the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
afterwards but if execution be sued in the life of the Conusor it shall bind the Survivor So if a Villein purchase lands and bind himself in a Recognisance c. if the Lord enter before execution the Lord shall avoid it But where execution thereof is had before seisure the Lord shall be bound thereby c. Diversity of the grant of an Annuity and of a feoffment 13 If a man grant an Annuity pro una acra terrae or pro decimis c. Co. ib. 204 a. 2 or pro concilio or quod pasturet concilium and the Lord is evicted the tythes disturbed or the Councel refused In these cases the Annnuity ceaseth because this word pro sheweth the cause of the Grant and therefore amounteth to a Condition and then according to the Rule cessante causa cessat effectus But if A. pro consilio impenso c. make a feoffment or a Lease for life of an acre or pro una acra terrae albeit he denyeth Councel or that the acre be evicted yet A. shall not re-enter because in this case there ought to be legal words of condition or qualification for the cause or consideration shall not avoid the State of the Feoffée And the reason of this diversity is for that the state of the land is executed and the annuity is onely executory Condition annexed to an eâ—tate in lands and of a Recognisance or Obligation diversity 14 There is a diversity betwéen a Condition annexed to a state in Lands or Tenements upon a Feoffment Gift in tail Co. ib. 206. a. 3. c. and a Condition of an Obligation Recognisance or such like for if a Condition annexed to Lands be possible at the making of the Condition and become impossible by the Act of God yet the estate of the Feoffée c. shall not be avoided As if a man maketh a Feoffment in Fée upon Condition that the Feoffor shall within one year go to Paris c. and presently after the Feoffor dieth so as it is made impossible by the Act of God that the Condition should be performed yet in that case the estate of the Feoffée is become absolute for though the Condition be consequent to the state yet there is a precedency before the re-entry viz. the performance of the Condition and the state of the Land is executed and setled in the Feoffée and cannot be redéemed back again but by matter subsequent viz. the performance of the Condition So it is also where the Condition is that the Feoffor shall appear in such a Court the next Term and before the day the Feoffor dieth for in that case also the estate of the Feoffée is absolute c. But if a man be bound by Recognisance or Bond with Condition that he shall appear the next Term in such a Court and before the day the Conusor or Obligor dieth the Recognisance or Obligation is saved because the Bond or Recognisance is a thing in Action and executory whereof no advantage can be taken Co. ib. 206. b. 3. until there be a default in the Obligator c. In like manner if a man make a Feoffment upon Condition that the Feoffée shall kill I. S. In that case albeit the performance of the Condition be malum in se and therefore the Condition it self méerly void yet the estate is absolute because executed and setled c. But if a man make a Bond upon Condition that he shall kill I.S. the Condition being unlawful as before and the Bond a thing onely in action and executory they are both void c. 〈◊〉 estate once â—id remediâ—e 15 Where an Estate or Lease is ipso facto void by a Condition or Limitation no acceptance of the Rent after Co. Inst p. 1. 215. a. 1. can make it to have a continuance Otherwise it is of an Estate or Lease onely voidable by entry Co. ib. 226. a. 1. 16 R. brought an Ejectione firmae against E. for ejecting him out of land An estate executed need not plead a Deed. which he held for years of the demise of C E. pleads that B. gave the land to P. and K. his wife in tail who had issue E. the Defendant and after the Donées enfeoffed C. upon condition to demise the land to R. for years the remainder to P. and K c. C. did demise the land to R. but kept the reversion wherefore K. the wife after her husbands decease entred upon R c. for the Condition broken and died after whose decease the Land descended to E. now Defendant Judgment si Action Here exception was taken to this plea because E. maintained his entry by force of a Condition broken and shewed forth no Déed But the plea was ruled to be good because the thing was executed and therefore he had no Déed to shew forth any Déed for indéed he being issue in tail was remitted Co. ib. 236. b. 4. 17 There is a diversity betwéen inheritances executed Estates executed and executory diversity and inheritances executory as lands executed by Livery c. cannot by indenture of defeasance be defeated afterwards and so if a Disseisée release to a Disseisor it cannot be defeated by Indentures of defeasance made afterwards c. Littl. § 620 621 622. Co. ib. 333 334 18 If Tenant in tail grant the Land to A. for life The like and afterwards grants the Reversion to B. in Fée and afterwards A. dies and B. enters and then the tenant in tail dies In this case the entry of the issue in tail is taken away because the Reversion of B. is executed So it is also where the Tenant in tail grants the Land for yeares and afterwards grants away the Reversion to another for in that case also both the Fée and Frank-tenement are discontinued and the Reversion is executed in the Grantée It is otherwise where the tenant for life survives the tenant in taile for then is not the Reversion executed in the life of the tenant in taile and then is not the issue in taile put to his Formedon but may lawfully enter c. Co. l. 1. 155. b. 2 The Rector of Cheddingtons Case 19 There is a diversity betwéen a Covenant or Agréement An estate certaine uncertaine diveâ—sâ—â—y which is perfect and certain albeit it shall take effect in possession upon some future matter precedent And a Coâ—enant or Agréement imperfect and uncertaine which is to be reduced to certainty by matter ex post facto For in the one case the estate is bound presently in the other case not As 3 Mar. Brook Feoffments al uses 59. It is covenanted betwixt A. and B that the Sonne of A. shall marry the Daughter of B for which B. gives to A. 100 l. and A. covenants with B that if the marriage take not effect that A. and his heires will stand seised of 150 acres in D. to the use of B. and his heires until
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee must attend there to receive it for if the Obligor then and there tender the money he shall thereby save the penalty of the Bond for ever So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
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