value as it was in her husbands time So it is likewise if the heire improve the value by building the like Law is if the value be impaired in the time of the heire for then also she shall be endowed according to the value at the time of the assignement and not according to the value as it was in her husbands time And the reason of all this is because she claims paramount the improvement or impairing of it and hath Title to she quantity of the land viz. one just third part Co. Inst pars 1 46. a. 3. 3 If Tenant in taile make a Lease for yeares reserving xx s. rent Lease by tenant in tail good in dower and after take a wife and die without issue here as to him in the reversion the Lease is méerly void because he claimes paramount the Lease but if he endow the wife of Tenant in tail of the land as she may be though the estate taile be determined now is the Lease as to the Tenant in Dower who is in of the estate of her husband revived againe as against her for as to her the estate taile continueth and the Lease is paramount her Title Co. Inst pars 1. 113. a. 3. Littl. § 169. 4 If a man by the Custome devise that his executors shall sell his lands c. and dieth the lands in this case descend to his heire Feoffee in by devise and the executors have no estate in them but onely a bare and naked power neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée because the Feoffée by construction of Law shall be said to be in by the Divisor and not by the executors So it is likewise if a man by the custome devise a reversion or any other thing that lyeth in grant to be sold by his executors they may sell the same without Déed causa qua suprà Co. Inst pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his bodie The Lords title Paramount an entail to a villain and so is the Kings to that of an Alien the Lord may enter and put out the villein and the heirs of his body for Quicquid acquiritur servo acquiritur domino And in this case the Lord gains a Fée simple determinable upon the dying of the Villain without issue of his bodie and the absolute Fée simple remaineth still in the Donor And if the Lord enter and after enfranchise the Donée and after the Donée hath issue yet that issue shall never have remedie either by Formedon or Entry to recover this land by force of the Statute de donis c. For the Lord is in paramount the entaile and that Statute giveth onely remedie to the issues of the Donée that hath capacity and power to take and retaine the gift And the Title of the Lord remaines as it did at the Common Law for the Statute restraineth acts done onely by the Tenant in taile So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth the King shall detaine the land against the issue because the Kings Title is Paramount the entail viz. by his prerogative Vide infrà 32. Co. Inst pars 1 148. b. 3. 6 If a man grant a rent charge out of two acres A Title Paramount to rent and after the Grantée recovereth one of the acres against the Grantor by a Title paramount the whole rent shall issue out of the other acre Doct. Stud. l. 2. cap 17. Co. Inst pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fée upon Condition Title Paramount a grant and B. being seised of another acre in fée granteth a rent out of both the acres to the Feoffor who entreth into the one acre for the Condition broken the whole rent shall issue out of the other acre because his Title is paramount the grant Co. Inst pars 1. 184. b. Littl. § 286. 8 If two Ioyn-tenants be seised of an estate in Fée simple Jus accreseâ—dendi praefertur oneribus and the one grants a rent charge to another out of his part here the rent is good during his life but after his decease the Survivor shall avoid it because he commeth in by the first Feoffor and not under his companion So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth Co. Inst pars 1 185. a. 1. the wife shall avoid the charge And for the same reason it is that if a Ioyn-tenant charge the land with common of Pasture Turbary Estovers or with a Corodie or with a way over the land or the like this shall not bind the Survivour For jus accrescendâ— prefertur oneribus and Alienatio rei praefertur juri accrescendi Vide M. 15. Pl. 14. Co. Inst pars 1 185. a. 2. 9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile by Déed indented and dieth the Survivour shall not be bound by the conclusion because he claimes above it and not under it Baron chargeth the Femes â—and 10 If there be two Ioyn-tenants in fée Co. Inst pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares reserving a rent and dieth the surviving Feoffée shall have the reversion but not the rent because he claimeth in by the first Feoffor which is paramount the rent So it is also of the wife where the husband being Lessée for yeares in her right maketh a Lease of part of the terme reserving a rent Inst part 1. 318. a. 3. Simile 11 If a husband wife Co. Inst pars 1 187. b. 4. and a third person purchase lands to them and their heires and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right and if the wife had died the other Ioyn-tenant should have had the whole right by Survivour for that they might have joyned in a writ of right and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance but by Title paramount above the same by the first feofment A condition â—aramount a descent 12 If a man be seised of lands in Fée or Fee taile upon Condition to render certaine rent or any other Condition Co. Inst pars 1 240. a. b. Littl. § 391 392. albeit such a Tenant die seised yet if the Condition be broken in his life time or after his decease that descent shall not take away the entry of the Feoffor or Donor or of
King hath an Interest in the Land or shall lose Rent c. or services then the Court ought to cease until they shall receive a procedendo in loquela from the King c. F. N. B. 154. d. e. 85 If the King by his writ certifie the Iustices Justices to surcease upon the Kings Certificat that the Lands are in his custodie by reason of the nonage of some heire taken by Inquisition and returned into the Chancery commanding them that they shall not procéed Rege Inconsulto In that Case it séemes that the Iustices ought to cease for the present albeit there be no such Office found nor returned for they are bound to give credit to the Kings certificate albeit that it be not true c. And in Assise de Novel disseisin if the King send his writ to the Iustices that the Defendant holds the Land put in view of the Kings gift for term of life by the Kings Charter commanding them not to procéed Rege Inconsulto here although the Tenant will not plead this yet it séemes that the Iustices ought to cease by that writ So if the King rehearse in the writ that the Tenant is in his service in warre beyond Sea or in Scotland and that he holds by Charter of the Kings grant for term of life commanding that they shall not procéed Rege Inconsulto but to continue the Assise untill a certain day there also it séems they shall surcease Because the Tenant cannot plead it for if the Escheator will say that he seised the Land into the Kings hand in an Assise brought by any person the Court shall surcease for that saying and by force of the Kings Certificate c. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriffs turne or at Leets unlesse it be for some great cause Men of Religion And if they be distrained to come unto them they may have a writ De exoneratione sectae c. out of the Chancery to discharge themselves of such service c. F. N. B. 159. c. 87 If Land descend to Coperceners Suit of Copeceners for which onely one suit ought to be done In this Case if the Land be holden of the King then all the Coperceners ought to make a suit as well after the partition as before But if the Land be holden of another Lord then the eldest Sister or her Feoffée shall onely make the suit c. And if the Lord do distraine the other Coperceners for that suit they shall have a writ De exoneratione sectae c. to discharge themselves of it c. Pl. Co. 76. b. in The Lord Willoughbies Case 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood in the Kings Case Coronatoribus de Com. L. for the Kings writs in such Cases The Kings Writ will admit a favourable construction for the fulfilling of the Kings full intent c. Finch 81. 89 For the Kings prerogate see Finch 81. c. and elswhere throughout his whole Book under the several heads when there is any difference betwéen this Case an that of a subject Finch 83. 90 The King never dieth Demise Le Roy. but in Law it is said the demise of the King and a gift unto the King without more trencheth to his Successors 91 The particular prerogatives due to the King by the Common Law may be for that most part referred to one of the eight heads hereafter following notified in the outward margent by their several and respective letters as followeth 1 Divine perfection A 2 Infinitenesse B 3 Majesty C 4 Soveraignity power D 5 Perpetuity F 6 Justice G 7 Truth H 8 Omniscience I Ideot 92 Because every subject is by Law in the protection of the King Co. l. 4. 126. a. 2. in Beverleys Case who therefore is of right bound to defend his subjects persons and Estates and for as much as an Ideot is not able to governe himselfe or order his Estate The Law of England hath provided the King to be his Tutor to Govern and order both his person and Estate For the Statute of Praerogativa Regis made in the 17 of E. 2. cap. 9. was nothing else but a declaration of the Common Law c. Rent reserved 93 It is a Maxime in Law that the Rent must be reserved to him Co. Inst p. 1. 143. b. 4. from home the State of the Land moveth and not to a stranger but some do hold that it is otherwise in the Kings Case Upon a joint purchase tenement in common 94 If Lands be given to A. de B. Bishop of N. and to a secular man Co. ibid. 190. a. 4. to have and to hold to them two and to their heires In this Case they are joyntenants For each of them take the Lands in their natural capacity But if Lands be given to the King and to a subject to have and to hold to them and to their heires yet they are Tenants in Common and not Ioyntenants For the King is not seised in his natural capacity but in his Royal and Politique capacity in Jure Coronae which in respect of the Majesty of his Kings Person cannot stand in jointure with the seisin of a subject in his natural capacity And therefore if there be two joytenants and the Crowne descend to one of them the joynture is thereby severed and they are become Tenant in Common c. Grant in Mortâ—aine 95 It appeareth by Littleton § 140. Co. ibid. 99. a. 3 which my Lord Coke saith is a secret in Law that in the Kings licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmaine for the King shall not be intended to be mis-conusant of the Law and when he licenseth expressely to alien to an Abbot c. which is in Mortmaine he needs not make any non obstante of the Statutes of Mortmaine for it is apparent to be granted in Mortmaine and the King is the head of the Law and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui for the maintenance of his grant to be good according to the Law Descent of â—etrage to Feâ—ales 96 When an Earldome or Baronie descends to one Daughter or other heire Female she shall solely enjoy both the Dignity and Lands Co. ibid. 165. a. 3. but where it descends to more heirs Females then one the Lands shall be divided as amongst other Coperceners Howbeit in that Case the dignity cannot be divided neither shall the Eldest have it as to be a Countesse Baronesse c. But in such case the King who is the Soveraigne of Honor and Dignity may for the uncertainty conferre it upon which of the Daughters he please this is to be intended when the Ancestor dies seised of Peerage in Fée-simple
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
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.
action whereunto A. pleads that C. was in by the fine and not by the déed inrolled and that he never attorned upon which plea C. demurrs In this case although it was objected that it shall be intended by Law that the deed was enrolled the first day of that Easter Term because the Term as to divers purposes is but one day in Law and the rather for that it doth not appear by the record what day of the Term the deed was inrolled but generally Term Pasch and therefore it shall be intended to be enrolled the first day of the Term and then C. being in by the deed and not by the fine there needed no attornment yet in this case it was resolved by the Court that it was true that it shall be intended by presumption of Law that the deed was enrolled the first day of the Term but Stabit praesumptio donec probetur in contrarium and for as much as the plaintif by his demurrer hath confessed the enrollment to be after the fine the presumption thereby vanisheth and becomes of no force and the mutual consent and confession of both parties shall stand Co. l. 5. part 1. 5. a. 2. 7. b. 1. The Kings Ecclesiastical Law 6 In the cause against Cawdry being deprived by the High Commission Court for preaching against the Common Prayer-book Hâ—gh Commissioâ— it was objected that the Commissioners were not nominated and appointed according to the Act of 1 Eliz. 1. because the Iurisdiction and power given by that Act to the Crown was to name such Commissioners as were natural born Subjects and not Aliens and that it did not appear by the special verdict that the said Commissioners were natural born Subjects And therefore the Quéen having only a power given by force of that Act the nomination not pursuing the authority given unto her was utterly void c. But to this it was answered and resolved that they who were Commissioners and had places of judicature over the Kings subjects shall be intended to be subjects born and not Aliens but if in truth they were Aliens yet in respect of the general intendment to the contrary it ought to be alleged and proved by the other party for Stabitur praesumptioni donec probetur in contrarium Wardship 7 By intendment of Law the heir being under the age of 21 years is not able to do Knight service until his full age of 21 years Co. l. 6. 73. b. 4. in Sir Drue Druries case and herewith agrées Littl. fol. 22. yet this presumption of Law gives place to a judgement and proof to the contrary according to the Maxime Stabitur praesumptioni donec probetur in contrarium And therefore when the King who is the Soveraign and supreme Iudge of Chivalrie dubbs an Infant Knight he thereby adjudgeth him able to do Knight service all persons are concluded to say the contrary and therefore such an heir so made Knight shall be out of Ward and custody Howbeit he shall pay the value of his mariage c. Vide Ma. ca. cap. 3. Arbitrement 8 The submission to an award betwixt A. and B. was general Co. l. 8. 98. a. 2. Baspoles case viz. of all actions demands c. And the award was that A. should pay B. twenty pounds And in this case it was objected that it did not appear that the matter of the Arbitrement was the matter only that was betwixt them because the submission was general of all actions demands c. and therefore if the arbitrement were not made of all the matters in controversie the award was void To which it was answered and resolved that it appeared by the award that it was made de praemissis praedictis in conditione specificatis which words import that the Arbitrator had made it of all that which was referred to him and so it was to be intended until the contrary were shewed and alleged by the other party Uâ—es 9 Indentures subsequent are sufficient to declare the uses of a Recovery precedent Co. l. 9. 11. 3. Dowmans case if nothing appear to the contrary to declare the consent of the parties to be otherwise Quo warranto 10 In a Quo warranto for the claim of chattels of felons c. the defendant pleads that the Abbot of S. lawfully had and enjoyed them Co. l. 9. 27. The case of the Abbot de Strata Mercella till the Abbey was granted to the King by the Statute of 27 H. 8. c. and pleads also the Statute of 32 H. 8. which revives the privileges of Abbies and that the King granted a Manor parcel of the Abbey and tot talia et tanta privilegia c. unto him And in this case it was objected that it did not appear by the claim of the defendant what estate the Abbot had in the said Franchises but generally quod licite habuit gavisus fuit and so peradventure he might have them but by a lease for life or years c. To which it was answered and resolved that a general having and enjoying of them shall be intended of a having and enjoying in fee simple and that in such case a particular estate or interest shall not be presumed unless it be specially shewed c. so the word Fee shall be intended fee simple and not fee tail unles it be so expressed Vide supra Max. 189. pl. 8. 11 If the principal in felony be attainted erroniously either by error in process No accessory where no principal or because the Principal being out of the Realm Co. l. 9. 119. a. 4. in the L. Sanchars case c. was outlawed or for that he was in prison at the time of the outlawry c. yet the accessory shall be attainted for the attainder against the principal stands in force until it be reversed and with this agrées 2 R. 3. f. 12. And in the 18 E. 4. 9 The principal was erroniously out-lawed for felony and the Accessory taken indicted arraigned convicted attainted and hanged and afterwards the principal reversed the outlawry and was indicted and arraigned of the felony and found not guilty and thereupon was acquit And here it might be demanded that for as much as there cannot be an accessory without a principal and in this case there being no principal how shall the heir be restored to the lands which his father had forfeited by the said unjust attainder To this it may be answered That the heir may enter or have his action for now upon the matter by act in Law the attainder against the father is without any writ of Error utterly annulled because by the reversal of the attainder against the principal the attainder against the accessory which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this notably appears in an antient book in the time of E. 1. Tit. Mordancester 46. The case was this A. was
for the advancement and continuance of Commerce and trade which is pro bono publico for the Rule is that Jus accrescendi inter mercatores pro beneficio commercii locum non habet Trade 5 One of the chiefest reasons why a Condition not to alien Co. ibid. 223. a. 2. annexed to a feoffment devise or gift of lands or goods is void is for that it is flatly against trade and traffique bargaining and contracting betwéen man and man Vide infra 9. Monopolies 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void because it restrained trade and traffique Co. l. 8. 125. a. 3. the case of London which are the very life of every Commonwealth and principally of an Island There is the same reason of all other Monopolies Vide Co. l. 11. 87. Guilda 7 In favour of trade and traffique Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam viz. a Fraternity Society or Incorporation of Merchants to the end that good order and government may be by them observed for the increase and advancement of Merchandising and trade and not for the hindrance and diminution thereof Trade Idleness 8 At the Common Law none could be prohibited to work in any lawfull trade Co. l. 11. 53. b. 4. The Taylors of Ipswich for the Law abhorrs Idleness the Mother of all mischief Otium omnium vitiorum mater and principally in young people who ought in their youth which is their séed-time to learn lawfull sciences and trades which are for the advancement of traffique and profitable to the Commonwealth and thereof they ought to reap the fruit in their old age For Jeunesse Oisense Vieillesse disettense And therefore the Law detests Monopolies which prohibit the exercise of lawful trades And this appears in 2 H. 5. b. where a Dyer was bound that he should not use the Dyers trade by the space of two years and there Hall held that the obligation was against the Common Law and added farther Per dien si le plaintife fuit icy il iroit al prison tanque il feroit fine al Roy. Tail 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion that tenant in tail by a fine might have barred his heir Dyer 32. 28. 29 H. 8. albeit the reversion were in the King because the Law always disfavours restraint of alienation in prejudice of trade and traffique Vide supra 5. 199 Honor and Order Tenant by Curtesie 1 A man shall be tenant by the Curtesie of an house Co. Inst pars 1. 30. b. 2. that is Caput Baroniae or Comitatus because so it may be still preserved intire but it appeareth by 4 H. 3. that a woman shall not be endowed thereof because in such case it should be severed which the Law will not permit for that the Law respecteth Honor and Order Vide Title Dower 180. Villein 2 Amongst the cases where the Villein shall be privileged from the seisure of the Lord albeit he be not absolutely enfranchised Co. ibid. 137. b. 3. this is one viz. Ratione dignitatis as if the Villein be made a Knight the Lord cannot seise him Vide Britton 79. Challenge 3 A Péer of the Realm Co. ibid. 156. b. 3. or Lord of Parliament as a Baron Viscount Earl Marquess or Duke in respect of Honor and Nobility are not to be sworn on Iuries and if neither party will challenge him he may challenge himself for by Magna Carta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae Now in reference to Honor and Order the Common Law hath divided all the Subjects into Lords of Parliament and into the Commons of the Realm The Peers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes And the Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tried for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tried per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a trial either at the Kings sute or between party and party in such case a Peer of the Realm shall not be impannelled Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honor and Dignity there is an antient Book-case in 23 H. 3. Tit. Partition 18. in these words Note Noble women Coparceners if the Earldom of Chester descend to Coparceners it shall be divided between them as well as other lands and the eldest shall not have this Seigniory and Earldom intire to her self Quod Nota adjudged per totam Curiam By this it appeareth that the Earldom viz. the possessions of the Earldom shall be divided and that where there be more daughters than one the eldest shall not have the dignity and power of the Earl that is to be a Countess but in such case the King who is the Soveraign of Honor and Dignity may for the uncertainty conferr the Dignity upon which of the daughters he please And this hath been the usage since the Conquest as is said Vide 3 H. 3. tit Prescription Howbeit if an Earl that hath his dignity to him and his heirs dieth having issue one daughter the dignity shall descend to the daughter and her posterity for there is no incertainty And this appeareth by many presidents and by a late Iudgement given in Sampson Leonards case who maried with Margaret the only sister and heir of Gregory Fines Lord Dacre of the South and in the case of William Lord Ros. Howbeit there is a difference between a dignity or name of Nobility and an office of Honor for if a man hold a Manor of the King to be Constable of England and die having issue two daughters and the eldest daughter taketh husband he shall execute the office solely and before Mariage it shall be exercised by some sufficient Deputy and all this was resolved by all the Iudges of England in the Duke of Buckinghams case 11 Eliz. Dyer 285. But the Dignity of the Crown of England was without all question descendible to the Eldest daughter alone and to her posterity and so it hath béen 25 H. 8. cap. 22. declared by Act of Parliament for Regnum non est divisibile and so likewise was the descent of Troy as appears by Virg. Aeneid 1. Praeterea Sceptrum Ilione quod gesserat olim Maxima natarum Priami Co. l. 1. 24. b. 4. in Porters case 5 Iudges in their resolutions ought to have a special care Goâ—d
goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose
be a default or defect than that the Law should be changed 13 Albeit the King hath a prerogative above others F. N. B. 7. b. Finch 84. that he may sue in what Court he pleaseth as to bring a Quare Impedit or a writ of Escheat of Lands in London retornable in the Kings Bench yet he cannot change the nature of the writ otherwise than the Law gives power to him and others or hath been formerly used Assise of Fresh force in London 14 In an Assise of Fresh force in London before the Maior and Aldermen against Foxley and Agnes his wife and 11 others Pl. Co. 90. b. 4. 10 of them appear by Bailiff and plead No such woman as Agnes the wife of Foxley in rerum natura and demand judgement of the Plaint and that it should be inquired by the Assise c. and the others plead the same plea by Attorney And it was adjudged that the Plaint should not abate but should stand good against all the rest save only Agnes And this resolution was given upon the advice of Iustice Hales to Southcote then Iudge of the Hustings where the sute was brought because as Hales said all the books went that way and not one the other way And therefore he advised Southcote to follow the judgements formerly given Trial of accessory 15 An accessory shall not be arraigned as accessory before all the principals be attainted Pl. Co. 99. b. because it had béen alwaies the usual course in such cases so to procéed and therefore it seemed the best way to the Court to pursue the same order that the Sages had formerly used and the rather for that he may not be accessory to one and yet may be found accessory to another Common Recâ—very 16 In the case of a Common Recovery Co. l. 2. 74. a. 3. in the L. Cromwells case he that enters into the warranty may if he please save his rent issuing out of the land yet if he enter into the warranty generally it may be saved by covenant and agréement in the Indenture made before the recovery as may be agreed betwixt them and this in favour of Common Recoveries which are the Common assurance of land the usual form whereof shall not be altered by any special matter of Entry saving his rent or condition but they ought to be saved by the Indenture dehors For Conveiances which are used for Common assurances of land shall be expounded and construed according to common allowance without prying into them with Eagles eyes And therefore Pasch 35 Eliz. in Dormers case it was adjudged in the Kings bench that a Common Recovery may be had of an advowson So was it also adjudged in the Exchequer in Sir Will. Pelhams case that if a Common Recovery be suffered by tenant for life it is a forfeiture of his estate and the reason of both these Iudgements was because that a Common Recâ—very is by usage a Common conveyance as a fine feoffment c. And it is said in Trevilians case 514. that in Common Recoveries the common usage and the intent of the parties are to be respected for a Common Recovery had against Baron and Feme shall barr the feme of her dower and yet the feme shall not have any recompence in value and therefore in strictness of reason it is strongly to be maintained that Common usage and the intent of the parties make this barr according to these rules Non recedendum est a Communi observantia Minime mutanda sunt quae certam habuerunt interpretâ—â—onem And these Rules hold not only in a Common Recovery but much strongger in a fine which is also a Common assurance of land for in case of a Recovery the Vouchée may enter into the warranty saving his action rent condition c. and yet because Common usage hath allowed it herâ—tofore they may be better saved by covenant and agréement as aforesaid Howbeit in a fine no saving can be contained therein and therefore by necessity and according to common usage alwayes allowed they ought to be saved by the direction and Rule of a precedent covenant and grant Vpon which ground it was adjudged in 6 E. 2 tit Estoppel 2. that if a man and his wife enfeoff two by déed to have and to hold to them and their heirs and after the feoffor and his wife levy a fine sur conusance de droit to them and the heirs of one of them yet this is no conclusion but that both of them may have the fée-simple as they had it before 203 A Communi Observantia non est recedendum Littl §. 371. Co. Inst pars 1. 229 b 4. Vide Max. 203. 1. 1 The making of an Indenture in the third person is the most sure way because it is most commonly used whereby it appeareth Indentures in the third person that the form which is most commonly used in conveyances is the safest Magister Rerum usus It is provided by the Statute of 38 E. 3. 4. that all Penal bonds in the third person be void and holden for none wherein some Books viz. 40 E. 3. 1. 2 H. 4. 10. 8 E. 4. 5. seem to differ but they being rightly understood there is no difference at all for the Statute is to be intended of Bonds taken in other Courts out of the Realm and so it appeareth by the preamble of that Act being indéed principally intended of the Courts at Rome and so it appeareth by Iustice Hankford in 2 H. 4. In which Courts bonds were taken in the third person so as such bonds made out of the Realm are void but other bonds in the third person are resolved to be good as well as Indentures in the third person by the opinion of the whole Court in 8 E. 4. Co. ibid. 303. a. 3. 2 The antient forms of Courts are to be duly observed Pleading as Cum dimisit or Cum dedit and not to say that he was seised and demised c. and yet if he say so it maketh not the Count vitious But in a barr replication or other kind of pleading the party must allege a seisin in the Lessor or Donor and antient forms of pleading are also to be observed Co. l. 1. 24 b. 3. in Porters case 3 The Statute of 23 H. 8. 10. ordains that if any grant of land Charitable uses c. shall be made in trust to the use of any Churches Chapels Church-wardens Guilds Fraternities Commonalties Companies or Brotherhoods c. all such uses shall be void they being no corporations but erected either of devotion or else by common consent of the people yet this Statute doth not make good and charitable uses not savouring of any superstition to be void as to find a Grammar-school to sustain poor people or any other such good use but only superstitious â—ses because that Statute hath been alwayes by the Common opinion so taken to be for almost
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finâ—â— 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â— 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thâ—nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â— who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but a Protection shall not be avoided by a bare averment of the party in that case because the record of the Protection must be avoided by matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
case and the Earle of Leicesters case Plow 400 c. Quae malo sunt inchoata c. A void presentment Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson which is appropriate to an Abbey is void be the presentment in the Abbots time or during the vacation and albeit the Clerke be afterwards admitted instituted and inducted yet that cannot make the presentment which was void at first to take effect For Quod initio non valet c. It is otherwise if the Abbot himselfe present c. Co. l. 1. 15. b. 3. Sir William Pelhams case 33 A tenant for life remainder in tail remainder in fée bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recovery and forfeiture by tenant for life and before the Statute of 14 El. cap. 8. suffered a recovery wherein A was vouched and vouched over c. and after Iudgement was entred and execution sued upon that recovery yet was the entry of the tenant in tail adjudged congeable for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture it could not afterwards be salved by entring Iudgement and suing execution thereupon Co. Inst pars 1. 46. a. 4. 34 If the Patron grant the next avoydance and after Parson A void grant of Glebe Patron and Ordinary before the Statute had made a lease of the Glebe for yeares and after the Parson dieth and the grantée of the next avoydance had presented a Clerk to the Church who is admitted instituted and inducted and dieth within the terme the Patron presents a new Clerk who is also admitted instituted and inducted here albeit he commeth in under the Patron that was party to the Lease and was Admitted Instituted and Inducted yet because the Lease had no good beginning but was avoided by the Grantees Incumbent who had the whole estate in him it shall not be againe revived but shall be extinct for ever and shall not be maintained against the last Incumbent Co. Inst pars 1 31. b. 4. 35 If a man be Tenant in general taile The last feme not endowed and take a wife and hath issue by her and she dies and after he taketh another wife and dies the last wife shall be endowed because she may have issue which by possibility may inherit But in this case if the husband during his first wives life alien the land in Fee and takes an estate back to him and his wife and the heires of their two bodies and the wife dies the second wife shall not be endowed because during the Coverture when her Title of Dower should take beginning he was seised of an estate taile special and yet here also the Issue that he may have by the last wife is inheritable Co. ibid. 9. a. 1. 36 B. having divers sonnes and daughters Grant to children before birth not good A. giveth lands to B. liberis suis and to their heires the Father and all his Children do take a Fee simple joyntly by force of these words their heires but if he had no child at the time of the Feofment the Child or Children born afterwards shall not take Dyer 58. a. 4. 35 H. 8. 37 Cestuy que use after the Statute of 1 R. 3. 1. Cestuy que us◠and before the Statute of Uses makes a Lease for yeares and after during the terme makes Feofment of the land and gives Livery c. In such case nothing passed by such Feofment because he had nothing in Vse or Possession and then the Statute of R. 3. would not aide him 29 Quod non habet principium non habet finem Where there can be no presentment by lapse 1 If the Bishop be named in the Quare impedit Co. Inst pars 1 344. b. 4. he shall never afterwards present by lapse and then shall neither the Metropolitan nor after him the King do it For the Bishops presentment falling which was to be the first step and begining their power of presenting which should successively follow his must néeds also fail according to the Rule Quod non habet principium non habet finem Right without action no remitter contra 2 Regularly a man shall not be remitted to a Right remedilesse Co. ibid. 349. a. 4. for the which he can have no action And therefore Littleton saith Sect. 661. that the principal cause of a Remitter is when the issue hath no person but himselfe against whom he may bring his Action by which it appeareth that he ought to have just cause of Action for neither an Action without a Right nor a Right without an Action can make a Remitter as if Tenant in tail suffer a Common Recovery In which there is error and after the Tenant in tail disseiseth the Recoveror and dieth here the issue in tail hath an action viz. a Writ of Error but so long as the Recovery remaineth in force he hath no Right and therefore in that case cannot be remitted Idem 3 If B. purchase an Advowson Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe and the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his Right to the Advowson was remedilesse viz. a Right without an Action 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst pars 1 31. a. 4. 30 He that claimeth Paramount a thing shall never take benefit nor hurt by it Dos de dote peti non potest 1 If there be Grandfather Father and Son Co. Inst pars 1 32. a. 4. and the Grandfather is seised of thée acres of land in fée and taketh wife and dieth this land descendeth to the Father who dieth either before or after entry now is the wife of the Father dowable yet shall she have the thirds but of two acres onely and the wife of the Grandfather shall have for her Dower the other acre intirely because the Dower of the Grandmother is Paramount the Title of the Fathers wife and the seisin of the Father which descended to him be it in Law or actual is defeated and now upon the matter the Father had but a Reversion expectant upon a Fréehold and in that case Dos de dote peti non potest although the Grandmother die living the Fathers wife Dower according to the improved value 2 If the wife be entitled to have Dower of thrée acres of March Co. Inst pars 1 32. a. 3. every one of the value of twelve pence per annum the heire by his industry and charge maketh it good meadow viz. every acre worth ten shillings per annum the wife shall have her Dower according to the improved value and not according to the
against their wills and by good advise he was cleerly discharged thereof See more examples to the same purpose ubi in marg Co. l. 7. 25. b. 1. in Calvins Case 45 Foedera percutere to make Leagues Peace warâ— Denization doth onely and wholy pertaine to the King and not to the subject so also doth Bellum indicere Likewise the King onely without the subject may make not onely letters of safe conduct but letters patents of Denization to whom and how many he please and may enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal which the King could not do without the subject if the subject had any Interest given unto him by the Law in any thing concerning an Alien borne Nay the Law is more precise herein then in a number of other Cases of higher Nature For the King cannot grant to any other to make of strangers born Denizens it is by the Law it self so inseparably and individually annexed to his Royal Person as the Book is in 20 H. 7. 8. because the Law esteemeth it a point of high prerogative Jus majestatis inter insignia summae potestatis to make Aliens borne subjects of the Realme and capable of the Lands and Inheritances of England in such sort as any natural borne subject is And therefore by the Statute of the 27 H. 8. cap. 24. many of the most ancient prerogatives and Royal Flowers of the Crowne as Authority to pardon Treason Murder Man-slaughter and Felonie Power to make Iustices in Eyre Iustices of Assise Iustices of Peace and Gaol-delivery and the like having béen severed and divided from the Crowne were again remitted to the same But authority to make Letters of Denization was never mentioned therein to be resumed because there was never any that claymed the same by any pretext whatsoever being a matter of so high a point of prerogative c. Co. l. 7. 14. a. 4. in Englefeilds Case 46 A. Seised of the Mannor of Dale in Fée A Covenâ—â— Power of Revocation Covenants with B. to stand seised to the use of himselfe for life the remainder to B. in tail the remainder to B. in Fée with proviso that upon delivery or tender of a ring to B. by himselfe or another as the Estates shall be void A. is out-lawed for treason the King seiseth the Land and lets a Lease to D. for 40 yeares Treason Seisure and after the King gives a Commission under the Great Seale to E. to tender the ring to B. according to the Condition In this Case if a Common Person had enjoyned the Kings Estate by making such a Lease of 40 yeares Demise by thâ— Kings power Revocation remaines he had utterly deprived himself of revoking the Estate and of taking advantage of the Condition because his Act shall be most interpreted against himselfe But in that Case the Kings demise shall not enure to his special prejudice to two intents viz. To a demise of Land and also to a suspension of his Condition whereby he might defeat the Estate for life and the other Estates that depend upon it or to a demise in respect of his present Estate pur auter vie and also to a Confirmation in respect of his Condition whereby otherwise he might defeat all as shall be also in Case of a Common Person For the Kings grant shall always be taken according to his expresse intention comprehended in his grant and shall not extend to any other thing by Construction or Implication when it appeares not by his grant that his Intent extended unto it and therefore in such Cases the King ought to be truly informed and he ought to make a special and particular grant which by expresse words may enure to all such several intents as are desired c. Co. l. 7. 16. a. 4. in the Case of Swasn 47 All White Swans not marked Swans wilde which have gained their liberty and swim in an open and common River may be seised to the use of the King by his prerogative Because Volatilium quae sunt ferae naturae alia sunt regalia alia Communia Now a Swan is a Royal bird and therefore if the propertie thereof be not knowne it belongs to the King by his prerogative And there was always an ancient Officer of the King called Magister deductus Cignorum who continues even to this day Neverthelesse the subject may also have property in white Swans not marked Swans not marked in private waters as some may have Swans not marked in their private waters the property whereof belongs unto them and not unto the King And albeit they escape out of their private waters yet they may take them and convey them home again And with this agrées Bracton lib. 2. cap. 1. fol. 9. Si autem animalia fera fuerint mansueta ex consuetudine eunt redeunt volant revolant ut sunt Cervi Cigni Pavones Columbae hujusmodi eo usque nostra intelligantur quamdiu habuerint animum revertendi But if they once gain their natural liberty and do swim in open and common Rivers the Kings Officer may seise them in the open and common River for the King because one white Swan without such pursuit as is aforesaid cannot be known from another And when the property of a Swan cannot be known it being of its nature a Royal Fowl it belongs to the King c. Duke of Cornâ—al 48 In the Princes Case Co. l. 8. fol. 28. a. It was resolved Co. lib. 8. 28. a. 3. in the Princes Case that the Act of 11 E. 3. by force whereof the Kings eldest son was made Duke of Cornwall was such an Act. whereof the Iudges and all the Realm ought to take Conusance because it concerned the King and his first-born son and heir apparent to the Crown for the time being perpetuis futuris temporibus Conusance of an Act of Parliament for every subject hath interest in the King and none of his subjects who are under his Laws are divided from him being their Head and Soveraign So that the Kings affairs concern the whole Kingdome and especially when the Prince the first begotten son of the King and his Heir apparent to the Crown is therein concerned Corruscat enim Princeps radiis Regis Patris sui censetur una persona cum ipso Rege Treason against the Prince as it is declared in the Act of Parliament of 38 H. 6. And therefore if any shall intend the death of the Prince and shall make declaration thereof by some overt Act that is Crimen laesae Majestatis high Treason by the ancient Common Lawes of England and is so declared by the Statute of 25 E. 3. c. Prince 49 1 H. 5. fol. 7. If the Prince as Prince of Wales Co. ib. b. 2. hath judgment to recover and afterwards the Crown descends to him he
shall as King sue execution Queen Conusance 50 The Act of the 35 H. 8. Co. ibidem which concerns the Capacity of the Quéen was such an Act whereof the Iudges ought to take Conusance because it concerned the Kings Wife as it was resolved in the Lord Barkleys Case Pl. Co. 231. â—dges â—rciaments 51 There are some persons which shall not be amerced Co. l. 8. 61. b. 4. in Beechers Case and therefore by consequence shall finde no pledges as the King and also the Quéen who as to that participates of the Kings Prerogative F. N. B. 31. f. 47. c. 101. a. 18 E. 3. 2. Br. amerciament 53. â—endment â—f a writ 52 An Original writ by the Common Law was not amendable in the case of a common person for which sée 13 E. 3. Tit. Amendment 63. Co. l. 8. 156. b. 2. in Blackamores Case which was before any Statute made concerning Amendment c. And 16 E. 3. tit Variance 59. and 29 E. 3. Amendment 68. But in the Kings Case in a Quare Impedit where the Quare Impedit was praesentere for praesentare and after exception taken to it and before answer by the advice of the Chancellor out of which Court that writ issued and of the Iustices of the Kings Bench the writ was amended in the Chancery and the defendant was made to answer thereunto by award Vide 4 H. 6. 16. 40. Ass Pl. 26. â—e Kings â—arter shall 〈◊〉 interpreted 〈◊〉 fulfil the â—gs intent 53 When the Kings Charter may be taken to two several intents Co. l. 8. 167 a. 4. in the Earl of Cumberlands Case and both intents are of effect and good in many Cases it shall be taken to such an intent as shall be most beneficial for the King but if it may be taken to one intent of effect and good and to another intent void and of no effect it shall then be taken and construed to such an intent as that the Kings Grant may take effect and that in judgment of law shall be understood to stand with the Kings intent for it was not his intent to make a void Grant And with this agrées the Book in 21 E. 4. 44. In the Abbot of Walthams Case and the resolution in the Earl of Cumberlands Case in the 8 Report 167. where the Case was that E. 2. granted the Castle of Skipton to Robert de Clifford in tail and H. 6. grants to Thomas Lord Clifford Cosin and Heir of the body of Robert the reversion of the said Castle necnon Castrum c. Here the Kings intent appeared to be that Thomas Lord Clifford should have all his Estate in the Castle And therefore whether it be taken to be a grant of the Reversion in case the former grant in tail was good or of the possession in case that former grant was void it is not material in regard it appears clearly by the expresse words of the Charter that the King intended he should have it in possession either the one way or the other So if the King grant Totum illud Manerium sive firmam de D. or totam illam Rectoriam sive Advocationem de D. In this Case also whether the King hath a Mannor or else a Farm and no Mannor or a Rectory Impropriate or else an Advowson and no Rectory that which the King hath passeth for the effect of the Grant is that be it Mannor or Farm Rectory Impropriate or Advowson that which the King in truth hath passeth by the Grant Co. l. 9. 38. b. 3. in Hensloes Case 54 Of ancient time before the Statute of 31 H. 3. cap. 11. Goods of an Intestate when a man died intestate and did make no disposition of his goods nor committed his trust to any in that behalf In that Case the King who as Parens Patriae hath the supream care to provide for all his Subjects to the end every one may injoy that which he ought to have did use by his Ministers to seise the goods of the Intestate to the intent that they might be preserved and bestowed for the burial of the dead for the payment of his debts for the advancement of his wife and issues if he had any and if not then of those of his blood And this appears in Rotulis Clausis de 7 H. 3. M. 16. Bona Intestatorum capi solebant in manus Regis Ordinaries c. And afterwards this care and trust was committed to Ordinaries for there could be found none more fit to have such care charge of the Intestates transitory goods after his death then the Ordinary who all his life had or at least ought to have had the care and charge of his immortal soul as it is said in Pl. Co. 280. in Greisbrooks Case And therefore the Ordinary was in that respect appointed in loco parentis And this appears also by the construction of John Stratford Arch Bishop of Canterbury at a Synod in London Anno Domini 1380. where he confessed that the Administration of the goods of an Intestate was granted to the Ordinaries Consensu Regis Magnatum Regni c. Co. l. 9. 49. a. 1 in the Earl of Shrewsbury's Case 55 If the King grant the Office of Stewardship of the Mannors of D. and S. to an Earl without power to make Deputies Stewardship neverthelesse in respect of the meannesse of the Office in a base Court and of the dignity of his Person being an Earl it is implied in law for conveniency that he may in that Case make a Deputy for whom he ought to answer so that no prejudice may happen to the King And his Deputy shall execute Officium laboris as to hold a Court Baron and to enter Pleas Surrenders c. And néed requires in Cases of difficulty or which concern the Kings profit the Earl shall execute Officium fiduciae Bracton lib. 1. cap. 8. scientiae ingenii For Comites dicuntur à comitando quia comitantur Regem Comites à comitatu sive à societate nomen sumpserant qui etiam dici possunt Consules Reges enim tales sibi associant ad consuetudinem And that was the greatest title of Honour that was from the Conquest until the 11 of E. 3. when the Black Prince was created Duke of Cornwal and those which of ancient time were created Earls were of the bloud royall And even unto this day the King in all his appellations stiles them Per nomen charissimi consangninei nostri for which causes the Law giveth unto them high and great priviledges And therfore their bodies shall not be arrested for debt trespasse c. because the Law intends that they assist the King with their Counsel pro bono publico and kéep the Realm in safety by their prowesse and valour And for the same reason it is that they shall not be put upon Iuries albeit that be for the service of the County
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
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
induction to the barre or conveyance thereunto it is not necessary that such conveyance or induction should be so certainly pleaded as the effect it self ought to be So in Dive and Maninghams Case in the Commentaries it is sufficient to begin at the Liberate and not to recite the whole Record of that suit because that is sufficient to lead to the matter of the Sheriffes bond which the Statute makes void and is upon the matter but méerly circumstance So likewise if tenant by Elegit make an avowry in a Replegiare having let the land to a stranger rendring Rent c. he shall not plead the whole Record 34 H. 6. 48. avowry 26. â— Monst de faits 10. 19 H. 6. 29. Deâ—ceit 11. B. Bell 9. whereby he became tenant by Elegit as it was adjudged in 34 H. 6. 48. because that is but a circumstantial conveyance to the matter of the suit c. Also in 19 H. 6. 29. A bill of Desceit was sued against two attorneys of the Co. Pleas for imbezelling c. a Writ of Habeas corpora in placito terrae upon a Formedon betwixt the Plaintiff and another and judgment was demanded of the bill because the whole Record was not received in certain but the bill was awarded good notwithstanding it did not recite it certainly because the Record was but circumstance and a conveyance to the suit of Desceit c. Pl. Co. 81. b. 2 Patridges Case 35 In Debt upon the Statute of 32 H. 8. cap. 9. for granting a lease for yeares in Lands whereof the Lessor had a defective title Stat. 32 H. 8. against defective titles the Plaintiff counts that the Defendant had demised the lands for term of yeares indefinitely without naming in certaine for how many years and exception was taken thereunto because the number of yeares was not expressed in certaine c. But in that case it was not conceived necessary to specifie the expresse number of yeares because the term was but conveyance to the summe in demand and then that which is nothing else but conveyance ought not to be so certainly shewed as that which is substance And therefore in a Decies tantum all the Record shall not be shewed in certaine but onely such part thereof which conveys the party to his action but if a Writ judicial issue out of a Record in that case the Record ought to be certainly recited because the Record is the effect and substance and not conveyance onely as in the other case c. For there the shewing of the beginning and end of the terme is to no other purpose Pl. ib. 85. b. 2. then for the shewing of the length and shortnesse of the time and that is not there material because in such case if the Lease were made onely for an hour or for an hundred yeares it is all one as if Lessée for life is charged that he shall not alien in fée c. If he alien onely in tail that is a forfeiture So in that case alien he for a short time or for a long time it is all one Howbeit if he were to recover according to the value of the Lease then the beginning and end thereof ought to be shewed in certain And therefore in such case even in a Decies tantum the certainty of the money ought to be shewed for he shall recover ten times the value or quantity thereof and then to expresse the value thereof in certain is of substance c. â—dictment for â—â—rder found â—anslaughter â—ooâ— 36 If a man be indicted for Murder Pl. Co. 101 b. 1. Salisburies Case and the Iury finds him guilty of Man-slaughter onely yet the Iudge may give judgment upon him viz. that he shall be hanged for the Man-slaughter for the jury may give their verdict at large and find the whole matter as if one be arraigned for the death of a man and pleads not guilty the Iury may find that he did kill him in his own defence So in the other case when the prisoner is arraigned for killing a man upon malice praepense the substance of the matter is whether he killed him or no and the malice praepense is but of the form or circumstance of killing him And albeit the malice praepense makes the act more odious and for that cause the offender shall lose divers advantages which otherwise he should have as Sanctuary Clergy and the like yet that is indéed nothing else but the manner of the fact and not the substance thereof for the substance of the fact is the killing of the man and then when the substance of the fact and the manner of the fact are put in issue together if the Iurors find the substance and not the manner yet judgment shall be given for the substance As if a man arraigne an Assise for Disseisin with force and the Defendant pleads to the general issue and the Iurors find the Disseisin but not with force yet the Plaintiff shall have his judgment for the wrongful expulsion was the substance and the force was the manner and then when the substance is found he shall have judgment thereupon and shall be acquit of the force c. â—he King is â—solutely â—g before â—oronation 〈◊〉 37 The King of England immediately after the Predecessors demise of the Crown is absolutely King without the Ceremony of Coronation or any other act to be done ex post facto for Co. l. 7. 10. b. 4. in Calvins Case the Law doth respect his title to the Crown by birth right and descent and not the circumstance of Coronation which is indéed a Royal ornament and solemnization of the Royal descent but no part of the title Howbeit in 1 Jac. before his Coronation Watson and Clerk seminary Priests and others were of opinion that the King was no compleat and absolute King before his Coronation but that Coronation did adde a confirmation and perfection to the descent And therefore observe their damnable and damned consequent that they by strength and power might before his Coronation take him and his Royal issue into their possession kéep him prisoner remove his Counsellors and constitute others in their places and that these acts and others of like nature could be no treason before he were crowned but it was resolved by all the Iudges of England that presently by the descent his Majesty was compleatly and absolutely King without any essential Ceremony or act to be done ex post facto and that Coronation was but a Royal ornament and outward solemnization of the descent as is aforesaid and as it appeares evidently by infinite precedents and Book cases which see in the Book at large c. Co. l. 8. 133 a. 4 in Tawners Case 38 In an action of Debt brought against an Executor Pleading he pleads two recoveries against him in a Court of a Corporation being a Court of Record which amount to the whole in hand but sheweth not in
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
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 thereof but only the delivery of the Deed there albeit the Habendum be of a lesse Estate then is mentioned in the premisses yet the Habendum shall stand and the premisses are repugnant and void as it fell out in the principall case in Baldwins case for A. covenants grants and lets to farm to B. and C. and to the heires of C. to have for ninety nine years c. here the Estate for yeares limited by the Habendum took effect by the delivery of the Deed whereas the Estate mentioned in the premisses could not take effect without Livery and for that cause was adjudged repugnant and void Indictment repugnant 30. Where a Wound was given the fourth of August Co. l. 4. 42. b. 2. Heydons case and the party dyed the nineteenth of December after An Indictment against A. and B. as Abbettors to the Felony was drawn in these words Et praed A. B. tempore feloniae murdri praed fact viz. 4 Aug. c. Felonice fuerunt presentes c. ad feloniam murdrum praed in forma praed faciend And this Indictment as to A. and B. the Abbettors was adjudged insufficient for the Repugnancy because no Felony was committed untill the death of the party and none shall be adjudged a Felon by relation which is but a Fiction in Law The like 31. In an Appeale of Murder Co. l. 4. 42. b 4. Humes case the Wound was layd in the Count to be given at Weetwood and the death to be at Westliborne and then he concludes Et sic praed L.O. apud Weetwood praed modo forma praed the said A. H. Felonice c. Murdravit And it was resolved that the Count was repugnant and insufficient for it cannot be said that he murdred him at the place where the wound was given but where the party dyed The like is adjudged in Wrotes case Co. l 4 a 4. Confirmation 32. A Prebend leases for seventy yeares Co. l. 5. 81. a. 4. Foords case the Deane and Chapter being the Patron confirme dimisionem praed in the Forme aforesayd for one and fifty yeares and no farther this confirmes the entire Terme for after the Terme is confirmed one and fifty yeares are repugnant and void It had been otherwise if they had recited the Lease for seventy yeares and then confirmed the Land for one and fifty yeares vide supra 16. Conditions repugnant 33. It hath beene sayd Co. l. 6. 42. b. 4. Sir Anthony Mildmayes case If a man make a gift in Taile upon Condition that he shall not make Feoffment this is a good Condition but if the Condition be that he shall not make a Charter of Feoffment this is not good for this without Livery as Littleton saith fo 15. amounts but to a Tenancy at Will which Tenant in Taile cannot be restrained to do So if a man make a gift in Taile upon Condition that he shall not make a Lease for his owne life this is void and repugnant for when a man makes a gift in Taile which is an Estate of Inheritance and by possibility may continue for ever and thereby makes the Donee the Principall owner of the land he cannot restraine him from doing any lawfull Act or making any Estate which is no Wrong to any and which by the Law he may lawfully do or make Howbeit if a man make a Lease for Life or Yeares with Condition that he shall not alien or demise this is good because the Lessor hath the Reversion whereby he hath power to restraine the Lessee so if a man demise a Copy-hold Mannor for Life or Yeares with Condition that hee shall make no voluntary Grant of any Copy-hold Lands according to the Custome of the Mannor this is good but if a man grant in tail a Copy-hold Mannor with such a Condition the Condition is void for the repugnancy Co. l. 6. 61. a. 3. Gatewards case 34. It was alleadged that the custome of the Towne of S. was Common that every Inhabitant within it had used c. to have Common by reason of Commonancy within a place in the Towne of H. which was another Towne and it was adjudged insufficient for the repugnancy Co. l. 7. 25. a. 2. Buts case 35. A. seised of black Acre in fee Rent Avowry and possessed of white Acre for years grants a Rent-charge to B. for life out of both of them A. distrains and avows in white Acre concluding thus in his Plea Virtute cujus he was seised in dominico suo ut de libero tenemento pro termino vitae suae and the Avowry was adjudged insufficient and repugnant because he could not have a Frank-tenement out of a terme for years Derivata potestus non potest esse major primitiva Max. 26. Co. l. 8. 118. a. 2. in Doct. Bonhams case 36. When an Act of Parliament is against common right and reason Cessavit Act of Parliament repugnant or repugnant or impossible to be performed the common Law shall controle and adjudge such an Act to be void as the Statute of West 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum and yet it is adjudged in 33 E. 3. Tit. Cessavit 42. that the Heire should not have a Cessavit The case was this there were two Coparceners Lords and Tenant by Fealty and certaine Rent the one Coparcener hath Issue and dyes in this case the Aunt and the Neice shall not joyne in a Cessavit because the heire cannot have it for the Cesser in the time of her Ancestors in regard the arrearages do not belong to her c. See F. N. B. 209. F. Pl. Com. 110. besides in a Cessavit the Tenant before Iudgement may render the arrearages and damages c. and retaine the Land and that cannot be done when such an heire brings a Cessavit for the Cesser in the time of his Ancestor because the arrearages then incurred belong not to him as aforesaid Co. l. 8. 127. a. 1. The City of London case 37. Where there is a Market overt and correction in any Prescription repugnant a Prescription to sell commodities in private houses or other places out of the open Market is repugnant and void because so the Seller may use deceit and is not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See 11 H. 6. 19. The Prior of Dunstables case Co. l. 9. 58. b. 3. William Aldreds case 38. When a man hath lawful easement or profit by prescription time out of mind another Custome which is also time out of mind Prescription for a way cannot take it away because that were repugnant
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
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
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