also if the Father disseise the Grand-father and granteth a rent charge and dieth now is the entry of the Grand-father taken away if after the Grand-father dieth the Sonne is remitted and shall avoid the charge c. A Discontinuance defeated as also all that dependâ— thereâ—pon 24 If the Baron discontinue the land of the Feme Litl §. 679. Co. ibid. 357. b. 4. and afterwards the Discontinuee lets the same land to the Baron and Feme for life by Deed indented reserving rent and for default of payment a
by such defeasible title admit any of the Tenants upon surrender made to the use of another or gives admittance to the heire upon descent such admittances are good because grounded upon the custome of the Mannor and therefore such acts are lawfull and quodam modo judicial which he may be forced to do in a Court of Equity and for that cause such admittances will binde those that right have c. Copihold â—ce leased â—e custome is â—estroyed 41 If a Copihold estate be forfeit or escheat Co. l. 4. 3. 1. a. 3. Frenches case or otherwise fall into the Lords hands if the Lord make a lease for years thereof or for life or any other estate by déed or without déed or suffer if before any new grant thereof to be extended upon a Statute recognizance or the like or if the Feme of the Lord have it assigned unto her in dower c. In all these cases and the like the custome which supports the Copihold tenure being destroyed the tenure it selfe is also destroyed so that it shall never after be granted by Copie or holden by Copie of Court Roll Howbeit after it is so forfeited or escheated as aforesaid the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it and yet the Custome shall be preserved because it is all that while demised or demisable and so it ought to be by the Custome c. â—ease void â—on a void â—nsideration 42 The Kings patentée for years assigns divers parcells of the land to other severall persons still reserving to himselfe part thereof Co. l. 5. 94. a. 1. Barwicks case and takes another lease in reversion for 21 years the principall consideration whereof was the surrender of the old lease whereof he had assigned divers parcels to others as aforesaid And after 3 years of the last lease were expired in consideration of the surrender of the same last lease the King grants him another of all the same land for thrée lives In this case the last grant of the lease for lives was adjudged void because when the Patentee took the second lease the consideration thereof was the surrender of the first lease which could not be any good consideration for that he had before assigned divers parcels of the land to others and then the King was deceived in his Grant and by consequent the second lease was void Now therefore the surrender of the second lease which was void being the consideration of granting the last lease for lives that last lease being granted upon a consideration which was not valuable must néeds be void also â—meys acâ—ats 43 If a Writ abate for Non-tenure of all Co. l. 6. 10. a. 4. Spencers case the Demandant shall not have a new writ by Journeys accounts because the first writ was taken out without cause or ground 33 H. 6. but a praecipe of a Mannor being abated for non-tenure of parcell the Demandant shall have a Writ by Journeyes accounts because the Tenant is Tenant of the residue for which the Writ is brought and it were hard to force the Demandant to discover in whom the estate of every parcell of the Mannor stands 4 E. 3. 159. â—dable leaâ— 44 When voidable leases being void for a time Co. l. 7. 8. a. 2. The Earl of Bedfords case shall be ever after avoided and when not this difference is taken viz. when the interest of him that makes the avoydance is but for part of the terme so that after his interest determined a residue of the terme doth still remain and when he that makes the avoydance so avoyds the whole interest that no part of the terme at all doth remain after such avoidance As if Tenant in taile of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die his heire being under age In this case although the King in right of the heir may avoid those leases for his time yet if after the Kings interest determined the heir accepts the rent they shall be thereby made good again But if the Patron of the Church of D. grant the prochein avoidance to another and after and before the Statute of 13 Eliz. the Parson Patron and Ordinary had made a lease for years rendring rent and the Parson had died and the Grantée had presented a Clerk who had béen admitted instituted c. in this case that lease had béen absolutely destroyed and the Successor although the Patron that was party to the lease present him shall avoid it c. Co. l. 8. 43. b. 4. in Whittinghams case 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife Deseasable 〈◊〉 states makes feoffment by déed indented of it to certain persons upon condition that they shall let the Land again unto the Baron and Feme for their lives with divers remainders over in taile the remainder to the right heirs of the Baron and after the Baron dies the Feoffées let the Land to the Feme for life the remainders over in taile the remainder to the right heirs of the Feme whereas it should have béen to the right heirs of the Baron In this case when the heir of the Baron enters for the condition broken by his entry the feoffment that made the discontinuance is defeated and so by consequence the discontinuance it self is defeated also so that the Feme may enter and shall be in as of her former estate Co. l. 8. 75. a. 3. in the Lord Staffords case per Coke chief Iustice 46 When one estate is to increase upon another estate by force of a condition precedent the first estate ought to be permanent Estates by â—â—cruer which may serve as a firme foundation whereon to build the future estate and not removeable at the will of the Grantor or Lessor And therefore if a man grant an Advowson to another at will upon condition that if he do such an act he shall have fée In this case the estate at will is no such foundation as the Law requires to support the encrease of an estate of Franktenement or Inheritance for the Grantor may determine his will before the performance of the condition and so avoid his owne grant and a Lease at Will cannot support a remainder over So likewise if a man grant an Advowson Rent c. for years upon condition if the Lessée within a yeare pay 10 s. he shall have for life and if he pay 20 s. within another yeare after he shall have fée the Lessée performs both conditions yet shall he have but for life for the estate for life at the time of the Grant was but in contingency which is no foundation upon which a greater estate may encrease because a possibility cannot encrease upon a possibility and the estate of Fee-simple cannot encrease upon the estate for years for that is drowned by the
of his own right heirs the reversion of the fée had béen in him because the use of the fée continued ever in him And the Statute doth execute the possession to the use in the same plight quality and degrée as the use was limited Co. Inst pars 1 22. b. 4. 7 If a man make a gift in taile or a lease for life Void remainder the remainder to his own right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in judgement of Law all his heirs and therefore it is truly said that haeres est pars antecessoris And this appeareth in a common case for if Land be given to a man and his heirs all his heirs are so totally in him that he may give the land to whom he will Co. ib. 23. a. 4. 8 Albeit Tenant in Frankmarriage is estéemed in Law a frée tenure till the fourth degrée be past Frankmarriage Fealty yet the Donées in Frankmarriage shall immediately make fealty because fealty is incident to every tenure except Frankalmoigne and cannot be separated from it Co. ib. 47. a. 3. 9 If a man make a lease for years Rent incident to the reversion and reserve a rent to him and his Executors the rent shall end by his death because the heire hath the reversion and the rent is incident to the reversion Co. ib. 68. a. 1. 10 Fealty is incident to Homage because it is a part of Homage Fealty all the words of Fealty being comprehended within Homage Mirror cap. 3. Co. ib. 69. a. 1. 11 As fealty is incident to Homage Fealty Homage c. so Homage and Knight service are incident to Escuage and by the grant of services Escuage passeth with the rest â—dship of Donee inâ—nt to the â—or 12 If Tenant by Knight service maketh a gift in taile Co. ibid. 77. a. 1. in Sir Thomas Wiats case T. 18 Eliz. in C. Ba. per Cur. and the Donée maketh a Feoffment in fée and the Donée dieth his heire within age the Donor shall have the Wardship of him because he is his Tenant in right But if the Feoffée die his heire within age the Donor shall not have the Wardship of his heire but the Lord paramount because he is Tenant in fait to him Neither shall the Donor avow upon the Feoffée or his heire for the services due unto him because he must in his Avowry shew the reversion in fée to be out of him by the Feoffment and consequently the services incident to the reversion are also out of him but he shall avow upon the Donée and his issue And thus are all books that séem to be at variance either answered or reconciled â—ure 13 There can be no tenure without some service Co. ibid. 92. b. 1. because the service maketh the tenure and is incident unto it 〈◊〉 services 〈◊〉 Fealty seâ—able 14 Of Incidents there be two sorts viz. separable and inseparable Co. ib. 93. a. 1. Separable as rents incident to reversions c. which may be severed Inseparable as fealty to a reversion or tenure which cannot be severed For as all lands and tenements within England are holden of some Lord or other and either mediately or immediately of the King so to every tenure at the least fealty is an unseparable incident so long as the tenure remains and all other services except fealty are severable â—ident teâ—res c. 15 The tenure in Frankalmoigne is an incident to the inheritable bloud of the Grantor Co. ibid. 99. a. 4. and cannot be transferred or forfeited to any other no more than a foundership of an house of Religion which is intended to be in Frankalmoign or Homage Ancestrell or the writ of contra formam Feoffamenti or the writ of contra formam Collationis or any other incident to their inheritable bloud but it is no incident inseparable for the Lord may release to the Tenant in Frankalmoigne and then the tenure is extinct and he shall hold of the Lord paramount by fealty as in the case of Littleton Sect. 139. â—stresse inciâ—nt to fealty 16 If rent-service be behind the Lord may distrain for the arreare Co. ibid. 142. a. 3. because fealty is incident to rent-service and where fealty c. is incident to the rent there is a distresse also incident thereunto 〈◊〉 leases Feâ—y insepaâ—le â—nt not inâ—arably inâ—ent â—alty inciâ—nt 17 In the case of a gift in taile lease for life or years Co. ibid. 143. a. 1. the fealty is an incident inseparable to the reversion so as the Donor or Lessor cannot grant the reversion over and save to himselfe the fealty or such like service but the rent may be excepted because the rent although it be incident to the reversion yet is it not inseparably incident 18 If a man maketh a gift in taile without any reservation Co. Inst pars 1. 143. a. 2. the Donée shall hold of the Donor by the same services that he holds over but otherwise it is of an estate for life or yeares for there if he reserveth nothing he shall have fealty only which is an incident inseparable to the reversion â—elease of â—nd except â—e said rent 19 If there be Lord and Tenant by fealty and rent Co. ib. 150. a. 3. 4. and the Lord by his déed reciting the tenure releaseth all his right in the land saving his said rent In this case the Seignory remains and he shall have the rent as a rent service and also the fealty incident unto it for in saying the said rent it is as much as if he had said the rent service whereunto fealty is incident â—ant of serâ—es quid oâ—atur 20 If the Donée hold of the Donor by fealty and certain rent Co. ibid. 150. b. 1. and the Donor grant the services to another and the Tenant attorne some have said the rent shall not passe because the rent cannot passe but as a rent service being granted by the name of services And the fealty cannot passe because it is an incident inseparable to the reversion But it seemeth that the rent shall passe as a Rent-secke because at the time of the grant it was a rent service in the Grantor and therefore there be words sufficient to passe it to the Grantée and it is not of necessity that it shall be a Rent-service in the hands of the Grantée c. Co. ibid. 148. b. 3. 21 If a man maketh a lease for life of Black acre and White acre Accrueâ— Rent appâ—oned reserving two shillings rent upon condition that if the Lessée doth such an act c. that then he shall have fée in Black acre the Lessée performs the condition Here albeit by relation he hath the fée-simple ab initio yet shall the rent be apportioned for that the reversion of one acre
whereunto the rent was incident is gone from the Lessor Littl. §. 225. Co. ib. 150. a. 22 If there Lord and Tenant Distresse iâ—dent to fealâ— and fealty 〈◊〉 homage and the Tenant holds of the Lord by fealty and certain rent and the Lord grants the rent by his déed to another c. reserving the fealty and the Tenant attorns to the Grantée of the Rent Here such a rent in the hands of the Grantée is not Rent-service but Rent-secke because the power of distraining remains still with the Lord as an incident to the fealty which he hath reserved c. So it is likewise where the Tenant holds by homage fealty Littl. §. 226 227. Co. ibid. 150. b. and rent and the Lord grants the rent reserving the Homage c. but in this last case if the Lord grant away the Homage saving unto himselfe the rest of the services and the Tenant attorn c. In this case the Tenant shall hold the land of the Grantée and the Lord shall have the Rent but as a Rent-seck and shall not distrain for it because the power of distraining doth of common right go along with the Homage and Fealty Co. ibid. 68. a. 1. Co. ibid. 151. b. 1. Fealty being an inseparable incident to Homage and Distresse the like to Fealty c. 23 Incidens is a thing appertaining to Definitio or following another as a more wrorthy or principall Littl. §. 228. Co. ib. 151. b. 3 4. 24 If a man let lands to another for terme of life reserving rent Rent sepâ—â—â—bly fealty 〈◊〉 separably â—â—cident to the reversion if he grant the rent c. saving the reversion c. the Grantée hath the Rent as a Rent-seck for which he cannot distrain because the fealty unto which the Distresse is incident doth still remain in the Grantor as an inseparable incident to the reversion for albeit the rent be also incident to the reversion yet it is separably incident whereas Fealty is inseparably incident unto it so that although when the rent was first reserved it was Rent-service and so by consequent had Fealty and distresse incident unto it yet being now by the grant fevered from the reversion and Fealty it hath lost the priviledg of distresse which always inseparably adheres to the Fealty c. Neverthelesse in the said case if the Lessor grant the reversion for life c. the rent shall passe therewith as incident to the reversion and the Grantée shall then have it as a Rent-service whereunto Distresse is incident because it then passeth by the grant of the reversion as with the superiour or principall and that without using these words in the Grant cum pertinentiis c. Co. ibid. 192. a. 3. 214. a. 2. 25 If two Ioyntenants make a lease for life Jointenants reserving a rent to one of them the rent shall enure to them both because the reversion remains in Ioynture and therefore the rent which is incident to the reversion shall also enure in joynture c. unlesse the reservation be by déed indented for then he onely to whom it is reserved shall have it c. so also a surrender to one shall enure to both Littl. 348. Co. ib. 215. b. 3. 26 If there be Lord and Tenant Rent incideâ— to the reveâ—on and the Tenant make a lease for life reserving to him and his heirs an annual rent c. and after the Lessor dies without heire so that the reversion falls to the Lord by way of Escheat and the rent of the Tenant for life is behind In this case the Lord by Escheat may distrain for the Rent arrear Escheat albeit it was reserved to the Lessor and his heirs for both Assignees in Déed Assignees in Law shall have the rent because the rent being reserved of inheritance to him and his heirs is incident to the reversion and goeth with the same Co. ibid. 223. b. 4. 27 Albeit as Littleton saith Sect. 362. Tenant in 〈◊〉 barred by coâ—dition 〈◊〉 not a Tenant in taile may by condition be barred from making any alienation and discontinuance of his estate contrary to the Statute of Westm 2. yet cannot that estate be so clogged by a condition that the incidents which are by Law annexed unto it may be barred or severed from it Co. l. 6. 41. a. 1. Sir Anthony Mildmayes case 42. b. 4. l. 10. 38. b. 4. Mary Portingtons case Now the incidentâ— to an estate taile are 1 To be dispunishable of waste 2 That the Feme of the Donée shall be endowed 3 That the Baron of the Feme Donée after issue shall be Tenant by the Courtesie 4 That the Tenant in taile may suffer a common recovery And therefore if a man make a gift in taile upon condition to restrain the estate from having any of these incidents the condition is repugnant and void in Law And for this cause it is that a Collateral or lineall warranty with assets in respect of the recompence is not restrained by the Statute of Donis conditionalibus no more is a common recovery in respect of the intended recompence And Littleton there to the intent to exclude the common recovery saith Tiel alienation discontinuance joyning them together Descriptio incidentium 28 They that have Conusance of any thing Co. ibid. 227. b. 4. are to have Conusance also of all incidents and dependants thereupon For an incident is a thing necessarily depending upon another Vide 64. Stat. 21. H. 8. 19. 29 By the Statute of 21 H. 8. cap. 19. it is enacted Co. ibid. 268. b. 1. That if the Lord shall distrain upon the Lands and Tenements holden c. that he may avow c. upon the same lands c. as in lands c. within his Seignory c. without naming of any person certaine and without making avowry upon a person certain Here albeit the purview of this act be generall yet all necessary incidents are to be supplyed and the scope and end of the Act to be taken And therefore although he néed not to make his avowry upon a person certain yet he must alleadge seisin by the hands of some tenant certain within forty years c. Incident serviâ—es shal not be discharged without speciâ—l words 30 If there be Lord and Tenant Co. Inst pars 1. 305. b. 3. and the Tenant holds of his Lord by the service of Fealty and xx s. rent if the Lord by his Déed confirme the estate of his Tenant to hold for xii d. or for a penny c. In this case saith Littleton Sect. 538. the Tenant is discharged of all the other services and shall pay the Lord nothing but what is comprised within the same confirmation Neverthelesse these words are thus to be understood that the Tenant shall not render any more rent or annual service to the Lord than is contained in the
Déed but other things notwithstanding the said confirmation the tenant shall yield to the Lord as reliefe aide pur file marier and aide pur faire fitz Chivalier because these are incidents to the tenure which do still remaine and shall not be discharged without special words by the general words of all actions services and demands The like 31 If a man hold of me by Knight-service Rent-suit Co. ibid. c. and I release to him all my right in the Seigniory excepting the Tenure by Knight-service or confirme his estate to hold of me by Knight-service onely for all manner of services exactions and demands yet shall the Lord have Ward Mariage Reliefe Ayde pur file marier pur faire fitz Chivalier for these be incident to the Tenure which doth still remaine â—he rent pasâ—th with the â—version but â—t è converso 32 Where a Lease for terme of yeares or life Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man reserving rent c. if the Lessor or the Donor grant the reversion to another and the Tenant attornes the rent passeth to the Grantée albeit the Deed of the grant of the reversion make no mention of the rent because the rent is incident to the reversion but not è converso for if a man in this case will grant the rent saving the reversion albeit the Tenant attorne yet that rent is but a rent-secke c. Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls case 20 Eliz. 33 If the Lessor disseise Tenant for life A rent incident or not incident to a reversion Diversity or ouste Tenant for yeares and maketh a Feofment in fée by this the rent is reserved upon the Lease for life or yeares is not extinguished but by the regresse of the Lessée the rent is revived because it is incident to the reversion And so it hath béen adjudged But if a man be seised of a rent in fée and disseise the Tenant of the land and make a Feofment in Fée the Tenant re-entreth this rent is not revived And to note a diversity betwéen a rent incident and a rent not incident to a reversion c. Littl. §. 590 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in service and I give certaine acres of land Rent incident to the reversâ—on A Donor cannot be ousted of it parcel of the demesnes to another in taile rendring rent in this case if I be disseised of the Mannor and all the Tenants attorne and pay their rents to the Disseisor and the Tenant in taile also pay to him the rent by me reserved and after the Disseisor dies and his heir is in by descent yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved because the rent reserved is incident to the reversion and the reversion of the land given in taile is still in me notwithstanding the disseisin and descent for as long as the Donée in tail is in possession he preserves the reversion in the Donor and so long as reversion continues in the Donor so long do the rents and services as incident thereunto belong to the Donor neither can the Donor be put out of his reversion unlesse the Donée be put out of his possession and if the Donee be put out of his possession consequently is the Donor put out of his reversion But if the Donee make a regresse and regaine his estate and possession thereby doth he ipso facto revest the reversion in the Donor c. There is the same reason of a Lease for life or yeares rendring rent c. 35 He that hath a remainder expectant upon an estate taile Error may bâ— brought by 〈◊〉 Reversionâ—â— or remâ—indâ—â— shall have a writ of Error upon a Iudgment given against the Tenant in taile Co. l. 3. 3. b. 4. The Marquess of Winchesters case albeit there was no such remainder at the Common Law For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate taile all actions which the Common Law gave to privies in estate are by the same act as Incidents implicitely given also according to the rule of the Common Law And therefore as those in reversion or remainder expectant upon an estate for life shall have a writ of Error by the Common Law of a judgement given against Tenant for life although they were not made parties by aide prayer voucher or receipt So also since the Statute de donis conditionalibus shall he have that hath a reversion or remainder expectant upon an estate taile Co. l. 4. 8. b. 3. Bevils case 36 The seisin of a superiour service is seisin of all inferior services Superiour sâ—â—vice seisin oâ— inferiour incident unto it as seisin of Escuage is seisin of Homage and Fealty and seisin of Homage is seisin of Fealty and seisin of Rent is seisin of Fealty where the Seigniory is by Fealty and Rent Co. l. 4. 23. a. 1. Deal Rigdens case 37 Where by the custome of a Copihold Mannor plaints have béen made in the Court of the Mannor in the nature of reall actions Plaints in 〈◊〉 copihold 〈◊〉 to bar the 〈◊〉 in taile if a recovery in such a plaint be had against Tenant in taile admitting that Copihold land may be intailed that recovery shall work a discontinuance and shall take away the entry of the issue in taile for in as much as plaints in the nature of reall actions are warranted by the custome this is an Incident which the Law annexeth to the said custome viz. that such a recovery shall make a discontinuance which agrees with the reason of the principall point in Browns case Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36 37 Eliz. betwixt Clun and Peale Rot. 1417. Copihold seâ—ered by cuâ—ome contiâ—ue severed â—lbeit surrenâ—red together â—n one copy 38 If a Copiholder is seised by force of several Copies Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4d rent of White acre by vj d. and of Gréen acre by xij d. rent and he makes waste in part of Black acre or makes feoffment of it or denies the rent of it whereupon Black acre is forfeited This is no forfeiture of White acre or Gréen acre for although they are all in one and the same hand yet every of them is severally holden and to every acre there is a severall condition as an incident implicitely annexed unto it so that the forfeiture of one cannot be the forfeiture of any of the other because the severall conditions in Law do insue the severall tenures So likewise if the Copiholder of the said thrée acres surrender them altogether in one surrender to the use of A.
second deliverance is a Supersedeas to the Returno habendo by which it is implyed that the Sheriff ought not to serve the Returno habendo Dyer 135. 13. 3 4 P. M. 24 In a Quare Impedit the Plaintiff entitles himselfe to the next avoydance by the grant of the right Patron to a stranger An administration in Law who made two Executors and died and for that the Executors granted the next avoidance to him Et hoc absqueta ostentione literarum without shewing the testament of the first Grantée And in this case it séems he néed not shew them because albeit the Executors never proved the testament yet their grant of the next avoydance was good for that it was an administration implyed by Law Debt for rent 25 A lease for yeares is made of an house with divers Implements rendring rent the Lessor enters and makes feoffment Dyer 212. â—7 4 Eliz. the Lessée re-enters and for rent arreare the Feoffée brings debt and adjudged mainteinable albeit there wâ—â— no privity Howbeit the regresse of the Lessée is an attornment in Lâ—â— whereupon it seemes the Law creates a privity For in this case the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Ejectione Firmae 26 In an Ejectione Firmae of a lease of a Rectory Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff and it was moved in arrest of Iudgement that it was not shewed that the Parson was in life Howbeit because it was averred by Implication in the Court by these words Fuit adhuc est seisitus c. the Plaintiff had judgement Quare Impedit 27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen Dyer 360. 7. 20 Eliz. who presents A. who was admitted instituted and inducted and afterwards the Queen presents B. A. dies the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà and that the Queen presented A. who was admitted and instituted and that the Church is now void by the death of A. And the question was whether or no this was sufficient without saying Inducted And it séemed it was because the Plaintiff alleadged that the Church was void by the death of A. which implies Induction and then it was not revocable 28 Vide Hob. 5. Gardiner against Bellingham 8. Yardly against Ellill 43 Things by reason of another are in the same plight Possessio fratris 1 Albeit the Maxime in Law be Co. Inst pars 1 15. b. 3. Possessio fratris facit sororem esse haeredem yet if the Sister die living the Brother her issue shall inherit before the brother of the halfe blood because he personates the Mother and therefore shall succeed the brother in the inheritance Acceptance of Rent 2 Tenant in taile makes a lease for forty yeares reserving a rent Co. ibid. 46. b. 1. to commence ten years after Tenant in taile dies the issue enters and enfeoffs A. the ten yeares expire the Lessee enters if A. accepts the rent the lease is good for he shall have the fame election that the issue in taile had either to make it good or to avoid it c. Coparceners 3 If there be two Coparceners of a reversion Co. ibid. 53. b. 4. and Waste is committed and the one of them die the Aunt and the Niece shall joyne in an action of Waste Courtesie Dower Waste 4 A Tenant by the Courtesie or in Dower Co. ibid. 54. a. 1. can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth Waste yet the heire shall have an action of Waste against them and recover the land against the Assignee Waste 5 If Tenant for life grant over his estate upon condition Co. ib. 54. a. 3. and the Grantée doth Waste and the Grantor re-entreth for the condition broken the action of Waste shall be brought against the Grantée and the place wasted recovered c. 21. Tenant at â—ill â—aron and â—me 6 If a woman make a lease at will reserving a rent Co. ibid. 55. b. 4. Co. lib. 5. 10. Hensteads case and then taketh Huâ—band this is no countermand of the lease at will but the Husband and Wife shall have an action of Debt for the rent And so is it if a lease be made to a woman at will reserving a rent and the Lessée taketh Husband this is no countermand of the lease but the Lessor may have an action of Debt and distrain them for the rent So if the Husband and Wife make a lease at will of the wives land reserving a rent and the husband die yet the lease continueth In like manner if a lease be made by two to two others at will and the one of the Lessors and of the Lessées die the lease at will is not determined in either of these cases c. Co. Inst pars 1. 58. b. 1. 7 Tenant for years Tenant by Statute Merchant Staple Elegit Domini pro tempore at will Guardian in Chivalry c. may be Lords of a customary Mannor as well as those that have fée for â—â—â—eit they be not properly seised but possessed yet are they Domini pro tempore not onely to make admittances but to grant voluntary copies of ancient Copihold lands which come into their hands by forfeiture escheat or otherwise Also admittances made by Disseisors Abators Intruders Tenant at sufferance or others that have defeasible titles stand good against them that right have because it is a lawfull act and they are compellable to do it Howbeit they cannot make voluntary grants of Copies as aforesaid to binde the Disseisées c. because they come in by wrong and have estates that may he defeated Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one Copiholds grantable by an Executor that is not Dominus pro tempore nor that hath any thing in the Mannor As if the Lord of a Mannor by his Will in writing deviseth that his Executors shall grant the customary Tenements of the Mannor according to the custome c. for the payment of his debts and dieth the Executor having nothing in the Mannor may make grants according to the custome of the Mannor Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life Dominus pro tempore coâ—pellable to admit or for years Guardian or any that hath a particular interest or Tenant at will of a Mannor all which are accompted in Law Domini pro tempore do take a surrender into his hands and before admittance the Lessée for life dieth or the years interest or custodie do end or determine or the
2. 4. Sir Ed. dw Althams case and releaseth to the Reversioner omnes actiones c. sectas querelas Demand quaecunque nec non totam dotem suam ac titulum ac actionem dotis sibi contingent c. de aliquibus terris in Wethersfield c. this is onely a Release of her Dower in Wethersfield and not in Gosfield â—â—peachment Wast 6 If a man demise Land for life absque impetitione vasti Co. l. 11. 82. b. 3. Lewis Bowles case the Lessée may cut down the Timber-trees and convert them to his own use but if it be absque impetitione vasti per aliquod breve de vasto In that case the Action onely shall be discharged and not the property in the Trees so that the Lessor after they are felled may seise them c. Co. l. 3. 83. a. 4 Twines case 7 No purchaser shall avoid a precedent conveyance made by fraud and covin What is a good consideration within the Statute of 13 Eliz. 5. but he that is a purchaser for money or other valuable consideration For albeit in the preamble of the Statute of 13 El. 5. it is said For money or other good consideration and likewise in the bodie of the Act For money or other good consideration Yet these words good consideration are to be understood onely of valuable consideration and this appears well by the clause which concerns them that have power of revocation for there it is said For money or other good consideration paid or given and this word paid is to be referred to money and given is to be referred to good consideration so the sense is For money paid or other good consideration given which words exclude all considerations of nature bloud or the like and are to be understood of valuable consideration which may be given and therefore he that makes the purchase of the land for valuable consideration is the onely purchaser within that Statute And this last clause doth well expound these words other good consideration mentioned before in the preamble and bodie of that Act. 54 No man can do an act to himself Co. Inst pars 1. 38. b. 4. 39 a. 4. 1 A Feme Guardian in Soccage shall not endow her selfe De la plus beale without judgement Feme Doweâ— but after judgement she may as Littleton saith § 49. for then it is the act of the Law and not simply hers Co. ib. 48. b. 1. 2 If A. by Déed give lands to B. to have and to hold after the death of A. to B. and his heirs this is a void déed Grant in fâ—turo void because he cannot reserve to himselfe a particular estate and construction must be made upon the whole déed Littl. §. 168. Co. ib. 112. a. 3 A man cannot make any grant of lands Baron canâ—â— grant to feâ—â—â— c. to his wife during the Coverture because they are but one person in Law and a man cannot do an act to himselfe c. Littl. §. 212. Co. ib. 141. a. 4 A man cannot be judge in his owne cause No distresse iâ—repleviable and therefore if a man will prescribe that if any Cattle he Damage fesant upon the Demesnes of his Mannor he may detaine them untill he be satisfied for the damage at his own will and pleasure this custome is repugnant to reason and ought not to be allowed by the Iudges For Malus usus abolendus est quia in consuetudinibus non diuturnitas temporis sed soliditas rationis est confideranda Co. ib. 141. a. 2. Finch 19. 5 A fine levied before the Bailiffs of Salop was reversed A Fine void because one of the Bailiffs was party to the fine Quia nemo debet esse judex in propria causa Nemo potest esse judex c. Hillar 4. H. 4. Coram Rege Salop. Littl. §. 479 480. Co. ib. 280. a. 1. and 307. a. 4. Littl. §. 543 544. 6 If there be Lord and Tenant Extinguishment of rent c. and the Lord releaseth to the Tenant his Seigniory this must of necessity enure by way of extinguishment For the Tenant cannot have service to be taken of himselfe neither yet can one and the same man be both Lord and Tenant So also if a Rent-charge be granted out of land and the Grantée releaseth or granteth the rent to the Terre-tenant in this case the rent is extinct for a man cannot have land and also rent issuing out of the same land neither yet can he pay the rent to himselfe There is the same reason of Common of Pasture released to the Tenant of the land for that also works an extinguishment because a man cannot have Land and a Common of Pasture issuing out of the same land c. Co. ib. 280. a. 3. 7 If there be Lord and Tenant by Fealty and Rent Increasing extinguishment the Lord granteth the Seigniory for yeares and the Tenant attorneth the Lord releaseth his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the estate of the Lessée also but if the release had béen to them and their heirs then the Lessée had had the inheritance of the one moity and the other moity had béen extinct And the reason of this diversity is because when the release is made generally it cannot enure to the Lessée longer than for life because it enureth by way of enlargement and being made to the Tenant of the land it enureth by way of Extinguishment because he cannot do service to himselfe and then there cannot remaine in the Seigniory a particular estate for life But when the release is made to them and their heirs each one takes a moity the one by way of encreasing of the estate and the other by extinguishment â—cceptance â—ttornment 8 If there be Lord and Tenant Littl. §. 558. Co. ib. 312. b. and the Tenant lets the Tenements to a Feme for term of her life the remainder over in fée the Feme takes Baron and after the Lord grants the services c. to the Baron and his heirs In this case there can be no attornment by parol c. because the Baron that ought to attorn cannot attorn to himselfe but his acceptance of the grant of the Seigniory amounts to an Attornment in Law The like 9 If the Lord grant his Seigniory to the Tenant of the land and to a stranger the Tenant cannot properly and formally attorn to himself Co. ib. 313. a. 1. but his acceptance of the grant is a good attornment in Law to extinguish the one moity and to vest the other moity in the stranger 10 If there be Lord and Tenant and the Tenant take Feme Littl. §. 559. Co. Inst pars 1. 313. a. and after the Lord grant the services to the Feme and her heirs Acceptance Attornment Here can be no
67. a. Tookers case 67 If two Ioyntenants let their land for life reserving rent Release of one Joyntenant to another c. if one of them release unto the other that release unto the other that release is good to settle the whole estate and rent in him to whom the release is made without any attornment at all of the Tenant for life in respect of the privity betwéen the Tenant for life and them in the reversion So it is also albeit there be thrée or more Ioyntenants and one of them release to one of the other Howbeit there is a difference betwéen these releases for the release in the â—â—e case maketh no degrée but he to whom the release is made is supposed in from the first Feoffor whereas in the other it worketh a degrée and he to whom the release is made is in the per by him that made it yet in neither of these cases is there any attornment requisite by reason of the privity But if one Ioyntenant make a Lease for years reserving a rent and dieth the other Ioyntenant shall have the reversion because he claimes paramount that Lease as by the first Feoffor Howbeit he shall not have the rent for that there is no privity betwéen him and the Tenant for years as there was in the other case betwéen the tenant for life and them in the reversion c. Attornment by â—ne Joynteâ—ant good for â—oth 68 If two joynt Lessées for years Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor and he enfeoff another Here if one of the Lessées re-enter this is a good attornment and shall bind both in respect of the privity betwéen the Ioyntenants For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case Grant of a Seigniory by â—ne shall have â—n Assise beâ—ore attornment 69 If there be Lord and Tenant Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580 581 582. v. Dyer R. 5. 6. and the Lord grants the Services by Fine hereby the Services are immediately in the Grantée by force of the Fine Howbeit he cannot distraine for any part of the Services without attornment because an Avowry is in lieu of an action which he cannot have without privity nor privity without attornment neither yet before attornment can he have an action of wast a writ of entry ad communionem legem or in consimili casu or in casu proviso a Writ of Customes and Services a Writ of Ward c. But if a man make a Lease for years and grant the reversion by Fine if the Lessee be ousted and the Conusee disseised the Conusee without attornment shall maintaine an Assise for that Writ is maintained against a stranger where there needeth no privity And of such things as the Lord may seise or enter into without suing any action the Conusee before any Attornment may take benefit as to seise a ward or heriot or to enter into the lands or tenements of a ward or escheated to him or to enter for an Alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his Disherison Discontinuâ—nce barres entry 70 One of the chiefe reasons why a Feofment in fee gift in tail Co. ib. 327. a. 1. or Lease for the life of the Lessée made by the Tenant in taile doth make a discontinuance to take away the entry of him in reversion or remainder in case the Tenant in tail die without issue is because the Tenant in tail and he in the reversion or remainder are privies in estate c. Where it is no â—ane 71 If Tenant in tail make a Lease for the life of the Lessée Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another and the Tenant for life attorns and dies and the Grantée of the reversion enters in the life of the Tenant in tall and after the Tenant in tail dies In this case the issue cannot enter but is put to his Formedon in respect of the privity between the Tenant in tail and his issue the Grantee of the reversion having seisin and execution of the entailed lands in the life and from the grant of the Tenant in tail himselfe Howbeit if Tenant in taile make a Lease for life and grant the reversion in fee and the Lessee attorn as before and that Grantee granteth it over to another and the Lessee attorneth again to the last Grantee and then the Lessee for life dieth so as the reversion is executed in the life of Tenant in tail yet this is no discontinuance but that after the death of the Tenant in tail the issue may enter because the last Grantee was not in of the grant of the Tenant in tail himselfe but of the first Grantee between whom and the issue in tail there is no privity c. â—iscontinuâ—ce 72 If at this day Tenant in tail make a Lease for life Co. ib. 333. b. 4. and after by Deed indented and inrolled according to the Statute he bargaineth and selleth the reversion to another in fee and the Lessee dieth so as the reversion is executed in the life of Tenant in tail Albeit the Bargainee is not in the per by the Tenant in tail but rather in by force of the Statute yet in as much as he claimeth the reversion immediately from him which is executed in his life time this is a discontinuance And so it is and for the same cause if Tenant in tail had granted the reversion to the use of another and his heirs c. in respect of the privity between the Tenant in tail and his issue c. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use A trust goeth to Executoâ—â— and not to the Baron taketh Husband and dieth the Husband surviving shall not have this trust but the Executors or Administrators of the Wife for it consisteth in privity P. 32 Eliz. in Canc. in Withams case c. Co. Inst pars 1 352. a. 4. 74 In every Estoppel privity is required Estoppels for it ought to be reciprocal viz. ought to binde both parties and therefore regularly a stranger shall neither take advantage nor be bound by an Estoppel But privies in bloud as the heir Privies in estate as the Feoffee Lessee c. Privies in Law as the Lord by escheat Tenant by the Courtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the Post shall be bound and take advantage of estoppels c. Littl. §. 674 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life For an actâ—â—â— of wast priâ—â— is requisite saving the reversion to the Lessor and after one sues a feigned action against the woman and recovers the
ought to be continued and the condition ought to be performed by B. or his heirs Co. l. 8. 75. b. 1. The Lord Staffords case and the performance thereof is not available if the estate be altered and this is proved by the Lord Lovels case in Pl. Com. for if the Lessée for life or for yeares or Donée in taile who hath such a condition annexed to his estate alien before the Condition performed or if the Lessée for life or years surrender unto the Lessor he shall never after take benefit of the Condition because the privity of the estate in such case ought to continue for that the encrease of estate ought to enure upon the particular estate as upon a foundation And therefore in this case if Lessée for life or for years or the Donée alien all their estate and take an estate again and after perform the Condition yet nothing shall thereby increase unto him because by the absolute alienation the privity for a time was absolutely destroyed which by any taking againe of the estate cannot be revived as if a Coparcener after partition makes feofment in fee and then takes againe an estate to her and her heirs in that case the privity of the estate to have aid to deraigne the warranty paramount is destroyed 11 H. 4. 22. Vide 38. E. 3. 20. b. but if Lessée for life grant his estate upon Condition and enter for the Condition broken and after that performe the Condition annexed to his estate there peradventure the fee shall accrue unto him for the possibility was not absolutely destroyed and when he enters for the Condition broken he is in by his ancient estate neither yet is it necessary that the particular estate should continue to all respects but if such privity of estate continue as is capable of the increase of an estate it sufficeth And therefore if such a Lessée for life make a Lease for years or such a Lessée for years make a Lease for a lesse terme or if such a Donée make a Lease for his own life or for years yet for the privity of estate that still continues in them they are capable of a farther increase of their estate Howbeit if such a Tenant in taile make a Lease pur auter vic there he is not capable of any increase because he hath gained a new redersion in fee and the first privity remaineth not And yet in that case if the Lessée for life die then is the first privity of the estate revived So if a man make a gift in special tail with such a condition of encreaser as abovesaid and after the Feme dies without issue so that he is now become Tenant in tail after possibility of issue extinct In this case albeit the estate be changed yet in as much as the privity doth still remaine he may by the performance of the Condition have fee afterwards So also if a Lease be made to two with condition to have fée and the one dies the survivour may performe the condition and have fee but if the same Iointenants have made partition of the terme the condition is destroyed for the estate in fée ought to increase to them joyntly and not in severalty c. Vide 34. 11. Co. l. 9. 17. b. 2. Anne Bedingfields case 110 There is a greater privity Voucher 〈◊〉 Dower when the Feme is endowed of the immediate estate which the heir of the Baron hath by descent than when she is indowed either by a stranger or of any other estate for if the Feme be endowed of the immediate estate descended to the heir of the Baron if she be impleaded afterwards she shall vouch the heir and shall be newly endowed of other lands which the heir hath but if the Feme be endowed by the Alienée of the Baron or of the heir if she be impleaded she shall not vouch the Alienée to be newly endowed And this is the cause that when a Feme brings a Writ of Dower against the Alienée of the Baron c. and he vouch the heir the Demandant may testifie that the heir hath lands descended unto him in the same County for to another County the original doth not extend and may pray that she may be endowed of his estate and this is for the benefit of the Voucher to be newly endowed Vide in 4 E. 3. 36. 6 E. 3. 11. The Tenant in a Writ of Dower voucheth the heir of the Baron and the Demandant testifies that he hath lands by descent c. in the same County and judgement was given against the heir but if he had had none there it should have been given against the Tenant In 6 E. 3. 20. The Feme of a stranger brings a Writ of Dower and the Tenant voucheth the heir c. the Demandant shall not recover against the heir because there wants privity In 18 E. 3. 36. in Dower the Tenant voucheth and the Vouchee voucheth the heir of the Baron of the Demandant the Demandant testifies that the heir hath assets by descent in the same County here the Demandant shall not recover against the heir but against the Tenant onely for in this case there is not immediate privity betwixt the Demandant and the heir because the Demandant shall recover against the heir onely when the Tenant in Demesne voucheth him and not when the Vouchée of the Tenant in Demesne voucheth him Detainment of Charters no â—â—ea 111 No stranger albeit he be Tenant of the land Co. ib. 18. 2. 3. and hath the evidences conveyed unto him may in a Writ of Dower plead Deteinment de Chartres for this plea lies onely in privity viz. for the heir of the Baron And the heir also in this case may divers wayes be in the degrée of a stranger so that he shall be disabled from pleading Deteinment of Chartres as 1 If the heir hath the land by purchase 2 If the heir did deliver the Charters to the Feme as it is resolved 7 E. 3. Dower 101. 3 If the heir be not immediately vouched viz. by the Tenant in the Writ of Dower but by his Vouchee 18 E. 3. 36. 4 If the heir comes in as Vouchée having no lands in the County where the Dowâ—â— is demanded 5 If he comes in as Tenant by receit as appears in 16 E. 3. tit Dower 57. and by many other bookes And the reason hereof is manifest by the true pleading of deteinment of Charters for he who pleads that plea in barre of Dower ought to plead that he hath béen alwayes ready and yet is to render Dower if the Demandant will deliver unto him his writings now Tenant by receit or such a Vouchée as is aforesaid cannot plead that he hath been alwayes ready to render Dower for that the Demandant cannot recover against the heir in such cases viz. either being Vouchée or received neither can he render unto the Demandant the Dower which by the Law doth belong unto her
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the
every one hath a part of the Mannor without saying any thing of the Advowson appendant the Advowson remains in coparcenary and yet in every of their turns it is appendant to that part which they have and so it is also if they make composition to present against common right yet it remains appendant Co. ib. 131. b. 2. 4 The King by his Prerogative regularly is to be preferred in payment of his duty or debt by his debtor before any subject The Kings debt first pâ—â— except in sâ—â— where a fine 〈◊〉 due to the 〈◊〉 and damages to the party although the Kings debt or duty be the latter and the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis And thereupon the Law gave the King remedy by the writ of Protection Cum clausula volumus to protect his Debtor that he shall not be sued or attached until he had paid the Kings debt but hereof grew some inconvenience because many times to delay other men of their suits the Kings debts were the more slowly paid For remedy whereof it was enacted by the Stat. of 25 E. 3. cap. 19. That the other Creditors might have their actions against the Kings Debtor and also procéed to judgement but not to execution unlesse that Creditor will take upon him to pay the Kings debt and then he shall have execution for both the debts Howbeit in some cases the Subject shall be satisfied before the King for regularly whensoever the King is entitled to any fine or duty by the suit of the party the party shall be first satisfied as in a Decies tantum against a Iuror or an Embraceor for there the ten-fold damages shall be first satisfied and then the Kings fine because this is as accessary to that So likewise if in an action of Debt the Defendant deny his déed and it is found against him in that case he shall pay a fine to the King but the Plaintiff shall be first satisfied And so it is in all other like cases The like course was also taken in Bils preferred by Subjects in the Starre Chamber For if costs and damages were there recovered by the party they were answered before the Kings fine c. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Mannor whereunto a Villein is regardant A Mannor drawes the Villein enfeoff the Villein of the Mannor and dieth the issue shall have a Formedon against the Villein and after the recovery of the Mannor he shall seise the Villein Howbeit before the recovery of the Mannor he cannot seise the Villein for that the Mannor was principal c. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another Rent and â—vice incidenâ— to the reversion c. and the Tenant attorns the rent and service passe by this word reversion because they are incident unto it but by the grant of the rent the reversion shall not passe because the Incident shall passe by the grant of the Principal but not the Principal by the grant of the Incident Accessarium non dâ—cit sed sequitur suum principale Scire facias â—llows the â—cord 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands c. in case the said lands be evicted giveth a Scire facias out of the same Court from whence the former execution did procéed c. to have execution of other lands c. If the record be removed by writ of Errour into another Court and there affirmed the Tenant by execution that is evicted shall have a Scire facias by the equity of that Statute out of the Court into which the writ of Errour was brought because the Scire facias must be grounded upon the record and Accessarium sequitur principale c. â—illein and â—dvowson apâ—endant to a Mannor 8 Albeit a man cannot at all be put out of possession of his Villein in grosse nor directly of his Villein regardant yet may he per obliquum Co. ib. 306. b. 4. c. and by a mean be put out of possession of his villein regardant to a Mannor For by putting him out of possession of the Mannor which is the Principal he may likewise be put out of possession of the Villein regardant which is but accessory And so it is also of an Advowson appendant to a Mannor And therefore by the grant of a Mannor without saying cum pertinentiis the Villein regardant Advowson appendant and the like do passe For if the Disseisor shall gain them as Incidents to the Mannor whose estate is tortious A multo fortiori the Feoffée who cometh to his estate by lawful conveyance shall have them as Incidents And where the entry of the Disseisée is lawful he may seise the Villein regardant or present to the Advowson c. before he enter into the Mannor But it is otherwise where his entry is not lawful And so are our ancient Authors to be intended and a point much controverted in our books to be resolved Vide Dyer 5 6. 9 If the reversion of Lessée for life be granted Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate Attornment â—ollows the â—and the Lessée cannot attorn but the Assignée for the attornment follows the land So likewise if Lessée for life assigneth over his estate upon condition the Assignée shall attorn because he is Tenant of the land c. The demesns c. follows the Mannor 10 Attornment of the Tenant of a Mannor to a Disseisor of the Demesnes shall dispossesse the Lord of the rents and services Co. Inst pars 1. 323. a. 1. parcel of the Mannor because both Demesns rents and services make but one intire Mannor and the Demesnes are the principal c. A charge follows the land 11 If there be 80 acres of Meadow Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise viz. thirtéen acres thereof to A. 10 acres to B c. So as sometime the 13 acres lie in one place and sometime in another and so of the rest In this case if A. being seised of these 13 acres in fée grant a Rent-charge out of those 13 acres generally lying in the Meadow of 80 without mentioning where they lye particularly There as the estate of the land removes the charge shall remove also Advowson â—ollows the Mannor 12 Tenant in tail of a Mannor whereunto an Advowson is appendant maketh a discontinuance Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchesters case the Discontinuée granteth the Advowson to Tenant in tail and his heirs Tenant in tail dieth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before
be performed because in those cases the Covenantor departed with the whole estate unto which the Condition was annexed c. â—he estate â—ile not barâ—d the reverâ—oÌ„ or remainâ—r not barred â—lso 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided Co. l. 8. 77. b. 4. in the Lord Staffords case that no common recovery had against Tenant in taile who is party to the recovery shall barre his issues when the King hath the reversion c. by this Inclusivè the act preserves the reversions and remainders in tail of the Kings grant for they cannot be barred but when the estate tail upon which they depend is barred And this is the reason that when Tenant in taile is in of another estate and suffers a common recovery as Tenant this shall not bar any reversion or remainder because it barreth not the estate of the Tenant in taile being party to the recovery and upon whose estate such reversion or remainder depends For quod non valet in principali in accessoria seu consequenti non valebit quod non valet in magis propinquo non valebit in magis remoto Ordinary subâ—ect to an aâ—tion 27 If before the Statute of Westm 2. cap. 19. Co. l. 9. 39. b. 2. Hensloes case an action lay at the Common Law against the Deputies or Committées of the Ordinary by the name of Executors as appears by 38 E. 3. 26. 42 E. 3. 2. A multo fortiori an action shall lie by the Common Law against the Ordinary himself who is the Principal and from whom the Administrators do now derive their power â—rincipal and Accessary 28 Albeit the Principal be attainted erroneously Co. l. 9. 119. a. 4. in the Lord Sanchiers case either for errour in processe or because the Principal being out of the realm c. was out-lawed or because he was in prison at the time of the Out-lawry c. yet shall the accessary be attainted for the attainder of the Principal stands good until it be reversed and with this agrées the resolution of all the Iustices in the Kings Bench 2 R. 3. 12. And in the 18 E. 4. 9. the Principal was erroneously out-lawed for felony and the Accessory was taken indicted arraigned convicted attainted and hanged and afterwards the Principal reversed the Out-lawry and was indicted and arraigned and found not guilty and thereupon was acquit And in this case forasmuch as there can be no accessary but where there is a principal and here there was no principal the heire of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder either by entry or action at his election For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled because by reversing the attainder against the Principal the attainder against the Accessary which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this doth notably appeare in an ancient book de tempore E. 1. tit Mortdancester 46. where the case was this A. was indicted of felony and B. of of the receipt of A. A. eloigns himselfe and is out-lawed B. was taken and put himselfe upon inquest and was found guilty and was thereupon attainted and hanged and the Lord entred as in his escheat After which time A. came in and reversed the Out-lawry and pleaded to the felony and was found not guilty wherey he was acquit Hereupon the heire of B. brings a Mortdancester against the Lord by escheat and therein sheweth all this matter and so upon a Demurrer it was awarded that the heire should recover seisin of the land For if B. had béen living he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon when A. was no Felon 19. 29. 34 35. â—rincipal and â—ccessary 29 The makers of the Statute of 4 5 P. M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Powlters case observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning c. and not from any accessary have provided that the accessary before the fact in that and other cases there provided for shall be also outed of his Clergy which was taken to be a good interpretation made by that Parliament of all the Acts which concerned that matter For if the Principal shall have his Clergy it would be absurd to take away Clergy from the accessary because if the Principal hath his Clergy before judgement the accessary shall not be arraigned Vide suprà 19. F. N. B. 32. a. primer 30 If Baron and Feme present to an Advowson in right of the Feme which is appendant to the Mannor of the Feme Advowson appendant to an acre of land and after the Baron alien an acre parcel of the Mannor together with the Advowson in fée to a stranger and dies and after the stranger presents and then aliens the acre to another in fée saving the Advowson to himselfe and after the Church becomes void Here the Feme shall present and if she be disturbed she shall have an Assise of Darrein presentment because the Advowson was severed from the acre but if the Advowson were appendant to the acre then ought the Feme to recover the acre before she can present to the Advowson F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas Quare non admisit out of the Kings Bench. and the record is removed by a writ of Errour into the Kings Bench and there affirmed In that case he shall have a writ to the Bishop there and ought to sue a Quare non admisit against the Bishop there upon that record c. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas The like for an attaint if the record be there which is the principal or it may be sued in the Kings Bench upon false verdict given in the Common Pleas if the record be removed into the Kings Bench c. Ibid. 33 A recovery was had in an Assise brought in the Kings Bench The like and afterwards the record was sent into the Common Pleas and the party sued an Attaint upon that record in the Common Pleas For the record is the principal and the Attaint thereupon is accessary which see in tit Assise 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital Principal and Accessory or hath a charter of pardon and plead it c. In that case the Accessory shall not have a writ of Conspiracy because he is discharged by the death of the Principal or by the charter of pardon made unto the Principal c. 19. 28 29. Pl. Co.
qualibet eorum that he was sole seised of the land c. And in this case it was adjudged that the action would not lie singly for the Plaintiffs onely but I. S. and his wife ought also to have joyned in the action because as their interests in the land was joynt so also was the Covenant And therefore these words cum quolibet qualibet eorum were void and signified nothing It is otherwise when the interests are several for then the covenants which have relation thereunto are also several As if a man demise Black acre to A. White acre to B. and Gréen acre to C. and covenant with them quolibet eorum that he is right owner of them c. Here in respect of the several interests by these words quolibet eorum the Covenant is made several whereas if he had demised those acres unto them joyntly the Covenant had béen joint in respect of their joint interest c. 23 A Lord of a Léet cannot distrain for the certainty Co. l. 11. 44. b. 2. 45. a. 2. in Godfreys case belonging to the same Léet unlesse he can prescribe that he and those whose estate he hath have formerly distrained for it because the certainty being against common right and onely for the private gain of the Lord he cannot have it without prescription And by consequent as without prescription he can have no right to the certainty it selfe which is the principal So neither shall he have without prescription power to distrain for it which is Accessary And for the same reason it is that the Lord of a Court Baron shall not distrain for an Amerciament there without prescription for that the Court it self which is the principal consists in prescription It is otherwise in a Court Léet because for the Fines and Amerciaments of that Court distresse is incident of common right c. â—he Court Christian may â—ke a recogâ—sance of a â—ebt 24 If a man acknowledge in Court Christian F. N. B. 41. b. that he owes to another 5 l. to be paid at a certain day and after he pays it not he shall not be sued in Court Christian For that Debt and if he be he shall have a prohibition and an attachment thereupon c. But if by reason of matrimonie or a Testament a man acknowledgeth a debt in Court Christian if the debt be not paid accordingly he may be sued for it there and a prohibition lyeth not in that case because that Court having power to take a conusance of matters matrimonial and testamentary which are the principal it may likewise take Conusance of debts acknowledged thereupon which are accessary c. â—â—incipal and â—ccessary 25 If a man cause one as Principal to be appealed of murther or felony and another as Accessary unto him F.N.B. 115. a. and after he is non-suited in his appeal In this case the Accessary shall have a writ of Conspiracy as well as the Principal â—he like 26 If a Principal and one as accessary are indicted of felony F. N. B. ibid. and are taken and arrested and the Principal is acquit thereby the Accessary is also discharged and the Accessary shall have thereupon a writ of Conspiracy against them that conspire to indict him c. â—t of the â—bt upon a â—t Merchant â—iable 27 If a man make a Statute Merchant in 100 l. payable at divers dayes if he fail of payment at any one of the days F.N.B. 130. h. 131. a. Co. l. 8. 153. a. in Althams case the party to whom the recognisance was made may have execution for that day and shall not stay execution till all the days of payment be past because a Statute savers of the realty Co. l. 10. 128. b. 3. in Cluns case and partakes of the nature of the land and the profits thereof which are severable It is otherwise of an obligation which is so to be discharged at several payments for that is méerly personal and intire c. Co. l. 47. b. 192. b. F.N.B. 9. a. 28 A writ of Dower lyeth as well for a thing appendant or appurtenant to land as for the land it self c. Dower F.N.B. 50. a. 29 If a Parson hath a Chappel annexed to his Parsonage Glebe to which Chappel there is Glebe appurtenant the Parson shall have a Juris utrum as well of that as of Glebe belonging to the Parsonage it self Co. l. 5. 81. b. 3. in Fords case Co. l. 8. 153. a. in Althams case l. 10. 128. b. 3. in Cluns case 30 If I sell unto you any thing for 100 l. to be paid by 20 l. per annum Annual sum not severable rent otherwise in five years I shall not have an action of Debt until all the dayes be incurred because it is but one intire contract But if a man make a lease of lands for five years rendring each yeare 20 l. there in case of a lease of land for years the years are several and the land and the profits thereof severable And therefore the rent being severable as well as the land c. he shall have an action of Debt for each year c. as it was adjudged in 25 E. 3. 8. Co. Inst pars 1. 47. b. Co. l. 2. 66. b. 4. in Tookers case 31 There are two Ioyntenants for life Attornment by one Joyntenant sufficeth the reversioner grants over his estate in fée one of the Ioyntenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantée because the estate of joynt Lessées is intire for every Ioyntenant is seised per amy per tout and by consequent the reversion which is dependant and expectant upon such an estate is intire also c. Co. Inst pars 1. 139. a. 4. 32 Some actions follow the nature of those Actions whereon they are grounded as the writs of Errour Attaint Scire Facias and the like Co. l. 4. 47. b. in Waits case 33 The Feme shall not have more appeals than one for the death of the Baron but ought to joyn all that she will charge The wife 〈◊〉 have but 〈◊〉 appeal in one and the same writ and so also ought she to declare against all in one and the same Court for as the murther or death is onely one so ought the Writ and Count to be one also And therefore if one bring an appeale of death against divers and all but one make default yet the Plaintiff ought to bring his writ and likewise to count against all c. Pl. Co. 72. b. in Rosses case 34 If an execution be sued of the body and of the land Execution 〈◊〉 charged by purchase of part of the land and afterward the Conisor enfeoffs the Conisée of parcel of the land or surrenders parcel of the land unto him or the Fée-simple of parcel
this Case the mesnaltie is not suspended during the life of the Mesne by force of that remainder in taile for a remainder in taile or for life expectant upon an estate for life or in taile shall never suspend a mesnaltie Seigniory Rent c. because albeit the remainder vests presently yet that cannot suspend the present Frank-tenement of the Rent during the life of the first Tenant for life who is indeed the true Tenant to the Lord or to the reversioner upon whom avowry shall be made c. and as a Signiory Rent c. cannot be suspended in part and in esse for part in respect of the Land out of which it is issuing so neither can a Signiory Rent c. be suspended in remainder and yet be in esse for a particular Estate in possession for then necessarily there must insue fractions of Estates and particular Estates shall be created without Donors or Lessors against the Rules and Maximes of the Law c. It is otherwise if the mesne grant his mesnaltie to one for life or in taile the remainder to the Tenant peravaile in Fee for in that case the mesnalty is totally extinct because there the Tenant peravaile hath as high an Estate in the inheritance of the Mesnaltie as he hath in the Tenancie neither is there in that case any possibilitie of reviving the Mesnaltie and here also the mesnaltie is not extinct for the Inheritance and in esse for the particular Estate for life or in taile in possession but the mesnaltie by the remainder in Fée is extinct in all for otherwise this absurdity would follow that there would be a Fée-simple of the Tenancie peravaile and also a Fée-simple of Signiory perament and but an Estate for life or in taile onely of the mesnaltie and so a Tenancie in Fée-simple shall be onely holden of a mesnaltie for life or in taile and a Signiorie in Fee shall be issuing out of a mesnaltie for life or in taile onely which is impossible and can by no meanes be c. Vide 3 H. 6. 1. 15 E. 4. 12. Co. l. 10. 128. a. 4. in Cluns Case 64 If Tenant for life make a Lease for yeares rendring Rent at Easter and the Lessée occupie for three quarters of the yeare A term in … and in the last quarter before Easter the Tenant for life dies here shall be no apportionment of Rent for three quarters of the yeare because the time is intire and in respect thereof there shall be no apportionment neither yet was the Rent due before Easter Howbeit in the same case if part of the land had been avicted before Easter and that Feast had incurred in the life of the Lessor there shall be an apportionment of the Rent but not in respect of the time which doth still continue but in regard that part of the Land demised is evicted c. Vide 27 E. 3. 84. b. Co. l. 10. 134. b. 3. in Read and Redmans Case 65 In Actions meerly personal or personal and in some sort mixt with the realtie in which intire things are demanded Actions Intire if there be divers Plaintifes and one be summoned and severed the death of him which is so summoned and severed where the intire thing survives to the other shall not abate the writ as in a writ of ward of the body or the like c. Co. lib. 11. 4. a. 2. in Auditor Curles Case 66 The Office of Auditors of the Court of Wards according to Statute of 22 H. 8. cap. 46. cannot be granted in reversion The Office of Auditor of the Court of wardâ— intire because they two make up one Iudge or Iudicial Officer of that Court and as none can give judgement of things in futuro so neither may any be admitted a judge in futuro according to the Rule Officia judicialia non concedantur antequam vacent And besides great inconvenience might insue thereupon for he that is at the time of the grant sufficient to execute it may perhaps when it falls be un-capable and un-sufficient for it And albeit that Office be onely in part judicial and in part ministerial and ministerial Offices may be granted in reversion yet in as much as two persons have both of them but one Office are as one Officer that Office is by the said Act made so intire that it cannot possibly be divided for the King cannot make two Auditors of the minister inâ— Office and other two to execute the Iudicial part because then there would be four persons which the Act restraines to two neither yet can the King make one Person to have the judicial voice and the other the ministerial Office For then there would be two Officers and two Offices whereas the Act makes but one Officer and then also one of them shall have a distinct Office and voice whereas the Act joynes them together in two Persons And therefore in as much as the ministerial part is so united with the judicial part and that joyntly in two Persons which make up one intire Officer that there is no possibility of severing the one from the other as the judicial part cannot be granted in reversion so neither can the ministerial c. Trespas intire though against many 67 When in Trespass against divers Defendants Co. lib. 11. b. 1. in S John Heydon Case Ibid. 7. a. 2. 43 El. Rotulo 1694. inter Austeâ— Pl. and Willar and Ald. Ded fen they plead non culp or several pleas and the Iury finds for the Plaintife in all the Iurors cannot assesse several damages against the Defendants because it is but one Trespas and also made joynt by the Plaintifs writ and count And albeit one of them be the most malicious and de facto doth the greatest wrong yet all coming forth to do an unlawful Act and being all of one partie the Act of one is the Act of all that are present and of the same partie And therefore in such case if the hand of one of them onely gives a mortall wound whereupon death followes that is murder in all that are present and of the same partie albeit the others intended not to give a wound so mortal as appeares in Mekallies Case in the 9. Report Copercenery â—intiâ—e 68 If two Caperceners Tenants in taile lose by default F. N. B. 155. h albeit the default of the one is not the default of the other yet in respect of the intirenesse of their estate they shall joyne in a Quod ei deforciat c. M. 46. 3 E. An execution â—ntire 69 If an execution be sued of the body and of the land Pl. Co. Rosses Case and afterward the Conusor enfeoffs the Conuse of parcel of the land or surrenders parcel of the land unto him or the fée-simple of parcel thereof descends upon him in all these cases both body and land are discharged for by the execution against the body land
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
man-slaughter ought to Insue upon a suddaine debate of effray because if it be premeditate it is murder 16 A Feme sole deviseth land to A. and his heirs A femes will revoked by taking Barâ—â— if A. survive him Co. lib. 4. 16. b. 2. in Ferse Hemblings Case they inter-marry the Feme revokes and often saith during the Coverture that A. shall not have it and dies whereupon the heir of the Feme enters And in this Case it was resolved that the making of a Will is but the inception of it and that it taketh not any effect until the death of the Devisor for Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And therefore it would be against the nature of a will to be so absolute that the party which made it being of sane and perfect memory might not have power to counter-mand it and then this taking of Baron being the Femes proper act shall be accounted a counter-mand in Law of the will and thereupon the heir of the Feme recovered the Land c. Payment to a termeâ— no seisin of rent 17 A man deviseth a rent for life out of the Mannor of Dale Co. lib. 6. 57. a. 4. in Bredimans Case and deviseth the Mannor for years the termor enters and payes the Rent after the Term ended the Devisée brings an Assise against the Tetretenant And in this Case it was resolved per totam Curiam that the payment of the rent by the termor was not seisin to binde the Terre-tenant after the determination of the Term in respect of the weakness and meannesse of the interest of the tenant for years who at the common Law could not prejudice nor draw in question the estate of the frank-tenement c. Common ratione commorantiae not good 18 In Trespass the defendant justifies Co. lib. 6. 60. a. 3. in Gatewards Case that all Inhabitants in any antient Messuage within the Town of Dale have used to have Common in the place c. in Solo ratione commorantiae And it was adjudged per totam Curiam that this Custome was against Law for divers reasons amongst which this was one that such a claim of a Common is against the nature and quality of a Common for every Common may he suspended or extinguished but such a Common as that shall be so incident to the person that no certain person shall be able to extinguish it for so soon as he which releaseth c. removes the new Inhabitant shall have it again 71. 3. Allegiance not local 19 In Calvins Case the plea of the Defendants that confined the ligeance of the Plaintiffe Calvin to the Kingdome of Scotland onely Co. l. 7. 9. b. 2. Calvins case Infra ligeantiam Regis Regni sui Scotiae extra ligeantiam Regis Regni sui Angliae and so did make one local ligeance for the natural subjects of England and another local ligeance for the natural subjects of Scotland was adjudged utterly unsufficient because ligeance being a quality of the mind that follows the subject whithersoever he goeth it is against the nature thereof to be local or confined within any one particular Kingdome or Countrey And therefore it is truly said Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and still remaineth within the Kings protection because the King if he please may pardon him and restore him to his Countrey again c. â—eisin of rent â—aversable 20 There is a diversity Co. lib. 9. 33. a. 3. in Backnals Case when the Lord in his Avowrie varies from the truth of the quality of the services by colour of seisin and possession which he hath got of his tenant and when he varies from the truth of the quantity of the services by reason of seisin which he hath got of more then he ought to have of the same nature for where the Lord avowes because the tenant holds of him certain land by fealty rent and suit of Court and alledges seisin of all and for the rent arrear c. whereas the true tenure was by fealty and rent onely In this case the seisin of the suit is not material because it is of another quality and nature and the tenancy originally was not charged with any service of such a quality as suit of Court And therefore in such case the tenure is traversable But where the rent is 2 s. per annum if the Lord hath happed quiet and voluntary seisin of more rent then he ought to have as of 3 s. c. without any cohertion of distresse there because the tenancy is charged with service of such nature and quality and for that it is not to be presumed that the tenant would willingly pay more rent then he ought the seisin is traversable and not the tenure c. Co. Inst p. 1. 117. a. 2. 21 If a man be Lessée of a Villain for life for years or at will Lessee Villain and the Villain purchase lands in fée if the Lessée entreth into the Lands he shall hold the Lands as a Perquisite to him and his heirs for ever for the Law respected the quality and not the quantity of his Estate c. 22 A tenant holdeth of his Lord certain Lands in socâ—age Relief to pay yearly a pair of guilt Spurs â—o ib. 90. b. 4. or five shillings in money aâ— the Feast of Easter In this Case the rent is uncertain and the tenant may pay which of them he will at the said Feast and likewise the tenant may pay which of them he will for relief but if he pay it not when he ought then may the Lord distrain for which of them he will Howbeit if the tenure be to attend on his Lord at the Feast of Christmas or to pay ten shillings there the relief must be ten shillings because it is against the nature of the other to be doubled Co. ib. 207. a. 2 23 If an Obligation of 100 l. be made for the payment of 50 l. at a day and at the day the Obligor tender it Payment of money or wheat Diversity yet in an Action of Debt upon the Obligation if the Defendant plead the tender and refusal he must also plead that he is yet ready to pay the money and tender the same in Court But if a man be bound in 200 quarters of wheat for the delivery of 100 quarters and the Obligor tender at the day the 100 quarters c. he shall not in such case pleaâ— uncore prist because although it be parcel of the Condition yet they being bona peritura if will be a charge for the Obligor to kéep them and therefore in such case he is not bound to say he is alwayes ready to pay the same 100 quarters c.
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
he was a Lay-man and knew not letters and he acknowledged himselfe to be bound to the Plaintife by the said déed in 20 shillings which he hath paid and thereof sheweth an acquitance and as to the residue of the summe in the said Obligation nient son fait And in this Case for as much as the déed consisted upon an intire summe it was adjudged void for all The same is also agréed in 14 H. 8. 26. 30 E. 3. 31. Fee taile read for fee-simple 8 In 30 E. 3. casu ultimo in an Assise before Sheriffe and others in pais Co. lib. 11. 27. b. 3. in Hear Pigots Case the Tenant pleads feoffement of the Plaintifs to him by déed of the Land in plea to have and hold to him and his Heires comprehending a letter of Attorney to deliver seisin c. And in truth the Plaintiffe was a Lay-man ignorant of Letters and the déed with the letter of Attorney was read unto him according to the forme of an Estate taile and for the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver seisin And in this Case the feoffment was adjudged void and the letter of Attorney also albeit it were truly read because it depended upon the feoffment and had relation to the Estate in fée Incidents to a deed And there Thorpe Iustice said that every déed ought to have writing sealing and delivery and when any thing passed from such as have no understanding but by hearing onely there ought also to be reading added to the other three And indéed he that is not lettered is reputed in Law as one that cannot sée but onely heare Blind and all his understanding is by hearing So likewise a man that is learned but cannot sée as to purpose taken in Law as a man not lettered And therefore if a man be learned but blind if the déed be read unto him in another manner c. he shall avoid the déed because all his understanding in such Case is by his hearing as it was resolved in Shuters Case in the Starre-chamber M. 9 Jac. who was a man of 115 yeares of age at the time of his death Vide John Pinchons Case in 37 E. 3. 3. cited in Cooke ubi supra Vide 63. 35. 85 The Law favoureth Strangers that are neither parties nor privies â—ord Tenant â—eofment â—pon Condiâ—â—on 1 Lord and Tenant and the Tenant maketh a feofment in Fée upon Condition the Feoffor dyeth Co. Inst p. 1. 76. b. 1. after his death the Condition is broken and the Heire within age entreth for the Condition broken In this Case albeit the Feoffor had no Estate or right in the Land at the time of his death but onely a Condition and which was broken after his decease yet the Heire shall be in ward for the Lord was neither partie nor privy to the Conditional feoffment and therefore there could be no default in the Lord to barre him of his wardship Mannor â—ondition â—dvowson â—pendant 2 A man seised of Land whereunto Condition is appendant Co. ibid. 122. b. 1. is disseised In this Case the disseisée cannot use the Condition until he entreth into the Land whereunto it is appendant But if a man be disseised of a mannor whereunto an advowson is appendant he may present unto the Advowson before he enters into the Mannor And the reason of this diversity is because in the Case of the Condition it should be a prejudice to the Tenant of the soile for if the disseisée might put on his cattle the disseisor might do so too which would be a double charge to the Tenant It is otherwise of an Advowson c. Co. ibid. 132 b 2. 3 Profession or entring into Religion is a Civil death so that his heire shall inherit howbeit Profession Tolleth not entry this shall work no prejudice or wrong to a stranger that hath a former right And therefore if the disseisor entreth into Religion and is professed so as the Land descends to his heire yet this descent shall not toll the entry of the disseisée c. Co. ibid. 148 b. 3 4 If there be Lord and Tenant of 40 acres of Land by fealty and 20 shillings Rent if the Tenant maketh a gift in tail Rent suspended in all or a lease for life or yeares of parcel thereof to the Lord in this Case the Rent shall not be apportioned in any part but the rent shall be suspended for the whole for a Rent-service saith Litt. § 222 may be extinct for part and apportioned for the rest but regularily it cannot be suspended in part by the Act of the partie and in esse for another part So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée the Rent is suspended in the whole In parts Howbeit a Seigniory may be suspended in part by the Act of a stranger As if two joynt-tenants or coperceners be of a Seigniory and one of them disseise the Tenant of the Land the other joynt-tenant or copercener shall distraine for his or her moity for it is no reason that they being strangers should suffer any prejudice by the Act of another c. Litt. §. 222 Co. ibid. 149 b. 4 5 If a man hath a Rent charge to him and his heires Rent-charge not extinct to a stranger issuing out of certain Land if he purchase any parcel thereof to him and his heirs all that rent-charge is extinct so as the unity of possession of parcel of the Land and of the Rent by the Act of the party extinguisheth the whole Rent Howbeit if the grantée of a Rent-charge grant the Rent to the Tenanâ— of the Land and to a stranger In this Case the Rent shall not be totally extinct but onely for the moity c. Co. ibid. 208 b. 3. Co. l. 2. 75. b. 3. Lord Cromwels Case Co. ib. 128. a. 3 Co. lib 6. 31. a. Bothies Case 6 As concerning a Condition of an Obligation Condition Stranger Feoffee Obligee and upon a Feofment there is a diversity where the Act that is local is to be done to a stranger and where to the obligée or feoffor himselfe As if one make a feofment in Fée upon Condition that the Feoffée shall enfeoffe a stranger and no time limited the feoffée shall not have time during his life to make the feofment for then he should take the profits in the interim to his owne use which the stranger ought to have And therefore in that Case Co. ibid. 218 b. 4. he ought to make the feofment as soon as conveniently he may And so it is likewise of the Condition of an Obligation It is otherwise when the Condition is that the feoffée shall re-enfeoffe the Feoffor for there the Feoffe hath time during his life unlesse he be hastned
in Capite which amounted to the other two parts VV. B. devâ—seth Thoby to his wife upon condition that she should take no former Iâ—ynture and dies the Feme in pais refuseth the Mannor of H. Here the question was whether the will was good for the whole Mannor of Th. or but for a part by the 32 34 H. 8. And it was adjudged that this refusal shall have onely relation as to the Mannor of H. and not to the Mannor of Th. and to the intent onely that the Feme should not be prejudiced by any thing concerning the Mannor of Hinton Howbeit that relation shall not prejudice the heir which is a third person and upon whom by the death of the devisor part of the Mannor of Thoby descended c. Mesnalty â—ent-seck â—eisin 12 If a â—esnalty become rent-seck by surplussage Co. l. 4 9. a. 4. in Bevils case as if the tenant holds of the Mesne by two shillings and the Mesne holds over of the Lord by 12 d. and the Lord purchase the tenancy In this Case the ancient seisin of the intire rent of 2 s. is sufficient for the surplussage being now changed to a rent-seck of 12 d. because the Mesnalty is extinct by the Act of the Lord and of the tenant peravail and the nature of the rent of the Mesne is not changed by his own Act but by the Act of others And therefore albeit the rent is become seck yet the Mesne shall distrain for it c. as it is said in 2 E. 2. tit Extinguishment 6. â—opihold surâ—â—nd before â—â—mit 13 The heir of a Copihold tenant may surrender to the use of another before admittance as any other Copiholder may Co. l. 4. 24. b. 1 in Browns ca. and fol. 23. a. Fitches Case but this shall not prejudice the Lord of his Fine due unto him by the custome of the Mannor upon the descent So admittance of a Copihold tenant for life is an admittance of him in remainder to vest the Estate in him Howbeit that shall not bar the Lord of his Fine which he ought to have by Custome c. â—â—pihold â—ease â—eisor 14 A Release by déed and not by way of surrender made by one Co. l. 4. 25. b. 3 in Kite and Queintons case that hath right to a Copihold to one that is in possession thereof by lawful admittance shall be effectual to extinguish that right and to establish the possession of the party so admitted because in such Case the Lord cannot suffer prejudice for that he hath his Fine but if a Copiholder be outed by wrong there his release by déed to the disseisor or any other wrong-doer shall not transferre his right nor any way bar him thereof because that would tend to the prejudice of the Lord being a third person for so the Lord might lose his Fine and services c. And therefore a release by déed in such Case is utterly void c. Co. lib. 4. 24. b. in Marrels Case 15 If the Lord of a Copi-hold Mannor Alien the Inheritance of one of the Copi-holds to another Copi-hold severed from the Mannor that shall not alter the nature of the Copi-hold but that it shall still retaine the quality of Copihold land to descend to the next heire c. for Custome having once established and fixed that Estate it cannot be changed by the Act of the Lord neither yet is it reason that the Act of the Lord and the alienée should in that Case prejudice the Copi-holder who is a stranger Howbeit such a Copi-hold after such severance of it from the Mannor can never afterwards be conveyed by surrender or otherwise but must still be left to descend c. Co. lib. 4. 118. a. 3. in Actons Case 16 If a Baronesse in her Widdow-hood retain a Chaplein according to the Statute of 21 H. 8. c. 13. and after marry a Péere of the Realme Retainer of a Chaplain Albeit this séemes to be casus omissus in that Act yet shall not such mariage be a Countermand of the retainer for Res inter alios acta c. Co. l. 5. 99. b. 4. 17 Tenants at Will Act of tenants or other particular Tenants or occupiers of Land cannot by their Act bind him that hath the Inheritance In Rookes Case Co. l. 6. 12. b. 4. Morriâ—â—s Case 18 It is said that if two joynt-tenants be with warranty Joint-tenants Warranty Severalty and one of them disseiseth the other and the disseisée brings an Assise and upon his prayer hath judgement to recover in severalty In this Case the Warranty is gone For albeit he hath partition by judgement yet he that is bound by the Warranty is neither partie nor privy or any way consenting unto it as he is when the partition is made by force of the Act of Parliament Co. l. 6. 50. b. 2. in Boswels Case 19 It is agréed per totam Curiam in 50 E. 3. 14. Presentment by terme Guardian b. that if Tenant for yeares or Guardian bring a Quare Impedit and the Defendant hath a Writ to the Bishop against the termor or Guardian and his presentée is admitted instituted and inducted yet the Tenant of the Franktenement is not put thereby out of possession c. Co. l. 6. 51. b. 4. in Boswels Case 20 No imcumbent shall be removed upon the Statute of West 2. In Quare Iâ—pedit the Iâ—cumbent 〈◊〉 cap. 2. by Quare Impedit or Assise de darrien presentment purchased within the six moneths unlesse the incumbent be named in the writ quia res inter alios acta alteri nocere non debet Although the incumbeâ—t be in by defeasible title And with his accords 9. H. 6. 32. For quicunque aliquid statuerit parte inaudita altera aequum licet statuerit haud equus fuerit Co. lib. 6. 57. Bredimans Case 21 A man deviseth rent for life out of the Mannor of D. and deviseth the mannor for yeares to another Rent paid bâ— the Lessee 〈◊〉 prejudice to the terre-teâ— the termor enters and pays the Rent afâ—er the terme ended the devisée of the Rent brings an Assise against the Terre-tenant And it was adjudged that the payment of the Rent by the Tenant for yeares was not sufficient seisin to bind the Terre-tenant after the term determiâ—ed For there is a diversity betwéen receiving and giving of seisin because it is true that he which hath but a term for yeares may take seisin to the benefit of him that hath the Frank-tenement In 45 E. 3. 26. The grantée for yeares of a Common useth it this gives seisin to him in Reversion 22 Ass 84. accord 11 E. 3. Assise 86. payment to the grantée for yeares of a Rent is sufficient seisin for him in Reversion in M. 39 40. El. the Countesse of Northumberlands Case in the 5. Rep. fol. 97. b. Presentment by the grantée for yeares of
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
shall be void and after the Lessor grants the Reversion over the condition is broken the Grantée shall take advantage of that Condition by the Common Law for the lease is thereby absolutely void But if a lease for life had béen made upon such Condition the grantée shall not take benefit of the breach of the Condition because a frank-tenant whereof a praecipe lies cannot so easily cease but it is voidable by entry after the Condition broken which cannot by the Common Law be transferred to a stranger c. and with this agrées 11 H. 7. 17. Br. Condit 245. 2. Mar. per Bromley Rule 27. Co. l. 9. 135. a 1 in Ascoughs Case 20 If the Lord grant his Seigniory for yeares Seigniory Attornment Lessee for 〈◊〉 for yeares the remainder to the Tenant peravaile for life in this Case the Seigniory is suspended because the Tenant for life hath the frank-tenement of the Seigniory and he is Tenant to every praecipe of the Seigniory as in the Case of Littleton l. 2. cap. Attornment fol. 128. If land be let to a man for term of yeares the remainder to another for term of life and after the Lessor grants over the reversion and he in the remainder for life attornes this is a good attornment and shall binde the Lessée for yeares without any attornment made by him For he was Tenant of the frank-tenement and at the Common Law the termor for yeares was subject and under the power of the Tenant of the frank-tenement for he shall not falsifie a recovery at the Common Law against the Tenant of of the frank-tenement because he hath but a Chattel c. Co. lib. 10. 48. b. 3. in Lampets Case 21 If Lessée for 1000 yeares be ousted by the Lessor Frank-teâ—â—â— cannot drâ—â—â— in a Chattel and he maketh a lease for 2 yeares to another In this Case the Lessée for 1000 yeares may release to the Lessée for 2 yeares but if the Lessor disseise his Lessée for life and make a lease for 1000 yeares yet the Lessée for life cannot release to that Lessée for yeares because a frank-tenement is too high to be drowned in a Chattel Co. lib. 10. 87. a. 4. in Leonard Loveis Case 22 If a term be devised to one and to the heires males of his body A term shall go to the Eâ—ecutors his heire shall not have it but his Executors for the term which is but a Chattel cannot be entailed and such a devisée may alien the term to whom he pleaseth and so it was adjudged Tr. 28 Eliz. in B. R. in Peacocks Case and 21 Eliz. resolved by Anderson and Walmesly being referred unto them out of the Chancery betwéen Higgins and Milles. Sée also Dier 7. 28 H. 8. Pl. 8. F. N. B. 34. f. 23 If a Man make a devise of lands or Tenements Court Christiaâ— the devisée shall not sue for them in the Ecclesiastical Court and if he do the other party shall have a prohibition Otherwise it is of personal goods and also of Chattels real as a term of yeares a ward c. for for such the devisée may sue in that Court c. Co. l. 3. 26. a. 3. c. in Butler Bakers Case 24 An Estate of Inheritance or frée-hold cannot be put out of a man by any verbal wayver disclaimer or dis-agréement in pais Disclaim in pais of interâ— in goods 〈◊〉 so of frechâ— or otherwise then in Court of Record but a man may disclaime or disagrée to Interest in Chattels in pais and no such dis-agréement in a Court of Record is in that Case necessary For example If Lands be given to Baron and Feme in taile or in sée the Baron dies the Feme in this Case cannot divest the frank-tenement out of her by saying she dis-agrées to the grant or that she will have nothing to do with the land So if the Baron aliens his land and takes again an Estate to him and his wife in taile the Baron dies the Lord of whom the land is holden by Knight-service supposing that the Baron died solely seised by parol assignes dower to the Feme which she accepts yet this refusall of the Inheritance and acceptance of the Dower in pais shall not divest the frank-tenement out of her Likewise if a Charter of feofment be made to four and seisin delivered to three in the name of all and after the seisin delivered the fourth comming and séeing the déed dis-agrées to it and saith he will have nothing to do with the land yet it was adjudged in 13 R. 2. Title Jointenance that this dis-agréement by parol in pais could not divest the frank-tenement out of him And Thorpe in 53 E. 3. Tit. Disclaimer saith that in such Case the tenancy remaines in all until dis-agréement in Court of Record But if A. make an Obligation to B. and deliver it to C. to the use of B. this is the déed of A. presently Howbeit if C. offer it to B. there B. may refuse it in pais and by such refusal the Obligation shall be his force There is the same Law of a gift of goods and Chattels if the déed be delivered to the use of the Donée the goods and Chattels are immediately in the Donée before notice or agréement but the Donée may make refusal of such gift in pais and thereby the property and Interest shall be divested and such dis-agréement is not necessary to be made in a Court of Record as in Case of a frée-hold c. Condition to be void 25 There is a diversity betwéen a Condition annexed to a frée-hold and a Condition annexed to a lease for yeares Co. Inst p. 1. 214. b. 3. for if a man make a gift in taile or a lease for life upon Condition that if the Donée or lessée goeth not to Rome before such a day the gift or lease shall cease or be void the grantée of the Reversion shall never take advantage of this Condition because the Estate cannot cease before an entry but if the lease had béen but for yeares there the grantée should have taken advantage of the like Condition because the lease for yeares ipso facto by the breach of the Condition without entry was void for a lease for yeares may begin without Ceremony and also may end without Ceremony And of a void thing a stranger may take benefit but not of a voidable Estate without entry Rent issuing 〈◊〉 of fee and lease hold 26 A man seised of Black-acre in fée Co. 7. 23. a. Buts Case and possest of White-acre for yeares grants a Rent charge for life with clause of distresse in both In this Case the Rent issues onely out of Black-acre for out of White-acre in regard of the meanesse of the Interest thereof a frank-tenement cannot issue neither shall it be put in view and acceptance of the Lease of White-acre by grantée of the
Mother shall enter into the lands of the part of the Father c. Tenants in Common Chattels Personal 5 Tenants in Common of Personal goods have an equal right in them Howbeit the one may take them all from the other Co. ibid. 200 a. 2. and shall have them to his owne use if he can hold them but the other if he can re-gaine them by Catch-pole Law he shall have them And so it is also of real Chattels that are intire but not of other Chattels real that are severable c. Rent by incoachment 6 If there be Lord and Tenant by fealty and 2 s. Rent Co. l. 4. 11. b. 2 in Bevils Case and the Lord by incroachment viz. by the voluntary payment of the Tenant happeneth seisin of more Rent then he ought to have In this Case the Law is so great a favourer of seisins and possessions that the Tenant shall not avoid this seisin had by incroachment in avowry unlesse it be in some special Cases which sée ubi suprà 99 The Law respecteth matters of profit and Interest largely Of pleasure skill ease trust authority and limitation strictly Co. Inst p. 1. 46 b. 2. 1 Albeit to divers purposes a Lessée for yeares is not Tenant before entry as a releas made to him is not good to increase his Estate Interest terminate before entry neither yet can the Lessor before entry grant away the reversion by the name of the reversion neverthelesse he before entry hath an Interest inter esse termini grantable to another So that although the Lessor die before the Lessée enters yet the Lessée may enter into the lands So also if the Lessée die before he entred yet his Executors or Administrators may enter because he presently by the lease hath an Interest in him And therefore if the lease be made to two and one die before entry his Interest shall survive c. Co. ibid. 49. b. 2. 181. b. 2. Co. l. 5. 94. b. 4. in Barwiks Case 2 If there be two joynt attorneys to receive livery for another Two joynt â—â—torneys Two joynt Lessees and livery of seisin is made to one of them in the name of both this is cléerly void because they had but a méere and bare authority and they both doe in Law make but one attorney unlesse the warrant be joyntly and severally But if a lease for yeares without déed be made to A. and B. the remainder to C. in fée and livery is made to A. in the absence of B. in the name of both it séemeth in this Case the livery is good to vest the remainder because the Lessée for yeares that tooke the livery hath an Interest c. Co. ibid. 52. a. 4. c. 3 There is a diversity betwéen an authority coupled with an Interest and a bare authority For example Difference between a bare authority and an authority coupled with an interest There was a custome in a Mannor for the Lord to grant copi-hold lands always in fée-simple and never for any lesser Estate and the Lord did grant to one by copy for life the remainder to another and the heires of his body And it was adjudged H. 36. Eliz. Rot. 492. inter Sharton Barns in an ejectione firme in B. R. that the grant and remainder ever was good because the Lord having authority by Custome and an Interest withall might grant any lesser Estate for in this Case the Custome that enableth him to the greater enableth him to the lesser Omne majus continet in se minus c. So also if one as Procurator or attorney to another present to his own Benefice he thereby puts himselfe out of possession because of his Interest coupled with his authority and for that the presentée commeth in by the Institution and Induction of the Ordinary If the Lord or a Grantée of a Rent-charge had béen also Cestuy que use of the land and after the Stat. of R. 3. and before the Stat. of 27 H. 8. Cestuy que use had made a feofment in fée of the land albeit in this Case the land passeth from the feoffées and his feofment is warranted by the power given to him by the Statute yet the Seigniory or Rent-charge is extinct by his feofment for that he had not a bare authority as an Attorny hath but also an interest coupled therewith But he that hath but a bare authority to do a thing is so farre from doing more then which he is expressely authorised to do that if he strictly pursue not his authority the Law adjudged that which he doth to be absolutely void As if a man be disseised of Black-acre and White-acre and a warrant of attorney is made to enter into both and to make livery there if the attorney enter into Black-acre onely and makes livery secundum formam cartae In this Case the livery of seisin is void because he doth lesse then his warrant for the Estate in White-acre cannot be divested without an entry So likewise albeit the warrant be general viz. to deliver seisin yet the attorney cannot deliver seisin within the view for his warrant is intendable in Law of an Actual and expresse livery and not of a livery in Law and so it was resolved in Yarhams Case P. 3. El. in Co. Banco In like manner albeit the warrant of Attorney be indefinite without limitation of any time yet the Law prescribeth a time which the attorney is bound to observe viz. in the life time of the Feoffor and Feoffée for if either of them die before Livery made that is a countermand of the Letter of attorney and also the Déed it self is become of none effect because in that case nothing doth passe before Livery of seisin for if the Feoffor dieth the land descends to the heir and if the Feoffée dieth Livery cannot be made to his heir because then he should take by purchase whereas heires were named by way of limitation And herewith agréeth Bracton Item Oportet quòd donationem sequatur rei traditio etiam in vita donatoris donatorii c. â—ailment of Caâ—el 4 If I bail unto a man my shéep to compasse his land or my oxen Co. ib. 57. a. 4. to aire his land and he kill any of them I may have an action of trespasse or an action of trespasse upon the case against him notwithstanding such bailment because when the Bailée having but a bare use of them taketh upon him as an owner to kill them he loseth the benefit of the use of them which was limited with this caution viz. that he should not misuse them c. Gage of goods 5 If goods be delivered to one as a gage or pledg Co. ib. 89. a. 4. and they be stollen he shall be discharged because he hath a property in them and therefore ought to kéep them no otherwise than his own but if he that gaged them tendred
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
the issue had 〈◊〉 recompence for the moity of the entailed Land and such Partition made no Discontinuance because in that Case it passed not by Livery of Seisin which is an act in Law but the Partition is in truth lesse then a Grant for that it maketh no degrée but each Copercener is in by discent from the Common Auncestor Littl. §. 263. Co. ib. 174. b. 3 27 If there be three or four Perceners who make Partition The Parceners part evicted and the part of one of them is evicted by lawfull entry in this Case she shall hold the other Lands with her other Sisters and so it is also betwéen the surviving Perceners and the Heires of the other or with the Heires of Perceners all being dead It is otherwise of Ioyntenants that make Partition by Déed for that is by act of the parties Littl. §. 290. Co. ib. 187 a. 3. and then the Warranty is destroyed but if Ioyntenants make Partition by Writ upon the Statutes of 31 or 32 of H. 8. the Warranty continues because that is by Act and in Course of Law but Perceners and their Heires coming in by Act of Law viz. by Discent have the same Priviledg above Ioyntenants after Partition as aforesaw Co. ib. 81. b. 2. 28 There is a Diversity betwéen Authorities created by the parties for private Causâ—â— and Authority created by Law Authorities 〈◊〉 do a thing for Execution of Iustice As if a man make a Letter of Attorney to two to do an Act if one of them die the Survivour shall not do it but if a Venire Facias be awarded to four Coroners to impanel and return a Iury and one of them die yet the other shall execute and return the same So if a Charter of Feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by them four or thrée joyntly nor by any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to four or thrée joyntly or severally to arrest the Defendant two of them may arrest him because it is for the Execution of Iustice Co. ib. 192. a. 2 Littl. §. â—02 29 If there be two Co-perceners in Fée Partition of Parceners anâ— Joyntenants and the one makes a Lease for life this is no severance of the Co-percenery for no withstanding that Lease the Lord shall make one Avowry upon them both but if there be two Ioyntenants and one of them makes a Lease for life this is a severance of the Ioynture and several Avowries shall be made upon them And here the Reason is because Co-perceners come in by Discent but Ioyntenants by purchase the first â—â—ing the Act of Law and the other the Act of the Party Co. ib. 215. a. 1. 30 At the Common Law before the Statute of 32 H. 8. 34. Conditions iâ— Deed and 〈◊〉 Law the Grantée of a Reversion after an Estate for life or yeares could not take advantage of a Condition in Déed as if Land were let for life or yeares rendring Rent upon Condition that if the Rent were not paid at the day the Lessor and his Heires might re-enter here if the Grantée of the Reversion could not before that Statute take advantage of Entry upon the breach of that Condition for the non-payment of the Rent at the day limited by the Lease Littl. § 384. Co. ib. 236. b. 3. But before that Statute and since the Grantée of a Reversion may take advantage of a Condition in Law As if a man make a Lease for life there is a Condition in Law annexed unto it that if the Lessée doth make a greater Estate c. that then the Lessor may enter if this and the like Conditions in Law which do give an Entry to the Lessor the Lessor himself and his Heires shall not onely take benefit of it but also his Assignée and the Lord by Escheat every one for the Condition in law broken in their own time Condition apportioned 31 Since the making of the said Statute of 32 H. Co. ib. 215. a. 3 the Grantée of part of the Reversion shall not take advantage of the Condition as if a Lease be made of three acres reserving a Rent upon Condition c. and the Reversion is granted of two acres the Rent shall be apportioned by the act of the Parties but the Condition is destroyed for that it is intire and against Common Right Dumpors case Co. l. 4. 120. a. 4. But by act in law a Condition may be apportioned as if a lease for yeares be made of two acres one in the Nature of Borough English and the other at the Common Law and the lessor having issue two Sonnes dieth each of them shall enter for the Condition broken for the Reversion Rent and Common are divided by act in Law In the King Case also the Condition in such Case shall not be destroyed but shall still remain in the King â— Condition â—â—possible by 〈◊〉 act of God 32 If Feoffment be made upon Condition Co ib. 219. a. 1. Littl. § 352. that the Feoffée shall give the land to the Feoffor and his Wife to have and hold to them and the heires of their two Bodies the Remainder to the right heirs In this Case if the Feoffée die before any Feoffment made then is the Condition broken because he made not the Estates c. within the time prescribes by the law for when no time is limited for the doing of it then the Feoffée at his peril may perform the Condition during his life although there be no request made or else the Feoffor or his heires may enter but if the feoffment be made upon Condition that the Feoffée before the Feast of S. Michael next coming shall give the Land to the Feoffor and his Wife in tail ut supra and before the day the Feoffée dieth the State of the Heir of the Feoffée shall be absolute because a certaine time is limited by the mutual agréement of the parties within which time the Condition becometh impossible by the Act of God And therefore it is necessary in such Case when a day is limited to add to the Condition that the Feoffée or his Heires shall performe the Condition The Mortgaâ—â—â— dies beâ—â—t the day 33 If a man morgage his Land to another Co. ib. 219. b. 3 upon Condition that if the Mortgageor and I. S. pay 20 s. at such day to the Mortgagée that then he shall re-enter Here if the Mortgageor being in full life will not pay the Money but refuse to pay it and I. S. alone tenders it the Mortgage may refuse it But if the Mortgageor die before the day and I. S. payes the Money to the Mortgagée this is a good performance of the Condition and yet the Letter of the Condition is not performed
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
upon an Infant and present Usurpation upon an Infant which Infant hath an Advowson by discent and after the Incumbent die the Infant shall present and if he be disturbed he shall have an Assise de darreine presentment But if the Infant purchase the Advowson and present and after the Church is void and a stranger presents and usurpes upon the Infant and after the Incumbent dies in this Case the Infant shall not have an Assâ—â— of darreine presentment but shall be put to his writ of right because in the first Case he is in by Act in Law viz. discent but in the last Case by act of the party F. N. B. 34. s. 52 If a Feme purchase an Advowson and takes Baron A Feme hath an Advowson and the Church is void and a stranger presents and the Baron suffers this usurpation here by this usurpation the Feme shall be out of possession after the six moneths past and shall be put to her writ of right of Advowson if she had presented before but if she had not presented before she is without recovery howbeit the Law is otherwise where the Feme hath the Advowson by discent or by course of inheritance which is an Act in Law Gâ—ant good without acâ—â—eament 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant before the Tenant hath attorned Fitz. N. B. 60. I but if a Reversion escheat to the Lord he shall have a Writ of Waste against the Tenant without any Attornment Or if the Lord of a Villain claim a Reversion that the Villain hath here also the Lord shall have a Writ of Waste against the Tenant if he make Waste without Attornment So also if the King grant a Reversion by his Letters Patents the Grantée shall have a Writ of Waste without Attornment because the Grantée being in by matter of Record he is conceived in by act of Law in like manner if before or since the Statute of Wills a man deviseth a Reversion to one in Fée the Devisée shall have a Writ of Waste against the Tenant without Attornment for before the said Statute he was in by Custom and since the Statute by force of the same Statute which are acts in Law A writ of â—esne 54 If Tenant for life be distrained by the Lord Paramount for Services Fitz. N. B. 136. g. a Writ of Mesne doth not lye for him against him in remainder or reversion but against the Mesne yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner because she comes to her Estate by Act of Law 55 In real Writs original if one be summoned and severed Co. l. 10. 134. b 2. in Read Redmans Case and afterwards dies which is the Act of God this shall abate the Writ but the taking of Baron or Entry into the Land by the party that is so summoned and severed shall not abate the Writ because these are acts of the party and the Writ by such acts where there is no summons or severance becomes onely abatable Guardian may â—ead without â—ewing a Deed. 56 A man cannot plead in any action Littl. §. 365. Co. Inst p. 1. 225. b. 4. that the Estate was made in Fée Fée-taile or for life upon Condition without vouching a record thereof or shewing a Writing under Seal proving the same Condition but if a Guardian in Chivalry in the right of the Heir entreth for a Condition broken he shall plead the Estate upon Condition without shewing of any Déed because his Interest is created by the Law And so it is also of a Tenant by Statute Merchant or Staple or by Elegit Howbeit the Lord by Escheat Co. ib. 226. a. 1 although his Estate be created by Law shall not plead a Condition to deseat a Frée-hold without shewing a Déed because the Déed doth belong unto him Vide supra Ru. 34. 〈◊〉 â—iry 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for yeares is alwayes grounded upon a privity and if the privity fail Dyer 4. b. 3. 24 H. 8. the action also failes and so it is adjudged in 18 H. 6. that if a man make a Lease for yeares rendring rent albeit the Lessee never enters or occupies the land yet the Action of Debt lyes for the privity But in 9 H. 6. a man makes a lease for yeares rendring rent the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent because he was not privy but a stranger to the first Lease Howbeit when the Law makes a privity it is otherwise as if a Lease be made to one for yeares rendring rent and the Lessée makes his Executor and dies an action of Debt lies against the Executor for the rent because he is made privy by the Law â—portion â—ct of rent 59 At the Common Law there could be no apportionment of rent Dyer ib â—â— by the act of the party but onely by act of Law for if the Tenant before the Statute of Quia Emptores terrarum Anno 18. E. 2. had made a Feoffment in Fée of part of the Tenancy the Lord might distrain in that part for all the rent but at the Common Law if a man had made a Lease for yeares of two acres of Land the one in Borough English and the other in Gavelkind and had issue two Sonnes and died In this Case this rent should be apportioned because this rent discended to them by Course of Law So if Lessée for years make a Feoffment of parcel of the Land leased and the Lessée enter for the Forfeiture into that parcel In this Case also the rent shall be apportioned because this Title of Entry is given to the Lessor by the Law Dyer 246. 68. 8 Eliz. 60 After the Teste of a Writ of Covenant Fine of Feme Sole and the Dedimus potestatem and the Conusance of a Fine taken of a Feme Sole and before the day in Bank to record and engrosse the Concord the Feme takes Baron yet it shall be recorded and engrossed at the Fine of the feme sole for she had done all that in her lay to do And such a fine shall bind the feme and her Heires and also the Baron as it séems for the marriage of the feme was her own Act It had béen otherwise if in that mean time she had died being the Act of God for then the Writ of Covenant had abated 115 Utique fortior est dispositio Legis quam hominis Co. Inst p. 1 310. a. 1. â—87 b. 2. 1 If a reversion be granted to a man and a woman Attornment 〈◊〉 Baron and Feme they are to have moities in law but if they inter-marrie and then attornment is had they shall have no moities and yet by the purport
if A. seised of a Mannor part in Demesne part in Service demiseth bargaines and sells the Mannor to W. here it is in the Election of W. to take it either by Demise at the Common Law or by Bargaine and Sale according to the Statute Co. l. 3. 24. b. 2. in Walkers Case 13 It was said that if the Lessée assign over his term Lessee Assignment Rent Avowry the Lessor may charge the Lessée or his Assignee at his Election but if the Lessor accept the Rent of the Assignée he hath determined his Election and shall not have an action against the Lessée afterwards for Rent due after the Assignment no more then if the Lord once accept the Rent of the feoffée he shall avow upon the feoffor Co. l. 3. 26. b. in Butler Barkers Case 14 Vpon this Rule likewise it is that the Law doth allow Agréement or Disagréement to an interest offered to the party Lord. Tenant Agreement Disagreement that is to have it So if there be Lord and Tenant and the Tenant by Déed enfeoff the Lord and a stranger make livery to the stranger in name of both in this case if the Lord onely by Parol disagrée to the Estate it is nothing worth for a Frank-tenement shall not be so lightly devested by naked Parol in pais but on the other side if the Lord enter into the Land generally and take the profits this act shall amount to an Agréement to the Feoffment Howbeit if he enter into the Land and distraine for his Seigniory this act shall amount to a Disagreement of the Feoffment and shall devest the Frank-tenement out of him and with this accords 10 E. 4. 12. by all the Justices 〈◊〉 and 〈◊〉 â—â—â—ement â—â—greemenâ— 15 If Lands be given to Baron and Feme in tail Ibid. b. 3. and after the Statute of 32 H. 8. 36. the Baron alien the Land to the use of himself and his heires and after devise it to his Wife for life and dies here the Feme inter-claiming by parol the Estate for life this is a good Disagréement to the Estate of inheritance and a good Agréement to the Estate for life and with this accords 18 El. 351. b. Dyer for the Law gives her power to take which of them she will â—â—rlon reâ—â—d 16 If A. make an Obligation to B. and deliver it to C. to the use of B. this is the Déed of A. presently but when C. offers it to B Ibid. b. 4. here B. may refuse it in pais and thereby the Obligation shall lose his force and with this accords H. 1. El. Rot. 442. in Tawes Case reported by Serjeant Benlowes and by Dyer 167. But in this Case it séemes upon an action brought for it he cannot plead non est factum because it was once his Déed Gift of â—ods refuseâ— There is the same Law also of a Gift of Goods and Chattels if the Déed be delivered to the use of the Donée the Goods and Chattlels are in the Donée presently before notice or agréement but the Donée may make refusal in pais and thereby the property and interest shall be devested and such Disagréement néed not be in any Court of Record â—â—covery â—â—mpence 17 A Common Recovery is not restrained by the Statute de donis but it shall barre the issue in tail because of the intended recompence Co. l. 3. 60. a. 4. in Lincoln Colledg Case wherewith the Tenant in tail séemes to be content the Law thereupon presuming that so to suffer the Recovery tends rather to his benefit then prejudice â—â—â—â—ture â—â—â—s 18 B. enfeoffes another to the use of himself for life Co. l. 4. 3. a. 1. in Vernous Case the remainder to his Wife for life for her joynture upon Condition to perform his Will and then dies the Wife enters and agrées to it and after brings her Writ of Dower but her acceptance barres her Writ of Dower for albeit her Dower was an absolute Estate for life and this a Conditional Estate yet it being an Estate for life and she accepting thereof the Law presumes she estéemed it a greater advantage than to take her Dower it being in her power after the death of her Husband to take or waive it So if a man make a Feoffment in fée to the use of himself for life and after to the use of his Wife durante viduitate sua for her joynture if after the death of her husband she accept thereof it shall barre her of her Dowâ—r 〈◊〉 â—â—â—ance 19 Before the Statute of 21 H. 8. 13. if one had a Benefice with Cure and accepted another Benefice with Cure Co. l. 4. 75. b. 2. in Hollands Case the first Benefice was void Howbeit this was not an avoidance by the Common Law but by the constitution of the Pope of which avoidance the Patron might take notice if he would and might present if he would without any Deprivation c. 〈…〉 at will 20 Feme Tenant for life makes a Lease at will rendring Rent Co. l. 5. 10. a. Hensteads case and after takes Baron and she and her Baron brings an action of Debt for the arrerages after the marriage In this Case the Will is not determined by the inter-marriage for albeit the feme by taking Baron hath submitted her selfe to his Will as her Head yet because it may be prejudicial to the Baron to have the Leaâ—e determine for then he might lose the Rent due at the very next Rent-day after the marriage and it cannot prejudice the feme at all to have it continue and it being in the power of the Baron to make it continue or determine the Law adjudgeth it to continue 〈◊〉 â—â—â—chant â—â—ple 〈…〉 shewed 21 Tenant by Statute Merchant or Staple c. shall not be forced to shew a Déed in Court for the maintainance of their Estate Co. l. 5. 75. a. 2. in Wymarks Case for they come to the Possession of the Land by Processe of Law against the will of him that hath the Déed but it is otherwise of a Lease for life or yeares c. because he comes in by the Lessor and might have taken a Covenant or other security for his peaceable enjoying of the Land to him demised Co. l. 7. 8. a. The Earl of Bedfords Case 22 Tenant in tail leaseth for yeares and dies here Infant the King or other Guardian may avoid it but if after his full age he accepts of the rent the Lease is confirmed to re-continue during the terme Co. l. 8. 98. a. 4. in Baspoles Case 23 In Arbitrament when all matters in Controversie are referred to an Arbitrator to end Arbitrament Award here albeit there are divers matters of in difference betwixt the parties yet if one onely be made known to the Arbitrator he may make an award of that alone for the Arbitrator is in the place of the Iudge and
Villein to the stranger in respect of his confession So likewise in a writ of â—ativo habendo if the Plaintiffe as he ought offereth in his Count to prove the Villeinage by the Cousins and kindred of the Defendant and thereupon produceth the Vncles of the Defendant who upon examination confesses themselves to be Villeins to the Demandant this confession being entred of record doth so bind that albeit they were frée before yet they and the heirs of their bodies are by this confession bound and Villeins for ever c. â—â—â—chisâ—â— 6 If the Lord deliver seisin of Lands to his Villein Litt. §. 206 108. Co. ib. 138. a. 4 b. 3. to hold in fée fée taile for life or for yeares or make him any other certaine Estate or if the Lord sue against his Villein a praecipe quod reddat and recover or be non-suit or sue against his Villein any other personal action as debt account covenants trespass or the like These are maâ—â—missions because in the first Case the Lord may enter into the land of his Villein and in the other may imprison his Villein or take his goods at his pleasure without suit but by such suits the Lord maketh the Villein to be a person able to render the Lord in the first Case the land and in the other damages by course of Law In like manner if before indictmest the Lord bring an appeal of felony against his Villein whereupon the Villein is acquit this is an enfranchisement because upon the aquittal the shall recover damages against the Lord by the Statute of West 2. cap. 12. quia multi per malitiam c. In summe wheresoever the Lord giveth to the Villein a just cause of Action he is enfranchised and therefore if the Lord kill his Villein his son and heire shall have an appeale and thereby the heire shall be enfranchised because the offence of the Lord gave to the heire a just cause of Action against the Lord. 〈◊〉 in 〈◊〉 7 If there be two Coperceners Co. ib. 14â— b. 2 and the one bring a Rationabili paâ—â—e or a Nuper obijt against the other and the defâ—ndant claimes by purchase and disclaimes in the bloud here the Plaintife shall have a Mortdancester against her as a stranger for the whole Co. ib. 170. b. 4 8 When partition is made by the two Barons in the life time of their Femes Coperceners although such partition be unequal Unequal partition Feme covert Infant yet it is not void but voidable For if after the decease of the husband the wife entreth into the unequal part and agreeth thereunto this shall bind her and her heires for ever There is the same Law of an Infant when his part is unequal Co. ib. 171. a. 4 for by his entry at full age the partition is made good for ever Co. ib. 172. b. 3 173 a. 3. Litt. §. 260 261. 9 If a man having Issue two Daughters die seised of Fée-simple lands and also of as much in taile Coperceneâ— of fee-simplâ— and entâ—â—â— Lands and the eldest sister takes the entailed land for her proper part an the youngest sister enters into the Fée-simple lands and having issue aliens them to a stranger and dies In this Case the issue in taile may enter into the intailed lands and occupie them in Copercenery with her Aunt for it was the folly of the eldest sister to take the entailed lands for her part Litt. §. 286. Co. ib. 185. a. 3 10 If there be joint-tenants in fée Joint-tenanâ— Rent-charge Release and the one granteth a Rent charge out of his part and dieth in this Case the survivor shall hold the land discharged of the Rent because he claimeth the land by a title paramont viz. from the first feoffor and not by his companion but here if after the land is charged with the rent the other joint-tenant accept of a release from his ompanion that so charged the land in such case he shall hold the land charged with the rent for now by acceptance of such release he is not in by survivorship but from his companion Co. ib. 202. a. 2 11 The demand of a Rent or other sum to take advantage of a re-entry or condition broken ought by the law to be made where no other place or time is limited for the payment thereof upon the Land at the most notorious place there as at the fore-dore gate Demand of Rent c. upâ—â— a re-entry Condition or the like and at the last part of the day so as the money may be conveniently numbred before Sun set yet if upon the day of payment thereof the lessée or feoffée happen to méet the lessor or feoffor upon any part of the Land although it be not the most notorious place or at any time of the last day although it be not the last part as afore-said in such case if the Lessor or feossor refuse it In Wades Ca. Co. l. 5. 14. b. 2 he shall not take advantage of a re-entry or Condition broken as afore-said for by such refusal being his owne Act he hath barred himselfe of that advantage Co. ib. 202. b. 3 12 A. is bound to B. to pay 10 l. to C. A. tenders to C. Payment 〈◊〉 stranger and he refuseth in this Case the bond is forfeit for it shall be imputed the folly of A. to undertake to pay it to C. of whom he had no power to compel him to receive it Co. Inst p. 1. 209. a. 2 Co. l. 6. 31. a. 2 in Bothies Ca 13 If a man be bound to A. in an obligation with condition to enfeoffe B. who is a méere stranger before a day Obligation with Condition to enseâ— the obligor doth offer to enfeoffe B. and he refuseth the obligation is for the obligor hath taken upon him to enfeoffe him and his refusal cannot satisfie the condition because no feofment is made but if the feofment had béen by the condition to be made to the obligée or to any other for his benefit or behoofe in such Case a tender and refusal shall save the bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not give himself cause of action so also if A. be bound to B. with Condition that C. shall enfeoffe D. In this Case if C. tender and D. refuse the obligation is saved for the obligor himself undertaketh to do no act but that a stranger shall enfeoffe a stranger and in such case it shall be intended that the feofment should be made for the benefit of the obligée Litt. §. 340 Co. ib. 210. a. 4 14 If A. make feofment or be bound to B with condition to pay 20 l. No place â— payment at such a day no place being limited for the payment thereof here A. is bound to seeke B. if he be in
donative be disturbed the Patron shall have a Quare Impedit of this Church donative and the writ shall say Quòd permittat ipsum praesentare ad Ecclesiam c. and declare the special matter in his declaration And so it is also of a Prebend Chantery Chappel Donative and the like and no laps shall incurre to the Ordinary except it be so specially provided in the foundation Neverthelesse if the Patron of such a Church Chantery Chappel c. Donative doth once present to the Ordinary and his Clerke is admitted and instituted it is now become presentable and never shall be donative after and then also laps shall incurre to the Ordinary as it shall of other benefices presentable but a presentation of such a Donative by a Stranger and admission and institution thereupon is méerly void Co. ib. 367. a. 3 25 If the Tenant make a lease of the land to the Lord for yeares Segniory extinct or the Lord be Guardian of the Land or have it by Statute or Elegit and then make feofment in fee thereof to a Stranger Here albeit as to the Lessor this is a disseisin yet hereby the Lord hath extinguished his Seigniory Co. ib. 170 b. 1. 26 Husband and wife Tenants in special taile Parcenerâ— of certaine land in fée have issue a Daughter the wife dieth the husband by a second wife hath issue another Daughter and dies both the Daughters enter where the eldest is onely inheritable and make partition in this case the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not heire So likewise I. S. seised of lands in fée hath issue two daughters Rose bastard eigne and Anne mulier puisne who enter and make partition in this Case Anne and her heirs are concluded for ever â—â—â—dition to â—â—le farther â—â—ance by a 〈◊〉 not letâ—â—d 27 A. is bound with Condition that he and his son shall at any time after make better assurance of land sold to B. B. tenders a writing unto them the sonne being not lettered destres time to be advised of it Co. lib. 2. 3. b. Marsers Case which being denied he doth not deliver it In this Case albeit a man unlettered is favoured in the Law so as it is not his Act if the writing be not read unto him or rightly expounded although he deliver it yet here because A. undertooke that his son should do it and no certaine fine was limited for the doing thereof the bond in this case is forfeit for the time for doing of it was peremptory â—â—n not letâ—ed seales a â—ed 28 A lay-man not lettered is not bound to deliver a déed Co. lib. 2. 9. Thorough-goods Case if there be not a person present that can read or expound the déed to him in such language as he understands neither is he bound thereby if it be read or expounded to him in another manner then the words and matter thereof import and it concernes the party that should take it to sée that done if the party that should deliver it require the same but if the party that shall deliver the writing require it not to be done he shall be bound by the déed although it be indited contrary to his meaning Copi-hold â—â—rict 29 The King grants a lease of lands held of him by Copy to A. who assignes to the Copi-holder Co. l. 2. 17. a. 4 Lanes Case the King grants the reversion in fée to B. the terme for years expires here the entry of B. is lawfull for by the acceptance of the assignment of the term the copi-hold is determined 〈◊〉 tenants â—y prejudice 〈◊〉 another 30 As to the profits of the frank-tenement one joint-tenant may prejudice another for there is a privity and trust betwixt them Co. l. 2. 68. a. 3 per Popham in Tookers Case and therefore if one of them take all the profits of the land or all the Rent the other hath no remedy for the Law imputeth it to his folly to joine himselfe in Estate with such a person as will breake his trust So likewise if there be two Lords and a Tenant of land holden by Knight-service and the Tenant die his heire within age here the Lords have Election either to seise the Ward or to distraine for the services and so to waive the Ward as it is agréed in 1 E. 3. But in this Case if one of them seise the Ward and the other distraine for the services he that first seiseth or distraines shall bind the other â—eâ—â—ent upâ—â— Condition â—â—en 31 If A. enfeoffe B. of a Mannor with an Advowson appendant upon Condition that A. shall grant B. the Advowson during his life A. dies before he grants it In this Case the Condition is broken For when the feoffée or grantée upon Condition is to make an Estate to the feoffor or grantor and no time is limited for the doing thereof regularly it is true that the feoffée hath time to do it during his life if the feoffor or grantor do not hasten it by request for upon request and a day or time limited when he will have it done the feoffée or grantée ought to do it accordingly but if no Request be made and the feoffée or grantée who ought to performe the Condition die in this Case the Condition is broken for he hath not performed the Condition within the time prescribed to him by the Law which was during his life But this general Rule admits some exceptions which neverthelesse are agréeable to this Maxime for in this Case of an Advowson A. hath not time during his life albeit no request be made but also upon this contingent viz. if no avoydance fall in the meane time for if the grantée stay until an avoydance fall then ipso facto the Condition is broken for then B. cannot have the whole effect that by the re-grant he ought to have because that is to have all the presentations during his life the Advowson is become in another plight then it was in before So if A. enfeoffe B. the 1 of May upon condition that he shall grant to B. an Annuity or Rent during his life payable yearly at Mich. and La. da. in this Case the feoffée hath not time during his life to make this grant but ought to do it before Mich. for otherwise he shall not have the Annuity or Rent during his life and it may be collected upon the Booke of 14 E. 3. tit Debt 138. that in Case of the grant of a rent he shall not have time during his life Likewise if two not married be enfeoffed upon Condition to re-enfeoffe the Donor or feoffor c. and one of them die yet the other may perform the Condition but if he that survives hath a wife then is the Condition broken for if he made the re-enfeofment yet shall his wife be endowed And in all these Cases and the
like the Law imputeth it to the Laches and folly of the grantée that he will not perform the Condition while he may and believeth against him these and the like things done to his owne prejudice Co. l. 3. 65. b. 2. in Penuants Case 32 If he that hath a Rent-service or Rent-secke â—cquittance the last Rent accept the Rent due at the last day and thereof make an acquittance all the arrearages due before are thereby discharged and so it was adjudged betwixt Hopkins and Merton in that Common Place H. Rot. 950. Vide 10 El. Dier 271. But there the Case is left at large with this also agrées 11 H. 4. 24. 1 H. 5 7 6. But note that the barre to the avowrie ought to be with conclusion of judgment Si encounter cest fait d'acquittance il doit faire Avowry as appeares by the Record of 10 El. and he ought not to demand judgment si action Co. ib. 66. a. 4. 33 If there be Lord and Tenant by Knight-service A extance shall lose thâ— ward and the Tenant enfeoffe his son and heire within age by Collusion In this Case if the Lord accept the services by the hands of the feoffée he shall lose the ward for the Statute of Malbridge cap. 6. making such feofment by Collusion void and of no effect as to the Lord if the Lord will affirm the feofment and waive the benefit of that act by acceptance of the feoffée for his Tenant he shall thereby purge the collusion and therefore deserveth to lose the ward Co. l 4. 1. a. 2 b. 4. Vernous Case 34 B. enfeoffes to the use of himselfe for life jointure in hew of dower remainder to his wife for life with Condition to perform his last will and for her jointure and dies the wife enters agrées to it and after brings her writ of dower In this Case if after the death of the husband the wife accept of that conditional Estate such acceptance shall barre her from having dower for albeit dower at the Common Law in liew whereof a jointure is granted be an absolute Estate for life yet in as much as an Estate for life upon Condition is an Estate for life it is within the words and intent of the Statute of 27 H. 8. 10. to barre the wife of her dower if after the death of her husband she accept thereof So if the husband enfeoffe to the use of himselfe for life the remainder to the use of his wife durante viduitate for her jointure this is an Estate to her for life and cannot determine without her own Act and therefore a jointure also within the Statute if after the husbands death she accept thereof Co. l. 4 9. b. 2. in Bevils Ca. 35 If there be Lord and Tenant by fealty and Rent Rent-service made Rent-secke and the Lord grant over the fealty saving the Rent or if a man make a gift in taile or lease for life rendring Rent and grant over the reversion except the Rent in these Cases the nature of the Rent is altered by the parties owne Act and therefore the ancient seisin when it was Rent-service will not in such case suffice because by his own act the nature of the Rent is changed neither can he have for it an Assise as of a Rent-secke because he was never seised of any such Rent Co. l. 4. 11. b 2. in Bevils Ca. 36 If there be Lord and Tenant by fealty and two shillings Rent Rent by incroachment and the Lord by encroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Tenant shall not in avowry avoid such seisin had by accroachment unlesse it be in some special Cases which sée ubi suprà â—â—â—ges irâ—â—â—able 37 If A. hath Rent-service or Rent-charge in fée or for life Co. l. 4. 50. b. 4. in Andrew Ogwels Case and the Rent is arreare and after A. grants over the Rent to another and the Tenant attornes and after A. dies his Executors are not within the branch of the Statute of 32 H. 8. 37. which gives power to Executors c. to recover Debt due to the Testator at the time of his death for by the grant over the arrecages were lost and were not due to the Testator at the time of his death And therefore when the Testator by his own Act in his life time had dispenced with the arrerages the said Act gives no remedy to recover them â—il revolâ— by maâ—e 38 If a Feme sole make a Will and after take Baron Co. l. 4. 61. a. 4. in Forse and Hemblings ca. this is a revocation thereof for the making of a Will is but the Inception thereof and it takes not any effect until the death of the Devisor because omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes Husband and after marriage her Will being her Husbands and subject to it by taking Husband she hath wholy revoked the Will formerly made â—â—vise â—y â—â—â—nder 39 A. deviseth Land to B. till 800 l. be raised for the preferment of his daughters A. dies C. being heire conceales the Will Co. l 4. 82. b. 3. Sir Andrew Corbets Case and enters In this Case B. shall have allowance for the time that the Will was concealed and that time shall not be accompted parcel of the time for the levying of the money But if B. had surrendred to C. upon Condition and had entred for the Condition broken Co. l. 5. 13. b. 3. in the Countesse of Shrewesberies ca. that should have béen accounted parcel of the time for that was his own Act. 〈◊〉 40 At the Common Law before the Statute of Glocester cap. 5. 6 E. 1. no remedy lay for waste either voluntary or permissive against Lessée for life or yeares because the Lessée hath Interest in the Land by the Act of the Lessor and it was his folly to make such a lease and not to restraine him by covenant condition or otherwise from making waste And for the same reason it is that at this day Tenant at will shall not be punished for permissive waste but for voluntary waste he may according to Littleton fol. 15. 〈◊〉 â—â—â—der 41 A. demiseth the Mannor of D. to B. for 30 years Co. lib. 5â— 11. Ives Case except the under wood growing upon it and after demiseth the underwood to him for 62 years without impeachment of waste afterwards B. accepts a lease of 30 yeares of the Mannor after the exspiration of the first 30 yeares In this Case because the demise of the underwood did not sever it from the Mannor the intire franktenement notwithstanding such demise remaining still in the Lessor by his acceptance of the last lease for 30 years the former two leases were
surrendred and so by consequent if afterwards the Lessée commit waste he is subject to an Action for it â—â—gation 42 If a man be bound to make another before such a time such a release as the Iudge of the Prerogative Court shall devise and appoint Co. l. 52. b. 3. Lambs Case In this Case if the Obligor do not onely the first Act but likewise procure the Iudge to devise and direct the release before the time limited the bond is forfeit for in as much as the Iudge is a stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall have his obligation he hath undertaken to performe it at his peril â—â—tion 43 If a man be bound to make to another a sufficient and lawful Estate in certain Land by the advise of I. D. Co. ibidem If he make an Estate to him according to the advise of I. D. be it sufficient or not or lawful or not lawful yet he saves the Obligation for if it be in sufficient or unlawful the Obligée may thanke himselfe to make choice of such a man as could give no better direction Fuit dit Co. l. 5. 33. b. 4. in Reades ca. 44 If after the death of a man Execution 〈◊〉 his owne wrong none takes upon him to be his Executor or if he died intestate none takes out letters of administration In such Case if a stranger use the goods of the dead or takes them into his possession which is the office of an Executor or Administrator such stranger may be charged as Executor of his own wrong For the Creditors of the dead person have not in such Case any other Co. ibid. 34. a. against whom they may bring their actions for the recovery of their debts or albeit there be an Executor that Administers yet if the stranger take the goods and claiming to be Executor payes debts and receives debts or pays Legacies and inter-medle as Executor in such Case also by such expresse Administration as Executor he may be charged as Executor of his own wrong Vide Dier 166. 10. 1. El. Co. l. 5. ii5 a. 3 in Wades Ca. 45 If the Lessor demands Rent of his Lessee according to the Condition of re-entry and the Lessée pay the Rent to the Lessor Acceptance counterfeit money and he receives it and put in his purse or pocket and after upon reviewing thereof at the same time he finds amongst the money that he had received some counterfeit pieces and thereupon refuseth to carie away the money but re-enters for the Condition broken In such Case it is said it was adjudged betwixt one Vane and Studley that the entry was not lawful for when the Lessor had once received the money it was at his peril and after such allowance he shall not take exception to it Co. lib. 5. 116. â— 3. Olands Case 46 A Feme Copi-holder of certain land durante viduitate sua Graine sowâ— Durante viduitate according to the Custome of the Mannor sowes the Land and before the severance of the graine takes Baron In this Case the Lord shall have the graine For albeit at the time of sowing the graine the Estate of his wife was uncertain and although her Estate determined by limitation and not by condition either in déed as in Case of re-entry or in Law as by forfeiture yet because it determined by the Act of the Lessée her selfe the Lord shall have the graine and not the Baron So if a Feme seised of land durante viduitate sua make a lease for years and the Lessée sow the land and after the Feme that made the lease takes Baron here the Lessée shall not have the graine for albeit his Estate is determined by the Act of a stranger yet he shall not be as to the Lessor in a better Case then his lessor was and the law imputes it to his folly to depend upon so fickle a thing as the will of a woman especially in point of marriage Co. ib. a. 4. 47 If Tenant at will sow the land Tenant at will sowes graine and after the will is determinned the Lessée shall have the graine but if the lessée himselfe determine the will before the severance of the graine he shall not have them because he hath determined his Interest by his own Act So if Lessor at will be out-lawed whereby the will is determined In this Case the King shall have the profits and the Lessée shall enjoy the graine but if Lessée at will be out-lawed whereby the will is determined in such Case the King shall have the graine Vide 9 H. 6. 20 21. Dier 173. 15. Co. ib. b. 1. 48 If a lease be made to Baron and Feme during the coverture Graine sowâ— divorce and the Baron sow the land and after they are divorced causa praecontractus the Baron shall have the graine and not the Lessor for albeit the suite is the Act of the party yet the sentence which dissolves the marriage is the judgement of law Et judicium redditur in invitum but if a lease be made to one until he make waste and he sow the grain Waste and after make waste he shall not have the graine Vide Max. 30. 34. â—â—faction of â—â—bt by deed 49 In Debt upon an Obligation of 10 l. the Plaintiffe pleades Co. l. 5 117. b. 2 Pinnels Case that one F. was bound by the same Déed with him and each of them in the whole and that the Plaintiffe made an acquittance to F. bearing date before the obligation but delivered after by which acquittance he acknowledged himselfe to be paid 20 s. in full satisfaction of the 10 l. and this was adjudged a good barre for if a man will acknowledge himselfe to be satisfied by Déed this is a good barre without receiving any thing Vide 36 H. 6. Barre 17. 12 R. 2. Barre 243. 10 H. 7. Yet payment of a lesse sum in satisfaction of a greater is not good satisfaction because a lesser sum can by no possibility be satisfaction for a greater â—â—re service â—â—tiplied â—â—â—ct 50 If one hold his land of his Lord by an intire annual service Co. l. 6. 1. b. 3. in Bruertons Case as a Spurre Horse or the like and after sels parcel thereof to another in this Case the alienée shall hold by the same intire service because such intire service cannot be apportioned and the land is severed by his owne Act So also if in such Case the Lord purchase parcel of the tenancy such intire services are gone in like manner as if the Lord had released his Seigniory in part of the tenancy because he hath discharged part of the land by his own Act. â—â—rneys acâ—â—nts 51 When a writ abates by default of the Clerke Co. l. 6. 10. a. 2 in Spencers Case as for false
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12
66. b. 4 in Sir Moyle Finches Case 7 There is a diversity betwixt brevia adversaria Diversity betwixt brevia adversaria 〈◊〉 brevia amiâ—â— bilia vix brought as adversary to recover the land c. And brevia amicabilia viz. brought by consent and agréement amongst friends for true it is in brevibus adversariis the processe of the Common Pleas shall not pursue the custome or reputation of the Country as in 6 E. 3. 11. the Demandant in a writ of Entry demands the Mannor of C. the Tenant saith that the tenements put in view are a Messuage and a Carve of land called c. and not a Mannor c. whereby it appeares that if it were not a Mannor in truth albeit it was so in Common Appellation the writ should abate but it was adjudged in Sir Jo. Bruyns case in the beginning of Quéen El. Raigne that in Common Recovery which is had by the consent and agréement of the parties of acres of land they shall be accounted according to the accustomable and usual measure of the Country and not according to the Statute de terris mensurandis made in 33 E. 1. So likewise it is agréed in 47 E. 3. 18. if a man bargaine and sell so many acres of wood that shall be measured according to the use of the County viz. according to 20 foot to the Pole and not according to the said Act for in such Case consuetudo loci est observanda also if a fine be acknowledged of a Mannor which in déed is a Mannor in reputation onely and not in truth yet is the fiue good because done by consent of parties F. N. B. 38. t. 8 In a Quare Impedit if the Defendant plead to issue and after make default Precepartum a writ shall be awarded for the Plaintiffe to the Bishop ad admittendum Clericum but if to the distresse returned against the Defendant he comes and takes day per praece partium and then makes default the Plaintiffe shall not have a writ to the Bishop but a new distringas Dier 33. 13. c. 28 29 H. 8. 9 A lease for yeares is made rendring Rent Termors câ—sent and the lessor makes feofment of the land the termor being also upon the land and without his consent in this Case the Rent is extinct but if the feofment be made by the agréement of the termor that workes no extinguishment of the Rent or surrender of the terme c. 122 Volenti non fit injuria Co. Inst p. 1. 368. a. 2. Litt. §. 701. Pl. Com. 91. the Parson of Hony Lanes ca. 1 If the Tenant in an Assise of an house desire the Plaintiffe to dine with him in the house which the Plaintiffe doth accordingly Dyning in a house no entry but doth not clame the house at that time this is no entry or possession to cause the Assise to abate because if he had béen a stranger he had béen no trespasser for volenti non fit injuria Dier 275. 46. 10 El. 2 The Marshall suffers one in execution to go at large by licence of the Chiefe Iustice the Plaintiffe also agréeing thereunto in this case Prisoner in ecution after he returnes he is in execution again so as if he afterwards escape the Gaolor is subject to an action of Debt Dier 359. 1. 20 El. 3 The Tenant peravaile who held of a Mesne Tenure as of his Mannor of D. in soccage which Mannor of D. was held over of the King by Knight-service in capite purchaseth a release of the Mesualty in this Case the Tenant peravaile shall now hold of the King in capite for volenti non fit injuria 123 Quilibet potest renunciare juri per se introducto â—â—main 1 Land may be amortified by Licences granted by the King and all the Lords immediate and mediate of whom the land is holden Co. Inst p. 1. 98. b. 4. 99. a. 3. 99. b. 2 For it is a Rule in Law Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibitum est potest fieri and quilibet potest renuntiare c. And the Licence of Lords immediate and mediate in this Case shall Enure to two intents viz. to a dispensation both of the Statute of Quia emptores terrarum and also of the Statute of Mortmaine Condition 〈◊〉 restraine â—â—ful liâ—â— 2 If a man make a gift in taile upon Condition Co. ib. 223. b. 3 that he shall not make a Lease for his owne life or if a man make a lease for life or years upon Condition that they shall not grant over their Estate or let the land to others In these Cases and the like albeit Tenant in taile hath power by the Law to make a lease for his owne life and the Lessee for life or yeares to grant and let yet by the Condition and their owne agréement they have restraindd themselves of the liberty which the Law gives them So likewise if a man make a gift in tail upon Condition that he shall not make a lease for thrée lives or 21 yeares according to the Statute of 32 H. 8. In this Case also the Condition is good to restraine the Tenant in taile from making such leases For albeit the Statute doth give him power to make such leases yet that power may be restrained by Condition and his own agréement because this power is not incident to the Estate but given to him collaterally by the Act according to that Rule of Law Quilibet potest renunciare c. â—eires â—â—ged 3 If there be Lord and Tenant Litt. §. 538. Co. ib. 305. a. 4 which Tenant holds of his Lord by fealty and 20 s. Rent here if the Lord by his Déed confirme the Estate of his Tenant to hold by 12 d. or by a penny or a halfe penny In this Case the Tenant is discharged of all the other services and shall render nothing to the Lord but what is comprised in the same confirmation For the Lord by his confirmation to hold by lesse services hath abridged himselfe of the power and interest which was before legally due to him â—â—e all 〈◊〉 all pasâ—â— 4 By the Common Law if Patron Ordinary Litt. §. 648. Co. ib. 343. Note that this law is altered by stat 13 El. cap. 10. and Incumbent had joyned in a grant of the Rectory or Vicarage they might have charged it or conveyed it to whom they pleased because they all together had the whole right in them viz. the Patron to present the Ordinary to admit institute and induct and the Incumbent to enjoy the glebe tithes and other profits And all these had liberty to depart with their several rights and interests at their pleasure â— good right â—â—de pretenâ—â— 5 If A. be lawful owner of land and in possession Co. ib. 369. a. 3 and be afterwards disseised in this Case A.
taile Dier 351. 24. 18 Eliz. the Baron alone levies a fine to his owne use and deviseth the Land to the Feme for life the remainder over rendring Rent the Baron dies the Feme enters and payes the Rent and dies In this Case the Issue is barred for two causes 1 By the fine which hath barred his conveyance to the entaile 2 By the Remitter waived by the mother 124 Omnis Ratihabitio retró-trahitur mandato seu licentiae aequiparatur â—â—gageor â—rtgagee 1 If there be Mortageor and Mortgageute e of Land Co. Inst p. 1. 206. b. 4. and at the day of payment of the Money for the redemption of the Land a stranger of his owne head in the name of the Mortgageor or his heire but without his consent for privity tender the money and the mortgagée accepteth thereof In this Case the Mortgageor or his heire agréeing thereunto it is a good tender and satisfaction and the Mortgageor or his heire may re-enter into the Land mortgaged immediately after such tender and consent thereunto for Omnis Ratihabitio c. howbeit the mortgager or his heir may dis-agrée thereunto if he will â—â—tard and â—â—lier Claime withâ— a five yeares â—ter fine 2 In Case of Bastard eigne and Mulier puisne Co. ib. 245. a. 3 Litt. § 401. regularly none shall enter upon the Bastard to vest the Estate in the Mulier but the Mulier himselfe or some other by his special command no more then in Case of a fine to avoid it by claime within five yeares For there also a Stranger cannot of his own head in the name of him that right hath enter within the five yeares to avoid the fine Howbeit in both these Cases 1 If the Mulier agrée thereunto before the discent of the Bastard Or 2 If he that right hath before the five yeares be past do assent thereunto the claime is good and shall avoid the Estate both of the Bastard and of the Conusée as it was holden in the Lord Audleys Case Mich. 38 39 Eliz. in B. R. per Curiam Quia omnis Ratihabitio c. Co. l. 9. 106. a. 1 in Marg. Podgers Case and the last Case standeth well with the words of the Statute So that they pursue their title c. by way of Action or entry c. and so also is the Booke in 31 H. 8. Br. Entry Congreg 123. â—â—ry by a â—â—anger 3 If an Infant make a feofment in Fée a stranger of his owne head cannot enter to the use of the Infant for the Estate is voidable Co. ib. a. 4. as it was held P. 39 Eliz. in Co. B. per Cur. But where an Infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the Estate in the Infant or other disseisée So it is also if Tenant for life make a feofment in fée and a stranger enter for a forfeiture in the name of the Reversioner but without his privity for in that Case also the Estate shall be thereby vested in the Reversioner Co. ib. 258. a. 2 4 If an Infant or a man of full age have any right of Entry into any lands Idem any stranger in the name and to the use of the Infant or man of full age may enter into the lands and regularly this shall vest the lands in them without any commandment precedent or agréement subsequent But if a disseisor levie a fine with proclamation according to the Statute a stranger without a commandment precedent or agréement subsequent within the five yeares cannot enter in the name of the disseisée to avoid the fine Co. l. 9. fol. 106. a. in the Lord Awdleys Case And that resolution was grounded upon the construction of the Statute of 4 H. 7. 24. Howbeit a assent subsequent within the 5 years is sufficient as is afore-said Co. l. 4. 30. a. 3. 5 The Lord of a Mannor may by parol retaine one to be Steward of his Mannor and so may he do a Bailiff by parol onely Steward Bailiffe and such retainer shall serve untill they be discharged for his permitting of him to be Steward or Bailiff without countermand is a ratification of his Office Tr. 41. Eliz. inter Harris and Jay in B. R. Pl. Co 8. 6. 4. in Fogassaes Case 6 If another man make a disseisin to my use Assent to disseisin or a Ravishor and afterwards I agrée to it In this Case I am a Disseisor ab initio albeit the agréement thereunto was after the fact done So if one ravish a woman and she afterwards assents to the Ravishor in this Case this agréement shall have a retrospect to the first Act and shall be then said to be executed 125 Nemo tenetur accusare seipsum Co. Inst p. 1 158. b. 1. 1 In trial of Challenges Challenge of a Juror if the cause of the Challenge touch the dishonor or discredit of the Iuror he shall not be examined upon his bath concerning the same but in all other Cases he shall be examined upon oath the better thereby to informe the triors Co. l. 7. 10. a. in Ughtreds Case 2 Regularly none shall be compelled to alleadge that Conditions precedent 〈◊〉 subsequent which makes against him for every one ought to alleadge that which makes for him and is for his advantage And therefore in all Cases when an interest or Estate commenceth upon Condition precedent be the Condition or Act to be performed by the Plaintiffe or Defendant or any other and be the Condition in the affirmative or negative there the Plaintiffe ought to shew that in his Count and averre the performance thereof For in such Case the interest or Estate commenceth in him by the performance of the Condition and is not in him until the Condition be performed but it is otherwise when the interest or Estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto or Condition subsequent be the Condition or Act to be performed by the Plaintiffe Defendant or any other and be the Condition in the affirmative or negative For in such Case the Plaintiffe may count generally without shewing the performance thereof and this shall be pleaded by him that will take advantage of the Condition or matter ex post facto and not by the Plaintiffe for no man is bound to betray his own cause Vide plus ibid. Pl. Co. 16. b. 3. in Fogassaes Case 3 In Fogassaes Case in the Commentaries Agreement precedent good there was an agréement with the Customer before the landing of the woad and if there had béen any default in the Defendant afterwards to have made the agréement void ab initio it ought to have béen alleadged by the Informer and not by the Defendant because it made against him So Hill 3 H. 7. 11. if a Sheriffe take one by force of
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a
vita to say that the Feme had a lesse estate then Fee-simple yet the issue who claimed the Reversion of the Land as heire to the Baron shall not be bound by that Estoppel made by the Feme although he was heire to her also for then the Feme who had but an estate for life might by her own act have barred the heire that right had and claimed as heire to his Father C. l. 8. 76. a. 2. in the Lord Staffords case 33. If a man make a Lease for years upon Condition Outer by Lessor that if the Lessor out him within the Terme that he shall have fee and the Lessor doth out him accordingly in this case albeit the interest of the terme is by such ouster turned to a right yet the Lessee in such case shall have fee for that such ouster is the act and tort of the Lessor himselfe whereof he shall take no advantage Co. l. 8. 133. a. 4. Turners case 34. In debt against an Executor Executor de layes c. he pleads a Recovery against him in such a Court which amounts to the whole in his hands the Plaintiff replies that the recoverer hath accepted composition and that the Defendant delayes to accept a release with purpose to defraud the Plaintiff In this case the deferring to accept the release is a tort and against the duty of an Executor and therefore cannot helpe him for if any prejudice happen to him thereby it is by his own tort and default and therefore he shall not take any benefit thereby Co. l. 9. 68. b. 4. in Mackallies case 35. Vpon an arrest Resistance by Prisoner if the party arrested submit himselfe peaceably thereunto and gives the Serjeants or Bayliffs convenient leasure to acquaint him with their business they oughtupon demand to shew him their warrant and to let him know the occasion thereof as it was adjudged in the Countess of Rutlands case in the 6. Rep. fo 55. But if he make resistance and obey not their warrant they are not bound to shew it nor c. and if then any of them be killed it is murder for the Prisoner shall not in such case take advantage of his own wrong Co. l. 10. 134. b. 2. in Read and Redmans case 36. In reall Writs originall Summons and severance if he that is summoned and severed dyes which is the act of God the Writ shall abate but taking of Baron or entring into the Land by him that is summoned and severed or where there is no summons and severance shall not abate the Writ but onely make it abateable because these are the parties own acts whereof they shall not take advantage Co. l. 11. 81. b. 1 in Lewes Bowles case 37. If a Tenant for life or years fell Timber Trees Waste or pull down the Houses the Lessor shall have the Timber for the Lessee cannot have them by his demise but as things annexed to the soile And therefore it is absurd in reason that when by his own act and wrong he hath severed them from the Land he should gaine a greater property in them then he had by the demise F. N. B. 59. k. 37. The Tenant may fell Trees to repaire the Houses Waste but if the Houses be fallen into decay by his default if then he fell Trees to repaire them it is waste for he shall not usurp the power of felling Trees to amend the Houses when the cause why they wanted repairing was by his own neglect Pl. Co. 16. b. 4. in Fogassaes case 38. In Fogassaes case in the Commentaries Not weying Woad the not weying of the Woad is referred to the Collector And therefore the Collector shall not by his neglect take advantage in the Kings behalfe of the not weying thereof and by that meanes cause Fogassa to forfeit the same Dyer 30. 205. 28 H. 8. Dyer 42. 9. c. 30 H. 8. 39. The Condition of an Obligation was this Obligation to enjoy peaceably That the Obligor should surrender certaine Copyhold-land and also that he should suffer the Obligee and his heires peaceably to enjoy the Land without the interruption of any The Defendant pleads performance and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certaine time and that afterwards the Lord for rent arreare in the Plaintiffs time entred according to the custome for the forfeiture Judgement fâ—action and this was held a good Plea because the reason why the Plaintiff did not enjoy the Land was caused by his own act which in this case shall not worke to his advantage So if the Obligee had been Tenant at the Common Law and had ceased the Obligation had been saved for that it was the act of the Plaintiff himselfe 148. And therefore the Law of it self prejudiceth none Distresse 1. Any goods may be distrained for damage-feasant Co. Inst parâ— 1. 47. a. 4 by reason of the necessity See Max. 110. Ex. 4. and such Distresse may also be made in the night time for the same reason Vide M. 128. E. 2. Howbeit for rent nothing can be distrained in the night time or which cannot be rendred in as good plight as it was in at the time of the Distresse taken as sheaves or shocks of Corne or the like cannot be distrained for rent because when a Distresse is made for rent it is in the custody of the Law and repliviable and during the time it so remains the Law will not suffer the owner thereof to suffer prejudice by the detainer and in such case there is no such necessity but that the Distresse may be made in a seasonable time and of convenient goods Howbeit Wagons or Carts loaden with graine Horses and all may be distrained for rent because they may be restored in the same condition they were in when they were taken And yet Beasts belonging to the Plough averria carucae shall not be distrained nor any Vtensils or Instruments of a mans Trade or Profession as the Axe of the Carpenter the Books of a Scholler c. while other Beasts or Goods which Bracton calls animalia or catalla otiosa may be distrained for that were un-charitable and an injury to the publique whereof the Law if possibly it may be otherwise will not be guilty Vide plus ubi supra Waste against Guardian 2. If the Guardian doth waste Co. ibid. 54. a. 2. and the heire within age brings an Action of waste the Guardian shall lose the Wardship but if the heire bring an Action of waste at his full age he shall then recover treble damages for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship in liew thereof it gives him treble damages because otherwise the Guardian might do him an injury and make him no recompence for it for then
the Husband may do of the Wives Land when he is to be Tenant by Courtesie Co. ibid. 47. b. 1. 3. When Cattell are distrained they are to be put in a pound overt Distresse or open within three miles in the same County as into a pinfold made for such purposes or in his own close or the close of another by his consent to the end the owner may give his Cattell meat and drink without Trespasse to any other and then if the Cattell miscarry he that distrains them is excused for it cannot be imputed to any neglect of his the Owner in such case being bound to sustain them at his perill but if the Cattell be put into a pound covert or close as in a house where the Owner cannot come at them in such case they are to be sustained with meat and drink at the perill of him that distraines and he shall have no recompence for the charge of keeping them and if any of them miscarry he shall make them good for in this case it cannot be imputed to the folly or neglect of the Owner if they be worse or miscarry because he could not come at them to sustaine them Co. ibid. 53. a. 2. 3. 4. Waste It is permissive waste in the Tenant to suffer the house to be uncovered whereby the Sparrs or Rafters Planches or other Timber of the House become rotten Howbeit if the House be un-covered when the Tenant cometh in it is no waste in the Tenant to suffer the same to fâ—ll downe for in such case it cannot be imputed to his neglect but the Owners So likewise if a wall be un-covered when the Tenant comes in it is no waste though he suffer it to decay Also if the house fall down by tempest or be burnt by lightning or prostrated by enemies or the like without any default in the Tenant or be ruinous at his coming in and fall downe this is not waste in the Tenant but he may build the same againe with such materialls as remaine and with other Timber which he may take growing upon the ground for his habitation but he must not make the house longer then it was Co. ibid. 53. b. 1. 5. It is waste to suffer a Wall of the Sea to be in decay Waste so as by flowing and re-flowing of the Sea the Meadow or Marsh is surrounded whereby the same becomes unprofitable howbeit if it be surrounded suddenly by the rage and violence of the Sea occasioned by wind tempest or the like without any default of the Tenant this is no waste punishable because it cannot be imputed to the Tenants neglect or default in that case Fl. l. 1. c. 111. According to Fletaes rule Fortuna ignis hujusmodi eventus inopinati omnes tenentes excusant Co. ibid. 55. a. 4. c. 6. Tenant at will particular estates Graine c. sowne Tenant at will shall reape the crop which he sowed in peace before his Lessor determined his will whether it be graine hempe flax or any other annuall profit for it cannot be imputed to his folly that he knew not his Lessors intention that he would determine his will before they might be ripe there is the same Law and reason of Tenant by the curtesie in Dower for life pur anter vie or any other un-certaine estate viz. when the terme will determine and if such Tenant happen to dye his Executors c. shall enjoy the crop If Tenant by Statute Merchant sow the ground and then a sudden and casuall profit falleth by which he is satisfied Co. ibid. b. 3. Co. ibid. b. 4. yet shall he have the embleaments causa qua supra And in all these cases it is not materiall whether the graine c. be not ripe or dead ripe ready to be cut for by the same reason they may be taken though they be not ripe they may also be taken when ripe Albeit Littleton saith Apres lembleer devant que les blees sant matures Co. ibid. 55. b. 4. 7. Where there is Lessor and Lessee at will Tenant at will c. notice requisite the Lessor may by actuall Entry into the ground determine his will in the absence of the Lessee but by words spoken from the ground the will is not determined untill the Lessee have notice no more then the discharge of a Factor Attorney or such like in their absence is sufficient in Law untill they have notice thereof â—â—aine sowne Terme uncertaine 8. If Lessee for years that knoweth the end of his terme Co. ibid. 56. b. 4. soweth the Land if the terme determine before he can cut them the Lessor shall have them because the end of his terme was certaine and it was his folly to sow them when he might know beforehand that he could not Inn them in due season Howbeit where a Lease for years depends upon an un-certainty as upon death of Tenant for life being made by him or of a Husband seised in right of his wife or the like there it is otherwise Dying seised â—ardship 9. If there be Lord and Tenant Co. ibid. 76. b. 1. and the Tenant maketh a Feoffment in fee upon Condition and the Feoffor dyeth after his death the Condition is broken the Heire within age entreth for the Condition broken in this case the heire shall be in Ward and yet the Tenant dyed not seised of the Land neither had he any estate or right in the Land at the time of his death but onely a Condition and which was broken after his death Neverthelesse because here is no default in the Lord to bar him of his Wardship and the Condition restoreth the Tenants the Land in nature of a descent for he shall be in by descent therefore shall the heire in this case be in Ward Vide pl. ibid. Guardian in Socage robbed Discharged 10. Co. ibid. 89. a. 3. 4. If a Guardian in Socage having received the rents profits of the Lands of the Minor happen to be robbed of the same without his default or negligence he shall be discharged thereof upon his account so also shall a Bayliff of a Mannor a Receiver a Factor of a Merchant or the like It is otherwise of a Carrier for he by taking his hire doth thereby implicity undertake the delivery of the goods delivered unto him So it is likewise if goods be delivered to a man to be kept or to be safely kept which is all one in Law and after those goods are stollen from him this shall not excuse him for by the acceptance he undertook to keep them safely and therefore he must keep them at his perill But if the goods be delivered unto him to be kept as he would keep his owne there if they be stollen from him without his default or negligence he shall be discharged so if goods be delivered to one as a gage or pledge and they be stollen
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
B. for that the words In forma predicta do include the other but if a man let Lands to A. for life the Remainder to B. in Taile the Remainder to C. In forma predicta this Remainder is void for the uncertainty Co. ib. 34. b. 1. 5. In Dowment Ad ostium ecclesiae to the end it may have certainty Dowment ad â—ostium ecclesiae which is the Mother of quiet and repose and to avoid after contention the Law requireth that it be done openly and may be assigned in certainty to be enjoyed distinctly by it selfe and not in Common Co. ibid. 37. a. 3. Co. ibid. 6. In all cases where the demand of Dower is certaine Assigment of dower as in case of Dower Ad ostum ecclesiae or Ex assensu patris There the wife after the death of her Husband may enter but where the demand is uncertaine as in Writs of Dower at the Common Law there albeit the thing it selfe be certaine yet shall she not take it without Assignment as if a woman bring a Writ of Dower of three shillings rent albeit she ought to be endowed of one shilling yet cannot she after judgement distraine for 12 d. before Assignment because the demand was uncertain So it is if two Tenants in Common be and the wife of one of them bring a Writ of Dower to be endowed of a third part of a moiety and have Iudgement to recover yet cannot she enter without assignment Co. ibid. 34. b. 3. albeit the Assignment cannot give her any certainty because her Husbands Estate was uncertaine So if a woman bring a Writ of Dower of six pounds Rent-charge and she hath judgement to recover the third part albeit it be certaine that she shall have forty shillings yet she cannot distrain for forty shillings before the Sheriff do deliver the same unto her It is otherwise where a Writ demands Land Rent or other things in certaine for there the Demandant after Iudgement may enter and distraine before any Seisin delivered to him by the Sheriff upon a Writ of Habere facias seisinam c. Co. ibid. 45. b. 2. 7. If a man make a Lease for so many yeares as he shall live Lease void this is voyd for the uncertainty Co. ibid. 45. b. 4. 8. If the Parson of D. make a Lease of his Gleab for so many yeares as he shall be Parson there this cannot be made certaine by any meanes The like for nothing is more uncertain then the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertius quam hora mortilo But if he make a Lease for three yeares and so from three yeares to three yeares so long as he shall be Parson this is a good Lease for six yeares if he continue Parson so long viz. First for three years and after that for three yeares and for the residue uncertaine Co. ibid. 49. b. 2. and Co. ib. 359. â— 3. 9. If A. be to make a Feoffment to B. and C. and their heires without Deed Livery and A. makes Livery to B in the absence of C. in the name of both and to their heires this Livery is void to C. because a man being absent cannot take a Freehold by a Livery but by his Attorney lawfully authorised by Deed to receive Livery unlesse the Feoffment be made by Deed and then the Livery to one in the name of both is good and the reason hereof seems to be because the Feoffment being made without Letter of Attorney or Deed it is uncertaine whether or no he consented thereunto which is apparent by his sealing of the Letter of Attorney or Deed of Feoffment Note That a Deed sealed may be delivered without words because there is sufficient certainty expressed in the Deed what is meant by the Delivery but Livery of Seisin requireth words to expresse it and also Ceremony to the end it may be certainly known what is intended by it And a man absent can neither take nor make Livery without Deed. A Plow-land uncertaine 10. A Fine of so many Acres of Land Meadow and Pasture Co. ibid. 69. a. 4. in certaine is good because the quantity of an Acre is certainly known by the Statute De terris mensurandis but a Fine De una virgata terrae shall not be received for the uncertainty because it containes in some places more in others lesse and therefore Prisot saith well in 35 H. 6. 29. That a Plow may till more Land in one yeare in one Country then in another Rent and Distresse uncertaine 11. There may be a certainty in uncertainty Co. ibid. 96. a. 1. 142. a. 3. as if a man hold of his Lord to sheere all the sheepe depasturing within the Lords Mannor this is certaine enough albeit the Lord hath sometimes a greater and sometimes a lesse number there for this uncertainty being referred to the Mannor which is certain the Lord may distrain for this uncertainty Howbeit no distresse can be taken for any Services that are not put into certainty nor can be reduced to any certainty for Id certum est quod certum reddi potest because Oportet quod res certa deducatur in judicium and upon the Avowry Damages cannot be recovered for that which neither hath certainty nor can be reduced to any certainty A Protection uncertaine 12. A Protection Co. ibid. 130. b. 4. as well moraturae as profecturae must be regularly to some place out of the Realme of England and must be also to some place in certaine as super salva custodia Caliciae c. and not to Carlile or Wales which are within the Realme or the like but it may be to Ireland or Scotland because they are distinct Kingdomes or to Calice Aquitaine or the like but a Protection granted to one c. untill he returne from Scotland was in 1 E. 3. 25. disallowed for the uncertainty of the time So likewise a Protection Quia moratur super altum mare will not serve not onely because as some think that Mare non moratur or for that a great part of the Sea is within the Realme of England but likewise for the uncertainty of the place A Bishops certificate 13. If a Bishop certifie that another Bishop hath certified him Co. ibid. 134. a. 3. that the party which is his Diosesan is excommunicated this certificate upon anothers report is not sufficient for the uncertainty there is the same reason also of an Hear-say in evidence A Villain 14. If the Lord make a Lease to his Villain for life or years by Deed or without Deed this is an infranchisment of the Villain Litt. S. 207. Co. ibid. 138. but if he make him a Lease at will by Deed or without Deed it is no infranchisement because he hath no certainty of his estate but the Lord may put him
clamat the Termor claimes fee this is a Forfeiture because the Condition was repugnant And note the Iudgement there that the terme shall be forfeit the Conuses might enter and the Fine shall be engrossed Vide Plowd Sanders against Freeman and Plesintons case 6 R. 2. Dyer 264. 40. 9 El. 49. Repugnant Lease Baron and Feme being Termors of the three Conyes in Fleet-street the Baron leaseth part of the terme by these words the Messuage called the three Conyes with all the Chambers Sellars and Shops except to the Baron the Shops ad proprium opus usum the Feme enters into the Shops and then brings Ejectione firmae and per Curiam the exception is but temporary to the Baron himselfe there being no mention of Executors or Assignes and also the exception is void for the Shops because repugnant to the demise of the Shops Dyer 288. 54. 12 El. 50. Exception repugnant If a common person grant the Mannor of D. except the Courts and perquisites the exception is void for the repugnancy and the Grantee shall keep Courts and have the perquisites notwithstanding such exception Howbeit it is otherwise in the Kings case Vide Max. 81. 103. Hob. 13. Sir Daniel Nortons case 51. If an Vnder-Sheriff covenant with his High-Sheriff Sheriff and Under-Sheriff that he will not execute any Writ of execution for any debt above twenty pounds without speciall Warrant from the High-Sheriff This Covenant is void for the repugnancy for albeit he may chose not to make an Vnder-Sheriff at all or may make him at his will and remove him also if he please yet he cannot leave him an Vnder-Sheriff and yet abridge his power no more then the King may in case of the Sheriff himselfe Vi. 65. 25. Hob. 39. John Ion's case 52. An Office was found Office that A. being seised of the Mannor of D. in fee enfeoffed B. in fee to the use of himselfe for life the Remainder to C. in fee and that A. being so seised of the Premisses dyed thereof so seised And this Office was adjudged void for the repugnancy 168. It will not drive a man to justifie or shew that which he goeth about to defeate or which makes against him Co. l. 7. 10. a. Vghtreds case 1. The Marquesse of Winchester grants the Captainship of a Fort Condition subsequent not to be averred and for the exercising of that Office and for finding a Gunner and six Souldiers he grants him an Annuity of two and thirty pounds yearly upon Suit for this Annuity exception was taken to the count for that the Plaintiff had not therein averred his exercising of the Office but the exception was over-ruled by the Court because in all cases when an Interest or Estate commenceth upon a Condition precedent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative there the Plaintiff ought to shew it in his Count and to aver the performance thereof for then the Interest or estate commenceth in him by the performance of the Condition and is not in him untill the Condition be performed but it is otherwise when the Interest or Estate passeth presently and vests in the Grantee and is to be defeated by matter ex post facto or Condition subsequent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative In such case the Plaintiff may count generally without shewing the performance thereof and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and which is for his advantage and no man shall be forced to alleadge that which makes against him Vide plus ibidem The like 2. If I grant to one that when he shall be promoted to a benefice Pl. Com 25 b 4. Colthrist and Bevish that then he shall have an Annuity In this case if he demand the Annuity he ought first to shew that he is promoted to a Benefice in such a case he shall have a Writ of Annuity and shall not shew that he is yet promoted because the annuity precedes and the promotion is subsequent and goes in defeasance of the annuity and therefore ought to be shewed on the contrary part and not by the Plaintiff because it makes against him Vide 15 H. 7. fol. 1. Br. Annuity 22. Count 43. Co. l. 7. 10. b. Vghtreds case The like 3. In Colth and Bevishams case Pl. Com. ibid. 26. b. 4. 30. a. 3. 32. b. 2. 34. a. 2. Pl. Com. The Grange was to remain to Peter Bevisham for life Si vellet inhabitare c. durante termino which was the whole Terme and immediatly after the death of Henry and Elianor and therefore it was alleadged that he should have shewed in his bar the time of his entry and his abode thereupon but it was resolved that the bar was good notwithstanding that exception because by common intendment it shall be taken that his entry was immediatly after the Remainder fell and if it were not so the Plaintiff ought to have shewed it and not the Defendant in his Bar because it made against him being in Defeasance of his Estate c. Condition subsequent 4. If I grant to one that when he shall do such an Act Pl. Com. 30. a. 2. Colthirst and Bevish that then he shal have a Rent charge out of my Land in this case he shall not avow for the Rent unlesse he first shew the performance of the Condition for that enables him to the Rent but if I grant to one out of my Land a Rent-charge upon Condition that he shall do such a thing here he shall avow for the rent without shewing the thing to be done for the Condition is subsequent and goes in defeasance of the estate which he that would have the estate to continue ought not to shew because it makes against him Copy-hold 5. A Copy-hold Lord in suing for a Fine upon admittance Ho. 135. Denny and Lemman need not aver that the Fine set upon the Copy-holder was reasonable because that might perhaps make against him if it should be adjudged by the Court unreasonable but the unreasonablenesse of the Fine ought to be pleaded on the Copyholders part 169. Non potest adduci exceptio ejusdem rei cujus petitur dissolutio Taile discontinued 1. If Tenant in tail of Lands make a gift in tail or a Lease for life Co. Inst pars 1. b. 2. rendring a rent and dyeth and the Issue bringeth a Formedon in the Descender in this case the Reversion and Rent shall not bar the Demandant because by his Formedon he is to defeate the Reversion and Rent Et non potest adduci c.
own Tender but if he that gaged them tendred the money before the stealing and the other refused to deliver them then for this negligence and default in him he shall be charged with them Default in reâ—â—â—ictions 5 In real actions where Voucher lyeth Co. ibid. 101. b. 4. if the Sheriff return that the Vouchée is summoned and he make default then a Magnum Cape ad valentiam is awarded when if he make default again then Iudgement is to be given against the tenant Also if the vouchee do appear and after make default then a Parvum Cape ad valentiam is awarded and if he thereupon make default again then judgment is to be given as before Villein 〈◊〉 Lords 〈◊〉 6 If a Villein purchase land Co. ibid. 118. a. 4. b. 1 2. Littl. §. 177. and alien the land to another before the Lord enter In that case the Lord cannot enter for it shall be adjudged his folly that he entred not when the land was in the Villeins hand So it is likewise if a freeman hath issue and afterwards by confession becometh bond and purchase lands in fee and before the Lord enter he dieth seised and the land descends to his issue which is free in this case also the Lord shall not enter The like Law it is if the land so purchased by the Villein escheat to the Lord of the fee before any entry made by the Lord of the Villein as if the Villein dye without heir or be convict or outlawed for felony or if a recovery be had against the Villein in a Cessavit or the like in all such cases it will be imputed to the folly of the Lord of the Villein that he entred not in time when he might Also if a Villein be disseised before the Lord doth enter the Lord may enter into the land in the name of the Villein and thereby goin the Inheritance of the land but if there be a descent cast so as the entry of the Villein is taken away then the Villein must recontinue the estate of the land by judgement and execution before the Lord of the Villein can enter So if the Villein purchase lands in tayl and alien before the Lord enter the Lords entry is taken away causa qua supra but if the Villein dye and his issue recover the land entayled in a Formedon then the Lord may enter The like law is also of Seigniories Co. ibid. 2. Advowsons Reversions Remainders Rents Commons certain and such like certain Inheritances And all the reason of these â—â—â—es is besides the Lords folly and negligence because the Lord before his entry hath no interest but only a bare possibility Howbeit it is otherwise in the Kings case after office found because nullum tempus occurrit Regi Co. ibid. 118. a. 4. b. 3. Littl. §. 177. 7 If a Villein purchase goods or chattels Villein The Lords seisure of Goods and sell or give them away before the Lord seise them his title to the goods is gone for the Law imputeth it to his folly and negligence as before of lands c. for a bare claim of the goods of the Villein is not sufficient in Law but he must seise some part in the name of all the residue or that the goods be within the view of the Lord for the claim and view amount to a seisure as the claim of a Ward being present by word is a sufficient seisure albeit the Guardian layeth no hands of him And here under the name of goods and chattels are comprehended not only personal goods as an Horse a Cow Housholdstuff and the like but also chattels real as Wardships Leases for years Interests by Statute staple Statute merchant Elegit or the like and the gifts aforesaid do not only extend to gifts in deed but likewise to gifts in Law And therefore if a Wife hath goods and taketh Baron upon this gift in Law by force of the marriage the land is barred So likewise if a Villein having goods make his executors and dye by this gift in Law the Lord is barred for his folly and neglect Co. ibid. 131. a. 4. 8 In an action where a Protection lyeth â—â—â—tectiâ—n if after it is allowed the party tarrieth in the Country without going to the service for which he was relieved above a convenient time after the Protection had or otherwise withdraw himself from the service upon Information thereof to the Lord Chancellor he shall repeal the Protection in that case by an Innotescimus See the Statute of 13 R. 2. 16. Littl. §. 261. Co. ibid. 173. a. 4. 9 If lands be given to a man in tayl Partition who hath as much Feesimple lands and hath issue two daughters and dye and the daughters make partition and the feesimple lands are assigned to the youngest daughter for her purparty and the entailed lands to the elder and the youngest daughter aliens the feesimple lands and having issue dies In this case the issue of the youngest daughter may enter into the moiety of the entailed lands notwithstanding such partition for it will be imputed to the folly of the eldest daughter that she agreed to such a Partition whereas she might have had upon the Partition the moyety of the one and also of the other because in a writ of Partition she was not compellable to take the whole estate in tayl but might have challenged moities in each as aforesaid and that ex provisione legis But when she will not submit her self to the policy and provision of Law but betake her self to her own policy and provision there the Law will not ayd her So likewise if a man be seised of three Manors in fee of equal value Dower and taketh wife and chargeth one of the Manors with a rent-charge and dieth the wife may by the provision of the Law take a third part of all the Manors and hold them discharged but if she will in folly accept the entire Manor charged she shall hold it charged with the rent Mortgage 10 If the Mortgageor tender the money at the day to the Mortgagée and the Mortgagée refuse it and the Mortgageor thereupon enter Littl. §. 335. Co. ibid. 207. the Mortgagée is without remedy at the Common Law for it will be imputed to his folly that he refused it when lawfull tender thereof was made unto him Vide Max. 80. case 24. Bastard Mulâ—er 11 If there be a Bastard eygne and Mulier puisne Littl. §. 399. 401. Co. ibid. 244. and after the fathers death the Bastard enter and peaceably enjoys the land without entry of the Mulier all his life and having issue dieth seised In this case the Mulier is barred for ever for it is imputed to the folly and negligence of the Mulier that he entred not during the life of the Bastard and albeit the Mulier were under age or covert baron at the time of
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
Lease for life or a gift in tail by déed reserving a rent this shall enure to the tenant for life only during his life and after to him in the reversion for each of them grants that which he may lawfully grant and if at the Common Law they had made a feoffment in fee generally the feoffee should have holden of the tenant for life during his life and after of him in reversion And so it was holden Mich. 36 37 Eliz. in B. R. Release 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land Co. Inst part 1. 273. b. 1. ◠by this A. hath an estate for the term of his own life for a lease for term of his own life is higher and better in judgement of Law than an estate for the term of another mans life So if a release be made to tenant by Statute Merchant or Staple or tenant by Elegit or to Guardian in Chivalry who holdeth in for the value of the marriage by him in reversion of all his right in the land by this a fréehold passeth for the life of him to whom the release is made for that is the best and greatest estate that can pass without apt words of Inheritance viz. heirs Accruer 6 Queen Eliz. being seised of a Reversion in fee upon an estate tail in the Lord Stafford grants it to Tindal in tail Co. l. 8 77. a. 2. in the Lo. Staffords case upon condition to have praedictam reversionem in fee Here these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal but to the reversion in fee. Feoffments 7 The heir of the disseisor being in by descent Co. Inst part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed and livery of seisin is had thereupon In this case as to the heir the land passeth and the deed enures by way of feoffment and as to the disseisee by way of Confirmation for by construction of Law the land shall ever pass from him that hath the estate of the land in him as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joyned in a feoffment it had been the feoffment of the feoffees because the estate of the land was in them So it is likewise if the tenant for life and he in the remainder or reversion in fee joyn in a feoffment by deed the livery of the freehold shall move from the lessee the inheritance from him in the reversion or remainder from each of them according to his estate for it cannot be adjudged by Law that the feofment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder or doth work a wrong because they joyned together So if there be tenant for life the remainder in tail the remainder in tail c. and tenant for life and he in the first remainder in tail levy a fine this is no discontinuance or devesting of any estate in remainder but each of them pass that which they have power and Authority to pass The like 8 If the disseisor and disseisee joyn in a charter of feoffment Co. ibid. 302. b. 4. and enter into the land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor because the entry of the disseisee was then lawfull It is otherwise when the heir of the disseisor and the disseisee join as in Littletons case supra 7. for in such case the disseisees entry is not congeable But if he in the reversion in fee and tenant for life ioin in a feoffment by parol this shall be as some hold first a surrender of the estate of tenant for life and then the feoffment of him in the reversion for otherwise if the whole should pass from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat c. shall be construed most strongly against himself 9 Words are alwaies taken best for the Speaker Hob. 77. Adrian Coote so as there is one Rule for deeds or pleading and another for words 194 Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not Co. Inst part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B for term of life Estates for life without mentioning for whose life it shall be This shall be deemed for term of the life of the lessee because in this case it shall be taken most strongly against the lessor an estate for a mans own life being as to him better and higher than for the life of another But if tenant in tail make such a lease without expressing for whose life this shall be taken but for the life of the lessor for two reasons First when the construction of any act is left to the Law the Law which abhorreth injury and wrong will never so construe it that it may work a wrong And in this case if by construction it should be for the life of the lessee then should the estate tail be discontinued and a new reversion gained by wrong but if it construed for the life of the tenant in tail then no wrong is wrought And it is a general Rule that whensoever the words of a deed or of the parties without deed may have a double intendment and the one standeth with Law and right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken 2. The Law respecteth more a lesser estate by right than a larger estate by wrong as if tenant for life in remainder disseise the tenant for life in possession in this case the disseisor hath a fee-simple but if tenant for life in possession die now is the disseisors wrongful estate in fee by Iudgement of Law changed to a rightfull estate for life So if tenant in tail make a lease to another for term of life generally and after releaseth to the lessee and his heirs Here albeit between the tenant in tail and the releasee a fee-simple passed yet after the death of the lessee the entry of the issue in tail is lawfull which could not be if it were a lease for the life of the lessee for then by the release it had been a discontinuance executed In like manner if I retain a servant generally without expressing any time the Law shall construe it to be for one year because that retainer is according to Law Vide Stat. 5 Eliz. cap. 4. Co. Inst part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut
of Parliament must be alwaies taken in a lawfull and rightfull sence Stat. of Gloc. as in the Statute of Glocester cap. 3. The words in the end of that Act whereof no fine is levied in the Kings Court are to be understood whereof no fine is lawfully or rightfully levied in the Kings Court And therefore a fine levied by the husband alone of the wives land is not within the meaning of that Statute for that fine would work a wrong to the wife but a fine levied by the husband and wife is intended by the Statute for such a fine is lawfull and worketh no wrong So the Statute of Westm 2. cap. 5. saith Ita quod Episcopus Ecclesiam conferat is construed Ita quod Episcopus Ecclesiam legitime conferat and the like in a number of other cases in our books And the general rule is Non praestat impedimentum quod de lure non sortitur effectum Co. ibid. 42. a. 1. 14 If tenant for life infeoff him in the remainder for life Surrender this the Law construes to be a surrender which is a lawfull act and not a forfeiture which implies a wrong Co. ibid. 15 If tenant for life maketh a lease by déed or without déed Lease for life to him in remainder to him in the remainder or reversion in tail or in fée for the term of the life of him in remainder or reversion and after he in remainder taketh wife and dieth In this case his wife shall not be endowed for the Law will adjudge the estate made to him in remainder or reversion a good and lawfull estate and tenant for life shall enjoy the land again And here in regard this can be no surrender because tenant for life did not part with his whole estate the Law rather than to admit of a forfeiture which implies a wrong preserves the first estate for life from being surrendred drowned or forfeited And indéed forfeited it cannot be in another respect for that he in remainder was party thereunto Co. l. 1. 76 a. Bredons case 16 If there be tenant for life remainder in tail remainder in tail No discontinuance or forfeiture and tenant for life and the first remainder levy a fine to one who grants and renders a rent charge to the tenant for life and then the first remainder dies without issue and the second remainder enters and tenant for life distrains for the rent In this case there is neither discontinuance nor forfeiture no discontinuance because each of them grants but his own estate which he may lawfully do no forfeiture because it shall be first construed to be the fine of him in remainder and afterwards of the tenant for life Co. l 2. 67 a. 1 in Tookâ—es case 17 Dower assigned by one Iointenant only Assignment of Dower Attornment or by an Abator or disseisor shall not be avoided by the other Iointenant or the disseisée as it is agréed in 12 Ass pl. 20. because these are lawfull acts so it is said if the disseisor attorn or give seisin to the grantée of a seigniory this shall bind the disseisee for the same reason albeit the grantee of a seigniory cannot compell the disseisor to attorn to him or to give him seisin if he had not seisin before within the time of limitation Vide 8 H. 6. 17. 8 Ass pl. 16. 8 E. 3. 52. 11 H. 4. 29. 39 H. 6. 2. It is likewise said that if the lessor disseise his two lessees for life and enfeoff another and one of the lessees re-enter this act of the one is an attornment in Law for both much more shall an express attornment bind both because these are by construction of Law lawfull acts c. Vide 23. Fine and 5. years pass 18 T. possessed of divers parcels of land within the Manor of S. for years at will and by Copy and of others in fee there Co. l. 3. 79. b. 2. Fermers case demises the whole to C. for life then levies a fine to him and his heirs of so many acres as amount to the whole land continues possession and pays the rents to the Lord Here albeit 5. years pass yet is not the Lord barred for in as much as the lessee had lands in fee simple in the same Town by construction of Law it will be presumed that the fine was levied of the land whereof a fine might be lawfully levied And albeit the fine contained more acres than his own land yet that alters not the case for it is usual almost in all fines to put in more acres than the just content of the land Copyhold 19 If a man seised of Copyhold land in right of his wife surrender it to the use of another in fee who is admitted accordingly Co. l. 4. 23. a. 2. in Copihold cases Bullock and Dibley the baron dies this is no discontinuance to the feme or her heirs but that the feme may well enter neither shall she be put to her Cui in vita or her heir to his sur Cui in vita because the Law will construe it to be such an alienation as he may lawfully make viz. of his estate in right of his wife during the Coverture So if a Copyholder for life surrender to the use of another in fee this is no forfeiture for the like reason and because it passeth by surrender to the Lord and not by livery King tenant pur auter vie 20 If the King being tenant pur auter vie Co. l. 5. 12. a 4. in Englefields case make a lease for 40. years albeit he having but an estate pur auter vie cannot absolutely contract for a lease of 40. years yet without any recital or mention of the estate for life the lease is good because the lease for years is in judgement of Law less than the estate pur auter vie and the King doth not thereby any wrong or prejudice to any neither yet is he deceived in his grant for by construction of Law it is a lease for 40 years if Cestuy que vie so long live Afferment of Amerciaments 21 If a Iury or a Leet tax an amerciament Co. l. 8 40. b. 4. in Grieslyes case this sufficeth without any afferment for the afferment may as well be per totum Homagium as by special Afferrors because the amerciament is the act of the Court and the Afferment the act of the Iury. Vide 10 Edw. 3. 9. 10. 8 Hen. 7. 4. 7 Edw. 3. 15. b. Astlies case 25 Edw. 3. 26 27. Grant of the King 22 The King grants the herbage and pannage of a Park to Markham for life and reciting that estate Co. l. 8. 56. a. 1. The E. of Rutl. case grants to the E. of Rutland for life In this case albeit the King grants to the Earl in possession yet he is not deceived in his grant for reciting and granting as here
just cause the Mulier is barred for ever for the possession of the King when he hath no just cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the Father the Mulier be found heir and within age and the King seiseth In such case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier and consequently the Bastard eigne is foreclosed of any right for ever so it is likewise when the King seiseth for a contempt or other offence of the father or of any other ancestor In that case if the issue of the Bastard eigne upon a Petition be restored for that the seisure was without just cause the Mulier is not barred because the bastard could never enter and consequently could gain no estate in the land but the possession of the King in that case shall be adjudged in the right of the Mulier Vide 2 Ass pl. 9. Copyhold 2 If a Copihold estate fall into the Lords hands by escheat Co. l. 4. 31. a. 2. in Frenches case forfeiture or the like and the Lord make a lease thereof for years life or other estate by deed or without deed or if the Lord make a feoffment thereof in fee upon condition and enter for the condition broken or if the Copyhold so forfeited or escheated before any new grant thereof made be extended upon a Statute or Recognisance acknowledged by the Lord or if the feme of the Lord in a writ of Dower hath that land assigned to her In all these cases and albeit these last impediments are by acts in Law yet for as much as all these interruptions are lawful the lands can never after be granted by Copy because after such disposition thereof it was not demised or demisable But if the interruption be tortious as if the Lord be disseised and the disseisor die seised or if the land be recovered against the Lord by a false verdict or erronious judgement In these cases until the land be recovered or the judgement nulled or reversed by the Lord of the Manor the land was not demised or demisable and yet after the land is recontinued it is again grantable by Copy because the interruption was tortious for Non valet Impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur Restraint to alien 3 If a man make a gift in tail upon condition that the donee shall not alien yet in such case if the donee suffer a Common recovery Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case that is no breach of the Condition because it is a Conveyance allowed by Law in respect of the intended recompence but if he make a feoffment in fee or any other estate whereby the reversion is tortiously discontinued the donor may enter for the Condition broken for every act which is prohibited by Law or is a tort may be prohibited by condition vide 10 H. 7. 11. So if a feoffment be made to Baron and feme upon condition that they shall not alien yet that doth not restrain their joint alienation by fine because it is lawfull and incident to their estate But their feoffment or alienation by deed is restrained by such a condition for that is tortious and against Law Also if a man enfeoff an Infant in fee upon condition that he shall not alien this cannot restrain him to alien at his full age but during his minority it doth because that is tortious and prohibited by Law Co. l 7. 6 a. 3. in Sendâ—ls case 4 One of the reasons Robbery why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfie the damages is for that it is not lawfull for any man to enter into the house of another for the safeguard thereof Co. l. 11. 74. a. 3. Magd. Coll. case 5 Albeit the Friers Carmelites were of a Profession of Religion Carmelites and had not any habitation so as it seemed to be a work of piety and charity to provide an habitation for them yet non facias malum ut inde fiat bonum F.N.B. 36. f. 6 If a man be disseised of a Manor to which an Advowson is appendant Usurpation and the disseisor suffers an usurpation by a stranger to the advowson and after the disseisée re-enters into the Manor he shall present to the advowson when it happens to be void notwithstanding such usurpation Dyer 168. 19. 1 Eliz. 7 Bronker Sherif of Wiltshire to prevent perjury in his office Sheriffs oath did neglect to be sworn in incepto officii which he ought to have done by the antient Common Law of the Realm for which contempt he was fined and imprisoned by decrée in the Star-chamber Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house Livery of seisin and quiet possession to the Maior of London to the use of the obligee no person being in the house he locks the door and delivers the key to the Maior out of view A stranger pretending title enters into the house This séems to be no delivery of possession yet verdict was given for it which was afterwards affirmed in Attaint And the reason séems to be for that the impediment was unlawfull 196 Praetextu liciti non debet admitti illicitum Co. l. 11 88. b. 1 in the case of Monopolies 1 The Charter of making and importing Cards being adjudged in the 11 Rep. a Monopoly had a glorious preamble and pretext Monopolies yet was repealed as derogatory to the Kings honor and very pernicious to the Commonwealth And indeed it is true Quod privilegia quae revera sunt in praejudicium Reipublicae magis speciosa habent frontispicia et boni publici praetextum quam bonae et legales concessiones but Praetextu liciti non debet admitti illicitum Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trées to repair the house Waste and he fells 4. Oaks for that purpose and sells them and buyes 4. other Oaks as good and imployes them towards the repair of the house yet that is waste for the cutting of them down and selling them was a tort so if a man sell the distress which he hath caken and impounded and afterwards finding his error buyes them again and impounds yet their sale is a tort and the impounding of the Cattel afterwards shall not excuse it Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks sells them and payes the obligée for the lessor Waste yet an action of waste lyeth against the lessee for felling the trees albeit the money arising upon the sale was converted to the
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
§. 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
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
Livery where a Forfeiture 370 Copyholds and Copyholders 727. 760. 217. No Fine due upon surrender or discent bâ—fore Admittance 45. May lop Trees 47. Their estate confirmed by Custome 58. Surrenders by Attorney and good 68. In by the Surrender not by the Lord 83. Severed by Custome so continue 133. 328. Grantable by Executors 142. Dominus pro tempore 142. Grantable in fee may be granted for life 216. Their Fines must be reasonable 213. Surrenders before admittance good 327. In pleading may alledge an Admittance as a Grant Copy-hold Customes 759. Extinct 463 Conveniency things respected by reason of their conveniency 428 Cornage 162 Corodies 228 254 Corporations 390. 708. 719. Failing the Lands revert 29. Hold Lands by Knights service 36. Where granted is dissolved upon a Release 52. 53. Translated enjoy their old Priviledges 154. Single and aggregate 150. Altered yet the body remaines 354 Corruption of Blood 161 Coronors their Inquest 244 Costs 564 Covenants joynt and severall 89. What bind betwixt Lessor and Lessee 133. Incident to the Lands and came with it 135. Implyed and expressed 157. Have speciall relation 167 Covin apparent need not be shewed 603. Hinders a Remitter 612. Not presumed unlesse averred 725 Cui in vita 765 Custome Concealed 14. Of goods lost by Tempest not recoverable 591 Customes bindes strangers 145. Of Burrough English 148. 244 313. To have a Fine for marrying the Daughter 352 Cou t s made good by the Bar and Replication 249. Must containe certainty and verity 605. abated by mis-recitall 470 Courts Baron 135. By Commission cannot sit in Terme where the Kings Bench is 223. Remedy for spirituall things in temporall Courts 234 Of Record onely have power to imprison 367 D. DAyes in Court and pleadable 7 Damages severall amongst Parcenors 237. When they shall be layed in the Count 597. And increased e contr 502. Double Writs of Enquiry of them 696 Darriane Presentment 331. 341. 382. Demand of a Rent when to be made 489 490 491 492 493. 495. 474. Of the purchase of a Villaine 495 Deeds must be avoided by Deeds 71 72. In whose custody to remaine 127. In Cases of necessity may be proved without shewing them 425. Made void by rasure c. 590. Fraudulent void 613 614 615. 691. Not to be pleaded without shewing 706 Death Not traversable 603 Delivery Of Goods by the Banckrupt not good 207 Degrees Of worthinesse of the Lands 269 Demise of the King no change by it 145 Demise of goods 151 Debt for rent after a Surrender 144. Extinct 154. 172. Against Executors 157. 161. 288. Against the Heire 556 Denial 596 Deraignment purgeth Profession 73 Deprivation 289 Detinue by the heir of Deeds 691. For Charters 136. Of Charters where no Plea 195 Devise 715. 770. One equall part of Capite Land to discend 209. For Executors to sell 221. Of the third part 327. Of a Reversion sold by Executors 336. Shall make a Fee-simple by Construction in Law 709 Demand the forme of it in a Writ 17. Of rent must be upon the Land and when 52. 245. 460 490. Not to be by the King 295 Demurrer 296 Devastavit 754 756 Dignity forfeited for Treason 138. Restrained to an estate for life 156. Respected for conveniency 428 Discent 293. 311 312. When privity of blood faileth 32. Where shall take away Entry Et e contra 32 134 609. To Daughters and not Parcenors 51. In stirpes in capita 61. By Entry into Region 62. Where not good against the King 62. One out of the Realm not barred by a discent 216. Takes away Entry 577. 591. 683 716. Of the Bastard eigne where it shall bar the Mulier 493 Discontinuance 20 56 57 325 368 270 Removed the Issue may enter 33. Defeated upon a surrender 33. Of an Estate tail 44. 55. Once defeated all that depends upon it is gone 117. Where a Bar Et e contra 185. Of the Lands by the husband 218. By enfeoffing the Donor and a stranger 256. The reason of it 697 Discontinuance of Suit 557 Dispensations 160. To take two livings 22 101 Disseisin 696. Not of a Rent without Attornment 217. Not of a Rent-charge or Seck but at Election 462. In time of warr takes not away Entry 488 Disseisor and Disseisee 235. May be no Tenant of the Land 563 Disfranchisement 107 Disceit 147 596 Disclaimer 364. 368. Where it shall bind e contr 55. In the blood 459 Disability 343. 570. To make a Surrender 602 Distresse for Damage feasant most be upon the Land 31. Of the Lord out of his fee when 42. Of the Lord Paramount without attornement 82. No Distresse is irreplevisible 168. For owelty of Partition 237. In the night 418 Not for certainty in Leet 549. For more rent then is due where justifiable 468 469. In another County 418 Division of Lands in Hotch pot 205. Of the Testators goods 205 Divine service by Prescription 683 Divorce 593. Causa frigiditatis 714. Sentence in case of Divorce repeated after the death of the parties 498 Donative Charges donative may be made Presentative 462 Double Pleas 625 Dower where it lyeth against the Guardian e contr 35. Of a woman at nine yeares of age 37. Ex assensu Patris where not good 73. 622. Dos non de dote 79 According to the improved value 79. of Copyhold 91. 556. Where not of the Rent but of the Land 125 Of intire things 207. Ad ostium Ecclesiae 220. 622. Of Castles where e contr 729. Of the pluis beate parte 730. Of Rent to be delivered by the Sheriff 429 Dutchy of Cornewall 720 Drunkard 570 E. ECclesiasticall persons cannot prejudice their Church 4. Cannot disclaim 4. May resigne to the King 220. Ecclesiasticall Courts may take Recognizance of a debt 239. Where Temporall Courts are to take notice of their Jurisdiction 599. Ecclesiasticall Lawes What are in force 7. Founded by the Common Law 71. Ejectione firmae 141. 727. Of what it lyeth not 18. Not within the Statute of 32 H. 8. of Titles 92. By the Lessee of a Copy-holder 545 506 Estates Deseiable 122. Upon accruer 122 Particular and Remainder one Estate 187. Voidable evicted by Guardian and Bishop 192. In taile cannot drown 201 Two Estates made together of one Land 207. Once void remedilesse 395. Executed and Executory 396. Altered and charged 433 Election 159 473 474 475 477. Of a Writ of Annuity or Distresse 473. Lost by doing wrong 565. By Coparcenors 478. To Corporations 753. Of the Knights of the Parliament 550. Of the Heir and the Lord 475. Of things in grant 475. Of Entry and Actions 476 Enfranchisement 356 459. For a time 161 Enfant May attorne 48. Shall do his Services ibid. Where shall not have his Age 48. Cannot be Guardian 104 Where his plea shall demurr for Enfancy 315. Shall not account 319. Their Acts upon Record not voidable 369. Married before yeares of consent 402. Compellable to attorne 415 Entry congeable 40 44 Entry Taken
away by Corruption of blood 37 Revived 38. Is not good where is no Interest 55. Taken from the Issue in taile 57 After Entry the party Trespassor Ab initio 108. Given to the King withouâ— demand 275. When may be for non-payment of Rent without demand Et e contra 496. By a stranger devests not an estate 485 Encroachment of Rent avoided in Avowry or by Nuper obijt 477 Emblements 85 466 587. 730 442 583. Equity What it is 202. Upon certaine statutes 204 295 210 211 212 213. Error Not after a Release 105 In Court 124. By him in the Reversion or Remainder 132. In Law not reversable in the same Court 170. By the Vouchee 197. Who may have Error 198. 546. Not upon Disclaimer 198. 647. No Writ before the Judgemennt be compleated 247. 274. 545. 693. In fact and in Law 682. In London 701. Upon a Plaint in Inferiour Courts 709 Escheat 294 Escape 36. 95. 572. 585. 685 772. 645. By marriage of the Keeper 36. Against a Goaler 561 Estrepment 700. In what case it lyeth 682 Estovers 135 194 Estoppell 186. 566. The heire where not estopped 573. No Estoppell to alledge the truth which appeareth on Record 604 Executors where they shall not recover Arreares but lose them 66 67. May release before Probate 125. Chargeable without naming of them 166. Not chargeable where the Testator might wage his Law 590. Of his owne wrong 466 Execution 400. Where against the Kings Debtor e contr 40. Of the Land onely which the party had at the time of the Judgement 42. Where returneable e contr 93. What Execution was at the common Law upon a Recognizance 214. 215. Cannot be of the profits of an Office in Trust 236. Discharged by purchase of parcell of the Land 240. Sheriff may breake open doores to do it 290. Where not against an heire Enfant 350. Valuable or without satisfaction 350. No protection after it 394. Of the body not valuable 587. Prisoners are in Execution till delivered over to the new Sheriff 699. Of Processe 699 Excomengment 688. Where a good Plea to abate a Writ e contr 38. Where it shall disable e contr 170 Exchange Imports Warranty and Covenant 137 Not equall void 242. Intire being a condition in Law 259. Not executed void 393 Exigent 122 Extent 480 Exposition of words 13 18 96 217 705 Construction of them must referr to the next Antecedent 15. In forma predicta 15. Of Sentences and words 21 23 Exception 165 Extinguishment Taile extinct in a fee-simple 223. Of a Rent charge barrs an annuity 434 Ex gravi querela to whom granted 550 F. FAiler Of Action 75. Of the Record 620 Falsifier of Recovery Not by Tenant in taile in Remainder 67 False Latine 19. Shall not quash a Count nor a judiciall Writ 21 Fealty 129 581. Incident though not named 134 Fee-simple Without words Heirs 409 passeth out of the King without Office 421 Fees Barons and Knights Fees 203 Feoffments To uses 148. To the use of his Will the use is in the Feoffor 53 Conditionall 285. Makes not extinguishment of Rent 482. Not to an Alien 618. By Deed not devefted by words 699 Feme covert 562. After coverture a Neife againe 31. disabled to bring Actions 551 Felony 50 420 Felo de se Shall not forfeit to the King a debt upon a simple Contract 694 Fines levied of Lands 93 214 400. Void 74 75 400 Cannot operate double 96 Barr an intaile 154 188 330 For yeares within the Statute of 11 H. 7. 209 Levyed by Covin shall not bar 586. 613. Reversed 715 Fines upon copy-hold Estates 434. Excessive or unreasonable no Forfeiture to deny them 685 Fine In a Leet to be distinct and not joynt 49 334 557. For an unjust vexation 68â— Eor disturbance in a Court of Record 741 Forejudger 371 Folly where attributed to the party and so bind them 666 667 Forfeiture of marryage not paid after Knigthood 34. Of a Dignity entailed 93 Not without some overt act done 108. Of an office for waste 214 For saying Masse 245. By Attornement upon Record 366 Foâ—cible Entry 91 Foundation of a Colledge where void 76 Formedon 41 599 Frankalmoigne 410 720 Frank-marriage Hotchpot 31. 62. Who shall have the Land after a Divorce 52. Out of use 158 Fractions in Conditions estates 256 257 Franchises shall not dye 64 65 Fraude 613 614 615 Fraudulent Grants 747 G. GArnishment 123 Gavelkind 148 Goales 133 Guardian the body of the Ward severed from the Land the Lord shall have the benefit of the two years 30. In Socage cannot present to a Benefice 104. Accountable 142 576. In Socage 235. 351. 371. Of what discharged upon his Account 583. Must account of the marryage of the heir 665 Goods too high apprised to be delivered the Apprisors 215 Grand Serjeancy 150 687 Grants of the King 206. Grants to the King restrained by generall words of Statutes 26. Of an office and after of a Rent for the exercise of it the office determined 41. Made upon false suggestions of the parties are void 302. 616. 457. Construed for his honor and the releife of the Subjects 741 Grants of an estate of Free-hold in futuro void 24. Not to be expounded against the expresse Letter 25. Of a Villaine for years not good without Deed 42. Of a Reversion not good without Attornment 67. Of Monopolie void 68. Of a Rent where void 74. Of the office of Auditor 77. Of a Surveyorship 77. To a Colledge where void 77. Of Glebe Lands void to Children before birth void 78. Made upon good grounds è contr 128. of Services Quid operatur 129 of the next avoydance 160. 164 245. 579. of a Seigniory 169. of Pawnage 245. of copyholds 252. In pais not good without Attornment 366. Joynt where they enure severally 608. 609. By Ecclesiasticall persons 762. Where good without Attornment 455 Made Concurrentibus his how they operate 484 Guifts to Husband and Wife how to be taken 62. Causa Matrimonii prolocuti 275 H. HAbendum and Premisses their difference 100 Heire a mans heir remaines in him during his life 241 Heresie 8 Heriot service and custome 254 Homage by Husband and Wife 767. Auncestrell gone after Alienation 30. 410. May be seperated and twice done 113. Personall 150 Extinct 173. Auncestrell implyes Acquitaile 607. Hotchpot 205 600 Hospitalls 407 Huy and Cry 588 Hundred not chargeable to a Felony done in a mans house 668 I. IDiots examined in Chancery 123 Imprisonment 320 356 743 Indictments Not void by Nicity or Curiosity 26. 27. Good though not pursued in the Circumstances 386. Where the wound must be left out è contr 602. Fraudulent 620. Auterfoits acquite where a good Plea 501 Incidents 131. Incident services not discharged without speciall words 131. Fish and Doves to the Free-hold 226. To a Deed 321. To Corporations 135. Inseperable 135. A Judgement distroyes a Bond 222 Intire things 262 263 264 265 266. 498. Intire Inheritances