Tenant for life A feofment by two and he in the Remainder or Reversion in Fée joyn in a Feofment by Déed the Livery of the Fréehold shall move from the Lessée and the Inheritance from him in the Reversion or Remainder from each of them according to his estate Co. Inst pars 1 303. b. 2. 5 Every man shall plead such pleas Pleas proper as are pertinent for him Secundum subjectam materiam viz. according to the quality of his case Estate or Interest as Disseisors Tenants Incumbents Ordinaries and the like Co. Inst pars 1 200. b. 3. 6 One Tenant in Common may enfeoffe his Companion Feofment Releases but not release because the Fréehold is several Ioyn-tenants may release but not enfeoffe because the Frée-hold is joynt But Coparceners may both enfeoffe and release because their seisiin to some intents is joynt and to some several Co. l. 3. 50. b. 4. Sir George Browns case 7 The words of the Statute of 11 H. 7. cap. 20. Statute of 11 H. 7. 20. interpreted for discontinuances which prohibits a Feme to alien the lands of her deceased husband are these that she shall not discontinue alien release or confirm them with Warranty where Warranty seems to be referred to any Discontinuance or Alienation as well as to release and confirmation So that if a Feme Tenant in special taile after the decease of her husband make a Lease for three lives not warranted by the Statute of the 32 H. 8. cap. 28. without Warranty he in the Reversion or Remainder by force of the said Statute of 11 H. 7. shall not enter but it was adjudged in Sir Geo. Brownes case in the 3 Report that in that case he might enter and that these words with Warranty shall be onely referred to Releases and Confirmations which indéed do not make a discontinuance without Warranty for the intent of the said Act of 11 H. 7. was not onely to prohibit every barre but also every manner of discontinuance which might put the heire to his real action whereby he might perhaps be disinherited or at least greatly delayed And therefore in regard Releases and Confirmations do not make discontinuance without Warranty these words with Warranty are to be construed Secundum subjectam materiam and shall be referred to them onely to make them equivalent to such an estate which passeth by Livery and which of it selfe without Warranty makes a discontinuance Co. l. 4. 10. b. 4. Bevils case 8 The Statute of 32 H. 8. cap. 2. which provides 32 H. 8. 2. interpreted for rents that none shal have any Avowry or Conusance for any rent suit or service unlesse seisin were had within 40 years before the Avowry made extends not to any such Rent or Service which by common possibility cannot happen or become due within 60 yeares as if the Seigniory consists upon Homage and Fealty onely for the Tenant may live 60 yeares after he hath done them So also if the Service be to cover the Hall of the Lord or to go to Warre with him when the King maketh Warre against his enemies such casual Services which by common possibility cannot happen within 60 yeares are not within that Act c. Likewise writs of Escheat Cessavit or Rescous are not within those branches of the same Statute which limit the seisin of land because in those writs the seisin is not traversable but the tenure and in those writs of Escheat and Cessavit albeit they demand the land yet néed they not alleadge any seisin in the same lands c. as the said Statute requires because that Act onely extends to such a writ where the Demandant or his Ancestors may have seisin of the land in demand within the time of limitation prescribed by the Act and the Statute doth not force them to any impossibility c. Scandalum Magnatum 9 The Lord Cromwell brings an Action de scandalo magnatum upon the Statute of 2 R. 2. cap. 5. against Vicar Delmy Co The Lord Cromwels case for speaking these words unto him You like of those that maintaine sedition against the Queens proceedings unto which the Defendant pleades special justification that the Plaintife procured two to prea h in his Church which enveighed in their Sermons against the Book of Common Prayer and because the Defendant did prohibit them the Plaintife said to the Defendant Thou art a false varlet I like not of thee to whom the Defendant said It is no marvel though you like not of me for you like of those inuuendo the two that should have preached that maintaine sedition innuendo seditiosam illam doctrinam against the Queenes proceedings And this was adjudged a good justification For in case of slander for words the sence of the words are to be taken and the sence of them doth best appeare by the cause and occasion of speaking them according to the Rule Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi sunt secundum subjectam materiam And therefore in this case the Council of the Defendant was said to have done well in shewing the special matter whereby the sence of this word sedition might appeare upon the coherence of all the words taken together viz. that the Defendant meant the seditious doctrine against the Quéens proceedings in the Act of 1 Eliz. by which the Book of Common Prayer was established and that he did not intend any such publique or violent Sedition as was alleadged by the Plaintife and as ex vi termini per se the word it selfe would import c. And it was said Quae ad unum finem loquuta sunt non debent ad alium detorqueri c. Common 10 If Common be said to be appertaining to a Mease Land Co. l. 4. 37. a. 4. 38. a. 3. Tirringhams case Meadow and Pasture time out of mind that shall be adjudged Common Appurtenant and not Common Appendant for it is against the nature of Common Appendant to be Appendant to Meadow or Pasture And therefore in that case the subject matter and the circumstance of the case ought to direct the Court to give Iudgement whether the Common be Appendant or Appurtenant 11 In Appeal of Murder against A. as principal Co. l. 4. 43. b. 4. Bibithes case and against B. as accessory before the fact Accessary in manslaughter A. was found guilty of Man-slaughter but not of Murder in this case B. was acquit because there cannot be an Accessary before the fact in Manslaughter which allwayes happens upon a suddaine debate or effray for if it be premeditate it is Murder Joint warranties or words 11 Ioynt words of the parties shall by construction of Law be taken respectively severally according to the several interests of the Grantées as Warranty made to two of certain lands Co. l. 5. 7. b. 4. 16 H. 6. 63 64. shall enure as
The case of the City of London upon the forfeiture of the paine of 5 l. for that he non existens libera persona c. usus est manuali occupatione de Tallow-chandler c. And upon the return of the Habeas Corpus into the Kings Bench the Court tooke advisement upon that part of it whereby it was averred that he non existens c. usus est manuali occupatione de Tallow-chandler c. and shewed not that he sold any Candles c. For if he made them for his owne use and sold none for gaine he might well do it as every one is permitted to bake or brew c. for their own use c. but it seemed to be implyed by the same averment that it was his trade by which he got his living viz. by selling the commodities of his Trade and not that he made them onely for his own use For it is not properly said that one useth a manual occupation when he onely doth it for himselfe as he that brews or bakes for his own use cannot be properly said to use the occupation of Brewer or Baker c. Malice praepence implied in indictments 12 If one kill a Minister of Iustice in the execution of his office Co. lib. 9 67. b. 3. Mackallies case the Indictment may well be general viz. that the Prisoner felonicè voluntariè ex malitia sua praecogitata c. percussit c. without alleadging any special matter for the evidence will well maintain the Indictment inasmuch as in this case the Law implies malice praepence So if a Thiefe which offers to to rob a true man kils the true man in resisting the Thiefe this is murder of malice praepence or if one kill another without any provocation or without any malice praepence that can be proved the Law adjudgeth that to be murder and implies malice And in both these cases they may be indicted generally that they killed de malice praepence for malice implied by the Law being given in evidence is sufficient to maintaine the generall indictment And so it was adjudged in Mackalleyes case for killing Fells a Serjeant of London Nuper implies the time past 13 If a man plead Co. l. 10. 59. b. 1. The Bishop of Sarums case Co. l. 10. 75. b. 2. The case of the Marshalsea that such a grant made per Iohannem nuper Episcopum Sarum c. was void These words nuper Episcopum c. imply and import that now he is not Bishop of Sarum Jurisdiction of a Court prohibited 14 When a Court is prohibited by Statute to hold plea of certaine causes if one be sued there contrary to that Statute he may not onely have a Supersedeas in the nature of a prohibition to cause the Iudge to cease proceeding but likewise shall have an action upon that Statute against the party that sues contrary to the same Statute notwithstanding that it is in course of legal proceeding and that the words of the Statute do not expressely give any such action to the party for that way of reliefe is a benefit which as a consequent is implied in every such Statute Co. lib. 11. 76. a. 4. Magdalen Colledge case 15 By the Statute of 18 Eliz. cap. 2. Good conâ—â—â—â—ration impâ—â—ed no conveyances of the Quéen are confirmed but such as are for the satisfaction of debts c. and other good consideration for so it is in the preamble and although good is omitted in the body of the Act yet it is necessarily implyed not onely by the connexion of the pâ—eamble to the purview but also by this word consideration which as in 16 Eliâ— Dyer 336. is a cause or occasion meritorious requiring a mutual recompence in Déed or in Law Co. lib. 11. 86. b. 3. The case of Monopolies 16 It appears by the Writ of Ad quod damnum in F. N. B. 222. Monopoliâ—â— that every gift or grant of the King hath this condition either expresly or implicitely annexed unto it Ità quòd patria per donationem illam magis solito non oneretur sèu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Co. l. 11. 98. a. 4. James Bags case 17 There is a condition in Law tacitè annexed to the fréedome or liberty of a Citizen or Bâ—rgesse which if he break A Freemaâ— a Corporaâ— he may be dis-infranchised as if he commit any act which is against the duty and trust of his fréedome and to the prejudice of the City or Burrough and against the Oath which he tooke when he was made Frée-man these are causes of his removal Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel Homage Ancestrel impâ— a warranty and is impleaded Albeit he hath no charter of it yet shall he have a Writ of Warrantia Cartae against the Lord for that tenure implies a Warranty Fitz. ibid. g. 19 If a man without deed makes a gift in taile Warranty aâ—plied or a lease for life rendring rent and after he is impleaded in an action wherein he cannot be vouched In that case he shall have a Writ of Warrantia cartae against the Donor or Lessor or his heire that hath the reversion for the reversion and the rent reserved makes a Warranty in Law by the Statute of Bigamis cap. ultimo albeit he hath no déed of it Fitz. ibid. h. 20 If a man grant land by these words Dedi concessi Dedi implies a warranty c. he shall be bound to Warranty during his life but not his heirs unlesse he be thereunto especially charged by the Grantor for these words Dedi concessi c. imply a Warranty and if the Feoffée be impleaded he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed c. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thiefe An action of the case for words and that such a night he would have robbed him to his damage c. And A. comes Et defend it vim c. quoad propalationem c. querens non fuit damnum in forma qua c. to which plea the Plaintiff demurred in Law and Iudgement was given for him because by implication the words are confessed and no damage can be more grievous then taking away a mans good name and a Writ of Inquiry was awarded 22 Vide Max. 19. Pl. 1. Dyer 41. 4. c. 30 H. 8. 23 In a Replevin the Plaintiff is non-suit Replevin Second deliverance whereupon the Defendant had a Returno habendo but about the same time the Plaintiff prays a Writ of second deliverance and had it and both the Writs were in the Sheriffs hands at one time unserved In this case the Writ of
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
qualibet eorum that he was sole seised of the land c. And in this case it was adjudged that the action would not lie singly for the Plaintiffs onely but I. S. and his wife ought also to have joyned in the action because as their interests in the land was joynt so also was the Covenant And therefore these words cum quolibet qualibet eorum were void and signified nothing It is otherwise when the interests are several for then the covenants which have relation thereunto are also several As if a man demise Black acre to A. White acre to B. and Gréen acre to C. and covenant with them quolibet eorum that he is right owner of them c. Here in respect of the several interests by these words quolibet eorum the Covenant is made several whereas if he had demised those acres unto them joyntly the Covenant had béen joint in respect of their joint interest c. 23 A Lord of a Léet cannot distrain for the certainty Co. l. 11. 44. b. 2. 45. a. 2. in Godfreys case belonging to the same Léet unlesse he can prescribe that he and those whose estate he hath have formerly distrained for it because the certainty being against common right and onely for the private gain of the Lord he cannot have it without prescription And by consequent as without prescription he can have no right to the certainty it selfe which is the principal So neither shall he have without prescription power to distrain for it which is Accessary And for the same reason it is that the Lord of a Court Baron shall not distrain for an Amerciament there without prescription for that the Court it self which is the principal consists in prescription It is otherwise in a Court Léet because for the Fines and Amerciaments of that Court distresse is incident of common right c. â—he Court Christian may â—ke a recogâ—sance of a â—ebt 24 If a man acknowledge in Court Christian F. N. B. 41. b. that he owes to another 5 l. to be paid at a certain day and after he pays it not he shall not be sued in Court Christian For that Debt and if he be he shall have a prohibition and an attachment thereupon c. But if by reason of matrimonie or a Testament a man acknowledgeth a debt in Court Christian if the debt be not paid accordingly he may be sued for it there and a prohibition lyeth not in that case because that Court having power to take a conusance of matters matrimonial and testamentary which are the principal it may likewise take Conusance of debts acknowledged thereupon which are accessary c. â—â—incipal and â—ccessary 25 If a man cause one as Principal to be appealed of murther or felony and another as Accessary unto him F.N.B. 115. a. and after he is non-suited in his appeal In this case the Accessary shall have a writ of Conspiracy as well as the Principal â—he like 26 If a Principal and one as accessary are indicted of felony F. N. B. ibid. and are taken and arrested and the Principal is acquit thereby the Accessary is also discharged and the Accessary shall have thereupon a writ of Conspiracy against them that conspire to indict him c. â—t of the â—bt upon a â—t Merchant â—iable 27 If a man make a Statute Merchant in 100 l. payable at divers dayes if he fail of payment at any one of the days F.N.B. 130. h. 131. a. Co. l. 8. 153. a. in Althams case the party to whom the recognisance was made may have execution for that day and shall not stay execution till all the days of payment be past because a Statute savers of the realty Co. l. 10. 128. b. 3. in Cluns case and partakes of the nature of the land and the profits thereof which are severable It is otherwise of an obligation which is so to be discharged at several payments for that is méerly personal and intire c. Co. l. 47. b. 192. b. F.N.B. 9. a. 28 A writ of Dower lyeth as well for a thing appendant or appurtenant to land as for the land it self c. Dower F.N.B. 50. a. 29 If a Parson hath a Chappel annexed to his Parsonage Glebe to which Chappel there is Glebe appurtenant the Parson shall have a Juris utrum as well of that as of Glebe belonging to the Parsonage it self Co. l. 5. 81. b. 3. in Fords case Co. l. 8. 153. a. in Althams case l. 10. 128. b. 3. in Cluns case 30 If I sell unto you any thing for 100 l. to be paid by 20 l. per annum Annual sum not severable rent otherwise in five years I shall not have an action of Debt until all the dayes be incurred because it is but one intire contract But if a man make a lease of lands for five years rendring each yeare 20 l. there in case of a lease of land for years the years are several and the land and the profits thereof severable And therefore the rent being severable as well as the land c. he shall have an action of Debt for each year c. as it was adjudged in 25 E. 3. 8. Co. Inst pars 1. 47. b. Co. l. 2. 66. b. 4. in Tookers case 31 There are two Ioyntenants for life Attornment by one Joyntenant sufficeth the reversioner grants over his estate in fée one of the Ioyntenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantée because the estate of joynt Lessées is intire for every Ioyntenant is seised per amy per tout and by consequent the reversion which is dependant and expectant upon such an estate is intire also c. Co. Inst pars 1. 139. a. 4. 32 Some actions follow the nature of those Actions whereon they are grounded as the writs of Errour Attaint Scire Facias and the like Co. l. 4. 47. b. in Waits case 33 The Feme shall not have more appeals than one for the death of the Baron but ought to joyn all that she will charge The wife 〈◊〉 have but 〈◊〉 appeal in one and the same writ and so also ought she to declare against all in one and the same Court for as the murther or death is onely one so ought the Writ and Count to be one also And therefore if one bring an appeale of death against divers and all but one make default yet the Plaintiff ought to bring his writ and likewise to count against all c. Pl. Co. 72. b. in Rosses case 34 If an execution be sued of the body and of the land Execution 〈◊〉 charged by purchase of part of the land and afterward the Conisor enfeoffs the Conisée of parcel of the land or surrenders parcel of the land unto him or the Fée-simple of parcel
forma is material So if a feofment be pleaded by déed and it is traversed absque hoc quod feoffavit modo forma upon this collateral Issue modo forma are so essential that the Iury cannot find a feofment without déed 8 Lord and Tenant by fealty onely and the Lord distraines the Tenant for Rent Litt. §. 484. Modo forma Lord and Tâ—nant the Tenant brings an Action of Trespass against the Lord for his cattle so taken and the Lord pleads that the Tenant holds of him by fealty and certain Rent and for the Rent he distrained c. And the Tenant saith that he holds not of him modo forma as he supposeth and thereupon they are at Issue and it is found by Verdict that he holds of him per fidelitatem tantum In this Case the writ shall abate and yet he held not of the Lord in manner as the Lord had alleadged But the matter of the Issue being found viz that the Tenant holds of him that sufficeth to abate the writ albeit the Lord distraine the Tenant for other services then are due Co. ib. 282. a. 1. 9 If A. be appealed or indicted of Murder Modo forma Murder Manslaughter viz. that he of malice prepensed killed B. A. pleads that he is not guilty modo forma yet the Iury may find the Defendant guilty of man-slaughter without malice prepensed because the killing of B. is the matter and malice prepensed is but a Circumstance Co. ib. a. 2. 10 In Assise of darrien presentment Darrien presentment if the Plaintiffe alleadge the avoydance of the Church by privation and the Iury find the voydance by death the Plaintiffe shall have judgement for the manner of the voydance is not the title of the Plaintiffe but the voydance is the matter c. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assise against the Ordinary he pleadeth Deprivation ab Ordinary as Patron that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron yet the Ordinary shall have judgement for the deprivation is the substance of the matter Co. ib. 282. a. 3 12 The Lessée covenants with the Lessor not to cut downe any trées c. And binds himselfe in a bond of 40 pounds for performance of covenants the Lessée cuts downe ten trées Breach of covenant the Lessor bringeth an Action of debt upon the bond and assigneth a breach that the Lessée hath cut downe 20 trées whereupon Issue is joyned and the Iury finds that the Lessée cut down ten yet judgement shall be given for the Plaintiffe For sufficient matter of the Issue is found for the Plaintiffe Litt. §. 485. Co. ibid. 282. a. 4. c. 13 In a writ of Trespass for battery or for goods caried away In actions transitory the place must not be traversed if the Defendant plead not guilty in the manner as the Plaintiffe supposeth and it is found that the Defendant is guilty in another towne or at another day then the Plaintiffe supposeth yet he shall recover For in Actions brought for things transitory the wrong being done in one towne the Plaintiffe may not onely alleadge it in another towne but also in another County and the Iurors upon not guilty pleaded are bound to find for the Plaintiffe Neither can the assault battery taking of goods c. alleadged in another County be traversed without special cause of justification which extendeth to some certain place as if a Constable of a Towne in another County arrest the body of a man that breakeeh the peace there he may traverse the County Howbeit he must not stay there but must say farther and all other places saving in the towne whereof he is Constable So it is also in an Action for taking of goods for in that Case also if the Defendant justifie for damage feasant in another County he may traverse as before But where the cause of the justification is not restrained to a certain place which is so local that it cannot be alleadged in any other towne as in the Cases before alleadged and the like then albeit the Action be brought in a forraigne County yet he must alleadge his justification in the County where the Action is brought As if a man be beaten in the County of Middelsex and he bringeth his Action in the County Buck. the Defendant cannot plead that the Plaintiffe assaulted him in the County of Middelsex c. and traverse the County but he must plead his justification in the County of Buck. for that the cause of his justification is good in any place So it is likewise in Case of Bailement of goods and other Cases for transitory things as for example In an Action upon the Case the Plaintiffe declared for speaking of slanderous words which is transitory and layd the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London the Plaintiffe in his replication denied the concord whereupon the Defendant demurred and judgement was given for the Plaintiffe for the Court said that if the concord in that Case should not be traversed it would follow that by a new and subtile invention of pleading an ancient principle in Law that for transitory causes of Action the Plaintife might alleadge the same in what place or County he would should be subverted which ought not to be suffered And therefore the Iudges of both Courts allowed a traverse upon a traverse in that Case c. Now the ground that ruleth all these Cases is this because the Law respects more the cause of the Action which is the substance of the suit then the place where the Act was done which is but circumstance c. â—ubstance cerâ—ainely alâ—eadged conâ—yance not 14 That which is alledged by way of conveyance or inducement to the substance of the matter néed not to be so certainely alleadged Co. ib. 303. a. 4. as that which is the substance it selfe And where a matter of Record is the foundation or ground of the suit of the Plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but conveyance because that is but circumstance c. â—ea insufficiâ—â— 15 When a Count barre replication Co. l. 8. 133. b. 1. Turners Case c. is defective in respect of omission of some circumstance as time place c. there it may be made good by the plea of the adverse party but if it be insufficient in matter and substance it cannot be salved Co. l. 8. 120. b. D. Bouch. Case â—â—cient pleaâ—â—ngs 16 In the Raignes of E. 2. E. 1. and upwards Co. ib. 303. b. a Co-l 7 25. a in Buts Case Co. ib.
Church be void when the writ comes to the Bishop the Bishop is bound to admit his Clerk and it séemes also reason if the Patron after the six moneths present to the Bishop the Church being then void that the Bishop ought to present his Clerk in respect of the right that is in the Patron 31 If the King write to the Iustices to prorogue the Assise F.N.B. 153. h. because the defendant is in his service c. yet the Iustices ought to procéed and not to cease for that writ because it is for the advancement of Iustice and to do right â—â—e Judges 〈◊〉 to give â—â—â—eous â—â—ment 32 In Dive and Manninghams Case in the Commentaries Pl. Co. 66. b. 3. Dive and Manninghams Case 84. b. 4 in Partridges Case albeit the Defendant had pleaded Judgment si action whereas he ought to have pleaded non est factum Dive the Sheriffe having taken a bond of a man in execution to secure himselfe which was void by the expresse words of the Statute of 23 H. 6. 10. notwithstanding such default in right pleading the Iudges finding the Sheriffe to have no iust cause of action because that Statute made the bond cléerely void gave judgment against Dive the Plaintiffe So H. 7. E. 4. 31. Fitz. Title judgment 50. where an action of trespass was brought against Tâ—lly and Woddy for five boxes with writings taken c. Tilly pleads not guilty and Woddy makes title to him by a gift and the Plaintiffe traverseth the gift and upon these matters they were at issue and Tilly was found guilty and the issue was found for Woddy and against the Plaintiffe And here albeit the Issue was found against Tilly yet by the cléere opinion of the Court the Plaintiffe shall not have judgment against him for it was found betwixt the Plaintiffe and Woddy that the Plaintiffe had no title and therefore the Iudges ex officio ought to give judgment against him vide plus ibid. â—â—â—ter to 〈◊〉 and 〈◊〉 33 If land be given to Baron and Feme in special taile Co. Inst p. 1. 354. a. 3. and after the husband alien the land in fée and take backe an Estate to him and his wife for their lives in this Case the husband against his owne alienation if he had taken the estate to himselfe alone could not have béen remitted but when the estate is made to the husband and wife albeit they be but one person in law and no moities betwéen them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that remitters are much favoured in law because thereby the more ancient and better rights are restored again therefore in this case in judgment of law both husband and wife are remitted Co. ib. 194. a. 3 34 A release by the disseisée to one of the disseisors shall enable him to hold out his companion because they are in méerely by wrong A release to usurpation howbeit if two men do usurpe by a wrongfull presentation to a Church and their Clerk is admitted instituted and inducted and the rightful Patron release to one of them this shall enure to them both for that the usurpers came not in méerely by wrong but their Clerk is in by admission and institution which are Iudicial Acts and usurpation shall work a Remitter to one that hath a former right Co. ib. 297. a. 2 35 There is a diversity betwixt a bare assent without any right or interest and an assent coupled with a right or interest Attornment Confirmation and therefore an Attornment cannot be made for a time or upon Condition because that is a bare assent but if a Parson make a lease for 100 years the Patron and Ordinary may confirme 50 of those years for they have an interest and may charge in time of vacation so if a disseisor make a lease for 100 yeares the disseisor may confirm parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the Estate of the Lessée because then the addition for parcel of the term would be repugnant when the whole was confirmed before but the confirmation must be of the land for part of the term c. Co. ib. 277. b. 4 36 If A. disseiseth B. to the use of C. and B. releaseth to A. this shall take away the agréement of C. to the disseisin because otherwise it should make him a wrong-doer so if the disseisor be disseised and the disseisée releaseth to the second disseisor this taketh away the right of the first disseisor had against the second for a relation of an Estate gained by wrong shall never defeat an Estate subsequent gained by right against a single opinion in 14 H. 8. 18. never seconded by any other since Hob. 13. Sir Daniel Nortons Case 37 If the Vnder-Sheriffe Covenant with the High Sheriffe Skeriffes that he will not serve executions of above 20 l. without his special warrant this Covenant is void because it is against Law and Iustice 142 That which is not tortious in it selfe cannot be tortious to any Co. lib. 11. 98. b. 1. in Edw. Seymers Case 1 If there be Tenant in taile Remainder in taile Remainder not devested the Reversion in in Fée to the Tenant in taile the Tenant in taile bargaines and sels the land and levies a Fine to the bargainée who enfeoffes I. S. in this Case by the feofment of the bargainée to I. S. the Remainder in tail is not displaced or put to a right for the bargainée had an Estate in Fée-simple determinable upon the death of the Tenant in taile without issue and when he made the feofment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate taile in remainder did pass and did not devest the remainder for the feofment which is not tortious in it selfe cannot be tortious to another 143. Interest Reipublicae ne Curia Domini Regis deficeret in Justicia exhibenda A Letter of Attorney a Pâ—nnell 1. If a man make a Letter of Attorney to two to do any act Co. Inst pars 1. 181. b. 3. if one of them dye the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them dye yet the other shall execute and returne the same because this last is for the execution of justice Tenants is common shall joyne in Assize 2. If there be two Tenants in Common of 20 s. Rent Co. ibid. 197. a. b. a pound of Pepper or such like thing as will admit severance if they be arreare they shall bring several Assises for them because of their severall titles but if the Rent be an intire thing which cannot be severed or divided as an Hawke Horse or the like in such case they shall joyne in the
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
sometimes in the count and for want of certainty it shall abate as in 3 E. 4. A man retained in Husbandry brings an Action of debt against a Prioresse for his salary and declares that he was retained with his Predecessor and shewes not the person that retained him this count abated for the uncertainty for it might be that one who had not Warranty retained him for the Predecessor Sometimes the Count and Writ also may be generall without certainty as in Assizes but there the certainty ought to be shewed by the Replication sometimes the Writ Count and Replication may be uncertaine but then the certainty ought to appeare by the Verdict as in a Quare Impedit the value appeares not in the Count nor in the Replication but it will appeare by the Verdict for they shall assesse double damages or damages by halfe a yeare according to the value of the Church so in a Writ of Ward the Iury shall find whether the heire be marryed or not and shall assesse damages for it and yet in the Count or Replication no such matter appeares So likewise in a Detinue the value of the goods shall appeare by the Verdict c. so as certainty ought alwayes to appeare to the Court. Jeofaile 72. In debt upon an Obligation for performance of Covenants Dyer 31. 217. 28 H. 8. whereby the Defendant was bound to do and suffer to be done upon request all such things for the Plaintiffs assurance in certaine Lands as should be devised by councell the Defendant saith that he was not requested the Plaintiff replyes that his councell advised that the Defendant should seal a Release which was required to be done and that the Defendnat refused to this the Defendant rejoynes and saith that he did not refuse and that he was ready to do it And the Court said that this re-joynder was a full Jeofaile and therefore insufficient for the uncertainty for that he waved his bar viz. the request which he ought to have maintained as to have said Quod non fuit requisitus Abayance 73. When the right of Fee-simple is perpetually by Iudgment of Law in abeyance without any expectation to come in esse Co. Inst part 1. 343. a. 3. there he that hath the qualified fee and to many purposes is no more then a bare Tenant for life concurrentibus hijs quae in jure requiruntur may charge or alien it as in case of a Parson Vicar c. when the Patron and Ordinary joyne with him in the Charge or Grant for in this case at the common Law when all that had an Interest in the thing did joyne the Charge or Grant might have been thereby made certaine and infallible but where the Fee-simple is in Abeyance and albeit by possibility it may every houre come in esse yet it is altogether uncertaine when or whether ever or never that may happen In such case the Fee-simple cannot be charged untill it come in esse so as it may be certainly charged or aliened As if a Lease for life be made the Remainder to the right Heires of I.S. Here the Fee-simple cannot be charged or aliened before I.S. be dead in case I.S. dye living the Tenant for life Co. ibid 378. a. 3. but if the Tenant for life happen to dye before I.S. then is the Remainder vanished and gone because it cannot immediatly vest after the death of the Tenant for life Second deliverance 74. Vpon a second deliverance the Defendant being a Widow justifies by an estate for life if she so long continue a Widow Dyer 142 51 c. 3 4. P. M. and averreth not that she is the same woman to whom the estate was made nor that she is still a Widow for which uncertainty and others concerning the place where the Cattell were taken the Plaintiff had Iudgentent c. Inquisition 75. Inquisitio capta apud D. of Land in S. Dyer 208 19. 3 4. Eliz. without shewing in what County either D. or S. is was adjudged insufficient for the uncertainty because upon a Traverse it could not be tryed for want of the knowledge where the Venue should be taken Dyer 254. b. 1. 9 El. 76. In debt for rent arreare the Plaintiff counts Debt for rent arreare that his termor devised to the Defendant the terme and dyed and that the Defendant entred and was possessed and that for arreare of rent the Action accrued to this the Defendant demurs 1. because he hath not alleadged that the Devisor made Executors and that the Defendant entred with their agreement 2. For that he saith not vertute cujus legationis the Defendant was possest for which uncertainties the Count was adjudged insufficient for if the Defendant were in of any other estate or title then as Assignee of the Lessee an Action of debt lyeth not against him for want of privity Dyer 264. 39 9. Eliz. 77. A new Assignment was in one Acre New Assignment terrae sive prati in campo vocat N. the Defendant pleads not guilty but for the uncertainty whether Land or Meadow and also because there was no abuttalls the Iury were discharged Hob. 2. Axworths case 78. In an Action upon the case by Thomas against Axworth Slander the words were This is John Thomas his writing innuendo the Plaintiff and he innuendo c. hath forged this Warrant the Sheriffs Warrant at the Suit of M. Hog against the Defendant Innuendo And in this case it was held that the Innuendo would not support the Action the word Warrant alone being of an uncertaine sense and the matter of the Action shall not be enlarged or ascertained by the Innuendo as Pox innuendo the French Pox. Vide Hob. 6. Miles case 45. Harvies case Hob. 38. Dawtries case 79. Office An office was found by Commissioners after the death of William Dawtry whereupon a Melius Inquirendum went forth and recited but thus Cum per quandam Inquisitionem captam apud Chichester c. and doth not say that it was either by Commission or Writ or before whom and it was held void for the uncertainty and the office also that was taken upon the Melius for by the Melius it ought to appeare that the first office was by warrant c. Hob. 89. Rich and Shere 80. In an Ejectione firmae the Plaintiff counts of a Messuage c. Ejectioâ—e firma with Appurtenances called Dizard in Cornewall to hold for five years the Defendant pleads not guilty whereupon the Plaintiff had Iudgement And the Defendant assignes for Error that the Plaintiff had not shewed in what Towne Parish Hamlet or place the Messuage lay but in the generall County and thereupon the Iudgement was reversed in the Exchequer Chamber 13. Jac. for here was a tryall without a Visne Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit Elegit Error for omitting the Entry
verdict there were more then a thousand words whereas in our books when the tenant in tail was restrained from alienation there were under twelve words Haec fuit candida illius aetatis fides simplicitas quae pauculis lineis omnia fidei firmamenta possuerunt Co. l. 10. 30. b. Sâ—tions Hospital It may be also observed that the Statutes made before the reign of H. 8. were short and concise but from his time especially from the twentieth yeare of his reigne they are much more prolix and voluminous whereas Lawes and Precepts ought to be short and significant to the end they may be easily understood and the better retained in the memorie according to that of Erasmus in his religious Colloquie Praestat pauca avidè discere quam multa cum taedio devorare And that of Horace Quicquid praecipies esto Brevis ut citò dicta Percipiant animi dociles teneantque fideles Franchise Prescription 6 A Prescription to have all wild Swans which are ferae naturae Co l. 7. 18. a. The Case of Swans and not marked nidificant gignent frequentant within such a Creeke is insufficient so is also such a prescription for a Warren viz. to have all Phesants and Partridges nidificant gignent frequentant within such a Mannor but he ought to say that he hath Free warren of them within the Mannor for albeit they be nidificant c. within the Mannor yet he cannot have them Jure privilegii but onely so long as they are within that place Howbeit a Prescription thus alleaged is good viz. that within such a Créeke there hath béen time out of mind c. a game of wild swans not marked nidificant c. And then to prescribe that such an Abbot and all his predecessors c. have alwayes used to have and take to their owne use some of the said wild Swans and their signets within the said Créeke such a prescription I say is good for albeit Swans are Royal fowl yet this way a man may prescribe in them because that may have lawfull beginning viz. by the Kings grant Debet detinet 7 The forme of a writ of debt shall be sometimes in the debet and detinet and sometimes in the detinet onely F. N. Br 88. b. F. N. B. 119. b. and then if it be the debet it shall abate It shall be always in the debet and detinet when he that makes the bargaine or contract or borrows the money or he to whom the obligation is made brings an action against him that is bound or is party to the bargain contract or borrowing and also when the action is brought for money But if a man sel 20 quarters of wheat for an horse here if he bring a writ of debt for the horse the writ shall be in the detinet onely And the Rule of the Register is Fitz. ibid. m. quod in brevi debito de catallis nunquam dicetur quòd ei debet Also if a writ of debt be brought by executors upon a dutie due to their testator the writ shall be quòs eis detinet and not debet detinet because they were not partie to the contract so likewise if a writ of debt be brought against executors by the creditor upon a dutie by their testator the writ shall be quos ei detinent and not debent detinent albeit he demand money as 20 l. or any other sum Annuity 8 In a writ of annuitie the form is Quem ei debet F. N. Br. 152. a. when any thing that is not money is demanded It is otherwise in an action of debt Non est factum for if it be for money the demand shall be in the debet but if it be for any thing else it shall be in the detinet and not in th debet And in debt also if a man demand money and ten quarters of wheat then the forme of the writ shall be Praecipe A. quòd justè c. reddat B. decem libras c. quas ei debet decem quarteria frumenti quae ei injustè detinet c. 9 If a man be taken in execution by the Sheriff upon a ca. sa and the Sheriffe takes bond of him for his apperance and rendring himselfe true prisoner Pl. Co. 66. a. Dive and Manninghams case contrary to the Statute of 23 H. 6. 10. In an action of debt brought by the Sheriff against the obliger it is no apt conclusion for the obliger to say judgement se action but he ought to conclude with nient son fait for the Statute saith if an obligation be taken in another forme then is conteined in that Statute that it shall be void and if it be void it was void from the beginning and therefore never his déed Vide plus ubi suprà F. N.Br 151. g. 10 When a writ of Customes and services is in the right onely Customes and services then the demandant shall count of the seisin of his Ancestor and the writ shall be in the debet onely but when he comes of his owne seisin then the writ shall be in the debet solet Co. Inst 1. 291. a. 11 If A. be accountable to B. and B. releaseth him all his duties Accompt Release this is no barre in an action of accompt for duties extend to things certain and what shall fall out upon an accompt is uncertain And albeit the latin word is debita yet duties do onely extend to all things due which be also certaine And therefore dischargeth Iudgements in personall actions and executions also F. N.Br 8. c. 12 Where a feme is endowed of parcel of her Dower Dower and would demand the rest against the same tenant and in the same town In this case for the recovery therof she shall have a writ of right of Dower and not a writ of Dower undè nihil habet for the words of this writ will not serve because she hath already received part of her Dower And therefore she must of necessitie sue a writ of right of Dower to recover the residue Co. l. 11. 55. a. 4 in Edward Lawes case 13 An Ejectione firmae lyeth not of a Close Ejectione firmae although it hath a certaine name as Dovecot Close conteining three acres but it ought to be of so many acres and ought also to shew of what nature those acres are as Land Meadow Pasture Wood c. and the certainty ought to be comprised in the Court because he shall recover the possession by Habere facias possessionem and shall ensue the form of other writs of like nature as a Writ of ward or Ejectment de guard or the like shall not be of a Close by a certain name but ought to be by the certainty of acres conteining withall the quality of the soile as Land Meadow Pasture Wood c. 12 Nomina si nescis perit cognitio
Lease of the same land for 20 yeares rendring rent the terme to begin after the death of Lessée for life afterwards Lessée for life grants his estate to the Lessor who during the life of the tenant for life makes feofment to a stranger in fée who suffers a recovery and Lessée for life dies and for the rent avowry was made by the recoverors and the question was whether or no the rent was extinct by the feofment and the better opinion séemes to be that it was not extinct because it was not in esse at the time of the feofment made Abbot c. disclaim barre to the successor 8 If an Abbot Prior Bishop Co. Inst pars 1 103. a. 1. or other sole Corporation levie a Fine or acknowledge the Action in a Praecipe quòd reddat the Successor shall be bound pro tempore but he may have a Writ of Right and recover the land Howbeit in a Quo warranto at the suit of the King against an Abbot Bishop or c. for Franchises and Liberties if the Abbot c. disclaime in them this shall bind the Successor So likewise if an Abbot c. acknowledge the Action in a Writ of Annuity this also shall binde the Successor because he cannot falsifie it in an higher Action Vide suprà M. 1. case 4. 24 Nemo potest plus juris ad alium transferre quà m ipse habet Co. Inst pars 1 265. a. 2. Littl. § 446. 1 These words which are commonly put into releases A release before interest void viz. quae quovis modo in futurom habere potero are as void in Law for no right passeth by a release but the right which the Releasor hath at the time of the release made And therefore if there be father and sonne and the father be disseised and the sonne living the father releaseth by his déed to the disseisor all his right which he hath or may have in the same tenements without clause of Warranty c. and after the father dieth c. The sonne may lawfully enter upon the possession of the dissessor because he had no right at all at the time of the release made all the right being then in the father and therefore in this case after the decease of the father the sonne may enter into the land against his owne release for Nemo potest plus juris c. Co. ibid. 275. b. 3. 2 If Tenant in Fée simple being disseised by two release to one of his disseisors Release to disseisors enures onely to one of them he to whom the release is made shall hold out his Companion because the right of the disseisée and the estate gained by the dssseisor are of equal extent viz. both in Fée simple but if Tenant for life be disseised by two and he release to one of them this shall enure to them both because Tenant for life by his release can but convey unto them his own estate and by consequent he to whom the release is made hath a longer estate than he that releaseth and therefore such a release cannot enure to him alone to hold out his companion For then should the release averre by way of entry or grant of his estate and consequently the disseisor to whom the release is made should become Tenant for life and the reversion revested in the Lessor which strange transmutation and change of estates in this case the Law will not suffer Co. ibid. 276. a. 3. 3 If two Ioyn-tenants in Fée simple be disseised by two By Joyn tenants good onely to one and one of the disseisées releaseth to one of the disseisors all his right he shall not hold out his companion because he had but power to release a moity Co. ibid. 309. b. 2. 4 If the Conisée of a fine before any attornment No distress by déed indented and inrolled bargaineth and selleth the Seigniory to another here the Bargainée shall not distreine because the Bargainor could not do it Co. ibid. 314. a. 3. Littl. § 562. 5 If there be Lord and Tenant A Seigniory suspended and the Tenant make a Lease to a man for terme of his life saving the reversion to himselfe and the Lord grant the Seigniory to the Tenant for life in fée and lie in the reversion attorne as he ought c. In this case some think that the Tenant for life cannot grant the Seigniory over because he took it suspended 5 E. 3. Twongs case and it was never In esse in him but if the tenant make a Lease for life for or years to the Lord there the Lord may grant it over because the Seigniory was In esse in him and the Fée simple of the Seigniory was not suspended but if the Lord disseise the Tenant or the Tenant enfeoffe the Lord upon Condition there the whole estate in the Seigniory is suspended and therefore in that case he cannot during the Suspension grant over his Seigniory Littl. § 619. Addition but approved for law per Cooke Co. Inst pars 1 332. b. 4. 6 If Tenant in taile let this land to another for yeares No disconâ—nuance and after grants the reversion to a third person in fée and the Tenant for yeares attornes to the Grantée and the terme is expired during the life of the Tenant in tail whereupon the Grantée enters and after the Tenant in taile hath issue and des In this case this grant of the reversion makes no discontinuance Co. Inst pars 1 332. b. 4. notwithstanding the grant is executed in the life of the Tenant in taile because at the time of the Lease made for terme of yeares no new Fée simple was reversed in the Lessor but onely the reversion of the estate taile remained in him in like sort as it did before the Lease made Joyn-tenants grant moities 7 If there be two Ioyn-tenants Co. ibid. 337. b. 1. and the one is of full age and the other within age and both they make a feofment in fée and he of full age dieth Here the infant shall not enter into the whole but shall enter or have a dum fuit infra aetatem for the moity onely because no more could passe from him by the feofment An estray 8 If an estray happen within the Mannor of the wife 43 E. 3. 8 10. H. 6. 11. 39. 8. 5. 17. Co. ibid. 381. b. 2. if the husband bie before seisure the wife upon seisure shall have it and not the executors because the property could not be in the husband before seisure and therefore the executors could derive to themselves no title in it from the husband The heir not bound to warranty 9 The heire shall never be bound to any expresse warranty Littl. § 734. Co. ibid. 385. b. 3. but where the Ancestor was bound by the same warranty for if the Ancestor were not bound it cannot descend upon the heire And
due of common right and begins by operation of Law and in favour of tillage so that none need prescribe in it as it is held in 4 H. 6. and 22 H. 6. as a man should if it were against common right And this is the reason that it is onely appendant to ancient arable land Hide and Gaine and onely for Horses Oxen Cowes and Shéep whereof the first two serve to till the land the other to compasse it And therefore it is against the nature of such Common to be appendant to Meadow or Pasture and if a man will prescribe to have Common belonging to a Mease Meadow and Pasture this cannot be Common appendant but appurtenant unlesse he having Common appendant belonging to land hath of late time peradventure built an house upon it and converted it to Meadow and Pasture for his conveniencie and the better advancement of tillage which was the original cause of the Common For in this case the Common remaines appendant and it shall be intended in respect of the continual usage of the Common in such manner that at the beginning all was arable but in pleading he ought to prescribe to have it appendant to the land c. Co. l. 4. 117 118. Actons case 18 The Baroness of Monteagle in her widoow-hood reteins one Cartmel to be her Chaplein according to the Stat. of 21 H. 8. A Baroness may retein Chaplains in her widdowhood Cartmel hath the benefice of Claycotton above 8 l. per annum the Baroness takes to husband band the Lord Compton and afterwards Cartmel having obtained a dispensation with Confirmation c. is admitted instituted and inducted to the vicarage of G. Here because Cartmel accepted of the vicarage when the Baronesse was covert Baron being maried to one not under the degrée of a Baron for in case of such mariage a Proviso of that Statute saves the priviledge of a Baronesse the question was whether the first benefice was not void And it was resolved that Cartmel after the mariage might have a dispensation and hereupon might have another benefice without danger of losing the first for although a Baronesse maried to a Péere cannot during the Coverture retaine a Chaplain yet when a Baronesse being a widdow hath retained one or two Chaplains according to the Statute this retainer is the principal matter which at first had good beginning and so long as the Baronesse continues a Baronesse the Chaplains may well accept two benefices by the expresse letter of the act for it sufficeth that at the time of the retainer the Baronesse was a widdow because by that the expresse words being widdow are satisfied Co. l. 6. 43. b. Blakes case 19 Eden brings a writ of Covenant against Blake for not repairing an house Accord with satisfaction good plea. the Defendant pleads accord betwixt him and the Plaintife and execution of it in satisfactione c. decasus reparationum praedict upon which the Plaintife demurres Here albeit it was objected that this action of Covenant being founded upon the Déed could not be discharged without matter of as high nature viz. by Déed and not by any accord or matter in pais yet it was resolved per totam Curiam that the plea of the Defendant was good For there is a diversity when a duty accrues by the Déed in certainty tempore confectionis scripti as by Covenant Bill or Obligation to pay a summe of money here this certaine duty takes his essence and operation originally and onely from the writing and therefore ought to be avoided by matter of as high nature viz. by writing but when no certaine duty accrues by the Déed but a wrong or default subsequent together with the Déed do give action to recover damages which are onely in the personalty for such wrong or default accord with satisfaction is good plea. Co. l. 7. 10. a. 1. Vghtreds case Pl. Co. 32. b. 3. Colthrist and Bevisham per Hinde 20 In all cases when an interest or estate commenceth upon a Condition precedent there the plaintife ought to shew it in his count Conditions precedent and subsequent and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed It is otherwise when the interest or estate passeth presently by vesting in the Grantée and is to be defeated by matter ex post facto or Condition subsequent for there the Plaintife may count generally without shewing the performance of it and the Condition or matter ex post facto shall be pleaded onely by him Co. l. 9. 25. b. 3. In the case of the Abbot de Strata Mercella 6 E. 3. 32. Jo. Darcies case 30 H. 8. Dy. 44. 4◠E. 3. 32. 43 Ass Pl. 10. 1 2. Ph. M. Dyer 108. that will take advantage of it Vide suprà 21. 36. 21 When the King grants any Priviledges Liberties Franchises shall not die Franchises c. which were such in his own hands as parcel of the flowers of his Crowne such as are Bona cattalla felonum fugitivorum utlagatorum c. bona cattalla waviata extrahur ' deodanda wreccum maris c. within such possessions Here if these come againe unto the King they are drowned in the Crowne and he hath them againe in jure Coronae but when a Priviledge Libertie Franchise or Iurisdiction was at the first erected and created by the King and was no such flower before in the Garland of the Crowne here by the accession of them againe to the Crown they are not extinct nor the appendance of them severed from the possession As if a Faire Market Hundred Léet Parke Warren or the like are appendant to Mannors or in grosse and after they come againe to the King they remaine as they were before in esse not drowned in the Crown for at first they were created and newly erected by the King and were not in esse before time and usage having made them appendant And this diversity was agréed per totam Curiam 11 H. 4 5. 15 E. 4. 7. 4 E. 3. 42. 10. H. 7. 21. A Charter to be interpreted as the law was when it was made 22 When an ancient grant is general obscure or ambiguous Co. ibid. 28. a. 3 it shall not be now interpreted as a Charter made at this day but it shall be construed as the law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record 33 Hen. 6. 22. 10 Hen. 7. 13. 14. 16 Hen. 7. 9. 12 Hen. 4. 12. 14 Hen. 6. 12. 35 Hen. 6. 54. 9 Hen. 7. 11. 6 E. 3. 54 55. 7 E. 3. 40. 41. 18 E. 3. Conisance 39. 34. Ass 14. 40. Ass 21. A Coparcener being outlawed by the other parceners shal hold as before 23 If there be two Coparceners and the one disseiseth the other
thereof in futuro being void at the beginning for quod ab initio non valet tractu temporis non convalescet Co. l. 2. 57. Beckwiths case 19 A Feme Inheretrix covenants by Indenture without the knowledge A void sine or consent of the Baron to acknowledge a Fine to certain Conisées and uses in the said Indenture mentioned and afterwards the Baron covenants also by Indenture without the knowledge of the Feme to acknowledge a Fine to other Conisées and uses in that Indenture also mentioned and afterwards the Baron and Feme joyne in a fine to the Conisées in the Indenture of the Feme mentioned Here the Limitations and Declarations of Vses in both the Indentures are void and the said Fine was by construction of Law to the use of the Feme and her heires as if no use at all had béen declared for the Feme alone albeit she be owner of the land yet being sub potestate viri cannot in respect of her Coverture without her Baron limit the use and on the other side the Baron who hath not any estate in his own right cannot against the good liking of the Feme limit any use because he is not owner of the land so that the one is not sui juris and hath the estate and the other is sui juris and hath not the estate And therefore when they differ in limitation all they do must needes be void A void deed or contract 20 When a Déed hath two deliveries Co. l. 3. 35. b. Jennings and Brags case in Butler and Bakers case if the person at the first delivery had power and ability in Law to contract but could not perfect it untill an impediment should be removed before the second delivery in that case the contract is good as if the Disseisée make an Indenture purporting a Lease for yeares and deliver it to a stranger out of the land as a scroul and command him to enter into the land and to deliver it upon the land as his Déed to the Lessée which is done accordingly this is a good Lease But if the person at the first delivery had not power or ability in Law to make the Lease or Contract and before the second delivery he attains to such power there the Lease or contract is not good as if at the time of the first delivery the Lessor be an Infant or Feme covert and at the time of the second delivery they become of full age or sole in both these cases the Déed doth not bind because at the time of the first delivery they were not persons that had ability in Law to make a Contract A void joynture 21 If the Baron make feofment in fée to the use of himselfe for life Co. l. 4. 2. b. 1. Vernons case and after to the use of B. for his life and after to the use of the Feme for life for her Ioynture that is not within the Statute of 27 H. 8. cap. 10. to barre the Feme of her Dower albeit B. die living the Baron So also if the estate be made to A. for life and after to the Feme for her Ioynture neither is that within the Act although A. die before the Baron for in these and the like cases in as much as at the time of the limitation of the estates they were out of the Act for that it was not then certaine that the estate of the Feme should take effect immediately after the death of the Baron as it ought to do by the said Act no subsequent event can make them within the Act For Quod ab initio non valet tractu temporis non convalescet quae malo sunt inchoata principio vix est ut bono peraguntur exitu A failer of Action 22 A. seised of the Mannor of D. in fée had communication with B. of demising the said Mannor unto him C. gives it out Co. l. 4. 18. Sir Gilbert Gerrards case that he had a Lease for 90 yeares in the Mannor whereupon B. desists from taking the Mannor by demise and thereupon A. brings an action of slander against C. And it was adjudged that those words would not beare it And in this case though it appeared by the Defendants barre that he had no title or interest in any such Lease yet because the matter alleadged in the Count did not maintaine the Action the barre could not make it good A grant of tithes not good by misnamer of the tenant 23 Q. Eliz. by Letters Patents grants to I. S. Totam illam portionem Co. l. 4. 35. 4. Bozouns case decimarum garbarum suarum in L. in Com. N. cum omnibus aliis decimis suis quibuscunque in L. in dicto Com. N. tunc vel nuper in occupatione I. C. and grants further that those Letters Patents shall be of force and effect against her selfe and her Successors Non obstante male nominando vel male recitando praedict portionem decimarum c. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus tenentis sive occupatoris c. And all this was found by special verdict and besides that I. C. never had any Tithes in L. in his occupation and thereupon one question was whether the defect of mistaking the Farmer was not supplyed by the non obstante and it was resolved that it was not Because when the words of the grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there a non obstante cannot make the grant good for when the Queen grants Totam illam portionem c. nuper in tenura I. C. here the addition of I. C. is of the substance of the grant and in as much as I. C. never had the portion in his occupation the grant must néeds be void ex vi termini and therefore the non obstante cannot make it good Co. l. 4. 62. b. 4. Herlakendens Case 24 If I let my land for life and after give the trées A void grant of trees and after the Lessée dies yet the Donée cannot take them because at the time of the grant the Lessée had the property in them as annext to the land 21 H. 6. 46. d. per totam Curiam Co. l. 4. 90. a. 3. Druries case Stat. 21. H. 8. 13. 25 If a Countesse that by the Statute may retaine two Chaplains capable of dispensations to enjoy two benefices doth first retaine two and after a third Reteiner of a Chaplain void the two first are onely capable of dispensations for they onely are her Chaplains according to the Statute and the other at the Common Law And therefore in this case if the two first die yet is not the other capable of a dispensation because at the time of his retainer he was not capable for he ought to be newly retained again to make him capable
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription â—ase of Deâ—esnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed â—hattel vestâ—â— 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. â—opiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law â—ontract imâ—orts an Asâ—umpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. â—xchange imâ—orts warranâ—â— and a conâ—ition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
is attainted of Felony the bloud on his part being corrupted the sonne as it séems to him hath but halfe the inheritable blood in him without corruption viz. the bloud of the mother and therefore he holds that such a sonne shall not be inheritable no not to his mother And with this agrées Bracton lib. 3. cap. 13. Non valebit felonis generatio nec ad hereditatem paternam vel maternam Si autem ante feloniam generationem fecerit talis generatio succedit in haereditatem patris vel matris a quò non fuerit felonia perpetrata because at the time of his birth he had two lawful blouds commixed in him which could not be corrupted by the attainder subsequent but onely as to him that offended See more of this matter Co. Inst pars 1. 8. a. Co. l. 11. 39. a. 4. in Metcalfs case 2 In an action of Accompt upon the judgement quod Computet No writ â—â—or befoâ— whole â—ment câ—â—pleated before the final judgement given for the arrerages and damages a writ of Error lyeth not for in that writ these words Si judicium inde redditum sit c. are meant not onely de principali judicio but also de integro judicio viz. When all the matter within the original is determined as in 34 H. 6. 18. in Humphrey Bohuns case in a Quare Impedit brought against two the one pleads to issue and the other confesseth the action upon which confession judgement is given and he against whom the judgment was given sues his waie of Error to remove the record into the Kings Bench but Prisot and the whole Court denied it because the writ of Error was to rehearse all those which were parties to the original writ and then the writ saith Et si judicium inde redditum sit tunc Recordarium illud habeatis c. By which it appears that the record shall not be removed by writ of Error before the whole matter be determined 〈◊〉 like 3 A writ of Trespasse is brought against two Co. ibid. b. 1. and the one appears and pleads so that he is attainted of the trespasse and judgement is given against him In this case the Defendant shall not have a writ of Error before the matter be likewise determined against the other c. The Lord Cromwels case against Cawary and others per Prisot tempore H. 6. 〈◊〉 like 4 In trespasse by the Lord of S. against one for his Cattle taken Co. ibib b. 2. 32 H. 6. 5 6. b. as to parcel the Defendant pleads not guilty and as to the rest he pleads another plea whereupon the Plaintiff demurs and after the issue was found for the Plaintiff upon which he had judgement In this case the Defendant shall not have a wait of Error until the whole matter be determined c. 〈◊〉 like 5 A man cast in a writ of Error upon a Iudgement given Co. ibid. b. 3. 39 H. 6. Error 11. where the judgement was given of the Principal and damages but not of the Costs Howbeit the writ was rejected because the writ is conditional Si judicium inde redditum sit c. 〈◊〉 like 6 In Formedon brought by Fitz-williams against Copley Co. ibid. b. 3. 12 Eliz. Dyer 291. the Demandant hath judgement of part c. And after the Tenant brings a general writ of Error before the discussion of the residue earnestly desired that the record might be removed into the Kings Bench but the Court would not grant it before the whole matter in demand should be determined for the Iustices of the Kings Bench should procéed without warrant if they should procéed upon a matter which is not determined and whereupon no judgement is given and the whole record ought to be either in the Common Pleas or in the Kings Bench also the original is intiâ—â— and cannot be here and there too c. 〈◊〉 Impe. 7 The next Advowson is granted to two Dyer 279. 8. 11 Eliâ— who joyn in a Quâ—â—e Impedit the one dies this shall cause the writ to abate 〈◊〉 not inheâ—blâ— 8 Baron and Feme being Donées in special tail Dyer 332. 27. 16 Eliz. the Baron is attainted of treason and executed having issue the Feme dies the issue shall not have the land for he ought to make his conveyance by both per Curiam â—ard 9 If an award be made for the performance of divers things on one side and nothing to be performed on the other it is a lame award Hob. 49. Nichol's case and void according to the book of 7 H 6. 10 A. brings an action of trespasse against B. C. and D. B. pleads not guilty whereupon issue was joyned C. and D. make a justification â—ob 70. Parkers case and thereupon after a replication a demurrer was joyned Hanging this demurrer the issue was tried against B. and damages given and judgement against him after which judgement the Plaintiff entred a Nolle prosequi against the Defendant C. and D. whereupon Error was brought by all the Defendants against the Plaintiff and the Error assigned was for that the Nolle prosequi had discharged all the Defendants but it was held that the Nolle prosequi against C. and D. had not discharged B. and so no error neither yet should C. and D. have joyned in this writ of Error because there was no judgement against them nor they grieved and the writ of Error is Ad grave daâ—â—um c. 68 Ex tota materia emergat Resolutio Co. l. 3. 59. b. 1. in Lincoln Colledg case 1 It is the office of a good Expositor of an act of Parliament to make construction of all the parts together Discontinâ—ance by the husband of 〈◊〉 wives land and not of one part alone by it selfe Nemo enim aliquam partem rectè intelligere possit antequà m totum iterum atque iterum perlegerit For example albeit the first branch of the Stat. of 11 H. 7. c. 20. makes the discontinuance alienation warranty and recovery made by the wife of the Inheritance of her deceased husband to be utterly void and of none effect Yet the clause following being joyned to the first with this conjunctive And that it shall be lawful for any person c. to whom the said Inheritance c. shall appertain to enter c. doth cléerly expound the generality of the words of the precedent branch And therefore the sense of both together is that they shall be void and of none effect by the entry of him unto whom the interest title or inheritance after the decease of the Feme doth appertain Howbeit they shall not be void but stand in force betwéen the parties themselves and against all others save onely against such as have title c. and they onely have power to make them void and of none effect by their entry as aforesaid For estates of Franktenement or Inheritance
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
a man deliver to his servant at Christmas a gold ring to give it for a new years gift to a stranger he may countermand it notwithstanding the gift But if I say that J. S. hath enfeoffed me of certaine land and in recompence thereof I give him this money and withall deliver it to a stranger to be delivered over In that Case I cannot countermand it because this gift doth not take effect as a frée gift but as a satisfaction and interest c. Dier 177. 31. 2 El. 6 The licence granted to Master Bartue to go beyond Sea to recover the debts of Charles Brandon Duke of Suffolke deceased provided Licence not revocable if he should entertain any fugitives of England that then it should cease was not countermandable until he did entertaine fugitives because till then he had the licence in nature of an Interest being indéed granted unto him for a certaine time viz. until the proviso were broken 7 Hob. 1â— Sir Dan. Norton against Simmes the under-shrivewick revocable 101 Matter of substance more then matter of circumstance Co. Inst p. 1. 114. b. 2. 1 In a writ of Mesne the Plaintiffe saith Writ of Mesne Prescription that the Defendant and his Ancestors had acquitted him and his Ancestors c. and upon a special Verdict the Iury found that the Plaintiffs Grand-father bought the land of one Agnes and that before that purchase acquital was used but not since And in this Case it was adjudged both in Banco and afterwards by writ of Error in B. R. that albeit the Verdict was found against the letter of the Issue yet for that the substance of the Issue was found viz. a sufficient title by prescription the Plaintisse should recover his acquital Mâ—dus decimandi So if a modus decimandi be alleadged by prescription and the Iury finds a continuance of the prescription till 20 years and after 20 years a paiment in specie In this Case albeit the Iury finds not the prescription as it is alleadged viz. for the whole time yet for as much as the substance of the Issue is found viz. the prescription that shall not be preiudiced by such cesser for 20 years which is but a circumstance c. For if the matter and substance of the Issue be found it is sufficient Co. ib. 227. a. 4. Co. ib. 154. b. 3 Marton c. 2. 2 If the Mesne recovereth a Rent when it is a Rent-service Mesne Redisseisie and after the Rent becometh a Rent secke by sur-plussage and after the Tenant doth re-disseise him of the Rent In this Case the Mesne shall have a re-disseisin upon the Statute of Morton 20 H. 3. for the substance of the Rent remaines still though the quality be altered Tenant after issue c. So if Tenant in special taile recover in Assise Co. ibidem and after becommeth Tenant in taile after possibility c. and then is re-disseised he shall have a re-disseisin upon the same Statute for albeit the state of inheritance be altered yet the same frée hold remaineth Challenge 3 If there be a Challenge for Cosinage Co. ib. 157. a. 4 he that taketh the Challenge must shew how the Iuror is Cousin But yet if the Cosinage which is the effect and substance be found it suffereth for the Law preferreth that which is material before that which is formal â—ortgage 4 Vpon a Mortgage Co. ib. 212. a. 4 Litt. §. 343. where there is a time and place limited for the payment of the money Although it be payd at a day before it grow due or at another place then which is limited in the déed of mortgage yet if the mortgagee receive it that is sufficient payment for the time and place of payment are but circumstances which shall not prejudice so that the substance viz. the payment c. be performed There is the same Law of an Obligation c. Condition to â—â—lean estate â—o the Wife without impeachment of â—ast 5 If a feofment be made upon Condition Co. ib. 219. b. 4 Litt. §. 352. that the Feoffée shall give the land to the Feoffor and his Wife in taile the remainder to the heirs of the Feoffor and the Feoffor dies before the feofment In this Case Littleton saith § 352. that the Feoffée ought to make an Estate for life to the Wife without impeachment of wast c. And yet if the Wife shall accept of any Estate for life without this clause without impeachment of wast it is good because the Estate for life is the substance of the grant and the priviledge to be without impeachement of wast is a collateral circumstance and onely for the benefit of the Wife and the omission of it onely for the benefit of the heire So likewise if the Wife in that Case take Husband before request made and then they make request and the state is made to the Husband and Wife during the life of the Wife this is a good performance of the Condition albeit the Estate be made to the Husband and Wife where Littleton saith it is to be made to the Wife but it is alone in substance séeing that the limitation is during the life of the Wife c. Obligation made beyond Sea 6 An Obligation made beyond the Seas may be sued here in England in what place the Plaintiffe will Co. ib. 261. b. 4 As if it beare date at Burdeaux in France it may be alleadged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middelsex and there it shall be tried for whether there be such a place in Islington or no is not traversable in that Case because the place where it was made is onely circumstance and not of the substance of the bond c. â—â—do forâ—â— words of â—orme not of â—â—â—stance 7 These words modo forma prout c. are in many Cases but words of form in pleading and not words of substance Litt. §. 483. Co. ib. 281. b. 3 for if a man bring a writ of entry in casu proviso of an alienation made by the Tenant in Dower to his dis-inheritance and counts of the alienation made in fée and the Tenant saith that he aliened not modo forma prout the Demandant hath declared and thereupon they are at Issue and it is found by Verdict that the Tenant aliened in taile or pur d'auter vie In this Case the Demandant shall recover yet the alienation was not in manner as the Demandant had declared And this Rule holds alwayes true when the Issue taken goeth to the point of the writ or Action for then modo forma are but words of forme But otherwise it is when a collateral point in pleading is traversed as if a feofment be alleadged by two and this is traversed modo forma and it is found the feofment of one there modo
the Plaintiffe himselfe confesse that they committed the Trespass severally there the writ shall abate and so observe the diverstty betwixt the finding of a Iury and the confession of the party because this is his own Act but that the Act of the Iurors F. N. B. 11. c. 62 If there be Lord and Tenant Distresse for more Rent then is due justifiable and the Tenant payes the Lord a greater Rent then is due to him and that voluntarily without cohersion of distresse here the Lord having gained seisin of so much Rent may distraine the Tenant for such surplussage of Rent and the Tenant cannot avoid the Lord in his avowry because of the seisin which the Lord had of so much Rent Howbeit he may have remedy by the writ of Ne injuste vepes grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy as it séemes 〈◊〉 none by â—â—ance 63 In a writ of Entry sur disseisin F.N.B. 21. c if the original writ wants these words Quam clamat esse Jus haereditatem suam it is error yet if the Tenant admit the writ and pleads to the action and loseth he shall not assigne this default in the writ for error because he hath admitted the writ by his plea So likewise in a writ of detinue of Charters if the Plaintife in his Count declare not the certainty of the land it is a just cause of error yet if the defendant admit the Count good and pleads to the Action and loseth by judgment in a writ of error sued by him he shall not Assigne this default in the Count for error because he hath admitted it for good by his Plea Tamen quaere â—esentment â— an Advowâ— 64 A man may have an Assise of darrein presentment F. N. B. 13. q. l. albeit neither he nor his Ancestors presented to the last avoidance As if Tenant for life or years or in Dower or by the courtesie suffer an usurpation to the Church c. and die he in reversion that is heire to the Ancestor that last presented shall have an Assise of darrein presentment if he be disturbed But if a man presents and after grants the Advowson for life to another who suffers an usurpation or two or thrée usurpations and dies In this Case at the next avoidance he in the reversion shall not have an Assise of darrein presentment if he be disturbed to present because the Lessée was in by his own Act Howbeit his heire may have it but that is by the provision of West 2. cap. 5. So likewise if a man present to an Advowson and after let if for term of years and then the Church becomes void and the Tenant for yeares presents and after the Incumbent dies and the Lessor presents and is disturbed in this Case it séemes the Lessor shall not have an Assise of darrein presentment causa quà suprà And the termer for years presented in his own right â—â—â—ative 65 If a man hath a Chappel or Chantery Donative F.N.B. 35. e. and he presents once to the Ordinary his Clerke to that Chappel or Chantery In this Case he shall never make Collation afterwards but he ought to present to the Bishop and if he present not within six moneths the Ordinary shall have advantage of the lapss 〈◊〉 utrum 66 If a Parson receive Rent or fealty of the Tenant for the land aliened by his Predecessor he shall not have a juris utrum during his life F.N.B. 50. e. but his Successor may have it Recognisance â—â—charged 67 If the Recognisor enfeoffe a stranger of one parcel of the land charged and likewise enfeoffe the Recognisée of another parcel thereof F.N.B. 104. n. 105. e. and afterwards the Recognisée sues execution against the Recognisor and the other feoffée In this Case the feoffée shall have an Audita quaerela against the Recognisée and thereby discharge his land because the Recognisée hath discharged his parcel of the land by his owne Act. â— warrantia â—â— and â—â—cher 68 If a man be impleaded in any Action F.N.B. 134. i. in which he may vouch the party against whom he hath a warranty in such Case he shall not have a warrantia cartae against him but he ought to vouch him to warranty and if he vouch him not in such Action he shall never after have any action of warrantia cartae against him to maintain his title F. N B. 142. k. 69 If there Lord and Tenant and the Tenant make feofment by collusion and the Lord accept the services of the feoffée In this Case Wardship Collusion the Lord shall not afterwards have the wardship of the Tenants heir nor averre the Collusion F. N. B. 144. 0. 70 If a man be intitled to have a writ of Escheate Acceptance barres Escheate and he accepts the homage of the Tenant in this Case he shall not have a writ of Escheate against him afterwards because he hath accepted him for his Tenant So also it séemes reasonable if he accept fealty of him that in such Case also he shall not have a writ of Escheate Howbeit it is not so of Rent because the former are solemne services which the law respects more then Rent Vide suprà Max. 91. Pl. 19. Pl. Co. 66. a. 2. in Dive and Maninghams Case 71 When a man demurres he is to do it generally Pleading anâ— special demuâ— and not upon any special matter for otherwise he is tied up to that special matter and cannot take advantage of any other error or default in the declaration or other pleading And therefore in Dive and Maninghams Case in the Commentaries where the Defendant concludes unde ex quo scriptum praedictum non fuit factum sub tale conditione quali per Statutum fieri deberet petit judicium Here this special conclusion hath so straightned the Defendant that if the obligation were void for any other cause then what is mentioned in the conclusion the Defendant could not have benefit thereof by Order of Law So also in 34 H. 6. which is there also quoted where one deviseth a reversion of a Tenant for life to another in fée per nomen omnium terrarum tenementorum quae in manibus le Devisor ad tunc fuerunt and the heire of the Devisée brings an Action of waste reciting in his count the special grant ut suprà And the Defendant saith ex quo pro narrationem praedictam apparet that the Devisor did not devise the reversion but by the words ut suprà and the Tenant for life then held the tenements and that nothing of the reversion by the general words passeth to the Devisée and so he demands judgement c. And thereupon the Plaintiffe also demurred And there it was held that in as much as the Defendant had demurred in a point in special and hath rehersed the
of debt against any of them for the rent arreare in his time because otherwise the Executors should be without remedy and Qui sentit commodum sentire debet onus Vide supra 11. and 32. Co. l. 8. 50. a. 3. in John Webs case 39. It seemes incongruous and against reason The Ter-tenant may have an Assize for his own Land that the ter-tenant who is already seised of the land should have a Writ of Novel disseisin concerning the same Land And yet in some cases rather then hee should be left without remedy he shall have it As if the Lord c. distraine his tenant so often that he cannot manure his Land in this case the ter-tenant may have an Assise and the Writ shall be generall but he shall make a speciall Plaint that the Lord c. Sovent fois distraines c. And the Iudgement shall not be Quod querens recuperabit seisinam tenementorum praedictorum for the Plaintiff himselfe is seised of the Land but the judgement shall be that he shall have and hold the Land absque multiplici districtione c. So likewise in casu quo quis poscit alterius separale The ter-tenant shall have an Assise by the common Law And the Statute of West 2. ca. 25. that gives an Assise of Novel disseisin de libero tenemento in such cases is but an affirmance of the common Law for in like manner he shall have an Assise for fishing in his severall Piscary or for Turbary Common c. and the Writ shall be generall as appeares by that Statute but the Plaintiff in his plaint ought to shew that the Defendant claiming common of pasture in his severall with his Cattell disturbs him c. And the Iudgement shall not be that he shall recover the seisin of the tenements c. but that he shall have and hold them in severalty for the Plaintiff himself is already in seisin of the frank tenement In which cases and the like it may be observed that the Iudgement doth not pursue the Writ which regularly it should for then it should adjudge him the Land it selfe which is needlesse because he hath it already Howbeit least he should be without remedy it gives him the Writ by which Land is usually recovered Co. l. 10. 127. b. 3. in Cluâ—s case 40. If the Lessee pay his rent voluntarily before the day Part of the rent seisin albeit this payment be voluntary yet is it not satisfactory as to satisfie the rent not then due Howbeit if the rent or any part thereof be given before the day of payment in name of seisin of the rent this payment shall give sufficient Seisin to have an Assise or other remedy for the rent because the Law delighteth in giving remedies Tenant may bring an action without licence F. N. B. 3. c. 41. If there be Lord and Tenant of a Seigniory in grosse for which the Lord for want of suitors can keep no Court in this case the Tenant may sue in the Kings Court without licence of the Lord because otherwise he should be without remedy and the Lord shall not have â—n action against the Tenant for so doing nor any meanes to annull the Tenants action and in the end of the Writ thâ—se words shall be inserted Quia Dominus remisit curiam suam Tenant in Dower may sue in Co. B. without licence F.N.B. 8. a. b. 42. If the Baron give parcell of his Mannor in taile to hold of him and dye the Feme shall sue her Writ of right of Dower in the Court of the Heire of the Baron against the Donee in tail and the Writ shall be directed to the heire but if the Baron make a gift in tail of all the Land which he hath and dyeth and the Feme is to sue a Writ of Right of Dower of that Land here the heire of the Baron cannot have any Court because he hath but a Seignorie in grosse and therefore in such case she shall have a Writ of Right of Dower against the tenant in tail directed to the Sheriff and returnable in the Common Bench and this clause shall be in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit curiam suam So likewise if the Baron makes a Lease of all his Land for terme of life to a stranger and dye and the Feme is to bring a Writ of right of Dower in such case also the Feme shall have a Writ of right of Dower against the Lessee for terme of life in the Common Bench because the Reversioner hath not any Court And albeit this clause viz. Quia B. Capitalis Dominus c. be put in the Writ yet because the Lord hath one by a seignorie in grosse and hath not any demesne land to hold a Court and albeit the Lord never remitted his Court nor that there is any matter apparant or demurrer in Chancery to prove the assent and will of the Lord to remit his Court yet the Writ returnable in the common Bench before the Iustices there is good and they shall proceed thereupon if the Lord hath not any Court to hold plea upon that matter And it seemes that the Lord shall not have an Action against the Demandant for the suit of that writ in the Co. Ba. if he hath not a court to hold plea thereupon and to do right to the party for if the party might not have liberty to sue in the Co. Ba. in that case she should be left without remedy Howbeit indeed if the Lord had a court to hold plea then he might sue a Writ of Prohibition to the Iustices of the Co. Ba. that they should not proceed upon that Plea but otherwise not A Quare Impeâ—it granted in improper cases 43. If one man hath the nomination to an Advowson F. N. B. 33. b. c. d. e. f. and another the presentation if he name his Clerk and the other that should present present another clerk he that hath the nomination shall have a Quare Impedit and the Writ shall be Quod permittat ipsum praesentare albeit he had but the nomination for otherwise he should be without remedy upon the same reason it is that upon disturbance to one to present to a priory or chantery donative to the King or a Bishop or the like a Quare Impedit lyeth and the Writ shall be Quod permittat ipsum praesentare and yet those words are not proper in such cases but because there is no other Writ hereby the party may have right done him rather than he should be without remedy the Law permits that Writ to be used The like 44. Regularly a man shall not have a Quare Impedit F. N. B. 33. h. i. if he cannot alleadge a presentment in himselfe or in his Ancestor or in some other person by whom he claimes the Advowson yet if a man by the Kings licence make a Parish Church
assurance as by P. should be devised and then he pleads further that he had kept P. discharged and indemnified and sealed a release devised by P. And this Plea was held insufficient for the uncertainty 1. because it should have shewed how the Defendant had kept the Plaintiff indemnified being in the affirmative but if he had pleaded in the Negative not damnified it had been well enough 2. because the Defendant did not shew that the Release concerned the Land An uncertaine covenant to stand seised 32. If I covenant with you Co. l. 1. 176 a. 1. in Milmayes case that in consideration of Fatherly affection and for the advancement of my bloud I will stand seised to the use of such of my Sons or such of my Cousins as you will name upon nomination made the use shall be raised for here the consideration is particular and certaine and the person by matter ex post facto may be made certaine but if I for divers considerations covenant with you that I will stand seised to the use of such an one as you shall name here albeit you name my Son or Cousin yet no use shall hereby be raysed because for the generalty and uncertainty this was void ab initio and no Averment shall make it good or reduce it to any certainty for the intent of the Covenantor was as generall and uncertaine as his words were Neither can the Covenantor in such case reserve power to make Leases for the same reason Uncertaine Grant 33. The King or a common person grants omnia illa messuagia in tenura Johannis Browne scituate in Wells Co. l. 2. 33. a. 3. Doddingtons case whereas in truth they lye in D. in this case the Grant is void for the uncertainty Error 34. In Error Co. l. 3. 2. a. The Marquesse of Winchesters case the Record of a Recovery was of the Mannor of Merleston cum pertin and the Writ of Error was to remove a Recovery of the Mannor of Merleston in Merleston cum pertin this is no good removall of the Record for the uncertainty because the true Record was not removed Tamen quaere Remainder in contingency 35. If A. make a Feoffment to the use of B. untill C. shall returne from Rome into England Co. l. 3. 2. a. 4. in Bonastons case and after such returne from Rome into England to remaine over in fee this Remainder is void for the contingency and uncertainty it being altogether uncertaine whether or no C. will ever returne from Rome into England for when a Remainder is limited to take effect upon the doing of an Act which Act shall be the determination of the particular estate here if the Act depend upon a casualty or a meere uncertainty whether it will ever happen or no in such case the Remainder depends upon an uncertainty and in contingency and therefore shall not vest presently Casualties not devisable 36. If the King grant to one and his heires Co. l. 3. 32. b. 3. Butler and Bakers case bona Catalla felonum fugitivorum or utlagorum fines amerciamenta c. within such a Town or Mannor In this case he cannot devise them to another nor leave them to descend for a third part according to the Statutes of 32. 34 H. 8. of Wills because the yearly value of such Hereditaments is altogether uncertaine and therefore they are usually called casualties Dower 37. If Lands be conveyed to a Feme before marriage for part of her joynture Co. l. 4. 3. a. 3. in Vernous case and after marriage more Land is conveyed unto her for her full joynture and in satisfaction of all her Dower and after the Baron dyes in this case if the Son waive the Land conveyed unto her after marriage she shall have the Land conveyed unto her before the coverture and her Dower also in the residue for Land conveyed to a Feme for part of her joynture or in satisfaction of part of her Dower is no bar of any part of her Dower for the uncertainty So if a Debtor give to the Creditor an Horse or any other thing in satisfaction of part of his debt this shall be a bar for no part thereof for the uncertainty Sander 38. In slander Co. l. 4. 17. b. 1. Iames and Ruâ—lech case both the person and scandalous words ought to be certaine and apparent and not to want an innuendo to make them out as when two are talking together of I. S. and one of them saith he is a notorious theife in this case I. S in his count may shew that there was speech of him betwixt them and that the one said of him He innuendo pred I.S. is a notorious Theif for the Office of an Innuendo is to design the same person which was named in certaine before and in effect standeth in the place of a Predict But an Innuendo cannot make that person certain which was uncertaine before as if one say without any precedent Communication that one of the Servants of I.S. he having divers is a notorious Felon or Traitor c. here for the uncertainty of the Person no Action lies and an Innuendo cannot make it certaine so if one say generally I know one neer about I.S. who is a notorious Theife and the like And as an Innuendo cannot make the person certain which was uncertain before so an Innuendo cannot alter the matter or sense of the words themselves as if one speaking of I.S. saith He is full of the Pocks here the Plaintiff cannot say Innuendo the French Pocks for thereby he strives to extend the generall words The Pocks to the French pocks by imagination of an Intent which was not apparent by any precedent words which the Law will not suffer for the uncertainty for it would be inconvenient that Actions should be maintained upon a meer imagination of an intent which appears not by the words upon which the Action is grounded but is altogether uncertaine and subject to a loose conjecture Co. l. 4. 35. a 4. in Bozomes case 39. The Queen grants Totam illam portionem decimorum Grant of tithes c. in D. nunc vel nuper in tenura Io. Corbet and Corbet never had Tithes there this Grant is void for the uncertainty in the case of a common person A fortiori in the Queens Co. l. 4. 40. b. 3. in Yonges case 40. In an Indictment there was this expression Indictment insufficient Unam plagam mortalem circiter pectus and it was adjudged insufficient for the uncertainty for it might be in the neck in the arme or in the belly and an Indictment ought to expresse in certaine as well in what part the mortall wound is as the depth and breadth of it to the end it may appeare to the Court to be mortall and because it was said that he dyed De vulueribus plagis praedict and one of them
the one do alien her part See Dyer P. 1 Mar. 98. b. pl. 52. Rolls Records 4 The Rolls of a Court of Record being the Records and memorials of the Iudges of the same Courts Co. ibid. 260. a. 2. import in them such incontrollable credit and veritie as they admit no averment plea or proof to the contrary And if such a Record be alleged and it be pleaded that there is do such record it shall be tried only by it self And the reason hereof is apparent for otherwise as our old Authors say and that truly there should never be any end of Controversies which would be inconvenient Howbeit during the Term wherein any Iudicial act is done the Record remaineth in the brest of the Iudges of the Court and in their remembrance and therefore in such case the Roll is alterable during that term as the Iudges shall direct but when that term is past then the Record is in the Roll and admitteth no alteration averment or proof to the contrary Fines 5 At the Common Law before the Statute of Non-claim 34 E. 3. cap. 16. after a fine levied of land Co. ibid. 262. a. 1. Littl. §. 441. if a stranger having title thereunto had not made claim within a year and a day after such fine he had béen barred for ever and the reason thereof was alleged to be Quia finis finem litibus imponebat but this is now helped by the Statute of 4 H. 7. 24. which gives 5. years after the fine and proclamations Extent 6 Before the Statute of 32 H. 8. 5. Co. ibid. 290. a. 4. Co. l. 5. 87. a. 3. in Blumfields case if an extent had been insufficient in Law there might have issued out a new extent But it appears by the Preamble of the said Statute and also by divers Books and resolutions of the Iudges that before that Statute after a full and perfect execution had by extent returned and of Record there could never be any re-extent upon any ejection And there are many inconveniences yet which are not remedied by that Statute for which see Co. ibid. fol. 289. 290. Vide supra 32 21. â—udgement final 7 Where the judgment is to be final Co. Inst par 1. 294. a. 4. there the Oath of the Grand Assise or Iury ought to be absolute and not to their knowledge as in a writ of right when the Mise is joyned upon the méer right or in an Attaint or in wager of Law for the judgement in every of these thrée is final Judgement in a Grand Assise 8 In a writ of right when the Mise is joyned upon the méer right Co. ibid. 295. b. 2. and the tenant tenders a Demy mark that the grand Assise may also inquire whether the demandants ancestor were seised in the time of the King as he had Counted In this case albeit the verdict of the Grand Assise be given only upon this last point yet judgement final shall be had thereupon so it is likewise if the tenant after the Mise joyned make default or confess the action or if the demandant be non sute and yet in none of these cases they of the Grand Assise give their verdict upon the méer right but the reason is because the Law aims at peace and quiet and that there might be an end of sutes and controversies Vide F. N B. 5. n. Hea. 9 Every plea that a man pleadeth ought to be triable for that without trial the cause can receive no end Et expedit reipublice c. Co. ibid. 303. b. 1. Co. ibid. 369. b. 1. 10 If there be tenant for life the remainder in fee by lawfull and just title Pretenced titles he in the remainder may obtain and get a pretenced title of any stranger notwithstanding the Statute of 32 H. 8 9. not only because the particular estate and the remainder are all one but for that it is a means to extinguish the seeds of troubles and sutes and cannot be to the prejudice of any Co. l. 4. 15. b. 1. in Stanhop Blithes case 11 If one tell another that he is perjured Slanderous words or that he hath forsworn himself in such Court these words are actionable because by these words it appears that he hath forsworn himself in a Iudicial proceeding but words of heat and passion as to say to one that he hath forsworn himself or that he is a Villein Rogue Varlet or the like by these or such like words an action ought not to be maintained for Boni Judicis interest lites dirimere And the rather because such frivolous actions are now more frequent than they have been in former ages Et malitiis hominum est obviandum Vide 188. 1. Co. l. 5. 77. b. Samons case 12 The plaintif and defendant submit themselves to the arbitrement of A. who awards that the defendant shall enter into bond Arbitrement that the plaintif and his wife shall enjoy certain lands quietly this award is void because the uncertainty of the sum wherein the defendant shall be bound may be an occasion of a new sute and controversie for that the Arbitrator not naming the sum he cannot assign his power to the plaintif defendant or any one else to do it Co. l. 5. 91. b. 3. in Semayns case 13 When any house is recovered by any real action Seisin or possession by the Sherif or by Ejectione firmae the Sherif may break open the house and deliver the seisin or possession thereof to the demandant or plaintif for the words of the writ are Habere facias seisinam or possessionem c. because otherwise there would be no end of such sutes and after judgement it is not in right and judgement of Law the house of the tenant or defendant Co. l. 6 7. a. in Ferrers case 14 When one is barred in any action real or personal by judgement upon demurrer confession verdict Barr in actâ—ons c. he is barred as to that or the like action of the same nature for the same thing for ever for Expedit Reipublicae c. Vide supra 93 9. Co. l. 6. 9. b. 1. in Ferrers case 15 At the Common Law before the Statute of Marlebridge Writ of Entry in the Post cap. 29. if land had been conveyed out of the degrees so as the demandant could not have a writ of Entry in the per or in the per and cui the demandant was put to his writ of right for there was no writ of Entry in the Post before it was given by the said Statute And the reason why the law was so before that Statute was quod sit finis litium and that he that right had should not be negligent but take his remedy by writ of Entry before there should be more than two alienations Co. l. 6. 45. a. 3. Higgens case 16 In debt upon an obligation the
further by the same deed that the grantee may distrain for the same rent in the tenancy Here albeit a distress were incident to the rent in the hands of the Grantor and although the tenant attorn to the grant yet cannot the grantee distrain for the distress remaining as an incident inseparable to the Seigniorie the tenant should then be subject to two several distresses of two several men which would be oppressive and inconvenient So it is likewise if the Lord in that case grant the rent in tail or for life saving the fealtie and further grant that the grantee shall distrain for it Here also albeit the reversion of the rent be a rent service yet the donee or grantee shall have it but as a rent seek and shall not distrain for it Coperceners 16 Estovers appendant to freehold Corodie uncertain Homage Co. ibid. 164. b. 4. Fealty Piscary uncertain Common sans number or the like shall not be divided between Coperceners for that would be a charge to the tenant of the soil The Lord Mountjoyes case 17 The Lord Mountjoye seised of the Manor of Canford in see Co. ibid. did hy deed indented and inrolled bargain and sell the same to Browne in fee who in the deed covenants that the Lord Mountjoye and his heirs shall digg ore and turf in the wastes of the said Manor And in this case thrée points were resolved 1. That this did amount to a grant of an Inheritance to the Lord Mountjoye 2. That notwithstanding this grant Browne and his heirs might dig also and like to the case of Common sans number 3. That the Lord Mountjoye might assign his interest to one two or more but then if it were to two or more they could make no division of it but work together with one stock neither could the Lord Mountjoye c. assign his interest in any part of the waste to one or more for that might work a prejudice and a surcharge to the tenant of the land And therefore if such an uncertain Inheritance descendeth to two Coperceners it cannot be divided between them Causâ quâ suprâ Tender of â—ebt in court 18 If an Obligation of 100 l. be made with condition for payment of 50 l. at a day and at the day the obligor tender the money Co. ibid. 207. a. 3. and the obligee refuseth the same yet in an action of debt upon the obligation if the defendant plead the tender and refusal he must also plead that he is yet ready to pay the money and tender the same in Court because the 50 l. are parcel of the obligation and not perishable but if a man be bound in 200 quarters of wheat for the delivery of 100 quarters if the Obligor tender at the day the 100 quarters c. he shall not plead uncore prist because albeit they are parcel of the obligation yet they are bona peritura and it is inconvenient and a charge for the Obligor to keep them Littl. §. 419. Co. ibid. 253. b. 19 Before a man can bring his action for the recovery of lands Entry and Claim whereunto he hath title or right the Law requires that he first make his entry and claim his right or title upon the land which entry gives him possession and seisin of the same and where he may enter a bare claim from off the land will not serve to give him seisin thereof yet if by reason of menacing words lying in wait in the way with weapons or the like he dare not enter upon the land in such case the Law gives him this liberty that if he claim his right as near the Land as he dare go for fear of such bodily hurt as may cadere in virum constantem that claim shall give him seisin as well as if he had entred upon the land Littl. §. 434. And if the party be sick decrepit or recluse he may do it by his servant c. Littl. §. 440. Co. ibid. 261. 20 The Rule of Law is that where a disseisor dies seised Descent a fuller Enâ—â—y it takes away the entry of him that right hath yet if the disseisee at the time of the disseisin and descent were not in England or the dominions thereunto belonging such descent shal not take away his entry because being beyond sea by intendment he could not have notice of the disseisin and yet without any folly or laches in him he should lose his right which were inconvenient and unjust Co. ibid. 282. b. 3. 21 In an action upon the case the plaintif declared for the speaking of slanderous words which is transitory Action of Slander and layd the words to be spoken in London the defendant pleaded a Concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London The plaintif in his replication denied the Concord whereupon the defendant demurred and judgement was given for the plaintif for the Court said that if the Concord in that case should not be traversed it would follow that by a new and subtil invention of pleading an antient principle in Law viz. that for transitory causes of action the plaintif may allege the same in what place or County he will should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a traverse upon a traverse in that case And the wisdom of the Iudges and Sages of the Law hath alwayes suppressed new and subtil inventions in derogation of the Common Law Vide infra 193. 1. Co. Inst part 1. 315. a. 4. 22 Regularly in all actions an Infant shall have his age Attornment and yet if an Infant have lands by purchase or descent he shall be compelled to attorn in a per quae servitia and no mischief to the Infant at all for when he comes to full age notwithstanding such attornment he may disclaim to hold of him or may say that he holds by lesser services but a great mischief would fall upon the Lord if the Infant should not attorn or his attornment should not be good for then the Lord should lose his services in the mean time So likewise an Infant is compellable to attorn in a Quid juris clamat in case where he is lessee Vide Connys case Co. l. 9. 85. b. 1. Co. ibid. 54. a. 1. 23 A Guardian shall not be punished for waste done by a stranger it is so penal to him Waste because for waste he shall lose the wardship both of the body and of the Land albeit the waste be but to the value of 20 s. and if that suffiseth not to satisfie for the waste then shall he answer damages of the waste over and above the loss of the ward It is otherwise in case of Tenant by the Curtesie tenant in Dower tenant for life years c. for they shall answer for waste done by a stranger
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
therefore if Tenant in taile seised of divisable lands alien them in fée to his brother who afterwards deviseth the same lands to another with warranty against him and his heires and dies without issue This warranty shall not barre the heire in taile of his Formedon because this warranty did not descend to the issue in taile for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time neither yet could he warrant the Lands in his life time in as much as the devise could not take effect till after his death And now because the Vncle in his life time was not bound to warranty such warranty cannot descend from him to the issue in tail c. For nothing can descend from an Ancestor to his heire but that which was first in the Ancestor So likewise if a man make feoffment in fée and bind his heires to Warranty this is void as to the heir because the Ancestor himself was not bound c. Tenant in tail cannot grant any remainder of estate 10 He in the remainde in taile bargains and sels his land Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease and all his estate c. by indenture inrolled c. to I. S and his heirs male c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. c. Here the remainder to the Queen is void for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen because a remainder is but a remnant of the estate of the Grantor and the Queen cannot have any such remnant of estate when he had granted away all his estate before to to I. S. And therefore it was agréed Hill 35. El. in Blithemans case that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life and after his death to the use of his eldest sonne in taile and after this Covenant the Covenantor takes feme and dies in this case the feme shall be endowed for when tenant in taile hath limited the use to himselfe for his own life he cannot limit any remainder over because an estate for his own life is as long as he himselfe can limit by the Law and therefore the limitation of the remainder is void and by consequent the Dower good c. Entty taken away from issue in tail 11 The Baron seised to the use of himself and his wife for life Co. l. 3. 61. a. 3. Lincolne Colledge case and the heires of the body of the Baron dies the issue in the life of the feme then Tenant of the Frank-tenement for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alleadged 4 H. 8. suffers a common rocovery with single voucher by agréement that the recoverors shall enfeoffe Litster and others to divers uses and that the feme shall release to them with Warranty which was done accordingly 11 H. 8. the feme dies after that the issue dies and afterwards his issue in the third degrée enters The question was whether the collaterall warranty shall bind for the recovery came not in question because by the pleading it shall be intended that the issue was seised by another Title then the intaile and so the single voucher not material or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved that the warranty shall bind the Demandant and was not void by that Statute because when the first issue by the common recovery had against him by his own agréement had disabled himselfe to take benefit of the forfeiture given by the Statute after his death another issue claiming from him shall not take benefit of it for if the Ancestor being in esse at the time of the forfeiture could not enter much lesse shall any person which was not in rerum natura nor had the immediate interest Title or Inheritance at the time of the forfeiture ever enter or take benefit of that Act And although there was error in the recovery yet the Warranty of the feme shall barre the first issue of his writ of Error because by his own act he hath barred himselfe of the entry which the Statute prescribes and the like in effect was adjudged in Sir Geo. Brownes case Co. ibid. 51. b. ◠where the issue in tail in the life of his mother having the reversion in fée levies a fine without proclamations for there the issue against his own fine could not enter although it was erroneous Copihod Custome 12 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. 1. Murrel and Smiths case that by the Severance of the Inheritance of the Copihold from the Mannor the Copihold is not destroyed for in as much as the Lord himselfe cannot out the Copiholder no more shall any claiming under him have power to do it because Nemo potest plus juris c. A release by bail not good 13 In debt Marshall was baile for the Defendant Co. l. 5. 70. b. Hoes case Co. Inst pars 1 265. b. 2. and before Iudgement the Plaintife releaseth to Marshall all actions duties and demands and after judgement was given against the Defendant upon whose default Scire facias issued out against Marshall who pleads the said general release but it was adjudged that the release was not effectual to barre the Plaintife because the words of the baile being conditional viz. Si contigit Defend c. non solvere c. there cannot be by the baile any present and certaine duty before judgement given for before that it cannot be known to what summe the debt and damages will amount neither is he that bailes at first bound in any certaine summe but his recognisance being general it shall be reduced to a certainty by the Iudgement A release not good 14 In Trin. 4. El. Rot. 1207. in Com. Banco Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a release of all actions suits and quarrels a covenant before the breaking of it is not released because there is not any cause of action nor any certaine duty before the breaking of it c. Payment of rent by a termor no seisin 15 A. deviseth rent to B. for life out of the Mannor of D. and deviseth the Mannor it selfe to C. for yeares Co. l. 6. 57. a. 4. Bredimans Case C. enters and payes the rent during the term but after the term the Terre-tenant refuseth to pay the rent whereupon B. brings an Assise And in this case it was adjudged by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the
and that it shâ—ll be referred to the Sheriff of Bedford For the returne contained an extent of land in the County of Bedford and none could do thâ—t but the Sheriffe of Bedford and the whole summe of the execution was referred to â—im and that could not be so unlesse the Sheriffe of Bedfoâ—d had â—ade the return c. Release of actions 18 If a man be outlawed in an action personal by processe upon the original and after brings his writ of Error Here if he Co. Inst pars 1 289. a. 2. Littl. § 503. at whose suit he was out-â—awed will plead against him a release of all actions personal that seemes to be 〈◊〉 plea for by the said action he shall recover nothing in the personalty but onely to reverse the out-lawry Howbeit in the same case a release of the writ of Error is a good plea And sâ— note that an action real or personal doth imply a recovery of someâ—hing in the realty or personalty or a restitution to the same buâ— a writ implyeth neither of them c. â—oint and several covenant 19 S. and his wifâ— brings a Action of Covenant against B. upon Covenant made by Indenture triâ—artite Co. l. 3. 18. b. 4. In Slingbies case in which B. Covenants with the Plaintifes and with I. S. and his wife assignatis suis cum quolibet queliâ—et eorâ—m that he was sole seised of the land c. And in a writ of Error in the Exchequer Chamber it was adjudged that the Action would not lie because the other Covenantées ought to have joyned with the other Plaintifes and this diversity was agréed when it appears by the Count that each of the Covenantées hath or ought to have a several interest or â—state there the Covenant by these words cum quolibet eorum is several but when they have a joynt interest there the words cum quolibet eorum are void and signifie nothing As if a man let black acre to A. white acre to B. and gréen acre to C. and Covenant with them quolibet eorum that he is right owner of them c. In this case in respect of the said several intâ—rests by the said words quolibet eorum the Covenant is made several But if he demise thâ—se acres to them joyntly then those words cum quolibet eorum are void for a man by his Covenant unlesse in respect of several interests cannot first make the Covenant joynt and then make it several by those or the like words cum quolibet eorum because albeit divers persons may bind themselves quemlibet eorum and so the Obligation shall be joynt or several at the election of the Obligée yet a man cannot bind himselfe to thrée and to every of them to make it joynt or several at the election of several persons for one and the same cause for that the Court will be in doubt for which of them they should give Iudgement which the law will not suffer as it is held in 3 H. 6. 44. for there one brings a Replâ—vin against two of one oxe who made several avowries each of them by himselfe in his own right and there by the advice of all the Iustices both the Avowries did abate for his inconvenience that if both the issues should be found for the Avâ—wants the Court could not give Iudgement to them severally of one and the same thing c. Vide 11. Co. l 9 96. a. 3. â—n Sir Geo. Reynolâ— case 20 When two distinct matters of Record amount to an office When a Sâ—iâ—â— facias and when not sometimes there ought to be a Scire facias before the King doth seise And sometime not according to the several subject matter As if it be found by Office that the Mannor of D. is holden of the King and it appears also by fine upon Record that the Mannor of D. is aliened in Mortmaine In this case there ought to be a Scire facias in which it may appeare by averrement that it is all one and the same Mannor for they may be two several Mannors of one name and that he that aliened it was thereof seised because both those matters upon record without such averrement will not put the party to answer but when the identity of the thing appeares to the Court and that it cannot be divers there the two matters shall then also amount to an office and the King may seise without a Scire facias As in the case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seal for he being indicted of two voluntary escapes of Felons it was holden per Curiam in B. R. that those words amounted to an Office and that the King was seised without a Scire facias And the reason was because it appeared to the Court that there could be but one Sheriffe in one County and therefore there was no néed of any Scire facias in that case c. Co. l. 7. 26. in Maunâ—ons case 21 In a Quare impedit Advowson â—tron when the Advowson is likely to come in question the writ shall abate unlesse the Patron be therein named but when the presentation onely is to be recovered and not the Advowson neither yet the Patron to be put out of possession In that case the Writ is adjudged good without naming the Patron c. 7 H. 4 25. 27 Co. Inst pars 1 52 a. 3. 22 If Lessée for life make a Déed of Feofment Livery by the Lessor and a Letter of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding all that he shall enter for the forfeiture but if Lessée for yeares make a Feofment in Fée and a letter of Attorney to the Lessor to make Livery and he maketh Livery accordingly this Livery shall bind the Lessor and shall not be avoided by him for the Lessor could not make Livery as Attorney to the Lessée because he had no Fréehold whereof to make Livery but the Fréehold was in the Lessor c. 23 If Tenant in taile make a Lease for yeares of lands Fine by Tenant in taile and after levie a fine Câ—â—â—id 332. b. 3. this is a discontinuance for a fine is a feofment of Record and the Fréehold passeth but if Tenant in Taile maketh a Lease for his own life and after levie a fine this is no discontinuancâ— because the reversion expectant upon a State of Freehold which lyeth onely in grant passeth thereby c. 24 Vide Max. 101. Pl. 7. â—orcible Entry â—â—taint 25 If a writ of forcible entry and detainer be brought against A. and five more and the Iury find all guilty of the forcible entry Dyer 141. 45. 3 4 P.M. and onely A. of the detainer in this case if the verdict be false albeit the original writ be intirely brought against all yet the six shall
and his heirs and the Lord admit A. accordingly Tenendum per antiqua servitia inde prius debita de jure consueta or to the like effect and A. commits forfeiture in Black acre he shall forfeit onely that and neither of the other For the said Tenendum reddendo singula singulis continues the severall tenures In like manner if divers several Copiholds escheat to the Lord and he re-grant them to another Tenendum per antiqua servitia c. they shall be severally holden as they were before the Escheat c. Several times for several copies 39 If a man hath severall Copihold lands holden by several services Co. l. 4. 28. a. 1. Hubbert and Hamonds case the Lord ought to assesse and demand fines severally for each parcell so severally holden For the Tenant may refuse to pay the fine for one parcell and forfeit it and may pay the fines for the other because every severall tenure hath a severall condition in Law as an incident tacitè annexed unto it And therefore the Lord ought for every severall tenure to assesse and demand a severall fine The office of Shire-clerk incident to the Sheriffs office 40 Quéen Eliz. grants to one Mitton the office of Clerk of the County Court or the Shire-Clerk of the County of Somerset with all fées Co. l. 4. 33. a. 3. Mittons case c. for terme of his life and after the Quéen makes Arthur Hopton High Sheriffe of the same County who interrupts Mitton claiming that which was granted to him as a thing incident to his office of Sheriffe c. And it was adjudged that the County Court and the entring of all the proceedings in it are so incident to the office of Sheriffe that they cannot by Letters Patents be divided from it and albeit the said grant was made to Mitton when the office of Sheriffe was void yet when the Queen makes a new Sheriffe he shall avoid it c. Exigenter incident to the chief Justice 41 Tempore vacationis Co. ibid. 2 El. Dyâ—r 175. of the office of Chiefe Iustice of the Common Banke Queen Mary grants the office of the Exigenter of London to one Scrogges and it was holden void because it was incident to the office of Chiefe Iustice of the County which the Queen could not have And therefore the next Chiefe Iustice shall avoid it c. Gaoles incident to Sheriffs 42 Grants made by the King of the custody of the Gaoles of Counties are void Co. l. 4. 34. a. 1. in Mittons case per touts les justices because the custody of Gaoles of Counties of right do belong are by the Law annexed incident to the office of Sheriff as doth very well appeare by the judgement in Parliament Anno 14 E. 3. cap. 10. by which it is ordained that all Gaoles of Counties shall be rejoyned to the Sheriffs and that the Sheriffs shall again have the custody of the same Gaols as in times past was used and that they should put in such Gaolers for which they would answer c. Where a covenant binds and where not betwixt Lessor and Lessee 43 In a demise of Land when a covenant extends to a thing in esse Co. l. 5. 16. a. 4. Spencers case parcell of the Demise the thing to be done by force of the Covenant is quodam-modo incident and appurtenant to the thing demised and shall runne with the land and shall also binde the Assignée although he be not bound by expresse words But when the Covenant extends to a thing which hath not essence at the time of the Demise made that which hath not essence cannot be said to be incident or annexed to the thing demised and therefore in that case the Assignée shall not be hound to it unlesse specially named As if the Lessée covenant to repaire the houses c. this is parcell of the contract and extends to the supportation of the thing demised and therefore is quodam-modo incident and annexed to the houses and shall binde the Assignée although he be not expresly bound by the covenant But if the covenant be to build a brick-wall upon parcell of the land demised or the like which was not in esse at the time of the demise made but was to be done afterwards this covenant may binde the Covenantor himselfe and his Executors or Administrators but shall never binde the Assignâ—e because the Law will never annex a covenant to a thing which hath not essence c. It is otherwise Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it for then the Assignes are specially named c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years The like and the Lessor covenants with the Lessee to repaire the houses during the terme the Feme takes Baron and dies the Baron shall have an action of Covenant as well upon the covenant in Law by force of these words Demise and grant as also upon the expresse covenant because such a covenant runs with the land and is incident unto it There is the same Law of a Tenant by Statute Merchant or Statute Staple Elegit or of a terme sold by force of an Execution for in that case also the Vendée of the terme shall have an action of Covenant as a thing incident to the land albeit all these come to the terme by act in Law c. So likewise if a man grant to his Lessee for years that he shall have so many Estovers as shall serve to repaire his house or to burn within his house or the like during the term this covenant is as an incident and appertinent that runs with the land in whose hands soever it falls Co. l. 5. 47. a. 2. Franklins case 45 In a general pardon when an offence is excepted all the incidents and dependants thereupon are also excepted whether they be corporall or pecuniary c. Co. lib. 6. 7. a. 1. Wheelers case 46 If the King grant lands in fée Tenendum de nobis Fealty incident thougâ— not named c. per servitiuÌ„ unius rosae rubae annuatim c. solummodo pro omnibus omnimodis aliis servitiis c. This tenure is soccage in chief and in as much as fealty is incident to every Rent-service the Law annexeth fealty unto the said rent and then these words pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add unto the rent so that then the tenure shall be by a Rose and fealty c. Co. l. 6 70. a. 3 Sir Moyle Finches case 47 If there be Lord and Tenant by Fealty and Rent Seigniory eâ—tinct and the Lord disseises the Tenant of the land and makes feoffment in fée by this the Seignory is
second deliverance is a Supersedeas to the Returno habendo by which it is implyed that the Sheriff ought not to serve the Returno habendo Dyer 135. 13. 3 4 P. M. 24 In a Quare Impedit the Plaintiff entitles himselfe to the next avoydance by the grant of the right Patron to a stranger An administration in Law who made two Executors and died and for that the Executors granted the next avoidance to him Et hoc absqueta ostentione literarum without shewing the testament of the first Grantée And in this case it séems he néed not shew them because albeit the Executors never proved the testament yet their grant of the next avoydance was good for that it was an administration implyed by Law Debt for rent 25 A lease for yeares is made of an house with divers Implements rendring rent the Lessor enters and makes feoffment Dyer 212. â—7 4 Eliz. the Lessée re-enters and for rent arreare the Feoffée brings debt and adjudged mainteinable albeit there wâ—â— no privity Howbeit the regresse of the Lessée is an attornment in Lâ—â— whereupon it seemes the Law creates a privity For in this case the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Ejectione Firmae 26 In an Ejectione Firmae of a lease of a Rectory Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff and it was moved in arrest of Iudgement that it was not shewed that the Parson was in life Howbeit because it was averred by Implication in the Court by these words Fuit adhuc est seisitus c. the Plaintiff had judgement Quare Impedit 27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen Dyer 360. 7. 20 Eliz. who presents A. who was admitted instituted and inducted and afterwards the Queen presents B. A. dies the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà and that the Queen presented A. who was admitted and instituted and that the Church is now void by the death of A. And the question was whether or no this was sufficient without saying Inducted And it séemed it was because the Plaintiff alleadged that the Church was void by the death of A. which implies Induction and then it was not revocable 28 Vide Hob. 5. Gardiner against Bellingham 8. Yardly against Ellill 43 Things by reason of another are in the same plight Possessio fratris 1 Albeit the Maxime in Law be Co. Inst pars 1 15. b. 3. Possessio fratris facit sororem esse haeredem yet if the Sister die living the Brother her issue shall inherit before the brother of the halfe blood because he personates the Mother and therefore shall succeed the brother in the inheritance Acceptance of Rent 2 Tenant in taile makes a lease for forty yeares reserving a rent Co. ibid. 46. b. 1. to commence ten years after Tenant in taile dies the issue enters and enfeoffs A. the ten yeares expire the Lessee enters if A. accepts the rent the lease is good for he shall have the fame election that the issue in taile had either to make it good or to avoid it c. Coparceners 3 If there be two Coparceners of a reversion Co. ibid. 53. b. 4. and Waste is committed and the one of them die the Aunt and the Niece shall joyne in an action of Waste Courtesie Dower Waste 4 A Tenant by the Courtesie or in Dower Co. ibid. 54. a. 1. can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth Waste yet the heire shall have an action of Waste against them and recover the land against the Assignee Waste 5 If Tenant for life grant over his estate upon condition Co. ib. 54. a. 3. and the Grantée doth Waste and the Grantor re-entreth for the condition broken the action of Waste shall be brought against the Grantée and the place wasted recovered c. 21. Tenant at â—ill â—aron and â—me 6 If a woman make a lease at will reserving a rent Co. ibid. 55. b. 4. Co. lib. 5. 10. Hensteads case and then taketh Huâ—band this is no countermand of the lease at will but the Husband and Wife shall have an action of Debt for the rent And so is it if a lease be made to a woman at will reserving a rent and the Lessée taketh Husband this is no countermand of the lease but the Lessor may have an action of Debt and distrain them for the rent So if the Husband and Wife make a lease at will of the wives land reserving a rent and the husband die yet the lease continueth In like manner if a lease be made by two to two others at will and the one of the Lessors and of the Lessées die the lease at will is not determined in either of these cases c. Co. Inst pars 1. 58. b. 1. 7 Tenant for years Tenant by Statute Merchant Staple Elegit Domini pro tempore at will Guardian in Chivalry c. may be Lords of a customary Mannor as well as those that have fée for â—â—â—eit they be not properly seised but possessed yet are they Domini pro tempore not onely to make admittances but to grant voluntary copies of ancient Copihold lands which come into their hands by forfeiture escheat or otherwise Also admittances made by Disseisors Abators Intruders Tenant at sufferance or others that have defeasible titles stand good against them that right have because it is a lawfull act and they are compellable to do it Howbeit they cannot make voluntary grants of Copies as aforesaid to binde the Disseisées c. because they come in by wrong and have estates that may he defeated Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one Copiholds grantable by an Executor that is not Dominus pro tempore nor that hath any thing in the Mannor As if the Lord of a Mannor by his Will in writing deviseth that his Executors shall grant the customary Tenements of the Mannor according to the custome c. for the payment of his debts and dieth the Executor having nothing in the Mannor may make grants according to the custome of the Mannor Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life Dominus pro tempore coâ—pellable to admit or for years Guardian or any that hath a particular interest or Tenant at will of a Mannor all which are accompted in Law Domini pro tempore do take a surrender into his hands and before admittance the Lessée for life dieth or the years interest or custodie do end or determine or the
party heir or assignée but in privity of estate yet any that is in of another estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annexed to the land which sometimes was doubted among the Sages of our Law Release of a writ of Errour 84 If a man be out-lawed in a personal action Co. Inst pars 1. 289. a. 2. c. and brings his writ of Error if he at whose suit he was out-lawed will plead against him a release of all actions personal this séems to be no plea because by the said action he shall recover nothing in the personalty but onely to reverse the Outlawry Howbeit in that case a release of the writ of Errour is a good plea For albeit the Plaintiff in the writ of Errour is to recover or be restored to nothing against the party Yet inasmuch as the Plaintiff in the former action is privy to the record a release of a writ of Errour to him is sufficient to barre the Plaintiff in the writ of Errour of the suit and vexation by the said writ of Errour Co. ib. 48. a. 4. 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées Livery to 〈◊〉 Joyntenant good to boâ—â— and the Feoffor makes livery onely to one of them according to the deed In this case the land passeth to them all in respect of the privity of their estate c. So likewise if there be two Ioyntenants of a Ward and one of them do waste both shall answer for it for the same reason Co. ib. 54. a. 1. 86 A Tenant by the Courtesie or in Dower Wast against tenant in dower and by the Courteâ—â— can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth waste yet the heir shall have an action of waste against them and recover the land against the Assignee but if the heir either before the assignment had granted or after the assignment doth grant the reversion over the stranger shall have an action of waste against the Assignee because then in both cases the privity is destroyed Co. ibid. a. 2. c. Vide infrà 94. Also if waste be done by a stranger they shall answer for it c. Co. l. 2. 66. b. 4. Tookers case 87 There are two Iointenants for life Attornment 〈◊〉 one Joyntenant good 〈◊〉 both the reversioner grants over his estate in fee one of the Iointenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantee in respect of the privity and intirenesse of their estate Co. ib. 67. a. 2. c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessees re-enter this act of one of them is an attornment in Law for both If one Iointenant give seisin of rent that shall binde his companion as it is agreed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them and he accepts the deed this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. Co. l. 3. 2. a. 4. The Marq. of Winchesters case 88 Albeit by the general words of the act of attainder of all rights Right of actâ—on not forfeâ—ed by attaâ—â—er c. and hereditaments c. made against the Lord Norris in the 28 H. 8. all his lands c. in demesne reversion or remainder and also all his right to lands and tenements into which his entry was congeable were given to the King yet neither a writ of Errour nor right of action to recover land were given to him by the general words of the same act although such a right is truly a right and also an hereditament because such a right for which the party hath no remedy but by action onely to recover the land is a thing which consists onely in privity and which cannot escheat or be forfeit at the Common Law Of this sort are the right of Formedon in descender the right of action upon a disseisin and a descent cast and the like Co. l. 7. 13. a. 4. in Englefeilds case Co. ib. 4. a. 3 4. 89 Vpon judgement given against Tenant for life A reversioner shall bring Errour c. or against Tenant in tail since the Statute de donis conditionalibus he in the reversion or remainder may have a writ of Errour albeit he was not party to the suit by aid prayer voucher or receipt But he could not in that case bring that writ till after the particular estate determined Howbeit if he was party and privy to the first record by aid prayer voucher or receipt then might he have a writ of Errour presently during the life of the Tenant in tail or for life for that he was in that case party and privy to the first record c. Co. l. 3. 6. a. Cuppledikes case 90 Baron and Feme are seised of lands to the use of them Upon fine and vouching tenant in tail the remainder is barred and the heirs male of the body of the Baron the remainder in fee to another the Baron acknowledgeth the fine of the land in fee and a stranger recovers the land against the Conusee who voucheth the Baron onely and he voucheth over the common Vouchee and judgement and seisin are given accordingly the Feme being still in life This recovery shall bind the remainder for here was a lawful Tenant to the precipe and albeit the Baron who had the estate tail was onely vouched and not the Feme who had a joynt estate with him Yet the Baron coming in as Vouchee he comes in privity of the estate tail and not of any other estate and then the recovery in value gives recompence both to the estate tail which the Baron hath and also to the remainder over because although by the fine the estate tail as also the estate of the Feme and the remainder were all devested or discontinued yet the Baron as Vouchee shall be in judgment of Law in of his estate tail And the case is the stronger inasmuch as the estate of the Feme was put to a right So that the Baron comes in now as sole Tenant in tail and cannot be joyntly seised with the Feme because she was not Vouchée Neither yet can the Baron be in of any other estate for that he once had an estate tail and now comes in as Vouchée and therefore in that case in respect of the privity shall be said in as of the estate tail and not otherwise But if the wives inheritance had béen joynt with her husbands it might be doubted 108. 28. The like 91 If A. be Tenant in tail the remainder to B. in tail Co. ibid. the remainder to C. in tail
Feme shall be admeasured Howbeit hée may well assigne her lesse Omne majus c. Pl. Co. 83. a. 2. Partridges case Co. Inst pars 1. 369. a. 4. 41 Where the Statute of 32 H. 8. cap. 9. Pretenced title c. prohibiteth the buying or selling of any pretenced rights or titles in the plural number yet the buying or selling of any one right or title is also prohibited by the same Statute for the singular is included in the plural Pl. Co. 86. b. 3. per Hales Partridges case Vide suprà 12. Pl. Co. 86. a. 4. in Partridges case per Hales 42 The Statute of the 1 H. 5. cap. 3. recites Entry into land that some people do of late use to forge divers false deeds and muniments c. And therefore it ordaines that the party so grieved may have his suit in that case c. Here that Statute speaks of false déeds c. in the plural number yet if a man forge one false déed onely he shall incurre the penalty of that Statute So likewise the Statute of 5 R. 2. cap. 7. forbids that none shall make entry into any lands or tenements except in case where entry is given by the Law Yet if one enter onely into one tenement he shall be punished notwithstanding that Statute is in the plural number for the plural number contains in it the singular number and more c. Pl. Co. 87. a. 3. Partridges case 43 Where the Statute of 32 H. 8. cap. 9. prohibits the buying Pretenced 〈◊〉 to a lease c. of any pretenced rights c. a lease for years is prohibited as well as an estate in fée in taile or for life for under the word any the lesse estate shall be conteined in the greater So also the Statute of 23 H. 6. Sheriffs cap. 10. prohibits that no Sheriff shall let to farme in any manner his County c. whereby he is restrained to let to farme any part of his County because the lesse is contained in the greater c. Co. l. 5 pars 1. 34. b. 4. in the K. Ecclesiastical law 44 It was adjudged in the Court of Common Pleas by Dyer Weston Ecclesiastical persons may resign to the King and the whole Court that a Deane or any other Ecclesiastical person may resigne to the King as divers did to King E. 6. because the King hath the authority of the supream Ordinary For Cui licet quod majus est non debet quod minus est non licere Co. Inst pars 1 129. a. 2 45 If the King by his prerogative may make one An alien maâ—denizen that is an alien born an absolute Denizen viz. Quòd ille in omnibus tractetur reputetur habeatur teneatur gubernetur tanquam ligens noster infra dictum regnum nostrum Angliae orâ—undus c. à fortiori he may grant to such an Alien a particular denization viz. Quòd in quibusdam curiis suis Angliae audiatur ut Anglus quod non repellatur per illam exceptionem quòd sit Alienigena natus in partibus transmarinis c. to enable him to sue onely or may grant him a denization sub conditione c. Devise for Executors â—hall sell 46 If a man deviseth his land to A. for life Co. ib. 112. b. 3. and that after his decease it shall be sold by his Executors generally and make thrée or four Executors and during the life of A. one of the Executors dieth and then A. dieth the other two or thrée Executors may sell for the greater number includes the lesse and the plural number of Executors still remains whereby the words of the Will are also satisfied It is otherwise if before the Statute of 21 H. 8. 4. he had made but two Executors and one had died or if he had made I. S. I. N. and I. D. his Executors by name and one of them had died for then the words of the Will had not béen satisfied which in such case giving but a bare power must be thereby observed so also if he had devised it to be sold by his sons in law being thrée and one dies the other two might have sold it but not if there had béen onely two and one die or refuse before sale Vide Rule 110. 21. Isabel Goodcheaps case 49 E. 3. Arbitrament 47 The submission to an award betwixt A. and B. was general Co. l. 8 98. a. 2. Baspoles case viz. of all actions c. and the award was that A. should pay B. 20 pound And in this case it was objected that it did not appeare that the matter of the arbitrament was the matter onely that was betwixt them because the submission was general of all actions demands c. And therefore if the arbitrament were not made of all the matters in controversie the Award was void But the Award was adjudged good because when the submission is general of all actions c. Generale nihil certi implicat and therefore it stands well with the generality of the words that there was but one cause depending in controversie betwixt them And Omne majus continet in se minus But it is otherwise where the submission is of certain things in special c. Waste 48 The Lessée covenants to cut no trées Dyer 115. b. â—7 1 2 P. M. and gives bond to perform covenants the Lessée cuts ten trées and the Lessor sues him upon the bond and assignes for breach the cutting of twenty trées he pleads that he did not cut twenty trées upon which they are at issue and the Iury found that he cut onely ten yet judgement was given for the Plaintiffe for the other tenne trées were but surplusage and omne majus c. Lease by a â—rebend 49 A Prebend of Sarum makes a lease for seventy years the Bishop Dyer 338. 43. 17 Eliz. Deane and Chapter confirm the Bishop being Patron and Ordinary for 50 years and no more In this case the demise and all conteined in the Indenture was adjudged good for 50 years 60 Additio probat minoritatem â—e is Fee-â—â—mple 1 When you finde it said in any Book Co. Inst pars 1. 189. a. 3. that a man is seised in fée without saying more it shall be understood in Fée-simple and not in Fée-taile unlesse there be but unto it such an Addition Fee-taile c. And therefore in Heraldry the younger sonnes give the differences And in France by Monsieur without any addition or other title is to be understood the Kings onely brother and by Madame without more the Kings onely sister and therefore they are said in French to be Monsieur sans queüe and Madame sans queüe viz. without any other addition or title But if there be in France any occasion of naming any other Lord or Lady they are always named with their proper and peculiar title as Monsieur de
if the estates be not equal albeit the parties agrée Exchange yet is the exchange void for the agréement of the parties cannot make that good which the Law maketh void Co. ib. 53. b. 2. 7 If a man make a lease for life and by déed grant Waste that if any waste or destruction be done that it shall be redressed by neighbours and not by suit or plea Yet in this case an action of waste shall lie because the place washed cannot be recovered without a plea. Co. ib. 62 b. 3. Littl § 82. 8 If a man let lands to another to hold to him and his heirs at the will of the Lessor these words to the heirs of the Lessee are void Lease to one and his heirs at will because in this case if the Lessee die and his heir enter the Lessor shall have an action of Trespasse against him and that before the Lessor enters for that by the death of the Lessée the lease is absolutely determined Co. ib. 66. b. 2. 9 In the making of Homage the saving for other Lords Salve la foy Homage que se doy c. a mes autres Seigniors is not of necessity but onely added for explanation sake For the homage is referred onely to the Tenements which the Tenant holdeth of that Lord to whom he doth the Homage Co. ib. 191. a. 2. 30 Ass Pl. 8. Co. l. 4. 73. b. 1. Boroughs case 10 Lande given to two Et uni eorum diutius viventi Jointenancy they make partition and one of them grants his part to a stranger In either of these cases if one of them die the Lessor shall have again the moity of him that dieth for Uni eorum diutius viventi are but idle words because without them the Iointenant by course of Law is to have all in case he survive Finch 24. Co. ib. 212. b. 4. 11 Where the condition is certain viz. for the payment of 20 l. or the like the Obligor or Feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole because it is apparent Payment of a summe that a lesser sum of mâ—â—ey cannot be a satisfaction for a greater Littl. § 345. Co. ib. 213. a. 2. 12 If a man enfeoff another upon condition A sum reserved to a strâ—â—ger no renâ— that he and his heirs shall render unto a stranger a yearly rent of 20 s. c. and that if he or his heirs fail to pay it that then it shall be lawful for the Feoffor and his heirs to re-enter Albeit this reservation be by indenture whrein the 20 s. reserved is named to be an annual rent yet is it never the more a rent for that because although the stranger be seised of it and then failer is made yet can he not have Assise for it and for that the estate moved not from the stranger neither yet was he party to the déed c. But such a sum reserved in that case is onely a pain set upon the Tenant which if he pay not c. the Feoffor may enter c. Co. ib. 224. b. 2. 13 If a gift in tail be made to a man and to the heirs of his body Issue falling the Dâ—â—â—â— may â—â—ter and if he die without heirs of his body that then the Donor and his heirs shall re-enter this is a void Condition For when the issues faile the estate determineth by the expresse limitation and consequently the adding of the Condition to defeat that which is determined by the limitation of the estate is void and in that case the wife of the Donée shall be endowed c. Littl. § 446. Co. ib. 265. a. 14 These words in a release Release of future inteâ—â—â—â— void Quae quovismodo in futurum habere potero are void in Law For no right passeth by a release but onely the right which the Releasor hath at the time of the release made for if there be father and sonne and the father is disseised and the son living the father releaseth by his déed to the Disseisor all the right that he hath or may hereafter have in the land without clause of warranty c. and after the father dies c. the son may lawfully enter upon the possession of the Disseisor notwithstanding such release because he had no right in the land in the life of his father but the right descended unto him after the release made by his fathers death c. A perpetuity void 15 A man gives land to Mary and Joane two sisters Et haeredibus de corporibus eorum legitime procreatis by which they had a joynt estate for life and several Inheritances and the Donor intending Co. l. 1. 84. b. 3. in Corbets case per Anderson 8 Ass Pl. 33. that neither of them should break the joynture but that the Survivor should have all per jus accrescendi added this clause sub hac forma quòd illa quae illarum diutius vixerit tenebit terram illam integram c. But in as much as his intent was contrary to Law for that cause if the joynture were severed by fine levied the Survivor shall not have the part so severed by reason of the said clause which he did insert of his own conceit and imagination repugnant to law and reason c. A will repugnant void 16 For the construction of Wills Co. l. 1. 85. b. 4. in Corbets case this rule was taken by the Justices in the argument of Corbets case in the first Report that an estate which by the rules of the Common Law cannot be conveyed by act executed in the life of the Devisor by advice of Counsel learned in the Law cannot be devised by his last Will he being intended at that time to be inops consilii As if a man devise land to another for ever there the Devisée hath fée because such an estate may be conveyed by act executed c. But if he devise farther that if the Devisée doth not such an act that another shall have the land to him and his heirs this were void because such a limitation if it were by act executed would be void c. An authority revocable 17 If a man be bound in an Obligation to stand to abide observe Co. l. 8. 82. a. 2. in Vinyors case c. the rule arbittement c. yet he may countermand it for a man cannot by his act make an authority power or warrant to be uncountermandable which by the Law and of its own nature is countermandable As if I make a letter of Attorney to make Livery or to sue an action in my name or if I assigne Auditors to take an accompt or make a Factor or submit my selfe to an arbitrement albeit these are made by words expresly irrevoâ—able or if I grant or am bound that all these shall stand irrevocably yet they may
any Lord during the fathers life because the Law of Nature requires that the father during his life shall have the marriage of his heir apparent rather then the Lord or any other person whatsoever The Law is the same if D. had béen a daughter It is otherwise where the father dies living the mother when the Land holden by Knight-service descends to the son on the part of the father because the Law in that Case confides more in the father then in the mother c. Again this priviledge extends not to any collateral heir but onely to the son or daughter being heir apparent for albeit a man shall have an Action of Trespasse Quare consanguinem haeredem coepit and albeit the words be cujus maritagium ad ipsum pertinet because the wel bestowing of his heir apparent in marriage is a great establishment of his house yet that is to be understood as against a wrong-doer but not against a Guardian in Chivalry and the mother shall have the like writ for taking away of her son and heir apparent and yet the mother shall not bar the Lord by Knight-service of his wardship of his body as Littleton saith § 114. Qui ex filia tua nascitur in potestate tua non est sed patris sui Fleta l. 5. cap. 6. The like 3 Put the case there be Lord and Feme-tenant by Knights-service of a Carve of Land Co. ib. 84. b. 2. the Feme maketh a feoffment in fée upon condition and taketh the Lord to husband and have issue a son the wife dieth the issue entreth for the condition broken the Lord entreth into the Land as Guardian by Knights-service and maketh his executors and dieth In this Case the executors shall have the wardship of the Land during the minority of the heir but not the wardship of the body For albeit the Lord séemeth to have a double interest in the wardship of the body one as Lord and another as father yet as father and not as Lord in judgment of Law he shall have the wardship of the body of his son and heir apparent in respect of nature which was before any wardship in respect of Seigniories by Knights-service began And that wardship by reason of nature cannot be waved and claim made in respect of the Seigniorie And the executors of the father shall not have such a wardship which the testator had as father neither can such a wardship be forfeited by Outlawrie 33 H. 6. 55. 6. because it is due to the father in respect of privity of nature 9. 4 If the Sheriff or other Officer be of kindred or affinity to the Plaintiffe or Defendant Challenge to â—he Array and â—â—rour and that such affinity continue Co. ibid. 156. a 2. and 4. this is a cause of challenge to the Array as if the Sheriffe marry the daughter of either party or è converso this is a principal challenge so if there be affinity betwéen the son of the Sheriffe and the daughter of either party or è converso or the like albeit this is no principal Challenge yet is it a Challenge to the favour c. 5 If a Iuror be of blood or kindred to either party Consanguineus Co. ib. 157. a. 3 which is compounded of con and sanguìne â—o the Polles quasi eodem sanguine natus this is a principal Challenge to the Polles because the Law presumeth that one kinsman doth favour another before a stranger and how remote so ever he is of kindred yet the Challenge is good And if the Plaintiffe challenge a Iuror for kindred to the Defendant it is no Counter-plea to say that he is of kindred also to the Plaintiffe though he be so in a néerer degrée for the words of the venire facias forbiddeth the Iuror to be of kindred to either party 6 If a Body politique or incorporate sole or aggregate of many bring an Action that concerns their Body politique or incorporate Co. ibid. The like if the Iuror be of kindred to any that is of that body albeit the Body politique or incorporate can have no kindred yet for that those Bodies consist of natural persons it is a principal Challenge c. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge The like and to the favoâ—â— and equivalent to Consanguinity when it is betwéen either of the parties as if the Plaintiffe or Defendant marry the daughter or Couzen of the Iuror or the Iuror marry the daughter or Couzen of the Plaintiff or Defendant and the same continues or issue be had And if the son of the Iuror hath married the daughter of the Plaintiff c. albeit this be no principal Challenge because it is not betwéen the parties yet is it a Challenge to the favour c. Co. l. 3. 38. b. 4. in Ratcliffes Case 8 Martha Wilcocks A maid conveyed away and married one of the daughters and co-heirs apparent of Eliz. the relict of William VVilcocks and then the wife of Ralph Ratcliffe dwelling in her mothers house at Hitchin being then under the age of sixtéen years and about fourtéen went from thence at two of the clock in the morning with the consent of the said Ralph to Bramfield being eight miles distant from Hitchin and there married Edw. Ratcliffe And in an Ejectione firmae brought by Luke Norton upon the demise of the said Edw. the issue was whether Eliz. the mother had the custody of Martha at the time of the said marriage for if she had then the Land of the said Martha being in soccage was to be lost for her life by force of the Statute of 4 5. P. M. cap. 8. which prohibiteth the conveying of a maid c. out of the custody and contracting Matrimony with her without the consent of her father if he be living or of her mother in case her father be dead c. in pain for the man to suffer imprisonment c. and for the maid to lose her land as aforesaid c. And in that Case it was resolved that Eliz. the mother had the custody of the said Martha at the time of the Marriage within the provision of the said Act for that Statute hath ordained two manner of new custodies viz. by reason of nature and by assignation And here the father of Martha being dead she is by nature left in the custody of her mother neither yet was the assent of Ralph Ratcliff the husband any thing at all material for the Statute hath annexed the custody to the person of the mother jure naturae which is inseparable and cannot by the marriage be transferred to the Baron but after the marriage remains onely in the mother c. Co. l. 3. 39. a. 4. in Ratcliffes Case 9 It is said No wardship during the â—â—thers life that if there be Lord and Feme tenant by Knights-service and the tenant make
out of the Kings alleagiance because he bringeth it not in his owne right but in the right of his Monastery and not in his natural but in his politique capacity Monke c. â—â—ofessed in â—eligion 12 A Monke or any other professed in Religion within the Realme shall have an action in some Case as if he be made an Executor Co. ibid. 13â—â— b. 3. or if he be an Administrator he shall maintain an Action not in his owne right but in the right of the dead So if a Monke be made a Bishop or a Parson or a Vicar he shall have an Action concerning his Bishopprick Parsonage or Vicarage sic de similibus Likewise an Abbot or Prior or any other Soveraigne of an house of Religion albeit they be profest and therefore dead in Law yet by the policy of Law they are persons able to purchase and to implead and to be impleaded to sue and to be sued for any thing that concernes their house For they do it in auter droit and otherwise their house might be prejudiced and other men also of their lawfull actions And this is the ancient Law of England as appeares by the Mirrour c. 2. § 14. in these words Des biens des gents de Religion appent l'action al Chiese en fon nosme par luy son Covent Also if a Monke c. be wounded beaten imprisoned c. the Abbot and the Monke shall in that Case joyne in an Action against the wrong doer and if the writ be ad Damnum ipsius Prioris the writ is good or if it be ad Damnum ipsorum it is good also Likewise if a Monk be falsely and maliciously indicted of Felony and Robery and afterwards is lawfully acquited his Soveraigne and he shall joyne in a writ of conspiracy or the like And what is here spoken of a man professed in Religion is also to be understood of a Nunne sanctimonialis mutatis mutandis â—an may his owne â—â—ors 13 If A. be bound to the Abbot of D. A. is professed a Monk in the same Abbey and after is made Abbot thereof Co. ib. 133. b. 2. he shall take an action of debt against his owne Executors c. â—â—â—â—ons and â—â—ance 14 Regularly Co. ib. 139. a. 4 in personal actions there shall not be summons and severance for the non-suit of one is the non-suit of both c. Neverthelesse in such like actions brought by Executors there shall be summons and severance because the best shall be taken for the benefit of the dead And so it is in an action of Trespass as Executors for goods taken out of their owne possession There is the like Law also in accompt as Executors by the receit of their owne hands c. Co. ibid. 172. a. 2. 15 If an Infant be an Executor upon payment of any debt An Infant due to the Testator he may make an acquittance because it is in auter droit but in that Case a release without payment is void c. Co. ibid. 187. b. 4. 16 Albeit Baron and Feme as Littleton saith § 291. Baron Feme Livery Sale be one person in Law so as neither of them can give any Estate or Interest to the other yet if a Charter of feoffment be made to the Wife the Husband as attorney to the feoffor may make livery to the Wife and so a Feme covert that hath power to sell Land by will may sell the same to her Husband because they are but instruments for others and the Estate passeth from the feoffor or devisor Co. ibid. 189. b. 3. c. 17 If Land be given to two Abbots and to two Successors Grant to tâ—â— Abbots Tenant in Common they shall not take by survivor but are ab initio Tenants in Common for albeit the words be joynt yet in regard of their several capacities whereby they hold it in several auter droits the Law doth adjudge them to be severally seised So it is also of a secular body politique or corporate as if Lands be given to two Bishops to have and to hold to them two and their Successors Albeit the Bishops were never any dead persons in Law but alwayes of capacity to take yet séeing they take this purchase in their politique capacity as Bishops they are presently Tenants in Common because they are seised in several rights c. The like Law is of two Parsons and their Successors or of any other such like Ecclesiastical body Politique or Incorporate c. Co. ibid. 190. a. 3. 18 If Land be given to an Abbot and a secular man An Abbot Bishop or Parson and Secular man to have and to hold to the Abbot and his Successors and to the secular man and his heires they are Tenants in Common in respect of their several rights and capacities So it is likewise if Lands be given to the Parson of Dale and a Lay-man to have and hold to the Parson and his Successors and to the Lay-man and his heires So also of a Bishop c. C. ibid. a. 4. 19 If Land be given to John Bishop of Norwich A man Teâ—â—â— in Condiâ—â—â— with himselâ— and his Successors and to John Over-all Doctor of Divinity and his heires being one and the same Person In this Case he is Tenant in Common with himselfe Co. ibidem 20 If Land be given to the King and to a subject to have and to hold to them and to their heires The King 〈◊〉 a subject Tâ—nant in Coâ—mon yet they are Tenants in Common and not joint-tenants for the King is not seised in his naturall capacity but in his Royal and politique capacity in jure Coronae which cannot stand in joynture with the seisin of the subject in his natural capacity So likewise if there be two joynt-tenants and the Crowne descend to one of them the jointure is thereby severed and they are become Tenants in Common c. Co. ibid. 215. b. 4. 21 If there had béen Lord and Tenant Guardian Entry Re-entry and the Tenant had let the Land for life rendring Rent with clause of re-entry c. In this Case at the Common Law neither the assignée in déed as the alienée or the assignée in Law as the Lord by escheat could take advantage of the re-entry Howbeit at the Common Law Guardian in Chivalry or in soccage might in the right of the heire take benefit of a Condition by entry or re-entry c. Grant 〈◊〉 â—â—shop or 〈◊〉 with Coâ—â— on not to 〈◊〉 goods Co. ibid. 224. a. 3. 22 If a man make a feofment in fée with Condition that the feoffée shall not alien this Condition is repugnant and void but it is said that a man by licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and and a Condition to it that they shall not without the consent of their Chapter or Covent
35 H. 8. 26 In Debt upon an Obligation to perform Covenants of an Indenture Obligation Covenants c. the Defendant pleads a Release of all Covenants in the same Indenture made five yeares after the date of the said Indenture and this was held no good plea in barre of the Obligation because the limitation of the condition being for the performance of Covenants if any Covenant was broken before the sealing and delivery of the Release the Obligation was thereby forfeit and could not be avoided by the Release Dier 210 24. 4 Eliz. 27 A man deviseth Devise that his Executors shall take the profits of his Land untill his heir shall be at full age to pay Debts c. the one dies after the Survivor makes his Executors and dies also the Executor of the Executor last dying shall take the profits because it is an interest that survives It is otherwise if it had béen but a bare authority Dier 219 8. 5 Eliz. 28 A man deviseth that after the death of his wife Devise his land shall be sold by his Executors unà cum assensu A. and makes his wife and a stranger his Executors and dies the feme dies and A. also dies In this case the authority is determined Dier 242 51. 8 Eliz. 29 Two submitted themselves to an Arbitrament by Recognisance concerning the right and interest of 200 acres of land Arbitrameâ— called Kelstorling and for all other actions and suits concerning the same Ita quòd Arbitrium c. before a certain day The Arbitrators award that the Defendant shall have brakes during his life in the Waste of the Town of Kelstorn rendring to the other 2 s. per annum And upon a Demurrer it was adjudged a void award for three causes 1 Because they made their award but of one thing whereas the submission was of two Howbeit if the submission had been by Parol it had been a good award of part 2 They have not awarded the property of the land whereof the submission was but a profit onely out of the land 3 They have not in their award named Kelstorling and although they might intend it yet an averrement of the parties cannot declaim the intent of the Arbitrators And all this because their power being but a bare authority must be strictly observed 100 And therefore these may be countermanded so cannot those An office without profit discharged with profit otherwise 1 Where the Grantée of an Office hath no profits thereby Co. Inst p. 1. 233. a. 4 c. but onely a Collateral certaine Fée there the Grantor may discharge him of his service as to be a Bailiff Receiver Surveyor Auditor or the like the exercise whereof is onely Labour and Charge to him Howbeit though he do discharge yet he must have his Fée c. But where the Grantée besides his certain Fee hath also profits and availes by reason of his Office there the Grantor cannot discharge him of his service or attendance for that would be to the prejudice of the Grantée As if a man doth grant to another the Stewardship of his Courts of his Manors with a certain Fée the Grantor cannot discharge him of his Service and attendance because he hath other profits and fées belonging to his Office which he should lose if he were discharged of his Office So it is also in the case which Littleton putteth § 379. of the Office of the Kéeper of a Park because in that case also he hath not onely his Fée certain but profits and availes also in respect of his Office as Déer-skins Shoulders c Attornment 2 If a feme sole maketh a Lease for life or years reserving a Rent Co. ib. 310. b. 1. and granteth the Reversion in Fée and taketh husband this is a Countermand of the Attornment Power of Arâ—â—tration cannot be made inevocable 3 If a man be bound by Obligation to stand to abide observe Co. l. 8. 82. a. 3. in Vinyors Case c. the Rule Arbitrament c. of another yet he may countermand the authority so given to the Arbitrator for a man cannot by his act make such an authority power or warrant to be uncountermandable which by the Law and of its own nature is countermandable As if I make a Letter of attorney to make Livery or to sue an action in my name or if I assign auditors to take an accompt or I make one my Factor or if I submit my selfe to an arbitrament albeit these are made by expresse words irrevocable or although I grant or bind my self that all these shall stand irrevocably neverthelesse they may be revoked So likewise if I make my last Will and Testament irrevocable yet I may afterwards at my pleasure revoke it for my act and my words cannot alter the judgment of Law and make that irrevokable which of its own nature is revocable And therefore notwithstanding it is said in 5 E. 4. 3 6. That if I be bound to stand to the award that I S. shall make I cannot discharge that Arbitrament because I have bound my self to stand to his award and that if it were without Obligation it would be otherwise Neverthelesse in the one case and in the other the authority of the arbitrator may be countermanded but then in the one case he shall forfeit his Obligation and in the other case he shall lose nothing for ex unda submissione non oritur actio And with this agrées Brooke in abridging the said Book of 5 E. 4. Vide 21 H. 6. 30. 28 H. 6. 6. 49 E. 3. 9. 18 E. 4. 9. 8 E. 4. 10. 9 E. 4. 4. b. 1 a E. 5. 28 H. 8. Di 22. Perkins 14 E. 4. 8. Perkins 19 6. 4 A licence to come to my house to speake with me Licence Authority Countermandable Presentment Oblige not Goods bailed over to be delivered to J. S. or to bestow in Almes a letter of Attorney to deliver seisin all these may be countermanded before they be done But if I present J. S. to a Church I cannot after varie and present a new for a kind of Interest passeth out of me So if I deliver an Obligation as a sorowle into a strangers hand to be delivered to the Obligée upon a Condition to be performed this cannot be countermanded for upon the delivery there passeth an Interest to the Obligée he being as it were party and privy to the delivery Finch 32. Dier 49. 7. c. 33 H. 8. 5 A man delivers a summe of money to another to the use and behoofe of a Woman Bailment and to deliver it unto her upon the day of her marriage In this Case when a man makes such a conditional gift of his frée will and pleasure and delivers the thing in Ovell hand to kéep to the use of a stranger before that condition be performed the bailment which is but a méere authority is revocable So if
his Court that the Corporation hath jurisdiction to hold Court either by prescription or by patent And it also appeares by the Court in that Court that the Action of Debt was brought for 100 l. without mentioning any obligation and therefore it was to be intended that there was no obligation and then the Executor was not chargeable in an action upon a single contract And in this case albeit the Defendant in his barre acknowledged that the Debt was by obligation yet that shall not make the Count good for when the Count wants circumstance of time or place c. that may be made good by the barre but when the Count Barre Replication or c. want substance this cannot be made good by the plea of either party Co. l. 5 72. a. 1. in St. Iohns Case 39 A Dagge is as well prohibited to be carried about one Dagge the same with Handgun as an Handgun by the Statute of 33 H. 8. 6. albeit a Dagge is not named in that Statute nor was then invented because a Dagge differs not from a Handgun in substance but hath onely some small alteration in form and quality Co. l. 8. 120. b 3 in Doctor Bonhams Case 40 When the Count or Declaration wants time place Pleading or other circumstance it may be good by the barre and the barre by the replication c. as appears by 18 E. 4. 16. b. but when the Count wants substance the barre cannot make it good and so it is also of the barre replication c. and with this accords 6 E. 4. 2. Bon. Case Dier 19. 113. 28 H. 8. 41 An obligation was thus drawn A bond without dare greâ—â— Ad quam quidem solutionem bene fideliter solvend obligo me per praesentes datum c. and saith not Sigillo meo sigillat nor In cujus rei testimonium yet by Shelley and Fitzherbert it is ruled good if it were sealed for that is of substance the other being but circumstances Co. l. 10 124. b. 2. Wingates Case 42 The Dean and Canons of Windsor were incorporate by act of Parliament in 22 E. 4. by this name Name of a Corporation The Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor and in the Raigne of P. and M. they made a Lease of certain lands by this name The Dean and Canons of the King and Queens Frée Chappel of S. George within the Castle of VVindsor And in this case three variances were observed 1 Because it was named the King and Queenes Frée Chappel whereas it should have béen onely named the Kings 2 It ought to have béen S. George the Martyr whereas Martyr was omitted 3 It was said within the Castle whereas it should have béen within the Kings Castle In this case the first onely was adjudged a material exception and of substance but the other two onely matter of circumstance and not material and so the Lease adjudged void for the first Dyer 98. a. 50. 1 Mar. 43 Albeit in the summos of Parliament of 1 Mar. these words supremum caput Ecclesiae Anglicanae Supremum caput Ecclesâ— c. were omitted contrary to the Statutes of 26 and 35 H. 8. yet by the better opinion the summons is good because it was but an Addition or circumstance and not parcel or of the substance of the name of the Quéen This doubt was also moved in the Parliament of 1 El. 2. and upon great deliberation so likewise resolved Dyer 150. 85. 3 4 P. M. 44 The Corporation of Eaton Colledge was erected by H. 6. per nomen praepositi Collegii Regalis Collegii beatae Mariae de Eaton c. A void Leasâ— And in the time of E 6. a Lease was made per nomen Praepositi sociorum Collegii Regalis de Eaton omitting Collegium and Beatae Mariae and adjudged naught c. â—ppeal â—leâ— 45 The Lessée of a Parson brings an ejectione firmae the Defendant pleads that the Parson was deprived the Plaintiffe saith Dier 240. 46. 7 El. that the Parson hath appealed to the Arch-bishop of Canterbury in Curia praerogativa sua de Arcubus and because the Words of the Statute of 24 H. 8. 12. are that the appeale shall be to the Arch-bishop of the Province or c. without limiting any Court in certain the Defendant demurred in Law And it was held by the Iustices that the Words to the Archbishop of Canterbury being Words of substance were sufficient to maintain the Plea and that the other Words being but circumstantial and surplussage should not prejudice the Plaintiffe â—â—nomer 46 The Deane and and Chapter of Carleil being incorporate by the name of the Deane and Chapter Ecclesiae Cathedralis Sanctae individuae Trinitatis Carleil Dier 278. 1. 11 El. made a lease by the name of Decanus Ecclesiae Cathedralis Sanctae Trinitatis in Carliel totum Capitulum de Ecclesia praedicta And by the opinion of six Justices against thrée it was held good notwithstanding that variance because it is not of substance of the name Vide 35 H. 6. 4 5. A Prior sues by the name of Ecclesia Sancti Petri whereas the foundation was Petri Pauli and adjudged not good because of substance Replevin 47 Pope brings a Replevin against Skinner Hob 72. Pope and Skinner who avowes the taking as a Commoner in April 11 Jac. the Plaintiffe in barre saith that one Williams was seised of an house and land c. whereunto he had Common c. and demised the same unto him the 30 day of March in the same 11 yeare to hold from the Feast of the Annunciation next before for a yeare The Avowant traverseth the lease modo forma whereupon issue is taken and the Iury said that Williams made a lease to the Plaintiffe on the 25 day of March for one yeare from thence next insuing And albeit this was not the same lease that the Plaintiffe pleaded for this begins on the day and the other not so soone nor was to take his limitation but from the day exlcuded yet the Court gave judgement for the Plaintife for the substance of the issue was whether or not the Plaintiffe had such a lease from Williams as by force thereof he might Common at the time which appeareth for him in this Case and the modo forma in the rest is not material c. Vide Hob. 76. Parker and Parker 117. Napper and Jasper 133. Moon and Andrews 102 Yet for memory and solemnity substances are to be-exprest under Ceremonies 〈◊〉 actions deâ—ce must be 〈◊〉 1 In all Actions real personal or mixt Co. Inst p. 1. 127. b 3. albeit the Tenant or Defendant appeareth and pleads a sufficient barre yet if he makes not in his plea a lawful defence as in personall actions to say praedictus C. D. defendit vim injuriam
thing collaterall and transfers or convey nothing as if the Major and Cominalty of London have an Estate for the life of I. S. if in this Case the Major and Cominalty attorne to the grantée of the reversion the law requires that it shall be by déed for notwithstanding that the grantée comes not in by them that attorne and that the attornment is but a bare consent yet in pleading the déed of Attornment ought to he shewed for in such Case the déed is requisite ex constitutione Legis but when a déed is onely requisite ex provisione hominis in such Case the provision of a man shall not charge the judgement of the law as if a man make a lease for years of land to A. upon condition that he shall not assigne it over but by déed and not by parol in this Case ex provisione hominis the assignement ought to be by déed yet because ex constitutione legis the déed is not necessary for the assignée he may plead the assignement without shewing the déed â—â—render â—arranty â—â—â—â—ment 14 Fortior aequior est dispositio legis quà m hominis Co. l. 6. 69. b. 3 in Sir Mâ—ile Finches Case and therefore he that hath a future interest cannot surrender it by any expresse surrender but by taking of a new lease which is an Act and amount to a surrender in law it may be surrendâ—ed and determined as it is held in 35 H. 6. c. vide suprà cap. 5. So if the father be enfeoffed in Fée and the Feoffor warrant the land to him and his heires here the assignée shall not vouch but if the father enfeoffe his sonne and heire apparent with warranty and die in this Case the heire being in truth assignée shall vouch for the law which hath determined the warranty of the father to the son will give the son benefit of the first warranty as it was adjudged in 43 E. 3. 5. by which it appeareth that the act in law is both more strong and more equal The principal Case therein effect then the Act of the party can be So also if A. Lessée for 50 yeares demiseth to B. for 10 yeares and then the reversioner levies a fine to B. and his heires who enfeoffes D. who outs B. and B. re-enters upon D. here the entry of B. is a good attornment in Law and stronger then an expresse attornment Co. l. 8. 82. a. 3 in Vivyors ca. 15 Albeit a man be bound in an Obligation to stand to abide c. Authorities revocable an Atbitrament yet he may contermand it For a man cannot by his owne Act make such an authority power or warrant as shall not be countermandable which by the Law and in its one nature is countermandable as if I make a Letter of Attorney to make livery or to sue an Action in my name or if I assigne Auditors to take an accompt or if I make one my Factor or submit to an Arbitrament albeit these are made by expresse words irrevocable or if I bind my selâ—e that they shall stand irrevocably yet they may be revoked So if I make my last Will Irrevocable yet I may afterwards revoke it For my Act or my Words can not alter the judgment of Law and make that irrevocable which of its owne nature is revocable Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwarke their Case 16 The Church-wardens of St. Saviour in South-warke having a Lease of the Rectory almost expired contracted Surrenders 〈◊〉 Law that the Church-wardens then having and possessing the said Rectory would pay 20 l. fine and surrender the old Letters Patents to the King and in consideration thereof a new lease should be granted them They paid the 20 l. fine delivered into the Chancery the Letters Patents and discharged the fées there but did not take care that the Letters Patents were â—acated and yet the King was not deceived in his grant but the lease adjudged good For it was a good surrender in Law because albeit the lessées were a corporation aggregate of many and could not make an expresse surrender without déed in writing under their seale yet they may by Act in Law surrender their term without any writing So if the Prior without the consent of the Covent make a lease for yeares rendring Rent if the Prior by déed expressely release the rent and die the Successor shall recover the arrerages but if the Prior out the lessée and die this discharge in law shall discharge the rent that incurred during the Outer against the Successor as appears in 34 H. 6. 21. Co. l. 1â— 80. b. 4 in Lewes Bowles Case 17 The Estate of a Tenant in Taile after possibility Tenant is taile after possibility â— c. ought to be a Râ—maine and residue of an Estate Taile and this by the Act of God and not by the limitation of the party ex dispositione Legis and not ex provisione hominis and therefore if a man make a Gift in Taile upon Condition that if he do such an Act that he shall then have it but for life he is not Tenant in Taile after possibility c. for this is ex provisione hominis and not ex dispositione Legis but it ought to be the remaine and residue of an Estate Taile and that by the Act of God and the Law viz. by the death of one of the Donées without issue And therefore if Tenants in special taile recover in an Assise and after one of them die without issue and afterwards he that survives who is Tenant in taile after possâ—bility is re-disseised he shall have re-disseisin for the francktenement which he had before for it is parcel of the Estate taile Vid. sup Case 4. Co. l. 8. 152 a. 2 Edw. Althams Case 18 If the Disseisée release all Actions to the heire of the disseisor thereby his right is gone in judgment of Law Release of right for when a man hath not any other meane to come by his Land but onely by way of Action if he release all Actions by such release his right is Inclusive in Iudgement of Law gone because by his own Act he hath barred himselfe of all meanes and remedies to recover or attain thereunto but if the heire of the Disseisorâ— make a Lease for life the remainder in fée and the disseisée release to the Tenant for life all actions which he hath against him and after Tenant for life die the disseisée shall have an action notwithstanding such release against him in remainder for he did but release the action and the act in law will never extend the act of the party more largely then his expresse words as if the Lord disseise his Tenant and make a lease for life this release in law shall not entend farther then for the life of the lessée for true it is Fortior potentior est dispositio Legis quà m
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâ—cots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall 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 appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ— It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
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
time out of mind and so hath held in severalty there that proves that it was but in nature of Shack originally because of Vicinage and so continues And therefore in such case he may inclose and keep it in severalty and seclude himself from having Shack with the rest of the Commoners Antient Demesn 13 Lands in antient demesn Dyer 72. b 4. 6 E. 6. which were partable between heirs male were aliened by fine levied at the Common Law nevertheless it seemed to be the better opinion that hereby the course of the Inheritance was not altered and made descendable at the Common Law but that they shall still remain partable as before Custom unreasonable 14 A Custom Dyer 199. 58. 3 Eliz. that the Lord of a Manor hath used to have the best beast of his tenant there dying and if such beast be eloigned before seisure that then the Lord hath used to take the best Beast of any other levant and couchant within the said tenure was adjudged void for the unreasonableness thereof Vide 3 4 Eliz. Rot. 1496. Lands in London 15 Lands in London may be bargained and sold in London by paroll without Indenture or enrollment Dyer 229. 50. 6 Eliz. as before the Statute of 27 H. 8. and this by a Proviso in the same Statute Chilborns case Custom 16 A Custom was alleged Dyer 357. 46 19 Eliz. that the tenant in fée could not make a lease for above six years and it was adjudged a void custom because repugnant to fée and unreasonable Salfords case Co ps 17 A Custom for the Incumbent or Churchwardens of a Parish to be paid for the burial of a Corps of one who is no parishioner Ho. 175. The Lady Ferâ—ars case but only passing that way by accident lodging in an Inne or other lodging or the like is an unreasonable custom and void 207 Licet Consuetudo sit magnae Authoritatis Nunquam tamen Praejudicat manifestae veritati Co. l. 4. 18. a. 1. Oxford and Crosses case 1 The plaintifs bring an action in London Slander for that the defendant called the wife of the plaintif Whore the defendant removes it by habeas corpus into the Kings Bench and it was moved to have a Procedendo to remand it because the action was maintainable in London for the said words but not at the Common Law Howbeit the Procedendo was denyed per per totam Curiam for such a Custom to maintain actions for such brabling words is against Law Licet Consuetudo c. Co. l. 6. 6. b. 1. Sir John Molins case 2 Ed. 3. Lord an Abbot Mesne Records the tenant is attainted of Treason the King grants to Sir John Molins to be holden of him and other chief Lords of the fee by the services c. In this case the Mesnalty is revived and albeit divers Offices licences and other Records were produced to prove the Kings immediate tenure yet the Barons before whom that cause depended said in as much as by construction of Law upon the Letters Patents it appeared that there was no immediate tenure in the King albeit it had been otherwise found in offices or admitted in licenses or other Records yet that could not alter the true tenure which originally appeared to them as Iudges upon Record And it was then also said Licet consuetudo c. Co. l. 11. 75. a. 2. in Magdalen College case 3 In Magdalen College case in the 11 Rep. Grants by Ecclesiastical persons Stat. 13 El. 10 where the Master and Fellows of that College had granted to Queen Eliz her heirs and successors an house in London with proviso that if she did not regrant it within some short time to Bened. Spinola and his heirs that then the grant to her should be void with intent thereby to defraud the Statute of 13 Eliz. 10. it was objected that since that Statute there had been a great number of such grants made by Masters and Fellows of Colleges Deans and Chapters Masters of Hospitals c Howbeit to this it was answered that such grants had been made rather ex consuetudine Clericorum who imitated presidents of such grants made before that Statute than by the sage advice of men learned in the Law and Multitudo errantium non parit errori Patrocinium F. N. B. 118. c. 4 It appears by the Register Accompt Prison that if a man be found in arrearages upon his accompt and the plaintif arrests him in London for those arrearages that then the plaintif may sue forth a writ in Chancery directed to the Sheriff rehearsing this matter and commanding the Sheriff to detain the Accomptant safe in prison until he hath paid the arrerages And it seems also upon the same reason that if a man sue forth a writ of debt upon arrearages of accompt before Auditors and hath the party attached c. that he may have a writ out of the Chancery directed to the Sheriff to keep him in prison until he hath satisfied the arrearages but it seemeth to Fitzherbert that such a writ cannot stand with Law which shall command a man to be kept in prison before he shall have answered to the sute commenced against him 5 Hob. 17. Dr. James his case concerning holding the Court of Audience in the Borough of Southwark which is within the Iurisdiction of the Bishop of Winchester 208 Husband and wife are one Person And therefore Rebutter 1 If a feme heir of a disseisor enfeoff me with warranty Co. Inst pars 1. 365. b. 3. and then marry with the disseisee if after the disseisee bring a praecipe against me I shall rebutt him in respect of the warranty of his wife and yet he demandeth the land in another right So likewise if the husband and wife demand the right of the wife a warranty of the collateral ancestor of the husband shall barr them because the husband and wife are one person in Law Protection And for the same reason it is Co. ibid. 130. a. b. 1. F. N. B. 116. 1. that a protection for the husband shall serve also for the wife Conspiracy 2 A writ of Conspiracy must be brought against two at least for if there be such occasion of action only against one an action upon the case lyeth for the falshood and deceit because one cannot conspire with himself and therefore a writ of Conspiracy for indicting the plaintif of felony lyeth not against Baron and feme only because they are but one person but it may lie against Baron and feme and a third person Accompt 3 In an action of accompt receit made by the Baron by the hands of the feme is the Barons own receit F. N. B. 118 f. and both the writ and Count shall suppose that he received it himself without saying by the hands of the feme Debt Feme covert 4 If a man take
away by Corruption of blood 37 Revived 38. Is not good where is no Interest 55. Taken from the Issue in taile 57 After Entry the party Trespassor Ab initio 108. Given to the King withouâ— demand 275. When may be for non-payment of Rent without demand Et e contra 496. By a stranger devests not an estate 485 Encroachment of Rent avoided in Avowry or by Nuper obijt 477 Emblements 85 466 587. 730 442 583. Equity What it is 202. Upon certaine statutes 204 295 210 211 212 213. Error Not after a Release 105 In Court 124. By him in the Reversion or Remainder 132. In Law not reversable in the same Court 170. By the Vouchee 197. Who may have Error 198. 546. Not upon Disclaimer 198. 647. No Writ before the Judgemennt be compleated 247. 274. 545. 693. In fact and in Law 682. In London 701. Upon a Plaint in Inferiour Courts 709 Escheat 294 Escape 36. 95. 572. 585. 685 772. 645. By marriage of the Keeper 36. Against a Goaler 561 Estrepment 700. In what case it lyeth 682 Estovers 135 194 Estoppell 186. 566. The heire where not estopped 573. No Estoppell to alledge the truth which appeareth on Record 604 Executors where they shall not recover Arreares but lose them 66 67. May release before Probate 125. Chargeable without naming of them 166. Not chargeable where the Testator might wage his Law 590. Of his owne wrong 466 Execution 400. Where against the Kings Debtor e contr 40. Of the Land onely which the party had at the time of the Judgement 42. Where returneable e contr 93. What Execution was at the common Law upon a Recognizance 214. 215. Cannot be of the profits of an Office in Trust 236. Discharged by purchase of parcell of the Land 240. Sheriff may breake open doores to do it 290. Where not against an heire Enfant 350. Valuable or without satisfaction 350. No protection after it 394. Of the body not valuable 587. Prisoners are in Execution till delivered over to the new Sheriff 699. Of Processe 699 Excomengment 688. Where a good Plea to abate a Writ e contr 38. Where it shall disable e contr 170 Exchange Imports Warranty and Covenant 137 Not equall void 242. Intire being a condition in Law 259. Not executed void 393 Exigent 122 Extent 480 Exposition of words 13 18 96 217 705 Construction of them must referr to the next Antecedent 15. In forma predicta 15. Of Sentences and words 21 23 Exception 165 Extinguishment Taile extinct in a fee-simple 223. Of a Rent charge barrs an annuity 434 Ex gravi querela to whom granted 550 F. FAiler Of Action 75. Of the Record 620 Falsifier of Recovery Not by Tenant in taile in Remainder 67 False Latine 19. Shall not quash a Count nor a judiciall Writ 21 Fealty 129 581. Incident though not named 134 Fee-simple Without words Heirs 409 passeth out of the King without Office 421 Fees Barons and Knights Fees 203 Feoffments To uses 148. To the use of his Will the use is in the Feoffor 53 Conditionall 285. Makes not extinguishment of Rent 482. Not to an Alien 618. By Deed not devefted by words 699 Feme covert 562. After coverture a Neife againe 31. disabled to bring Actions 551 Felony 50 420 Felo de se Shall not forfeit to the King a debt upon a simple Contract 694 Fines levied of Lands 93 214 400. Void 74 75 400 Cannot operate double 96 Barr an intaile 154 188 330 For yeares within the Statute of 11 H. 7. 209 Levyed by Covin shall not bar 586. 613. Reversed 715 Fines upon copy-hold Estates 434. Excessive or unreasonable no Forfeiture to deny them 685 Fine In a Leet to be distinct and not joynt 49 334 557. For an unjust vexation 68â— Eor disturbance in a Court of Record 741 Forejudger 371 Folly where attributed to the party and so bind them 666 667 Forfeiture of marryage not paid after Knigthood 34. Of a Dignity entailed 93 Not without some overt act done 108. Of an office for waste 214 For saying Masse 245. By Attornement upon Record 366 Foâ—cible Entry 91 Foundation of a Colledge where void 76 Formedon 41 599 Frankalmoigne 410 720 Frank-marriage Hotchpot 31. 62. Who shall have the Land after a Divorce 52. Out of use 158 Fractions in Conditions estates 256 257 Franchises shall not dye 64 65 Fraude 613 614 615 Fraudulent Grants 747 G. GArnishment 123 Gavelkind 148 Goales 133 Guardian the body of the Ward severed from the Land the Lord shall have the benefit of the two years 30. In Socage cannot present to a Benefice 104. Accountable 142 576. In Socage 235. 351. 371. Of what discharged upon his Account 583. Must account of the marryage of the heir 665 Goods too high apprised to be delivered the Apprisors 215 Grand Serjeancy 150 687 Grants of the King 206. Grants to the King restrained by generall words of Statutes 26. Of an office and after of a Rent for the exercise of it the office determined 41. Made upon false suggestions of the parties are void 302. 616. 457. Construed for his honor and the releife of the Subjects 741 Grants of an estate of Free-hold in futuro void 24. Not to be expounded against the expresse Letter 25. Of a Villaine for years not good without Deed 42. Of a Reversion not good without Attornment 67. Of Monopolie void 68. Of a Rent where void 74. Of the office of Auditor 77. Of a Surveyorship 77. To a Colledge where void 77. Of Glebe Lands void to Children before birth void 78. Made upon good grounds è contr 128. of Services Quid operatur 129 of the next avoydance 160. 164 245. 579. of a Seigniory 169. of Pawnage 245. of copyholds 252. In pais not good without Attornment 366. Joynt where they enure severally 608. 609. By Ecclesiasticall persons 762. Where good without Attornment 455 Made Concurrentibus his how they operate 484 Guifts to Husband and Wife how to be taken 62. Causa Matrimonii prolocuti 275 H. HAbendum and Premisses their difference 100 Heire a mans heir remaines in him during his life 241 Heresie 8 Heriot service and custome 254 Homage by Husband and Wife 767. Auncestrell gone after Alienation 30. 410. May be seperated and twice done 113. Personall 150 Extinct 173. Auncestrell implyes Acquitaile 607. Hotchpot 205 600 Hospitalls 407 Huy and Cry 588 Hundred not chargeable to a Felony done in a mans house 668 I. IDiots examined in Chancery 123 Imprisonment 320 356 743 Indictments Not void by Nicity or Curiosity 26. 27. Good though not pursued in the Circumstances 386. Where the wound must be left out è contr 602. Fraudulent 620. Auterfoits acquite where a good Plea 501 Incidents 131. Incident services not discharged without speciall words 131. Fish and Doves to the Free-hold 226. To a Deed 321. To Corporations 135. Inseperable 135. A Judgement distroyes a Bond 222 Intire things 262 263 264 265 266. 498. Intire Inheritances
he in the reversion or his heires after the estate taile determined for default of issue may enter into the land by force of that condition and shall not be put to his Formedon in reverter Note Co. Inst pars 1 224. b. that here Littleton doth purposely make parcel of the condition in the copulative 1 viz. that the tenant in taile should alien c. and all the issues die c. for if a gift in taile be made to a man and the heires of his body and if he die without heires of his body that then the donor and his heires shall re-enter this is a void condition for when the issues faile the estate determineth by expresse limitation and consequently the adding of the condition to defeat that which is determined by the limitation of the estate is void and in this case the wife of the donée shall be endowed And therefore Littleton to make the condition good added an alienation which amounted to a wrong and restrained not the alienation onely for then presently upon the alienation the donor c. might re-enter and defeat the estate taile but addeth and die without issue to the end that the right of the estate might be preserved and not defeated by the condition but might be recovered againe by the issue in taile in a Formedon Co. ibid. 125. a. pl. Co. 107. in Fulmerstons Case 2 Note that in a condition consisting of divers parts Conjunction copulative and disjunctive in the copulative as above in the case of Littleton both parts must be performed but otherwise it is when the condition is in the disjunctive for in disjunctivis sufficit alterum esse verum what then if the condition or limitation be both in the copulative and disjunctive as if a man make a lease to the husband and wife for the terme of 21 yeares if the husband wife or any child betwéene them so long live and then the wife dieth without issue shall the lease continue or determine during the life of the husband The answer is that it shall continue for the disjunctive referreth to the whole and disjoyneth not onely the latter part as to the child Pl. 30. El. in C. B. Truepennies Case but also to the barn and feme so as the sence is if the barn feme or any child shall so long live So if an use be limited to certaine persons untill A. shall come from beyond Sea and attain to his full age or die here if he doth come from beyond Sea or attaine to his full age the use shall cease Co. l. 10. 59. a The Bishop of Sarums Case 3 In Avowry exception was taken to the barre Negative pregnant Pleading because where the avowant had alleadged by matter in fact that the office for which the annuitie was due had béen granted to such person or persons as pleased the Bishop of Sarum c. the defendant in his barre had pleaded in the negative that the said office had not béen granted but for the life of one c. and therefore the defendant ought to have concluded hoc quaerit quod inquiratur per patriam whereas he concluded all his plea with hoc paratus est verificare c. sed non allocatur for the Avowant alleadged not that the said office had béene granted c. to divers persons but to such person or persons as pleased the Bishop Et in disjunctivis sufficit alterum esse verum so that the defendant did not traverse what the Avowant had alleadged Pl. Co. 5. b. Fogasses Case 4 The Statute of 1 El. 13. Disjunctive for the payment of Subsidies for Merchandize is in the disjunctive viz. the subsidie not paid or the Collector not agréed with And therefore if either of these be done the intent of the Statute is performed Pl. ibid. 9. a. 5 The Statute of 26 H. 8. 3. is in the disjunctive Disjunctive viz. that every Parson Vicar c. which before they enter upon their benefice doe not satisfie content or pay or compound or agrée to pay to the King the first-fruits c. shall be taken as intruders And therefore although they do not pay down the first-fruits immediately but agree to pay them or as the Comon use is give bond for them it is sufficient Dyer 43. 22. c. 30 H. 8. 6 A Merchant having payed custom for certain Clothes Custome concealed ships them for beyond-sea in a tempest the Marriners for the safeguard of themselves and the ship were forced to throw the Clothes over boord and comming back to the same port they asked the Customer whether or no they might having that misfortune transport as many more Clothes without paying Custome the Customer told them he thought they might which they did accordingly hereupon an Information being brought the issue joyned was Quod Customarium Subsidium non fuerunt solut nec cum Collectore concordat Sed omnino concelat substract contra formam statuti c. And it was found by the Nisi prius at Guild-hall Quod Customarium Subsidium c. non concelat substract contra formam statuti c. And here it was doubted whether the verdict was for or against the King for the verdict had béene perfect if it had béen Quod non fuerunt concelat aut substract if the Iury had intended to find for the defendant but now their intent as it séemes was to acquit the defendant of the concealment but not of the Subtraction 10 Words in construction must be referred to the next antecedent where the matter it selfe doth not hinder it Remainder where good or void 1 If a man gives land to A haeredibus de corpore suo Co. Inst pars 1. 20. b. the remainder to B in forma praedicta that is a good estate to B. because in forma praedicta doth include the other Co. ibid. 385. b. But if a man letteth lands to A. for life the remainder to B. in tail the remainder to C. in forma praedicta this last remainder is void for the uncertaintie Howbeit if the remainder had been the remainder to C. in eadem forma this had been a good estate tail for Idem semper proximo antecedenti refertur Release 2 M. releaseth to N. Omnimodas actiones tà m reales quà m personales Co. l. 8. 154. b. Althams Case sectas quaerelas demanda quaecunque nec non totam dotem suam ac titulum actionem dotis sibi contingent post mortem T. viri sui de aliquibus terris tenementis suis in W. quae vel quas illa praefata M. vel executores sui versus ipsum N c. Here the words of Relation Quae vel quas do referre as well to the special words Dowers c. as to the generall words Actions c. and Demands for it would be against reason that they should referre to the
general words which are more remote and not to the words of qualification which are néerer unto them Pretended rights 3 The Statute of 32 H. 8. 9. provides Pl. Co. 88. 6. in Partridges case that none shall buy rights of titles in land unlesse such person c. have béene in possession of it or of the reversion or remainder of it or have taken the rents and profits of it by the space of one whole yeare next before Here these words by the space of one whole yeare shall be onely referred to the sentence next before viz. the taking of the rents and profits Abbey Lands Leases 3 The Statute of 31 H. 8. 13. ordaines Pl Co. 107. a Fulmerstons case that farmers of Abbey lands which had then Leases in being should enjoy them for 21 yeares from the time of the making of such leases if so many years were therein limited or else they should enjoy them for so many yeares as in such lease or leases were expressed so that the same lease or leases exceeded not 21 yeares Here this last sentence so that c. relates to the clause next going before it and not to the first Ad proximum antecedens fiat relatio Alienation of an entail 4 Sir Th. Cheyney in 1 El. deviseth c. to H. his sonne Co. l. 5. 68. a. The Lord Cheyneys case and to the heires male of his bodie remainder to Th. Cheyney of D. and the heires male of his bodie upon condition that he or they or any of them shall not discontinue The question was whether or no H. the sonne was included within these words he or they And it was resolved by Wray and Anderson after conference had with other Iudges that those words should not be referred to the grant made to H. the sonne but onely to the grant made to Th. Ch. of D. Tithes 5 Qu. El. grants to I. S. Totam illam portionem decimarum Co. l. 4. 35. a. Bozoms case c. in L. in com N. cum omnibus aliis decimis suis quibuscunque in L. in dict com N. nunc vel nuper in occupatione I. C. Here these last words nunc vel nuper c. referre to the whole sentence and not to the later part of it onely viz. cum omnibus aliis c. 1 Because the first words are Totam illam portionem Decimarum c. So that this pronoune illam sheweth plainly that there ought to be subsequent words to explain and reduced into certaintie what portion by the intention of the Qu. shall be granted The reference of illam viz. that which was in the occupation of I. C. And therefore this pronoune illam is not satisfied untill you come to the full end of the sentence 2 This Conjunction cum omnibus aliis c. couples the last words with the former and makes the subsequent words referre to the whole sentence Vide supra Max. 8 Case 11. Dyer 46. b. P. 31 32. H. 8. 6 An Indictment found in this manner that Eliz. fuit in pace Indictment c. quousque A. vir prefatae Eliz. de D. in com S. yeoman did kill her is good for the addition yeoman must of necessity referre to the husband because a woman cannot be a yeoman But an Indictment Quousque Alicia S. de D. in comit S. uxor I. S. Spinster c. is not good again Alice S. for there Spinster being an indifferent addition both to man and woman must referre to I. S. being the next antecedent and so the woman hath no addition 9 E. 4. 48. so likewise an indictment against I. S. serviens I. D. de D. in com Midd. yeoman is not good for servant is no addion and yeoman referreth to the Master which is the next antecedent Dyer 15. b. 28 H. 8. 7 A man makes a lease for life the remainder in taile In forma pâ—dicta the remainder to I. S. in forma praedicta this shall not referre to the estate which is the next before but to the first estate because there wants the word heires to cause him to have an estate taile Dyer ibid. 8 A man is bound to abide the award of I. S. who awards Relation of time that the one party shall pay before such a feast 10 l. to the other and that then the other shall make him a release This word then shall not be referred to the feast but to the time of payment of the money Dyer ibid. 9 In a Cui in vita brought by a feme the writ is Cui in vita Cui ipsa in vita sua contradicere non c. this word sua shall not be referred ad proximum antecedens viz. ipsa but to the baron 11 The Law delighteth in apt expressions Co. Inst pars 1 302. a. 1 Whensoever a Confirmation doth enlarge or give an estate of Inheritance there ought to be apt words as Littl. expresseth them Sect. 533 used for the same Apt words Co. ibid. 297. a. 2 If a disseisor make a lease for 100 yeares Confirmation the disseisée may confirme parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the estate of the Lessée for in that case though it should be but for an houre it gives the disseisor fee simple for ever as you have it in Littl. Sect. 519 and 520. and then also the addition of parcel of the terme would be repugnant if the whole were confirmed before but the confirmation must be of the Land for part of the terme Co. l. 1 85. a. in Corbets Case 3 Iudges ought to know the intention of the parties by certaine and sensible words Certain and uncertain words which are agréeable and consonant to the Rules of Law And therefore if land be given by déed to two to have and to hold to them haeredibus this is voide for the insensibility and uncertainty And albeit they have a clause of warranty to them and to their heires this shall not make the first words which are uncertain and without sense to be of force and effect in law although his intent appeare for his intent ought be declared by words certaine and consonant to law Co. l. 6. 26. a. Sharps Case 4 If one saith thus unto another Improper words I do here demise unto you my house for terme of your life this is a good beginning if actual livery be made accordingly or if he use apt words which may amount to so much but without livery or such words such a demise doth amount but to a Lease at will Vide Thorough goods case Co. l. 9. 137. b. Co. l. 6. 43. a. 5 In Sir Anthony Mildmayes case it was observed Compendiousness that in the Proviso there to restraine the tenant in tail from alienation found at large by the speceial
As a Villain is disabled against his Lord but not as to any other Co. lib. 8. 45. Whittinghams case 18 If a Bastard be seised of lands in fée and make feoffment thereof Bastard Feoffment Livery and after die without issue In this case if livery were made by the Bastard himselfe in person and so the feoffment executed by himselfe it shall stand good but if livery were made by attorney the lands shall escheat c. Co. lib. 8. 145. Davenports case 19 A. hath a Rectory unto which a Vicarage is appendant Grant of the next avoydance for certain yeares yet in being and grants the next avoydance of the Vicarage to B. and after surrenders the Rectory to him in reversion In this case albeit as to all strangers the estate of the Rectory is determined by the surrender yet as to the Grantée of the next avoidance of the Vicarage it hath continuance and if the avoidance happen within the terme the Grantée shall present c. So also if the Lessée for yeares grant a rent Surrender after grant of a rent and then surrender yet for the benefit of the Grantée the terme hath continuance albeit in rei veritate it is determined â—â—owrie â—uo Warâ—â—nto 20 In Avowrie Co. l. 9. 29 b. 1. In the case of the Abbot of Strata Mercella Co. l. 11. 50. a 2 Richard Liffords case it is not necessary to shew to the Plaintiff by what title such a Franchise is claimed but when a Quo Warranto is brought by the King the Lord of the liberty ought to shew his title â—xception of â—rees 21 If Lands be demised to one for life exceptis quercubus ulmis fraxinis adhunc crescend ultra crescentiam 21 annorum c. The Lessor may sell the great Timber so excepted and then fictione juris as to the Lessée the Trees are divided from the franktenement but as to all others they are parcel of the inheritance of the Lessor â—everance of â—rees 22 If Tenant in Tail sells the Trees to another Co. ibid. that is a Chattel in the vendee and his Executors shall have them and in such case fictione juris they are severed from the land but if Tenant in Tail die before actual severance as to the issue in Tail they are parcel of his Inheritance and shall go with it neither may the Vendee then take them and yet as to the Tenant in Tail himself they were severed for a time â—annor â—anted exâ—â—pt an acre 23 A man makes a Lease of a Mannor 1. 2. P. M. 104. Finch 18. except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eygne title it remaineth parcel and therefore he shall make no foreprise thereof in his Writ 52 Relation is of great force in Law â—ncestor and â—eir and the â—estator and â—xecutor Corâ—â—laiiva 1 If a man make a Lease for life to one Co. Instit pars 1. 54. b. 4. and 319. b. 1. the remainder to his Executors for 21 years the term for years shall vest in him for even as Ancestors and heirs are Correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in tail the remainder to the right heires of A. the Fée vesteth in A. as if it had béen limited to him and his heires even so are the Testator and the Executors Correlativa as to any Chattel And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessée himself as well as if it had béen limited to him and his Executors â—rank-marâ—age 2 A. Enfeoffes B. upon Condition Co. ibid. 219. b. 3. that B. shall make an estate in Frank-marriage to C. with one such as is the daughter of the Feoffor In this Case B. cannot make an estate in Frank-marriage because the estate must move from the Feoffée and there is not betwixt the Feoffée and the Daughter of the Feoffor the néer relation of Blood which is required betwixt the Donor and the feme Donée in Frank-marriage for here the Daughter is not at all of the blood of the Feoffée â—rotection â—nd Subjectiâ—â— relata from â—e birth 3 In matters of state Subjectio and Protectio are Relatives Co. l. 7. 4. b. 3. Calvins case and immediately upon the birth of a subject that relation begins for ligeance doth not begin by the oath in a Leet but comes into the world with a true subject and he oweth it unto his Sovereign by birth-right so also is the Soveraign bound from that very time to protect his subject And therefore it is truly said that Protectio trahit subjectionem Subjectio protectionem And this is the reason Co. ibid. 9. b. 1 that ligeance cannot be local or confined within the bounds of England onely for wheresoever the subject is there likewise is to be found the foresaid Relation And therefore Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non Patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and he also remaineth within the Kings protection because the King if he please may pardon and restore him to his Country again Co. l. 7. 30. 4. 1. Discontinance of Proces â—â—mmons and â—â—summons â—â—ta 4 For Continuance of Proces upon demise of the King there shall never be Resummons or Reattachment but where there was at first Summons and Attachment for these are Relatives and answer in relation one to the other Co. l. 8. 85. b. 8. Sir Rich. Pexhals case 5 If A. devise to B. 10. l per annum to be paid quarterly Office and the Fee reâ—â—â— and that B. shall keep his Courts c. A. hath an estate for life in this annuity for officium and feodum are Relatives and Concomitantia and he shall have the like estate in the Fée that he hath in the office Co. l. 10. 104. b. 2. Alfrid in Denbawds case 6 At the time of granting the Tales the principal Array must stand Quales and Tales relâ—â— for Tales are words of similitude and have reference to a resemblance which at that time ought to be in esse and therefore if the Array be quashed or all the Polls challenged and tried out no Tales shall be awarded for at that time they were not Quales but in that Case a new Venire facias shall be awarded Howbeit if at the time of granting the Tales the principal pannel did stand and after is quashed as aforesaid yet the Tales shall stand for it sufficeth that they were Quales at the time of granting the Tales and this appears in 34 H. 6. Tit. Enquest 30. Co. l. 10. 116. b. 4. Rob. Pilfolds case 7 This word Damna is taken
in the Law in two significations Damages 〈◊〉 the Wronâ— relata the one properly and generally the other relative and strick properly as when costs of suit are also included in it c. But when the Plaintiff sheweth the wrong done unto him to the damage of such a sum this is to be taken relative for the wrong which is past before the Writ brought and they are then to be assessed occasionis transgressionis praedictae and cannot extend to Costs of suit which are future and of another nature viz. to expences in Law whereof no certainty can then be known Co. Inst pars 1. 338. b. 4. 8 An Estate-tail cannot be discontinued but where he Discontiâ—â—ance Vidâ— M. 23. 5. that made the discontinuance was not once seised by force of the Tail except it be by reason of Warranty c. according to the Rule in Philosophie Omnis privatio praesupponit habitum Co. ibid. 341. b. 3. for he cannot discontinue that estate which he never had Neither yet can a Parson discontinue the Fee-simple of his parsonage Co. ibid. 359. 24. because the intire and Fee-right thereof was never in him 9 If a Feofment be made to two Livery to 〈◊〉 enures to both and livery is made onely to one of them but yet according to the deed In this case the livery shall enure to both because the deed whereunto the livery referreth is made to both Verba relata hoc maximè operantur per referentiam ut in eis inesse videntur Pl. Co. 70. b. 2. in Kedwellies case against Brand. 10 Where Rent is reserved to be paid out of the Land at Dale upon Michaelmas day if it be behind 40 dayes after Place of pâ—â—ment of Râ—â— that then it shal be lawfull for the Lessor to re-enter In this case it ought to be tendred at Dale a convenient time before Sun-set upon the last of the 40 dayes for albeit it be not by expresse words that if the Rent be behind and unpaid at Dale by the space of 40 dayes c. yet it shall have Relation to the place first named and so the Law saith that the Rent shall be paid at Dale the last of the 40 dayes although it be not so expressed by plain words Vide 131. 5. Dyer 14. 69. 28 H. 8. per Shelley and Fitz-herbert 11 The Termor-covenants by Indenture to build an House without words of Executors the Term expires and he dies In this case Executors chargeable without naming theâ— the Executors shall be charged for they are co-relatives with him and represent his person it is otherwise of the heir unlesse he be named It is so likewise of an Obligation because it is a present duty See also Dyer 22. b. 139. 28 H. 8. Per curiam 12 Two have a Term as Executors Executors intirely possest and one of them grants all that he hath in the Land Dyer 23. b. 146. 28 H. 8. In this case the whole Lease passeth because each Executor representing the person of the Testator hath an Intire authority Howbeit the Law is otherwise of other Iointenants 13 A. by Indenture inrolled demiseth the Mannor of D. to B. and his Heires in fee farm rendring Rent with clause of distresse Dyer 157. Pl. 28. 4 5. P. M. Rent not â—tinct by a Fine and upon non-payment a re-entry by the same Indenture Covenants to make such assurance c. according to the true intent purport and meaning expressed in the same Indenture and by another Indenture bearing date the same day A. covenants to levie a Fine of the said Mannor c. before such a feast c. which Fine should be to the onely use intents effects and conditions expressed in the former Indenture and to none other and livery of Seisin was made upon the same Indenture accordingly and after the Fine was also levied viz. come â—eo quae B. habuit ex dono A. with release and warranty according to the course of Fines c. In this case the Rent was not extinct or touched by the Fine because the Fine had relation to the former Indenture Challenge 14 If a Iuror be but a suitor to the Leet of the Plaintiff or Defendant this is a principal Challenge Dyer 176. 27. 2 Eliz. in respect of that relation betwixt them which may procure favour Covenant 15 A Feme hath the third part of the Land of a Termor delivered unto her by the Sheriffe in Dower the Termor gives grants Dyer 240. 43. 7 Eliz. and assignes all the Land comprised in his Lease to A. and covenants that he had not done any act but that the Assignée may enjoy it against every one and he was also bound by Obligation to perform the Covenants In this case the Obligation is not forfeited for the words but that have Relation to the words of the Lessee viz. that he hath not done any Act and are not absolute words as if the Assignee should enjoy it against all men 53 Verba posteriora propter certituâ—inem addita ad priora quae certitudine indigent sunt referenda 1 Sir Adam de Clydrow Knight 6 E. 3. 12. Co. l. 8. 119. a 1. in Dr. Bonhams case brings a praecipe quod reddat against John de Clydrow Reference of words and the Writ was quod justè c. reddat manerium de Wicombe duas crucat terrae cum pertinentiis in Clydrow In this case the Town of Clydrow shal not relate to the Mannor quia non indiget for the Mannor may be demanded without making mention that it lyeth within any Town but cum pertinentiis although it cometh after the Town yet doth it relate to the Mannor quia indiget c. Vide 3 E. 4. 10. The like 2 If a man grant Rent in manerio de praecipiend in C. Acres of Land parcel of the same Mannor with clanse of distresse in the C. Acres Co. l. 8. 154. b. 2. Sir Edw. Althams case In this case the Rent shall onely issue out of the C. Acres and the general words shall be construed according to the special words according to the Rule in Margery Mortimers case 7 E. 3. fol. 10. a. Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausulae generali sunt consentanea interpretanda est carta secundum verba specialia Rent 3 If a man grant Rent and go no farther Co. ibid. these words shall create an estate for life but if the habendum he for yeares that shall qualifie the general words â—ail 4 If a man give Lands to one and his Heires Co. ibid. habendum to him and the Heires of his body he shall have but an Estate-fall and no Fée expectant for the habenâ—um qualifies the general words Precedent 5 A Feme hath title of Dower in Lands in Wethersfield Gosfield Co. l. 8. 154.
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his