in the Mannor As if A. gives the Mannor of B. to B. in taile and after the Donor is attainted of treason whereby the King is seised of the reversion and after by his Letters patents grants Manerium de D. to another and his heirs In this case albeit the King grants the Mannor of D. is in possession yet the reversion shall passe for the King hath an estate viz. the reversion in fée grantable in him the estate taile of the common person néed not be recited c. The King not deceived 31 If the King be Tenant pur auter vie Co. l. 7. 12. a. 4. in Englefeilds case and makes a lease for forty years Here albeit the King having but an estate pur auter vie cannot absolutely contract for a lease of forty years yet without any recital or mention of the estate for life the lease is good for the lease for years is in judgment of Law lesse than a lease pur auter vie and the King doth no wrong or prejudice to any by such a demise neither yet is he deceived in his grant because in judgement of Law that is a lease for forty years if Cestuy que vie shall so long live c. Fine in a court Leet 32 If for an amerciament upon an offence committed out of a Court Léet and found by the Iury whereof the Iury onely have conisance and for which they onely are to impose the amerciament the Lord of the Léet hath power to distrain Co. l. 8. 41. a. 4. in Greisleys case c. Much more for a fine imposed by the Steward in Court for some contempt c. committed in the Court it self and whereof the Steward only hath conisance shall the Lord c. distrain the goods of the party offending and impound them c. or else make sale thereof at his election c. A lease for years lesse than an estate for life 33 If a man upon a grant reserve unto himselfe power to make leases so that they shall not excéed 21 years or thrée lives In that case Co. l. 8 70 b. in Whitlocks case he may make leases of 99 years if any three shall so long live because such a lease excéeds not thrée lives but is in truth lesse for an estate for years which is but a Chattel is lesse in estimation of Law than an estate for life which is a Franktenement An Officer may make a Deputy 34 When an Officer hath power to make assignes he hath power Co. l. 9. 48. b. 4. in the Earl of Shrewsburies case implicite to make Deputies For Cui licet quod majus est non debet quod minus est non licere And therefore when an office of Stewardship or the like is granted to one and his heirs he may thereby make an Assignée and by consequent also a Deputy c. An arrest within the liberties of London 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment viz. that the precept was to arrest the Defendant Co. l. 9. 67. a. 1. in Mackallyes case Si inventus foret infra libertates Civitatis praedicti viz. London And the Indictment was Quid in parochia Sancti Martini Bowyer Rowe in Warda de Farringdon infra Londinum praedict the Serjeant arrested him and so he pursued not the precept for the precept was infra libertates London But notwithstanding that exception the Indictment was resolved to be good because the said Parish and Ward in London shall be intended to be within the liberties of London For these words liberties of London have a larger extent than the word London and do include in them the Citie of London it self c. Justices of the Kings Bench are Justices of Gaol delivery Oyer and Terminer 36 The Justices of the K. Bench are taken to be within the words of the stat of 2 E. 6. cap. 24. which ordains Co. l. 9. 118. b 2. in the Lord Sanchiers case that for the tryal of accessaries in another County than where the principal was indicted Certificat of the Indictment of the principal shall be made to the Iustices of Gaole delivery or of Oyer and Terminer before whom the accessary is to be tryed c. for that the Iustices of the K. Bench are the sovereign Iustices of Gaol delivery of Oyer Terminer and therefore they are included within the same words And upon the same ground it is holden in 7 E. 4. 18. 4 H. 7. 18. that if an indictment of forcible entry be removed into the Kings Bench the Iustices of that Bench shall award restitution and yet the Sâ—at of 8 H. 6. cap. 9. speaks onely of Iustices of Peace but the reason is because the Iustices of the Kings Bench have sovereign and supream authority in such cases And therefore in the Lord Sanchiers case in the 9 Rep. the Iustices of the Kings Bench wrote according to the said Act of 2 E. 6. to the Iustices of Gaole delivery in London before whom the Principal was tryed c. who thereupon certified the record accordingly c. Co. l. 11. 60. a. 3 Doctor Fosters case 37 The Statute of 23 Eliz. cap. 1. which ordains Attaint moâ—â— than conviâ—â— that every person c. being lawfully convicted of not going to Church c. shall forfeit xx l. per mensem c. séems to intend onely conviction by verdict because that being a penal Law shall not be understood by equity Yet in that case he against whom any judgement is given either upon a Nihil dicit or upon an insufficient plea pleaded and demurrer thereupon is convict within the purview of the same Stat. For albeit this will not follow Such a man is convict therefore he is also attaint and judgement is given against him Yet this is a good consequence Such a man is attainted or adjudged ergò he is convict For he that is attainted or against whom judgement is given is convict and more c. 22. F. N. B. 56. 1. 38 In a writ of Waste if the premisses thereof rehearse Quare Waste cum de Communi Concilio regni nostri Angliae provisum sit quod non liceat alicui facere vastum c. in terris domibus boscis gardinis And in the end of the same Writ it is alleaged quod defendens vastum fecit in terris onely or in boscis onely or in houses onely yet is the Writ good For omne majus continet in se minus c. F. N. B. 136. f. 39 If the Tenant holds by the services Tenure by which the Mesne holds over and also by some other this is good equality to have acquital because it is such and more c. F. N. B. 150. p. 40 Glanvile saith that ad ostium ecclesiae Dower ad â—â—um man cannot assigne for dower more than a third part and if he doth the
his Jure Regio as it was said in 21 E. 3. 47. in the Earl of Kents Case And this is an high and great Prerogative which the King hath that when he makes any Grant upon such false suggestions those Grants are void in Law So also when upon false insinuations and pretexts he makes any grant as of a Monopoly Monopolies c. which in truth is in the prejudice of the King and Common-wealth the King Jure Regio shall avoid such Grants and such Letters Patents shall be by judgment of Law cancelled And therefore in Legats Case in the 10 Rep. it is wittily said of Perpetuities Monopolies and Patents of concealment Concealmenâ— that they were born under an unfortunate Constellation because as soon as they were drawn in question Perpetuities Iudgment was alwayes given against them and never for them they having alwayes two inseparable qualilies incident unto them viz. to be troublesome and fruitlesse â—ent 60 If rent be payable at the Feast of Easter Co. l. 10. 127. b. 4. in Cluns Case and the tenant pay the rent in the morning and the Lessor die before noon this payment is voluntary and good satisfaction against the Heir but not against the King 44 E. 3. 3. â—he King not â—â—rred by Acts â—f Parliament 61 When the King hath any Prerogative Estate Right Title Co. l. 10. 74. b. 4. in Magd. Coll. Case or Interest by the general words of an Act of Parliament he shall not be barred of them as in case of reasonable aid the King hath an Estate and Interest in it and therefore the general words of the Statute of West 1. cap. 35. shall not extend unto it Also the King hath a Prerogative quod nullum tempus occurrit Regi and therefore the general Acts of Limitations or of Plenarty shall not extend unto him F. N. B. 7. b. 32. c. Likewise the King by his Prerogative may sue in what Court be will and of that Prerogative he is not barred by the general purview of the Statute of Magna Charta cap. 11. Et sic de similibus â—arks â—icence 62 None can make a Park Chase or Warren Co. l. 11. 87. b. 1. in the Case of Monopolies without the Kings licence because that were quodam modo to appropriate such things as are ferae naturae in nullius bonis to himself and to restrain them of their natural liberty which he cannot do without the Kings licence c. â—ossessors of â—â—e Kings â—oods and â—â—eir execuâ—â— c. acâ—â—ptable 63 The Earl of Devonshire being Master of the Ordnance Co. l. 11. 90. a. in the Earl of Devonshire's Case obtained a Privie Seal to convert to his own use c. All the unserviceable Ordnance exprest in a Book in regard the King was informed that the Masters did use to claim and enjoy them as fées and avails belonging to their Office whereupon he sold them made his executors and died And in this Case it was resolved that albeit the Earl claimed them to his own use yet in regard the grant was made upon a false suggestion he was in his life-time accountable to the King for them because in the Kings Case the Law makes a privity for if any take the Kings goods or enter into his Lands by wrong the King may charge him in account 33 H. 6. 2. 4 H. 7. 6. 7 H. 7. 10. 15 H. 7. 17. 1 Eliz. 149. Breretons case and 40 Ass Pl. 75 If goods be devised to the King in whose hands soever they come the possessor shall be charged in accompt to the King and the King shall not be put to his Action of Trespasse for then by the death of the party the King should be without remedy but the King by his Prerogative may have an Action of accompt against the executors of the party as appears in Littleton fol. 28. And the King is not constrained to charge the Defendant as Bailiff or Receiver as a common person ought but the King may alledge in his Information generally that he ad compotum Domino Regi reddend tempore mortis suae tenebatur in such sums of money due to the King c. as appears by many presidents in the Exchequer and in the Kings Bench And therefore if the Earl was in his life-time bound to render an accompt unto the King his executors shall do it after his decease c. If one by Letters Patents or by vertue of his Office hath power to assesse Fines upon grants or admittances made to Copiholders within such a Mannor of the Kings and he assesseth little fines for the King and under-hand takes great summes or other rewards of the Copiholders to his own use in deceit and prejudice of the King In this case he shall be charged to the King in accompt for all for in truth all was due to the King and if he die his executors in the Kings Case shall be charged for it is holden in 39 Ass Pl. 18. that the Officers and Ministers of the King may advantage him but can never do any thing to his dis-advantage Co. l. 11. 90. b. 4. in the Earl of Devonshires Case 64 M. 37. 38 Eliz. None can â—â—pose of the Kings treaâ—â—â—â— without hâ—â— licence An Information was preferred in the Exchequer against Carey and Dodington executors of Sir Walter Mildmay Knight Chancellor of that Court to render an accompt of 1525 l. of the Quéens treasure by him converted to his own use c. the Defendants plead that Sir VValter Mildmay non recepit c. ad computandum nec die mortis tenebatur Reginae in Compoto c. And the special Verdict was that the Treasurer and Vnder-treasurer of the Exchequer made a warrant to four Tellors or two to pay to Sir Walter Mildmay 100 l. per annum for his diet and 40 l. per annum for his Attendance in the Vacation by reason that by the annexing of the Court of first-fruits and Augmentation the Chancellor was constrained to attend more than other Chancellors had formerly done And in 2 Eliz. the Quéen directs a Privy Seal to the Treasurer Chamberlaines and Vnder-treasurer of the Exehequer commanding them or some of them to pay to such as should be imployed by her c. for their labours and expences at their discretions according to their merits in as large manner as any Treasurer Chamberlains or Vnder-treasurer had done before And in this Case it was resolved that no Officer nor all of them together can ex officio dispose of the Kings treasure without the Kings warrant although it be for the honour and profit of the King because the Kings treasure is the ligament of peace and the sinews of war and of so high a nature that the imbezeling of treasure trove although not found in the Kings Coffers was treason And treasure and other valuable chattels are so necessary and incident to the
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
a capias he doth well but if he thereupon returne a non est inventus Sheriffes 〈◊〉 return he shall be adjudged a trespassor ab initio And in such Case in false imprisonment brought against him it is sufficient for him to alleadge that he was Sheriffe and that the capias came to him and that by force thereof he tooke and imprisoned the party and then to demand judgment si action and ought not to say that he returned non est inventus because that makes against him that is makes him a trespassor ab initio but the false returne ought to be alleadged by the Plaintiffe who is to take advantage thereof â—â—ed and â—â—in 4 If the Ecclesiastical Court will enjoyne a man to be examined upon oath for the discovery of any covin or fraud concerning himselfe Hob. 84. Spendlow a Prohibition lyeth for albeit the original cause belongs to their Conizance yet the covin and fraud are criminal and the avowing of the Act to be done bona fide is punishable both in the Starre-chamber and by the penal Law of fraudulent gifts and therefore not to be extorted out of himselfe by his oath 126 Nec se infortuniis periculis exponere 1 In making continual claime if the adverse party lie in waite in the way with Weapons or by words menace to beat mayhem or kill the party that would enter in such Case the Law allowes a claime made as néere the land as he dare approach for feare of death or other bodily hurt Howbeit saith Bracton Talis debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere And therefore every doubt or feare is not sufficient for it must concerne the safety of the person of the man and not his houses or goods for the feare of burning his houses or taking away or spoiling his goods is not sufficient because he may recover the same or damages to the value thereof without any corporal hurt But if the Iury upon a special Verdict do find that the disseisée did not enter for feare of corporal hurt this is sufficient and it shall be intended that they had evidence to prove the same Also it séemeth that feare of imprisonment is sufficient because such a feare sufficeth to avoid a bond or a Déed for the Law hath a special regard to the salfety and liberty of a man and imprisonment is a corporal damage a restraint of liberty and a kind of captivity For the time of doing things it countenanceth more 127 Things done in time of Peace than in time of Warre â—â—â—sin in 〈◊〉 of warre 1 If a man be seised of tenements in fée by occupation in time of Warre and thereof die seised in time of Warre Litt. §. 412. Co. Inst p. 1. 249 a. c. and the tenements descend to his heire such descent shall not out any man of his entry Vide 7. E. 2. Now a time of Peace is when the Courts of Iustice be open and the Iudges and Ministers of the same may by Law protect men from wrong and violence and distribute Iustice to all on the other side when by invasion insurrections rebellions or the like the peacable course of Iustice is disturbed and stopped so as the Courts of Iustice he as it were shut up nam inter arma silent Leges then it is said to be a time of Warre And the trial thereof is by the records and Iudges of the Courts of Iustice for by them it will appeare whether Iustice had her equal course of procéeding at that time or no And this shall not be tried by Iury but by them as afore-said And therefore albeit during these late troubles the Courts of Iustice sate duly at Westminster as in other times of Peace yet quaere whether an occupation and discent at that time within the Kings Quarters would barre the disseisée for although they sate yet had they no power there to execute their judgment Co. ib. 249. b. 2 4. 2 If a man be disseised in time of Peace The like and the descent is cast in time of Warre this shall not take away the entry of the disseisée So likewise in real Actions the Explees or taking of the profits are layed tempore pacis 6 E. 3. 41. Co. l. 2. 93. a. 3 in Binghams Case F. N. B. 31. i. for if they were taken tempore belli they are not accounted off in Law And as it is in Case of discent so it is also in Case of presentation for no usurpation in time of Warre putteth the right Patron out of possession albeit the Incumbent come in by institution and induction And time of warre doth not onely give priviledge to them that be actually in Warre but to all others within the Kingdome And albeit the admission and induction be in time of Peace yet if the presentment were in time of warre it putteth not the right Patron out of possession 3 The Law countenanceth more the procéeding against a Felon in time of peace then in time of Warre And therefore if a man commit Felony in time of Peace he shall by judgment forfeit his lands thrée manner of wayes 1 quia suspensus per collum 2 quia abjura vit regnum 3 quia utlagatus est but they who are hanged by Martial Law in favorem belli forfeit no lands 128 Things done in the day more then those done in the night Co. Inst p. 1. 135. a. 4. Mirr l. 5. §. 1. 1 It is not lawfull to hold pleas in the night time or before Sun-rise And therefore the Mirroir saith No pleas the night Abusion est que lon tient pleas par Dimenches v. Sondayes ou par outres jours defenders or devant le Soleil levy ou nectanter c. Co. ib. 142. a. 3 2 For damage fesant a man may distraine in the night No distressâ— the night because otherwise it may be the beasts will be gone before he can take them but for a Rent or service the Lord cannot distraine in the night but it ought to be done in the day time and so it is also of a Rent-charge Vide suprà 110. R. 4. Co. l. 7. 6. b. 2. in Milbornes Case 3 For Robbery committed in the morning ante lucem No pursuit the night the Hundred shall not be charged And albeit no time be specified in the Statute of Winchester 13 E. 1. yet it shall not extend to Robbery done in the night because no laches or negligence can be adjudged in the Hundred for default of a good guard in the night Neither can they in the night make pursuit or inquire after them for as the Scripture saith The day is made for man to labour in and the night to rest Note that the Statute of 27 El. 13. hath altered this Law
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico 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 three 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 for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
the Pestilence by reason of the multitude of people and pestering the air whereby it might prove dangerous not only to the Subject but likewise to the King himself and the Great Lords who attend upon his royal person Again if London should be too populous it would become ungovernable by the Magistracy of the City and if that City which is tanquam Epitome totius regni should not be well governed all the parts of the Realm would find the inconvenience thereof whereas when that City shall be well governed all parts of the Commonwealth will be preserved in better order Lastly that City becoming too populous it will not be subject to search c. not only in prejudice of the City it self but likewise of the King and the whole Commonwealth because then fraud and deceit will encrease in all Merchandise and things vendible Plea Accord 27 Accord with satisfaction is a good plea in an Ejectione firmae Co. l. 9. 78 a. 3. Henry Petoes case for that is mixt with trespass and indeed in all actions which suppose a tort to be done where Capias and Exigent do lie there an Accord is a good plea because it redeems the body from imprisonment so as men being at liberty may go about their business which is good for the Commonwealth Co. l. 10. 108. b. 3. Lofiâ—lds case 28 If there be Lord and Tenant by Knight service Tenure and the tenant gives the tenancy to two men and to the heirs of their bodies and they die having issue their issue shall hold severally by Knight service because it is for the defence of the Lord and of the Realm Vide supra 14. Co. l. 11 54. a. The Tailers of Ipswich case 29 An Ordinance of a Corporation Corporation Ordinance that none shall exercise any trade there unless he hath served 7. years as an apprentice in the same and shall also be approved by them to be skilfull therein is not good because against the Common Law which restrained no man from exercising any trade and also prejudicial to the Commonwealth for that it puts a greater restraint upon Tradesmen than the Statute of 5 Eliz. doth ordain in as much as he ought also to be approved by them which the Statute doth not enjoyn for if he be ignorant of his trade an action upon the case lyeth for his misdoing as it did also at the Common Law before the Statute neither doth the Stat. restrain a Taylor or other Artificer retained to exercise his trade in a private house And the Statute of the 19 H. 7. strengthens not any Ordinance against the Law or the Commonwealth though allowed as that Statute ordains the allowance only discharges the penalty of 40 l. for making Ordinances against the Kings prerogative and the Commonwealth Co l. 11. 72. a. b. Magd. Coll. case 30 The King is bound by the Statute De donis though not named Statutes binding the King because it is an Act which concerns the Commonwealth and was ordained for the preservation of the possessions of the Nobility Gentry and others so the Statute of 13 Eliz. 10. made for the prevention of long leases and dilapidations of Colleges Cathedrals Hospitals c. doth bind the King albeit not named because those Corporations were trusted with their possessions pro bono publico for the use of the Commonwealth for the same reason that Act hath in all cases had a benefical and favourable construction to the prevention of all inventions and evasions Co. ibid. 76. a. 2. against the true Intention of the same Act. Co. l. 11. 86 a. 3. b. in the case of Monopolies 31 One of the Chiefest reasons Monopolies why the Monopoly of the sole making and importing of Cards and all other Monopolies are prohibited by Law is for that there are three inseparable incidents to every Monopoly against the Commonwealth 1 The price of the Commodity will be raised for he who hath the sole vendition of any commodity may and will make the price as he pleaseth And this word Monopolium is compounded of these Gréek words μόνοϲ and πωλεομαί id est cum unus solus aliquod genus mercaturae universum emit pretium ad suum libitum statuens And the Poet saith Omnia Castor emit sic fit ut omnia vendat Also it appears by the writ of ad quod damnum F. N. B. 222 that every gift or grant of the King hath this condition either expresly or tacitly annexed unto it Ita quod Patria per donationem iliam magis solito non oneretur seu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Vide 13 H. 4. 14. The second Incident to a Monopoly is that after the Monopoly granted the Commodity is not made so good and merchantable as it was before for the Patentée having the sole trade regards his private benefit only and not the Commonwealth 3. This tends to the impoverishment of divers artificers and others who before by the labour of their hands in their art or trade did sustain themselves and their families in good condition and having also by that means increased their substance were fit and ready to serve the King when néed should require but by the grant of such a Monopoly they are reduced to such necessity that ever after they are constrained to live in idleness and beggary c. Munition Treasure of the King 32 Munition though unserviceable cannot be claimed as fees belonging to the Master of the Ordnance Co. l. 11. 91. b. 4. The Earl of Devons case because they were provided for the defence and safeguard of the King and Commonwealth and therefore albeit the King grant them to him and then he dies yet his executors shall not have them but shall be accountable to the King for them And for the same reason it is that no officer of the King or all of them together can ex officio issue or dispose of the Kings treasure although it be for the honor and profit of the King himself for although it be true that it is for the honor and benefit of the King that good service done unto him should be rewarded yet it ought to be rewarded by the King himself or by his warrant no by other because the treasure of the King being the ligament of Peace the preserver of the Honor and Safety of the Realm and the sinews of Warr all which do much concern the Commonwealth is of so high an estimation in Law in respect of the necessity thereof that the imbezilling of treasure trove although it were not in the Kings Chests was Treason And treasure and other valuable chattels are so necessary and incident to the Crown for the reasons aforesaid that in the Kings case they shall go with the Crown to the successor and not to the executors as in case of a common person as appears in 7
uses that the honor of the Law be not prejudiced nor any way blemished And therfore in Porters case in the 1. Rep. one of the reasons why good charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was because it would be dishonourable to the Law of the Land to make such good uses void and to restrain well-minded people to give lands to good and charitable uses And if that or any other Statute should be made directly against the Law of God Doct. Stud. lib. 1. cap. 6. as if it should be ordanied that none should give Alms to any in what necessity soever they were or the like the Iudges in point of Honor to the Law ought to adjudge such a Statute void Libel 6 In a setled state of Government if an injury be offered Co. l. 4. 125. b. 1. In the câ—ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling or otherwise but ought to make complaint thereof to the Magistrate in an ordinary Course of Law Kings grant 7 It hath been alwayes the gravity of the antient Sages of the Law to construe the Kings grants beneficially for his Honor Co. l 6 6. a. Sir John Molins case Co. l. 9. 131. a. in Bewleys case and the relief of the Subject and not to make any strict or literal construction in subversion thereof And therefore E. 3. being Lord an Abbot Mesne and the Tenant attainted of Treason the King grants to I. M. to be held of us and other chief Lords of the fee by the services c. In this case the Mesnalty was adjudged to be revived for that the words were sufficient to create a tenure in the Mesne as it was before the Treason because that seemed to be the Kings intention and was also consonant to equity viz. that the Mesne who offended not should not lose his services And therefore in such case the grant shall be taken beneficially for the Honor of the King and for the relief of the Mesne neither yet can the words Tenendum c. have any other reasonable construction Arrest of Peers 8 The person of one who is in Law a Countess by mariage Co. l. 6. 52. b 3. The Countess of Rutl. case or by descent is not to be arrested for debt or treâ—pass for albeit in respect of her sex she cannot sit in Parliament yet is she a Péer of the realm and shall be tried by her Péers as appears by the Statute of 20 H. 6. 9. which was but a declaration of the Common Law And there are two reasons why her person shall not be arrested in such cases the one in respect of her dignity and the other in respect that the Law presumes that she hath sufficient lands and tenements in which she may be distrained There is the same reason for a Lord that is a Péer of Parliament Oath of Allegeance 9 To preserve the Kings Honor and Safety Co. l. 7. 6. b. 3 in Calvins case and good order in the Government of the Commonwealth the Oath of Allegiance was invented and enjoyned as it is said in Lamb. 135 136. by King Arthur to be taken in Folkmotes now called Turns and Leets Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno c. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit Homage fealty 10 Homage and Fealty Co. l. 10. 108. b. 2. in Humfry Lofields case were at first ordained for the preservation of order in the Common wealth and being servicces of fidelity do require multiplication And therefore if a man seised of two acres the one at the Common Law and the other in Borough English and make a gift in tail of both and the donée having issue two sons dies both the sons shall make fealty There is the same Law also of Homage whether it be reserved by the party or created by the Law so likewise if the donor die having two sons both the s os shall have homage and fealty King 11 In a writ de Cautione admittenda these words F.N.B. 66. a. De gratia nostra speciali are not words of necessity but of form only for the Honor of the King for he ought of right to make restitution of the goods of the Clerk before seised by the Sheriff Fines in Courts 12 For the better preserving of order in the Commonwealth Co. l. 8 38 b. 3. in Grieslyes case if any contempt or disturbance be committed in any Court of record the Law giveth the Iudge or Iudges thereof power to impose upon the offenders a reasonable fine And this holds not only for the Superiour Courts at Westm but likewise for all inferiour Courts which are of Record And therefore in a Léet being a Court of Record and the Steward Iudge there if any contempt or disturbance to the Court be committed before the Steward there he may impose a reasonable fine upon the offendors as if the Bailiff there refuse to execute his office the Steward may assess upon him a reasonable fine and with this agrées 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet the Steward may impose a reasonable fine upon him as it was held 10 H. 6. fo 7. Also if one of the Iury in a Léet depart without giving up his verdict he shall be fined by the Steward as appears in the book of Entries fol. 149. Et sic de similibus Dyer 107. b. 27. 13 When a Peer of the Realm is party to a sute Challenge there ought to be one Knight at least impannelled of the Iury otherwise it is a good Challenge for the Peer 200 Publique quiet Co. Inst pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled Fortresses c. or other fortress defensible without the Kings license for the danger which might ensue in disturbance of the peace and quiet of the Realm if every one at his pleasure might do the like Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure Escuage yet because the assesment concerned so many and so great a number of the Subjects of the Realm lest it might disturb the publique quiet thereof it could not be assessed by the King or any other but by the Parliament only Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea amongst other things saith thus None shall go beyond sea Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre conge car issint poet le realm remainer disgarny de fort gente because if many others should do the like and by that means the Realm be left unfurnished of able and powerfull
that two persons c. shall be one officer and therefore these words Conjunctim et divisim et alterius eorum diutius viventis serve only to this purpose that 〈◊〉 survivor shall be one of the persons unto whom the other shall be 〈◊〉 A fraudulent grant 8 The Master and Fellows of Magdalen College in Oxford having an intent to grant a Messuage in London to Benedict Spinola and his heirs because they were prohibited by the Statute of 13 Eliz. 10. Co. l. 11. 73 b. 1. in Magdalen College case to grant it immediately to him made a grant thereof first to the Quéen and her successors upon condition contained in the same grant that the Queen within 3. moneths should grant the said Messuage to Spinola and his heirs whereby it was endeavoured that the Queen who was the fountain of Iustice should be an Instrument of Injury and tort and of the violation of a pious and excellent Law which she her self for the maintenance of Religion the advancement of Liberal Arts and Sciences the sustenance of poor people and other publique uses had made And whereas the said Master and Fellows were seised of the said Messuage to them and their successors for ever in jure Collegii pro bono publico and to pious and charitable uses thereby it should be converted to the privat use of Spinola and his heirs for ever And so as the Statute of Carlile hath it in 35 E. 1. Quod olim in usus pios ad divini cultus augmentum caetera opera pietatis charitative fuit erogatum nunc in sensum reprobum est conversum which also the Poet well reprehends fuit haec sapientia quondam Publica privatis secernere sacra profanis Co. l. 11. 87. a. 2. in the case of Monopolieâ— 9 The Monopoly of the sole making and importing playing Cards was damned Monopolies because albeit it was pretended by the preamble of the Patent to be for the good of the Commonwealth which was indéed the Quéens intent when she granted it yet it was apparent to be very prejudicial thereunto and meerly intended to be imployed for the privat benefit of the Patentée the Queen being thereby deceived in her grant and the Commonwealth more abused than before Dyer 60. a. 21. 36 H. 8. 10 A Member of Parliament is free from arrests of his person A Member of Parliament because the King and all his Realm having an interest in his person for the dispatch of the publique affairs of the Commonwealth it is reason that the privat commodity of any particular man should not in such case be regarded and the rather for that such arrest is no discharge of an excution but that after the Parliament he may be taken again thereupon 202 Minime mutanda sunt quae certam habuerunt interpretationem Vide Max. 201. per tout Co. Inst pars 1. 364. b. 4. Co. ibâ—d 186. a. 1. 1 Littleton at the beginning of the Chapter of Warranty Communis opinio intending to distinguish warranty into the three several kinds thereof Lineal Collateral and that which begins by disseisin the better to confirm that distribution saith that it is Commonly said there are 3. such kinds of warranty whereby it may be observed that Communis opinio is of Authority and stands with the Rule of Law A Communi observantia non est recedendum Vide Max. 204. 1. Co. ibid. 383. b. Littl. §. 733. 2 The word warrantizabimus doth only create a warranty Warrantizabimus for so hath that word of Art been alwayes interpreted Neither ought there to be any other word though it may signifie the same thing in substance used for warranty And therefore neither Acquietabimus or Defendemus or any other word of the like signification will do it The reason why the Law hath rather fixed upon that word though barbarous than any other seems to be 〈◊〉 â—void uncertainty and critical cavils and disputes about the significaâ—â—on of words And as Ego haeredes mei warrantizabimus c. creates a warranty in Latin so I and my heirs shall warrant in English creates a warranty also Co. l. 6. 43. â— 4. in Sir Anth. Mildmayes case 3 It was the intent of the Statute of 27 H. 8. 10. Uses as appears by the preamble to restore the antient Common Law and to extirpate and extinguish all subtil inventions imaginations and practises of Vses which had introduced many mischiefs and inconveniences mentioned in the same preamble And this was very good and necessary for the Commonwealth for the Common Law hath Rules to direct the estates and inheritances of lands which are certain and infallible And therefore it is without comparison better and much more safe to have estates and inheritances directed by those certain Rules of the Common Law which hath been an antient true and faithfull servant to this Commonwealth than by the uncertain imagination and conjecture of any of these new inventors of Vses without any approved ground of Law or Reason Primet seisin 4 Tenant in Chief having issue a son Co. l 6. 77. a. 3. in Sir Geo. Carsons case covenants to stand seised to the use of his niece the son dies In this case the King shall not have primer seisin And two of the chiefest reasons which induced that resolution was because the experience of the Court of Wards had been alwayes so and for that a great number of the subjects which were in peace would be vexed and molested if the Common received opinion should be changed The old Laws best 5 Interroga Pristinam generationem Co. l. 7. pars 1. 3. b. 3. in Calvins case investiga patrum memoriam Iob 8.8 Hesterni enim sumus vita nostra sicut umbra supra terram We are but of yesterday and therefore had need of the wisdom of those that were before us and had been ignorant if we had not received light and knowledge from our fore-fathers Our dayes also upon earth are but as a shadow in respect of the old and antient dayes past wherein the Laws have been by the wisdom of the most excellent men in many successions of ages by long and continual experience the trial of right and truth fined and refined which no one man being of so short a time albeit he should have in his head the wisdom of all the men in the world in any one age could ever have effected or attained unto And therefore it is optima regula qua nulla est verior et firmior in Jure Neminem oportet esse sapientiorem legibus No man ought to take upon him to be wiser than the Laws which have been received and approved by men of the greatest wisdom in all former ages Acts of Parlament 6 Albeit an Act of Parliament be thus expressed Co l. 8. 20. b. 3. in the Princes case Dominus Rex statuit c. as there are many