MAXIMS OF REASON: OR, THE REASON OF THE COMMON LAW OF ENGLAND. BY EDMOND WINGATE, late of Grayes-Inn, E sq. LONDON: Printed by R. & W. L. for W. Lee, A. Crook, D. Pakeman, H. Twiford, G. Bedell, T. Dring, J. Place, and are to be sold at their Shops. MDCLVIII. TO THE READER. READER, I Am determined, the common Apologies (importunity of Friends, and written first for my private advantage,) shall have no room in this letter: It is more agreeable to my nature, to acknowledge that these leaves had their Principles and Origination from a mere design of Public good: if any thing shall appear grateful, let the intention be encouraged; if there be defects, let Humanity be considered: If there be Errors, let frailty be pardoned: If my Labours may be hints and incitements to persons of larger abilities to expose to the World, the Nobler products of their more improved Reason, in discourses of this Nature, I shall esteem myself recompensed above the damage of the sharpest censure. It will not be of concernment to offer here my reflections upon the first Rudiments of all Commonwealths; being agreed that since our Nature and the Powers of our Souls were degraded in Adam; there is an absolute necessity that our Passions, and Exorbitancies should be charmed and confined by Politic Combinations, Civil Appointments and Laws; without these the World would be but an Arena sine Calce, a great Bedlam. 'tis without compliment to my profession, when I affirm that this Nation was eminently blessed with the choicest Composures; and had as great a share of wisdom infused into the Fundamental and Architectonical principles, upon which our Government is built, as any Society under Heaven can boast of: Observe the harmony betwixt the Laws and the Genius of the people, The Religious ties and sacred confinements of Royalty, the strict Guards set upon propriety, the flourishing wealth, and peaceful fruitions of those Estates with which our own Virtue or Industry, or the benignity of Providence endowed us, all these are to be reckoned as the amiable fruits of those Sanctions which the wisdom of our Forefathers transmitted to us. Now all Laws that are Just and Prudent, aught to be viewed as Radii and Effluxes from the Eternal Wisdom, having their Exemplar Cause and bright Idea in God himself: The mediate Author of these is humane Reason, exalted and purified by Learning and Experience, and enlightened by the Divine Spirit; I presume there is no fear of Sosinians in Law, and that attempts may be made without danger, to discover how the vast multitude of Cases, that Follies, or Passions, or Necessities of men have obliged us to be acquainted with, are all accountable and reducible to some few Theses; which being prime Emanations and Grand Maxims of Reason, govern and resolve the subordinate miscellany of queries, and may serve for a Clue and Conduct, through the Labyrinth of that perplexed variety; Saving us the labour of Chargeing our Memories with every particular, which in the result is less apt to profit, then to burden and confound us. I do not despair but that every Student who seriously intends to become his Gown, shall find some satisfaction in noting the same Key to open so many Locks; when he sees such a number of Cases obeying, one ruling Axiom, attesting its Supremacy, as they are strung upon the thread of the same Reason: But whatever the success be, if my Lord Verulam speaks true, that it deserves praise to make wishes that are not absurd, it will easily be granted, that when such Wishes are pursued with endeavours, if they merit nothing else, they may certainly lay claim to pardon. EDMOND WINGATE. An Advertisement to the Reader. COURTEOUS READER, BE pleased to mend with thy pen the numbers of some pages in this Book; namely, from folio 192, to folio 325, and then will the Table at the end of this Book exactly agree with the printed pages, which otherwise in those folios will be 10 short. THE ORDER Of the Maxims of Reason; Or the Reason of the COMMON LAW OF ENGLAND. Maxims, viz. From Theology. I. SVmma ratio est, quae pro Religione facit. It is the highest Reason that makes for Religion, fol. 3 II. Nunquam prospere succedunt res Humanae, ubi negliguntur Divinae. Humane Laws never succeed well, where Divine Rites are neglected, fol. 6 III. To such Laws as have Warrant in holy Scripture, our Law giveth credence, & e contr. fol. 6 IU. The Jurisdiction of the Ecclesiastical Law, aught to be bounded by the Common Law, fol. 7 V. Dies Dominicus, non est juridicus, fol. 7 VI Gravius est divinam, quam Temporalem laedere Majestatem, fol. 8 VII. The Law disfavoureth an Excommunicate person, fol. 9 From Grammar. VIII. The Rules from Grammar are infinite, in the Etymoligy of words, and in the construction of them; what their nature is single, what joined with others, etc. fol. 11 IX. In conjunctivis oportet utrumque in disjunctivis sufficit alteram partem esse veram, fol. 13 X. Words in Construction must be referred to the next Antecedent, where the matter itself doth not hinder it, fol. 15 XI. The Law delighteth in apt Expressions, fol. 16 XII. Nomina si nescis, perit cognitio rerum, fol. 18 XIII. M●la Grammatica, non vitiat chartam, fol. 18 XIV. Qui haeret in littera hae●et in Cortice, fol. 19 XV. Talis interpretatio fienda est, ut evitetur absurdum & inconveniens, & ne judicium sit illusorum, fol. 21 XVI. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est, fol. 24 XVII. Maledicta expositio est, quae corrumpit textum, fol. 26 XVIII. Nimia subtilitas in lege reprobatur, fol. 26 From Logic. XIX. Cess●nte causa, cessat effectus, fol. 29 XX. Remoto impedimento, emergit actio, & e contr. fol. 38 XXI. Things are construed according to that which was the cause thereof fol. 41 XXII. Cujus est dare, ejus est disponere fol. 53 XXIII. Vltra posse, non est Esse, & vice versa fol. 54 XXIV. Nemo potest plus juris ad alium transferre quam ipse habet fol. 56 XXV. Things are construed according to that which was the beginning of them fol. 62 XXVI. Derivata Potestas, non potest esse major primitiva fol. 66 XXVII. Vnam quodque Dissolvitur eo modo, quo Colligatum est: Nihil tam conveniens naturali aequitati, unumquodque dissolvi eo ligamine quo ligatum est fol. 68 XXVIII. Things grounded upon an evil void beginning, cannot have good perfection fol. 72 XXIX. Quod non habet Principium, non habet finem fol. 79 XXX. He that claimeth Paramont a thing, shall never take benefit, nor hurt by it fol. 79 XXXI. Things are to be Construed, secundam subjectam materiam fol. 85 XXXII. According to the End fol. 91 XXXIII. Qui adimit medium, dirimit finem fol. 94 XXXIV. According to the effect fol. 96 XXXV. He that cannot have, or perform the effect or consequence of a thing, shall not have the thing itself fol. 104 XXXVI. Non officit Conatus, nisi sequatur effectus fol. 107 XXXVII. Acta exteriora, indicant interiora secreta fol. 108 XXXVIII. Inutilis Labour, & sine fructa, non est effectus Legis, & e contr. fol. 110 XXXIX. Lex non Praecipit inutilin fol. 112 LX. Debile Fundamentum fallit opus, & e contr. fol. 113 LXI. Things incident are adherent to their Superiors or Principals fol. 127 LXII. Quod tacite intelligitur, de esse non videtur fol. 137 LXIII. Things by reason of another, are in the same plight fol. 141 From personal things. LXIV. Personal things, cannot be done by another fol. 150 LXV. They cannot be granted, or transferred over as matters of pleasure, ease, trust, and authority fol. 153 LXVI. They being once suspended, or discharged for a time, are for ever after Extinct fol. 154 LXVII. They die with the person fol. 155 LXVIII. Things do enure diversely according to the diversity of the time fol. 157 LXIX. Quod prius est tempore, potius est jure fol. 159 L. According to the diversity of the same person fol. 160 LI. According to the diversity of several persons fol. 162 LII. Relation, is of great force in Law fol. 165 LIII. Verba posteriora propter certitudinem addita, ad priora, quae rertitudini indigent, sunt referenda, fol. 167 LIV. No man can do an Act to himself, fol. 168 LV. The Law favoureth Privity, fol. 172 LVI. Equal things cannot drown one another, & e contra, fol. 190 LVII. Things are to be construed, secundum aequalitatem rationis, fol. 190 LVIII. In quo quis delinquit, in eo de jure, est puniendus, fol. 202 LIX. Omne Majus Continet in se minus. fol. 206 LX. Additio probat minoritatem, fol. 211 LXI. A matter of higher nature determineth a matter of lower nature, & e contra, fol. 212 LXII. The more worthy thing draweth unto it things of less worthiness, fol. 215 LXIII. Accessarium sequitur Principale, fol. 218 LXIV. Things accessary are of the nature of the Principal, fol. 226 LXV. A man's one words are void, when the Law speaketh as much, or otherwise, fol. 231 LXVI. Expressio eorum quae tacite in sunt, nihil operatur, fol. 235 LXVIJ. Parte quacunque integrante sublata, tollitur totum, fol. 236 LXVIJJ. Ex tota materia, emergat Resolutio, fol. 238 LXJX. Parts simul sumptae componant totum: & totum comprehendit suas parts, fol. 241 LXX. Entire things cannot be severed, fol. 242 LXXI. Argumentum a Divisione, est fortissimum in lege, fol. 260 LXXII. General's must go before, and the specials must follow after, fol. 261 LXXIII. The more worthy shall be set before the less worthy, fol. 261 LXIV. Sicut natura non facit saltum, Ita nec Lex, fol. 263 LXXV. A digniori fieri debet Denominatio, & Resolutio, fol. 265 LXXVI. The Law requireth decency and order, fol. 267 LXXVII. Negatio Conclusionis, est Error in Liege, fol. 268 LXXVIII. The Law respecteth the Bonds of Nature, fol. 268 LXXIX. Nemo praesumitur alienam posteritatem suae praetulisse, fol. 285 The Law. LXXX. The Law esteemeth and judgeth of all things according to their nature and quality, fol. 286 LXXXI. In persons, the Law looketh at the Excellency of some, and giveth them singular privileges above others, as to the King, Queen, Noble men, and Peers of the Realm, etc. fol. 292 LXXXII. The Law giveth greater privileges to men, then to women, fol. 313. and, LXXXIII. It tendereth the weakness and disability of other persons, as of those out of the Realm, Feme Coverts, Enfants, etc. fol. 313 LXXXIV. It tendereth the ignorance of men unlettered, fol. 322 LXXXV. It favoureth strangers, that are neither parties, nor privies, fol. 323 LXXXVI. Res inter alios acta, alteri nocere non debet, sed quandoque prodesse potest, fol. 327 LXXXVII. Nemo punitur pro alieno delicto, fol. 336 LXXXVIII. The Law favoureth things done in another's right, fol. 338 LXXXIX. It disfavoureth other persons, as Villains, Outlaws, Exiles, Aliens, and especially Aliens Enemies, fol. 343 XC. How the Law tendereth Ages, fol. 348 XCI. The Law in things, respecteth every thing according to worthiness, fol. 250 The Law. XCII. It respecteth life and liberty most, and the person above the possessions, fol. 353 XCIII. it respecteth things in the realty, more than those in the personalty, fol. 359 XCIV. It respecteth Freehold and Inheritance more than it doth Chattels, fol. 362 XCV. It respecteth matters of Record more than other transactions, fol. 368 XCVI. It respecteth Conveyances by Livery, and which pass Estates of the land, than those that pass by Grant, or are belonging to, or issuing out of land, fol. 371 XCVII. It favoureth a matter in the right more than a matter in possession, fol. 373. yet XCVIII. It favoureth possession where the right is equal, fol. 375 XCIX. It respecteth matters of profit and Interest largely, of pleasure, skill, trust, authority, and limitation strictly, fol. 376. and C. Therefore these may be Countermandants, so cannot those, fol. 381 CI. It respecteth matter of substance more than matter of circumstance, fol. 382 yet CII. For memory and solemnity, substances are to be expressed under circumstances. fol. 393 CIII. It respecteth things executed and done more, then Executory, and to do, etc. fol. 395 CIV. Possibility of things, fol. 403. and CV. Therefore nothing to be void, which by possibility may be made good, fol. 406 CVI Id certum est, quod certum reddi potest, fol. 408 CVII. Res non per se invicem, sed per pecuniam estimantur, & non pecunia, per res, fol. 411 The Law. CVIII. It favoureth mutual recompense, fol. 411 CIX. De minimis non Curat Lex, fol. 418 CX. It yieldeth favour in actions when there is no damage of them, 1. Necessity, fol. 420 CXI. 2. Conveniency, fol. 428 CXII. 3. Conformity, fol. 429 CXIII. 4. Colour, fol. 431 CXIV. It prizeth the Acts of God and of the Law, more than those done by the party, fol. 432 CXV. Vtique fortior, est dispositio Legis, quam hominis, fol. 446 CXVI. It reputeth that a man will deal for his own advantage best, fol. 153 and CXVII. Therefore it beleiveth against the party whatsoever is to his prejudice, fol. 459 CXVIII. When several remedies are given, the party to whom the Law giveth them hath election which he will take, fol. 473 CXIX. Cujus est divisio, alterias est Electio, fol. 478 CXX. Nemo prohibetur pluribus defensionibus uti, fol. 479 CXXI. Consensus tollit Errorem, fol. 481 CXXII. Volenti non fit injuria, fol. 482 CXXIII. Quilibet potest renunciare juri, per se introducto, fol. 483 CXIV. Omnis Ratihabitio retrotrahitur, & mandato seu licentiae aequiparatur, fol. 485 CXXV. Nemo tenetur accusare seipsum, fol. 486 CXXVI. Nec se infortuniis, & periculis exponere, fol. 487 The Law. CXXVII. Countenanceth things done more in the time of Peace, then in the time of War, fol. 487 CXXVIII. It countenanceth things done in the day, more than in the night, fol. 488 Things are to be streightened according to the nature of them. CXXIX. 1. Sometimes a whole day is sufficient fol. 481 CXXX. 2. Sometimes a whole year, fol. 489 CXXXI. 3. Sometimes to the last part of the day, fol. 490 CXXXII. 4. When no time is limited, the Law appointeth the most convenient time, fol. 491 CXXXIII. The third Offence is esteemed most heinous, fol. 494 CXXXIV. The place ought to be convenient, fol. 494 Maxims, Taken out of Morality. CXXXV. The Law favoureth Charity, fol. 497 CXXXVI. De mortuis nil nisi bonum, fol. 498 CXXXVII. It hateth malice and oppression, The Law. fol. 499 CXXXIX. It hateth Vice, fol. 499 CXL. Interest Reipublicae, ne maleficia remaneant impunita, fol. 501 CXLI. It favoureth Justice and Right, fol. 502 CXLII. That which is not tortuous in itself, cannot be tortuous to any, fol. 508 CXLIII. Interst Reipublicae ne Curia Domini Regis, deficeret in Justitia, fol. 545 Law. CXLIV. It favoureth common Right, fol. 547 CXLV. It suffereth things against Principles of Law, rather than the party be without remedy, fol. 549 CXLVI. It hateth wrong, fol. 563 so as CXLVII. None shall take benefit or advantage of their own wrong, fol. 568 CXLVIII. The Law of itself prejudiceth no man, fol. 575 CXLIX. Especially for things which cannot be imputed to their own folly or neglect, fol. 581 CL. Nemo debet rem suam sine facto, vel defectu suo amittere, fol. 592 CLI. It driveth not a man to show, take notice of, or do that which by intendment he knows not, or should, or cannot do, fol. 593 CLII Nor to do that which were in vain for him to do, fol. 600 CLIII. Non licet, quod dispendio licet, fol. 603 Law. CLIU It favoureth truth, faith, and certainty, fol. 604 CLV. It disfavoureth impossibilities, fol. 606 CLVI. Non cogit ad Impossibilia, & Impotentia excusat Legem, fol. 609 CLVII. It disfavoureth falsehood, fraud, and covin, fol. 6●0 CLVIII. Ju●, & frans, nunquam cohabitant, fol. 680 CLIX Quando aliquid prohibetur fieri, ex directo prohibetur, & per obliquum, fol. 618 CLX. Rectum est Index sui, & obliqui, fol. 620 CLXI. It disfavoureth Improbabilities, fol. 620 CLXII. It disfavoureth Incertainties, by the which the truth may be inveighed, fol. 621 CLXIII. Impersonalitas non concludit, nec ligat, fol. 634 CLXIV. Generale, nihil certi implicat, fol. 635 CLXV. Dolosus versatur in generalibus, fol. 636 CLXVI. 1. Variance, fol. 636 CLXVII. 2. Contrariety and Repugnancy, fol. 638. and therefore CLXVIII. 3. It will not drive a man to justify or show that which he goeth about to defeat, or makes against him, fol. 646 CLXIX. Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio, fol. 647 CLXX. None shall take exception to an Error, or Act, which operateth to his own advantage, fol. 648 CLXXI Nemo tenetur armare adversarium suum contra se, fol. 665 CLXXII. It favoureth diligence, and therefore hateth folly and negligence, fol. 665 CLXXIII. Negligentia semper habet infortunium Comitem, fol. 669 CLXXIV. Vigilantibus non Dormientibus L●ges subveniant, fol. 672 CLXXV. It favoureth speedying of men's Causes, fol. 673 CLXXVI. It hateth Delays, fol. 674 CLXXVII. It hateth unnecessary Circumstances: And Frustra fit per plura, quod fieri potest per pauciora, fol. 675 CLXXVIII. Expedit Reipublicae, ut sit finis Litium fol. 676 CLXXIX. Circuit of Action fol. 680 CLXXX. Matter of Vexation fol. 680 CLXXXI. Pendente Light, nihil innovetur fol. 681 CLXXXII. unfitness, and multiplicity of Suits fol. 682 The Law. CLXXXIII. It construeth things with equity and moderation fol. 685 CLXXXIV. It restraineth a general Act, or Rule, and sometimes a particular Contract, if it be mischievous or inconvenient fol. 687 CLXXXV. Nemo bis punitur, pro eodem relicto fol. 695 CLXXXVI. It flieth, and preventeth all occasions of Evil fol. 696 CLXXXVII. It moderateth the strictness of the Law itself fol. 702 CLXXXVIII. Verba semper accipienda sunt in mitiori sensu, fol. 705 CLXXXIX. It construeth things according to common possibility or Intendment fol. 703 CXC. Stabit Presumptio donec probetur in Contrarium fol. 712 CXCI Ad ea quae frequentius accidunt, jura adaptantur fol. 716 CXCII. Frequentia Actus multum operatur, fol. 719 CXCIII. It always construeth things to the best, fol. 720 CXCIV. Every Act to be lawful when it standeth indifferent, whether it should be lawful or not, fol. 722 CXCU. Non praestat impedimentum, quod de jure non sortitur effectum, fol. 727 CXCVI Praetextu liciti non debet admitti illicitum, fol. 728 The Law. CXCVII. It favoureth things for the Commonwealth, fol. 729 CXCVIII It favoureth public Commerce, fol. 738 CXCIX. It favoureth Honour and Order, fol. 739 CC. It favoureth public quiet, fol. 742 CCI Conventio, seu beneficium privatorum non potest publico juri derogare, fol. 746 CCII Minime mutanda sunt, quae certam habuerunt Interpretationem, fol. 748 CCIII. A Communi observantia, non est recedendum, fol. 752 CCIV, Eventus varius res nova semper habit, And therefore it hath new Inventions and Innovations, fol. 756 CCV. Communis Error, facit jus, fol. 758 CCVI So doth a Custom which is reasonable: unreasonable e contr, fol. 758 CCVII Licet consuetudo sit magnae Authoritatis, nunquam tamen praejudicat manifestae veretati, fol. 762 Wife. CCVIII. The Husband and Wife are one person in Law, fol. 763 CCIX The wife is of the same condition with her husband, fol. 764 CCX. They cannot sue one another, or make any Grant one to another, or the like, fol. 765 CCXI Upon a joint Purchase during the Coverture, either of them taketh the whole, fol. 766 CCXII The husband is the woman's head, fol. 767 CCXIIJ. All that she hath is her husbands, fol. 768 CCXIU Her will ought to become his will, and to be subject unto it, fol. 770 Maxims of Reason: OR, THE REASON OF THE COMMON LAW OF ENGLAND. Laws are divided into Native and Positive. Native are such Laws as are in us of themselves, and are therefore unchangeable and not to be abrogated: These are likewise twofold, viz. The law of Nature, and the Law of Reason. The Law of Nature is that Law, Co. l. 7. 12. b. in Calvin's case. Doct. & Stud. l. 1. cap. 1● which God at the time of the Creation of the nature of man infused into his heart for his preservation and direction: This is that Law, which is called Lex aeterna or the Moral Law, & administereth common principles of good and evil, as That men should live peaceably together; That we should not do that to another, which we would not have another do to us; suum cuique tribuere; That Justice should be duly administered to all,; and the like: This was termed by the Ancient Philosophers Original Justice, which in Adam's innocence was clear and lightsome, but since his fall (both in himself and his posterity) much darkened and encumbered with original sin. This is also the Law, whereof Saint Paul makes mention in his Epistle to the Romans, where he saith, When the Gentiles, which have not the Law, Rom. 2.14, 15. do by nature the things contained in the Law; These, having not the Law, are a Law unto themselves, which show the work of the Law written in their hearts, their conscience also bearing witness, and their thoughts in the mean while accusing or excusing one another. The Law of Reason is that Law, which deduceth conclusions from known Principles by ratiocination or discourse of sound reason, which Principles are termed Rules or Maxims of Reason. Positive Laws are such Laws, as are framed by the light of the two former, for the regular Government of some particular Common wealth; And therefore these Laws are sundry and divers according to the several constitutions of particular places and Countries; of this sort is the Common Law of England, which being the Municipal Law of this Nation, and receiving its light (principally) from the Law of Reason, is many times directed and controlled by the Rules and Maxims thereof: Now of these Maxims, some are taken out of foreign Sciences, as Theologie, Grammar, Logic, Physic's, Moral Philosophy, Politics and Oeconomiques; The rest are proper to the Law itself, as Law-constructions and Fictions in Law; All which will more plainly appear by the Precepts and Examples hereafter following. I Maxims of Reason taken out of THEOLOGIE. 1 Summa Ratio est, quae pro Religione facit. It is the high Reason that makes for Religion. Statutes which restrain Alienation of Ecclesiastical live, bind the King though not named. 1REgularly Statutes bind not the King, Co. l. 8. 14. a. In the case of Ecclesiastical persons. Co. l. 11. 70. a Magdalen College Case. Co. l. 2. 44. b. In the Bishop of Winchester's Case. unless he be particularly named, yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiastical persons to make grants of their Live; because the Parliament which made that Statute, adjudged such grants to be causes of dilapidations, and decay of spiritual live, and hospitality, and of the utter impoverishment of successors, Incumbents in the same; whereupon would necessarily follow decay of true Religion, and the spiritual worship of God: For it is recorded in History, that amongst the ten Persecutions, which the Primitive Church suffered, there were two the most grievous, the one under Dioclesian, the other under Julian the Apostate, the first endeavoured to destroy all the Professors and Preachers of the Word of God (occidit omnes Presbyteros) but notwithstanding that Religion still flourished (for sanguis Martyrum est semen Ecclesiae) yet that was a grievous Persecution: But the Persecution under the other (viz. Julian) was much more grievous and dangerous, because (as the History saith) occidit Presbyterium; for it rob the Church, and spoiled spiritual persons of their revenues; And thereupon ensues great ignorance in Religion, and the service of God, and therefore great decay of the Christian profession; for none will apply himself, or his children, or any other committed to his charge, to the study of Divinity, when after long and painful study they shall have nothing to live upon. See more in the Books at large. Ecclesiastical live are in Abeyance. 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance, and this was provided by the providence and wisdom of the Law; Co. Inst. pars 341. a. for that the Parson and Vicar have curam animarum, and were bound to celebrate Divine Service, and administer the Sacraments, and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor, and to drive him to a real action, whereby he should be destitute of maintenance in the mean time. Co. ibid. 3 Upon consideration of all the Books of the Law, Ecclesiastical persons cannot injure the Church. this diversity is well observed by Sir Edw. Cook, that a Parson or Vicar for the benefit of the Church, and his successor, is in some cases esteemed in Law to have a Fee simple qualified; But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life. Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur, And Ecclesia fungitur vice minoris; meliorem facere potest conditionem suam, deteriorem nequaquam. Brit 143. Vide Co. Inst. pars 1, 2. b. 4. Littl. §. 146. Co. Inst. pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51, 52. 10 E. 4. 2. a. 21 H. 7. 2●. 4 An Abbot, Prior, Bishop, Dean, , Prebend, Ecclesiastical persons cannot disclaim. Parson, Vicar, or other sole Corporation, that is seized in altar droit, cannot disclaim, because they alone cannot divest any fee, which is vested in their house or Church: For an Abbot and Prior had their Convent, the Bishop his Chapter, the Parson and Vicar their Patron and Ordinary, and the like of other sole Corporations, without whose assent they could pass away no Inheritance. And the reason of this was, because the wisdom of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church. Ecclesiae suae conditionem meliorem facere possunt sine consensu, deteriorem non possunt sine consensu. Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case. Co. Inst. pars 1 344. a. Glan. l. 13. cap. 18, 19, 20. Mirror c. 5. § 5. Bract. 238. 240, 244, etc. 291. Fleta l. 83. c. 11, 16, 17. Britt. 222, 223, 224. 6 E 3. 28. 39 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit. 39 31 E. 1. Quare impedit. 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure; The Parson or Vicar ought to be Persona idonea. for so it appears by the words of the Quare impedit, quod permittat praesentare idoneam personam, which Epithet idonea includes ability in erudition and doctrine, honesty in his conversation, and diligence in his function, and all this to instruct the People of God in true Religion, and good conversation, and to avoid contention: And to the intent that he, who hath so great a charge, may effectually and peaceably intent it, the Common Law provides, that after Institution he shall not be subject to actions, and so neglect his duty by losing his time in suits and vexations of Law: Not to be removed after institution by a common person, nor after induction by the King. And therefore (at the Common Law) if a stranger had presented his Clerk, and he had been admitted and instituted to a Church, whereof any subject had been lawful Patron, the Patron in that case had no other remedy to recover his Advowson, but by a writ of right of Advowson wherein nevertheless the Incumbent was not to be removed: And so it was also (at the Common Law) if an usurpation had been had upon an Infant or a feme covert, having an Advowson by descent, or upon tenant for life, etc. the Infant, feme covert, and he in the reversion were driven to their writ of right of Advowson: for (at the Common Law) if the Church were once full, the Incumbent could not be removed; And plenarty generally was a good plea in a Quare impedit, or an Assize of Darrein presentment: And the reason of all this was, to the intent that the Incumbent might quietly intent and apply himself to his spiritual charge: F. N. Br. 36. k. 143. a. Stat. 35. E. 3. 3. 13. R. 2. 1. 4 H. 4. 21. Howbeit (at the Common Law also) if any had usurped upon the King, and his presentée had been admitted, instituted, and inducted (for without induction the Church had not been full against the King, the King might have removed him by Quare impedit, and been restored to his Presentation; for therein he hath a prerogative, Quod nullum tempus occurit Regi; nevertheless (in that case also) he could not present, for the pleanarty barred him of that, neither could he remove him any way but by Action, to the end the Church might be the more quiet in the mean time, neither yet did the King recover damages in his Quare impedit at the Common Law. But now the Statute of Westm. 2. cap. 5. hath altered the Common Law in these cases, And by that Statute the King is bound, though not named, 35 H. 8. 60. because it concerns the Church and Religion. A Juris utrum taken against one tenant. 6 Where a Juris utrum is brought against several tenants by several summons in the writ, F. N. Br. 50. m. it may be taken against one tenant only, for that parcel, and after against the others; but it is otherwise in an Assize of Novel disseisin, if it be not in some special case. In a Quare Impedit, a Nonsuit peremptory. 7 In a Quare impedit if the Plaintiff be nonsuit after appearance, Co. Inst pars 1 139 a. the defendant shall make title, and have a writ to the Bishop; and this is peremptory to the Plaintiff, and is also a good bar in another Quare impedit: and the reason of this is, for that in this case the defendant (in favorem Ecclesiae) hath the said writ by judgement of the Court; And therefore the Incumbent, that cometh in by that writ upon such nonsuit, shall never be removed, that being a flat bar as to that presentation: And the same Law and for the same reason it is in case of a discontinuance, etc. A general accusation against a Parson or Vicar not good. 8 In a Quare impedit against the Bishop it is not a good plea to allege, that the presentée is a Schismatic in general, Co. l. 5. 58. b. Specots' case. but he ought to express Schism in particular, because it concerning the cure of souls is traversable, and requireth more care and circumspection: It is otherwise for the putting a Coroner out of his office; for there a general suggestion in the writ, that he is persona minus idonea, is enough, and not traversable. But the reason is, because this is but the keeper of the Rolls of the Crown; the other hath the cure and guard of souls. Entire services remains after purchase of part by the Lord. 9 There is a diversity concerning entire services to be reduced to the Lord, as a spur, horse, or the like; Co. l. 6. 1. b. in bruerton's case. Co. Inst. pars 1. 149. a. for when they accrue to the sole benefit of the Lord, and to the charge of the tenant, if the Lord purchase part of the land, the whole service is thereby extinct: But when such entire services are reserved for works of devotion, piety, or charity, as to marry a poor virgin yearly (as you have it in 24 H. 8. Br. tenors 53) or to find a Preacher in such a Church, or to provide ornaments for such a Church (which tenure is in 35 H. 6. 6. In such case, albeit the Lord purchase part, yet the entire service remains. Protection. 10 A spiritual person shall have a protection cum clausula nolumus to protect him, his goods, his farmers, Co. Inst. pars 1 131. b. and their goods from the King's purveyors and carriages. See the Stat. of 14 E. 3. Privilege of Clergy. 11 Before the Statute de articulis cleri cap. 15. Co. l. 11. 29. b. Alex. Poulter's case. he that confessed the felony could not have the privilege of Clergy, because he could not make his purgation; And although the Statute speaks only of Abjuration, and of an Approver, yet the judges (in favorem Ecclesiae) extend it to all other confessions upon the Arraignment of the offender. Tithes not extinct by unity of possession. 12 If the Parson of a Church purchase a Manor within his Parish, here, by this purchase and unity of possession, the Manor, Dyer 43. p. 21. 30 H. 8. which was tithable before, is now made non decimabilis, because he cannot pay tithes to himself: but if the Parson make a lease of his Parsonage and rectory to a stranger; in this case, the Parson himself shall pay tithes of his Manor to the Lessée of the rectory, or if the Parson make feoffment of the Manor, the feoffée shall pay tithes to the feoffor being Parson, because tithes cannot be extinct by any unity of possession as rend charge may, which is issuing out of land; but tithes are due by the law of God ex debito, for the manurance and tillage of the occupier, in whosoever hands the land comes, unless it be in the hands of the Parson himself: And therefore if the Parson let part of his Glebe land for years or life reserving rend, the lessée shall pay the Parson tithes, because they are due of common right. vide Br. dimes 17. 2 Nunquam prosperè succedunt res Humanae, ubi negliguntur Divinae. Humane Affairs never succeed well, where Divine Rites are neglected. Co. Inst. pars 1 246. a. 1. 1 Laches shall not prejudice an Infant in point of descent, Laches shall prejudice an Infant. etc. but it shall be adjudged in him if he present not to a Church within six months; for the law respecteth more the privilege of the Church (that the Cure may be served) than the privilege of Infancy. F. N. Br. 160. c. d. 2 Men of Religion ought not to appear at the Sheriff's turns, Clergy men not subject to personal charges. nor the leet of any other without great cause, and if they be distrained to come to them they may have a writ out of the Chancery for their discharge: All other clerks also within orders (though not beneficed) have the like privilege: And the reason of this is, to the end they should attend their function. Co. l. 11. 70. b. in Madg. Col. case. M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in come. B. the defendant saith, A Parson ought to be resident. that before the day of the writ purchased he dwelled at B. in come. N. Et non allocatur; for a Parson shall be intended by Law to be always resident upon his benefice for the cure of souls, which he hath there, and the Parson, who hath cure of souls and is a nonresident, non est dispensator sed dissipator, non speculator sed spiculator; And therefore no such thing shall be presumed. F. N. Br, 175. 4 A Parson to the end he may give his continual attendance upon that sacred function, is freed from all personal charges, The like. that may hinder him in his calling: And therefore he shall not be chosen Bailiff, Réeve, Beadle, or other officer for land annexed to his Church; And all this by the course of the Common Law: F. N. Br. 34. l. for the same reason it is, that if a Parson have a Parsonage, and after take another benefice without a dispensation, the first benefice is void, and the Patron thereof may present; for this avoidance is called a Session, because the taking of the last makes him neglect the first. F. N. Br. 175. Br. Dimes 16 5 To the end that Religion may not be neglected, Tithes due only to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson (of common right) the tenth of all manner of yearly increase, which are called Dimes, or Tithes, the due payment whereof tendeth much to the continuance and establishment of the true Religion, and the due worship of God; Co. l. 2. 44. b. The Bishop of Winchester's case. And therefore albeit a mere lay man may prescribe in modo decimandi, yet he cannot so do in non decimando; because he is but in special cases capable of tithes at the Common Law; and therefore without special matter shown it shall not be intended, that he hath any lawful discharge; And for this cause in favour of holy Church (although it may have lawful commencement) the law will not suffer such prescription in that case, nor put it to the trial of lay men, who will perhaps rather strain their consciences for their private benefit, that give the Church the duties, that belong to her. Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19 6 The Inhabitants of a Town (without any custom) may make ordinances or by-laws for reparation of the Church, By-Lawes. and in that case the greater part shall bind all the rest without any Custom. The Chamberlain of London's case. Prisot. 3 To such Laws as have warrant in holy Scripture, our Law giveth credence, & contra. Co. Inst. pars 1 128. b. 1 In the reign of King Alfred, Outlawed persons had capita Lupina. and until a good while after the Conquest no man could have been outlawed but for felony, and then the outlawed person was said to have Caput Lupinum, because he might be put to death by any man, as a Wolf that hateful beast might; and in ancient time the head of either of them being brought to the chief place of the County or Franchise where they were killed, the party so killing them was to have a Mark for his pains: Howbeit in the beginning of the reign of E. 3. it was resolved by the judges (for avoiding of inhumanity and effusion of Christian blood) that it should not be lawful for any man, but the Sheriff only (and that upon lawful warrant) to put to death any outlawed person, though it were for felony, in pain to suffer death, as in case of killing another man. One attainted of a Praemunire. 2 It was lawful for any man to put to death a man attainted of a Praemunire, because he was also without the King's protection, Co. ibid. 129. b and therefore subject to be destroyed as the King's enemy: but this was taken away by the wisdom of Queen Eliz. and her Parliament (5 El. 1.) as a liberty not becoming a Christian Commonwealth. Lepers. 3 The Law of England for removing of Lepers (by the writ de leproso amovendo) from the society of men to some solitary place is grounded upon the law of God. Levit. 13.44, 45, 46. Numb. 5.1, 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel. College case. where a reversion expectant upon an estate in tail was granted to one for the life of the tenant in tail, A Monkish life condemned. it was said, that by possibility this grant for life may take effect; for tenant in tail having no issue may become a Monk and enter into religion, and then the grantée may have it during his natural life: but it was there resolved, that such superstitious and irreligious profession shall not be presumed in law. A Law against Charity void. 5 If a Statute be made directly against the Law of God, Doct. & Stud. l. 1. cap. 6. as if it should be ordained, that none should give Alms to any, in what necessity soever he were, or the like, such Statute ought to be adjudged void. 6 Such Canons, Constitutions, Ordinances, Co. l. 5. part. 1. 32. b. in the case of the King's Ecclesiastical Law. and Synodals provincial, Ecclesiastical Laws. as have been allowed by general consent and custom within the Realm, and are not contrariant or repugnant to the Laws, Statutes and Customs of the Realm, nor to the damage or hurt of the King's Prerogative royal, are still in force within this Realm, as the King's Ecclesiastical Laws of the same. 4 The Jurisdiction of the Ecclesiastical Law, aught to be bounded by the Common Law. Spiritual Laws. 1 The Spiritual Laws mentioned in Littleton (Sect. 648) are such Ecclesiastical Laws as are allowed by the Laws of this Realm, Co. Inst. pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction. Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. ●8. viz. which are not against the Common Law (whereof the King's prerogative is a principal part) nor against the statutes or customs of the Realm, Prerogative and (regularly) according to such ecclesiastical Laws the Ordinary and other Ecclesiastical judges do proceed in causes within their Conisance, and this jurisdiction was so bounded by the Ancient Common Laws of the Realm, and so declared by Act of Parliament. 5 Dyes Dominicus non est juridicus. The Lord's day. 1 In all the four terms the Lords day is not Dies juridicus, Co. Inst. pats 1 135. a. for that aught to be consecrated to divine service. Pleas. 2 No plea shall be holden Quindena Paschae, F. N. B. 17. f. because it is always the Lords day, but it shall be crastino quindenae Paschae. Fin●●. 3. Upon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lord's day, Finches Ley pag. 7. all the proclamations are erroneous, for the justices may not sit upon that day, being a day exempt from such businesses by the Common Law for the solemnity of it; to the intent that all people may apply themselves that day to prayer and serving of God. 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place bear Teste upon the Lord's day, it is error, because it is not dies dominicus in Banco. Error. 4 No sale upon the Lord's day shall be said a sale in Market overt to alter the property. Sale. 6 Gravius est divinam quam Temporalem laedere majestatem. Co. l. 11. 29. b. Poulter's case. 1 Regularly, Clergy. a man shall (by the Common law) have the benefit of Clergy for any felony; Howbeit, if a fellow be also an Heretic, jew, Sarazen or Infidel, he shall not have it. F. N. B. 269. b. Br. Heresy 1. Co. l. ●. 58. a. Specots case. 2 Heresy is an offence committed against the Majesty of God by a presumptuous oppugning of an Article of Faith, or the like; Heresy. And therefore (at the Common law) this offence was punished by a more terrible and grievous mulct, than any other felony whatsoever, (and indeed than Treason itself;) viz. by fire and faggot: Howbeit, to determine, what is Heresy, falls not within the Conusance of temporal Courts, but is wholly left to the Ecclesiastical jurisdiction; for it appears by the writ de haeretico comburendo, that (at the Common law) before an heretic could be committed to the Lay-power to be burnt, he was to be convicted in a Provincial Synod before the Archbishop and his Clergy, and then if he did either refuse to abjure the heresy, or having abjured it, upon a relapse were convicted again by such a Synod) of that or any other heresy, he was then delivered to the secular power to be punished by fire and faggot, and no Sanctuary could privilege him: Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocese, and if the Sheriff were present at his conviction, the Bishop might deliver him to the Sheriff to be burnt, and that without the Kings writ; but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffs Turns and Léets, and from thence to be certified to the Ordinary, which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1, 2 P. M. 6. (which revived 2 H. 4. 15.) an heretic was punishable at the Common Law as above is expressed: but by 1 El. 1. the Statute of 1, 2 P. M. was repealed, and then by 1 El. the Queen's Commissioners (heretofore called the High Commission Court) had power to judge of heresy, but they were thereby also restrained to adjudge nothing Heresy, but what was so adjudged by the holy Scriptures, the four first General Councils, or the Parliament with the assent of the Clergy in their Convocation: Howbeit at this day the jurisdiction of Bishops being taken away, and that clause of 1 El. repealed by a later Act, it seems (at present) there is no law to punish that offence. See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264, and 340. Rast. Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit, observe, that the said Statutes made in the reigns of H. 4. and H. 5. were chief intended against such as did then begin to discover the Pride, Lucre, and errors of the Church of Rome, and in derision were termed Lollards, as you may read at large in the Book of Martyrs and elsewhere in divers other authors, as Sleiden, Brightman, etc. The King's command against Law not to be obeyed by the Judges. Stat. 18. E. 3. Stat. 3. 8. 3 One part of the judge's oath is, that they shall not deny right, though it be by command from the King, which if they break, they will be found guilty Laesae Majestatis divinae; And therefore in such case they ought rather to disobey the King's commands then thereby incur the high displeasure of Almighty God, for Gravius est divinam, etc. And to the end that the judges might be the better protected from this danger, Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Laws, whereby the justices have power to proceed, Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrary, no, though it be under the Great or Privy Seal: And therefore if the King write to the justices to prorogue an Assize, because the defendant is in his service, F. N. B. 153. h. yet the justices ought to proceed, and not to cease for any such letter: so likewise in an Assize the Bishop certifies Bastardy, 29 E. 3. 14. Judgement 117 and the King's letter is sent to the justices to cease, because the certificate was suspicious, notwithstanding which letter they took the Assize; and afterwards, albeit the Chancellor reversed the taking of the Assize; in the Council, because they obeyed not the letter, yet notwithstanding that the justices gave judgement upon the Assize: 22 F. 3. 12. Judgement 185 Also in dower the tenant was essoined, and had farther day given, at which the King sends a letter to excuse the tenants appearance, alleging that he was at Calais in his service. Howbeit the justices gave no regard to it, but proceeded notwithstanding that letter. Nor by the Sheriff. 4 The Sheriff also, 14 E. 3. Returns del Viscont, 8●. who is but an Officer or Minister to the superior Courts of justice, ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King, lest he likewise incur the like danger by breaking his oath; And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force, An Exigi facias went forth against him to the Sheriff, who returned, that the King had certified him by writ, that he had pardoned the trespass and imprisonment, commanding him that he should desist, and that therefore he had not executed the writ; whereupon saith Wilby, the writ ought first to have been sent to us, that we might have commanded the Sheriff to cease, for the Sheriff ought not for any such writ to have ceased to serve the Exigi facias without commandment from the same Court, out of which it issued, and thereupon the Sheriff was amercied, Dyer 170. 1 & 2 Eliz. and another Exigi facias issued out: Nor by the Escheator. The Escheator also ought not to desist from the execution of his office, notwithstanding any such command to the contrary from the King: And therefore we find in 1 Eliz. That after the death of the Lord Powes a Mandamus being directed to the Escheastor of Salop to find the office, he takes the presentment of the jury in p per, and adjourns them over to another day to take it in Parchment and by Indenture, before which day the Queen sends a Supersedeas at the suit of one Herbert and his wife, And it was adjudged, that the Escheator ought not to have obeyed that Supersedeas. 7 The Law disfavoureth an excomunicate person. Excommunication. Jury. 1 It is a good plea in abatement of a writ to say, Litt. § 201. Co. Inst. pars 1 133. b. Co. ibid. 158. a. that the Plaintiff is excommunicate. Doct. & Stud. l. 1. cap. 6. 2 The old Books have said, that if a man be excommunicate, he ought not to serve of a jury. Jews. 3 A jew born in England took wife a jew borne also in England, Co. ibid. 31. b. & Rot. Parl. 26 E. 1. Rot. 1. the husband was converted to the Christian faith, purchased lands, and enfeoffed another, and died, the wife brought a writ of Dower, but was barred thereof, and the reason yielded in the record is this, Quia verò contra justitiam est, quod ipsa dotem petat vel habeat de tenemento, quod fuit viri sui, ex quo in conversione sua noluit cum eo adhaerere, & cum eo converti, etc. 4 Infidels are accounted in Law to be perpetui inimici, Infiels. with whom a Christian ought to have no peace, but perpetual enmity and hostility, according to that of the Apostle, 2 Cor. 6.15. Quae autem concordia Christo cum Belial? Co. l. 7. 17. a. b. in Calvin's case aut quae portio fideli cum infideli? And the Law saith, Judaeo Christianum nullum serviat mancipium, nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere: Regist. 282. Infideles sunt Christi & Christianorum inimici, and herewith agreeth the book in 12 H. 8. fol. 4. where it is holden, that a Pagan cannot have or maintain any action at all; and upon this ground there is a diversity between the Conquest of a Country of a Christian Prince, and the Conquest of a Country of an Infidel; The power of a Conqueror. for if a Prince obtain a Christian Country by Conquest, seeing that he hath vitae & necis potestatem, he may at his pleasure alter and change the Laws of that Nation; but until he do make an alteration, the ancient Laws thereof shall remain: Howbeit if a Christian Prince should conquer a Country of an Infidel, and bring them under subjection, there ipso facto the Laws of the Infidel are abrogated; for they be not only against Christianity, but against the Law of God and nature, contained in the Decalogue: And in that case until certain Laws be established amongst them, the Prince by himself or such judges as he shall appoint, shall judge them and their causes according to natural equity and original justice, in such sort as Kings in ancient time did within their Kingdoms, before any certain municipal Laws were established: But where a Prince hath the Government of a Nation by descent, seeing that by the Laws of the Nation he doth inherit that Authority, he cannot change the Laws thereof without the consent of the People assembled in Parliament. TWO Maxims of Reason: taken from GRAMMAR. 8 The Rules from Grammar are infinite, in the Etymology of words, and in the Construction of them, what their nature is single, what joined with others, etc. A Lease with condition to take the profits. 1 IF a man make a Lease for years reserving a rent, with a condition, Co. Inst pars 1 203. a. that if the rent be behind, the Lessor shall re-enter, and take the profits, until thereof he be satisfied; in this case the profits shall be accounted as parcel of the satisfaction, and during the time that he so taketh the profits, he shall not have an action of debt for the rent, for the satisfaction whereof he so taketh the profits: but if the condition be, that he shall take the profits, until he be satisfied and paid of the rent (without saying thereof) or to the like effect, there the profits shall be accounted no part of the satisfaction, but only to hasten the Lessee to pay it, and until he be satisfied he shall take the profits to his own use. Commencement of a Lease. 2 If a lease be made, Habendum sibi à die confectionis, Col. l. 5. 94. a. in Barwicks' Case. the day of the making is excluded; for (a) vel (ab) is dictio significativa primi termini à quo, sicut dictio (usque) termini ad quem, & (a) vel (ab) accipitur excl siuè. Vide infra 1●. & Max. 34. 2. Possession derived. 3 Possessio is derived à Pos and sedeo, Co. l. 6. 57 b. in Bredimans' Case. because he that is in possession may sit down in repose and quiet: so also seisina is derived à sedendo, for until he hath seisin all is Labour, Dolour, & vexatio spiritus; but when he hath seisin, he may sit down and rest: Howbeit, Quaere, whether or no possessio be derived of Post and sedeo, because he that hath possession sits down last, and seisina seems to be derived of the French word seiser, which signifies to lay hold on. Tempus semes●●e. 4 Tempus semestre being spoken in the singular number (as appears in the Dictionaries) signifieth half a year or six months, Co. l. 6. 62. a. in Catesbies' Case. viz. such six months, qui conficiunt dimidium anni, & there is a great diversity in our common speech between a Twelvemonth (being the singular number which includes a whole year according to the Calendar, and twelve months (in the plural number) which shall be computed according to 28 days for every month, Vide 31. 13. Co. l. 8 85. b. in Sir Richard Pexhals Case 5 A. deviseth to B. 100 Sheep and ten Bullocks, Devise. and 10 l. issuing and payable yearly out of his lands; here, the last (and) disjoins the rent from the Sheep and Bullocks: It is otherwise; if he had devised them thus, 100 Sheep, ten Bullocks, and 10 l. yearly; for then the (and) connexeth them all together, and then they are all to be paid yearly out of the lands. Co. l. 10. 133. a Osborns Case. 6 Words, which pass under the name of Latin, are of four sorts, Latin words, Sensible, and Insensible. the first is good and congruous Latin allowed by Gramarians; And this (without question) is within the Statute of 36 E. 3. 15. which ordains, that all pleas shall be entered and enroled in Latin. The second sort are such words as these, Messuagium, Tostum, Gardinum, Bruera, Jampna, etc. These and the like are allowed not only in Pleas, but also in original writs; for these are such words as are known to the Sages of the Law, and are also within the Statute of 36 E 3. such words as are called words of Art, and are frequent also in other Sciences, as amongst the Civilians, Reprisalia, Feuda, Shopa, Sollaria, etc. who use many times to explain them by Anglicè, etc. as Sollaria anglicè Warehouses; The Physicians also use Brothium for broth, and the like: The third sort is false and incongruous Latin, this shall abate an original writ, but shall not make a judicial writ, count, pleading, or judgement vicious (for false Latin shall in such cases be amended:) And therefore (a fortiori) such Latin or false English shall not avoid a grant or deed, when the intention of the parties may appear, M. 3, & 4. El. R. 1350. M. 44, & 45. R. 1031. 9 H. 6, 7. 9 H. 7. 16. 2 H 4 8. M. 11. Jac. as in a bill or bond, Octogenta, Septungenta, Wiginti, Sewteene, or the like, shall be taken for Octoginta, Septingenta, Viginti, Seventeen etc. Also when there is no latin for a word, as for a Stirrup, Velvet, etc. Strapedia, Velvetum, etc. may be used, because they have the countenance of latin, so also Operimentum for a Rug: Howbeit, in such case, (for explanation sake) it will be fit also to insert the word Anglice, as Operimentum anglice a Rug, Duas virgatas velveti, anglice, of velvet, etc. The fourth and last sort are insensible words, as in a case of a Replevin, P. 36 El. Gawin's case, Vitrium for Vitrum, glass: yet (in that case) the Court did incline only to adjudge it false latin, because it had the countenance of latin, and the Court was sufficiently ascertained, that glass was meant by it. P. Co. 85. b. in Partridges Case. 7 If I give you a quart of wine, you shall not have the quartpot, Phrase of speech. but if I give you an Hogshead of wine, you shall have the Hogshead; for the phrase of the language expresseth the intent; so 11 acres belonging to a Message will sufficiently declare, which 11 acres are meant, although land is not properly said to belong to an house, but the house to land. Co. l. 2. 72. a. the Lord Cromwel's Case. 8 Note, in Docwras' case, 27 H. 8. 18. a. in Littl. cap. conditions, 14. Where a Proviso makes a condition, and where not. El. Dyer 311. 4. and 5. P. M. Dyer 152, that this word Proviso makes a condition: But when the Proviso depends upon another sentence, or hath reference to another part of the deed, it never makes a condition, but a qualification or limitation of the sentence, or part of the deed, unto which it refers; as in 5 El. 22. inter Eyre and Orme, a notable case: so in 7 H. 6. a lease without impeachment of waist, provided, that he shall not make voluntary waist: In Littl. Sect. 220. A grant of rend charge, provided, that the grantée shall not charge his person: Tramingtons case in the K. B. P. 16. El. Rot. 273 there a Proviso tending to a qualification, and to explain a precedent sentence; makes not a condition: And 3, 4. P. M. 150. Parker's case, a Proviso amounts to a covenant see 28 H. 8. Dyer. 13 b. Utrumque. 9 Three were bound in an obligation thus, Dyer 19 114. 28 H. 8. Obligamus nos & utrumque nostrum per se pro toto & in solid. The question was, whether or no this obligation was several; And one of the judges was of opinion that it was not several; because utrumque is properly of two, viz. both; And it should have been quemlibet nostrum, etc. when more than two are bound: Howbeit it seemed to the Court that the obligation was good and several, Vide 31. 12. Confirmation. 10 If the disseisée confirm the estate of the disseisor, Littl. Sect. 519 & 520. though it be but for an hour he shall have a lawful estate in fee simple for ever, quia confirmare est firmum facere. Exposition of illa. 11 If the King or a common person grant omnia illa messuagia in tenura Johannis Browne scituat. in Wells, Co. l. ●. 33. a. Dodingtons' Case. whereas in truth they lie in D. in this case, because the grant is general and is restrained to a certain Town, the Patentée or Grantée shall not have any lands out of that Town, unto which the generalty of the grant refers, and this case is the stronger, because of the pronoun illa, for omma illa messuagia etc. maketh necessary reference as well to the town, as to the tenure of I. B. so that if either fail, the general grant is void; for illa is not satisfied, until the sentence be ended, and illa governs the whole sentence to the full point. Vide infra max. 10. cap. 5. Commencement of a Lease. 12 Indentures of demise were engrossed bearing date the 26 of May Anno 25. Co. l. 5. 1. a. Claytons' Case. Eliz. to have and to hold for three years from henceforth and the Indentures were delivered at 4 of the clock in the afternoon of the 20 day of June Anno praedicto Eliz. In this case, from henceforth shall be accounted from the time of the delivery of the Indentures, and not by any compatation from the date, for from henceforth, is as much as to say, from the making, or from the time of the delivery of the Indentures, or a confectione presentium; because the confection or making of the Lease commenceth by the delivery, and these words from henceforth or any other words of the Indenture are not of any force or effect until the delivery, Quia traditio facit loqui tantum. Vide suprà 2. 9 In Conjunctivis oportet utrumque, Bract. l. 2. fol. 19 a. in disjunctivis sufficit alteram partem esse veram. Conjunction copulative. 1 If lands be given in tail upon condition, Littl. Sect. 364 that if the tenant alien in fee, fee tail, or for term of life etc. and also if all the issues of tenant in tail die without issue, that then it shall be lawful for the donor and his heirs to re-enter: Taile. here, the right of the entail may this way (after discontinuance) be preserved to the issue in tail (if any be) so that upon entry of the donor and his heirs the estate tail shall not be defeated for such condition. Condition. And yet in this case if the tenant in tail or his heirs make any discontinuance, he in the reversion or his heirs after the estate tail 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 tail should alien, etc. and all the issues die, etc. for if a gift in tail be made to a man and the heirs of his body, 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 fail, the estate determineth by express 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 only (for then presently upon the alienation the donor, etc. might re-enter and defeat the estate tail) 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 again by the issue in tail 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 term of 21 years, if the husband & wife or any child between 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 disjoineth not only 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 sense is, if the barn, feme, or any child shall so long live. So if an use be limited to certain persons, until A. shall come from beyond Sea, and attain to his full age, or die; here, if he doth come from beyond Sea, or attain 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 bar, Negative pregnant. Pleading. because where the avowant had alleged by matter in fact, that the office (for which the annuity was due) had been granted to such person or persons as pleased the Bishop of Sarum, etc. the defendant in his bar had pleaded in the negative, that the said office had not been granted but for the life of one, etc. 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, etc. sed non allocatur; for the Avowant alleged not that the said office had been granted, etc. 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 alleged. Pl. Co. 5. b. Fogasses Case. 4 The Statute of 1 El. 13. Disjunctive. (for the payment of Subsidies for Merchandise) is in the disjunctive, viz. the subsidy not paid, or the Collector not agreed 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, etc. which before they enter upon their benefice do not satisfy, content or pay, or compound or agree to pay to the King the first-fruits, etc. 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 Common use is) give bond for them, it is sufficient. Dyer 43. 22. etc. 30 H. 8. 6 A Merchant having paid custom for certain Clothes, Custom concealed. ships them for beyond-sea, & in a tempest the Mariners (for the safeguard of themselves and the ship) were forced to throw the Clothes over board, and coming back to the same port, they asked the Customer whether or no they might (having that misfortune) transport as many more Clothes without paying Custom, the Customer told them he thought they might, which they did accordingly; hereupon an Information being brought, the issue joined was, Quod Customarium & Subsidium non fuerunt solut. nec cum Collectore concordat. Sed omnino concelat. & subtract. contra formam statuti, etc. And it was found by the Nisi prius at Guildhall, Quod Customarium & Subsidium, etc. non concelat. & subtract. contra formam statuti, etc. And here it was doubted whether the verdict was for or against the King; for the verdict had been perfect if it had been, Quod non fuerunt concelat. aut subtract. if the jury had intended to find for the defendant; but now their intent (as it seems) 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 itself 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 uncertainty; 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 tàm reales quàm 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, etc. Here, the words of Relation (Quae vel quas) do refer as well to the special words Dowers, etc. as to the general words Actions, etc. and Demands; for it would be against reason, that they should refer to the general words, which are more remote, and not to the words of qualification, which are nearer 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, unless such person, etc. have been 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 year next before; Here, these words by the space of one whole year, shall be only 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. ordains, Pl Co. 107. a, Fulmerstons' case. that farmers of Abbey lands, which had then Leases in being, should enjoy them for 21 years 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 years, as in such lease or leases were expressed, so that the same lease or leases exceeded not 21 years; Here, this last sentence, so that, etc. 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, etc. to H. his son, Co. l. 5. 68 a. The Lord Cheyneys' case and to the heirs male of his body, remainder to Th. Cheyney of D. and the heirs male of his body upon condition, that he or they or any of them shall not discontinue: The question was, whether or no H. the son was included within these words he or they; And it was resolved by Wray and Anderson after conference had with other judges, that those words should not be referred to the grant made to H. the son, but only 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. etc. in L. in come. N. cum omnibus aliis decimis suis quibuscunque in L. in dict. come. N. nunc vel nuper in occupatione I. C. Here, these last words nunc vel nuper, etc. refer to the whole sentence, and not to the later part of it only, viz. cum omnibus aliis, etc. 1 Because the first words are Totam illam portionem Decimarum, etc. So that this pronoun illam showeth plainly; that there ought to be subsequent words to explain, and reduced, into certainty, 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 pronoun illam is not satisfied, until you come to the full end of the sentence: 2 This Conjunction cum omnibus aliis, etc. couples the last words with the former, and makes the subsequent words refer 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. etc. quousque A. vir prefatae Eliz. de D. in come. S. yeoman did kill her, is good; for the addition yeoman must of necessity refer to the husband because a woman cannot be a yeoman: But an Indictment, Quousque Alicia S. de D. in commit S. uxor I. S. Spinster, etc. is not good again Alice S. for there Spinster being an indifferent addition both to man and woman must refer 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 come. 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 tail, In forma p●dicta. the remainder to I. S. in forma praedicta, this shall not refer to the estate, which is the next before, but to the first estate because there wants the word heirs to cause him to have an estate tail. 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 than 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, etc. 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 years, Confirmation. the disseisée may confirm parcel of those years, but than it must be by apt words; for he must not confirm the lease, or demise, or the estate of the Lessée; for in that case (though it should be but for an hour) 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 term would be repugnant, if the whole were confirmed before; but the confirmation must be of the Land for part of the term. Co. l. 1 85. a. in Corbets Case. 3 judges ought to know the intention of the parties by certain and sensible words, Certain and uncertain words. which are agreeable and consonant to the Rules of Law, And therefore if land be given by deed to two, to have and to hold to them & haeredibus, this is void for the insensibility and uncertainty; And albeit they have a clause of warranty to them and to their heirs, this shall not make the first words, which are uncertain and without sense, to be of force and effect in law, although his intent appear; for his intent ought be declared by words certain 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 term 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 Through 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 restrain the tenant in tail from alienation) found at large by the speceial verdict, there were more than 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. S●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 year of his reign) they are much more prolix and voluminous, whereas Laws and Precepts ought to be short and significant, to the end they may be easily understood, and the better retained in the memory, according to that of Erasmus in his religious Colloquy, 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 Creek, is insufficient; so is also such a prescription for a Warren, viz. to have all Pheasants and Partridges nidificant. gignent. & frequentant. within such a Manor, but he ought to say, that he hath Free warren of them within the Manor; for albeit they be nidificant. etc. within the Manor, yet he cannot have them Jure privilegii but only so long as they are within that place: Howbeit a Prescription thus alleged is good, viz. that within such a Créeke there hath been time out of mind, etc. a game of wild swans not marked, nidificant, etc. And then to prescribe, that such an Abbot and all his predecessors, etc. have always used to have and take to their own 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 lawful beginning, viz. by the Kings grant. Debet & detinet. 7 The form of a writ of debt shall be sometimes in the debet and detinet, and sometimes in the detinet only, 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 bargain 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 sell 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 only: And the Rule of the Register is, Fitz. ibid. m. quoth in brevi debito, de catallis nunquam dicetur quòd ei debet: Also if a writ of debt be brought by executors upon a duty due to their testator, the writ shall be, quòs eis detinet, and not debet & detinet, because they were not party to the contract: so likewise if a writ of debt be brought against executors by the creditor upon a duty 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 annuity 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, than the form of the writ shall be, Praecipe A. quòd justè, etc. reddat B. decem libras, etc. quas ei debet, & decem quarteria frumenti, quae ei injustè detinet, etc. 9 If a man be taken in execution by the Sheriff upon a ca sa. and the Sheriff takes bond of him for his appearance and rendering himself 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 form, then is contained in that Statute, that it shall be void, and if it be void, it was void from the beginning, and therefore never his deed. Vide plus ubi suprà. F. N.Br. 151. g. 10 When a writ of Customs and services is in the right only, Customs and services. than the demandant shall count of the seisin of his Ancestor, and the writ shall be in the debet only; but when he comes of his own seisin, than 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, Account. Release. this is no bar in an action of account; for duties extend to things certain, and what shall fall out upon an account is uncertain: And albeit the latin word is debita, yet duties do only extend to all things due, which be also certain; And therefore dischargeth judgements in personal 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 thereof 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 necessity sue a writ of right of Dower to recover the residue. Co. l. 11. 55. a. 4 in Edward Laws case. 13 An Ejectione firmae lieth not of a Close, Ejectione firmae. although it hath a certain name, as Dovecot Close, containing three acres, but it ought to be of so many acres, and aught also to show of what nature those acres are, as Land, Meadow, Pasture, Wood, etc. 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 aught to be by the certainty of acres containing withal the quality of the soil, as Land, Meadow, Pasture, Wood, etc. 12 Nomina si nescis perit cognitio rerum. Co. Inst. 1. 68 b 1 Right Interpretations and Etymologies are necessary; for, Etymology. Ad rectè docendum primum oportet nomina inquirere, quia rerum cognitio à rerum nominibus dependet: And herewith agreeth that which is said, Primò excutienda est verbi vis, ne sermonis vitio obstruatur oratio, sive lex sine argumentis. Co. ibid. 86. b. 2 By the Etymology of the word Soccagium, Soccage. Littleton declareth the nature of tenure, & distinguisheth it from Knight service, whereby it appeareth that names of things are diligently to be observed for distinction sake, and to avoid confusion, Nomina si perdas, certè distinctio rerum perditur. Co. l. 5. 122. a. 3 In Longs case in the 5. Rep. a wound may be as properly said to penetrate as a bullet, quia penetro derivatur à penitùs & intrò. 13 Mala Grammatica non vitiat chartam. Co. Inst. pars 1. 146 b. & 223. b 1 Sir Edward Cook observes, that Littl. Sect. 220. A double Negative. in a grant of an Annuity inserts a Proviso for the discharge of the Grantors' person, with a double Negative, viz. nec aliquid in eo specificatum non aliqualiter se extendat, etc. Here nec and non do in a Grammatical construction amount to an affirmative; for. Negatio destruit negationem, & ambo faciunt affiamativum; yet the Law that principally respecteth substance doth judge the Proviso to be a Negative according to the intent of the Parties, and not according to Grammatical construction, to the end the Proviso may take effect: Howbeit observe that in Greek and French a double negative maketh the negation more forcible; And therefore Quere, whether Littleton being much acquainted with the Law-french doth not express that Latin according to the French Phrases. False Latin. 2 Falsa Orthographia aut grammatica non vi●iat concessionem, Co. l. 9 48. a. in the Earl of Shr●wsburies case. & semper ille numerus & sensus abreviationum accipiendus est, ut concessio non sit inanis: And therefore if the King grant Tot. ill. Manner. de D. & C. if it be (in truth) but one Manor, than those abreviations tot. ill. Manner. shall be taken in the singular number for Totum illud Manerium; but if they be in truth two distinct Manors than they shall be taken in the plural number, for Tota illa Maneria, for otherwise the grant would be void. In 32 E. 32. 3. A Scire facias rehearseth, that a fine was levied de maneriis B. & H. and the conclusion was Quare praedictum Manerium de B & H. ingressus est, and it was adjudged good with averment, that B. and H. were (indeed) but one Manor. One Office in two persons. 3 Letters Patents made to John Periont and W●llim took de officio unius Auditorum curiae suae Wardorum was adjudged good; Co. l. 11. 3. a. Auditor Earls Case. for albeit the statute enacts, that there shall be two persons, which shall be called Auditors of the Lands, etc. so as there shall be two persons and they called two officers, yet it is but one office, and they are both but unus officiarius, and so the Statute itself saith, Those two persons called Auditors shall be called the fourth officer of that Court; And therefore the grant de officio unius Auditoris, or unius Auditorum is good enough: The like case is adjudged in 9 E. 4. 1. upon the grant de efficio unius Clericorum de Corona in Cancellaria, etc. according to the Rule Mala grammatica, etc. False Latin. 4 An Indictment or Count shall not be quashed for false Latin or false Orthography, Co. l. 5 121. a. Longs case. so that a proper Latin word may be known by it, as Praefato, Reginae, Mamilla, Diffamo, diffinitio, for Praefatae, Mammilla, Defamo, Definitio. 14 Qui haeret in littera haeret in Cortice. Vide Pl. Co. 109. b. etc. 1 Although by the words of the Statute of Westm. 2. cap. 4. Co. Inst 1. 356. a. & 283. a. upon a recovery by default against baron and feme, Recovery by default. à quòd ei deforceat is not allowed them, because the baron is not properly tenant for life, but seized only in the right of his wife, and therefore out of the words of that Statute; yet the contrary hath been often adjudged; for, Westm. 2. 4. the Law of England respecteth the effect and substance of the matter, and not every nicety of form or circumstance; Aspices juris non sunt jura, & parù differunt, quaere concordant. 2 A man seized of lands in fee levied a fine to the use of himself for life, and after to the use of his wife, Co. ibid. 365. b. No discontinuance. St. 11. H. 7. 20. and of the heirs male of her body by him begotten for her jointure, and had issue male, and afterwards he and his wife levied a fine & suffered a Common recovery, the husband and wife died, & the issue male entered by force of the Statute of 11 H. 7. 20. this was no discontinuance to bar the issue male, but his entry was adjudged lawful, and yet this case is out of the letter of that Statute; for she neither levied the fine, etc. being sole, nor with any other after taken husband, but it is by herself with her husband, that made the jointure. B A man is seized of lands in right of his wife, and they two levy a fine, and the conusée grants and renders the land to the husband and wife in special tail, the remainder to the right heirs of the wife, they have issue, the husband dieth, the wife taketh another husband, and they two levy a fine in fee, and the issue entereth, this is directly within the letter of the Statute of 11 H. 7. 20. And yet it is out of the meaning thereof, because the state of the land moved from the wife, so as it was the purchase of the husband in letter, and not in meaning. Co. ibid. 381. b. 4 By the letter of the Statute of Gloucester 6 E. 1. cap. 3. Discontinuance. A fine levied by the husband alone of the wife's land shall bar the heir, for the statute seems to intent all alienations except by fine, because it is there said, whereof no fine is levied in the King's Court; Howbeit by the meaning of that Statute the heir shall not be barred, Gloc. 3. for such a fine would work a wrong to the wife, but the fine meant by the Statute is a fine levied by the husband and wife together, for such a fine is lawful and worketh no wrong, and a fine by the husband only would work the same mischief, for which the Statute ordains remedy, and therefore shall not bar the heir, though it be with warranty, unless the heir have assets by descent, etc. Co. l. 5. 5. b. The Lord Montjoys case. 5 Donée in tail is restrained by a particular Act of Parliament, Warranty no bar. quòd non faceret aliquid in nocumentum, etc. haered. etc. nisi pro juntur. uxor, etc. reddend. verum & antiquum reddit, etc. Here, if the ancient reservation was of gold, he cannot reserve silver, if two farms were anciently let to several tenants for several rents, he cannot let them both to one man for one entire rent, nor demise parcel of the farm rendering rend pro rata, nor reserve it payable at two feasts, when it was before payable at four: Howbeit, he may reserve eight bushels of wheat, instead of a quarter reserved before; for they are all one in quality, value, and nature. Co. l. 6 65. b. Sir Moil Finches case. 6 The change of the name of a thing cannot alter the thing itself, Reservation of rent. but the new name may be used by the owner in conveyances, praecipes, etc. without prejudice; And therefore in Sir Moil Finches case in the 6. Rep. it was agreed, that Exceter-house in the Strand, and Dorset-house in Fleetstreet having then within three years before gained those names, might be well enough known to their neighbours by the same names, and distinguished from all other houses, and might also by those names be demanded in praecipes, etc. so in a praecipe brought of a Manor in come. Bed. by the name of the Manor of Asple, whereas it had been formerly and was still called Asple guise; here, the tenant, after the view, demanded judgement of the writ, unto which the demandant said, the Manor put in view was also known by the name of Asple; 41 E. 3. tit. Maint. de brief 49. 8 H. 6. 32. and it was adjudged, that such a name gotten by the knowledge of the Country is sufficient, Change of names. without the true and proper name; for in this sense it is true: De nomine proprio non est curandum, dum in substantia non erretur, quia nomine mutabilia sunt, res autem immobiles. Co. l. 9 110. b. in Meriel greshams case. 7 Albeit Covina, of itself and ex vi termini, Corin. aught to be betwixt two, yet when it is coupled with fraud, which may be committed by one alone, the Court shall adjudge upon the matter, and not upon the strict Etymology of the word; for, Plerunquè dum proprietas verborum attenditur, sensus verborum amittitur. Co. l. 11. 34. a. in Alexander Poulters case. 8 The Statute of 23 H. 8. 1. House-burni● takes away Clergy from the House-burner; the Statute of 1 E. 6. 12. gives the benefit of Clergy to all felons, save only for Murder, Poisoning, Burglary, Robbery, Horse-stealing, and Sacrilege, so as House-burning being in this Statute casus omissus, such an offender seemeth thereby to be allowed his Clergy; Nevertheless, because the Statute of 25 H. 8. 3. takes away Clergy from the House-burner, that standeth mute, challengeth above 20, or answereth not directly, albeit the offence be committed in another County then where the offender is tried; And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergy from the accessories of that offence; it is adjudged, that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act, although it is a penal Law and quite left out of the letter of the same Act. Letters omitted. 9 In 17 El. Dyer, 342. a. Co. l. 9 48. a. The Earl of Shrewsburies' case. Co. l. 2. 17. a. laud's case. The four first letters in the name and stile of H. 7. viz. H. R. A. F. (for Henricus Rex Angliae, Franciae, etc. were left out of his Letters patents made to Simon Digby, yet adjudged good; And in the 38 H. 6. 33. A count, in which it was alleged, that T. W. resignavit, etc. in manus J. Episcopi, etc. & loci illius Ordinarii, And exception was taken, because it was not in manus Johannis Episcopi, seeing the Letter J. signified nothing: but yet the Count was adjudged good. Wast. 10 The Statute of Gloucester cap. 5. Co. Inst. 1. 54. b which gives an action of waist against the Lessée for life or years (which lay not against them at the Common Law) speaketh of one that holdeth for term of years in the Plural number, and yet it appeareth by Littleton Sect. 67. that although it be a penal Law, whereby triple damages and the place wasted shall be recovered, yet a tenant for half a year being within the same mischief, shall also be within the same remedy, although it be out of the letter of that Law. 11 Vide Pl. Co. 109. b. & sequent. Indictment. 11 False latin shall not quash an Indictment or a Count; Col. l. 5. 121. a. 4. in Longs case. for albeit an original writ shall abate for false Latin (as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3, 18. 10 E. 3. 1.) yet judicial writs or a fine shall not be impeached for false Latin, as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae, mamilla for mammilla, etc. Vide suprà 13, 4. False Latin. 12 In the 14 of E. 3. the King grants licence to found in Oxford, Co. l. 11. 8. b. Doctor eyries case. an Hall under the name of the Hall of the Scholars of Oxford, the Founder calls it the Hall of the Queen: They present to a Church by the name of Provost, Fellows and Scholars of the College of the Queen in the University of Oxford: The Incumbent devises the rectory, which they confirm by the name of Provost, Fellowes, and Scholars of the Hall or College of the Queen in the University of Oxford: Misnamer of a College. Notwithstanding these variances the presentation and confirmation are both good; for a small variance is not to purpose, if the description be such that no other can be intended, as Abbot Richerd grants by the name of Richard. 15 Talis interpretatio fienda est, ut evitetur absurdum & inconveniens, & ne judicium sit illusorium. Pluralities of Benefices. By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case. if a Parson or Vicar having one benefice with cure of souls (being worth eight pounds per annum or above) take another, and be instituted and inducted in the possession of the same, etc. the first shall be void; Here, albeit the Statute saith plainly instituted and inducted, yet if he be only instituted into it, he shall lose the first before induction; and this is in regard of the great inconvenience, that would ensue, if the first benefice should not be void by institution to the second by force of the said Act; for then one may be instituted to divers benefices with cure, the great charge whereof it is not possible for one to discharge, and yet none can be presented to any of them, which would be inconvenient. Co. l. 4. 81. b. Sir Andrew Corbets case. 2 Sir Andrew Corbet deviseth some of his lands to Richard Corbet and others, Devise of Profits to raise a sum. until 800 l. shall be levied and received out of the profits of them (besides all charges) to be employed for the preferment of his two daughters Marg. and Mary; Robert Corbet son and heir conceals the will, enters into the lands, and enjoys them fi●e years and dies, after whose death (the will being discovered) Richard Corbet enters into the lands and raiseth 640 l. and employs them according to the will; but the question here arising was, whether the profits, taken by Robert Corbet, and which the devisees might have taken, shall be accounted parcel of the sum of 800 l. And in this case it was resolved, that albeit the words be, until the sum of 800 l. shall be levied, etc. yet it is as much in Law as if the words had been, shall or may be levied: And it was also held in case of a lease, or limitation of use, until such a sum shall be levied; that was as much to say as, until such a sum may be levied, for otherwise great mischief would ensue; because in as much as he in reversion or remainder shall not enter until the sum be levied, it shall be in the power of those, who are appointed to levy it, to defer the levying of it, and so to exclude him in the reversion or remainder from taking the profits of the land for ever which would be inconvenient. Co. l. 4. 9●. a. D●uries case. 3 If a Baron retains two Chaplains according to the Statute of 21 H. 8. 13. and they purchase dispensation, Chaplains. and are advanced according to the Statute; Here, if the Baron discharge one of them from his service; he cannot retain another during the life of the Chaplain discharged; for by that means he may advance as many Chaplains as he will, even without number, by which the Statute would be defrauded. A like case to this was adjudged in C. B. 28 El. and after affirmed in B. R. in a writ of error. Co. l. 5. 10. a. Housteads case 2 A feme sole makes a lease at will, and after takes Baron; Tenant at will Here, the will is not determined by the intermariage; for albeit the feme by taking the baron hath submitted her self to the will of her husband as her head; yet in as much as it may be prejudicial to the husband to have the lease determine (for then he should lose the rent payable at the next rent day after the marriage) and because it will rather tend to the benefit, than to the prejudice of the feme, if the lease continue; And also for that it may be a great prejudice to husbands who marry women, that have tenants at will, for the l●sse of their rents: for these causes it was resolved, that without express matter done by the husband after the marriage to determine the will, it shall not determine. Co. l. 5. 68 The L rd Cheyneyes' case. 5 Sir Th. Cheyney 1 El. deviseth, Devise. etc. to H. his son and the heirs male of his body, the remainder to Th. Ch. of D. and the heirs male of his body, with condition, that he or they or any of them shall not discontinue, etc. the question was whether T. Ch. should be received to prove by witnesses, that it was the intent of the divisor to include his son within these words he or they; And it was resolved by Wray and Anderson upon conference with other judges, that he shall not; for the construction of wills ought to be collected out of the words of the will in writing and not by collateral averment without, because that would be subject to much inconvenience, in as much as it would not then be possible for any man to know by the written words of the will, what Construction to make, or what advise to give, when whatsoever shall be in that case done may be controlled by collateral averments out the will. ● 1 H. 6. 41. Co. Inst. 1. 275. b. 6 If a man be disseised by two and releaseth to one of them, Transmutation of estates. he shall hold his Companion out; but if tenant for life be disseised by two and he releaseth to one of them, this shall enure to them both, for he to whom the release is made hath a longer estate than he that releaseth, and therefore the release cannot enure to him alone to hold out his Companion, Descent 29. 13 E. 4. for than should the release enure by way of entry and 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. The like. 7 If a man grant lands to A. in fee, Littl. 720, 722. Co. Inst. 1. 377. Justice Richels' Case, Temps R. 2. upon condition that if he alien in fee, his estate shall cease and be void, and that immediately from thenceforth the estate of the land shall remain to B. and his heirs; here the estate to A. is good, and he may lawfully alien notwithstanding the condition; for his estate being an estate of Inheritance in lands and tenements, it cannot cease or be void before it be defeated by entry, and then if this remainder should be good it must give an entry upon the alienée unto him that had not right before, which would be inconvenient and against the express rule of Law, because an entry cannot be given to a stranger to avoid a voidable act, as appears by Littleton in his Chapter of Conditions. An Infants will. 8 Because Littleton saith (Sect 123) that the Guardian in Soccage shall render an account of the marriage money to the heir or his executors; Here, from this word executors some have collected, Co. Inst. 1. 89. b that an Infant of the age of 14 may make a will; but the meaning of Littleton in that place is, that if after the marriage he accomplish the age of 18 years, he may then make a will and constitute executors to administer his goods and chattels; for at that age he hath power by the Law to make a will, and these words are to be understood as they may stand with Law and Reason. Subsequent statutes, expounded by the equity of former. 9 The Statute of Gloucester in 6 E. 1. cap. 3. ordains, Co. l. 8. 52. b. 4. in Syms case. Pl. Co. 110. in Fulmerstons' case. that where the tenant by the Courtesy aliens his wife's Inheritance with warranty, if assets descend to the heir, he shall be barred for the value of the Inheritance so descended, and if lands after descend, that then the tenant shall recover against the heir of the seisin of his mother, viz. out of the residue of his mother's lands so much as the assets afterwards descended shall amount unto; Here, albeit at the making of the said Act (being in 6 E. 1.) there were no entailed lands (for all Inheritance was then (viz. before Westm. 2. being 13 E. 1.) fee simple absolute or conditional) yet entailed lands are since taken to be within the equity of the said Act of Gloucester, but not to retain or recover (as in case of fee simple lands) the lands entailed, but only the lands which should so descend; because otherwise there would be occasion of new suits and contention, which would be inconvenient; for if the tenant after assets descended might retain or recover the lands entailed, then if the assets were aliened, the issues inheritable to the estate tail might by writ of Formedon in Descender recover the entailed lands again, which would beget a new suit and no way answer the intention of the said Act, being indeed a good provision for fee simple lands, but not for lands entailed without such a Construction by equity, as aforesaid; And therefore in case of entailed lands so aliened with warranty, the tenant shall have a Scire facias out of the rolls of the justices, before whom the suit depends, to recover the lands descended according to the provision of the said Act of Gloucester, which prevents the aforesaid inconvenience, and in just and proportionable equity agrees with the case of Fee simple lands, and the Intention of the same Act. Vide infrà 178. 22. and 38. 5. Interpretation of statutes. 10 For the sure and true interpretation of all statutes in general (be they penal or beneficial, Co. l. 3. 7. b. 3. in Heydons case, restrictive or enlarging of the Common Law) four things are to be considered: 1 What the Common Law was before the making of the Statute: 2 What was the mischief and defect, for which the Common Law did not provide: 3 What remedy the Parliament hath resolved and appointed to cure that disease of the Commonwealth: 4 The true reason of the remedy: And then it is always the office of the judges to make such construction, as may repress the mischief, and advance the remedy, and also to suppress such subtle inventions and evasions, as may continue the mischief, & pro privato commodo; and to add force and life to the cure and remedy, according to the true intention of the makers of the Act pro bono publico: And upon this ground in Heydons case in the 3 Report the statute of 31 H. 8. Co. l. 3. 8. a. 3. cap. 13. of Monasteries was by all the Barons of the Exchequer adjudged (by the general words thereof) to extend to Copyhold or Customary estates; and by them this Rule was then also agreed, That when an Act of Parliament altars the service, tenure, interest of the land, or other thing in prejudice of the Lord, or of the Custom of the Manor, or in prejudice of the tenant, there the general words of such an Act shall not extend to Copyholds; but when the Act is generally made for the common good and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or custom of the Manor; In such case many times Copyhold and Customary estates are within the general purview of such Acts. 16 Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est. Co. Inst. 1. 147 a. Co. l. 7. 24. a. Butts case. 1 If a rent be granted out of the Manor of Dale, Rent. and the grantor grant over, that if the rent be behind, the grantée shall distrain for the same in the Manor of Sale, this is no grant of rent, only but a penalty in the Manor of Sale, & one reason thereof is, because the Law needs not to make construction, that this shall amount to a grant of a rent, for here the rent is expressly granted to be issuing out of the Manor of Dale, and the parties have expressly limited, out of what land the rent shall issue, and upon what land the distress shall be taken, and the Law will not make an exposition against the express words and intention of the parties, when this way stands with the Rule of Law. Co. l. 2 55. a. Bucklers c. se. 2 A grants land to B. Habendum tenementa praedicta from Christmas next for life; Here, this grant is void, Grant in futuro. for an estate of franktenement cannot commence in futuro, and the Law will make construction upon the whole grant; And therefore albeit the habendum be void and so (in effect) is no habendum (and thereupon the estate should pass by the premises as in case of repugnancy or the like) yet here no estate shall pass by implication of Law against the express limitation of the party; although his limitation be void. Co. l. 5. 118. Edriches' case. 3 A seized of Land in fee, Rent. grants a rent out of it with clause of distress to B. for the life of C. and dies, the heir lets the land (thus charged) to D. for life, the remainder to E. in fee, the rent is behind for divers years in the life of D. who dies, and also C. B. distrains him in the remainder for all the arrearages incurred in the life of D. In this case, he in the remainder shall be charged with them by the last branch of the Statute of 32 H. 8. 37. by which an action of debt is given to the tenant pur altar vie after the death of Cesluy que vie against the tenant in demesne (who ought to have paid the rent when it was first due) and against his executors and administrators; and also that he shall distrain for the same arrearages upon such lands, etc. out of which the said rents, etc. are issuing in such manner and form as he ought or might have done if Cesty que vie had been alive, Here, (I say) the latter part of this branch doth expressly charge him in the remainder with the payment of the arrearages; And the judges in that case said, that they ought not to make any interpretation against the express letter of the Statute; for nothing can so well express the intent of the makers of an Act, as the direct words themselves (for index animi sermo) and it will be dangerous to give liberty to make construction in any case again the the express words, when the intent of the makers appears not to the contrary, and when no inconvenience may happen upon it: And therefore in such cases, A verbis legis non est recedendum. Devise. 4 Land was devised to A. for life, Co. l. 6. 6. b. Wildes case. the remainder to B. and the heirs of his body, the remainder to C. and his wife and after their disease to their children, C. and his wife having then issue a son and a daughter: And after the divisor dies, also A. dies and B. dies without issue, C. also and his wife die, and the son hath issue a daughter and dies; Here, the question was, whether the daughter of the son should have the land, or no: And it was resolved, that she should not, because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life, and then the cause or reason why they by the will should have an estate tail is only grounded upon the intent of the divisor: Howbeit, it was resolved, that such an intent ought to be manifest and certain, and not obscure and doubtful, because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law. Devise. 5 If I devise lands to my son Thomas to hold to him and the heirs male of his body for the term of 500 years, Co. l. 10. 87. a. Leonard Loves Case. Dyer 7. pl. 8. 28 H. 8. his heir shall not have them but his executors, for this term is but a chattel and cannot be entailed, and such a devisée may alien the term, if he please: And Cook Chief Justice held, that such a devise is but an estate for years, because it is so in express words devised, and that (in this case) against express words, no inference or interpretation shall be admitted. Tales. 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case. because by the express words of that Act they are only grantable in every writ of Habeas corpora or distringas with Nisi prius, and no exposition can in this case be made against express words; for viperima est ista expositio quae corrodit ventrem textus. 7 If feme tenant for life take husband, who makes waste, Co. l. 5. 75. b. Clifton's Case. and the feme dies; Here, the husband is not punishable for that waist; because the Statute of Glocest. 6 E. 1. cap. 5. is thus recited in the writ of waist, Wast. Quare cum de communi, etc. provisum sit, quòd non liceat alicui vastum, etc. facere de terris, etc. sibi demissis ad terminum vitae vel annorum, etc. So that the land being not demised to the husband, but he holding it only for her life and in her right, he shall not be chargeable for waste after the death of the wife, by the express words of the Act, as it is recited in that writ. Devise. 8 A devise of land by will is good without Probat, Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordains only that it shall be in writing, and enjoins no Probat; and therefore if it be in writing and proved by witnesses, it is good without Probat. Tail of the King. 9 If tenant in tail of the gift of the King, Co. Inst. pars 1 373. 1. the reversion to the King expectant, is disseised, and the disseisor levy a fine, and five years pass, this shall bar the estate tail, notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warranty, and the Donée suffer the warranty to descend without entry made in the life of the ancestor, this also shall bind the tenant in rail, because the words of that Statute are, had, done, or suffered by or against any such tenant in tail; And in this case he is not party, or privy to any act either done or suffered by or against him. 17 Maledicta est expositio, quae corrumpit textum. Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her son and to the heirs of the said Anthony, Demise. Habendum to them from the date for 99 years; Here, albeit heirs are mentioned in the premises, yet is not the Habendum repugnant unto them, but they have a joint estate for years, for it cannot be repugnant as to Anthony, and yet good to Anne: Viperima est ista expositio, quae corrodit ventrem textus. Co. l. 11. 70. a. Magd. College Case. Grants to the King. Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are, to any person or persons, Grants to the King of Church Live. body politic or corporate, and the King is a person, as it is said in 10 H. 7. 18. and a body politic, as appears in Ploughed. fol. 213 & 234. Now therefore if the King be clearly included in the letter, if he shall be excluded out of the Act, it must be by construction of Law, and (in this case) the Law will make no such construction; for the Queen, Lords, and Commons, who made the Act, have adjudged (as in the preamble appears) that long leases made by Colleges, etc. are unreasonable and against reason (much more estates in fee simple.) And the Law, which is the perfection of reason, will never expound the words of that Act against reason, for maledicta est expositio, etc. 18 Nimia subtilitas in lege reprobatur. Co. l. 5. 121. a. Longs case. 1 Exception was taken to an Indictment, Indictment. because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict. super visum corporis, etc. and doth not allege to what places the said liberty doth extend, or whether part or any of the town of Cossam be within the liberty, and so it did not appear, that the Coroner had any jurisdiction in the place, where the inquisition was taken, nor where the murder was committed, nor where the dead body lay, for all is alleged by the indictment to be at Cossam: Howbeit, the indictment was adjudged sufficient, notwithstanding this exception; for although it be true (by the Rule of Law) that indictments ought to be certain, yet it is to be observed, that there are three sorts of certainties, 1 To a common intent, 2 To a certain intent in general, 3 To a certain intent to each particular; The first sufficeth in bars, which are to defend and excuse the party; the second is required in indictments, counts, replications, etc. because they are to excuse or charge the party; the third is rejected in Law, as too nice and curious, for Talis certitudo certitudinem confundit: And in this present case the indictment is certain enough in general, viz. that Cossam is within the liberty of Cossam: but to imagine that the liberty may extend out of the town, and yet the town itself to be out of the liberty, is a captious and strained intendment, which the Law doth not allow. Misnomer. 2 In a conveyance of lands in Kent certain lands lying in Beamston were excepted by the name of the Manor of Beamston, Co. l. 6. 6 4. b. Sir Moyle Finches case. whereas it had (indeed) formerly been a Manor but was none at that time, yet was it adjudged to be well excepted: And in the Argument of this point it was said, that the Law favours not advantages of misnaming, otherwise then as the strict rule of Law requires, no not in writs, which may be abated and new ones purchased, much less in grants or other conveyances, in which case they cannot have new ones; And therefore if two be joined in a writ, the one shall not plead the Misnamer of the other, as it is agreed in 14 H. 6. 3. 33 E. 3. Mainten. de brief 63. In an action against baron and feme, albeit they are one person in Law, yet the one shall not plead the Misnomer of the other, so in trespass in Heldernesse at W. the defendant pleads (in respect of Misnomer) that it was neither Town, Hamlet, or place known, etc. the Plaintiff replieth, it was without showing in certain, either that it was a Town, hamlet, or place known, And all this in detestation of nice and dilatory exceptions. Nice constructions. 3 Cook Chief justice of the C. Pl. in the Earl of Rutland's case in 8 Rep. 6 Jac. complains together with the other judges of the same Court, Co. l. 8. 56. b. The Earl of Rutland's case. that then of late time divers nice and strained constructions of Letters Patents had been made, and many of them upon slight grounds had been brought in question, with purpose to subvert the force and effect of them, which practice (said they) did much tend to the dishonour of the King and wrong of the subject and was clearly against the true reason and ancient Rule of Law, as did manifestly appear in all their Books, because such nice and captious pretence of certainty, confounds true and legal certainty. Indictment. 4 In Mackallies case in the 9 Rep. exception was taken to the indictment, which said, Co. l. 9 66. be Mackallies case. in Curia dicti Domini Regis in computatorio suo scituato in Parochia sancti Michaelis in Wood-street London, and did not show in what Ward the said Parish was; but it was not allowed; for (as it was holden in 7 H. 6. 36. b.) every Ward in London is as an hundred in the Country, and every Parish in London as a town in the hundred, and it is not necessary to declare in what hundred a town is, neither yet in what Ward a Parish is; And therefore such nicety is to be avoided as needless, Vide plus ibidem. Exception to a Charter, etc. 5 Exception was taken against the confirmation of the Charter of Queen's College in Oxford, Co. l. 11. 20. a. & 22. a. Doctor Ayrays case. ann. 8 Jac. because it was sub nomine Aulae Reginae, whereas the Charter itself was Aulae Scholarium Reginae but not allowed: So in 17 E. 3. 48. one was named Burgensis de novo castro super Tinam, and the exception was taken, that a Burgess ought to be of a certain Town and not of a Castle, but it was not allowed: Exception to a Charter, etc. for the ancient Sages of the Law did always reject such niceties concerning appellations and names, when the thing intended might be thereby well enough known and distinguished. III Maxims of Reason: taken out of LOGIC. 19 Cessante causa cessat effectus. The Corporation failing, the land revests in the Donor. IF Land holden of I. S. be given to an Abbot and his successors (or to any other Corporation) In this case if the Abbot and all the Covent die so that the body Politic is dissolved, Co. Inst. pars ● 13 b. 2. the Donor shall have again the land and not the Lord by Escheat; because in the case of a body Politic, the fee simple is vested in their politic capacity, created by the policy of man, and therefore the Law doth annex a condition in Law to every such gift and grant, that if such body Politic be dissolved, the Donor or Grantor shall re-enter; for that the cause of the gift or grant faileth: But no such condition is annexed to the estate in fee simple vested in any man in his natural capacity, but in case where the Donor or Feoffor reserveth to him a tenure, and then the Law doth imply a condition in Law by way of Escheat. Wedlock ceasing, the Dower ceaseth. 2 The wife shall be endowed of the lands, etc. of her husband, ●o. ibid. 32. a. 4 if the marriage continue till his death; but if the husband and wife be divorced à vinculo matrimonii, as in case of precontract, consanguinity, affinity or the like (but not à mensa & thoro only, as for adultery) the Dower ceaseth, For, ubi nullum matrimonium, ibi nulla does. See Dyer 13. a. The tenure ended, the distress ceaseth. 3 For the rent due the last day of the term, Co. ibid. 47. b. 3 the lessor cannot distrain, because the term is ended; and therefore some use to reserve the last half years rend at the feast of St. John Baptist before the end of the term; so as, if the rent be not then paid, he may distrain between that and Michaelmas following. The tenure ended, the estople ceaseth. 4 If a man takes a lease for years of his own land by deed indented, the estopel doth not continue after the term ended; Co. ibid. 47. b. 4 m. 31. & 32. Eliz. London's case. Co. l. 4. 54. a. 3. for by making of the lease the estopel doth grow, and consequently by the end of the lease the estopel determines; and that part of the Indenture which belonged to the Lessée, doth after the term ended, belong to the Lessor, which should not be, if the estopel continued. Vide 40. 32. Co. ibid. 76. a. 1 5 If after the Lord hath the wardship of the body and land, The Seignory extinct, the Wardship ceaseth. the Lord doth release to the Infant his right in the Seignory, or the Seignory descendeth to the infant, he shall be out of ward both for the body and land, for he was in ward in respect he was not able to do those services which he ought to do to his Lord, which now are extinct, and Cessante causa, cessat causatum: And Littleton saith, that tenure by Knight-service draweth unto it ward, marriage etc. So as there must of necessity be a tenure continuing: Upon release of all debts, the Land in execution is also released. So likewise if the Connusor in a Statute merchant be in execution and his land also, and the Conusée release to him all debts, this shall discharge the execution; For the debt was the cause of the execution, and of the continuance of it, till the debt be satisfied, and therefore the discharge of the debt, which is the cause, dischargeth the execution, which is the effect. Co. ibid. 76. b. 3 6 If the tenant makes a feoffment in fee of lands holden by Knights-service, to the use of the feoffee and his heirs, The town performed, the Wardship ceaseth. until the feoffor pay unto the feoffée or his heirs an hundred pounds at a time and place limited; The feoffée dieth, his heir within age, the Lord shall have the wardship of the body and lands of the heir of the feoffee, but it shall be conditionally; for he cannot have a more absolute interest in the wardship, than the heir hath in the tenancy: Therefore if the feoffor pay the money at the day and place, and entereth into the land, in this case the wardship both of the body and lands is divested; because the Lord hath no absolute interest in either of them, but that interest, which he hath, doth depend upon the performance or not performance of the condition. Littl. § 103. Co. ibid. 78. b. 4 7 Littleton tells us, that by the Statute of West. 1. cap. 22. The Wardship of the body severed from the Land, cannot have the benefit of the two years after 14. If an heir female be within the age of 14 years, and not married at the time of the death of her ancestor, than the Lord shall have the ward of the land holden of him, until her age of 16 years, to the end within those two last years he may tender her convenient marriage: yet (in this case) if the Lord before the age of 14 granteth over the wardship of the body, the grantee thereof cannot enjoy the benefit of the two years, because he cannot hold the land over; and the Lord, which hath the wardship of the land only, shall also lose the benefit of the two years, because he hath the lands only, and cannot tender any marriage; Therefore (in this case) the heir female shall enter into her land at her age of 14 years: So if a tenant holdeth of one Lord by priority, and of another by posteriority and dieth, his heir female within the age of 14 years, the Lord by posteriority shall have the lands but until her age of 14 years, because the marriage belongeth not to him: Also, if the Lord marrieth the heir female within the two years, her husband and she shall presently after the marriage enter into the lands: For, cessante causa, cessat effectus; & cessante ratione legis, cessat beneficium legis. Co. ibid. 102. b. 3. 202. b. 1. Co. ibid. 103. a. 3. Littl. Sect. 147. 8 Where there is Homage Ancestrel betwixt an Abbot and Covent, and their tenant, If that body be once dissolved, Homage ancestrel after alienation, gone. though a new be founded of the same name, and all the possessions be granted to them, yet the Homage Ancestrel is gone. So it is likewise, if a man in his natural capacity holds by Homage Ancestrel, and sells the land to another, although he repurchase the land again, yet is the Homage Ancestrel dissolved. Co. ibid. 104. a. 4. 9 If Homage be due to be done by the tenant, The Land being aliened, the Homage is gone. if the tenant alien the land to another, the Alienor cannot be compelled to do Homage. The delay being pardoned, the amerciament is also gone. 10 The cause of an amerciament in a plea real, Co. Inst pars 1. 126. b. 4. a Plowd. 401. Coals case. 37 H. 6 21. Co. l. 5. 49. Vaughan's Case. personal or mixed (where the King is to have no fine) is for that the tenant or defendant ought to render the demand (as he is commanded by the King's writ) the first day: which if he do, he shall not be amerced; so that for the delay, that the tenant or defendant doth use, he shall be amerced: And albeit the amerciament cannot be imposed, nor the King fully entitled thereunto, until judgement be given, because by the judgement the wrong is discerned, yet a pardon before judgement, shall, after judgement given, discharge the party, because the original cause, viz. the delay, etc. is pardoned. A wife after coverture, a Niefe again. 11 If a Niefe marry a freeman, Co. Inst. pars 1 136. b. 2. 137. b. 3. she is privileged during the coverture, but not absolutely enfranchised, for if her husband die she is a Niefe again. No Juror after his land gone. 12 If a juror (after his return) selleth away his land, or if he, Co. ibid. 157. a. 1. & 2. 272. b. 2. for whose life, or his wife in whose right he holdeth it die, or if an entry be made upon his land for a condition broken, so as his frée-hold is determined, in any of these cases he may be challenged for insufficiency of frée-hold: for when his land is gone, his fear to offend, to have his lands wasted, and the like, etc. (which is one of the reasons of Law) is also taken away. No damage fesant out of the soil. 13 If a man come to distrain for Damage fesant, Co. ibid. 161. a. 3. Co. l. 9 22. b. 4. Case of Avowrie Co. ibid. 164. a. 3. and see the beasts in his soil, and the owner chase them out on purpose before the distress taken, the owner of the soil cannot then distrain them, and if he doth, the owner of the cattle may rescue them; for the beasts must be damage fesant at the time of the distress. Where coparceners shall join and relieve not. 14 If one coparcener die, her part shall descend to her issue, and one praecipe shall lie against them, and this is propter unitatem juris, derived from one common Ancestor; so, if a man hath issue two daughters, and is disseised, and the daughters have issue and die, the issues shall join in a praecipe; likewise, the issues of two coparceners, which are in by several descents, being disseised, shall join in an Assize: Howbeit, in the same case, if the two daughters had been actually seized, and had been disseised, after their deceases the issues shall not join: because (as to that purpose) the unitas juris is severed; for now, several rights descended to them from several Ancestors; and yet when they have severally recovered, they are coparceners again, and one praecipe lieth against them, and release made by one of them to the other is good. Frankmariage Hodgepodge. 15 If lands given in frankmariage be impleaded, Co. ibid. 177. b. 2. the tenant shall not have aid against the other parcener; but if she put the land into Hodgepodge, she shall have it; for, than the lands are become as other lands, which descended from the common Ancestor. Prescription or Custom extinct by interruption. 16 If tenant by homage ancestrel maketh a feoffment in fee upon Condition, and entereth for the Condition broken, Co. ibid. 202. b. 1. it shall be never holden by homage Ancestrell again: so it is, if a Copyhold escheat, and the Lord maketh a feoffment in fee upon Condition, and entereth for the condition broken, it shall never be Copyhold again; because (in both these cases) the custom or prescription (which supported, and was the cause of the tenure) is interrupted, and that being once broken, is become remediless. The land evicted, the Annuity is gone. The marriage failing, the land revests. 17 If a man grant an annuitty ppruna acra terrae, Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title, the annuity shall cease: so if it be pro decimis, and the grantee be disturbed, or pro consilio, or quòd praestaret consilium, and the grantee refuse to give counsel, the annuity shall in these cases cease: likewise, if a woman give lands to a man and his heirs causa matrimonii praelocuti, in this case if the man refuse to marry her, she shall have the land again to her and her heirs; but it is otherwise in case of a man. Co. ibid. 238. a. 4. 18 If a disseisor make a gift in tail, A dying seized, and yet no descent to take, etc. and the Donee discontinueth the fee, and after disseise the discontinuee, and dieth seized, this descent shall not take away the entry of the diseissée; For the descent of the Fee simple is vanished and gone by the Remitter, And albeit the issue be in by force of the estate tail, yet the Donée died not seized of that estate, and of necessity there must be a dying seized. Co. ibid. 239. a. 2. 19 When the degrees are passed so as a writ of Entry in the Post doth lie, yet by event it may be brought within the degrees again, A writ out of the degrees may be reduced. as if the disseisor enfeoff A. who enfeoffs B. who enfeoffs C. or if the disseisor die seized, and the land descends to A. and from him to B. and from him to C. Now are the degrees past, and yet if C. enfeoff A. or B. now is it brought within the degrees again. Co. ibid. 242. b. 1. 20 If the eldest son hath issue and dieth, A descent when privity of blood faileth. and after his decease the younger son or his heir entereth, and many descents cast in his line; yet may the heirs of the eldest son enter, in respect of the privity of blood, and of the same claim by one title; But if the younger son make a feoffment in fee, and the feoffée dies seized, that descent shall take away the entry of the eldest, in respect that the privity of blood faileth. Co. ibid. 285. a. 4. 21 If an action of waist be brought by Baron and feme in remainder in special tail, Death voids the action. and (hanging the writ) the wife dieth without issue: the writ shall abate; because every kind of action of waist must be ad exhaeredationem. Co. ibid. 291. a. 4. Execut. 7. 22 If the body of a man be taken in execution upon a Ca sa. and the Plaintiff releaseth all actions, Release of debt excuseth execution. yet shall he still remain in execution; but if he release all debts, duties or judgements, he is to be discharged of the execution; because the debt, or the duty, or the judgement (which is the cause of the execution) is discharged. Co. ibid. 312 a. 1. 23 The Reason that Littleton giveth of the difference between a rent-service and a rent-charge is, Avowry for a rend service upon the person. for that in rent-service the avowry shall always be made upon the person, but in rent-charge never upon the person, but upon the Land charged; Now here it may be said, that this reason is taken away by the Statute of 21 H. 8. 19 For by that Statute the Lord needs not avow for any rent or service upon any person in certain, and then by Littleton's reason there needeth no privity to the attornment of a Seignory, for (say they) Cessante causa & ratione legis, cessat lex; As at the Common Law no aid was grantable of a stranger to an avowry; because the avowry was made of a certain person; but now the avowry being made by the said Act of 21 H. 8. upon no person; therefore the reason of the Law being changed, the Law itself is also changed, and consequently in an avowry, according to that Act, aid shall be granted of any man, and the like in many other cases; which case is granted to be good Law: But albeit the Lord (as hath been said) may take benefit of the Statute, yet may he avow still at his election upon the person of his tenant; and albeit the manner of the avowry be altered, yet the privity (which is the true cause of the said difference) remaineth as to an Attornment. Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted, Upon alienation the grantee shall attorn. and Lessée for life assign over his estate, the Lessée cannot attorne, but the attornment of the Assignée is good, because (as Littleton saith) it behoveth that the tenant of the land do attorne, and after the assignment there is no tenure or attendance, etc. between the Lessée and him in reversion: so likewise if Lessée for life assigneth over his estate upon condition, he having nothing in him but a condition shall not attorne, but the assignée may attorne, because he is tenant of the land. The assignee of tenant by possession shall ●attorn. 25 Tenant in tail after possibility of issue extinct shall not be compelled to attorne, for the inheritance, which was once in him: Co. ibid. 316. a, 4. but his assignée shall be compelled to attorne, because then that privilege is lost, the assignée having in him only a bare estate for life. Release of quarrels is release of Act. 26 Quaerela (being derived à quaerendo) properly concerneth personal actions, or mixed at the highest; Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens; and yet if a man release all quarrels, it is as beneficial as all actions; for by it all actions both real and personal are released; because by the release of all quarrels all causes of actions are released, albeit no action be then depending for the same. Where the estate is defeasible, the tenant is not compellable to attorn. 27 It is a general rule, that when the grant by fine is defeasible, Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne; As if an infant being seized of a reversion, levy a fine thereof, this is defeasible by writ of error during his minority; and therefore in this case the tenant shall not be compelled to attorne; so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in tail had levied a fine, the tenant could not have been compelled to attorne, because it was defeasible by the issue in tail: But those Statutes have given a farther strength to fines to bar the issue in tail; and therefore the reason of the Common Law being thereby taken away, Co. lib. 3. 86. the tenant in this case shall be compelled to attorne, as it was adjudged in Justice Windhams case. A discontinuance reduced. 28 A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a f●ffoment in fee, and dieth without issue, Co. Inst. pars 1 327. b. 3. B. hath issue and dieth, the issue of B. shall enter; for albeit the feoffment of C. did discontinue the reversion of the fee simple, which B. had gained upon the estate tail made to C. yet could it not discontinue the right of entail, which B. had, that being discontinued before: And therefore when C. died without issue, than did the discontinuance of the estate tail of B. (which passed by his livery) cease, and consequently the entry of the issue of B. is lawful. Discontinuance determined, the issue in tail may enter. 29 Tenant in tail makes a lease for the life of the Lessée, Littl. Sect. 620 Co. ibid. 333. a. 2. and after sells the reversion to a stranger, the tenant for life dies, the grantée of the reversion enters in the life of the tenant in tail, this as a discontinance in fee, and here if the tenant in tail die, his issue cannot enter, but is put to his Formedon, because the estate was executed in the grantée of the reversion in the life of the tenant in tail: but in this case if the lessée, for life had survived the tenant in tail, the entry of the issue had been lawful; because by the death of the Lessée the discontinuance was determined, and consequently the grant made of the reversion, gained upon that discontinuance, is void also. Discontinuance defeated. 30 When estates of lands, etc. which work discontinuances, Littl. § 632. Co. ibid. 336. a. 4. are defeated, the discontinuances themselves are also defeated; As if the husband be seized of land in right of his wife, and make feoffment of fee upon condition, and die; here, if afterwards the heir enter upon the feoffee for the condition broken, the entry of the feme is congeable upon the heir; because by the entry of the heir for the condition broken the discontinuance is defeated. Discontinuance defeated upon surrender. 31 If tenant in tail make a lease for life whereby he gaineth a new reversion, if tenant for life surrender, Co. ibid. 338. a. 4. the estate for life being drowned, the reversion gained, by wrong is vanished and gone, and he is tenant in tail again, against the opinion obiter of Portington 21 H. 6. 53. Advowson usurpation. 32 If B. purchase an Advowson, Co. ibid. 349. b. 2. and suffereth an usurpation and six months to pass, and after the usurper granteth the Advowson to B. and his heirs, B. dieth; his heir is not remitted, because his right to the Advowson was remediless, viz. a right without an action; for a remitter can never enure, but upon a right recoverable by action. Co. ibid. 356. a 1. 33 If a recovery had been had against tenant for life by default before the Statute of West. 2. cap. 4. Quod ei defe●ceat. West. 2. cap. 4. he was (at the Common Law) remediless; because he could not have a writ of Right, in respect of the meanness of his estate: Littl. Sect. 674. And therefore (then) if a feme Lessée for life of a house had lost by default, and had after taken husband, and the recover or had let the house to the baron and feme for their two lives, in this case the feme could not have been remitted, because her estate was remediless, as aforesaid: But now since that Statute she shall in that case be remitted, because she may now regain her estate by a Quòd ei deforceat, given by that Statute: for when an Act of Parliament or a custom doth alter the reason or cause of the Common Law, thereby the Common Law itself is also altered: Alterata causa & ratione legis, alteratur & lex, & cessante causa & ratione legis, cessat & lex. Co. l. 12. a. 2. per Popham. The Lord Buckhursts case. 34 A. enfeoffs B. with warranty; Writings to whom. here A. shall have the writings which comprehend the warranty, and not B. because if B. be impleaded, A. may be vouched; But if B. die without heir, the warranty made to B. is vanished, and A. cannot be vouched; And therefore in this case the writings belong to the Lord by escheat. Co. l. 4. 38. b. 1. per Wray, in Tirringhams' case. How and Redmans case in B. R. 35 In case of common of vicinage one Commoner may enclose against another; Common of vicinage. for he that hath such a common cannot put his cattle into the land of another, but he ought to put them into his own land where they have common, and if they stray into the other ground, he is excused of trespass, by reason of the ancient usage, which the Law allows to take away suits, which may arise, if actions shall be brought for every such trespass, when no separation or enclosure is betwixt the Commoners. For, cessante causa, cessat effectus. Co. l. 4. 62. b 2 Herlakendens case. 36 When a man makes a lease for life or years, Trees selled are the Lessors. the Lessée hath but a special interest or property in the trees (which are great timber) as things annexed to the land, so long as they remain annexed unto it: but if the Lessée or any other sever, him from the land, the property and interest of the Lessée is thereby determined, and the Lessor may take them as things, which were parcel of his inheritance, and in which the interest of the Lessée is determined. 15 E. 4. 20. b. Co. l. 5. 13. b. in the Countess of Shrewsburies' case. Co. l. 5. 119 b. 3 In Whepdales' case. 37 If the bailée of goods, as of a horse, etc. kill them, The bailee of goods may lose the privity. the Bailor shall have a general action of trespass against him; because by the kill of them, the privity is determined, which restraineth the action of trespass in that case. 38 If the Lessée makes waist, Waste. and before any action brought repairs the place wasted, and after the Lessor brings an action of waist, the action is not maintainable; for the jurors ought to see the waist, and cessante causa, etc. Sir Drue Druries' case. Co. l. 6. 74. b. 4. 39 When the heir within age is made Knight after tender of marriage made unto him, although, whiles he is yet within age, Forfeiture of marriage not paid after Knighthood. he marry elsewhere, yet he shall not pay the forfeiture of the marriage; for, by making of him Knight he is out of the ward and custody of the Lord; because after he is Knight, he ought to be sui juris, and to employ himself in feats of arms to defend the Kingdom, etc. And none shall pay the forfeiture of marriage, but he that after refusal marrieth himself during the time that he is in wardship: Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii, such as in like case is used to be had after the heirs full age of 21 years. No protection for Wales. 40 Since the Statute of 12 E. 1. Calvin's case. Co. l. 7. 21. b. 3. which incorporateth Wales into England, and makes it parcel of England in possession, no protection, Quia moratur in Wallia, will now lie: because Wales is now within the Realm of England. No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himself for life with divers remainders over, Digbies case. Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason; The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved, that their could be neither wardship nor primer seisin in that case: because there could be no heir; for although there may be wardship and primer seisin, where there is no descent (as in case when a man grants all his lands (holden) by deed executed in his life) yet there can be no wardship or primer seisin, but where there is an heir, by reason of whom alone those rights accrue to the King. No dower by Guardian. 42 During the minority of the heir a writ of Dower lieth against the Guardian or he may endow the feme without suit; if he please: Co. l. 9 16. b. 4. in Anne ●edingfields case. but after full age, although he hold the land over for the value of the marriage, yet no writ of Dower lieth against him, neither can he endow her; because after the full age of the heir he is no longer guardian. Nuisance removed. 43 In Assize de nusans, or Quod Permittat prosternere, Co. l. ●. 55 a. 1. in Baltens' Case. Co. l. 10. 84. b. 4. in Lover's Case. etc. it is a good plea, that the Plaintiff himself, (either before the writ purchased, or hanging the writ) hath abated the nuisance. All Soccage Land devised. 44 If there be tenant in tail to him and the heirs males of his body the remainder in fee to another, of land holden by Knight-service in Capite, and that is also seized of other lands in soccage in fee, and by his will in writing he deviseth all his soccage lands and dies without issue male; in this case the devise is good for all the soccage land; for the estate of the land holden determines by his death, so that there was not any cause of ward at the Common Law, so it is likewise, 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant. Wood, or trees excepted. 45 If 1 grant the Manor of D. except the wood, Co. l. 11. 49. b. 3. Liffords' case. by this the soil itself is excepted; but if I. except all my trees growing upon land or pasture out of any wood; there, by the exception of the trees the soil itself is not excepted; But sufficient nutriment is reserved out of the land to sustain the vegetative life of the trees; for without that the trees, which are excepted, cannot subsist: But if the Lessor cut them, and by the licence of the Lessée root them up, in this case the Lessee shall have the soil; for cessante causa cessat effectus. After pardon no conspiracy. 46 If a man be falsely indicted of felony, Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies, etc. Here, the party shall not have a writ of conspiracy, although he will plead to the indictment and is acquit, and will not plead the Act, etc. because his life was never put in jeopardy (which indeed ought to be the cause and ground of the action of conspiracy) the felony being pardoned by the Act. No attaint. 47 If a man recover outrageous damages by verdict, Fitz. 107. b. and release parcel of the damages before judgement, and hath only judgement of the residue, the defendant shall not have attaint for those damages, which are so released. Goods bailed. 48 If a man have goods delivered unto him to deliver over to another, and afterwards a writ of detinue is brought against him, by him, Fitz. 138. m. that hath right to have the goods, etc. here, if the defendant, hanging the action, deliver the goods over to him, unto whom they were given to be delivered, this is a good bar of that action. Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme, Divorce. the feme shall have a writ of detinue for the goods given with her in marriage not spent, Dyer. 13. 62. 28 H. 8. Fitz. 152. ●. 50 The heir shall be charged by a writ of annuity upon grant of his father if he have assets by descent; Annuity. but an Annuity shall not be maintainable against the heir by prescription; because it cannot be known, whether he had any thing by descent from the same ancestor, by whom the annuity began, etc. Plowd. 37. a. The Sheriff of London's case. 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey, though he have a keeper with him, Escape. yet that is an escape; for, being in Surrey, which is another County, he was without guard, and so consequently out of prison, etc. Ploughed. ibid. per Chomley. 52 If a woman be Warden of the Fleet, Prisoners enlarged by marriage, or descent. and one imprisoned there marrieth the woman, which is Warden; this shall be judged an escape in the woman, and the law adjudgeth the prisoner to be at large, because he cannot be lawfully imprisoned but under a Warden, and he cannot be properly conceived under the ward of his wife; And therefore in that case the law adjudgeth him to be at large. So if the Warden of the Fleet (who hath his office in fee) die seized, his son and heir being then prisoner there, and the office descends upon him being in prison; here, the law will adjudge him out of prison, although he hath fetters upon his legs, he being then without guard, it being impossible that he should keep himself in prison. P. 13. E. 4. 8. Ploughed. ibid. 53 If a justice of Peace of one County pursue one into another County for felony commited in the County where he is justice, Power lost. and he takes him in the other County; In this case he is his prisoner in the County where he takes him, and aught there to be imprisoned, and he cannot send or convey him to the Gaol of the County where he committed the felony, for he is not his prisoner there, and being out of his proper County his authority ceaseth as to that other County: So if the Marshal hold plea of a thing done out of the verge, or the Admiral of a thing done in the body of the County it shall be void; for their authority extends to a certain place, and within a certain precinct, and not elsewhere; and if he which takes Sanctuary goes out, any man may take him; because he hath lost his privilege. Plowd. 72. b. Sir Thomas Pope's case. 54 If the Conisée of a Recognisance (according to the Statute of 23 H. 8. cap. 6) sell several parts of his lands to several feoffées, No discharge by the Conusees purchase of part. reserving also part thereof to himself, if execution be sued against his part, in an Audita quaerela he shall not compel any of the feoffées to contribute; And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution; for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée, and then in as much as he shall not be contributory, if he were Feoffée and not Conisee, his purchase of part shall not discharge the execution, being Conisée, quià cessante causa, etc. Co. Inst. pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service, this had been good, Lands held by Corporations, in Knight's Service. and the Abbot should have done homage and found a man, etc. or have paid escuage; But there was no wardship or relief or other incident belonging thereunto; yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs, now wardship and relief, and other incidents belonged of common right to the tenure: And so it is, if the King give lands to a Major and Communality and their successors to be holden by Knight-service; In this case the Patentées shall do no homage, neither shall there be any wardship or relief, only they shall find a man, etc. or pay escuage: But if they convey over their lands to any natural man and his heirs; now homage, ward, marriage, relief, and other incidents belong thereunto; quià cessante ratione, legis cessat ipsa lex. Lord and Villain. 56 If villanage be pleaded by the Lord in an action Real, Co. ibid. 127. b. 4. 18 E. 4. 6. & 7. personal, or mixed, and it is found that he is no villain, the bringing of a writ of error is no enfranchisement, because thereby he is to defeat the former judgement, and if in the mean time the plaintiff or demandant bring an action against the Lord, he need make no protestation, so long as the record remains in force (for at that time he is free) but the Lord shall be restored to all by the writ of error. Waste. 57 If lands be given to two and to the heirs of one of them, Co. ibid. 247. b. 3. he that hath the fee simple shall not have an action of waist upon the Statute of Gloucester against the joint-tenant for life, but his heir shall maintain an action of waste against him upon that Statute: So that (in this case) the heir shall maintain that action, which the Ancestor could not. Dower, 58 If the husband alien his land, Co. Inst. pars 1 33. a. 4. and then the wife is attainted of felony, now is she disabled, but if she be pardoned before the death of the husband, she shall be endowed: Also if the son endow his wife at her age of 7 years ex assensu patris, if she before the death of her husband attain to the age of nine years, the dower is good. Office, and Rent. 59 The King granteth to one an office at will, Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rend during life pro officio illo: here, if the King put him out of his office, the rent shall cease, 21. 4. Guardian in Soccage. 60 The executor or husband (after the death of the wife guardian in Soccage) shall not retain the wardship; 7 El. 293. b. Finch 9 Co. Inst. pars 1 89. a. 1. for the guardian hath it not to his own use, but for the benefit of the heir, and the executor or husband by common intendment bear not such affection to the Infant, as the testator or his wife did, which was the cause, that the law gave them the wardship. A Pardon. 61 If a stroke be given the first day of May, 13 El. 401. Finch 9 and the King pardon him the second day of May all felonies and misdemeanours, the party smitten dieth the third day of May, so as this is no felony till after the pardon; yet is the felony pardoned; for the misdemeanours being pardoned, all things pursuing it are also pardoned. Livery. 62 The King hath a Ward pur cause de guard, 13 E. 4 10. b. Finch 9 and after maketh Livery to the first Ward, the second Ward shall not sue Livery. Coparceners. 63 If two coparceners make a lease reserving a rent, Finch 9 they shall have this rent in common, as they have the reversion: But if afterwards they grant the reversion, excepting the rent, they shall be from thenceforth joyntenants of the rent. Challenge. 64 It is no principal Challenge to a juror, 14 H. 7. 2. Finch 9 that he hath married the party's mother, if she be dead without issue; for the cause of favour is removed. Entry. 65 If an Infant tenant in tail make a feoffment in fee, and die, Co. Inst. pars 1 337. a. 2. his issue may enter; but if after the feoffment made he be attainted of felony, and dieth, the entry of the issue is taken away, for his entry is not lawful in respect of his estate only, but of his blood also, which is corrupted; Formedon. and therefore in that case he is driven to his Formedon. Villain. 66 Si mulier serva copulata fit libero, etc. partus habebit haereditatem, Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. & mater nullam dotem, quià mortuo viro suo libero redit in pristinum statum servitutis, nisi haeres ei dotem fecerit de gratia. Co. Inst. Pl. 1. 123. a. 2. Co. Inst. pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fee, Coparceners. and after her feoffée is impleaded, and voucheth the feoffor, she may have aid of her Coparcener to deraign a warranty paramount; but never to recover pro rata against her by force of the warranty in Law upon the partition; for, by her alienation the unitas juris, that was betwixt them, is severed, and she hath dismissed herself to have any part of the land, as parcener; and as parcener she must recover pro rata upon the warranty in law, or not at all. Co. Inst. pars 1 2. b. 2. 68 If an alien purchase lands, Alien. Merchant. etc. upon an office found the King shall have them, yet being a Merchant he may take an house, and keep it so long as he useth commerce, and for that purpose; but when he leaves so to do, dies, or departs the Realm, the King shall have them. Dyer 13. 61. 28 H. 8. 69 If a man make his executors and enter into religion, A Monk dereigned. and after is dereigned; In this case he shall have again all his goods, which his executors have not spent; for, cessante causa, etc. Dyer 57 b. 1. 25 H. 8. 70 Cestuy que use for term of life (since the Stat. of R. 3.) makes a lease for the term of the life of the lessor, and dies; In this case, the estate of the Lessée is determined, Cestuy que use. and he is (after the death of Cestuy que use) only tenant at sufferance. The Lo. Zouches case. 20 Remoto impedimento emergit actio, & contra. Co. Inst. pars 1 128. b. 2. 1 If the defendant plead an outlawry in the Plaintiff, Out lawry. in disability of his person, and the Plaintiff after that plea pleaded, purchase a charter of Pardon, because the charter hath restored him to the law, the defendant shall answer: So note, the disability abateth not the writ, but dis-inableth the Plaintiff, until he obtaineth a charter of Pardon. Co. ibid. 133. b. 3. 2 Excommunication may be pleaded in disability of the person; Excommunication. yet if the demandant or Plaintiff purchase letters of absolution and show them to the Court, he may have a re-summons or re-attachment upon his original, according to the nature of his writ. 9 H. 7. 27. Co. ibid. 238. b. 2. 3 If a disseisor make a gift in tail, Entry revived. and the donée hath issue and dieth seized, now is the entry of the disseisée taken away: but if the issue die without issue, so as the estate tail which descended is spent, the entry of the disseisee is revived, and he may enter upon him in the reversion or remainder. 13 H. 4. 8, & 9 33 H. 6. 5. b. per Moyle. 34 H. 6. 11. a. per Curiam. Co. ibid. 3 If there be grandfather father and son disseiseth one and enfeoffeth the grandfather, who dieth seized, The like. and the land descendeth to the father, now is the entry of the disseisée taken away; but if the father dieth seized, and the land descendeth to the son; here, is the entry of the disseisée revived, and he may enter upon the son, who shall take no advantage of the descent, because he did the wrong unto the disseisée. Co. ibid. 4 If a disseisor make a Lease to an Infant for life and he is disseised and a descent cast, the Infant enters, The like. the entry of the disseisée is lawful upon him. Co. ibid. 245 b. 1. 5 If the mulier entereth upon the Bastard, Bastard Mulier. and the Bastard recovereth the land in an assize against the mulier, now is the interruption avoided, and if the Bastard die seized, this shall bar the mulier. Littl. § 407. & 408. Co. ibid. 248. 6 If I am disseised by an infant within age, Entry revived. who aliens to another in fee, and the alienée dies seized, and the tenements descend, to his heir, the Infant being still within age; here, my entry is taken away: way: but if the Infant within age enter upon the heir, that is in by descent (as he well may because the descent was cast during his nonage) then may I well enter upon the desseisor, because the infant's entry hath defeated that descent. The like. 7 If I be disseised and the disseisor makes a feoffment in fee upon condition, and the feoffée dies seized of that estate; Here, Littl. § 409. Co. ibid. 248. I cannot enter upon the heir of the feoffée: But if the condition be broken, so that the feoffor doth therefore enter upon the heir; Now may I well enter, because by the entry of the feoffor the descent was utterly defeated. The like. 8 If a feme inheritrix take baron and they have a son, Littl § 636. Co. ibid. 338. and the baron die, and she takes another baron, and the second baron lets the land, that he hath in right of his wife, to another for term of his life, and after the feme dies, and then the tenant for life surrenders his estate to the second baron: Littleton makes a Quaere, whether the issue of the feme may enter during the life of the tenant for life, but after his death he holds it cléer he may: and my Lord Cook proves it plainly, that he may also enter upon the baron immediately after the surrender. Collateral and lineal warranty. 9 A collateral warranty doth not give a right, Co. ibid. 372. a. 1. Littl. § 708. but only bindeth a right so long as the same continueth; and therefore if the collateral warranty be determined, removed, or defeated, the right is again revived: as in this example, If tenant in tail hath issue three sons, and discontinue the tail in fee, and the second son releaseth by his deed to the discontinuée, binding himself and his heirs with warranty, etc. and after the tenant in tail dies, and the second son dies without issue; here, the eldest son is barred to have any recovery by writ of Formedon, because the warranty of the second brother is collateral unto him, in as much as he can by no means convey unto himself (by force of the entail) any descent by that brother, and therefore as to the eldest brother it is collateral warranty; But in this case if the eldest brother die without issue, then may the youngest brother well have his writ de Formedon in descender, and shall recover the land; because the warranty of the second brother is lineal to the youngest son, in as much as he might have conveyed unto himself (by possibility) the estate by his second brother, in case he had survived the eldest, &c, The like. 10 If tenant in tail lets lands to a man for term of his life, Littl. § 738. Co. ibid. 387. the remainder to another in fee, and a collateral ancestor confirms the estate of the tenant for term of life, and binds himself and his heirs to warranty for the term of the life of the tenant for life, and dies; and the tenant in tail hath issue and dies; in this case, the issue is barred of his writ of Formedon during the life of the tenant for life, because of this collateral warranty descended upon him: but after the death of the tenant for life, the issue may have that writ, if he please. Remainder. 11 If there be tenant for life, the remainder for life, Co. l. 5. 76. b. Pagets case. 9 Eliz. the remainder in fee, and the tenant for life make waist in the trees, and after he in the remainder for life die, an action of waist is maintainable by him in the remainder for the waist done in the life of the tenant for life: So it is likewise, where he in the remainder for life (after the waist committed) surrenders his estate to him in the remainder or reversion in fee: For, Remoto impedimento. Lease by tenant in tail. 12 If tenant in tail of lands in capite makes Leases, Co. l. 7. 7. b. & 8. a. The Earl of Bedford's case. not warranted by the Statute of 32 H. 8. 28. and dies, his heir under age; in this case, although the King in right of the heir may avoid those Leases for his time, yet if, after the King's interest determined, the heir accepts the rent, they shall be thereby made good again: So it is also of a subject that is guardian in chivalry. Co. ibid. 13 If a Bishop make a Lease, By a Bishop. not warranted by the Statute (so that his successor may avoid it and dies) the King shall avoid the Lease during the vacancy of the Bishopric; but after the King's interest determines, if the successor accepts the rent, the Lease is made good again. Co. l. 8. 71. b. 4 Grerebeyes case. 14 Land is given to Baron and Feme and too the heirs of their two bodies, the Baron makes a feoffment in fee, Entry congeable. and having issue of the Feme dies, the Feme also before entry dies; here, the estate tail is discontinued, so that the issue cannot enter: but in this case if the Feme had entered and recontinued the estate tail, than had the discontinuance been purged, and the estate tail had been thereby revested in the Feme, and would have from her descended upon the issue, and so his entry had been congeable. Fitz. 28. b. 15 A man shall not have execution against the King's debtor, The King's debtor. that hath a Protection, because the King ought to be paid first; yet if the Plaintiff will undertake to pay the King's debt, he shall have judgement and execution for both the debts. Co. Inst. pars 1 33. a. 4. 16 If the husband alien his land, Dower. and then the wife is attainted of felony, now is she disabled; but if she be pardoned before the death of the husband, then is she again entitled to her writ of Dower. Co. ibid. 46. a. 4 17 If tenant in fee take wife, Dower. and make a Lease for years and dieth, the wife is endowed, she shall avoid the lease, but after her decease, the Lease shall be in force again. Co. ibid. 138. a. 4. 18 Regularly, Lord and Villain. if the Lord sue against his villain a Praecipe quòd reddat, etc. that is a manumission; yet if tenant in tail of a Manor, whereunto a villain is regardant, enfeoff the recovery of the Manor and dieth, the issue shall have a Formedon against the villain, and after the recovery of the Manor he shall seize the villain, and the bringing of the Formedon shall work no manumission; for that he could not seize him, till he had recovered the Manor, which was the principal; and at the time of the writ brought he was no villain. Co. ibid. 59 a. 2 19 If lands holden by Knight-service be given to an Abbot and his successors; albeit he holdeth the lands by Knight-service, Wardship revived. and shall find a man conveniently arrayed for the war, etc. yet upon his death no ward, marriage, or relief is due to the Lord; Howbeit, if the Abbot with the consent of his Covent alien the lands to a man and his heirs, there is then ward, marriage and relief revived, etc. Littl. § 632. Co. ibid. 336. a. 20 If the baron be seized of land in right of his wife, Entry congeable. and makes feoffment in fee upon condition and die, if the heir do afterwards enter upon the feoffee for the condition broken, the entry of the feme is congeable upon the heir; because by the entry of the heir, the discontinuance was defeated. Co. ibid. 174. a. 4. 21 If there be two Coparceners, To deraign warranty pa●● ramount. and one of them makes feoffment in fee of her part to a stranger with warranty, if the feoffee be afterwards imlpeaded, he cannot have aid of the other Coparcener to deraigne the warranty paramount, but he may vouch the feoffor, and she may have aid to deraigne the warranty paramount: And yet if there be two Coparceners, and they make partition, and the one of them enfeoffees her son and heir apparent and dieth; in this case, if the son be impleaded, albeit he be in by the feoffment of his mother, yet shall he pray in aid of the other Coparcener to have the warranty paramount; for upon the descent the warranty betwixt the mother and the son is by Law annulled, and then he is in the same condition, as if the tenements had descended upon him. 22 Vide, M. 28. ca 4. & 3. 5. Entry. 23 If there be grandfather, father, and son, Co. ibid. 265. a. 4. and the father disseise the grandfather, and make a feoffment in fee, the grandfather dieth, the father against his own feoffment shall not enter, but if he die his son shall enter; for remoto impedimento, etc. Protection. 24 Albeit a Protection be allowed by the Court for a year, Co. ibid. 131. b. 1. yet if it be repealed by an Innotescimus, the Re-summons or Re-attachment shall be granted upon the repeal within the year, for Remoto impedimento, etc. And albeit some books hold the contrary, yet the later books are of that opinion, for otherwise the repeal would serve for little purpose, if the Law should not be so taken. No accessary without a principal. 25 A. was indicted for felony, Co. l. 9 119. b. 2 in the Lord Sanchiars case. Temps E. 1. Tit. Mortdancester 46. and B. of the receipt of A. A. Essoignes himself and is outlawed, B. was taken, and putting himself upon the Inquest was found guilty, whereupon B. was attainted and hanged, and the Lord entered, as in his escheat, and after A. came and reversed the outlawry, and pleading to the felony was found not guilty, and so was acquit, whereupon the heir brings a Mortdancester against the Lord by escheat, who comes and shows all this matter, unto which it was demurred in Law, whereupon it was awarded, that the heir of B. should recover seisin of the land, for if B. had been then alive, he should have gone quit by the acquittal of A. because he could not be a Receiver of a fellow, when A. was no fellow: And remoto impedimento, etc. Vide plus ubi supra. 21 Things are construed according to that, which was the cause thereof. Vide 31. 9 Tenant by courtesy. 1 If the King give lands to a man and a woman and to the heirs of their two bodies, and the woman die without issue; Co. Inst. pars 1 21. b. 4. 9 H. 3. Dower, 202. yet shall the man be tenant in tail after possibility, etc. But if the King give land with a woman of his kindred in frankmariage, and the woman die without issue, the man in the King's case shall not hold it for his life: because the woman was the only cause of the gift; but otherwise it is in the case of a common person. Frankmariage 2 If lands be given to a man and a woman in special tail, Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus, both shall hold the lands for their lives; a 13 E. 3. Tit. Ass. 19 E 3. Ass. 83. 12. Ass. 22. 19 Ass. 2. But in case of frankmariage, if they be so divorced, the woman shall enjoy the whole land; because she was the cause of the gift. So if lands holden in c Ploughed. Carzibs' case. soccage be given in special tail, and the Donées die the issue being within the age of 14 years, e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kin of the part of the father, or of the part of the mother, which can hap the custody shall have it; but in case of frankmariage the heir of the part of the mother shall have it, because she was the cause of the gift as aforesaid. Co. ibidem 88 a. 4. Formedon. 3 If a woman tenant in general tail maketh a feoffment in fee, and taketh bacl an estate in fee, and take an husband and hath issue, and dieth, the issue may in a Formedon recover the land against the father; because he is to recover by force of the estate tail, as heir to his mother, and is not in that case inheritable to his father; the estate tail being the cause and ground of his title. An Office. 4 A man may have an estate for life determinable at will; 3 E. 4. 8. b. as if the King doth grant an office to one at will, and also grant a rent to him for the exercise of his office for term of life; this is determinable upon the determination of the office, which occasioned the grant of the rent. 19 59 Co. ibid. 85. a. 2 5 If a man make a Lease for years of a villeine this cannot be done without deed, neither can the Lessée assign it over without deed, Grant of a Villain by deed. because it is derived out of a fréehold that lieth in grant, which (indeed) is the material cause of the grant: but a wardship is an original chattel (during the minority) derived out of no fréehold, and therefore as the Law createth without deed, so may it also be assigned over without deed. Co. ibi. 102. a 4 9 E. 2. execut. 249. 6 Upon a judgement in debt, Judgement, execution. the Plaintiff shall not have execution, but only of that land, which the defendant had at the time of the judgement; because the action was brought in respect of the person, and not in respect of the land: But if an action of debt be brought against the heir, and he alieneth, hanging the writ; yet shall the land, which he had at the time of the Original purchased, be charged; for that the action was brought against the heir in respect of the land. Co. bid. 102. b. 1. 22 Ass. Pl. 32. 7 If a man be nonsuit, the land only, Amerciament, Issues of Jurors which he had at the time of the amerciament assessed, shall be charged, and not that, which he had at the finding of the pledges; for the amerciament is not in respect of the land, but for his want of prosecution, which was a default in his person: But the issues of a juror shall be levied upon the feoffee, albeit they were not lost before the feoffment; because he was returned and sworn in respect of the land. 8 A tenure of the King in Capite, Tenure in gross. is said to be a tenure of the King, a Bract. f. 87 as of his Crown, that is, as he is King: c Co. ibid. 108 a. 4. ubi. Vide praedict. Author. And therefore if one holdeth land of a common person in gross as of his person, and not of any Manor, etc. and this Seignory escheateth to the King (yea, though it be by attainder of treason) he holdeth of the p●rson of the King, but not in Capite; because the original tenure was not created by the King. Vide infra M. 25. ca 10. Co. ibid. 158. a. 3. 15 H. 7. 9 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleged by the Plaintiff against the Sheriff be partiality to either party, Challenge. and process be once awarded for such partiality, though there be a new Sheriff, yet process shall never be awarded to him, but to the Coroners; and therefore in that case the entry is, Ita quòd Vicecomes se non intromittat: But if the cause of Challenge be, for that the Sheriff was tenant to either party, or the like, in that case the process shall be directed to the new Sheriff, and not to the Coroners. Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc. 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9 fol. 22. Case of Avowry. Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass. 23. 29 E. 3. 9 b. 10 If the Lord come to distrain cattle, Distress. which he seeth then within his fee; and the tenant or any other to prevent the Lord to distrain, drives the cattle out of the Lords fee, into some other p●ace not within his fee; yet may the Lord freshly follow and distrain the cattle, and the tenant cannot make rescous: But if the Lord coming to distrain had no view of the cattle within his fee, though the ●enant drive them off purposely, or if the c●ttle of themselves after the view go out of the fee, or if the tenant after the view remove them for any other cause, then to prevent the Lord of his distress, then cannot the Lord distrein them out of his fee, and if he doth, the tenant may make rescous. 11 If there be three Coparceners, and they make partition, Rend in Coparcenary. and one of them grant 20 s. per annum out of her part to her two sisters and their heirs for egaltie of partition, the grantées are not joint-tenants of this rent, but the rent is in nature of coparcenary, and after the death of the one grantée the moiety of the rent shall descend to her issue in course of coparcenary, & not survive to the other; for that the rent doth come in recompense of the land, and therefore shall ensue the nature thereof; & if the grant had been made to them two of a rent of 20 s. viz. to the one 10 s, & to the other ●0 s. yet shall they have the rent in course of coparcenary, and shall also join in action for the same. Co. l. 5. 8. a. 2. Cases of Leases, Justice Windhams case. The like. 12 If two Coparceners by deed indented alien both their parts to another in fee, Co. ibid. 169. b. 4. 38 E. ●. 26. b. rendering to them two and their heirs a rent out of the land; In this case, they shall not be joint-tenants of that rent, but shall have it in course of coparcenary; because their right in the land, out of which the rent is reserved, was in coparcenary. Joyntenants and tenants in common. 13 If two tenants in Common be disseised, Littl. § 311. Co ibid. 195. b. 3. each of them shall have a several assize for his moiety because they claim and are seized by several titles: but if 20 joint-tenants be disseised, they shall have but one assize in all their names; because they have but one joint title. The like. 14 If there be three joint-tenants, Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right, etc. and after the other two are disseised of the whole; In this case, the two others shall have one assize in both their names for the two parts; because at the time of the disseisin they held them by a joint title: but as to the other third part, he, to whom the release was made, aught to have a several assize of that in his own name; because of that part he is tenant in common, and hath title to it by force of the release, and not only by force of the jointure. Coparceners. 15 If two Coparceners have issue, each of them a son, and die, Littl. § 313. Co. Inst. pars 1 196. a. 4. and the sons before partition are disseised; in this case they shall join in an Assize; for, although they claim by several titles in respect of the several descents from their mothers, yet in as much as the land entirely descended from their grandfather to their mothers, they are in Law accounted Parceners, and a writ de partitione facienda lieth betwixt them; and consequently shall have but one Assize. Tenants in common. 16 In real and mixed actions tenants in common shall sever in action, because they have several freeholds, and claim by several titles; Co ibid. 195. b. 3. 198. a. 2. but they shall have actions personal jointly in all their names, as an action of trespass, of account against the Bailiff of their Manor, or the like; and in this case also the survivor takes place; because these actions found in the personalty, and not in the realty; and the trespass and damage done unto them (which indeed is the cause of the action) is joint; and therefore aught to be jointly prosecuted, and shall also jointly survive; and the same Law is of Coparceners. Mortgage. 17 If the feoffée in mortgage before the day of payment, Littl § 339. Co. ibid. 209. b. which should be made unto him, make his executors and die, and his heir enters into the land as he ought, etc. It seems in this case that the feoffor aught to pay the money at the day appointed to the executors, and not to the heir of the feoffée; because the money at the first accrued unto the feoffée in the nature of a duty, and it shall be intended, that the estate was made by reason of the lending of the money by the feoffée, or in respect of some other duty. A mad man. 18 In criminal causes, as felony, Co. ibid. 247. b. 1. ubi vid. Pl. an. Plowd. 19 a. etc. the act and wrong of a mad man shall not be imputed to him; for that in those causes, Actus non facit reum, nisi mens sit rea, and he is said to be Amens, that is sine ment: And therefore his madness being the cause thereof, and not his intention, he is excusable. C. l. 4. 124. b. 2. Beverleys' Case. Entry, and ●laim. 19 Littleton saith, that if a man having title to enter into lands, Co. ibid. 253. b. 1, 2. dare not do it for fear of beating, maiming, or death; that then he ought to approach as near the land, as he dare, to make his claim; yet in this case every doubt or fear is not sufficient; for it must concern the safety of his person, & not of his houses or goods, for the fear of burning his houses, or of taking away or spoiling his goods; are not sufficient causes to make him forbear to make his entry or claim upon the land, because he may recover the same again, or (at least) damages to the value of them without any corporal hurt: And here also, though the fear do concern the person, yet it must not be a vain fear, but such as may justly cause a constant man to be afraid by reason of some overt act, as if the adverse party lie in wait in the way with weapons, or by words menace to beat, Bract. lib. 2. 16. b. Brit. 19 66. etc. maim, kill, or imprison him, etc. Talis enim debet esse metus, qui cadere potest in virum constantem, & qui in se continet mortis periculum, & corporis cruciatum. Co ibid. 266. a. 3. 20 If the Donee in tail discontinue in fee, Discontinuance of an estate tail. the reversion of the Donor is turned to a naked right; and here, if the Donor release to the discontinuee, and the Donee die, and the issue in tail doth recover the land against the discontinuee, he shall recover no more than the estate tail, and must then (by consequence) leave the reversion in the discontinuee; for he can recover no more, than was due to him by the gift of the Donor, which was the cause and ground of his title; neither yet in this case shall the Donor have the reversion again, against h●s own release. Co. ibid. 355. a. 2. 21 Whereas divers hold opinion that upon a recovery had by default in an action of Waste against tenant in Dower or by the courtesy, Waste. a Quòd ei deforceat lieth not; because the default is not the cause of the judgement; For notwithstanding the default there goeth forth a writ to inquire de vafto facto, & quod vastum predict, A. (the defendant) fecit: So as the defendant may give evidence, and the jurors may find for the defendant, that no waist was done; as in an assize, albeit it be awarded by default, yet may the tenant give evidence, and the Recognitors of the Assize may find for the tenant; And therefore in these or the like cases, the tenant or defendant non amittit per defaltum, (as the Statute and Littleton speak) and they cite F.N.B. in the point: Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Nevertheless others do hold the contrary, because albeit in the writ of waste judgement is not given only upon the default, yet the default is the principal, and the cause of awarding the writ to inquire of the waist, as an incident thereunto; and the Law always hath respect to the first and principal cause of a thing, from whence it takes the first rise and being. Co. ibid. 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where joint-tenants or Coparceners have one and the same remedy, if the one enter, the other shall enter also; Joyntenants, and tenants a common. but where the remedies be several, there it is otherwise; As if two joint-tenants or Coparceners join in a real action, where their entry is not lawful, and the one is summoned and severed, and the other pursueth and recovereth the moiety; the other joyntenant or Coparcener shall enter and take the profits with her; because their remedy was one and the same, But where two Coparceners be, and they are disseised, and a descent is cast, and they have issue and die, if the issue of the one recover her moiety, the other shall not enter with her, because their remedies were several; and yet when both have recovered, they are Coparceners again: So if two joint-tenants seized of lands (the one of full age, the other under age) be disseised, etc. And the disseisor die seized and his issue enter, the o●e of the joint-tenants being still under age, And after that he comes to full age the heir of the disseisor lets the lands to the same joint-tenants for their two lives; This is a remittor of the moiety to him within age, because his entry was congeable; but the other joyntenant hath but an estate for life in the other moiety by force of the Lease, because his entry was taken away, Lit. l. § 656. etc. as you shall find it in Littleton Sect. 696. If A. and B. joint-tenants in fee be disseised by the father of A. who dieth seized, his son and heir entereth, he is remitted to the whole, and his companion shall take advantage thereof; Otherwise here in the case of Littl. for that the advantage is given to the infant, more in respect of his person than of his right, whereof his Companion shall take no advantage: But if the Grandfather had disseised the joint-tenants, and the land had descended to the father, and from him to A. and then A. had died, the entry of the other would have been taken away by the first descent, and therefore he should not have entered with the heir of A. etc. Warranty that gins by disseisin. 23 If A. de B. be seized of an house, Littl. § 368. and F. de G. enter into the same house, claiming it to him and his heirs, and make a feoffment thereof with warranty to certain Barrettors in the Country to be maintained by them; by reason whereof A. de B. dare not stay in the house, but goes out; This is warranty that begins by disseisin; because that feoffment was the cause why A. de B. left the possession of the same house. Tenant in tail, the reversion in the King. 24 If a subject make a gift in tail, Co. ibid. 372. b. 3. the remainder to the King in fee, Albeit the words of the Statute of 34 H. 8. cap. 20. be (whereof the reversion or remainder at the time of such recovery had, shall be in the King, etc. yet seeing the estate tail was not originlly created by the King, the estate tail may be barred by a Common recovery: So likewise if Prince H. son of H. 7. had made a gift in tail the remainder to H. 7. in fee, which remainder by the death of H. 7. had descended to H. 8. So as he had the remainder by descent; yet in this case also a Common recovery would have barred the estate tail. No fine before admittance. 25 Popham Chief Justice said, that it was adjudged in Sands his case, Co. l. 4 28. a. 3. Copyhold cases. Hubbert and Hamon's case. that no fine was due to the Lord either upon surrender or descent until admittance: For the admittance is the cause of the fine, and if after the tenant deny to pay it, that is a forfeiture. And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman. The cause must be showed, why the Bishop refuseth to admit. 26 If a Clerk be presented to a Bishop to be admitted to a Benefice, and he refuseth him in pretence of insufficiency or other defect; Co. l. 5. 58. a. ●. Specots' case. In a Quare impedit the Bishop ought to allege some particular crime or cause why he did not admit him, and not generally, quòd non est idoneus, quod est criminosus, schismaticus, inveteratus, or the like: For although it belongs not to the King's Court to determine schisms or heresies; yet the original cause of the suit being matter, whereof the King's Court hath conusance, the cause of the schism or heresy, for which the presentée is refused, aught to be alleged in certain, to the intent that the King's Court may consult with Divines, to know whether it be schism or no, and if the party be dead, may thereupon direct the jury which is to try it. Felons goods for flying cannot be forfeited by prescription. 27 If a man fly for felony, his own goods are not forfeited, Co. ibid. 109. b. 1. Foxl●yes case. until it be found by the indictment before the Coroner, in case of death, or otherwise lawfully found upon record, that the felony was the cause of his flight; For if the goods of any shall be forfeited, only by reason of this flying, without more, than a man may have such goods so forfeited by prescription, as he may have waifs, estrays, treasure trow, etc. but in as much as bona fugitivorum are not forfeited, until the flight be lawfully proved upon record, and because things forfeited by matter of record cannot be claimed by prescription, which is a matter in suit; for this cause they cannot be claimed by prescription. 28 Deodands are the goods, which caused the death of the party killed by misfortune, Co. ibid. 110. b. 4. and are not forfeit, Deodands not forfeited by prescription in England. until it be found upon record, that they were the cause of his death, and therefore they cannot be claimed by prescription no more than bona fugitivorum, for which Vide suprà, 27. M. 30, & 31. El. Co l. 6. 47. b. Dowdales' case Co. Inst. pars 1 261. b. 29 In an action upon the case upon Assumpsit, the Plaintiff counts, Trial of a fact done in France that the defendant at London did assume, that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence, etc. and that the Ship sailing thitherwards was arrested by the King of France, upon the River of Somme within the Kingdom of France, etc. And issue was joined whither the ship was so arrested or not, and before Wray Chief Justice in London it was found for the Plaintiff; and in arrest of judgement it was moved, that this issue arising merely from a place, which was out of the Realm, could not be tried, and that if it might be tried in England, the trial should be by a jury taken out of Melcomo, because by common intendment they might be best acquainted with the arrest: But it was resolved, that, although it be true, that where the contract and the performance thereof are both of them done or to be done beyond sea, there will want trial in our Law; yet in this case the Assumpsit, which is the ground and original cause of the action, being made at London, the trial thereof must of necessity be there also: The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff, and Evangelist Constantine Defena●t. Co. 7. 6. a 4. Calvin's case. 30 It is neither Coelum nor Solum, but Ligeantia and Obedientia, One may be born in England, and yet not within the King's allegiance. that make the subject borne: for if enemies should come into the Realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England; although he be born upon his soil, and under his meridian; because he was not borne under the ligeance of a subject, nor under the protection of the King, etc. And therefore when St●phano Ferrara de Gama and Emanuel Lewes Tinoco, two Portugals born, coming into England under Qu. El. safe conduct, and living here under her protection, joined with Doctor Lopez in treason within this Realm against her Majesty; In that case two points were resolved; 1 That their indictment ought to begin, that they intended treason contra Dominam Reginam, etc. omitting these words (naturalem Dominam suam) and ought to conclude contra ligeantiae suae debitum: But if an alien enemy come to invade this Realm, and be taken in war, he cannot be indicted of treason; for the indictment cannot conclude contra ligentiae suae debitum, because he never was in the King's Protection, nor never owed any manner of ligeance unto him but malice and enmity, And therefore such an alien enemy shall be put to death by Martial Law. As it was in the case of Perkin Warbeck, Anno 15 H. 7. who by the opinion of the judges was to be executed by Martial Law, which was done accordingly. Co. l. 7. 15. a. 3. Calvin's case. 31 Albeit, since K. James took upon him the Crown of England, A Postnatus cannot be noble in England, without creation. a Postnatus in Scotland (or any of his posterity) be the heir of a Nobleman of Scotland, and by his birth is legitimated in England, so that he may inherit Land as well as a natural borne subject; yet he is none of the Péers or Nobility of England, For his natural ligeance and obedience due by the Law of nature, maketh him a subject and no alien within England: But that subjection maketh him not noble within England; because Nobility had his first original by the King's Creation, and not of nature. Co. l. 7. 2. a. 4. Bulwers' case. 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease, Lease made of Land in another country. for years in one County, of land in another County, he ought to bring his action in the County where the Lease was made, and not where the land lies: for the contract made by the Lease is the ground and cause of the action. The action to be laid, where the cause began. 33 The Plaintiff counteth, Co. ibid. 1. Bulwers' case. that H. H. recovered against him 20 l. in Banco, and died before execution, and that the Defendant deceptiuè outlawed him after judgement in the name of H. H. and thereupon imprisoned him in Norfolk, laying his action in that County where he was imprisoned; whereupon the Defendant making objection, that the action ought to have been laid where the wrong did begin by the purchase of the cap. ad satisfact. exigit, cap. utlag. viz. in London, It was resolved, that the action was well laid in Norfolk, where the Imprisonment, the most visible wrong, was, being (indeed) the chief ground and cause of the action. Waste and a writ of right of ward, to be brought in where the land lies. 34 If a Lease be made in one County, Co. ibid. 2. b. Bulwers case. 14 E. 3. 3. and the land lies in another, the action of waist shall be brought where the land lies, and not where the Lease was made, although the term be past; for the land and damages, or damages only for the waist, which is local, shall be recovered, and are the ground and cause of the suit. So also in all actions real, if any issue arise upon the land, 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action, in which the possession of the land, or a thing local, or that which ariseth upon the land by reason thereof, is to be recovered, all these shall be brought in the County where the land lies; As in a writ of right of ward of land, or a writ of intrusion of ward, they shall be brought in the County where the land lieth, although the refusal or the Seignory be in another County: Likewise in a writ of right of ward of the body only, that shall be brought in the County where the land lies; for it is in the right and sawours of the land: 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12, 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was, and not where the land is, or where the body is carried; for that action is founded upon the Ravishment, etc. 36 H. 6. 14. 22 R. 2. Bre. 937. & 12 Eliz. Dyer. 289. Condition of Vicinage. 35 If the Commons of the Town of A. and of the Town of B. are adjacent, Co. l. 7. 5. b. 3. Sir Miles Corbets case. and aught to have Common promiscuè the one with the other because of vicinage, and within the Town of A. there are fifty arcres of Common, and in the Town of B. 100 acres of Common; In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well keep without any respect at all to the Common within the Town of B. nec è converso; for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other. Condition precedent and subsequent. 36 In all cases when an interest or estate commenceth upon a Condition precedent, Co. l. 7. 10. a. 1. Ughtreds case. be the Condition or Act to be performed by the Plaintiff or Defendant or any other, or be the condition in the affirmative or the negative; there the Plaintiff ought to show it in his Count, and aver the performance of it; for there the interest or estate commenceth in him by the performance of the Condition, and is not in him till the Condition be performed: but it is otherwise when the interest or estate passeth presently and vests in the grantée, and is to be defeated by matter ex post facto, on Condition subsequent, be the Condition or Act to be performed by the Plaintiff or Defendant or by any other, and be the Condition in the affirmative or the negative; there the Plaintiff may count generally without showing the performance of it; and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto; for every one ought to allege that, which makes for him, and is for his advantage, but none shall be compelled to produce that which makes against him. Vide infra 25. 20. A Copiholder may lop trees. 37 The Lord of a Copyhold Manor, Co. l. 8. 63. Swains case. within which the Copiholders might by custom lop the timber trees for estovers and necessary repair of fences, etc. makes a Lease thereof to A. for 21 years, excepting the timber trees; A Copyhold tenant having lands upon which such timber grew, surrendered his estate to another, who was admitted by A. the Lessée of the Manor, and lops the trees for necessary repair of fences: Now the question was, whether the Copyhold tenant being admitted by A. who had no interest of the trees by reason of the exception, Co. l. 4. 21. a Brown's case, fol. 23. b Clerk, and Pennyfathers' case. & fol. 24. a. P. 26. Eliz. & 29. b. 2. Buntings case. had power to lop them, because Nemo potest plus juris ad alium transfer, quám ipse habet: And it was resolved that he might lawfully lop them, because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Manor (for the Lord is but as it were an Instrument to convey the grant of the Copyhold) but the Custom of the Manor (after the grant is made) is that, which establisheth and makes it firm to the Grantée: So that although the grant be new, yet the title of the Copiholder to the profit of the trees is ancient, and so ancient, that by force of the Custom it exceeds the memory of man. Vide Co. 4. 27. b. Taverners case, & 28 b. Westicks case. Vide 30. 22, 23. Co. l. 9 81. Agnes Gores case. 38 Gore (the husband of Agnes) being sick, It may be murder, though not intended. Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advice of Doctor Grey into which Agnes secretly puts Ratsbane to poison her husband, and the 18 of May gives part thereof to her husband, who thereupon became very sick, Roper also and another eating part thereof became very sick; at last Martin (being taxed for making the Electuary in that manner) the 21 of May stirs it, and also eats part thereof, and dies the next day: And it was resolved by all the judges of England, that this was murder in Agnes, and that this case did not differ from Sanders case in the Commentaries, Ploughed 474. although Martin by stirring it made the poison more forcible; for the stirring, etc. without putting in the poison could not be the cause of his death; and the Law joins the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event, which ensued thereupon, viz. the death of Martin; for the putting in of the poison was the cause, and the poisoning and death of Martin was the event, Quià eventus est qui ex causa sequitur, & dicuntur eventus, quià ex causis eveniunt. So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar, stirs it, drinks it, and dies, this is murder in A. It is otherwise where Ratsbane is laid with an intention to kill rats, and one takes it, eats it and dies; for there was no felonious intent, etc. Co. l. 9 85. a. Connyes' case. 39 Upon grant of a Manor; An Infant shall do his services, etc. attornement of an infant (being tenant of the same Manor) is good, and in a Per quae servitia against an infant, that hath the tenancy by descent, he shall not have his age; because at first the Lord departed with the land in consideration that the tenant should hold of him, perform services, pay a yearly rent, etc. and the tenant is in Law called tenant paravaile, because the Law presumes that he hath benefit and avail above the services which he doth, and the rent which he pays to the Lord: And therefore it is against the reason and purpose of the creation of the tenure, that, when the heir hath the tenancy paravaile by descent, he should not pay the annual rent, etc. which was reserved upon the Creation of the tenancy: And this is the reason, that the heir of the tenant, who hath the tenancy by descent, may be distreined for the rent, etc. arrere during the minority, and shall not therefore have his age, etc. Co. l. 9 113. a. mary's case. 40 For every feeding of the Cattle of a stranger upon a Common, Trespass for common, & contrà. the Commoner shall not have an Assize, nor action upon the case (as his case lies) but the depasturing aught to be such, per quòd le Commoner, etc. Common de pasture, etc. for his Cattle, etc. habere non potuit, sed proficium suuminde per totum idem tempus amisit, etc. So that if the trespass be so little that he hath not any loss, but that still sufficient remains for him to depasture his cattle: In that case the Commonor shall not take the Strangers Cattle damage pheasant, neither shall he have any action for it: but the tenant of the soil may in that case have an action. So if a servant be beaten, the Master shall not have an action for that battery, except that by reason thereof he loseth his servant's service; but the servant for every slight battery may have an action; and the cause of this diversity is, for that the Master receiveth no damage by the personal battery of his servant, but by reason of a per quod, & per quod servitium, etc. amisit; So that the original Act is not the cause of his action, but the consequent upon it, viz. the loss of his service; and the same reason holds in the case of a Common, as above said. A release of remainder of a temr, good. 41 Quando diversi desiderantur actus ad aliquem statum perficiendum, Co. l. 10. 49. a. 14 Lampets case. plus respicit lex actum originalem, quia cujusque rei potissima pars est principium: And therefore if A. possessed of a Lease for the term of 500 years demiseth the term to B. for life, the remainder to C. and the heirs of his body, and makes B. his executor, and dies, and after B. is possessed of the Lease, C. releaseth to B. all his right in the term; In this case, although it was objected, that the release was void, because C. at the time of the release, had no estate in him, but only a possibility, the whole estate and term of years being in B. so that after the death of B, C. might enter upon the Lease again notwithstanding the release; yet it was resolved, that C. by that release had extinguished all his right and title in the term, and had fixed it in B. because the devise by A. and the assent of B. the executor (appearing by his acceptance of the release) were as the original and fundamental causes of the interest of C. and the death of B. is but a mean to bring the Lease in possession, and gives nothing at all; for that the whole interest accrues by the devise, and is executed by the assent of the executor, and therefore C. had not only a possibility, Fulwoods' case. Co. l. 4. 66. b. but likewise such an interest as might well be released, etc. But in that case a grant by C. to a Stranger had been void. The Commissioners of Sewers. 42 Every Statute, Ordinance, and Provision, Co. l. 10. 140. a Kigheleyes case which is to be made by force of the Commission of Sewers ought to consist of 4 causes. 1 The Material cause, which is the substance. 2 The Formal cause, and that is the manner with convenient circumstance, 3 The Efficient cause, and that is their authority according to their Commission. 4 The Final cause and that is pro bono publico, & nunquam pro privato. The consideration whereof will be as so many Sea-marks to direct the Commissioners how to steer in the execution of their charge, and how to order the liberty which is given them by the Statute of 23 H. 8. 5. viz. to make such Ordinances, etc. according to their own wisdoms and discretions, etc. which words are meant and aught to be interpreted, according to Law and Justice, For every judge or Commissioner ought to have duo grana salis, viz. unum sapientiae, ne sit insipidus, & alterum conscientiae, ne sit diabolus; And discretion is well described to be, scire per legem quid sit justum. Fine in a Leet ought to be distinct, and not joint. 43 In a Léet, a fine of 6 li. put upon all the jurors jointly, Co. l. 11. 42. b. Godfrey's case. by the Steward, (because they would not present a thing, which by the custom of the Manor they ought to present) is not duly imposed, but aught to have been assessed upon them severally; for that the cause, which occasioned the fine, is several, because the refusal of each of them is several and personal, and the refusal of one is not the refusal of another; and therefore if some of them refused, and the rest be ready to present, only those that refuse are to be fined, etc. Damage feasant. 44 If a man take beasts damage pheasant, Fitz. 69. g. and the other offers sufficient amends, and he refuseth, etc. Here if he sue a replevin, etc. for the Beasts, he shall recover damages only for the detinue of them, and not for their taking; for that the cause of taking them was lawful. Fitz. 79. h. 45 The Peace ought not be granted against any without good cause; Binding to the Peace. and therefore by the ancient course of the Law the party complaining used to make oath before a Master of the Chancery, that he was in fear, etc. of some corporal damage, and did not take that oath for malice against his adversary: the like aught to be observed by the justices of the Kings-Bench, and of Peace. Fitz. 95. d. 46 If a man win another's money with false dice, Cheating at Dice. he that is deceived may have an action of Deceit against the party so deceiving him; And in this case although the Defendant do not entice the Plaintiff to play, yet it seems he may well maintain that action against the Defendant; because the excitation to play at dice, is not the cause of the action, but the casting of the false dice, etc. by which he won the money, etc. Fitz. 104. l. 47 If a man acknowledge a Statute Staple, Dures. or Statute Merchant by dures, etc. he may have an Audita quarela to avoid it, because the imprisonment was the cause thereof. Plowd. 19 a. Fogassaes case. 48 If a man by dures be compelled to seal a bond, Dures, or other compulsion. he shall avoid it: So if a man's arm be drawn by compulsion, and by that occasion the weapon in his hand kills another, that is not felony; Likewise if an infant under the years of discretion, or a man de non sane memory kill a man, they shall be excused, because their ignorance, and not any wicked intention was the cause thereof. M. 20. H. 7. 12. per Reed. Plowd. 26. b. 4. Colthrist, and Bivishams. 49 If one retain another to serve a year for 20 s. wages; here, Wages for a years service. if the servant demand the 20 s. he ought to show that the time is past, viz. that the year is expired, and he ought to plead certain, because his action is given in respect of the year past, and of a thing done in time, and the time is parcel of the cause of the demand, and precedes the demand. Plowd. 98. a. Matters of the Crown. 50 In Olivers case in the Commentaries, All principal in Murder. those that stood by and abbetted the Murderers, were as well principals, as those that killed him; because the number of them then present, and ready to strike him, shall be adjudged the cause of his terror, and of the abatement of his courage, and an occasion to make him despair of defending himself, and by consequent that terror was the cause of receiving his wounds, and the wounds the cause of his death. Plowd. 99 b. 101. a. Matters of the Crown. 51 Amongst the matters of the Crown in the Commentaries, Murder, though the party, intended not killed. divers persons having a malicious intention to murder Doctor Ellis, killed his servant unto whom they bore no former malice; yet was it adjudged Murder, because of their murderous intention, which was the cause of his death; it is otherwise when one having no malicious intent, joins himself with others, that commit a murder, for that is but Manslaughter in him, that so suddenly joins with them. 44 E. 3. 14. b. 14 Ass. Pl. 20. Finch 10. 52 A man makes me swear to bring him money to such a place, Terror. or else he will kill me, I bring it accordingly, this is felony. So if he make me swear to surrender my estate unto him, and I do so afterwards, this is a disseisin to me. 21 E. 4. 68 b. Finch 10. 53 One imprisoned till he be content to make an Obligation at another place, and afterwards he doth so, being at large; The like. yet he shall avoid it by dures of imprisonment. 3 E. 3. 84. Finch 10. 54 Outlawry in trespass is no forfeiture of land, Outlawry in trespass in forfeiture. as Outlawry of felony is; for although the not appearing be the cause of Outlawry in both, yet the force of the Outlawry shall be esteemed according to the heinousness of the offence, which is the principal cause and foundation of the process. Villeinage. 55 A man and a feme sole have a villain, Finch 10. and afterwards entermarry, and the villeine purchaseth land, they shall not have the land by entierties, but by moities jointly or in Common, as they had the villain. An action for goods bailed. 56 If one deliver goods to another, 22 H. 6. 1. Co. l. 10. 51. b. Lampets case. and after the Bailor release to the Bailée all actions, the Bailée dies, in a writ of Detinue brought against his executors, they shall not take advantage of that release; for that determines by the death of the Bailée, and the action given against the executors is a new action (although of the same nature) grounded upon their own deteiner. Election of an Annuity, or distress. 57 If a rend charge be granted to A. and B. and their heirs, Co. Inst. pars 1; 146. a. 1. A. distreineth the Beasts of the Grantor, who sueth a Replevin, A. avoweth for himself and maketh Conusance for B. A. dieth and B. surviveth, Here B. shall not afterwards have a writ of Annuity, for, the election and avowry for the rent of A. barreth B. of any election to make it an annuity, albeit he assented not to be the avowry; because in that case the act of one joyntenant barreth the other, and the election takes his rise from several causes, viz. the land or the person; and therefore when the election once fixeth upon the land, it cannot afterwards charge the person: It is otherwise when a man may have election to have several remedies for a thing, that is merely personal or merely real from the beginning: 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of account, or an action of debt at his pleasure, and he bringeth in an action of account, and appears to it, and after is nonsuit; yet may he have an action of debt afterwards because both actions charge the person: The like Law is of an Assize, or of a writ of Entry in the nature of an Assize, and the like. 15 E. 4. 16. 10 E. 4, 5. Co. Inst. pars 1 295. a. 3. Wager of law. 58 In an action of account against a receivour upon a receipt of money by the hand of another person for account render (unless it be by the hands of his Wife or Commoigne) the defendant shall not wage his Law; because the receipt is the ground of the action, which lieth not in privity betwixt the Plaintiff and Defendant, but in the notice of a third person, and such a receipt is traversable: a 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11, etc. But in an action of debt upon an arbitrement, and in an action of Detinue by the bailment of another's hand, the Defendant shall wage his Law, because the Debet and the Detinet is the ground of those actions, and the contract or bailment, though it be by another hand, is but the conveyance, and not traversable. Descent to Daughters, & yet no Copar●eners. 59 Land is given to a man and his wife and the heirs of their two bodies, and they have issue a daughter, the wife dies, Littl. § 662, 663. the husband takes another wife and hath issue another daughter, and discontinues the tail, and after disseiseth the discontinuée, and so dies seized; Here, the land shall descend to both the daughters; but yet they are not Coparceners; because they are in by several Titles, viz. the eldest is remitted by force of the entail to the one moiety, and the other hath Fee simple by force of the descent from her father: but in this case, the eldest shall out the youngest by her action of Formedon. Recovery in value. 60 If the heir of the part of the mother of land, Co. Inst. pars 1 13. a. 1. Pl. Co. 292. 515 whereunto a warranty is annexed, is impleaded and vouch over, and judgement is given against him, and for him to recover in value, and dieth before execution, the heir of the part of the mother shall sue execution to have in value against the vouchée; for the effect ought to pursue the cause, and the recompense shall ensue the loss. Co. ibid. 201. b. 3. 61 He that will take advantage of a reentry for non payment of rent, must make demand of the same upon the land; Demands upon the land. because the land is the principal debtor; for the rent issueth out of the land, and in an Assize for the rend the land shall be put in view; and if the land be evicted by a title paramount, the rent is avoided, and after such eviction, the person of the Feoffée shall not be charged therewith; for the person of the Feoffée was only charged with the rent in respect of the grant out of the land, etc. Howbeit Homage, or any other special corporal service, must be done to the person of the Lord, and the tenant ought by the Law of convenience to seek him, Co. ibid. 210. a. 1. to whom the service is to be done, in any place within England; for that and the like services are due and issue out of the land in respect of the person, etc. F. N. Br. 150. d. 62 If a man recover in value against the baron by warranty of the ancestor, yet the feme of the baron shall be endowed; Dower. because the recovery was had by force of the warranty made, and not by reason of any eigne title to the land. Dyer 13. 62. 28 H. 8. 19 E. 3. 63 If land be given in Frankmarriage, Divorce. and after the Donées are divorced, the party by whom the cause of the Divorce was first moved, shall lose the land; as if the feme sued for it, the baron shall have it, & è contrà. Tamen quaere; for one book saith, that the land shall be divided betwixt them. per Fitzherbert. F.N.B. 121. p. 64 If a man be condemned in trespass or debt upon an obligation, Capias pro fine (where he denies his deed) at the suit of the party, and after he that is condemned is taken by Capias pro fine at the suit of the King, and committed to the Gaol; here, if the Gaoler suffer him to escape, the party shall have an action of debt against the Gaoler for this condemnation, and yet he was not committed to him at his suit, but at the suit of the King: Howbeit, within the year after the condemnation and judgement given, this suit for the King shall serve as well for the party as for the King, because the King was entitled to it by the party, for his suit and judgement was the cause of the King's fine: It is otherwise after the year, because it will be intended they are agreed, and then the party is put to his Scire facias, etc. Co. Inst. pars 1 245. b. 2. 65 If a Bastard eigne after the deceease of the father entereth, Bastard Mu●● and the King seizeth the land for some contempt supposed to be committed by the Bastard, and the Bastard dies, and his issue is upon his petition restored to the possession, for that the seizure was without cause; In this case, the Mulier is barred for ever; for the possession of the King, when he hath no cause of seizure, shall be adjudged the possession of him, for whose cause he seized: But if after the death of the father the Mulier be found heir and within age, and the King seizeth; In that case, the possession of the King is in right of the Mulier, and vesteth the actual possession in the Mulier, for that she was the cause, that occasioned the seizure, and consequently the Bastard eigne is in such case fore-inclosed of any right for ever: So it is likewise, when the King seizeth for a contempt or other offence of the father or any other ancestor; for in that case also, if the issue of the Bastard eigne upon a petition be restored, for that the seizure was without cause, the Mulier is not barred, for the Bastard could never enter, and consequently could gain no estate in the land, but the possession of the King shall be adjudged in the right of the Mulier, and the rather for that the father or other ancestor of the Mulier was the cause of the seizure. Dyer 100 a. 70 1 Mar. 66 If the King grant land by Charter probis hominibus villae de Islington, rendering rend, King's Chanc● this is a good and perpetual Corporation for that intent, but if the King release or give them the rent and fee-farm, it seems the Corporation is ipso facto dissolved, for the rent and farm were the cause of their incorporation. 22 Cujus est dare ejus est disponere. A proviso imports a condition. 1 A. bargains and sells the Manors of D. (unto which an Advowson was appendent) with the appurtenances unto B. and his heirs, provided always, Co. l. 2. 71. b. 2 The Lord Cromwel's case. that B. regrant the Advowson to A. during his life; B. dies, not having regranted the Advowson to A. who enters for the Condition broken: Here, whereas it was amongst other things objected, that this Proviso could not import a Condition, because the Bargainor did only covenant with the Bargainée, and therefore the Bargainée should also be understood only to Covenant with the Bargainor, and so that Proviso only to import a Covenant and not a Condition: It was resolved, that it had the force of a Condition; because it was not unjust or unequal, that the Bargainor from whom the land moved, should annex what Condition soever he pleased to the estate of the land: for Cujus est dare, etc. Feoffment to the use of a Will. 2 If a man seized of lands in fee makes feoffment to the use of such person and persons, and for such estate and estates, Co. l. 6. 18. a. 1. Sir Edward Cleres' case. as he shall apppoint by his will; here, by operation of Law the use rests in the feoffor, and he is seized of a qualified fee, viz. until declaration and limitation be made according to his power; so also when a man makes feoffment to the use of his last will, he is in the mean time seized to the use of himself and his heirs. Legiantia naturalis & acquisita. 3 Legiantia naturalis may be properly said to be pura & indefinita, Co. l. 7. 5. b. 4. Calvin's case. but Legiantia acquisita, may be limited according to the will of the King that grants it, as to an alien and his heirs, or to him and the heirs of his body, or to him for life only, or upon Condition, etc. for Cujus est dare, etc. A stranger may take advantage of a condition. 4 If A. grants lands to B. for life, the remainder to C. for life, Plowd. 24. b. 4. & 31. a. 4. Colthrist, and Beinshin, ibid. 34. A 1. and if C. die, living B. that then they shall remain to D. for life: here, although it was objected, that the remainder to D. was void, because limited to commence upon a Condition, whereof none can take advantage but privies; yet it was adjudged good; For that God hath committed all worldly things to the order and dispose of men; So that when any doth lawfully enjoy such things, he may order or convey, or give them where, when, and how he pleaseth according to his intent and meaning, so that his intent be not against Law, against Reason, or repugnant: And therefore in this case when the Lessor appoints the remainder to the Defendant ut supra, his intent is plainly discovered thereby, and reason requires that his intent should be performed, viz. that the remainder should take effect in manner and form as he hath appointed. Liberty given to the tenant to pay which he will. 5 If there be Lord, and Tenant, and the Lord holds by a Capon, Plowd. 96. a. 4. Woodlands case. or an Egg, or 12 d. rent, Here the Lord shall not come to the land and take a Capon, and Egg, or 12 d. being arrere, although he find it there, but the only remedy is to distrein for it; Howbeit in that case if the Tenant have 20 Capons, 20 eggs, or 20 s. of Silver, it is in the power of the Tenant to give the Lord which Capon, Egg, or twelve pence he pleaseth: So that the liberty is not given to the Lord to take, which of them he will; but to the Tenant, who is to pay the thing. Hedgboot, etc. by assignment. 6 The Lessor covenants, Dyer 19 115● 28 H. 8. that the Lessée shall have sufficient Hedge-boot, etc. by the assignment of the Lessors Bailiff: Here, it was said (by Baldwin and Fitzherbert) that the Lessée might take such boots by the Common Law, and therefore that he might take them without assignment, because it is no more than what the Law gives the Lessée privilege to do: but Shelley contrà, because it being in the Lessors power to grant the lease upon what terms he pleased, the Lessée shall be bound by it, albeit the covenant be in the Affirmative and only on the Lessors part, and not in the Negative (by way of Covenant or Proviso) on the Lessées part: For Modus & coventio vincunt legem, and the Lessée accepted of the Lease upon those terms. Quere. Dyer 136. Pl. 17. 3, 4, P.M. 7 The uses of a fine or recovery may be declared by Indenture or otherwise, as well after as before such fine or recovery; Uses of a Recovery. for so in Arthur Basset's case 3, 4. P. M. the uses of a Recovery were by the Indentures declared four years after the Recovery, and held good enough; for Cujus est dare, etc. 23 Ultra posse non est esse, & Vice Versa. Co. l. 6 58. a. 4. in Bredimaus Case. 1 A Right (without any estate in Possession, A right or remainder after an entall no assets. Reversion or Remainder) for which good remedy by actionis given, is not to be esteemed Assets before it be recovered, and reduced into possession. So likewise an estate (as in rent-seck,) which descends, and for which the heir hath no remedy, is not Assets, until he hath gained seisin; for, want of right & want of remedy are in the same equipage: and therefore a man shall not be remitted to a Right, that is remediless, as appears in the marquis of Winchester's case in the third Report: And in M. 12. and 13. El. betwixt Terling and Trafford it was adjudged, that the Reversion expectant upon an estate tail was not Assets; because it lay in the Will of the Tenant in Tail to dock and bar it at his pleasure, and the Reversioner had no power to prevent it. Co. l. 7, 8. a. 3. The Earl of Bedford's case. 2 In the Earl of Bedford's case in the 7 Report, Voidable Leases made good by acceptance, it is otherwise of void things ab initio. when voidable Leases, being void for a time, shall be always avoided, and when not, this diversity was taken and resolved by the Court, viz. when the interest of him, that makes the avoidance, is but for part of the term; So that it appears there remains yet a residue, and when he, that makes the avoidance, avoides all the interest, so that it appears no residue can remain: As in the principal case there, which was to this effect, Tenant in Tail of lands in Capite makes Leases not warranted by the Statute of 32 H. 8. 28. and dies, his heir under age; Here, the King in right of the heir may avoid those Leases during his time only; for, after the interest is determined, the heir may make them good again by acceptance of the rent: So it is also of a Subject, that is Guardian in Chivalry: Also if a Bishop since the Statute of 13 El. let voidable Leases and die, 2 E. 3. 8. the King during the vacancy may avoid them; but the Successor may make them good again by acceptance of the rent: But if the Patron of the Church of D. grant the next avoidance to another, and after and before the Statute of 13 El. the Parson, Patron and Ordinary make a Lease for years rendering rend, and the Parson dies, the Grantée presents his Clerk, who is admitted, instituted and inducted, and dies: this lease was absolutely avoided and could not stand good against the second successor, etc. Co l. 5. 12. b. 2. Sanders case. 3 If a man having land in which there is a Cole mine (not open) lets the same to another for term of life or years, An exception of great timber, Mines, etc. void. if the Lessée grant unto another all his interest in the land cum omnibus profic. etc. (except & semper reservat, sibi & haeredibus suis toto benefic. & profic. Miner Angl. Cole mine's praedict. parcel terrae ac omnibus arboribus Maerearii, etc. This exception is void, for by the exception of the profits of the Mine or of the Mine itself the land is not excepted, and then (by consequent) he hath excepted that, which he cannot have or take: As if a man assign over his term, except the Timber-trées growing upon the land, or the marvel, or the clay within the ground, this is void; for he cannot except a thing, which doth not by Law belong unto him. Where no interest, no entry 4 If the Baron within age make feoffment in fee of his Wife's land, and dies, his heir shall not enter to avoid this feoffment, Co. l. 8. 43. b. 1. Whittinghams' Case. because nothing descended unto him from the Baron; for the Law doth not respect what estate the Ancestor granted, but what estate he had before the grant, and what right or title the Ancestor left to descend to the heir: And therefore if an infant being tenant in tail make feoffment in fee, and die without issue, his collateral heir cannot enter to avoid that feoffment; for although by his feoffment he granted Fee simple, yet, when he died without issue, nothing descended to the heir, in respect of which he might enter: So also if lands be given to one and the heirs female of his body, and he hath issue a son, and makes feoffment in fee, and dies within age without issue female, the son shall not enter for the said infancy, because no right in that case descended unto him: So likewise if an infant be tenant pur altar vie, and make feoffment in fee, Cestuy quae vie, die, neither the infant nor his heir shall ever enter upon the feoffée, but he in the reversion or remainder, etc. Discontinuance. 5 An estate tail cannot be discontinued, but where he, Co. Inst. pars 1 338. b. 4. that made the discontinuance, was once seized by force of the tail (except it be by reason of warranty, etc.) according to the Rule in Philosophy, Omnis privatio presupponit habitum: for he cannot discontinue that, which he never had. Neither can a person discontinue the Fee simple of his Parsonage; because the entire fee and right thereof was never in him. Vide M. 52. Ex. 8. Remainder of rent void. 6 If I grant a rent out of my land, the remainder in fee, Pl. Com. 35. 2. this remainder is void, because the rent was newly created by the grant, and not in esse before. In Colth. and Bivishams' case. Rend not extinct. 7 A man makes a Lease for term of life, Dyer 31. a. 210 and afterwards the Lessor makes a Lease of the same land for 20 years, rendering rend, the term 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 feoffment to a stranger in fee, who suffers a recovery, and Lessée for life dies, and for the rend avowry was made by the recoverors, and the question was whether or no the rent was extinct by the feoffment, and the better opinion seems to be, that it was not extinct, because it was not in esse at the time of the feoffment made. Abbot, etc. disclaim, bar to the successor. 8 If an Abbot, Prior, Bishop, Co. Inst. pars 1 103. a. 1. or other sole Corporation levy 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, etc. for Franchises and Liberties, if the Abbot, etc. disclaim in them, this shall bind the Successor; So likewise if an Abbot, etc. acknowledge the Action in a Writ of Annuity, this also shall bind the Successor, because he cannot falsify it in an higher Action. Vide suprà M. 1. case 4. 24 Nemo potest plus juris ad alium transferre quàm ipse habet. Co. Inst. pars 1 265. a. 2. Littl. § 446. 1 These words which are commonly put into releaseth, 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 son, and the father be disseised, and the son living (the father) releaseth by his deed to the disseisor all his right, which he hath or may have in the same tenements, without clause of Warranty, etc. and after the father dieth, etc. The son 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 son may enter into the land against his own release; for, Nemo potest plus juris, etc. Co. ibid. 275. b. 3. 2 If Tenant in Fee simple being disseised by two release to one of his disseisors, Release to disseisors enures only 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 Fee 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 than should the release aver 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 joint-tenants in Fee simple be disseised by two, By Join tenants good only 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 moiety. Co. ibid. 309. b. 2. 4 If the Conisée of a fine before any attornment, No distress. by deed indented and enrolled, bargaineth and selleth the Seignory to another; here the Bargainée shall not distrain, because the Bargainor could not do it. Co. ibid. 314. a. 3. Littl. § 562. 5 If there be Lord and Tenant, A Seignory suspended. and the Tenant make a Lease to a man for term of his life, saving the reversion to himself, and the Lord grant the Seignory to the Tenant for life in fee, and lie in the reversion attorne, as he ought, etc. In this case, some think, that the Tenant for life cannot grant the Seignory 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 Seignory was In esse in him, and the Fee simple of the Seignory was not suspended; but if the Lord disseise the Tenant, or the Tenant enfeoff the Lord upon Condition, there the whole estate in the Seignory is suspended; and therefore in that case he cannot during the Suspension grant over his Seignory. Littl. § 619. Addition, but approved for law, per Cook. Co. Inst. pars 1 332. b. 4. 6 If Tenant in tail let this land to another for years, No discon●nuance. and after grants the reversion to a third person in fee, and the Tenant for year's attornes to the Grantée, and the term is expired during the life of the Tenant in tail, whereupon the Grantée enters, and after the Tenant in tail 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 tail; because at the time of the Lease made for term of years, no new Fee simple was reversed in the Lessor, but only the reversion of the estate tail remained in him, in like sort as it did before the Lease made. Joyntenants grant moities. 7 If there be two joint-tenants, Co. ibid. 337. b. 1. and the one is of full age and the other within age, and both they make a feoffment in fee, 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 moiety only; because no more could pass from him by the feoffment. An estray. 8 If an estray happen within the Manor of the wife, 43 E. 3. 8, 10. H. 6. 11. 39 8. 5. 17. Co. ibid. 381. b. 2. if the husband buy before seizure, the wife upon seizure shall have it and not the executors, because the property could not be in the husband before seizure, and therefore the executors could derive to themselves no title in it from the husband. The heir not bound to warranty. 9 The heir shall never be bound to any express 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 heir: And therefore if Tenant in tail seized of divisable lands, alien them in fee to his brother, who afterwards deviseth the same lands to another with warranty against him and his heirs, and dies without issue; This warranty shall not bar the heir in tail of his Formedon; because this warranty did not descend to the issue in tail, for that the Uncle of the issue in tail was not himself 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 Uncle in his life time was not bound to warranty, such warranty cannot descend from him to the issue in tail, etc. For nothing can descend from an Ancestor to his heir; but that, which was first in the Ancestor: So likewise if a man make feoffment in fee, and bind his heirs to Warranty, this is void, as to the heir; because the Ancestor himself was not bound, etc. Tenant in tail cannot grant any remainder of estate. 10 He in the remained in tail bargains and sells his land, Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys' ease. and all his estate, etc. by indenture enrolled, etc. to I. S and his heirs male, etc. to have and hold for the life of the tenant in tail the remainder to Qéen Eliz. etc. 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 agreed Hill. 35. El. in Blithemans' case, that if tenant in tail in consideration of fatherly love covenant by Deed to stand seized to the use of himself for his own life, and after his death to the use of his eldest son in tail, and after this Covenant, the Covenantor takes feme and dies, in this case, the feme shall be endowed; for when tenant in tail hath limited the use to himself for his own life, he cannot limit any remainder over, because an estate for his own life is as long, as he himself can limit by the Law, and therefore the limitation of the remainder is void, and by consequent the Dower good, etc. Entty taken away from issue in tail. 11 The Baron seized to the use of himself and his wife for life, Co. l. 3. 61. a. 3. Lincoln College case. and the heirs of the body of the Baron dies; the issue in the life of the feme, than Tenant of the Franktenement (for so the pleading was) which shall be intended by disseisin, for no surrender or forfeiture was alleged, 4 H. 8. suffers a common rocovery with single voucher, by agreement, that the recoverors shall enfeoff 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 degree enters; The question was, whether the collateral warranty shall bind for the recovery came not in question, because by the pleading it shall be intended, that the issue was seized by another Title than the entail, 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 agreement) had disabled himself 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 less 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 bar the first issue of his writ of Error, because by his own act he hath barred himself 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 fee, levies a fine without proclamations; for there the issue against his own fine could not enter, although it was erroneous. Copihod Custom. 12 Custom hath so established and fixed the estate of the Copiholder, Co. l. 4. 24. b. 1. Murrel and smith's case. that by the Severance of the Inheritance of the Copyhold from the Manor, the Copyhold is not destroyed; for in as much as the Lord himself cannot out the Copiholder, no more shall any claiming under him have power to do it; because, Nemo potest plus juris, etc. A release by bail not good. 13 In debt Martial was bail for the Defendant, Co. l. 5. 70. b. Hoes case. Co. Inst. pars 1 265. b. 2. and before judgement, the Plaintiff releaseth to Marshal all actions, duties and demands, and after judgement was given against the Defendant, upon whose default Scire facias issued out against Marshal, who pleads the said general release: but it was adjudged, that the release was not effectual to bar the Plaintiff, because the words of the bail being conditional, viz. Si contigit Defend, etc. non solvere, etc. there cannot be by the bail any present and certain duty, before judgement given; for before that, it cannot be known to what sum the debt and damages will amount; neither is he, that bails, at first bound in any certain sum, but his recognizance being general, it shall be reduced to a certainty by the judgement. 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 certain duty before the breaking of it, etc. Payment of rent by a termor no seisin. 15 A. deviseth rend to B. for life out of the Manor of D. and deviseth the Manor itself to C. for years, Co. l. 6. 57 a. 4. Bredimans' Case. C. enters and pays the rent during the term; but after the term the Terretenant refuseth to pay the rent, whereupon B. brings an Assize: 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 Terretenant after the term determined; because (ex Etymologia & vi termini) he who hath not seisin in the land charged, cannot give seisin of the rent; for, Nemo potest plus juris, etc. And for the same reason a Praecipe lieth not against a Termor, because he cannot render seisin. 16 The Testator possessed of a Mill for 50 years deviseth it to M.M. after the death of his wife, Acceptance a good bar. Co. l. 8. 96. a. 1. manning's case who in the mean time was to have the occupation of it during her life, paying unto M. M. 7 l. per annum, and he makes his wife his executrix and dies, the wife administers, enters, and pays the rent: Here, the payment of the rent by the executrix was sufficient assent to the legacy, and then she having given her assent to the first devise, it lay not in her power to bar him, that was to have the future devise; for she could not transfer more to another, than she had herself; because after that (by her assent) she had executed the second devise, she could not afterwards otherwise dispose of it to discharge other Legacies, Debts, or the like, etc. Remainder in tail of a lease, cannot grant it. 17 If A. possessed of a term for 500 years deviseth it to B. for life, Lampets' case. Co. l. 10. 47. b. 3 & l. 466. b. Fulwoods' case. the remainder to C. and the heirs of his body; in this case C. during the life of B. cannot grant the remainder to another; because the whole term is in B. and C. hath but an executory interest, depending upon a possibility, viz. enjoy it after the death of B. But here, (B. being executor) a release of his interest to him is good. Vide suprà 21. 41. Release of a Conisee or heir apparent void. 18 If the Conisée of a Statute or Recognisance release to the Terretenant all his right in the land; yet he shall sue execution; Co. l. 10. 50. b. Lampets case. 27 E. 3. Execut. 130. & 25 Ass. Pl. 7. & Pl. Co. 72. Sir Thomas Pope's case. because at the time of the release made he had no interest in the land; for that the body is the Debtor and not the land, but in respect of the body, and the land is not charged with the debt before execution sued; So likewise a release of the son to the disseisor of the father in the life of the father is utterly void; because the son hath no right at all in the life of his father. Vide supra 1. A joyntenant can grant but his moiety. 19 Albeit joint-tenants are (by Littleton) said to be seized per my & per tout, yet can they not singly dispose of more, than the part, Co. Inst. pars 1 186. a. 2. Littl. § 288. that belongs unto them, as to enfeoff, give, or demise, or to forfeit or lose by default in a Praecipe: So likewise if my villain and another purchase lands to them two and their heirs, I can but enter into the moiety; And where all the joint-tenants join in a feoffment, every of them in judgement of Law doth give but his respective part: So if an Alien and a Subject purchase lands jointly, the King upon office found shall have but a moiety. The like. 20 If two joint-tenants make a feoffment in fee upon Condition, Co. Inst. pars 1. Ibid. 3. Ploughed. browning's case. and that for breach thereof one of them shall enter into the whole, yet he shall enter but into a moiety, because no more in judgement of Law passed from him; And so it is also of a gift in tail, or a Lease for life, etc. Likewise, if two joint-tenants make a feoffment in fee, and one of the Feoffors dies, the Feoffée cannot plead a feoffment from the Survivor of the whole; because each of them gave but his part. A confirmation of a rent void. 21 If a man grant a rend charge issuing out of his land to another for term of his life, and after he confirms his estate in the said rend, Littl. § 548. Co. Inst. pars 1 308. a. 3. to have and to hold to him in Fee tail or in Fee simple, this confirmation is void, as to enlarge his estate; because he, that confirms, had not any reversion in the rent. Confirmation by Patron and Ordinary. 22 If the Parson of a Church charge the Glebe by his deed, Littl. § 528. Co. Inst. pars 1 300. b. 3. and after the Patron and Ordinary confirm the same grant; in this case, if the Patron be Tenant in Fee simple, the grant is good; but if he hath the Advowson only for life or in tail, then shall the grant stand no longer in force, than for his life, and the life of the Parson, that granted it: And in this case if the Bishop be Patron, he cannot confirm alone, but the Dean and Chapter must confirm also; For the Advowson or Patronage is parcel of the possession of the Bishopric, etc. Co. Inst. pars 1 300. b. 3. 23 A Parson of D. is Patron of the Church of S. as belonging to his Church, The like. and presents B. who by the consent of A. and the Ordinary grants a rend charge out of the Glebe, this is not good to make the rend charge, perpetual without the assent of the Patron of A. etc. Co. ibid. 266. a. 3. 24 If the Donée in tail discontinue in fee, Release by Dower to the discontinuee. and the Donor release to the Discontinuée and die, and after the issue in tail doth recover the land against the Discontinuée; In this case, the issue in tail shall leave the reversion in the Discontinuée; for the issue in tail can recover but the estate tail only, which descended unto him from his Father, and the Donor cannot have the reversion again against his own grant, and therefore (by consequent) it shall be left in the Discontinuée, etc. Co. ibid. 8. a. 2, 3. 25 If an Alien cometh into England and hath issue two sons, Betwixt Brothers no inheritable blood. these two sons are indigenae Subjects borne; because they are borne within the Realm: Howbeit, if one of them purchase lands in fee, and dieth without issue, his brother shall not be his heir; for there was never any inheritable blood between the father and them, and where the sons can by no possibility be heir to the father, the one of them shall not be heir to the other: And therefore some have holden, that if a man, after he be attainted of Treason, or Felony, have issue two sons, that the one of them cannot be heir to the other; because they could not be heir to the father, for that they never had any inheritable blood in them, etc. Co. Inst. pars 1 a. 3. 26 If Less for life make a Deed of feoffment, Lessor attorney to lessee to make livery. and a Letter of Attorney to the Lessor to make Livery, and the Lessor maketh Livery accordingly, notwithstanding the Lessor shall enter for the forfeiture, because the Lessor for life had a Franktenement in him, whereupon the Livery might work; but if Lessée for years make a feoffment in fee, and a Letter of Attorney, to the Lessor to make Livery, and he make Livery accordingly, this Livery shall bind the Lessor, and shall not be avoided by him; for the Lessor cannot (in this case) make Livery as Attorney to the Lessée, because the Lessée had no Freehold, whereof to make Livery, but all the Fréehold was in the Lessor. Dyer 5. b. 1. 26 H. 8. 27 A man seized of devisable land before the Statute of Uses, Rend devisable. makes a Lease for years rendering rend, and deviseth that rent to a stranger and dies, and the stranger is seized of the rent and dies; In this case, the executors, and not the heir of the devisée shall have the rent; because the rent was but a Chattel in the devisée. Dyer 90. b. 8. 1 Mar. 28 If there be Lessor and Lessée, Trees sold by the Lessor, and the Lessor sells all his trees growing in such a close; Here, nothing passeth to the Vendée; for albeit the Lessor hath a general property in them, yet the special property thereof is in the Lessée; because the wood and trees are parcel of the Lease, who shall by force of his Lease have the shade and fruit thereof, as also the branches, and loppings for fuel and mending of fences, And therefore if the Lessor fell trees without the licence or will of the Lessee, a good action of trespass lieth for the Lessée against him: So likewise in 5 H. 4. 59 the heir in Chivalry being in ward, fells trees in the land in ward, and the Guardian brings trespass against him; and he pleads the special matter in bar. Sed non allocatnr per curiam, etc. 25 Things are construed according to that, which was the beginning of them. Vide Max. 63. 21. Privilege of tenant by the courtesy. 1 Tenants after possibility of issue extinct, Co. Inst. pars 1 28. a. 2. although upon the matter he be but a Tenant for life, yet hath he 8 privileges incident to his estate, which the Law alloweth not to a bare Tenant for life; in respect of the inheritance, which was once in him, which privileges you may see, Co. In. part 1. 28. a. 2. The like. 2 If a woman Tenant in tail general taketh an husband and hath issue, which issue dieth, and the wife dieth also without any other issue; Co. ibid. 30. a. 1 there, albeit the estate in tail be determined, yet shall the hushand be Tenant by the Courtesy; because he was entitled to be Tenant per Legem Angliae at first (upon having the issue) before the estate in tail was spent: And although in this case the estate be not consummate until the death of the wife, yet it hath such a beginning after issue had in the life of the wife, as is respected in Law for divers purposes; for 1 After issue had he shall do homage alone, and is become Tenant to the Lord, and the Avowry shall be made only upon the husband in the life of the wife: 2 If after issue a 34 E. 2. Cui in vita 13. 2 E. 2. Cui in vita 26. 10 E. 3. 12. Dyer 21. El. 3●3. 29 E. 3. 27. the husband maketh a feoffment in fee, and the wife dieth, the feoffée shall hold it during the life of the husband, and the heir of the wife shall not during his life recover it in a sur cui in vita; for it could not be a forfeiture; because the estate, at the time of the feoffment, was an estate of tenancy by the Courtesy initiate, and not consummate: And it is adjudged in 29 E. 3. that the Tenant by the Courtesy cannot claim by a Devise, and waive the estate of his tenancy by the Courtesy, because (saith the Book) the Fréehold commenced in him before the Devise for term of his life. A Voyage Royal. 3 When the King makes Voyage Royal into Scotland to subdue the Scots, Co. ibid. 71. a. 4. Littl. § 96. Co. ibid. 70. a. 1 Co. ibid. 108. a. 4. Vide infrà 10. etc. M. 43. 12. Co. ibid. 164. a. 4. &c, Bracton l. 1. 66. Britt. cap. 71. Fleta l. 5. c. 9 & 6. c. 47. the Law accounteth the beginning of the forty days to be after the King entereth into the foreign Nation, for then the War beginneth, and till he come there, he and his host are said to go towards the War, and no military service is to be done, till the King and his host come thither. Tenure in Capite. 4 If one holdeth land of a common person in gross as of his person, and not of any Manor, etc. and this Seignory escheateth to the King (yea, though it be by attainder of Treason) he holdeth of the person of the King, but not in Capite; because the original tenure was not created by the King. 3 E. 3. B. tenors 94. 30 H. 8. 43. 28 H. 8. B. livery 57, etc. Descent in Capita & stirpes. 5 In case of Coparceners, sometimes the descent is in Stirpes, viz. to Stocks and Roots, and sometimes in Capita, to Heads; As if a man hath issue two daughters and dieth, this descent is in Capita, viz. that each daughter shall inherit alike, as Littleton saith, Sect. 241. But if a man hath issue two daughters, and the eldest daughter hath issue three daughters, and the youngest but one daughter; All those four shall inherit, but the daughter of the youngest shall have as much as the three daughters of the eldest, Ratione Stirpium, in respect of their mother's estate, from which theirs took beginning, and not Ratione Capitum; for in judgement of Law every daughter hath a seveaal Stock or Root. So if a man hath issue two daughters, and the eldest hath issue divers sons and divers daughters, and the youngest hath issue divers daughters, the eldest son of the eldest daughter shall only inherit, and all the daughters of the youngest; for this also is not in Capita, but in Stirpes; and in this case the eldest son is Coparcener with the daughters of the youngest, and shall have one moiety, viz. his mother's part: So that men descending of daughters may be Coparceners, as well as women, and shall jointly implead and be impleaded, etc. Vide 26. 2. Littl. § 2●2. Co. ibid. 178. b. 2. 6 The Lands in Frankmariage to be put into Hodgepodge, Frankmariage Hodgepodge. and the Lands in Fee simple which descend, aught to move from one and the same person; for if they moved from several Ancestors; they cannot be put into Hodgepodge, etc. Co. ibid. 187. a. 4. 39 H. 6. 45. 21 R. 2. judge. 63. M. 33. E. 3. 7 If Lands be given to a man and a woman and their heirs before marriage, the husband and wife have moities between them: Lands given to Batre and feme. but if it be after marriage, each of them taketh the whole; And therefore in this last case, if the husband be attainted of Treason, or selleth away the land, after her husband's death, she shall recover the whole; as it fell out in the case of William Ocle, who was attainted for murdering, E. 2. Finch. 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agreement precedent ought to guide the payment subsequent, and therefore in case the feoffée die, The condition of a mortgage must be performed. and it is agreed between the feoffor and the executors of the feoffée, that at the day and place the whole sum shall be paid, and that afterwards some part thereof shall be restored, this is no performance of the Condition; for hereby the state shall not be devested out of the heir, which is a third person, without a true and effectual payment, and not by a shadow and colour of payment. Co. l. 5. 96. Goodales' case. Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case. 6 E. 3. 41. etc. 9 Littleton saith, that a descent, Descent by entry into Religion. which happens upon the disseisors entering into Religion, shall not take away the entry of the heir: yet his entry into Religion is not the cause of the descent, but his profession; for albeit he enter into Religion, yet before he be professed, no descent can happen; But in this case the Law doth respect the original act, and that is his entry into Religion, which was his own act, and whereupon the profession followed, by which profession the descent happened; for, Cujusque rei potissima pars, principium est, And again, Origo rei inspici debet; and therefore Littleton attributeth the cause of the descent rather to the deisseisors entering into Religion, which was the first act to procure a descent, than to his profession, which followed thereupon. Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards. 10 To prevent the barring of an estate tail, An entail, and the reversion in the King. when the reversion is in the King, according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King, and not by any Subject, albeit the King be his heir to the reversion: And therefore if the Duke of Lancaster had made a gift in tail, and the reversion descended to the King, yet was not that estate restrained by that Statute, and so of the like. Co. l. 5. 15, 16. in Wiseman's case. Vide 21. 8. 33 Ass. Pl. 7. 11 If a servant (departed out of his Master's service) kill his Master upon a malice that he bore him, whilst he was his servant, Malice prepence. it is petty Treason. Finch 10. 10 El. Dyer, 266. b. 12 A erects a Shop upon the Kings Fréehold, No possession against the King. the King grants the land to B. in fee, A. before entry or seizure of the Shop by the King's Patentée, continueth the possession and dieth seized: This is no descent to toll the Patentées entry: For by his first erecting of the Shop he could gain nothing against the King. Finch 11. Co. lib. 2. 93. a. 3. Binghams' case. 6. E. 3. 410. 13 It was said in Binghams' case in the 2 Report, The original act considerable. that when divers accidents are requisite to the consummation of a thing, the Law in many cases respects rather the beginning and original cause, than any thing else, As in 6 E. 3. 41. if a man present to another man's Church in the time of war, and thereupon the presentée is admitted, instituted, and inducted in time of peace; Here, the Law gives such regard to the original act, viz. the presentation, that all, which follows thereupon, although it be done in time of peace, Co. l. 1. 106. Shelleyes case. shall be avoided; And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme, not good. 14 If land be given to Baron and Feme, Co. l. 3. 5. b. 3. Owen and Morgan's case. Co. l. 3. 34. b. 4. Butler and Baker's case. and to the heirs of their two bodies engendered, and the Baron alone suffers a common recovery, this shall not bind the estate tail; And albeit in this case the Baron, which suffers the recovery survives the Feme, that is not material; for the Law shall adjudge upon the case, as it was at the time of the recovery. Tenure according to limitation. 15 If Land be given to a man and his heirs to hold by Soccage during his life, and after his decease to hold by Knight-service; Littl. § 698, 699, 700. Here shall be no ward, because the tenure by Knight-service gins in the son, and the Father during his life holds by Soccage: And è converso, if lands be given to a man and his heirs to hold by Knight-service during life, and after his decease in Soccage; Here likewise shall be no ward, because immediately upon the death of the tenant, the Knight-service determines, and then also the tenure in Soccage gins in the son. Warranty that gins by disseisor, not good 16 If the son purchaseth land, Co. l. 4 37. a. Tirringhams' Case. and letteth the same to his father for term of years, the father enfeoffs another in fee, and binds himself and his heirs to warranty, the Father dies, by which the warranty descends to the son; this warranty shall not bar the son from his entry or recovery by assize, etc. because this warranty gins by disseisin: In like manner is it, if the father or any other Ancestor be tenant at will, by Elegit, by Stature Merchant, or Statute Staple, and make feoffment with warranty as aforesaid, etc. Such warranty shall not bar, because it gins by disseisin, etc. There is the same reason of Guardian in Knight-serice, or in Soccage, which make such feoffment with warranty. So also if the father and son be joint-tenants in fee, and the father make feoffment with warranty, etc. and dies; this shall not bar the son of his moiety, causa quae suprà. Common appendent, due of common right. 17 The beginning of common appendent by the ancient Law was in this manner; 37 H. 9 34. per totam curiam. 29 H. 8. 4. when the Lord of a Manor did enfeoff a man of arable land to hold of him in Soccage, viz. per servitiam Socae (as every such tenure at the beginning, as Littleton saith, was) the feoffée ad manutenendum servitium Socae, was to have Common in the Lords wastes for such necessary beasts, as were to blow and compass his land; and therefore such Common appendent is due of common right, and gins 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 only appendent to ancient arable land Hid and Gain, and only for Horses, Oxen, Cows, and Sheep, whereof the first two serve to till the land, the other to compass it; And therefore it is against the nature of such Common to be appendent to Meadow or Pasture, and if a man will prescribe to have Common belonging to a Mess, Meadow and Pasture, this cannot be Common appendent, but appurtenant; unless he having Common appendent belonging to land, hath of late time peradventure built an house upon it, and converted it to Meadow and Pasture for his conveniency, and the better advancement of tillage, which was the original cause of the Common. For in this case the Common remains appendent, 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 appendent to the land, etc. Co. l. 4. 117, 118. Acton's case. 18 The Baroness of Monteagle in her widoow-hood reteins one Cartmel to be her chaplain, according to the Stat. of 21 H. 8. A Baroness may retain Chaplains in her widowhood. 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, etc. is admitted, instituted, and inducted to the vicarage of G. Here, because Cartmel accepted of the vicarage, when the Baroness was covert Baron, being married to one not under the degree of a Baron (for in case of such marriage a Proviso of that Statute saves the privilege of a Baroness) the question was whether the first benefice was not void: And it was resolved, that Cartmel after the marriage might have a dispensation, and hereupon might have another benefice without danger of losing the first; for although a Baroness married to a Peer cannot during the Coverture retain a Chaplain, yet when a Baroness being a widow 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 Baroness continues a Baroness, the Chaplains may well accept two benefices by the express letter of the act; for it sufficeth that at the time of the retainer the Baroness was a widow; because, by that the express words (being widow) 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 Plaintiff, and execution of it in satisfactione, etc. decasus reparationum praedict. upon which the Plaintiff demurs; Here, albeit it was objected; that this action of Covenant being founded upon the Deed, could not be discharged without matter of as high nature, viz. by Deed, 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 Deed in certainty, tempore confectionis scripti, as by Covenant, Bill or Obligation to pay a sum of money; here, this certain duty takes his essence and operation originally and only from the writing: and therefore aught to be avoided by matter of as high nature, viz. by writing; but when no certain duty accrues by the Deed, but a wrong or default subsequent together with the Deed do give action to recover damages, which are only 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 Hind. 20 In all cases when an interest or estate commenceth upon a Condition precedent, there the plaintiff ought to show it in his count, Condition's precedent and subsequent. and aver 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 Plaintiff may count generally without showing the performance of it, and the Condition or matter ex post facto shall be pleaded only 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 Privileges, Liberties, Franchises shall not die. Franchises, etc. which were such in his own hands, as parcel of the flowers of his Crown (such as are Bona & cattalla felonum, fugitivorum, utlagatorum, etc. bona & cattalla waviata, extrahur' deodanda, wreccum maris, etc. within such possessions; Here, if these come again unto the King, they are drowned in the Crown, and he hath them again in jure Coronae; but when a Privilege, Liberty, Franchise, or jurisdiction was at the first erected and created by the King, and was no such flower before in the Garland of the Crown; here, by the accession of them again to the Crown, they are not extinct, nor the appendance of them severed from the possession: As if a Fair, Market, Hundred, Léet, Park, Warren, or the like; are appendent to Manors, or in gross, and after they come again to the King, they remain (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 appendent: And this diversity was agreed 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, shall hold, as before. 23 If there be two Coparceners, and the one disseiseth the other, Co. Inst. pars 1 167. b. 2. Bracton l. 4. fol. 216. Britt. f. 112. a. Ibid. vide Parl. author. and the Diseissée bringeth an Assize, or if the one Coparcener recover against the other in a Nuper obiit, or a rationabili parte, it hath been said by some, that the judgement shall be, that the Demandant shall recover and hold in severalty: but Britton is to the contrary; for he saith, Et si ascuns des parceners soit enget ou disturbe de seisinie per ses autres parceners; Un ou plusors, all dissiesis vaudra assize per severale pleynte sur ses parceners, & recovera; Mes veny a tener en severalty, mes en comune, selon ceo que evant le fist; Et si deux parceners ou plusors soyet disseisies per les autres parceners, chescun parcener avera sa assise en severalte, & recoverout a tene en comune, & tout issint serra juge en touts autres brefs de possession entre parceners, etc. And this seemeth reasonable; for she must have her judgement according to her plaint, and that was of a moiety, and not of any thing in severalty; and the Sheriff cannot have any Warrant to make any partition in severalty, or by Metes, or Bounds. Joyntenants shall do the like. 24 If one joyntenant or Tenant in Common disseise another, Co. Inst. pars 1 187. a. 2. and the disseisée bring his Assize for the moiety; in this case, though the Plaintiff prayeth it, yet no judgement shall be given to hold in severalty; for then at the Common Law (before the Statutes of 31 H. 8. cap. 1. and 32 H. 8. cap. 32. by which they are compellable to make partition) there might have been by compulsion of Law a partition between joint-tenants and Tenants in Common; but that could not be; because by the Rule of Law the Plaintiff must have judgement according to his plaint and demand, which was of a moiety, and not of any thing in severalty. Feoffor, Feoffee, condition, diversity. 25 If a man make a feoffment in fee upon Condition that the Feoffée before such a day shall reinfeoff the Feoffor, Co. Inst. pars 1 221. b. 3. and the Feoffée take wife, entereth into Religion and is professed, or make foefment in fee, in all these cases the Feoffor may enter presently before the day, yea, albeit before the day the wife die, the Feoffée be deraigned or take back the estate; for in all these cases that disability in the Feoffée gives to the Feoffor present advantage of reentry; for the Feoffée being once disabled is ever disabled: Howbeit, it is otherwise in the case of the Feoffor; for if a man make a feoffment in fee upon Condition, that if the Feoffor or his heirs pay a sum of money before such a day, and the Feoffor commits Treason, is attainted, and executed, now is there a disability on the part of the Feoffor, for he hath no heir, but if the heir be restored before the day, he may perform the Condition, as it was resolved in Sir Thomas Wiat's case Trin. 18. Eliz. in C. B. Otherwise it is if such a disability had grown of the part of the Feofféet And the reason of this diversity is, because the estate of the land did originally flow from the Feoffor, and therefore there remains still in him an eyrie right to have the land again: So it is also if the Feoffor enter into Religion and is professed, and before the day is deraigned, he may in that case also perform the Condition, causa quà suprà. Dyer 149. 82. 3, 4 Ph. M. 26 A feoffment was made before the Statute of 27 H. 8. Estate to Baron and Fear joint-tenancy. to the use of a man and a woman unmarried, and of the heirs of their two bodies, and after they intermarrie, and after marriage, the husband bargains and sells the whole land in fee to one of the Feoffées, and dies without issue, and after the Statute of 27 H. 8. is made, the feme claims the whole by the survivor, as Tenant in tail after possibility, etc. And per Curiam, without argument, she shall have but a moiety; because the Baron and Feme had at first moities as joint-tenants, by reason of the joyn-tenancie made before marriage, etc. 26 A derived power cannot be greater than that, from which it is derived. Derivata potestas non potest esse major primitiva. Co. Inst. pars 1 162. b. 2. 1 If there be Lord and Tenant, and the rent is behind, Executors shall not recover arrearss. and the Lord grant away his Seignory and dieth, the executors shall have no remedy for these arrearages; because the Grantor himself had no remedy for them, when he died in respect of his grant; And the words of the Statute of 32 H. 8. 37. (which gives remedy for the recovery of arrearages of rent) are these (in like manner as the Testator might or aught to have done.) Et sic de similibus. Co. ibid. 164. a. 4. 2 If a man hath issue two daughters, Coparoeners inherit a like. and the eldest hath issue three daughters, and the youngest only one daughter; here, all these shall inherit, but the three daughters of the eldest shall have no more, than the daughter of the youngest, viz. a moiety; because they can enjoy no more, than she was to have, through whom they claim, and that is but a moiety, etc. Vide suprà 25. 5. Littl. § 435. 3 The Attorney of one that is disseised cannot make claim off from the land, if the disseisée himself durst have gone to the land. The Attorney cannot do more than his Master. Finch 11. Littl. § 583. Co. ibid. 321. b. 1. Sir Moil Finches case. Co. 6. 68 b. 3. 4 If there be Lord and Tenant, and the Lord grants his Seignory by fine to another in fee; here, A fine of a Seignory not good without attornment, without attornment nothing passeth; And therefore in this case if the Conisée die before attornment, his heir shall not have it; for the heir shall not be in any better estate, than his Ancestor was, from whom he derives his title: So also it is, if the Conisée of a fine before attornment bargain and sell the Seignory by Deed indented and enroled, the Bargainée shall not, distrein; because the Bargainor, from whom the Seignory moved had never actual possession. 28 Ass. Pl. 4. 5 The Bailiff of a Disseisor shall not say, The Bailiff shall not say more than his Master. that the Plaintiff never had any thing in the land; for the Master himself shall not have that plea; because he is not Tenant of the Frée-hold. Finch 11. 2 E. 4. 16. 6 The servant shall be estopped to say, the Fréehold is his Masters, by recovery against his Master, though the servant himself be a stranger to it; for he shall not be in better condition than he, in whose right he claimeth. Finch 11. Tenant in tail in remainder cannot falsify a recovery 7 A. is Tenant in tail, remainder to B. in tail, Co. lib. 1. 62. Caples case. B. grants a rend charge, A. suffers a common recovery, and dies without issue; Here, the Grantée of the rent shall not have it; because he cannot falsify the recovery, being suffered by one that could not be chargeable with the rent; for if B. in the remainder cannot do it, may less the Grantée, that claims under B. An Infant not remitted. 8 If a man by Covin disseise the Discontinuée of Tenant in tail with an intent to enfeoff the issue in tail, being within age, 19 H. 8. 8. per six Justices. Co l. 3. 78. a. Fermors case. although the Infant was not conscious of the Covin, etc. yet shall he not be remitted; because the Infant, that is in by him, who acted the Covin, shall be in the same plight with him, that performed the covenous act. A Copyhold a firm estate. 9 Custom hath so established and fixed the estate of the Copiholder, Co. l. 4. 24. b. Murrel and smith's case. that by the severance of the inheritance of the Copyhold from the Manor the Copyhold itself is not destroyed; For, in as much as the Lord himself cannot out the Copiholder, much less shall he, that claims under him do it. Executors shall lose arrearages. 10 If the son be Lord and the father Tenant by certain rent, Co. l. 4. 49. a. Ognels case. the rent is arreare, the Tenant dies and the tenancy descends to the son; in this case if the son also dies, the executors of the son shall not have an action of debt for the arrearages incurred in the son's life; because the son himself by no possibility could have such an action; for that the tenure was altogether in the realty, and the Tenant could not be charged in any personal action for those arrearages. The like. 11 If A. hath rend service or rend charge in fee, or for life, Co. ibid. 50. b. 4 Co. l. 5. 12. b. 1. Sanders case. and the rent is arreare, and after A. grants over the rent to another, and the Tenant attorns, and after A. dies; in this case, the executors of A shall not recover the arrearages by force of the Statute of 32 H. 8. cap. 27. For by the grant, the over arrearages were lost, and were not due to the Testator at the time of his death, and the Statute saith, the executors shall recover them, etc. in as large and ample manner as the said Testator might or aught to have recovered them, etc. Waste in a Cole-mine. 12 A. demiseth a lease to B. for years, Co. l. 5. 113. a. Mallories case. Co. Inst. pars 1. 321. b. 1. M. 36, & 37 El. in Co. B. Rot. 420. Owseys' case. wherein there is a Coal Mine not opened; Here, if B. open the Mine, it is waste; And therefore if after the Mine is open B. assign his term to C. and C. taketh the benefit of the Mine, C. also committeth waste, albeit the Mine was open before; for Derivata potestas non potest esse major primitiva. Grant of a reversion not good without attornment. 13 If a Lease for life or years be made rendering rend, etc. and after the reversion is granted to B. by fine, and before attornment B. disseiseth or outs the Lessée, and enfeoffs C. the Lessée reenters, this shall not amount to an attornment in Law, to make privity to C. and so to enable him to distrain for the rent; for he shall not be in better estate than his Feoffor was; it is otherwise, if the Lessée had expressly attorned to the Feoffée. Co. l. 6. 68 Sir Moil Finches case. Demise durante viduitale. 14 If a Feme seized of lands durante viduitate, Co. 5. 116. a. Olands' case. make a Lease for years, and the Lessée sow the land, and afterwards the Feme, that made the Lease, takes Baron; Here, the Lessée shall not have the grain; for although his estate be determined by the act of a stranger, yet he shall not be in better case, than his Lessor, from whom he derives his interest. Tenant in tail cannot demise longer than the estate lasts 15 If Tenant in tail make a Lease for lives according to the Statute of 32 Hen. 8. 28. and after die without issue, Co. l. 8. 34. a. Pains case per Curiam. this Lease being derived out of the estate tail, shall not continue longer than the estate tail (against the opinion in Dyer, 33 Hen. 8. fol. 48.) For, Cessante statu primitivo cessat & derivativus. Co. 8. 135. b. Sir John nedham's case. 16 The Ordinary hath not power to give authority to another to sell the goods of the dead; Ordinary cannot sell. because he himself hath not any such authority. 9 El. Dyer 255. Co. l. 9 39 a. Hensloes' case. Co. 9 76. b. 2. Combs case. 17 A Copiholder may surrender by Attorney; A Copyhold may be surrendered by attorney. but then that Attorney must pursue the manner and form of the surrender in all points according to the Custom, as the Copiholder himself ought to do; as if the surrender ought to be done by the rod, or by any other thing or in any other manner, the Attorney ought to observe it accordingly; for his power shall not exceed the power of the Copiholder, that gives him his authority. Co. l. 11. 87. a. 4 The case of Monopolies. 18 In the 11 Report, The grant of a Monopoly void. one reason why the grant of the Monopoly of making Cards to Edward Darcie was adjudged void, was; because he had no skill to make them; and therefore, albeit the grant extended to his Deputies, and that he might appoint Deputies, which might be expert, yet if the Grantée himself be unexpert, and so the grant void as to him, he shall not make any Deputy to supply his place; because, Quod per me non possum, nec per alium. 27 Things are dissolved, as they be contracted. Unum quodque dissolvitur eo modo, quo colligatum est: Nihil tam conveniens naturali aequitati, unumquodque dissolvi eo ligamine quo ligatum est. Bract. l. 5. 413. Fleta l. 2. c. 12. Co. Inst. pars 1 54. b. 1. & Inst. 2. part. W. 2. cap. 24. 1 Bracton saith, Writs not changed without Act of Parliament. that writs original (both form and of course) which are extant in the Register, had their first authority by act of Parliament, and therefore without an act of Parliament they cannot be altered or changed, which is proved by Westm. 2. cap. 24. whereby remedy is provided in many cases. Bractons' words are these, Sunt quaedam brevia formata in suis casibus, & quaedam de cursu, quae concilio totius regni sunt approbata, quae quidem mutari non possunt, absque eorundem contraria voluntate, etc. Co. l. 8 48. a. John Webs case. Co. Inst. pars 1 131. a. 4. Ibid. See more authorities. 2 If after a Protection is allowed by Innotescimus, A Protection must be disallowed by the Chancellor. the Defendant tarry in the Country without going to the service, for which he was retained, above a convenient time after he had the Protection, or otherwise repair from the same service, upon information thereof to the Lord Chancellor, he shall repeal the Protection in that case by another Innotescimus, but a Protection shall not be avoided by a bare averment of the party in that case; because the record of the Protection must be avoided by matter of as high nature. Co. Inst. pars 1 204. a. 4. 3 E. 6. Dyer 65, 66. 4 Mar. 138. 3 If a man maketh a feoffment in fee or for life ad faciendum or faciendo, or ea intention, or ad effectum, or ad propositum, What words make a condition, and what not. that the Feoffée shall do, or shall not do such an act, none of these words make the estate of the land conditional; for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defe●sible, which took effect by Livery (except it be in the King's case, or in the case of a will:) But if a Lease for years be made with such a clause, or thus, Quod non licebat, to the Lessee, dare, vendere, vel concedere statum & sub poena forisfacturae, H. 40. Elizabeth Brown & Ayers case. Ploughed. Co. 142 Browning and Bestons' case. Co. ibid. 214. b 3. 1. ibid. per auth. this amounts to make the Lease for years defeasible, and so was it adjudged in Queen Elizabeth's time in the Court of Co. Pl. and the reason of the Court was, That a Lease for years was but a contract, which may begin by word, and may also by word be dissolved. 4 If a man make a gift in tail or a Lease for life upon Condition, Where an estate shall cease upon condition, & where not. that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void, the Grantee of the reversion shall never take advantage of this Condition, because the estate cannot cease before an entry; but if the Lease had been but for years; there the Grantee might have taken advantage of the like Condition; because the Lease for years ipso facto by the breach of the Condition without any entry was void; for a Lease for years may begin without Ceremony, and so may end without Ceremony; but an estate of Freehold can neither begin nor end without Ceremony. Co. l. 3. 64. b. 4. and 65. a. 1. Pennants' case. Things that lie in grant not surrendered without deed. 5 Rents, Advowsons', Conditions, Reversions, Remainders, Co. ibid. 338. a. 3. and all other things, that lie in grant, as they cannot be granted without Deed, so shall they not be surrendered without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word. Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription. 7 In an Annuity growing by prescription rien arrere is a good plea; for this prescription is a matter in fait: 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea, without showing an Acquittance. Matter pleaded against the King. 8 When a man avoides the King's Title by as high a matter of Record as the King claimeth, he may have it by way of Plea, without being driven to his Petition, though the King be entitled by double matter of Record; As one is attainted of Treason by Parliament, and an office finds his lands, whereby the King seizeth them, the party may allege restitution by Parliament, and a repeal of the former Act. Finch 12. Co. l. 4. 57 a. 4. In the Saddlers of London's Case. Power of revocation annulled by feoffment or release. 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life, remainder in tail to C. remainder to D. in fee, with proviso, Co. l. 1. 113. a. Albanies case. that if E. die without issue, A. by Indenture sealed, etc. in the presence of 4 witnesses may alter the uses, etc. A. of one acre enfeoffs F. and for the other acre A. by Indenture renounceth, surrenders, releaseth, etc. unto B. C. and D. the said Power, Condition, Authority, etc. E. dies without issue, A. by Indenture revokes the first uses, and limits new ones: And it was resolved, that A. had by the said feoffment and release barred himself of limiting other uses; for as the Proviso and Covent aforesaid did commence by Deed, so by Deed may they be annulled and defeated, because in all cases when any thing executory is created by a Deed, the same thing by consent of all persons, which were parties to the creation of it, may be again by their Deed annulled; And therefore Warranties, Recognizances, Rent-charge, Annuities, Covenants, Leases for years, uses at the Common Law, and the like, may by a Deed of Defeasance (with the mutual consent of all those that were parties to the creation of them) be annulled discharged and defeated; for it would be strange and unreasonable, that a thing, which is created by the act of the parties, shall not be again by their act with their mutual consent dissolved. Blood no valuable consideration against the Statute of 13 El 5. 10 Nature and blood are not valuable considerations to satisfy the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case. and therefore if he that is indebted to five several persons (to each of them in 20 l.) in consideration of natural affection gives all his goods to his son or cofin, in this case in as much as the other shall lose their due debts, etc. which are things of value, the intention of the act was, that the consideration in such case should be valuable; for equity requires, that such a gift, which shall defeat others of their due debts, shall be upon as high and as good a consideration, as those debts are, which are so to be defeated. A right cannot be transferred. 11 By the Rule of the Common Law, a right or title, Co. l. 4. 1. a. Vernon● case. which any hath to any Lands or Tenements of inheritance or Franktenement, cannot be barred by acceptance of any manner of collateral satisfaction or recompense, As if A. disseise B. Tenant for life or in fee of the Manor of Dale, and after gives the Manor of Sale to B. and his heirs in full satisfaction of all his right in the Manor of Dale, which B. accepts, yet B. may nevertheless enter into the Manor of Dale, or recover it in any real action; for the right of Inheritance or Franktenement which is supposed originally to commence by Livery, shall not be transferred or be extinct without some Ceremony, as first by reentry upon the Disseisor, and then by giving Livery, or by that, which doth tant amount, viz. by release or confirmation to him, 13 H. 7. 13. 20. etc. And therefore it is commonly said in our Books, that accord with satisfaction, is a good Plea in personal Actions, where Damages only are to be recovered, but not in Real Actions. Co. l. 4. 55. b. & 56. a. In the Case of the Saddlers in London. 29 Ass. 31. Pierce Partifields case. 12 In Pierce Partifields case cited in the case of the Saddlers of London in the 4 Report, fol. 55. An office found for the King cannot be quashed but by petition, matter of record of as high nature. b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London, that the Tenant died without heir, whereupon the King grants them to Pierce P. for life, who sueth a writ to the Major, to put him into possession, the Major returns, that the Tenant made his Will and gave them to his wife for her life, who was yet in life, and seized of the said houses together with one Jo. Digle her then husband, P. P. outs Digle and his wife, who thereupon bring a Scire facias against P. P. who demands judgement of the Writ; because in as much as he was but Tenant for life, and the reversion was in the King, they ought to sue the King, which they could not do but by petition: And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate, and that Digle and his wife should sue by petition; because, for as much as the King's Title was found by inquest of office upon oath, the Title of the Subject aught also to appear by Record of as high nature, viz. by like inquest of office upon oath, and not by return of the Major only; for albeit that return be matter of Record, yet is it not of so high and great regard in the Common Law as an office found by oath. Co. l. 4. 55. a The Case of the Saddlers in London. 13 At the Common Law, The like. when the King was seized of any estate of Inheritance or Franktenement by any matter of Record, were his Title by matter of Record judicial, as attainder, etc. or ministerial, as office, or by conveyance of Record by assent, as fine, Deed enrolled, etc. or by matter in fact and found by office of Record upon oath, as alienation in Mortmain, purchase by Alienée, the King's villain, escheat by death without heir, etc. he that had right could not have any traverse, whereupon he might also have an Amoveas manum, but was always put to his petition of right to be restored to his Franktenement and Inheritance; Howbeit he might have his Monstrance de droit, and was not forced to his petition, when the King was entitled by matter in fact (as Villain, Mortmain, Escheat, Alien, etc.) found by office, and by the same office the Title of the party did also appear, as if a Disseisor did alien in Mortmain, or to an Alienée, or to the Kings Villeine, or did die without heir, in all these cases the party grieved might have his Monstrance de droit at the Common Law; And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the King's Licence married the King's Niefe, The like, and that certain Lands descended to the same Niefe; which the Baron had aliened without the King's leave (his wife being the King's Niefe) to another, and for that cause the land was seized, whereupon the Alienée comes into the Chancery, and showeth all the case as it was found by office; And therefore because all the truth of the case (viz. the Niefe married by his Licence, the descent to the Niefe after the Coverture, etc.) did appear in the Office, it was awarded, that the Baron for that cause should hold by the Courtesy, and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution. The like. 15 It was found by Office that I. held of the King, 30 Ass. Pl. 28. Co. ibid. 56. a. and that M. his daughter and heir was of full age and had Livery; and by another Office it was also found that the same I. had another daughter K. which was yet within age, whereupon a Scire facias went out against M. and her husband, etc. who said that the land was given to I. and to his first wife the Mother of M. in tail, and that K. was his issue of another wife, and so M. sole heir; but by award of all the judges, all the land was seized into the King's hand, because the entail was not found by any Office, but only that M. was general heir. A Noble woman by marriage made ignoble. 16 If a Woman be noble (as Duchess, Countess, Baronesse, Co. l. 4. 118. b 4 Acton. case. Co. l. 6. 53. b. 2. The Countess of Rutland's Case. etc.) by descent, although she marry under the degree of Nobility, yet her birthright remains; For that is annexed to her blood, and is Character inde lebilis: But if a Woman attain Nobility by marriage (viz. of a Duke, Earl, Baron, etc.) and after the death of her first husband take another under the degree of Nobility, by this last marriage with one, that is ignoble, she hath lost the dignity, unto which she attained by her first marrying one of the Nobility; for, eodem modo quo quicquid constituitur, dissolvitur, And Quando mulier nobilis nupserit ignobili, desinit esse nobilis. Ecclesiastical Law founded by the Common Law. 17 If it be demanded, what Canons, Constitutions, Co. l. 5. Part 1. 32. b. The case of the King's Ecclesiastical Law. Ordinances, and Synodals provincial are still in force within this Realm, the answer is, that it is resolved and enacted by authority of Parliament, That such of them as have been allowed by general consent and custom within the Realm, and are not contrariant or repugnant to the Laws, Statutes and Customs of the Realm, nor to the damage or hurt of the King's Prerogative Royal, are still in force within this Realm, as the King's Ecclesiastical Laws of the fame; Now therefore as consent and custom hath allowed those Canons, etc. So no doubt by the general consent of the whole Realm, any of the same may be corrected, enlarged, explained, or abrogated. Writing annulled by writing. 18 Although Indentures being made for the declaring of the uses of a subsequent Fine, Co. l. 5. 26. a. The Earl of Rutland's case. Recovery or other assurance to certain persons, and within a certain time, and to certain uses, are but directory, and do not bind the estate or interest of the land, yet if the Fine, Recovery; or other assurance be pursued, according to the Indentures, no naked averment shall be taken against those Indentures, viz. that after the making of the Indentures and before the assurance, it was concluded and agreed by mutual consent of the parties, that the assurance should be to other uses: But if any other agreement or limitation of uses be made by writing, or by any other matter as high or higher; then shall the last agreement stand; for every contract or agreement ought to be dissolved by matter of as high nature, as that by which such agreement was contracted; because Nihil tam conveniens, etc. Outlawry reversed by error upon an Indictment. 19 One Eton was indicted in B. R. for the death of a man, eaton's case. 18 H. 7. Co. l. 5. 111. a. Foxleyes' case. whereupon an exigent was awarded into the County of Lincoln, Eton dies, and was never convict or attainted; yet his executors being a writ of Error to reverse the award of the exigent; For in as much as the King was entitled by matter of Record, it ought to be avoided by matter of as high nature. Co. l. 7. 45. K●rns case. 20 If two claim as heirs to one man of one and the same Land, No traverse without office. holden of the King, and one is found by office, the other cannot traverse that office, without first finding another office, which finds him heir also. Co. l. 8. 25. b. 4. The Prince's case. 21 The Charter of E. 3. The Duchy of Cornwall. (Anno 11 Regni sui) by which lands were annexed to the Duchy of Cornwall, being passed by the consent of the Lords and Commons in Parliament, retained the force of an Act of Parliament, and therefore those lands cannot be disannexed but by Act of Parliament. Co l. 9 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer, 1. etc. Henry Petoes case. 22 If a man be bound in a Statute to do any collateral Act, Writing discharged by writing. as to make a feoffment, to render a true account, or the like; here accord with execution by money or any other thing, is not satisfaction to save the forfeiture of the Condition; for the contract being made by writing to perform such a collateral Act, it cannot in that case be altered without writing: But if a man by contract or Assumpsit (without Deed) be to deliver a horse, or to build an house, or to do any other collateral thing; there money may be paid by accord in sasatisfaction of such Contract; for as a Contract upon consideration may begin by parol, so by accord by parol for any valuable consideration it may be dissolved. Co. l. 10. 86. b. 4 Leonard Loveis case. 23 Uses and Powers in contingency and possibility may be by mutual assent of the parties revoked and determined; for, Uses and powers revoked, etc. as they may be raised by Indenture, So by proviso or limitation annexed unto them in the same Indenture, they may be extinguished and destroyed, either before or after their being. Co. Inst. pars 1 115. a. 3. 24 Albeit a man cannot prescribe or allege a Custom against a Statute, A prescription saved. because it is matter of Record being (indeed) the highest proof and matter of Record in Law; yet a man may prescribe against an Act of Parliament, when his Prescription or Custom is saved or preserved by another Act of Parliament, etc. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a sum of money, Payment no plea without an acquittance and in an action of debt upon that Deed the Defendant saith he hath paid the sum, but showeth no acquittance; In, this case, the plea is not good, for this Indenture is like a simple Obligation, where payment is no plea without an acquittance; It is otherwise where the Obligation hath a Condition, per Mountagu. Vide suprà. 6. Co. Inst. pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection. If after a protection is allowed by Innotescimus, the party stay in the Country without going to the Service, for which he was retained; above a convenient time after he hath such protection, or repair from the said Service, upon information thereof to the Lord Chancellor, he shall repeal such protection by another Innotescimus; Howbeit such a protection shall not be avoided by a bare averment of the party in that case, because the Record of the protection must be avoided by a matter of as high a nature. 28 Things grounded upon an evil void beginning, cannot have good perfection. Co. Inst. pars 1 19 a. 4. 30 E. 1. Form. 65. Temps, E. 1. 1 Before the Statute of West. 2. cap. 1. Alienation by tenant in tail before issue, no bar to the donor. Alienation by the Donée in tail after issue had did bar the Donor of his reversion: but if he had aliened before issue had, and had after had issue, although that alienation would have barred the issue, because he claimed a Fee simple, yet in that case if the issue had died without issue, Dower of a Ibid. 62. 19 E. 2. Form. 61. Plowd. 246. Co. 7. 35. Nevil's case. Co. Inst. pars 1 35. a. 3. the Donor might re-enter, for that he aliened before any issue, at what time he had no power to alien to bar the possibility of the Donor. 2 Tenant for life of a Carve of land, the reversion to the father in fee, reversion ex assensu patris, not good. the son and heir apparent of the father endoweth his wife of this Carve; by the assent of the father, the Tenant for life dieth, the husband dieth; here, the reversion was a tenement in the father, and yet this is no good endowment ex assensu patris; because the father at the time of the assent, had but a reversion expectant upon a Fréehold, whereof he could not have endowed his own wife; and albeit the Tenant for life died, living the husband, yet quod initio non valet, tractu temporis non convalescet. simony makes the Presentation, etc. void. 3 A Villain at this day purchaseth an Advowson in fee, Co. ibid. 120. a. 2. the Church becomes void, the Lord for 100 l. given by A. B. Clerk presents him to the Church, and his Clerk is admitted, instituted, and inducted, yet this gaineth not the Advowson to the Lord: for by the Statute of 31 El. cap. 6. the presentation, admission, institution, and induction in that case are made void, and not only voidable, as they were before the Statute: And so it is also if any other on the behalf of A. B. had given or contracted with the Lord in consideration of any valuable thing to present A. B. to the said Church, albeit it had been without the consent or knowledge of A. B. yet it should not have vested the Advowson in the Lord, causa qua suprà. Dereignment purgeth profession. 4 If the wife, after the husband hath entered into Religion, alien, Co. ibid. 132. b. 1. the land, which is her own right, and after her husband is dereigned, the husband may enter and avoid the alienation. Marriage of Priests. 5 In times past if a secular Priest had taken a wife, Co. ibid. 136. a. 3. and had issue and died, that issue had been lawful and should have inherited as heir to his father, etc. For, (as it was then holden) the marriage was not void, but voidable by Divorce, and after the death of either party no Divorce could have been had: But in those days if a man had married a Nun, or a Monk had married, those marriages were holden void; the Nun and the Monk being (as Littleton saith Sect 202.) dead persons in Law, and therefore their issue could not have inherited. 21 H. 7. 39 19 H. 7. Bastardy 33. 5. E. 2. Nonability 26. 47 E. 3. casu ultimo. Rescuous lawful. 6 If the Lord destrain the Tenant for rent before it be due, Co. ibid. 160. b. 3. v. ibid. Pl. author. the Tenant may justify to make rescous, and it shall not be adjudged disseisin of the rent; So it is also of a rend charge. Livery of an estate in futu●o, void. 7 If a Lease for years be made to begin at Michaelmass, Co. ibid. 217. a. 4. the remainder over to another in fee, if the Lessor make Livery of seisin before Michaelmass, the Livery is void; because Livery of seisin must pass a present Frée-hold, and not in futuro; for if it should work at all, it must take effect presently, and cannot expect. Release to lessee for years void. 8 If a man let to another his land for term of years, Co. ibid. 270. Littl. § 459. if the Lessor release unto the Lessée all his right, etc. before the Lessée enter into the same land by force of that Lease, such a release is void; because the Lessée had not possession in the land (but only; interest termini) at the time of the release made: It is otherwise, if the Tenant had been in possession, or in case of a Lessée for life. Patron shall ●ot charge the Glebe. 9 Regularly, the Incumbent may charge the Glebe, Co. ibid. 300. b. 3. Littl. § 528. if the Patron and Ordinary join with him in the grant, or consent thereunto either by Precedent Licence, or subsequent confirmation: yet in this case, if the Patron be but Tenant in tail or for life, or the Ordinary be Patron, the charge shall not be perpetual; for in the first case the issue in tail, reversioner, or remainder shall avoid it, and in the other case, the Licence or Confirmation of the Ordinary is not available to charge the land without the consent of the Dean and Chapter: but shall be avoided by the Successor of the Ordinary. Co. Inst. pars 1 300 b. 3. 10 A. Parson of D. is Patron of the Church of S. as belonging to his Church, A grant of a rent not good. and presents B. who by the consent of A. and of the Ordinary, grants a rend charge out of the Glebe, this is not good to make the rent charge perpetual, without the assent of the Patron of A. Co. ibid. 301. a. 1. 11 If the Disseisor make a Charter of Feoffment to A. with a letter of Attorney, Confirmation void. and before Livery the Disseisée confirms the estate of A. or the Deed made to A. this is clearly void, though Livery be made afterwards. Co. ibid. 323. b. 4. 12 If the Tenant of the Land, A void release of a rent. out of which a rend charge is issuing, pay the rent to a Stranger that hath no right thereunto, and the right owner release to him, this release is good; because he thereby admitteth himself to be out of possession: But if the Tenant had given him any thing in name of attornment, and the right owner had released to him, this release had been void; because an Attornement only, can be no disseisin of the rent; and therefore in that case the release had not good footing, nor whereon to work. Littl. §. 633, 634. Co. ibid. 336. b. 4. 13 If Feme Inheretrix have a Baron under age, Nonage. who during his nonage aliens the Feme of Land, and dies; In this case the Feme may enter: So likewise if two joint-tenants under age make feoffment in fee, and one of them dies, the Survivor may enter, etc. Littl. § 660. Co. ibid. 348. 14 If Tenant in tail make feoffment in fee to the issue in tail, Estate in tail not chargeable. within age, by force whereof he is seized, if the Tenant in tail die, the issue is remitted; and therefore in this case, if the issue in tail, being at full age, doth in the life of the Tenant in tail, grant a rend charge issuing out of the land to a stranger, and after the Tenant in tail dies, the issue in tail shall hold the land discharged. Co. ibid. 349. a. 3. 15 If the heir apparent of the Disseisée, disseise the Disseisor, A rent charge not good. and grant a rend charge, and then the Disseisée dieth, the Grantor shall hold it discharged; for there a new right of entry descendeth unto him, and therefore he is remitted, and shall avoid the charge: So likewise if the Father disseiseth the Grandfather, and granteth a rend charge and dieth; now is the entry of the Grandfather taken away; and here, if the Grandfather dieth, the Son is remitted and shall avoid the charge. Finch 12. 16 If an Infant or Feme covert make their will, and publish it, A Will void. and after die of full age or sole, yet is the will nothing worth. 10 Eliz. Dyer 344. Finch 〈◊〉. 17 One disseised of two acres in D. releaseth all his right in all his lands in D. and delivereth it to a stranger to be delivered over to the Disseisor as his Deed, such a day; A void release before which day the Disseisor disseiseth him of another acre in D. and then the release is delivered over unto him: yet nothing of the right of this third acre passeth by the release. Co. l. 2. 55. Bucklers case. 18 A. Tenant for life makes a Lease for 4 years to B. to begin presently, A Lease for life void. and after makes a Lease for life to C. to begin at Midsummer following, and after Midsummer B. attorns; here, the Lease for life to C. is void, because an estate of Franktenement cannot commence in futuro, and then the attornment, though it were after Midsummer, shall not make the reversion to pass, the grant 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, join in a fine to the Conisées in the Indenture of the Feme mentioned; Here, the Limitations and Declarations of Uses in both the Indentures are void, and the said Fine was by construction of Law to the use of the Feme and her heirs, as if no use at all had been 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 needs be void. A void deed, or contract. 20 When a Deed hath two deliveries, Co. l. 3. 35. b. Jennings and Brags case, in Butler and Baker's case. if the person at the first delivery had power and ability in Law to contract, but could not perfect it, until 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 years, 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 Deed 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 Deed 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 jointure 21 If the Baron make feoffment in fee to the use of himself 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 jointure, that is not within the Statute of 27 H. 8. cap. 10. to bar 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 jointure, 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 certain, 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. seized of the Manor of D. in fee had communication with B. of demising the said Manor unto him, C. gives it out, Co. l. 4. 18. Sir Gilbert Gerrard's case. that he had a Lease for 90 years in the Manor, whereupon B. desists from taking the Manor by demise, and thereupon A. brings an action of slander against C. And it was adjudged that those words would not bear it. And in this case, though it appeared by the Defendants bar, that he had no title or interest in any such Lease, yet because the matter alleged in the Count did not maintain the Action, the bar 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 herself and her Successors, Non obstante male nominando. vel male recitando praedict. portionem decimarum, etc. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus tenentis sive occupatoris, etc. 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 supplied 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 pass 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, etc. 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 needs 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 trees, 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 annexed 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 Countess (that by the Statute may retain two Chaplains capable of dispensations to enjoy two benefices) doth first retain two, and after a third, Reteiner of a Chaplain void. the two first are only capable of dispensations; for they only 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 thereof: So likewise if the Son and heir apparent of a Baron retain a Chaplain, and give unto him his Letters under his hand and seal, and after his father dies, and this Chaplain purchaseth a dispensation, this retainer and those Letters will do him no good; because they were not available at the first to make him capable, Et quod ab initio non valet, tractu temporis non convalescet. Co. l. 4. 107. b. 3. adam's and Lambert's case. H. 6. & 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock, A void foundation of a College. founded a College of a Master and six Priests to be resident at Greystock, and assigns to each of the Priests five marks per annum, besides their bed and chamber, and to the Master 40 l. per annum; And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths, Rectoriam & Collegium de Greystock: But it was resolved by all the justices, that this reputative College was not given to the King by the said Act, because it had no lawful beginning, nor so much as the countenance of a lawful beginning; for the Pope cannot found or incorporate a College within this Realm, nor assign or give Licence to assign any temporal live unto it; but it ought to be done by the King himself, and by no other. Co. l. 5. 42. Codwels' case. 27 In appeal of Mayhem betwixt John Codwel Plaintiff, A void Panel. and Thomas Parker Defendant, the parties descend to issue, and the jury finds for the Plaintiff, and now it was moved in arrest of judgement, that there was variance betwixt the Panel of the Venire facias and the Distringas, and Postea, in the name of one of the jury, that appeared and gave the verdict; for, in the Panel of the Venire facias, he was named Palus Cheale, And in the Distringas and in the Postea it was Paulus Cheale: And because the name of a juror in the Venire facias was mistaken, the judgement was arrested: But if he had been well named in the Panel upon the Venire, and misnamed in the Distringas or Postea, upon examination it might have been amended: because the Venire facias, and Panel are the beginning and ground of the other subsequent Process. A void Presentation. 28 D. was seized of a Manor, Co. l. 6. 50. a. 4. Boswels case. 16 E. 3. Tit. Quare impedit 67. Adam's case. unto which an Advowson was appendent, and dies, the Manor descends to E. an Infant, the Church becomes void; A. presents during the nonage of E. who at full age enfeoffs F. of the Manor, and after the Church becomes void again, and F. presents, whereupon the Assignée of A. brings a Quare impedit; And it was adjudged, that by the feoffment of E. when he had attained his full age, the Manor passed to the Feoffée, but not the Advowson; because by the usurpation, the Infant was out of possession of the Advowson, and he had but a right in it, the usurpation being only voidable by action, which could not be transferred to a stranger; And therefore, the Advowson being not at all granted to F. he shall not gain it afterwards by an usurpation. A void grant of the Office of the Auditors of the Court of Wards. 29 Queen Eliz. in the 31 year of her Reign grants unto Walter took and William Curl Officium unius Auditorum Curiae suae Wardorum, Co. l. 11. 4. a. 4. Auditor Curls Case. etc. habend. dictis Waltero & Willielmo & alteri eorum conjunctim & divisim pro termino vitarum suarum & eorum alterius diutiùs viventis, etc. And afterwards King James in the 4 year of his Reign during the lives of the said Walter took and William Curl, grants the Reversion of the said Office to John Church-hill and John took: And in this case King James his grant was adjudged void; because that Office being partly judicial, and partly ministerial, could not in respect of the judicial part be granted in Reversion; for which the Rule is, officia judicialia non concedantur, antequam vacent; And therefore being void at first, it shall not be made good afterward; for albeit William Curl one of the first Grantees, and John Church-hill one of the last Grantees happen to die, yet shall not John took enjoy the Office by virtue of King James his grant; because, quod ab initio non valet, etc. A void grant of a Surveyorship. ●0 John Bishop of Sarum grants the office of Surveyour of the Manor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum, Co. l. 10. 61. b. 4. The Bishop of Sarums case. whereas the office formerly used to be granted only to one; Edward Green dies, as also the Bishop, the fee is behind, and John Green distreins for it, but could not maintain the Avowry, because the grant was void by the Statute of 1 Eliz. not printed, (which restraineth Ecclesiastical persons from making unusual grants, etc.) and in this case, albeit Edward Green being dead, and John Green alone had the office, when he distrained, yet the grant being void at first, shall not be made good by any subsequent Act, that happens after, to bind the Successor to perform it. Quia quae malo sunt inchoata principio, vix est ut bono peragente exitu, & quod initio non valet, etc. A void grant to a College. 31 A Grant by the Master and Fellows of a College to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void, Co. l. 11. 7●. a. 4. Magdalen College case. could not afterwards be made good by the Statute of 18 El. 2. (for Confirmations of Grants made unto her) because that can by no means be made good, which was merely void at the beginning. Neither shall the general words of 18 El. enable any person to make any conveyance, which by the Common Law was disabled, as if an Infant had conveyed land to the Queen by Deed enrolled, or had levied a Fine to her before the Statute of 18 El. and then that Act had been made; yet the estates granted had not been confirmed by that Act; because the Infant during his minority was absolutely disabled to make such a Grant; and therefore notwithstanding that Statute, he might have reversed the Fine by a Writ of Error, as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court, in Vaughan's case. So likewise if a man seized of land in fee, had granted the land after his death, Co. l. 11. 78. a. 3 The same case to the Queen her heirs and successors, the said Statute of Confirmation had not made such a grant good, because it was against the Rules of Law. 38 H. 6. 33. The Abbess of Zions case, and the Earl of Leicester's case Blow. 400, etc. Quae malo sunt inchoata, etc. A void presentment. Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson, which is appropriate to an Abbey, is void, be the presentment in the Abbot's time or during the vacation; and albeit the Clerk be afterwards admitted, instituted, and inducted, yet that cannot make the presentment, which was void at first, to take effect; For, Quod initio non valet, etc. It is otherwise if the Abbot himself present, etc. Co. l. 1. 15. b. 3. Sir William pelham's case. 33 A tenant for life (remainder in tail, remainder in fee) bargains and sells the land in fee to B. who after the Statute of 32 H. 8. cap. 31. A void recovery, and forfeiture by tenant for life. and before the Statute of 14 El. cap. 8. suffered a recovery, wherein A, was vouched, and vouched over, etc. and after judgement was entered and execution sued upon that recovery; yet was the entry of the tenant in tail adjudged congeable; for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture, it could not afterwards be salved by entering judgement and suing execution thereupon. Co. Inst. pars 1. 46. a. 4. 34 If the Patron grant the next avoidance, and after Parson, A void grant of Glebe. Patron, and Ordinary before the Statute, had made a lease of the Glebe for years, and after the Parson dieth, and the grantée of the next avoidance had presented a Clerk to the Church, who is admitted instituted, and inducted, and dieth within the term, the Patron presents a new Clerk, who is also admitted; instituted, and inducted; here albeit, he cometh in under the Patron, that was party to the Lease, and was Admitted, Instituted, and Inducted; yet because the Lease had no good beginning, but was avoided by the Grantees Incumbent, who had the whole estate in him, it shall not be again revived; but shall be extinct for ever, and shall not be maintained against the last Incumbent, Co. Inst. pars 1 31. b. 4. 35 If a man be Tenant in general tail, The last feme not endowed. and take a wife and hath issue by her, and she dies, and after he taketh another wife and dies, the last wife shall be endowed; because she may have issue, which by possibility may inherit: But in this case if the husband during his first wife's life alien the land in Fee, and takes an estate back to him and his wife, and the heirs of their two bodies, and the wife dies, the second wife shall not be endowed; because during the Coverture (when her Title of Dower should take beginning) he was seized of an estate tail special; and yet here also the Issue, that he may have by the last wife, is inheritable. Co. ibid. 9 a. 1. 36 B. having divers sons and daughters, Grant to children before birth, not good. A. giveth lands to B. & liberis suis, and to their heirs, the Father and all his Children do take a Fee simple jointly by force of these words, their heirs; but if he had no child at the time of the Feoffment, the Child or Children, born afterwards shall not take. Dyer, 58. a. 4. 35 H. 8. 37 Cestuy que use (after the Statute of 1 R. 3. 1. Cestuy que us● and before the Statute of Uses) makes a Lease for years, and after during the term makes Feoffment of the land, and giveth Livery, etc. In such case, nothing passed by such Feoffment, because he had nothing in Use or Possession, and then the Statute of R. 3. would not aid him. 29 Quod non habet principium, non habet finem. Where there can be no presentment by lapse. 1 If the Bishop be named in the Quare impedit, Co. Inst. pars 1 344. b. 4. he shall never afterwards present by lapse, and then shall neither the Metropolitan, nor after him the King do it; For the Bishop's presentment falling, which was to be the first step and beginning, their power of presenting, which should successively follow his, must needs also fail; according to the Rule. Quod non habet principium, non habet finem. Right without action no remitter, & contra. 2 Regularly, a man shall not be remitted to a Right remediless, Co. ibid. 349. a. 4. for the which he can have no action; And therefore Littleton saith (Sect. 661.) that the principal cause of a Remitter is, when the issue hath no person (but himself) against whom he may bring his Action, by which it appeareth, that he ought to have just cause of Action; for neither an Action without a Right, nor a Right without an Action can make a Remitter; as if Tenant in tail suffer a Common Recovery, In which there is error, and after the Tenant in tail disseiseth, the Recoveror, and dieth; here the issue in tail hath an action, viz. a Writ of Error; but so long as the Recovery remaineth in force, he hath no Right, and therefore in that case cannot be remitted. Idem. 3 If B. purchase an Advowson, Co. ibid. 349. b. 3. and suffereth an usurpation and six Months to pass, and the usurper granteth the Advowson to B. and his heirs; B. dieth, his heir is not remitted; because his Right to the Advowson was remediless, viz. a Right without an Action. 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst. pars 1 31. a. 4. 30 He that claimeth Paramount a thing, shall never take benefit, nor hurt by it. Does de dote peti non potest. 1 If there be Grandfather, Father, and Son, Co. Inst. pars 1 32. a. 4. and the Grandfather is seized of thee acres of land in fee, and taketh wife, and dieth, this land descendeth to the Father, who dieth either before or after entry; now is the wife of the Father dowable, yet shall she have the thirds but of two acres only, and the wife of the Grandfather shall have for her Dower the other acre entirely; because the Dower of the Grandmother is Paramount, the Title of the Father's wife, and the seisin of the Father, which descended to him (be it in Law or actual) is defeated; and now upon the matter the Father had but a Reversion expectant upon a Fréehold; and in that case Does de dote peti non potest, although the Grandmother die, living the Father's wife. Dower according to the improved value. 2 If the wife be entitled to have Dower of three acres of March, Co. Inst. pars 1 32. a. 3. every one of the value of twelve pence per annum, the heir by his industry and charge maketh it good meadow, viz. every acre worth ten shillings per annum, the wife shall have her Dower according to the improved value, and not according to the value, as it was in her husband's time: So it is likewise if the heir improve the value by building; the like Law is, if the value be impaired in the time of the heir; for then also she shall be endowed according to the value at the time of the assignment, and not according to the value as it was in her husband's time: And the reason of all this is, because she claims paramount the improvement or impairing of it, and hath Title to she quantity of the land, viz. one just third part. Co. Inst. pars 1 46. a. 3. 3 If Tenant in tail make a Lease for years reserving xx s. rent, Lease by tenant in tail good in dower. and after take a wife and die without issue; here as to him in the reversion, the Lease is merely void, because he claims paramount the Lease: but if he endow the wife of Tenant in tail of the land (as she may be though the estate tail be determined) now is the Lease as to the Tenant in Dower (who is in, of the estate of her husband) revived again, as against her; for, as to her, the estate tail continueth, and the Lease is paramount her Title. Co. Inst. pars 1. 113. a. 3. Littl. § 169. 4 If a man (by the Custom) devise that his executors shall sell his lands, etc. and dieth, the lands in this case descend to his heir, Feoffee in by devise. and the executors have no estate in them, but only a bare and naked power; nevertheless a feoffment from them shall amount to an alienation to vest the land in the Feoffée; because the Feoffée by construction of Law shall be said to be in by the Divisor, and not by the executors: So it is likewise, if a man (by the custom) devise a reversion or any other thing, that lieth in grant to be sold by his executors, they may sell the same without Deed, causa qua suprà. Co. Inst. pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his body, The Lord's title Paramount an entail to a villain, and so is the Kings to that of an Alien. the Lord may enter and put out the villain, and the heirs of his body; for, Quicquid acquiritur servo, acquiritur domino: And in this case the Lord gains a Fee simple determinable upon the dying of the Villain, without issue of his body and the absolute Fee simple remaineth still in the Donor. And if the Lord enter, and after enfranchise the Donée, and after the Donée hath issue, yet that issue shall never have remedy either by Formedon or Entry, to recover this land, by force of the Statute de donis, etc. For the Lord is in paramount the entail, and that Statute giveth only remedy to the issues of the Donée, that hath capacity and power to take and retain the gift: And the Title of the Lord remains as it did at the Common Law; for the Statute restraineth acts done only by the Tenant in tail: So it is also if lands be given to an Alien, and to the heirs of his body, upon office found the land is seized for the King, afterwards the King makes the Alien a Denizen, who hath issue and dieth, the King shall detain the land against the issue; because the King's Title is Paramount the entail, viz. by his prerogative. Vide infrà 32. Co. Inst. pars 1 148. b. 3. 6 If a man grant a rend charge out of two acres, A Title Paramount to rend. and after the Grantée recovereth one of the acres against the Grantor by a Title paramount, the whole rent shall issue out of the other acre. Doct. & Stud. l. 2. cap 17. Co. Inst. pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fee upon Condition, Title Paramount a grant. and B. being seized of another acre in fee, granteth a rent out of both the acres to the Feoffor, who entereth into the one acre for the Condition broken, the whole rent shall issue out of the other acre; because his Title is paramount the grant. Co. Inst. pars 1. 184. b. Littl. § 286. 8 If two joint-tenants be seized of an estate in Fee simple, Jus accrese●dendi praefertur oneribus. and the one grants a rend charge to another out of his part; here, the rent is good during his life, but after his decease the Survivor shall avoid it; because he cometh in by the first Feoffor, and not under his companion: So likewise if a man be possessed of certain lands for term of years in the right of his wife and granteth a rend charge and dieth, Co. Inst. pars 1 185. a. 1. the wife shall avoid the charge: And for the same reason it is, that if a joyntenant charge the land with common of Pasture, Turbary, Estovers, or with a Corodie, or with a way over the land, or the like, this shall not bind the Survivor; For, jus accrescend● prefertur oneribus, and Alienatio rei praefertur juri accrescendi. Vide M. 15. Pl. 14. Co. Inst. pars 1 185. a. 2. 9 One joyntenant in fee taketh a Lease for years of a stranger Simile. by Deed indented, and dieth, the Survivor shall not be bound by the conclusion; because he claims above it, and not under it. Baron chargeth the Femes ●and. 10 If there be two joint-tenants in fee, Co. Inst. pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for years, reserving a rent and dieth, the surviving Feoffée shall have the reversion, but not the rent; because he claimeth in by the first Feoffor, which is paramount the rent: So it is also of the wife, where the husband being Lessée for years, in her right, maketh a Lease of part of the term, reserving a rent. Inst. part 1. 318. a. 3. Simile. 11 If a husband, wife, Co. Inst. pars 1 187. b. 4. and a third person purchase lands to them and their heirs, and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fee, and died the wife and the other joyntenant were joint-tenants of the right, and if the wife had died, the other joyntenant should have had the whole right by Survivor; for that they might have joined in a writ of right; and in this case the discontinuance would not have barred the entry of the Survivor because he claimed not under the discontinuance, but by Title paramount above the same, by the first feoffment. A condition paramount a descent. 12 If a man be seized of lands in Fee or Fee tail upon Condition to render certain rent, or any other Condition; Co. Inst. pars 1 240. a. b. Littl. § 391, 392. albeit such a Tenant die seized, yet if the Condition be broken in his life time or after his decease, that descent shall not take away the entry of the Feoffor or Donor, or of their heirs, because the tenancy was originally charged with the Condition, which is paramount the descent; for the Condition remains in the same essence that it was in at the time of the creation of it, and the estate of the Tenant is conditional, in whose hands soever the tenancy comes, etc. So it is likewise if such a Tenant upon Condition be disseised, and the Disseisor die thereof seized, and the land descends to the heir of the Disseisor; In this case, albeit the entry of the Tenant upon Condition that was disseised, is taken away; yet if the Condition be broken, then may the Feoffor or Donor, that made the estate upon Condition, or their heirs enter, Causa qua suprà; and also for that a Condition cannot be devested, or put out of possession, as Lands and Tenements may. ●ower paramount a descent. 13 If a Disseisor die seized, and his heir enter, who endoweth, Co. Inst. pars 1 240. b. 4. Littl. § 393. the Feme of the Disseisor of the third part of the Tenements, etc. In this case, as to this third part, which is so assigned to the Feme in Dower, presently after the Feme entereth, and hath the possession of the same third part, the Disseisee may lawfully enter upon the possession of the Feme into the same third part; because, albeit the heir entered, yet when the wife is endowed, she shall not be in by the heir, but immediately by her husband, being the Disseisor, for her life, and that, by a Title paramount the dying seized and dscent: And therefore in judgement of Law, the descent, as to the and Possession which the heir had, is taken away by the endowment; for that the Law adjudgeth no mean seisin between the husband and the wife. ●wer para●unt, the ●●or title. 14 A man makes a gift in tail reserving twenty shillings rend, Co. Inst. pars 1 241. a. 4. and dies, the Donee takes wife, and dieth without issue, the heir of the Donor entereth and endoweth the wife, Here, the wife is not in by the heir of the Donor, but by title paramount of the estate of her husband; And therefore albeit the estate tail be spent, and the rend reserved thereupon determined, yet after she is endowed, she shall be attendant to the heir, in respect of the said rend. 15 If there be Lord, Mesne, and Tenant, and the Mesne grant by Fine the Services of his Tenant to another in fee, Co. Inst. pars 1 321. b. 1. Littl. § 583. Co. l. 5. 113. a. Mallories case. Temps E. 2. Attorn. 18. 39 H. 6. 38. per Prisot. The Lord Paramount may distrain without attornment. & after the Grantee dies without heir; here, the Services of the Mesnalty shall escheat to the Lord paramount; and in this case, if the services of the Mesnalty be afterwards behind, the Lord Paramount shall distrain the Tenant, although the Tenant did never attorne, because the Lord Paramount cometh to the Mesnalty by a Seignory paramount; and therefore there needs no Attornement; As if, there be Lessee for life of a Manor, and he surrenders his estate to the Lessor, there needeth no Attornement of the Tenants, because the Lessor is in by a Title Paramount. Co. Inst. pars 1 327. b. 4. 16 A Discontinuance made by the husband, Discontinuance of the wife's land takes not away the ent●● of him that hath a title paramount. did take away the entry only of the wife and her heirs by the Common Law, and not of any other, which claimed by Title Paramount above the Discontinuance; as if lands had been given to the husband and wife, and to a third person and to their heirs, and the husband had made a Feoffment in fee, this had been a Discontinuance of the one moiety, and a Disseisin of the other moiety; And if the husband had died and then the wife had died, the Survivor should have entered into the whole; for he claimed not under the Discontinuance, but by Title Paramount from the first Feoffor; And seeing the right by Law doth survive, the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moiety he could not have. Co. Inst. pars 1. 338. b. 2. 17 If a Bishop be seized of a rend charge in fee, A title paramount avoid rend and charges. the Tenant of the land enfeoffs the Bishop and his Successors, the Lord enters for the Mortmain, he shall hold it discharged of the rent; for the entry for the Mortmain affirmeth the Alienation in Mortmain, and the Lord claimeth under his estate: But if Tenant for life grant a rent in fee, and after enfeoff the Grantée, and the Lessor enter for the forfeiture, the rent is revived; because the Lessor doth claim above the Feoffment. Co. Inst. pars 1 351. a. 3. 18 If a Feme Sole possessed of a Lease for years takes Baron, Chattels real returns to the feme, if she survived. who deviseth it by his Will or disposeth not of it at all in his life time, the Feme, if she survive, shall have it again, because her estate is paramount the interest of the Executor; And there is the same reason of estates by Statute Merchant, Statute Staple, Elegit, Wardships, and other Chattels real in possession: So likewise if the husband charge the Chattel real of his wife, 7 H. 6. 2. it shall not bind the wife if she survive him, causa qua supra. Co. Inst. pars 1 385. a. 3. 19 If lands he given to two brethren in Fee simple, Title paramount by survivorship. with a warranty to the eldest and his heirs, the eldest dieth without issue, the Survivor albeit he be heir to him, yet shall he neither vouch nor rebate, nor have a Warrantia cartae; because his Title to the land is by relation above the fall of the Warranty, and he cometh not under the estate of him, to whom the Warranty is made. Co. l. 2 68 a. 1. Tookers' case. 20 If the Lessée for life or years attorne upon any condition subsequent, the condition is void; Attornment paramount, condition. for if the reversion or remainder be once vested, it cannot be devested by any condition annexed to the Attornement; because the Grantée thereof is not in by the Lessée, but by the Grantor; but if one Attorn upon a condition precedent, there it is no Attornement before the condition be performed. Co. l 3. 83. a. 3 Vpton and Basset's case, in Twines case. 21 In Upton and Basset's case in 3 Report fol. 83. it was agreed, An ancient right not ●●red. that by the Common Law an estate made by fraud shall be avoided only by him, that hath a former Right, Title, Interest, Debt, or Demand, as in the 33 of H. 6. Sale in market overt by Covin shall not bar a more ancient Right, neither shall a covenous Grant defeat an execution in respect of a former Debt, as it is agreed 22 Ass. P. 72. But he that hath only a later Right, Title, Interest, Debt, or Demand, shall not (at the Common Law) avoid a precedent Grant or estate made by fraud. The Copiholder is in by him, that surrenders, and not by the Lord. 22 When a Copiholder surrenders to the use of another, Co. l. 4. 27. b. 2. Taverns case. Co. l. 8. 63. Swains case. Co. ibid. pars 4 28. b. 3. Westwicks' case and the Lord admits him, now he that is so admitted, is in by him that made the surrender; For, in a Plaint in the nature of a writ of Entry in te per, he shall be supposed in the per by him, that made the surrender; because the Lord is but an instrument to make the admittance, and he, that is admitted, shall not be subject to the charges and encumbrances of the Lord, for that the Lord hath but a customary power to make admittance, secundum formam & effectum sursum redditionis: And therefore albeit the Lord grant the land over to another by copy, that is done without warrant, and the Lord may notwithstanding that, make admittance according to the surrender, and it shall be good, causa qua supra. So also if the Lord after such surrender grants the land to Cestuy quae use and to a stranger, all shall enure to Cestuy quae use, or if he admit Cestuy quae use upon condition, the condition is void; For, after the admittance he is in by him that made the surrender, and by the custom, which is paramount the power of the Lord. Vide 21. 37. The like. 23 If a man devise a term to I. S. and the Executors agree and assent, that I. S. and I. D. shall have it, Co. ibid. 28. b. 4. Westwicks' case or that I. S. shall have it upon condition, in these cases, I. S. shall have the term solely and absolutely; for after the assent of the Executors he is in by the devise: So likewise it was adjudged in the case of one Bunting, Co. ibid. 29. a. 4 Buntings case. that if a Copiholder surrender into the Lords hands to the use of another for life, and the Lord admit him to hold to him and his heirs, yet he, which is so admitted, hath but an estate for life; because he is in (after admittance) by the surrender Vide 21. 37. Issue in tail not barred. 24 In Formedon in descender if the Demandant be barred by verdict or demurrer, Co. l. 6, 7. b. 3. Ferrer case. yet the Issue in tail shall have a new Formedon in descender, upon the construction of the Statute of West. 4. cap. 2. So also if he be barred in a Writ of Error; upon the release of his Ancestor, his issue shall have a new Writ of Error; For, he claims in, not only as heir, but per formam doni and by the Statute, which are paramount the verdict or demurrer; and he shall not be barred by the faint or false pleading of his Ancestor, so long as the right of the entail remains; And with this agrees 10 H. 6. 5. 3 Eliz. Sir Ralph Rowlets case, Dyer, 188. The like. 25 If there be two joint-tenants both within age, Litt. § 634. Co l. 8. 43. a. 4. Whittinghams' case. and they join in a feoffment, in this case a joint right remains in them; and therefore if one of them die, the right will survive, and the Survivor shall have the right of the land as from the first Feoffor. A condition Paramount. 26 If a man make a lease for years upon condition, Co. l. 8. 76. a. 2. In the Lord Staffords case. that if the Lessor out him within the term, that he shall have fee; in this case, if the Lessor do out him, the interest of the term is turned into a right, and yet there the Lessée shall have fee, and one reason thereof is; because the Title of the Lessee is by force of the condition, which is paramount the Ouster. Title Paramount dscharges dower, etc. of debts, etc. 27 A Feme shall not be distrained for the Debts due to the King by the Baron, in the lands which she held in Dower, Fitz. N.B. 150. q. nor in the lands of the Inheritance of the Feme, nor in the lands, which she hath by purchase made by the Baron to him and the Feme, and their heirs; because she claims by Title paramount the Debts; and if she be therefore distrained by the Sheriff, she shall have a Writ to discharge her, which see, Fitz. N. Br. 150 q. Paramount & administration. 28 An Executor recovereth and dieth intestate, Finch 13. administration of the goods of the first testator is committed to I. S. Here, I. S. shall not sue execution upon this recovery. Finch ibid. 29 Dower cannot be assigned reserving a rent, Dower a title paramount. or with a remainder over; for she is in from the husband, and not from him that assigneth Dower. Co. l. 4. 53. a. 3. in Rawlins case. 30 If a man make a Lease for 21 years rendering rend with clause of reentry, A Lease Paramount. and after the Lessee make a Lease to the Lessor for 6 years to begin two years after, and afterwards the rent being lawfully demanded is arreare; here, the Lessor may lawfully re-enter and take advantage of the condition, notwithstanding the acceptance of the said future interest, and by the reentry shall defeat the future interest, which vested in him. Co. ibid. 31 If a man make Feoffment in fee upon collateral condition, A paramount feoffment with condition. and after the Feoffee redemise the land to the Feoffor, and afterwards the condition is performed; Here, the re-demise of the land (being no suspension of the condition) is no impediment but that the Feoffor shall take advantage of the condition, and shall thereby destroy the term, that he himself had accepted, as it is holden, 20 E. 4. 19 8 H. 7, 8. 20. H. 7. 4. Fitz. ●6. c. 31 If the eldest son by the first venture present and die without issue, and after the Church happens to be void, A descent paramount. the youngest son of the second venture shall not present, nor have that Advowson, so if there be two daughters of several ventures, and after partition one of them presents and dies, the other shall not have it: but if they make partition to present by turn, and one of them die before any presentment is made; in that case the other shall have the Advowson; for she than claims paramount the descent from her sister, viz. immediately from their Ancestor. Dyer, 54. 21. 34 H. 8. 32 Tenant in tail makes a feoffment before the Statute of 27 H. 8. to the use of his wife for life, Remitter. the remainder to his son and heir in fee, and after the Statute is made, and the Feoffor dies and his wife also, and the son enters; In this case, it seems that the son is not remitted, for the Statute makes the possession in him as the use was before; Howbeit it seemeth also, that his issue shall be remitted, because he claims paramount the Statute, viz. per formam doni; for the estate tail is still in being, and was not extinct by the Statute; And in this case it is not material, whether the son (when he entered) was at full age, Dyer 54. b. 22. 34 H 8. or under age, for it seems he is not remitted albeit he were then under age: for if Tenant in tail make a feoffment to the use of himself and his heirs, and the Feoffor dies, his issue within age, and then comes the Statute, here the heir shall not be remitted, but (it seems) his issue may, causa qua suprà. Vide suprà 5. Dyer 54 b. 1. 34, and 35 H. 8 33 The King's Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his son and heir apparent and his wife, and of the heirs of the body of the son, Wardship. after which Statute the son hath issue and dies, the issue within age; In this case, the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple, which was paramuont the Statute, remains still in the father, albeit he expressed not any use in Fee simple, and then by the Statute, the possession was vested in the son and the feme, as the use was, and the Fee simple in the father, as he was Donor of the use, and not as one in remainder of a new Fee simple, for that would have altered the case: And in the same case, if the father had covenanted, that the son immediately after his decease should have had, in possession or in use, all his land according to the same course of Inheritance, as they then stood, and that all men seized or to be seized, should stand seized to the uses and intents aforesaid, yet the son should not be in ward, for it had been but a Covenant, which changeth not the estate of the Fee simple; which was paramount the Statute, as afore is said. Emblements sown. 34 If Tenant pur altar vie sow the land, and Cestuy que vie die, Dyer 316. 2. 15. Eliz. the Tenant pur altar vie shall have the crop; So if the Baron sow the Femes land, and the Feme die, the Baron shall reap the crop; Likewise if the Baron make feoffment in fee to the use of himself for life, the remainder to the use of the Feme for life, with remainders over, and the Baron sow the land and die, his executors shall have the crop, and not the Feme or Heir, because death being the Act of God, it could not be foreséen or prevented: Howbeit, if the Baron make feoffment in fee, to the use of himself and his Feme for their lives with remainders over, and the Baron sow the land and die, the Feme shall have the crop, because she was joyntenant with her husband, and hath it by Title paramount the executor; So if the Baron sow the land and die, and the third part is assigned to the Feme for Dower, she shall have the emblements therewithal; because, she is in of her husband's estate paramount the Title of the executor, and likewise shall be endowed de optima possessione of her husband. 31 Things are to be construed, Secundam subiectam materiam. Account by the Guardian. 1 It hath been a question much controverted in the books of the Law, at what age of the heir, Co. Inst. pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an account, whether at 14, or at 21. And the causes of that doubt have been both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of account against such a Guardian: The words of the Statute are these, Cum ad legitimam aetatem pervenerit, sibi respondeat, etc. a 16 E. 3. Wast 100 &c, And legitima aetas is 21 years: Also the writ of account reciting the said Statute, saith, Quare cum de communi concilio, etc. provisum sit, quòd custodes, etc. in Soccagio haeredibus, etc. cum ad plenam aetatem pervenerint reddant rationabilem compotum, etc. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account. 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered, that no action of account did lie against the Guardian in Soccage at the Common Law, until the heir were of his lawful and full age of 21 years: But legitima aetas (as the Statute hath it) or plena aetas (as the writ doth render it) are to be understood secundam subjectam materiam, viz. of the heir of Soccage land, whose lawful or full age, as to the Custody or Wardship, is 14: and therefore upon consideration had of the said Statute and of all the Books, it was adjudged in the Court of Common Pleas P. 16. El. rot. 436. that the heir after the age of 14 years shall have an Action of account against the Guardian in Soccage, when he will at his pleasure, and with this agrees Littleton, Sect. 123. Age, of Infant to make a wil 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an account of the marriage money to the heir or his executors, some have inferred, Co. Inst. pars 1 89. b. 2. that an infant of the age of 14 may make a will; but the meaning of Littleton in that place is, that if after his marriage, he accomplish his age of 18 years, he may then make a will, and constitute executors for his goods and chattels; for at that age he hath power by the Law to make a Will, and the words are to be understood Secundam subjectam materiam, and as they may stand with Law and Reason. Vide suprà 15. 21. The King's Councils. 3 The King of England is armed with divers Councils, Co. Inst. pars 1 110. a. 2. viz. Commune Concilium, which is the Court of Parliament; Another is called Magnum Concilium, and this is sometimes applied to the House of Peers alone, and sometimes out of Parliament to the Peers of the Realm, being Lords of Parliament, who are called Magnum Concilium Regis: Thirdly, the King hath a Privy Council for matters of State: Fourthly, the King hath another Council for matters of Law, and they are his judges of the Law: Now therefore, when it is spoken generally of the King's Council, it is to be understood secundum subjectam materiam, as if matter of Law be concerned, than his Council at Law, viz. his judges are to be understood, if matter of State, his Privy Council, etc. Co. Inst. pars 1 302. b. 1. 4 If the Tenant for life, A feoffment by two. and he in the Remainder or Reversion in Fee join in a Feoffment by Deed, 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 enfeoff his Companion, Feoffment Releases. but not release; because the Fréehold is several joint-tenants may release, but not enfeoff, because the Frée-hold is joint: But Coparceners may both enfeoff and release, because their seisiin to some intents is joint, and to some several. Co. l. 3. 50. b. 4. Sir George Brown's 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 tail (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 only referred to Releases and Confirmations, which indeed do not make a discontinuance without Warranty for the intent of the said Act of 11 H. 7. was not only to prohibit every bar, but also every manner of discontinuance, which might put the heir, 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 only, to make them equivalent to such an estate, which passeth by Livery, and which of itself 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 shall have any Avowry or Conusance for any rend suit, or service, unless 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 years; as if the Seignory consists upon Homage and Fealty only; for the Tenant may live 60 years after he hath done them: So also if the Service be to cover the Hall of the Lord, or to go to War with him, when the King maketh War against his enemies, such casual Services, which by common possibility cannot happen within 60 years, are not within that Act, etc. 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 need they not allege any seisin in the same lands, etc. as the said Statute requires; because that Act only 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, etc. 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 Cromwel's case. for speaking these words unto him; You like of those that maintain sedition against the Queen's proceed, unto which the Defendant pleads special justification, that the Plaintiff procured two to preach in his Church, which enveighed in their Sermons against the Book of Common Prayer, and because the Defendant did prohibit them, the Plaintiff 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, (inwendo the two, that should have preached) that maintain sedition (innuendo seditiosam illam doctrinam) against the Queen's proceed. And this was adjudged a good justification; For, in case of slander for words, the sense of the words are to be taken, and the sense of them doth best appear by the cause and occasion of speaking them, according to the Rule, Sensus verborum ex causa dicendi accipiendus est, & sermons semper accipiendi sunt secundum subjectam materiam: And therefore in this case the Council of the Defendant was said to have done well in showing the special matter, whereby the sense of this word (sedition) might appear upon the coherence of all the words, taken together, viz. that the Defendant meant the seditious doctrine against the Queen's proceed in the Act of 1 Eliz. by which the Book of Common Prayer was established; and that he did not intent any such public or violent Sedition, as was alleged by the Plaintiff, and as ex vi termini per se, the word itself would import, etc. And it was said, Quae ad unum finem locuta sunt, non debent ad alium detorqueri, etc. Common. 10 If Common be said to be appertaining to a Mess, 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 Appendent; for it is against the nature of Common Appendent to be Appendent 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 judgement, whether the Common be Appendent or Appurtenant. 11 In Appeal of Murder against A. as principal, Co. l. 4. 43. b. 4. Bibithes' case. and against B. as accessary before the fact, Accessary in manslaughter. A. was found guilty of Manslaughter, but not of Murder; in this case B. was acquit, because there cannot be an Accessary before the fact in Manslaughter, which always happens upon a sudden debate or effray; for if it be premeditate, it is Murder. Joint warranties, or words. 11 joint 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 several Warranties; in regard they are severally seized, the one of part of the land, and the other of the residue in severalty; 6 E. 2. Covenant. Br. 49. So also a joint Covenant taketh severally in respect of the several interests of the Covenantées. Vide 16 Eliz. 337, 338. Dyer inter Sir Anthony Cook, and Weston, in Justice Windhams case Co. l. 5. 7. b. 4. Co. ibid. Justice Windhams case. Sometimes also joint Words or Grants shall enure severally, in respect of the incapacity or impossibility of the Grantées to take jointly, as a Lease made to an Abbot and a secular man; or to two men or two women, and to the heirs of their two bodies engendered; for in these and the like cases the inheritance is several. Vide 19 Co. l. 5. 103. a. Hungares case. 12 In Debt upon an Obligation brought by Hungate against Mese and Smith, A joint obligation. whereof the Condition was to perform an Arbitrament betwixt the Plaintiff on the one part, and the Defendants on the other part, Ita quod Arbitrium praedictum fiat & deliberetur utrique partium praedictarum, before such a day, And the Defendants pleaded, that the Arbitrament was (indeed) made before the day agreed upon, and was also delivered unto the Plaintiff, and unto Mese one of the Defendants, but not unto Smith, whereupon the Plaintiff demurred, and judgement was given against the Plaintiff; for, in that case, it was resolved, that sometimes the word uterque, is discretive, and hath the quality of severing, and sometimes collective, and hath the property of joining together, as if two or three be bound in an Obligation, & utrumque eorum this word utrumque, makes the Obligation several; but in the abovesaid case it shall be taken collective; And the Rule always to know, in which of these two senses it shall be taken, is to consider the Subject matter, and to make construction according to the congruity of Reason, Dyer 28. H. 8. 19 b. & ut evitetur absurdum; as in the case of the 39 H. 6, 7. the Condition of an Obligation was, si uterque eorum, viz. the Obliger and the Obligée Steterit arbitrio Roberti Bozom, etc. And it was adjudged that each of them was bound pro parte sua, and not the one for the other; for that would be absurd and against the congruity of Reason, And in the said case of Hungate, in as much as both the parties were equally subject to the penalty and danger, reason requires, that the Arbitrament should be delivered to both the parties, to the end they may perform it, and avoid the danger of breaking it, etc. Vide suprà 8, 9 Co. l. 62. a. 2. Catesbyes' case. 13 The time for the Bishop to collate by lapse is Tempus semestre, Tempus Semestre. half the year, according to the Calendar, and is not to be accounted according to 28 days for each Month; for verba sunt accipienda secundum subjectam materiam; and therefore because this computation of months concerns those of the Church, it is great reason, that the computation shall be according to the computation of the Church, wherewith they are best acquainted. 8. 4. Vide Dyer 327. 7. Co. l. 7. 10. a. 3. Calvin's case. 14 In regard the King (albeit he be but one person, Allegiance due to the natural capacity. yet) hath too several capacities in him the one natural, as he is a man, the oath other politic, so called, because framed by the policy of man, if it be demanded, to which of these capacities ligeance is due; The answer is, that it is due to the natural person of the King, (which is ever accompanied with the politic capacity, and the politic, as it were appropriated to the natural capacity) and is not due to the politic capacity only, that is, to his Crown or Kingdom distinct from his natural capacity; For every Subject is presumed by Law to be sworn to the King, which is to his natural person, and likewise the King is sworn to his subject (as it appeareth in Bracton l. 3. de actionibus cap. 9 fol. 107.) which oath he taketh in his natural person, because the politic capacity is invisible and immortal, nay, that capacity hath no soul, being framed by the policy of man; And therefore in all indictments of Treason, when any do intent or compass mortem & destructionem Domini Regis (which must needs be understood of his natural body, his body politic being immortal, and not subject to death, the indictment concludeth, contra ligeanciae suae debitum, by which it plainly appears, that ligeance is due to the natural body of the King, that capacity being (indeed) the only subject matter capable thereof. Co. l. 8. 85. b. 3. Sir ●ichard Pexhul case. 15 If A. deviseth to B. ten bullocks and ten pounds issuing and payable out of his lands and tenements quarterly at the most usual Feasts, etc. Here, these in words payable quarterly, Ten Bullocks, and ten pound rend. aught to be understood Secundam subjectam materiam, and to have reference to the rent. for ten bullocks per annum cannot be delivered quarterly. offices of ●●st personal. 16 The Office of Marshal of the Marshalshey cannot be granted for years; Co. l. 9 96. b. 4. Sir George Keynels' case. because it is an Office of great trust annexed to the person, and concerns the administration of justice, and the life of the Law, which is to keep such as are in execution in salva & a●cta custodia, to the end they may the sooner pay their debts; and this trust is indjvidu●l and personal, and shall not be transferred to executors or administrators; for the Law will not confide in persons unknown for the ordering of matters, which concern the administration of justice, etc. Bond taken by the Sheriff. 17 In debt brought by Dyve against Maningham upon an obligation of 40 li. with condition to save Dyve (bring then high Sheriff of the County of Bedford) harmless, and to be ready at his command, Plowd. 65. b. 2. Dyve against Maningham. as his true prisoner, etc. the Defendant pleads the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriff colore officii, are made void, and farther saith, that one Thomas Palley purchased a Liberari fac. out of a recognizance to him made by the said Defendant, and procured it to be directed to the said Sheriff of Bedford to be served and certified; and shown farther, that the King had sent to the Sheriffs of London, Middlesex and Hertford, other writs in form aforesaid, and that the same Sheriff returned the writ into the Chancery, etc. In this case, one exception taken to the Defendants plea was, for that there were di●ers Sheriffs named in it, and at last it is said, that the same Sheriff returned the writ, etc. which was said to be uncertain; but it was resolved to be certain enough, and that it sh●ll be referred to the Sheriff of Bedford; For, the return contained an extent of land in the County of Bedford, and none could do th●t, but the Sheriff of Bedford, and the whole sum of the execution was referred to ●im, and that could not be so, unless the Sheriff of Bedfo●d had ●ade the return, etc. Release of actions. 18 If a man be outlawed in an action personal by process 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 outlawed, will plead against him a release of all actions personal, that seems to be 〈◊〉 plea; for by the said action he shall recover nothing in the personalty, but only to reverse the out-lawry; Howbeit, in the same case, a release of the writ of Error is a good plea: And s● note that, an action real or personal doth imply a recovery of something in the realty or personalty, or a restitution to the same; bu● a writ implieth neither of them, etc. ●oint and several covenant 19 S. and his wif● brings a Action of Covenant against B. upon Covenant made by Indenture tripartite, Co. l. 3. 18. b. 4. In Slingbies case. in which B. Covenants with the Plaintiffs, and with I. S. and his wife, & assignatis suis, & cum quolibet & queli●et eor●m, that he was sole seized of the land, etc. And in a writ of Error in the Exchequer Chamber it was adjudged, that the Action would not lie; because the other Covenantées aught to have joined with the other Plaintiffs; and this diversity was agreed; when it appears by the Count, that each of the Covenantées hath or aught to have a several interest or ●state, there the Covenant by these words (cum quolibet eorum) is several; but when they have a joint interest, there the words (cum quolibet eorum are void, and signify nothing; As if a man let black acre to A. white acre to B. and green acre to C. and Covenant with them, & quolibet eorum, that he is right owner of them, etc. In this case in respect of the said several interests, by the said words, & quolibet eorum, the Covenant is made several: But if he demise th●se acres to them jointly, than those words cum quolibet eorum, are void; for a man by his Covenant (unless in respect of several interests) cannot first make the Covenant joint, 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 joint or several at the election of the Obligée, yet a man cannot bind himself to three, and to every of them to make it joint 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 judgement, which the law will not suffer, as it is held in 3 H. 6. 44. for there one brings a Replevin against two of one ox, who made several avowries, each of them by himself in his own right, and there by the advice of all the justices both the Avowries did abate for, his inconvenience, that if both the issues should be found for the Av●wants, the Court could not give judgement to them severally of one and the same thing, etc. Vide 11. Co. l 9 96. a. 3. ●n Sir Geo. Reynol● case. 20 When two distinct matters of Record amount to an office, When a S●i●● facias and when not. sometimes there ought to be a Scire facias, before the King doth seize; And sometime not according to the several subject matter; As if it be found by Office, that the Manor of D. is holden of the King, and it appears also by fine upon Record, that the Manor of D. is aliened in Mortmain; In this case there ought to be a Scire facias, in which it may appear by averrement that it is all one and the same Manor (for they may be two several Manors of one name) and that he that aliened it was thereof seized; because both those matters upon record without such averrement will not put the party to answer; but when the identity of the thing appears to the Court, and that it cannot be divers; there the two matters shall then also amount to an office, and the King may seize without a Scire facias; As in the case of Sir John Savage, who was Sheriff 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 seized without a Scire facias; And the reason was, because it appeared to the Court, that there could be but one Sheriff in one County; and therefore there was no need of any Scire facias in that case, etc. Co. l. 7. 26. in Maun●ons case. 21 In a Quare impedit, Advowson ●tron. when the Advowson is likely to come in question, the writ shall abate, unless the Patron be therein named; but when the presentation only 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, etc. 7 H. 4 25. 27 Co. Inst. pars 1 52 a. 3. 22 If Lessée for life make a Deed of Feoffment, 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 years make a Feoffment in Fee, 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, etc. 23 If Tenant in tail make a Lease for years of lands, Fine by Tenant in tail. and after levy a fine. C●●●id. 332. b. 3. this is a discontinuance, for a fine is a feoffment of Record, and the Fréehold passeth: but if Tenant in Taile maketh a Lease for his own life, and after levy a fine, this is no discontinuance, because the reversion expectant upon a State of Freehold, which lieth only in grant, passeth thereby, etc. 24 Vide Max. 101. Pl. 7. forcible Entry ●●taint. 25 If a writ of forcible entry and detainer be brought against A. and five more, and the jury find all guilty of the forcible entry, Dyer. 141. 45. 3, 4, P.M. and only A. of the detainer; in this case, if the verdict be false, albeit the original writ be entirely brought against all, yet the six shall have one Attaint for the false verdict upon the forcible entry, and A. shall have another single Attaint for the finding of the detainer. Contract by a servant. 26 A servant makes a bill, Dyer, 230. 56. 6. El. testifying the buying of ware to the use of his Master, and this without Seal, in which he binds himself to pay the debt; yet, In this case, debt lieth not against the servant, but only an Action upon the case; for it is the debt of the Master, and the Assumpsit of the servant. Copyhold, Dower. 27 The Custom of a Manor is, that the Lord, the Surveyor, Dyer, 251. 89. 8 Eliz. or his deputy may demise by copy, the Lord deviseth authority to two foe make Customary estates for payment of his debts, and dies, they hold Court in their own names, and grant copies in reversion according to the Custom, the Feme of the Lord hath one of the Copyholds assigned by the Sheriff upon recovery of the third part of the Manor in Dower; And it was held, that she should avoid the grant made by the two assigned, because she claims by Title of Dower, which is paramount the devise. 32 According to the end. Knight-service the defence of the Realm. 1 The Tenant in Knight-service, Co. Inst. pars 1 70. b. 2. that is able to perform the Service himself, may nevertheless, if he please, perform it by another, as well as he that is sick, or an Infant, or a Corporation aggregate of many, &c, for Sapiens incipit a fine, and the end of this Service is for defence of the Realm; And therefore if it be done by an able and sufficient man, and the end, for which the Law ordained it, be effected, it is duly performed, as it ought to be. Tender to the heir female. 2 If the Lord tender a comoenable marriage to the heir female within the two years, Co. Inst. pars 1 79. a. 1. 35 H. 6. tit. guard 71. and she marry elsewhere within those two years, the Lord shall not have the forfeiture of the marriage; because the only end, which the Statute of West. 1. cap. 22. giveth those two years, is for the Lord to make his tender (Co. l. 6. 71. a. The Lord Darcies case) or rather, that he should not lose the advantage of making his tender, And the benefit of those two years are given unto him (as it were in lieu of the forfeiture, in case the heir female should refuse his tender; for if he make tender within the two years, and she accept the same, and marry, immediately after marriage she is out of ward. Error sued against a villain. 3 If Villanage be pleaded by the Lord in an action real, mixed, Co. Inst. pars 1 127. b. 4. 18 E. 4. 6. & 7. or personal, and it is found that he is no Villain, the bringing of a Writ of Error is no enfranchisement; because the end of bringing that Writ against the Villain, is not to commence any new suit against him, but only to defeat the former judgement. 4 If a Castle, that is used for the necessary defence of the Realm, Co. Inst. pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9 Britton 186, 187. Co. ibid. 31. b. 3 descend to two or more Coparceners, Castles for defence, and others. this Castle might be divided by Chambers and Rooms as other houses be, but yet for that it is pro bono publico & pro defensione regni it shall not be divided; for as one saith, Propter jus gladii dividi non potest, And another saith, Pur le droit del esche, que ne foeffre division, en aventure que la force del Realm ne defaille par taut: But Castles ordained for another end, viz. for habitation and private use, and not for the necessary defence of the Realm, aught to be parted between Coparceners as well as other houses; and wives may also be thereof endowed, but cannot be of Castles for defence, etc. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19 That, Avowry upo● distress for rent. if the Lord shall distrain upon the lands and tenements holden, etc. he may then avow, etc. upon the same lands, etc. as in lands, etc. within his Fee or Seignory, etc. without naming any person certain, and without making Avowry upon any person certain, etc. Here, albeit the purview of this Act be general, yet all necessary incidents are to be supplied, and the Scope and end of the Act to be taken; And therefore, though he need not to make his Avowry upon any person certain; yet he must allege Seisin by the hands of some Tenant in certain within forty years; for otherwise, rent, and other annual payments are not recoverable, by the express limitation of the Statute of 32 H. 8. cap. 2. Co. Inst. pars 1 288. b. 1. Littl. § 503. 6 If a man be outlawed in a personal Action by Process upon the Original, and bring a Writ of Error, if he, Release of a● actions no plea in erro●. at whose suit he was outlawed, will plead against him a Release of all manner of Actions personal, that seems to be no plea; for by that Action he shall recover nothing in personaltie; But the end of the Writ of Error is only to reverse the out-lawry. Co ibid. 368. a. 3. Ploughed. Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assize of an house desire the Plaintiff to dine with him, which the Plaintiff doth accordingly, Licence no seisin. and so they be both in the house together, (and in truth) one pretendeth one Title, and the other another Title; yet the Law, in this case, shall not adjudge the possession in him, that right hath; because the Plaintiff came not thither to claim his right, but only to dine there at the instance of the Tenant; And it would be to his prejudice if the Law should adjudge him in possession, and (doubtless) a Trespasser he cannot be; for that he came thither upon the Tenant's invitation. Co. ibid. 369. a. 4. 8 A Lease for years to another to the intent to try the Title in an Ejectione firma, is out of the Statute of 32 H. 8. cap. 9 An ejectione firma no bought title. which prohibits the buying and selling of pretenced Rights or Titles; because it is directed to a lawful end, and is in a kind of Course of Law; but if it be made to a great man, or any other, with purpose to sway or countenance the cause, that is to be taken within the same Statute, being chief intended for the suppression of such abuses in the Commonwealth. Co. Inst. pars 1 381. b. 3. 9 Such construction must be made of a Statute, that the end, Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be always pursued, in suppression of the mischief and advancement of the remedy, as by this case it appeareth; A Fine levied by the husband only is within the letter of the Statute of Gloucester 6 E. 1. cap. 3. but the mischief was, that the heir was barred of the inheritance of his mother, by the warranty of his father without Assets, And this Act intended to apply a remedy, viz, that it should not bar, unless there were Assets; and therefore the mischief is to be suppressed, and the remedy advanced. 31 E. 3. joinder in aid, 10. Finch 13. 10 The Vouchée cometh into the Court to be viewed, View of vouchee. and being viewed, is awarded of full age; yet he shall not be driven to answer, till he come in to the same intent by other process. 19 E. 4. 3. Finch, 13. 11 The Vouchée upon a Grand cape ad valentiam, Appearance of vouchee. shall not lose the lands, though he cannot save his default; because the process is only to this end, viz. that he should appear. Finch 13. 50 Ass. Pl. 2. Finch, ibid. 12 A man that is warned by Writ to answer to a matter, Not forced to answer to two several things. shall not be driven to answer any other matter than is contained in that writ though the King be party; As if by Office it be found, that lands in Chief descended to I. S. a fool natural, and that A. occupieth them; whereupon a Scire facias goeth out against A. to answer, why the lands should not be seized into the King's hands for the Idiocy of I. S. upon which A. cometh in and pleads, that I. S. when he was of perfect memory, made a release to one B. who enfeoffed A. This is good enough without showing any licence of Alienation to discharge himself for the purchasing of those lands. Fine with Proclamations. 13 Tenant in tail general having issue a daughter, Co. l. 3. 50. b. 3. ●u slowes case levies a fine in Trinity Term, and dies in August following, the issue immediately brings a Formedon, and hanging the Writ, the Proclamations are made; yet in this case the issue is barred; for the end of making the Proclamations is not to bar the entail, because that is barred before by the fine; but the only end of making the Proclamations (by the Statute of 32 H. 8.) is to distinguish the fine, that shall bar the estate tail, from a Fine at the Common Law; for the Fine that shall bar such an estate shall be levied according to the Statute of 11 H. 7. viz. with proclamations, etc. Statute 32. H. 8. 17. 14 The Statute of 32 H. 8. cap. 37. saith, Co. l. 4. 51. b. 4 Andrew Ognels case. that the husband shall have an action of debt for the arrearages due in the life time of his wife out of any estate, which he held in her right: And this is to be understood as well of arrearages due before as after, marriage: for in that Statute the end of naming the Feme (wife) is only to declare and describe the condition of the Feme, and not to imply, that the arrearages ought to incur after the coverture. Where a Writ is to be returned, and where not. 15 There is an apparent diversity between a Capias in process, Co. l. 5. 90. a. 3. Hoes case. Tres. 33 El. Mounts case. and a Capias ad satisfaciendum; for if the Capias in process be not returned, the arrest is torcious; because there the end of the arrest is, that the party may appear and answer the Plaintiff: But in all Writs of execution, when the Sheriff alone doth execute them (as a Capias ad satisfaciendum, habere facias sesinam or possessionem, fieri facias, liberat, etc.) if the execution be duly served, it is good, although the Writ be not returned; for there the Plaintiff hath the end, and effect of his suit, and then nothing else is to be done on his part afterwards: But in case of an Elegit, because the extent is to be made by inquest, and not by the Sheriff alone, that aught to be returned, otherwise it is nothing worth. Collation no disseisin. 16 If a Bishop collate without Title to a Church presentable, Co. l. 6. 50. a. 1. Boswels case. and his Clerk is inducted, yet this shall not put the right Patron out of possession; for that is nothing else but a provision, to the end divine Service may be celebrated, until the Patron present, and it is no more than belongs to his Office to do. Dignity entailed forfeited. 17 If the Dignity of an Earldom had been entailed to the heirs male, Co. l. 7. 34. a. 4. Nevil's case. it might have been forfeited for Treason before the Statute 26 H. 8. cap. 13. by reason of a secret Condition in Law annexed unto it; for Earls are created for two purposes, viz. Ad consulendum Regi tempore pacis, & ad defendendum Regem & patriam tempore belli; and therefore they wear a Cap of honour and a Robe, as they are Councelors; and are girded with a sword, to represent them gallant Champions and Cavaliers; Now then when such a person against his duty and the end of his dignity, commits Treason against the King, his dignity (though entailed) is forfeited by that Condition implicitly annexed to his estate. Vide 42. 7. The end to be pursued. 18 The Scope and end of every matter is principally to be considered, and if the Scope and end of the matter be satisfied, Pl. co. 18. a. 1. Fogassues' case. then is the matter itself, and the intent thereof also accomplished: And therefore in Fogassues' case in the Commentaries, because the King had means of being entitled to the Custom of the Woad, viz. by causing it to be weighed, and the end and Scope of the Statute being in that case performed, he was not to incur the penalty of forfeiting the Woad. 19 To let a prisoner in execution go at large upon bond, etc. is expressly against the Statute of 23 H. 6. Ploughed. come. 67 a. 4. Dive against Maningham. cap. 10. Sheriff's bond void. because the end and intent of making that Statute was to prevent all such bonds, etc. made for that purpose: that abuse having been much practised by Sheriffs before the making of that Statute. Dyer 48. 19 32 H. 8. 20 If the Plaintiff importune a juror to appear and pass upon the verdict according to his conscience, Juror. albeit he was not summoned by the Sheriff or his ministers to appear, yet this is not any unlawful practice or cause of challenge of the juror, because the end why he was impanelled, was to discharge a good conscience upon the verdict. Co. l. 5. 87. a. 3. In Blumfields case. 21 In debt when the Plaintiff hath had execution of the Defendants lands, and after the lands are evicted, Execution. in such case before the Statute of 32 H. 8. 5. the Plaintiff could not have had a new execution, for the execution of lands was valuable, and accounted in Law for a satisfaction, and to avoid infiniteness, there could be but one valuable satisfaction or execution with satisfaction at the Common Law; but execution of the body is not a valuable execution, and therefore the Plaintiff after the Defendants death may have new execution, until he be fully satisfied, for that is the end and fruit of his suit, Et finis rei attendendus est, & fines mandatorum Domini Regis per rescripta sua (viz. brevia) diligenter sunt observandi. 22 Hob. 8 case of Essoines. 33 Qui adimit medium di rimit finem. Littl. § 237. 1 Rescous, Replevin, Dissesin of re●● and Enclosure are three sorts of Rend Service; because (as Littleton saith) the Lord is by them disturbed of the means to come by his rent. Co. Inst. pars 1. 161. a. 4. 2 The turning of the whole stream that runs to a Mill is a disseisin of the Mill itself (9 Ass. 19 Myrrh. cap. 2. Sect. 15. Britt. 108. 114. Turning a watercourse. 118. 141.) Co. ibid. 3 If a man be disturbed to enter and manure his land, Disturbance. this is a Disseisin of the land itself; for, Qui obstruit additum, destruit commodum (26 Ass. 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b.) And therefore where it is said, that a man shall not be punished for suing of Writs in the King's Court, be it of right or wrong, it is regularly true; Replevin. but it faileth in the special case of the Writ of Replevin for the cause aforesaid, Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass. 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moil 2 R. 3. 19 Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19 88 Fleta l. 3. 5. 7. If the Lord of a rend Service, Terrified from distraining. or the Grantée of a rend charge or Sack, be going upon the way to distrain for the rent, and the Tenant hearing it, forestalls his way, and threatens him in such sort, that he dare not proceed for fear of the loss of life or member; this is also a Disseisin of the rent, causa qua supra: But this must not be vagus & vanus timor, sed talis, qui cadere possit in virum constantem, and not in hominem vanum & meticulosum; talis enim debet esse metus, qui in se continet mortis periculum, & corporis cruciatum. Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons (for, Infant shall, ●●wage. according to the Maxim in Law, Minor jurare non potest) And therefore in that case the default shall not grieve him, for seeing the mean to excuse the default is taken away by Law, the default itself shall not prejudice him. Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Keeper of a Park fell or cut any Trees, Woods, The Keeper 〈◊〉 a Park making waist. or Vnderwoods, and convert them to his own use, this is a forfeiture of his office; for destruction of the vert is, by a mean, destruction of venison: So it is also if he pull down any house, wherein the hey, wherewith the Dear are fed, is usually put; for that also tendeth to the destruction of the Dear. 28 H. 8. Beudloes enter evesque de Londres & Hieron, Co. l. 9 50. 95, 96. 99 Escape. 7 If a Gaoler, that hath a prisoner in his custody upon execution, Co. ibid. 260. a. 3. Boytons' case. suffereth him to go at large, though it be with a Keeper, he is liable to an escape; for he ought to keep him in salva & arctà custodia, to the end he may the sooner pay his debt. Co. l. 3. 43. b. 4. Entry Release of all actions. 8 Where a man may enter, Co. Inst. pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams' case. a release of all Actions doth not bar him of his right, because he hath another remedy, viz. to enter: But where his entry is not lawful, there a release of all actions is, by consequence, a bar of his right, because he hath released the mean, whereby he might recover his right; As if the Disseisée release all Actions to the heir of the Disseisor, which is in by descent, he hath no remedy to recover the land; because he had no other means to recover it, but by Action, and of that he is barred by his Release. An Alien h●ndred of Trade. 9 To hinder an Alien from getting into his hands by Gift, Trade, Co. l. 7. Calv. case 17. a. or other lawful means any treasure, or other personal goods whatsoever, as also an house for his necessary habitation, and conveniency of trading, and from maintaining any Action for the same, were in effect to deny unto him Trade and Traffic, which is the life and support as of every Island, so more especially of this Kingdom. Release of all demands. 10 The reason, Co. l. 8. 154. a. 3. Sir Edward Althams' case. why a Release of all Demands doth bar a man of all his Right, Title, and Interest in any Lands, Tenements, Goods, Chattels, etc. is because by such a Release the means and remedies of recovering them are utterly extinct, and so by consequence, the right and Interest in the things themselves. Nuisances. 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbour's house, Co. l. 9 58. a. 2. Aldreds' case. or if by building an Hog's cote near his neighbour's dwellinghouse he much annoys the same, or makes the air infectious or unwholesome, an Action upon the case will lie in either of these cases; for hereby he hinders and interrupts the peaceable dwelling of his neighbour, which is the principal end, for which the house was at first erected. A Legacy of a Lease. 12 A. possessed of a Lease for 500 years deviseth it to B. for life the remainder to C. and his heirs and dies; Co. l. 10. 51. b. 3. Lampets' case. here albeit the whole term be in B. and C. hath nothing but a possibility or a future Interest, and therefore cannot grant it over; yet in as much as the Legacy or Devise to C. is in esse and present, and therefore may be discharged, the Interest also, which springs from the Legacy, may likewise be discharged; for, Qui distruit medium, distruit finem, And therefore if o●e devise to another 20 l. when he comes to the age of 24 years, and die, the legatory after the age of 21 years may release this Legacy and devise, and although he afterwards attain to the age of 24 years, he shall be barred to recover it; and yet in this case a Release of all suits and demands shall not bar him. An award. 13 A. is bound to B. to stand to the award of C. A. before the day of giving up the award dischargeth C. to make any award; Co. l. 8. 82. Vivyors' case. In this case, the Bond is forfeit; For how can A. stand to the award, when by revoking the Authority, which he had given to C. he hinders C. to make the award, etc. Joyntenants. 14 If there be two Joyntenants in fee, Co. l. b. 79. a. The Lord of Aburgavenies case. and one grants a rend charge in fee, and after releaseth to his Companion; In this case, albeit he, to whom the Release was made, survive the other; yet shall he not avoid the charge; because he which survives, by the acceptance of the Release hath deprived himself of the way and means of avoiding the said charge; for, jus accrescendi, the right of survivourship was the only means to have avoided it, and the right of survivourship is utterly taken away by the release. 15 Dyer 170 b. 1. 1 and 2 El. 15 H. 8. Demise of a Forest. in the 33 year of his Reign demiseth to Sir Richard Cromwell the Forests of Waybridge and Sapley in Com. Hunt. with the appurtenances for 80 years at the yearly rent of twenty nobles, with this clause, viz. that Sir Richard Cromwell his Executors and Assigns should during the term maintain 100 Deer there, and them or the like, should leave there at the end of the term; Now the Lord North who had the Fee simple of the said Forests, attempted to take the Dear, and give warrants there, but most of the judges & Sergeants of both houses were of opinion he could not do it; for all the Game was included in the word and name of the Forest, a●d the hundred Deer were not reserved to be killed, or any of them; because then t●e Lord North would have debarred the Lessée of the means of preserving the Game, and (by consequent) of performing his Covenant, the end of preserving them being only for the maintenance of the Game and Forests. Dye● 240. 45. 7 El. 16 To build a new house upon the Wast or several grounds within a Forest is a Parpresture and Nuisance to the Game, Forest. Nuisances and finable at the discretion of the justices of the Forest to suffer it to stand, or otherwise they may demolish it at their pleasure; because it is a prejudice to the food of the Dear, for the preservation whereof the Forest w●s ordained. 34 According to the effect. 1 H. 6. 4. Finch 59 1 A Deed delivered by an Infant, Delivery of a deed. cannot be delivered again at his full age; for it took some effect before, and was but voidable; But a Deed delivered by a Feme Covert, or a Release delivered to one that hath nothing in the land, may be delivered again, viz. when she cometh to be sole, or the party to have somewhat in the land: For the first delivery was merely void, and took no effect at all. Co. Inst. pars 1 46. b. 4. Co. l. 5. 1. Cla●●ns case. 2 If a lease be made by Indenture bearing date 26 Maii, When a lease shall commence. etc. to hold for 21 years from the date, or from the day of the date, it shall begin on the 27 day of May: but if the Lease bear date the 26 day of May, etc. to hold from the making hereof, or from henceforth, it shall begin on the day in which it was delivered; for the words of the Indenture are not of any effect till the delivery, and thereby, from the making, or from henceforth, take their first effect: So also if the habendum the term of 21 years without mentioning when it shall begin, it shall be●in from the delivery; for there the words take effect: but if it ●e a die confectionis, than it shall begin on the next d●y after the delivery. Vide Max. 8. 2. Co. Inst pars 1 48 a. 4. & Ibid. 56. b. 4. Through goods case. ● If a man deliver a Deed of Feoffment upon the land in name of ●eisin of all the lands contained in the Deed, this is a good Livery; Livery of seisin. but if a man only deliver the Deed of feoffment upon the land without mentioning that it is in name of Livery, etc. this amounts to no Livery of the land for it hath another operation to take effect as a Deed. Co. l. 6. ●6. Sha●ps cas●. & l. 9 137. Co. ibid. 48. b. 3 4 If a m●n be disseised, and make a Deed of feoffment, Livery of sei●●● by Attorney. and a Letter of Attorney to enter and take possession; and after to make Livery secund●m Flower deluce cartae, Co. l. 3. 35. Jennings and Brags case. this is a good feoffment, albeit he was out of possession at the time of the Charter made; for the Authority given by the Letter of Attorney is executory, and nothing passed by the delivery of the Deed, till Livery of Seisin was made: And in ancient Letters of Attorney power is given to others to take possession for the Feoffor: But if a man be disseised, and make a writing of a Lease for years, and deliver the Deed, and after deliver it upon the ground, A void Lease. the second delivery is void; for the first delivery made it a Deed; and in as much as the Lease for years must take effect by the delivery of the Deed, therefore the Deed delivered when he was out of possession was void: but so it is not of a Charter of Feoffment; for that takes effect by the Livery and Seisin; And in the other case if the Lessor had delivered it as a Scroll to be delivered as his Deed upon the ground, this had been good. 5 A man hath issue a Son and dieth, and the wife dieth also; Co. Inst. pars 1 13. a. 2. Then lands are let for life, Vesting, etc. as a purchaser. the remainder to the heirs of the wife, the Son dieth without issue; In this case the heirs of the part of the Father shall inherit, and not the heirs of the part of the Mother; because it took effect and vested in the Son as a purchaser. 6 If there be Lord, Feme mesne, and Tenant, Co. ibid. 38 E. 3. 12. and the mesne bind herself and her heirs by her Deed to the acquittal of the Tenant, Acquital of Services. the mesne takes husband, the Tenant by his Deed granteth to the husband and his heirs, that he and his heirs shall not be bound to acquital, the husband and wife have issue and die, this issue being bound as heir to his mother, shall not take benefit of the said grant of discharge, for that extends to the heirs of the part of the father, and not to the heirs of the part of the mother, and therefore the heir of the mother's part was bound to the acquital. 7 If the husband alien his land, Co. ibid. 33. a. 4. and then the wife is attainted of Felony, Where the Feme shall have dower and where not. now is she disabled, but if she be pardoned before the death of the husband, she shall be endowed; So if the Son endow his wife at the age of 7 years ex assensu patris, if she before the death of her husband attain to the age of 9 years, the Dower is good; for in these two cases the right of Dower took effect in the life time of the husband high reason of the capacity, which the wives had to take it: But otherwise it is of an original absolute disability; as if a man take an Alien to wife, and after the husband alien the land, and after she is made Denizen, the husband dieth, she shall not be endowe●; because her capacity and possibility to be endowed came by the Denization; otherwise it were if she were naturalised by Act of Parliament; for that makes her as absolutely capable, as if she were a subject borne. 8 If the Father convey his lands holden by Knight-service either of the King or of any mean Lord, Wardship. to his middle Son in tail, Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Son in Fee, and dieth, the eldest being within age, and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue, the King or the Lord shall not have any benefit of the Statute against him in remainder; for the Statute was once satisfied, and the Statute extendeth not to him in remainder. Co. l. 2. 93. 94. Binghams' case, and Northcots case. Co. l. 10. 80. b. Loveyes case. tenors in ●occage. 9 When Littleton saith, Co. ibid. 86. a. 3. & 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage, he there speaketh of Soccage as it is largely taken, and so called ab effectu, that is, all Tenors, which hath the like effects and incidents belonging to them, as Soccage hath, are termed Tenors in Soccage, albeit originally service of the Plough was not reserved; as if originally a Rose, a pair of gilt Spurs, a Rent, or the like were reserved, or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum, ut alio suspendio, Ockam 31. a. 6. alios membrorum detruncatione, vel aliis modis juxta quantitatem perpetrati sceleris puniat, that is, to be a Hangman or Executioner. It seems in ancient times such Offices were not Volunteers, nor to be hired for lucre, but were to be bound thereunto by Tenure. Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service, Chattel vested. which Seignory the Bishop hath in the right of his Bishopric, the Tenant dieth, his heir within age, the Bishop either before or after seizure dieth; neither the King, nor the Successor of the Bishop shall have the Wardship, but his Executors, for albeit the Bishop hath the Seignory en auter droit, yet the Wardship being but a Chattel; he hath it in his own right, and a Chattel cannot go in the succession of a Sole Corporation, unless it be in the case of the King. Littl. § 350. Co. Inst. pars 1 216. b. 1. & 217. a. 4. 11 If land be granted to a man for term of five years upon Condition, An estate upon condition to have f●●. that if he pay to the Grantor within the two first years 40 marks, that then he shall have fee, or otherwise but for the term of five years, and Livery of Seisin is made unto him by force of the Grant; in this case the Grantée hath Fee simple conditional, etc. and if he do not pay to the Grantor the 40 marks within the first two years, then immediately after those two years past, the Fee and Franktenant is and shall be adjudged in the Grantor, etc. And the reason of this case is grounded upon the effect that the Livery took at first: for by the rule of Law a Livery of Seisin must pass a present Fréehold to some person, and cannot give a Fréehold in futuro, as it must do in this case, if after Livery of Seisin made, the Fréehold and Inheritance should not pass presently, but expect until the Condition be performed; And therefore if a Lease for years be made, to begin at Michaelmas, the remainder over to another in fee, if the Lessor make Livery of Seisin before Michaelmas, the Livery is void, because if it should work at all, it must take effect presently, and cannot expect: Co. ibid. 217. b. 1. And there is a diversity (in the case above put) between a Lease for life, and a Lease for years; for in case a Lease for life with such a Condition to have Fee, the Fee simple passeth not before the performance of the Condition, for that the Livery may presently work upon the Fréehold; but otherwise it is in the case of a Lease for years: There is also a diversity between Inheritances, that lie in grant; and Inheritances that lie in Livery; for if a man grant an Advowson for years upon Condition, that if the Grantée pay xx s. etc. within the term, that then he shall have Fee, the Grantée shall not have Fee until the Condition be performed, & sic de similibus: But otherwise it is, where Livery of Seisin is requisite; and therefore if the King make such a Lease for years upon such a Condition, the Fee simple shall not pass presently; because in that case no Livery is made. Vide 55. 109. & 35. 8. Littl. § 359. Co. ibid. 222. b. 3. & 227. b. 4. 12 If a man make a Deed of Feoffment to another without Condition, and when he gives Livery, Livery upon condition. he clogs the estate with a Condition, in this case the estate takes effect by the Livery, and not by the Deed of Feoffment, and therefore shall be subject to the Condition. Co. ibid. 228. a. 1. 13 If a Deed be made and dated in a foreign Kingdom, of lands within England, yet if Livery and Seisin be made, Livery upo● foreign deed. Secundum formam cartae, the land shall pass; for the land passeth, and the grant takes effect by the Livery, and not by the Deed. Co. ibid. 271. b. 3. 14 There is a diversity between a Feoffment of land (at this day) upon confidence, or to the intent to perform his last Will; A feoffment the use of a Will. and a Feoffment to the use of such person and persons, and of such estate and estates, as he shall appoint by his last Will: for, in the first case, the land passeth by the Will, and not by the Feoffment, because after the Feoffment the Feoffor was seized in Fee simple as he was before: Co. l. 6. fo. 17. & 18. Sir Edward Cleres' case. But, in the latter case, the Will pursuing, his power is but a direction of the uses of the Feoffment, and the estates pass by execution of the uses, which were raised upon the Feoffment: Howbeit in both those cases, the Feoffees are seized to the use of the Feoffor and his heirs in the mean time. remainder ●od though ●e particular ●●ate tail. 15 If the Lessor disseise A. Lessee for life, Co. Inst. pars 1. 298. a. 2. and make a Lease to B. for the life of A. the remainder to C. in fee; here, albeit A. re-enter, and defeat the estate for life, yet the remainder to C. being once vested by good Title shall not be avoided: So it is if a Lease be made to an Infant for life, the remainder in Fee, the Infant at his full age disagrees to the estate for life, yet is the remainder good; because it was once vested by good Title. And therefore although it be regularly true, that when the particular estate is defeated, the remainder depending thereupon shall be also defeated; yet that rule fails in these and the like cases: But in both these cases there was a particular estate, at the time of the remainder created. An estate settled by Attornment. 16 If the Lord grants the services of his Tenant to a man, Littl. § 552. Co. ibid. 310. a. 3. and after by a Deed bearing a later date, he grants the same Services to another, and the Tenant attornes to the second Grantee; here, the last Grantee shall have the Services; and albeit afterwards the Tenant will attorne to the first Grantee, it is clearly void, etc. Devise by Tenant in tail not good. 17 If a man seized of lands in tail, Littl. § 624. Co. ibid. 334. b. 3. deviseth them to another in fee, and die, and the other enter, etc. this is no discontinuance, because no discontinuance can be made by Tenant in Tail, but such as is made and taketh effect in his life time. Severance of Jointure. 18 If two joint-tenants within age make a Feoffment in Fee, Littl. § 634. Co. ibid. 337. a. 3. Co. l. 8. 43. a. 3. and one of them dies, and the other survives, in as much as both the Infants might have jointly entered in their lives, that right shall wholly accrue to him that survives, and he shall enter into the whole, etc. but in this case if one of the joint-tenants had made a Feoffment in Fee, and died, the right would not have survived; because the severance of the jointure took effect in both their lives time. Whittinghams' case. Warranty makes a discontinuance. 19 In many cases a Warranty added to a conveyance is said to make a discontinuance ab effectu, Co. ibid. 339. a. 3. 9 E. 4. 19 12. E. 4. 11. 21 E. 4. 97. although he that made the conveyance was never seized by force of the estate tail; because it taketh away the entry of him that right hath, as a discontinuance doth: As if Tenant in tail be disseised and dieth, and the issue in tail release to the Disseisor with Warranty; In this case the issue was never seized by force of the tail, and yet this hath the effect of a discontinuance by reason of the Warranty. Warranty of an infant void. 20 If a man of full age and an Infant make a Feoffment in Fee with Warranty, this Warranty is not void in part, Co. ibid. 367. b. 4. and good in part, but it is good for the whole against the man of full age, and void against the Infant: for, albeit the Feoffment of an Infant passing by Livery of Seisin be voidable, yet his Warranty, which taketh effect only by Deed, is merely void. Judge Richels' case. 21 justice Richel in the time of R. 2. Littl. §. 720, 722. Co. ibid. 378. 28, 29 H. 8. 33 a. Dyer. Co. l. 1. 85. b. 4. Corbets case. gave his lands to his eldest Son, upon Condition that if he should alien them in Fee, etc. that then his estate should cease and be void, and that they should remain to the second Son and the heirs males of his body, etc. this was a void limitation; because if the eldest Son should alien the lands in Fee, etc. then is the Franktenement and the Fee simple in the Alienee, and must needs settle and take effect in him and none other; and then how can it remain to the second Son, etc. or how can the second Son enter upon the Alienee, when he had no right before the Alienation, neither since the Alienation could he possibly have any? A fine cannot operate doubly. 22 If a man make a Lease for life upon Condition, Co. ibid. 378. b. 3. that if the Lessor grant over the reversion, that then the Lessee shall have Fee; here, if the Lessor grant the reversion by Fine, the Lessee shall not have Fee; for when the Fine transferreth the Fee to the Conusée, that estate is so settled, and takes such effect in him, that the same Fine cannot work an estate in the Lessee also; for one Alienation cannot vest an estate of one and the same land to two several persons at one and the same time. Co. l. 2. 23. b. 4. Balwins' case. 23 When things, that lie in grant, Premises and Habendum diversity. and take their essence and effect by the delivery of the Deed without other Ceremony, are granted to one and his heirs, Habendum for years or life; there the Habendum is repugnant and void; as if a man grant rend, Common, etc. out of his land by the premises of the Deed to one and his heirs, Habendum for years or life, the Habendum is repugnant; for Fee did pass by the premises by the delivery of the Deed, and therefore the Habendum for years or for life is void: Again, if one by Deed grant a rent in esse, or a Seignory in the premises to one and his heirs, Habendum to the Grantee for years or for life: Here, albeit another Ceremony is requisite (viz. Attornement) besides the delivery of the Deed, yet in as much as they are things that lie in grant and all the estates viz. in Fee, for years, or life, aught to have one and the same Ceremony to pass them, viz. Attornement; for that cause the Habendum is in that case also adjudged void. 3. when land is given by Deed in Fee by the premises, Habendum to the Lessee for life, there also the Habendum is void; because the same Ceremony is requisite to both the estates, and it shall be taken most forcibly against the Feoffor. 4. When to the estate limited by the premises a Ceremony is requisite to the perfection of the estate, and to the estate limited by the Habendum nothing is requisite to the perfection and essence of it, but only the delivery of the Deed; In that case, although the Habendum be of a less estate than is mentioned in the premises, yet the Habendum shall stand; as if land be given to a man and his heirs Habendum for years; here to the Fee simple limited in the premises it is requisite to have Livery and Seisin, and until Livery be had nothing passeth but an estate at will (if the Deed should go no further) but by the Habendum for years, the estate takes effect immediately upon the delivery of the Deed, although Livery of Seisin be never given. Co. l. 4. 61. Porfe and Hembling case 2 R. 2. Attornment, etc. 24 A Feme Sole makes a Lease for life rendering rend, Feme Sole Attornement. and after by her Deed grants the Reversion to another, and after and before Attornement marries with the Grantee; here, this marriage was not a countermand of the Attornement, no more than if she had married with any other stranger; because, in that case, when the Feme by her Deed sealed and delivered had granted the reversion to another, that grant took such effect against herself, that she could not by any words, which she could use, countermand it before or after the taking of the Baron. Co. l. 4. 70. b. 4. ●indes case. 25 If a man bargain and sell lands to another by Deed indented, Fine and Bargain and Sale. and also levy a Fine of the same lands unto the Bargainee, and after the Deed is enrolled according to the Statute; In this case, the Grantee shall be in by the Fine, and not by the Deed enrolled; for when the Fee simple passed by the Fine to the Conusee and his heirs, the inrollement of the Deed indented afterwards cannot divest and turn the estate out of him, which was absolutely established in him by the Fine; for than whereas he was in before in the per, he shall be now in the post, which cannot be; And when the Common Law and Statute Law concur, the Common Law shall be preferred. Co. l. 4. 89. b. 4. Druries' case. Co. ibid. 11●. a. Acton's case. 26 When a Countess retains two Chaplains, A Countess but two Chaplains. those two are each of them capable of a Dispensation by force of the Statute of 21 H. 8. cap. 13. but when she hath so retained two, the Statute is executed; for she cannot have more than those, capable of a Dispensation and the retainer of a third, in the life time of the two first, cannot divest the capacity of Dispensation, which was at first vested in them by their retainer, to make the third capable of a Dispensation within the Statute; albeit he should survive both the first; because the retainer had an evil commencement to take benefit of the Statute, for although a Countess may have as many Chaplains as she pleaseth at the Common Law, yet she can not have more than two capable of a Dispensation, by force of the Statute. Presentee first and second in E 6 and Qu. Eliz. and Qu. Mary's time. 27 If too have Title to present by turn, Co l. 5. 100LS. Winsors case. and the one presents his Clerk, who is Admitted, Instituted, etc. and after is deprived for crime, or heresy, etc. yet he shall not present again, but this shall serve for his turn; So if he present mere laicus, which was Admitted, Instituted, etc. although he be declared by sentence to be incapable, and therefore void ab initio, yet because the Church was full until the sentence declaratory came, that shall serve for his turn, because it was but voidable; as in the case of Littleton, if the Lord marry his ward within age of consent, and after he disagree unto it, and so was no marriage ab initio, yet he shall not marry him afterwards; So (27 H. 6. Guard 118.) if the Guardian marry his Ward, and after they are divorced causa precontractus, yet he shall not have the marriage of him again: But when the Admission and Institution are merely void, then without question that shall not serve for a turn; 23 Eliz. Dyer. Pl. ultimo. as if his Presentee had been Admitted, Instituted and Inducted, but had not subscribed to the Articles. etc. according to the Statute 13 El. by which in such case the Admission, Institution and Induction are all void, etc. Likewise where two were to present by turn, and one presented in E. 6. time his Clerk, The principal case in Winsors case. who in Queen Mary's time was deprived by sentence, and then the other presented his Clerk, who in 1 Eliz. was also deprived by sentence, and by the same sentence the first Presentee was restored, and after died; in this case the Patron of the second Presentee shall not lose his turn; For although the second Presentee was person for the time to all purposes, and the first Presentee during the first deprivation was not Incumbent, yet when the second sentence came, the first Presentee was Incumbent again by force of his first Presentation, Admission, etc. and there needed no new Presentation, etc. and therefore when this first Presentee dies (who was then in course the last Incumbent) the Patron of the second Presentee must needs present in the next turn; but if the first Presentee had died before the second sentence, or had not reversed the first sentence, than the Patron of the last Presentee had enjoyed his turn, and could not have presented again. Tender of money, etc. 28 As concerning the tender of money upon a Mortgage, Bond, Co. l. 5. 114. b. 2 Wades case. etc. upon a certain day therein limited, although the last time of payment of the money by force of the Condition be such a convenient time before sunset, as that the money may be told before the Sun be set, yet if tender be made unto him, that aught to receive it, at the place specified in the Condition at any time of the day, and he refuse it, the Condition is saved for ever, and the Mortgager or Obliger need not to make tender of it again at the last instant of the day, as aforesaid: for by the express letter of the Condition the money is to be paid upon the day indefinitely, and the Law assigns the last instant, to the end neither of the parties should lose their labour in attending the payment, etc. Plea of non est ●actum or ●udgement si action. 29 In all cases when a Deed is only voidable at the time of the Action brought (as for Infancy, Dures, Co. l. 5. 119. Whelpdales' case. or the like) the Defendant ought to plead Judgement si Action, and not, non est factum (1 H. 7. 15.) So also when the Deed is void by Act of Parliament he ought not to plead non est factum, but in construction of Law, the Deed is to be avoided by special pleading, taking advantage of the Act of Parliament; for albeit the Act saith the Obligation or other Writing shall be void, yet the Law implicitly requires order, which ought to be pursued by the Obligor, etc. As if an Obligation be made to the Sheriff against the Statute of 23 H. 6. cap. 10. or to one against the Statute of Usury, 13 Eliz. cap. 8. in those and the like cases the Defendant ought to conclude, Judgement si Action and cannot plead non est factum (7 E. 4, 5. 7 E. 6. Br. non est factum 14.) against the opinion of Montague in Dyve and Maninghams' case in the Commentaries: Pl. come. 66. Again, when the Obligation or other Writing took at first effect, and was once revera his Deed, but afterwards before the Action brought became no Deed, as by rasure, addition, alteration, breaking of the Seal or the like, in these cases albeit it were sometimes his Deed, yet may the Defendant safely plead, non est factum; for doubtless, at the time of the plea (which is in the present tenors) it was not his Deed. In Dyer 36 H. 8. 59 In debt, the Defendant pleads non est factum, and before the day of Appearance of the Inquest, the mice had eaten the Label, unto which the Seal was fixed, by the negligence of the Clerk, in whose custody it was kept; whereupon the justices commanded the jury, that, if they found that it was his Deed at the time of the plea pleaded, they should then give a special Verdict, which they did accordingly. If an Obligation be delivered to another to the use of the Obligée, and the Obligée refuseth it upon tender, in this case the delivery hath lost its force, and the Obligée can never agree to it afterwards, and then also the Obligor may safely plead, non est factum, against the opinion in Dyer, 1 Eliz. 167. So also if an Obligation be made to a Feme Covert, and the Baron disagree to it, the Obligor may plead non est factum; for by the refusal the Obligation loseth its force, and becomes no Deed. And by these resolutions the Quaere in Dyer, 2. Mar. 112. and the disagreeing opinions in 14 H. 8. 28. Dyve and Maninghams' case 66. 1 H. 7. 15. Dyer 1 Eliz. 167. and other places are well reconciled. 30 A. Tenant for life the remainder to B. in Fee join in a Lease to C. this immediately after the delivery takes effect in this manner, Where a Lease enures by grant or confirmation. it is the Lease of A. during his life, Co. l. 6. 15. Treports case. 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 & Brown, M. 6. and 7 Eliz. 234, 235. and therefore in an Ejectione firma brought by C. if he count of a joint Demise from A. and B. his count is not good. And in that case although the Lease be by Deed indented, yet shall it not work any conclusion; for when the Deed enures by passing of an interest (as in this case it doth) it shall not be taken for any conclusion, no more than a Lease for years of the Tenant for life by Deed indented shall be an Estoppel after his death, because at the beginning it took effect by way of passing an Interest. Co. l. 6. 74. a. 3. Sir Drue Druries' case. 31 When Tenant by Knight Service dies, his heir within age, Marriage d● to the Lord. Chattel ve●● presently the value of his marriage, as a Chattel takes such effect and is so vested in the Lord (24 E. 3. 25. V N. Br. 27 E. 3.) that albeit such an heir within age be made a Knight, and to that purpose in judgement of Law is esteemed of the full age of 21 years, yet shall the Lord have the value of his marriage, as well as the custody of his land till his age of 21 years, which last to remove all doubt, was expressly given to the Lord by Magna carta cap. 3. Co. l. 7. 17. b. 3. Calvin's case. 32 If a King hath a Kingdom by Title of descent where the Laws have taken good effect and rooting, The King cannot alt●● in as much as by the Laws of that Kingdom he doth inherit it, Laws without Parliament. he cannot change those Laws of himself, without consent of Parliament: So also if a King hath a Christian Kingdom by Conquest, as King H. 2. had Ireland, after King John had given unto them (being under his obedience and subjection) the Laws of England, for the government of that Country, no succeeding King could alter the same without Parliament. A Recognisance chargeth a rent after release to the Terretenant. 33 The Grantée of a rend charge issuing out of land acknowledgeth a Recognisance, and afterwards releaseth to the Terretenant, Co. l. 7. 38. b. 3. etc. Lillingstons' case. the Conusée sueth Execution and extends the rent, notwithstanding by the release it is extinguished, for the Recognisance took effect to charge the rent before the extinguishment, and therefore it shall be liable to the extent, in whose hands soever it comes, and as to the Conusée, shall not be extinct. A Chattel vested. 34 If the King hath an Advowson in Fee, which is void, Fitz. 33. N.O. P.a. and during the avoidance the King grants away the Advowson in Fee, the King shall not present to this avoidance: But if the King hath an Advowson by reason of the temporalties of a Bishopric, which is void, and during the avoidance, the King restores to the Bishop the temporalties, yet he shall present to the Advowson, and not the Bishop for this avoidance; because the presentation was a Chattel which vested in him before he restored the temporalties: So if the heir sue Livery from the King, and hath it; yet the King shall present to the Advowson, which voided during the time, that the Advowson and land were in the King's hand, causa qua supra. Likewise if a man be seized of an Advowson in Fee in gross, or appendent to a Manor, and the Advowson voids, and he dies, his Executors shall have the presentation and not the heir; because it was a Chattel vested and severed from the Manor; neither shall the heir in tail have the presentation which falls in the life of the Tenant in tail, but the Executors of the Tenant in tail, etc. The like. 35 The Termor shall have the presentation, Fitz. 34. b. & N▪ which happens during the term, albeit during the term he present not to the Advowson: So if a Vicarage happen to be void, and before the Parson can present he is made a Bishop, etc. yet he shall present to that Vicarage, because it was a Chatttel vested in him. Where the Guardian shall not have ravishment. 36 If the Guardian marry the heir after the age of 14 years, Fitz. 142. h. and after the heir is taken by a stranger, yet the Guardian shall not have a Writ of Ravishment, because he hath had the effect of his marriage. A Chattel vested. 37 If a man be Guardian in right of his Wife, Fitz. 142. i. although his Wife die, yet he shall have the Wardship, because it is a Chattel vested in him. Feoffee upon condition not disabled. 38 If the Feoffee upon Condition be disseised, Co. Inst. pars 1 222. a. 3. and after bind himself in a Statute Staple, or Merchant, or in a Recognisance, or take wife, this is no disability in him of performing the Condition; for that, during the disseisin, the land is not charged therewith, neither is the land in the hands of the Disseisor liable thereunto; because, in that case, if the wife die, or the Conusee release the Statute or Recognisance, and after the Disseisee doth enter; he may perform the Condition in the same plight and freedom, as when the land was conveyed unto him. Accceptance cannot make a void Lease good. 39 Where an Estate or Lease is ipso facto void by a Condition or Limitation, Co. ibid. 215. a. 1. no acceptance of the rent after can make it to have a continuance: Otherwise it is of an Estate or Lease voidable by entry. 35. He that cannot have or perform the effect or consequence of a thing, shall not have the thing itself. Co. Inst. pars 1 16. b. 2. 1 If a man be called by Writ to the Parliament, No Peer unless he sit. and the Writ is delivered unto him, and he sit in Parliament by force of that Writ, he is for ever after a Baron or Péer of the Parliament, and thereby his blood is ennobled to him and his lineal heirs; but if he die before he sits in Parliament, he is no Baron or Péer neither shall he or his reap any benefit of the Writ; because (being prevented by death) he cannot perform the effect or consequence of the Writ, which is, personaliter interesse cum Rege & cum Prelatis, magnatibus, etc. Super arduis & urgentibus negotiis etc. consilium suum impensurum, etc. Co. ibid. 8. b. 1. Bract. l. 2. fo. 88 Fleta l. 1. cap. 10. 2 An Infant within age, that is not in custody of another, An Infant 〈◊〉 cannot be Guardian. cannot be Guardian in Soccage; because no Writ of account can lie against an Infant. For, as Bracton saith, Alium regere non potest, qui seipsum regere non novit: Or as Fleta, Minor minorem custodire non debet, alios enim presumiter male regere, qui seipsum regere nescit: And by the like reason, An man non compos mentis, a Lunatic, a man caecus & mutus, or surdus & mutus, or a Leper removed by a Writ de leproso amovendo cannot be Guardian in Soccage. Co. ibid. 89. a. 1. 3 A Guardian in Soccage shall not present to a Benefice in the right of the heir; because he cannot be accountable therefore, A Guardian cannot present to a Benefice. for that he can make no benefit thereof; for the Law doth abhor Simony, or any corrupt contract for Benefices; And therefore in that case the heir shall present himself. Co ibid. 100 a. 4. 4 If two joint-tenants bring a Writ of Mesne, One Joyn-t●nant cannot forejudge. and the one is summoned and severed, the other cannot fore-judge the Mesne; for he ought to be attendant to the Lord Paramount, as the Mesne was, and that can he not be alone without his companion: So it is also if there be two joint-tenants Mesnes, and in a Writ of Mesne brought against them, one maketh default, and the other appears, there can be no fore-judger. Co. Ibid. 102. a. 3. 5 If Tenant in Frank-almoigne bring a Writ of Mesne against his Lord, the Lord cannot disclaim in the Seignory; No Disclaim●● in Frankalmoigne. because he cannot hold of any man in Frank-almoigne, but of the Donor and his heirs. 6 If the Lord mayhim his Villain, No appeal by Lord against his Villain. he shall be indicted for it at the King's suit: but he shall not have an Appeal of mayhim against his Lord, Littl. §. 194. Co. ibid. 126. a. 4. because he cannot in that case enjoy the damages recovered; for that upon recovery and execution for the damages, the Lord may immediately take them from him again. Vide infra 38. 1. 7 In a Quid juris clamat brought by two Executors, Nonsuit of one executor is of both. the nonsuit of the one is the nonsuit of both; because the Tenant cannot attorne according to the grant. Co. ibid. 139. a. 4. 8 Regularly when any man will take advantage of a Condition, if he may enter he must enter, In some cases neither entry nor claim necessary. and when he cannot enter he must make a claim; Co. ibid. 218. a. 3, & 4. And his claim is to proceed and as it were to make way for his entry: And the reason of this is, because a Fréehold and Inheritance shall not cease without entry or claim: yet in some cases, when he cannot enter by reason of some presentin-interest, which the Tenant hath in the land, neither shall he then make his claim, because he cannot enjoy the effect of his claim, viz. to enter into the land: As in the case of Littleton Sect. 350. If land be granted to a man for 5 years upon Condition, that if he pay unto the Grantor within two years 40 marks, that then he shall have Fee, or otherwise but for the term of 5 years, if in this case the Grantee do not pay unto the Grantor the 40 marks within the first two yeaaes, then immediately after those two years past, the Fee and Franktenement is in the Grantor without entry or claim, etc. Vide 34. 11. and 55. 109. versity of ●ctione and ●ise. 9 If an Ejectione firma be brought, Co. ibid. 285. a. 3. and the term incurreth hanging the Action, yet the Action shall proceed for damages only, because an Ejectione doth lie after the term for damages only; but if Tenant pur altar vie, bring an Assize, and Cesty que vie dieth, hanging the Writ, albeit the Writ were well commenced, yet the Writ shall a●ate; because he cannot have the effect of a recovery in an Assize, which is to have as well the Land as the Damages, and not Damages only, as in the case of an Ejectione firma. ●o writ of Er● atter re●se. 10 If Tenant in a real Action release unto the Demandant after recovery, all his right in the land, Co. ibid. 289. a. 1. 9 H. 6. 47. he shall not afterwards have a Writ of Error; because he cannot have the effect of that Writ, which is to be restored to the land. ●o attaint af● release. 11 If Debt or Damages be recovered in a personal Action by false verdict, Co. ibid. 26 H. 8. 3. b. 13 E. 4. 1, 2. and the Defendant releaseth unto the Plaintiff all Actions personal, the Defendant shall not afterwards take any benefit by bringing a Writ of Attaint; because he cannot have the effect of that Writ, which is to be restored to the Debt and Damages, which he lost: The like Law is, where a judgement is given upon a false verdict in a real Action; for there also a release of all Actions real, is a good bar in an Attaint, etc. for that (in these two last examples) both the Writ of Error, and the Writ of Attaint do ensue the nature of the former Action, etc. No Audita ●●aerela after ●●lease. 12 If the Defendant in a personal Action doth after judgement entered release unto the Plaintiff all Actions personal, Co. ibid. he shall not afterwards bring an Audita quaerela; because after he hath released to the Plaintiff all Actions personal, he cannot have the effect of that Writ, which is to discharge himself of a personal execution. No Formedon against tenant for life. 13 Tenant in tail discontinueth in Fee and dieth; Co. ibid. 297. b. 3. the Discontinuee makes a Lease for life, and granteth the reversion to the issue; In this case, the issue shall not have a Formedon against Tenant for life, because, he cannot have the effect of that Writ, which is to recover an estate of Inheritance; for the Lessée for life hath not the Inheritance, but the issue in tail himself hath it. No entry after release. 14 If Feoffée upon condition make a Lease for life or a gift in tail, Co. ibid. and the Feoffor release the Condition to the Feoffée, the Feoffor shall not afterwards enter upon the Lessée or Donée; because he cannot have the effect of his entry, which is to regain his ancient estate. No action of trespass for ●oile by Co●ies. 15 If a man plant Coneys and Conie-burrowes in his own land, Co. l. 9 104. Boulstones case. which afterwards so increase and multiply, that they destroy the ground of his neighbour thereunto adjoining, yet shall not his neighbour maintain an Action upon the case against him that plants them, for the damage done by them; because he cannot have the effect of his suit, which is to recover damages for the trespass committed; for immediately after the Coneys come into the neighbour's land, he may kill them; because they being ferae naturae, the other that planted them hath then no property in them, and it stands not with reason, that a man should make satisfaction for the damage which goods do, that are none of his. To some titles ●o warranty ●●tends. 16 There are some naked titles, unto which warranty doth not extend, Co. l. 10. 98. b. 4. Edward Seymors case. Co. Inst. pars 1. 389. a. 2. as the Title in case of exchange, condition upon Mortgage, etc. Mortmain, consent to the Ravishor, and the like; because for these no Action lies, in which there may be Vourcher or Rebater. Co. l. 11. 29. b. 3. Alexander Poulters case. Ibid. fo. 30. a. 3. 17 Before the Statute of Articuli cleri cap. 15. No Clergy ●ter confes●● he that confessed the Felony could not have the benefit of his Clergy; because in case of confession he could not have his purgation, etc. for by intendment of Law he cannot (against his express and voluntary confession in Court) be innocent: Confessus in judicio pro judicato habetur, & quodammodo su a sententia damnatur. Co. l. 11. 77. b. 1. Magdalen College case. 22 E. 3. 'tis Coronae 276. 18 It is provided by the Statute of West. 2. cap. 12. In appeal a Monk can have dam●●● Quòd se appellatus de felonia, etc. se acquietaverit, etc. restituant hujusmodi appellatores damna appellatis. Yet if an appeal of death had been brought against a Monk, who had been acquit, and thereupon had prayed his damages according to that Act, he should not have been admitted any such prayer; because he could not have the effect thereof, being by Law incapable to take the damages. Fol. 11. B. 9 N. 19 In a Writ of Right de rationabili parte by one Coparcener against another Voucher lieth not; Vourcher li●●● not in cop●nery. because the Demandant cannot have the effect thereof, viz. to recover in value, in respect of the privity of blood betwixt them, etc. F.N.B. 31. f. Co. Inst. pars 1. 127. a. 1. 20 In all originals brought by a Subject, The King i● not give places de prosequendo. wherein pledges de prosequendo are to be found, the preamble of the Writ is, Rex vicecom. salutem, etc. Si A. fecerit te securum, etc. tunc summoneas, etc. But at the King's suit the preamble shall be, Rex vicecom. salutem, etc. summonens per bonos summum, etc. and not, Si Rex fecerit, etc. for the King shall not be bound to prosecute; because he is not subject to the consequence thereof, viz. to be amercied if he do not prosecute; neither can he be nonsuited; because he is always present in all his Courts. V infr. 39 4. F. N. B. 48. q. 21 If a man brings a Writ of Right of Advowson against another, and hanging the Writ, the Church becomes void, The Dem●dant shall 〈◊〉 have a ●●mittas. the Plaintif shall not have a ne admittas, to the Bishop; nor a Quare incumbravit, albeit the Bishop doth encumber the Church, etc. for the Demandant shall not recover the presentment upon this Writ, but the Advowson. 22 One Commoner shall not bring a Writ de admensuratione pasturae against another Commoner, F.N.B. 125. d. which hath Common appurtenant, No Writ of admeasurement. or in gross sans number; because such a Commoner cannot be admeasured, etc. Pl. Co. 11 c. a. 1. Fulmerston and Steward's case. West. 2. cap. 21. 23 The Statute of Westm. 2. ordains, No Cessavit for the bei●● Quòd fiant brevia de ingressu haeredi petentis, super haerodem tenentis, & super eos, quibus alienata fuerint hujusmodi tenementa, etc. yet if the Demandant in a Cessavit die, the heir shall not have a Cessavit; because he cannot have the effect thereof, viz. to recover the arrearages; for that they (by Law) belong not unto him, but unto the Executor. Co. Inst. pars 1. 96. b. Littl. § 137. 24 If a Tenant in Frankalmoigne withdraw his Service, Tenant in Frankalm●●● not distrainable. the Lord shall not distrain, commence any suit, or seek any remedy for it, in foro seculari, in any Temporal Court; because that Service, being Spiritual and uncertain, shall be defined and recovered in foro Ecclesiastico, in the Spiritual Court: It is otherwise of Tenure by Divine Service, which, although it be Spiritual, yet being certain, shall be recovered in foro seculari, and the performance or non-performance thereof shall (upon a distress and Avowry) be tried by a jury of 12 men, etc. Co. Inst. pars 1. 46. a. 2. 25 The Termor for years (before the Statutes of Gloucester 6 E. 1. cap. 11. and 21 H. 8. cap. 15. The Term●● could not f●fie. ) was not able by the Common Law to falsify a covenous recovery of the Freehold; because he could not have the thing, that was recovered, viz. the Fréehold. Co. l. 8. 118. a. 3. 26 The Statute of Westm. 2. cap. 21. Cessavit. gives a Writ of Cessavit haeredi petenti super haeredem tenementum, & super eos, quibus alienatum fuerit hujusmodi tenementum: yet in 33 E. 3. Tit. Cessavit 42, in Doct. Bo●hams case. where there were two Coparceners Lords, and Tenant by Fealty and certain rent, the one Coparcener hath issue and dies, in this case the Aunt and Niece could not join in a Cessavit, because the Niece (though heir to her mother) could not (in this case) have a Cessavit, in regard she could not have the effect of it, viz. the recovery of the arrearages accrued in her Mother's time, for that they did not belong unto her, but unto her Mother's Executor, etc. Divorce. 27 Causa frigiditatis naturalis & perpetuae, Dyer. 178. 40. 2. Eliz. is held a sufficient ground of divorce; whereupon such a Sentence was given, H. 2. Eliz. in the Court of Audience betwixt Sabel and his wife at the suit of the wife; And such another about the same time, betwixt Bury and his wife at the suit also of the wife: who afterwards married Cary and had issue, Bury also married another woman and had issue, and therefore the Doctors of the Civil Law would have had them cohabit again together, because (as they said) Sancta Ecclesia decepta fuit in priori judicio. 36 Non officit conatus, nisi sequatur effectus. Inheritances depend not upon uncertain words. 1 In Sir Anthony Mildmayes case in the 6 Report (which was a resolution against perpetuities) it was resolved, that these words (Attempt, Co. l. 6. 42. a. 3. Sir Anthony Mildmayes case. etc.) or (go about, etc.) or, (enter into communication, etc.) are words uncertain and void, and God defend, that Inheritances and Estates should depend upon such incertainties; for it is true, Quòd misera est servitus, ubi jus est vagum, & quòd non definitur in jure, quid sit conatus, nec quid sit, a going about or communication: And the Rule of Law decides this point, Non-officit conatus, nisi sequatur effectus. Resistance must be by some overt act. 2 If the Testator devise lands to I. S. for 60 years; Co. l. 8. 91. 2. 4. Frances case. if he shall so long live, provided if I. S. molest or hinder the Executor, so that he cannot take and enjoy the goods of the Testator, that then his estate shall cease; In this case a bare denial by Parol is not a breach of the Proviso, but here ought to be some act done; as after request made by the Executor, to shut the door against him, or to put his hands upon him, and to resist him, or the like, so that by reason of some such open act he doth not permit the Executor to carry away the goods according to the Proviso. And Cook, Chief justice said, that in this case, it is not sufficient to say, Quòd praedictus Johannes non praemisit praedict. execut. etc. quietè habere, removere & capere praedict. bona, or quòd praedict. Johannes impedivit illum, etc. but he ought to allege a special breach by reason of some special disturbance or interruption in that case by some overt act, unto which the other party may make a certain answer, and upon which a certain issue may be taken, whereof the jury may inquire, and the Court may judge, whether it were a sufficient breach of the Proviso or not. 'Cause of disfranchisement cannot be without some overt act. 3 Sir James Bag being a Capital Burgess of the Town of Plymouth behaved himself contemptuously towards the Major there, Co. l. 11. 98. a. 3. Sir James Baggs case. and said unto him, You are a cozening knave, come kiss mine, etc. and persuaded A. and B. Vintners, that they should not pay Wine-waight, etc. whereupon the Major removed him; but upon complaint in the King's Bench, a Writ of Restitution was awarded to restore him; upon this ground (principally) for that the cause of a disfranchisement in this case ought to be founded upon some act, which he shall do against the duty of a Citizen or Burgess, and to the prejudice of the Commonwealth of the City or Burrow, whereof he is Citizen or Burgess, and against his oath which he took, when he was made freeman there: but words of contempt, or contra bonos mores, albeit they be against the chief Officers, and his brethren, may be good causes to punish him, and to commit him, till he put in sureties for the good behaviour, but not to disfranchise him: So likewise, if he intent or endeavour of himself, or conspire with others to do any thing against the duty & trust of his freedom, and to the prejudice of the Commonwealth of the City or Burrow, etc. but putteth it not in execution, this may be good cause to punish him, as aforesaid; but not to disfranchise him: For, Non officit conatus nisi sequatur effectus, & Non officit affectus, nisi sequatur effectus. And the reason of this is, because when a man is a Freeman of a City or Burrow, he hath Franktenement in his freedom for his life, and together with others (in their politic capacity) hath inheritance in the lands of the Corporation, & interest also in their goods, and peradventure it may concern his trade and means of life, and his credit and estimation; And therefore the matter, which shall be cause of his disfranchisement, aught to be some act or deed done, and not a bare endeavour or enterprise, whereof he may repent before the execution of it, and whereupon no prejudice doth ensue. Co. ibid. b. 3. 4 Those which have offices of trust and confidence, Forfeiture of a Park cann●● be without some overt act. shall not forfeit them by bare endeavours or intentions of doing acts, although they declare them by express words, except the Act itself be put in execution; As if the keeper of a Park shall say, I will kill all the Game within my custody, or, I will cut down so many trees within the Park, etc. but in the mean time kills none of the Game, nor fells any of the trees, this is no forfeiture, etc. Co. ibid. b. 4. 5 If a Bishop, , Parson, etc. cut down all the trees, Deprivation cannot be without so●e overt act. etc. this is a good cause of deprivation, and with this accords 2 H. 4. 3. So if a Prior alien the land, which he hath in jure domus suae, this is a cause of deprivation, as it appears, 9 E. 4. 34. So likewise if a Prior suffer dilapidations, that is a sufficient cause to deprive him, as it was holden 29 E. 3. 16. 20 H. 6. 36. Nevertheless if in these or the like cases there be but an endeavour or enterprise without doing any such act, there can be no cause of deprivation; for in such cases, Voluntas non reputatur pro facto. 37 Acta exteriora indicant interiora Secreta. Co. Inst. pars 1. 257. b. 1. 10 H. 7, 12. 1 One may commit a forcible entry in respect of the armour or weapons, which he hath, that are not usually born, Forcible en●● what, and when. or if he do use violence and threats to the terror of another: And if three or four go to make a forcible entry, albeit one alone use the violence, all are guilty of force: So also if the Master cometh with a greater number of servants, then usually attend on him, it is a forcible entry. Co. l. 8. 146. a. 4. The six Carpenters case. 2 When entry, authority, or licence is given to any by the Law, Upon entry by Law, if tre●passe be committed, he is a trespasser ab initio. and he misuseth it, he shall be a trespasser ab initio; but where entry, authority, or licence is given by the party, and he misuseth it, there he shall be punished for the misdeed; but shall not be a trespasser ab initio: And the reason of this diversity is, because in case of general authority, or licence given by the Law, the Law judgeth by the act subsequent, quo animo, or to what intent he entered; for, Acta exteriora, etc. but when the party gives authority or licence himself to do any thing, he can for no cause subsequent punish that, which is done by his own licence and authority: And therefore when as the Law gives authority to enter into an Inn or Tavern, to the Lord to distrain, to the owner of the soil to distrain damage pheasant, to the Reversioner, to see whether wast be committed, to the Commoner to enter into the land to see his Cattles or the like (vide 12 E. 4. 8. b. 21 E. 4. 19 b. 5 H. 7. 11. 9 H. 6. 29. b. 11 H. 4. 75. b. 3 H. 7. 15. 28 H. 6. 5.) Here, if he that enters into the Inn or Tavern commit trespass, as if he carry any thing away from thence; or if the Lord, that distrains for rent, or the owner for damage fesant weary, or kill the distress, or if he that enters to view the waist, do hurt to the houses, or stays there all night, or if the Commoner cut down a tree, etc. In these and the like cases the Law will adjudge, that he entered for that purpose; and therefore in as much as the Overt act, which he doth, is a trespass, he shall be adjudged a trespasser ab initio, as it appears in all the aforesaid Books. 3 If a Purveyor take my Cattle for the King's household by force of his Commission, A purveyor a trespasser. that is lawful; but if he sell them in the Market, Co. ibid. b. 3. then is the first taking of them forcious, and with this accords, 18 H. 6. 19 b. The use of a recovery may be declaimed afterwards. 4 In many cases an Act subsequent shall declare the intention of a general Act precedent, as Peter Vavasor, octabis Hill. suffers a recovery, Co. l. 9 11. a. 3 Dowmans' case. and by indenture made 15 of February, between him and the recoverors' limits the uses and dies, Dowman and his wife, the daughter and heir of Peter, etc. brings an Assize against him, unto whom the use was limited, but could not recover, because the subsequent Indenture did sufficiently declare the intention of the parties at the time of the precedent recovery: So if Tenant in tail hath issue two daughters, and die, and the eldest enter into the whole, and after thereof make feoffment with warranty, this is lineal warranty for the one moiety, and collateral for the other; for the feoffment subsequent doth declare the intention of the general entry, viz. that it was only for herself, or otherwise it would be warranty, which should begin by disseisin for the one moiety; A distress sold makes it a trespass. and with this agrees Littleton, cap. Garr. fol. 160. If the Lord come upon the tenancy, and take and drive away an ox, if he impound him, the taking of him shall be adjudged as for a distress, but if he kill him, that subsequent act declareth what his intention was ab initio, and so shall he be deemed a trespasser, etc. as aforesaid, and with this agrees 12 E. 4. 8. b. 28 H. 6. 5, etc. Lord, Mesne, and Tenant distress. 5 If there be Lord, Mesne, and Tenant, Co. l. 9 22. b. 3. The case of avowry. and the Mesne pays his rents and doth his services due to the Lord, and yet the Lord will distrain the Tenant peruvail, and put his cattle into the pound for them; In this case the Mesne at the Tenant's instance ought to take out his cattle, and to put his own into the pound; and than if the Lord will not suffer the Mesne so to do, the Lord shall be deemed a trespasser ab initio; for the Lord doth not then use the cattle in the nature of a distress, etc. and with this accords 13 E. 4. 6. Intention may be adjudged murder. 6 Roper the father of Agnes, the wife of Gore, Co. l. 9 81. b. 3. Agnes Gore● case. in love to his son in law Gore, being sick, procured an Electuary of one Martin an Apothecary by the advice of Doctor Grey, into which Agnes did secretly put Ratsbane, with purpose to poison her husband, and May 18 gives part thereof to her husband, who thereupon became very sick, Roper also eat thereof, and likewise became very sick; add last of all, Martin being taxed for it, stirs it and eats it, May 21. and May 22 dies: This was adjudged murder in Agnes, albeit she intended nothing against Martin, and that peradventure the stirring of it by Martin might make it have more force to kill him: For, in this case the Law joins the murderous intention of Agnes in putting the poison into the Electuary to kill her husband, with the event, which ensued thereupon, viz. the death of Martin; for the putting of the poison into the Electuary is the cause, and the death of Martin is the event, Quia eventus est, qui ex causa sequitur, & dicuntur eventus, quia ex causis eveniunt: And the stirring of the Electuary by Martin without the putting of the poison therein by Agnes, would not have caused his death. A delivery to the party without words. 7 An actual delivery of a writing sealed to the party himself, Co. l. 9 136. b. 4. Through go●d● case. without any words at all, is a good delivery: For, in traditionibus scriptorum non quod dictum est, sed quod gestum est, inspicitur: It is otherwise when it is delivered to a stranger. Dyer, 98. b. 56. 1 Mar. 8 If two or more conspire to commit treason, as to levy war, Treason. or the like, and some of them afterwards put it in execution, this is Treason in all; and so it was at the Common Law, before the Statute of 25 Edw. 3. Dyer 192. 26. 2, 3, Eliz. 9 A. caused an Obligation to be written, and sealed it, Delivery of a Bond. which writing was to the use and behoof of B. whom he intended to marry, and upon the day of Marriage and before it, he delivers the writing to B. saying these words, This will serve, and B. presently delivers it over to the Obligée then present: This was adjudged a good Obligation; for Acta exteriora, etc. Dyer 224. 30. 5 Eliz. 10 An offence shall not be adjudged Robbery, Robbery. unless the Thief doth not only take somewhat from the person, but likewise put him in fear of death; and therefore in 5 Eliz. where a thief took 40 s. from the person of another in the high way, without putting him in fear of death, it was adjudged only bare felony, for which he had his Clergy, for by not putting him in such fear, the Court adjudged it no more; Howbeit, by the Statute of 8 Eliz. 4. Clergy is taken away from such an offender; yet that Statute being an act of Continuance, and the long Parl. being suddenly broken up, it hath been doubted, whether or no that act and all other acts of Continuance were expired for want of farther continuance; but by an Act made in 17 Car. for the farther relief of his Majesty's Army in the Northern parts, that Act and all other Acts of continuance are to continue in force, until some farther Act of Parliament be made for the continuance or discontinuance of the same. 38 Inutilis labour & sine fructu, non est effectus Legis, & contra: And therefore nothing can be given to a man, which he had before. 1 If the Lord mayhem his Villain, he shall be indicted for it at the King's suit; Littl. § 194. Co. Inst. pars 1. 126. a. 4. & 127. b. 1. The appeal●y a Villain against his Lord. but in that case he shall not have an appeal of Mayhem against his Lord, because he cannot enjoy the damages recovered in that suit; for that upon recovery and execution for the damages, the Lord may immediately take them from him again. Vide supra 35. 6. 2 In an action brought by a man or a woman, that are professed in Religion in Normandy, Co. ibid. 132. b. 2. or any other Foreign Country, Foreign profession not pleadable. the Defendant shall not plead in disability of their person; because that profession will want trial here in England: It is otherwise if they were professed in England, for that might be tried by the Certificate of the Ordinary. 3 If a man enfeoffeth another of an acre of ground with warranty, The heir and youngest son vouched together. & hath issue two sons, Co. ibid. 376. a. 3. & dieth seized of another acre of land of the nature of Borough English, and the feoffée is impleaded; Here, albeit the warranty descendeth only upon the eldest son, yet may he vouch them both, the one is heir to the warranty, and the other as heir to the land; For, if he should vouch the eldest son only, then should he not have the fruit of his warranty, viz. a recovery in value, and the youngest son only he cannot vouch, because he is not heir at the Common Law, upon whom the warranty descendeth. 4 Counts and such as be in nature of Counts (as an Avowry, wherein the Defendant is an Actor) need not to be averred; Co. ibid. 303. a, 4. Negative pleas not to b● averred. but all other pleas in the affirmative aught to be averred, thus, Et hoc parat. est verificare, etc. Howbeit pleas merely in the negative ought not to be averred, because it were in vain to aver them, in regard they cannot be proved. The issue after discontinuance cannot enter. 5 If Tenant in tail release to his Disseisor, Co ibid. 318 a 4. and bind himself and his heirs to warranty, and die, and this warranty descends upon the issue, this works a discontinuance, so that the heir cannot enter, but is put to his action; for if the issue in tail might enter, the warranty (which is so much favoured in Law) would serve for no purpose, but would be utterly destroyed; whereas being put to his action, the Disseisor may make use of his warranty by vouching the issue, and shall thereupon recover in value, if other lands descended unto him in fee-simple, etc. Vide 15. 9 It is vain to give a man what he had before. 6 It is a vain thing to give that to a man, which he had before, Littl. §. 625. Co. ibid. 335. a. 2. because nothing can operate thereupon: As if land be given in tail, saving the reversion to the Donor, and after the Tenant in tail by his deed infeoffs the Donor in fee; this is no discontinuance of the estate tail; because the reversion is not discontinued but remains in the Donor as it was before: So if Tenant for life make a lease for his own life to the Lessor, the remainder to the Lessor and a Stranger in fee; In this case, forasmuch as the limitation of the fee should work the wrong, it enureth to the Lessor as a surrender for the one moiety, and a forfeiture, as to the remainder of the stranger; for, he cannot give to the Lessor that which he had before, etc. So likewise, if there be two joint-tenants, and one of them enfeoff his companion and a stranger, and make livery to the stranger, this shall vest only in the stranger, because the livery cannot enure to his companion, who was before possessed of the land, per my, & per tout, etc. Remainder granted for the life of the Tenant in tail void. 7 If there be Tenant in tail, remainder in tail, Co. lib. 2. 51. a. 3. Sir Hugh Cholmleys' case. and the remainder in tail bargains and sells the land, and all his estate, etc. by Indenture enrolled, etc. to I. S. to have for the life of the Tenant in tail, and to his heirs males, the remainder to the Queen, etc. Here the remainder to the Queen is void, because the Grantee for the life of the Tenant in tail takes nothing; for the Grantee shall never have any benefit thereby: And the remainder to the Qu: ought to take effect when the particular estate ends; but that having no beginning can neither have ending Quod non habet principium nec habet finem: And Vana est illa potentia, quae nunquam venit in actum. Wardship of an use. 8 In a writ of Ward the case was this; before the Stat. of 27 H. 8. Dyer 12. 28 H. 8. 54. etc. a man enfeoffs I S. of Knight-service land to the use of the Feoffor and his heirs, after I. S. enfeoffs I. N. to the use of the Feoffor and his wife and the heirs of the Feoffor, the Feoffor dies (living the wife) having a son within age: In this case, the son shall be in Ward in the life of the Feme by the Stat. of 4 H. 7. as heir of Cestuy que use, because the ancient use doth still remain in the son, notwithstanding it be in some sort altered in respect of the Feme; for by the last feoffment, the son had no more conferred upon him than he had before, so as (notwithstanding the last Feoffment) there was still a reversion of use in the son, and not a new remainder; because a thing cannot be given to a man, which he hath already. Vide plus ibidem verse fine. So Cestuy que use of two acres, one holden by priority, the other by posteriority, makes a Feoffment of both to his own use, this makes no equality of tenure, Recovery. Feoffment. because the ancient use which he had before, still remains; The Lord Rosses case. 9 If one recover against me by a common recovery, Dyer 18. 105. 28 H. 8. and after I infeoff the recoveror, he shall be still seized to my use; for he shall be adjudged in by the recovery, and not by the Feoffment. 39 Lex non Praecipit inutilia: Vide M. 177. 5. Co. Inst. pars 1. 389. b. 3. Littl. § 743. 1 If Tenant in tail enfeoff his Uncle in fee, Warranty destroyed. who aliens to a stranger with warranty, to hold to him and his heirs, or to him his heirs and assigns, and the Uncle afterwards takes again an estate of the land in fee; in this case the warranty is destroyed, because it were needless for the Uncle to warrant the land to himself, and the Law will not command or suffer things that are in themselves useless and unprofitable. Co. l. 5 89. a. 4. Frosts case. 2 When a man is in the custody of the Sheriff by process of Law, A prisoner in custody needs not be formally arrested. and after another Writ is delivered unto him to take the body of him that is so in his custody, he is immediately (by judgement of Law) in his custody by force of the second Writ, albeit he make no actual arrest of him; for to what purpose should he arrest him, when he is already in his custody? Et lex non praecipit inutilia, quia inutilis labor stultus, etc. Co. l. 6. 29. b. 2. Green's case. 3 When a Parson is admitted, instituted, and inducted to a Church, An Incumbent not reading the Articles is out without sentence. and doth not read the Articles according to the Statute of 13 Eliz. 12. the Benefice is thereupon void by force of that Statute, without procuring a sentence declaratory to deprive him; for it will be needless to obtain such a sentence, when the Living is already void, and open, for the Patron to present another. Co. l. 8. 61. a 3. Beechers case. Co. lib. 8. 126. a. b. 4 In judicial process, In a Judicial writ the plaintiff shall not find pledges. the Plaintiff shall not be enjoined to find pledges de prosequendo; for in those process, although the Plaintiff be barred, nonsuited, or that the Writ abate, yet shall he not be amercied, because such process are grounded upon a judgement and record; And it is a needless and vain thing to bind the Plaintiff to find pledges in such cases, where he cannot be amercied, Vide supra 35. 20. The case of the City of London. 5 That which appears plainly to the Court, That which appears need not be averred. ought not to be averred by the party: So in the City of London's case, the Constitution there made appearing to be agreeable to, and warranted by their Charter, needed not to be so averred. So also no price of money, shall be expressed in the Writ, because it appears of itself, 46 E. 3. 16. Likewise 12 H. 4. 17. The son within age brings an Assize of Mortdancester, he ought not to aver, that it is within time of limitation; for it appears. Co. l. 10. 67. b. 4. The case of the Churchwarden of St. Saviour, etc. 6 In a special verdict concerning a Bargain and Sale, Demise, The consideration not to be found by a Jury. or the like, the jurors shall not be constrained to find the payment of the money, mentioned amongst the other considerations; for it shall be needless to find that; which is affirmed to be already paid and satisfied in time before the Grant, and is a personal consideration already executed; And this is true, as well in the King's case, as in the case of a Subject. F. N. B. 38. l. 7 Where, in a writ of right of Advowson, Parson imparsonee shall not have a writ to the Bishop. etc. the Defendant claims the same Advowson as Parson imparsonée, albeit the title be found for the Defendant, yet shall he not in that case have a Writ to the Bishop, ad admittendum Clericum: For, in construction of Law, he is already in the Benefice. F. N. B. 106. g, h. 8 If a man recover in a Praecipe quod reddat against a Tenant by false Verdict, No attaint before execution. the Tenant cannot have an attaint before execution been had against him; because in an Attaint, the judgement is, that he shall be restored, etc. and it were improper and needless to give such judgement, when the Tenant still retains the possession of the land. Note, that this is put as a quere in Fitz: but he seems rather to favour this opinion, etc. 〈◊〉 tenants 〈◊〉 need not ●verred ●nced. 9 In an action upon the Statute of 32 H. 8. 9 Pl. Co. 87. b. 3. Partridges case. against buying of pretenced Titles, if the Plaintiff showeth by his count, that neither the Defendant nor any of his Ancestors, nor any other by whom he claims, etc. were in possession of the land, etc. nor of the reversion or remainder, etc. nor received the rents or profits, etc. by the space of a year, etc. The Plaintiff need not aver the title to be pretenced; for the Statute itself maketh the right of him which hath not been so in possession, to be pretenced; and therefore to aver that, which appears plainly by the Statute itself and the Declaration, is needless and impertinent: So if it be pleaded, ●eed of ●nment. that the Lessée surrendered to the Grantée of the reversion, there is no need of pleading attornment; for attornment is included in the surrender. 40 Where the foundation faileth, all goeth to the ground, Debile fundamentum fallit opus, & contrà. ●e shall be endow 1 If a man be Tenant in fee tail general, Co. Inst. pars 1 31. b. 4. F.N.B. 149. f. and makes a Feoffment in fee, and takes back an estate to him and his heirs in fee, and then takes wife, and hath issue and dies, his wife shall not be endowed; for that her title of Dower is grounded upon the estate in fee, which her Husband had during the coverture; Now, that Fée-simple vanished by the remitter of the heir in tail, and therefore her title of Dower must needs vanish also: For, her issue hath not the land by the descent of the Fée-simple, but by force of the entail; There is the same law, where the Tenant in tail disseiseth the discontinuee, etc. ●ery void. 2 When a deed of Feoffment is void in itself, Co. ibid. 48. b. 1. if livery be made according to the form and effect of that deed, the livery is also void; As if A. by deed give land to B. to have and to hold after the death of A. to B. and his heirs; this is a void deed, because he cannot reserve to himself a particular estate, and if livery be made according to that deed, the livery is likewise void; because the livery referreth to a deed, that hath no effect in Law, and therefore cannot work, Secundam formam & effectum of that deed, etc. 〈◊〉 action of ●st gone. 3 Regularly none shall have an action of Waste, Co. ibid. 53. b. 3. unless he hath the immediate estate of inheritance, and therefore if hanging an action of Waste, an estate tail determines, and the Plaintiff becomes Tenant in tail after possibility, etc. the action of Waste is gone. acting of ●ses shall 〈◊〉 now for●the the land. 4 In ancient time, Co. ibid. 92. b. 4. amongst divers ways that lands might escheat or be forfeited to the Lords of whom they were holden, this was one, if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords, to the end the Tenants might claim the privilege of the Hospitalers, and so defend themselves against their Lords, by such erecting of Crosses they were subject to forfeit their tenancies; but now since it hath pleased God by the light of the Gospel to banish out of our Church and Commonwealth all such superstitious relics, the danger of forfeiting Lands that way is also banished. ●mage may repealed. 5 Regularly it is true which Littleton saith, Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord, he is excused for term of his life to make homage to any other Alienée or heirs of the Lord; Howbeit it faileth in this case following; A. holdeth of B. as of the Manor of Dale, whereof B. is seized in tail; B. discontinueth the estate tail, and taketh back an estate in Fée-simple; A. doth homage to B. B. dieth seized, and the Issue in tail entereth; In this case A. shall do homage again to the heir in tail of B. because he is remitted to the estate tail, and the estate in fee, that his father had (in respect whereof the homage was done) is vanished, and therefore the homage itself is also vanished; for the heir in tail is in of a new estate, in respect whereof A. ought to do a a new homage. So likewise it is, when the Tenant hath done homage, and the Manor is afterwards recovered from the Lord in a Praecipe quod reddat, etc. by a Stranger; In this case also the Tenant shall do homage again to the Stranger; because the estate of him, that received the first homage, is defeated by the recovery, etc. It is otherwise when the Manor is aliened to a Stranger, or descends to the heir without defeasance, as aforesaid, of the original estate. Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth, Where t●● ground o● action fa● all is goo● there must needs the Action itself also fail, as if an outlawed person brings an Action, the ground and cause of which Action is forfeited by the Out-lawry (as in an Action of Debt, Detinue, or the like) there the Defendant may plead the Out-lawry itself in bar of that Action, and shall thereby conclude the Plaintiff: It is otherwise in real or personal Actions, where the damages are uncertain (as in trespass of Battery, of Goods, of breaking his Close and the like) and are not forfeited by the Out-lawry, for there the Out-lawry must be pleaded in disability of the person. Co ibid. 138. a. 4. 7 Tenant in Tail of a Manor, whereunto a Villain is regardant, No mansion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villain of the Manor and dieth; Here the issue after recovery of the Manor in a Formedon against the Villain, may seize the Villain, and the bringing of that Writ in this case shall work no manumission, because at the time of the Writ brought he was no Villain, and the estate, by reason whereof he might claim the privilege of manumission, being defeated, the manumission itself is also defeated. Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden. 8 A man by Deed grants a rent of 40 s. to another out of the Manor of D. to have and perceive to him and his heirs, Rend o● land er●● and grants over by the same deed (or by another) that if the rent he behind, the Grantée shall distrain in the Manor of S. Here, both the Manors are charged, the one with the rent, the other with a distress, the one issuing out of the land, the other to be taken upon the land; And in this case if the Manor of D. be evicted by an eigne Title, all the rent is extinct, and so (by consequence) both the Manors discharged, but if the Manor of S. be only evicted, all the rent doth still remain, etc. Co. ibid. 158. a. 4. 9 If a Panel upon a Venire facias be returned, and also a Tales; Challe● and the array of the Principal is challenged, if the Triors' quash the array of the Principal, they shall not try the array of the Tales; for now it is, as if there had been no appearance at all of the Principal Panel; but if the Triors affirm the array of the Principal; then shall they also try the array of the Tales, etc. Co. ibid. 223. b. 1. & 224. a. 3. 10 If a Feoffment be made upon Condition that the Feoffée shall not alien in Mortmain, this is good, Good corons. because the Condition is backed by a Statute Law; for such Alienations are prohibited by the Statute of Mortmain: And regularly whatsoever is prohibited by Law, may be prohibited also by Condition, be it malum prohibitum or malum in se. In ancient Deeds of Feoffment in Fee, there was most commonly a clause, Quòd licitum sit donatorio, rem datam dare vel vendere, cui voluerit, exceptis viris religiosis & Judaeis. If By-lawes made in inferior Courts be barred by the Common Law in some Statute Law, or warranted by some lawful and reasonable Custom of the place, or are good for the Commonwealth; although there be but a few of the jury that make them, yet those Orders, or By-lawes will bind all the rest of the inhabitants within that jurisdiction; by reason of the firm foundation, upon which they are grounded, etc. So likewise if Tenements be given in tail, upon Condition the Tenant shall not discontinue the tail, Littl. § 362. this is a good Condition, because warranted by the Statute of Westm. 2. cap. 1, etc. Release to one having only a right, or upon grant without attornement void. 11 Of a Disseisor make a Lease for life, Co. ibid. 266. a. 1. the Disseisée may rele●se to the Lessée, and such a release shall stand good; but if the Disseisor make a Lease for years, a release by the Disseisée to such a Lessée is not good; because he hath no estate of Freehold, upon which the release may enure: Howbeit, if the Disseisor make a Lease for life, Co. ibid. 267. a. 1. the remainder to another for life; in Tail, or in Fee, a release by the Disseisee to him in remainder is good; because of the remainder of the estate that is in him, upon which the release may work: Co. ibid. a. 4. It is otherwise in the last ca●e, if the Tenant for life in possession be disseised; for then a release by the Disseisee to any of them in remainder (having but a bare right in the land) hath not good ground, upon which it may work, etc. And therefore if lands be given to a man in tail, Litl. §. 455. reserving to the Donor and his heirs a certain rent, if the Donée be disseised, and the Donor release unto the Donee all his right; albeit the rent is extinct by that release, yet is the reversion still in the Donor, because at the time of the release made the Donee had but a bare right in the land; So that if the Donee afterwards enter upon the Disseisor, although he shall hold the land discharged of the rent, yet shall he be Tenant in tail as he was before. So likewise if there be Lord, and Tenant, and the Tenant makes a Feoffment in Fee of the land, Littl. Sect. 457 but the Feoffee never becomes Tenant to the Lord, in this case a release to the Tenant is void; because at the time of the release made, the Tenant had no right at all in the land, etc. releaseth good and void. 12 If a man let his land for term of years, Lit●●. Sect. 459. Co. ibid. 270. a. 3. and the Lessor releaseth to the Lessee all his right, etc. before the Lessee entereth into the land by force of the Lease; such a release is void, because before entry he hath but interest termini, and no possession, and therefore a release, which enures by way of enlarging an estate cannot work without a possession, for before possession there is no reversion; And yet if a Tenant for twenty years in possession make a Lease to B. for five years, and B. enter; a release to the first Lessee is good; because he had an actual possession, and the possession of his Lessee is his possession; So it is if a man make a Lease for years, the remainder for years, and the first Lessee doth enter, a release to him in the remainder for years is good to enlarge his estate: Co. ibid. b. 2. But concerning a release before entry there is a diversity betwixt a Lease for life, and a Lease for years; for before the Lessee for years enter, a release made to him is not good, as v; but if a man make a Lease for life, the remainder for life, and the first Lessee dieth, a release to him in the remainder, and to his heirs is good to enlarge his estate; before he make any actual entry; because he hath an estate of a Freehold in Law in him, which may be enlarged by release before entry, etc. Release voi●. 13 If an Infant make a Lease for life, Co. ibid. 273. a. 2, 3. and the Lessee granteth over his estate with Warranty, the Infant at full age bringeth a Dum fuit infra aetatem, the Tenant voucheth the Grantor, who entereth into Warranty, the Demandant releaseth to him and his heirs; Albeit here is privity in Law, and a tenancy in supposition of Law, yet because he to whom the release is made (in rei veritate) hath no estate, it cannot enure to him by way of enlargement; for how can that release work upon an estate, that is not, or how can his estate be enlarged, that hath not any? So if a Tenanthy the courtesy grant over his estate, he is still Tenant as to an Action of Waste, Attornement, etc. and yet a release to him and his heirs cannot enure to enlarge his estate, that hath no estate at all, etc. Release for a time good for ever. 14 When a man is seized of any lands in Fee simple, Littl. Sect. 467. Co. ibid. 274. a. 3. & Littl. Sect. 473, 474. a release to him of all the right that another hath in the same lands, is good without the word heirs; because he had Fée simple at the time of the release made; Littl. §. 519, 520. and therefore a release unto him, in that case, for a day, or an hour, is a release for ever to him, and his heirs, etc. as if there be Disseisor and Disseisée, a release by the Disseisée to the Disseisor is good without the word heirs, to establish the estate to him and his heirs, etc. There is the same Law of a Confirmation. Co. ibid. 276. b. 4. 15 If the Disseisor make a Lease for life, and the Lessée maketh a Feoffment in Fee, and to Disseisée releaseth he the Feoffee, that release is good to prevent the entry of the Disseisor upon the Feoffee; because the Disseisee had power to enter upon the Feoffee before the release made: It is otherwise, where the entry of the Disseisor is not congeable, as if a man make a Lease for life, and the Lessee for life is disseised, and that Disseisor is also disseised, and he in the reversion releaseth to the second Disseisor, the first Disseisor shall enter upon the second Disseisor, and his entry is lawful, and if the lessee for life re-enter, he shall leave the reversion in the first Disseisor; and the cause is, for that the entry of the Disseisee (during the life of the Tenant for life, and by consequent) at the time of the release made was not lawful. Littl. § 475. Co ibid. 277. a. 2, 16 A man that hath a Son within age, is disseised, and die, Release to a● Abator good and bad. and after the Son being within age, the Disseisor also dies, and the land descends to his heir, and a Stranger abates, and after the Son, when he comes to full age, releaseth all his right to the Abator; In this case, the heir of the Disseisor shall not have an Assize of Mortdancester against the Abator, but shall be barred; because the Abator is armed with the right of the Son of the Disseisee by his release, and the entry of the Son was congeable, for that he was within age at the time of the descent cast: It is otherwise, where a man of full age is disseised, and a descent cast, etc. for then a release to the Abator, etc. is not good; because in that case, the entry of the Disseisee being taken away, the release of the Disseisee to the Abator wants a good foundation, upon which it may be grounded, viz. the title of entry, which in the other case it hath. Co. Inst. pars 1 295. b. 3. 17 It is said of a Confirmation, Confirmation where good 〈◊〉 bad. that it cannot strengthen a void estate: Confirmatio est nulla, ubi donum praecedens est invalidum, & ubi donatio nulla omnino, nec valebit confirmatio: For a Confirmation may make a voidale or defeasible estate good; but it cannot work upon an estate, that is void in Law. Littl. §. 521. Co. ibid. 297. a. 3. 18 If my Disseisor make a Lease for term of life, Confirmation not good. the remainder over in Fee, and I confirm the estate of him in the remainder, without any Confirmation made to the Tenant for term of life; In this case I cannot enter upon the Tenant for life, because the remainder depends upon that estate; and therefore if his remainder should be defeated, the remainder should be also defeated; and it were not reasonable, that I should by my entry upon the Tenant for life defeat the remainder against my own Confirmation; There is also the same Law and Reason, if the Disseisor had made a Lease for life reserving the reversion to himself, Co. ibid. 298. a. 1. etc. for in that case neither could I have entered upon Tenant for life, lest I should have thereby also destroyed the reversion against my own Confirmation, etc. And therefore it hath been adjudged, that if a Disseisor make a Lease for life, and after levy a Fine of the reversion, and the five years pass, so as the Disseisee is for the reversion barred, he shall not afterwards enter upon the Lessee for life; Reported by Sir John Popham Chief Justice. because then the Disseisee by entry upon the Tenant for life should also regain the reversion, which was irrecoverably lost by force of the Statute. Co. ibid. 298. a. 2. 19 It is regularly true, that when the particular estate is defeated, Remainder where defeat●ble and where not. the remainder thee by shall be also defeated, nevertheless it faileth in divers cases; Pl. Com. Colthirsts case. for where the particular estate and remainder depend upon one title, there the defeating of the particular estate is the defeating of the remainder: but where the particular estate is defeasible, & the remainder by good title, there although the particular estate be defeated, yet the remainder continues good: As if the Lessor disseise A. Lessée for life, and make a Lease to B. for the life of A. the remainder to C. in Fee, albeit A. enter and defeat the estate for life, yet the remainder to C. being once vested by good title shall not be avoided; for it were against reason, that the Lessor should have the remainder again against his own Livery; So it is also, if a Lease be made to an Infant for life, the remainder in Fee, the Infant at his full age disagrees to the estate for life, yet the remainder stands good; for that it was once vested by good title; And in both these cases, there was a particular estate at the time of the remainder created. A void remainder. 20 If the Lord grant by Deed his Seignory to A. for life, Co. abide. 310. a. 1. the remainder to B. in fee; A. dieth, and then the Tenant attorns to B. this attornement is void; because it is not according to the Grant; for then B. should have a Remainder without any particular estate to support it; and the particular estate being void for want of attornement, the Remainder, which depends upon it, is also void. Reversion void. 21 Tenant in tail makes a Lease for life to A. for the life of A. and after grants the reversion to B. in fee, the Tenant in tail dies, Co. ibid. 333. a. 2. and after that A. dies; In this case the entry of the issue in tail is lawful; because by the death of the Lessée the discontinuance is determined, and consequently the grant made of the reversion, gained upon that discontinuance, is void also. Rend, Common, etc. charged upon the land, where good or void. 22 If Tenant in tail enfeoff the heir in tail, being under age, Litl. §. 660. Co. ibid. 349. a. 1. and when the heir is at full age he chargeth the land with a Rent, Common, etc. and after the Tenant in tail dies, whereupon the heir is remitted; In this case by the remitter the grant of the Rent, Common, etc. is determined; because the Grantor had not any right of the estate in tail in him at the time of the grant, but only the estate in Fee simple gained by the Feoffment, which is wholly defeated, and the state of the land, out of which the Rent, Common, etc. issued, being defeated, the rent is defeated also: But if Tenant in tail make a Lease for life, whereby he gaineth a new reversion in fee (so long as Tenant for life liveth) and he granteth a rend charge out of the reversion, and after Tenant for life dieth, whereby the Grantor becometh Tenant in tail again, and the reversion in fee defeated; yet because the Grantor had a right in the entail in him, clothed with a defeasible Fee simple, the rend charge remaineth good against him, but not against his issue, etc. The like. 23 If the heir apparent of the Disseisée disseise the Disseisor, Co. ibid. a 3. and grant a rend charge, and then the Disseisee dieth, the Grantor shall hold it discharged; for his former estate being defeated by the remitter, the rent, which was granted out of it, is also defeated: So also if the Father disseise the Grandfather, and granteth a rend charge, and dieth, now is the entry of the Grandfather taken away; if after the Grandfather dieth, the Son is remitted, and shall avoid the charge, etc. A Discontinuance defeated as also all that depends thereupon. 24 If the Baron discontinue the land of the Feme, Litl. §. 679. Co. ibid. 357. b. 4. and afterwards the Discontinuee lets the same land to the Baron and Feme for life by Deed indented reserving rent, and for default of payment a reentry, etc. and because the rent is arreare, the Discontinuee reenters for this entry, the Baron with the Feme cannot have an Assize of Novel disseisin, because he is estopped, etc. but the Feme after the death of the Baron, shall have such an Assize against the Discontinuee; because both the reversion of the Discontinuée, and the estate for life made to the Baron and Feme being defeated by the remitter of the Feme, the conditions, and rents, and all other things annexed to, or reserved upon that estate for life, are also defeated. Littl. § 686, 687. Co. ibid. 360. a. 25 If an Abbot, Bishop or Deane, Charges upon land voidable. etc. aliens the land belonging to his house, Bishopric or Deanary, etc. without assent, etc. and after the Alienée chargeth the land; and then the Abbot, Bishop or Deane, etc. by licence resumes an estate again to him and his Successors, and after the Abbot, Bishop or Deane, etc. dies; In this case the Successor shall defeat the charge; because by his remitter he defeats the estate, out of which it was granted, etc. Littl. § 690. Co. ibid. 361. b. 3. 26 If judgement be given against Tenant in tail upon a feigned or false action, and the Tenant in tail die before execution, Tenant in tail. Feigned recovery. by which the lands descend to the Issue in tail, and then he that recovers sues a Scire facias out of the judgement to have execution thereof against the issue in tail; Here, if the issue plead to the Scire facias, and prove the recovery to be false (which was the ground of the judgement) he shall thereby bar the Demandant to have execution of that judgement: It is otherwise when the Tenant in tail voucheth and recovereth in value, etc. by reason of the intended recompense, etc. Co. ibid. 365. b. 3 366. a. 1. 380 a. 3. Littl. § 725, 726. 27 Before the Statute of 11 H. 7. 20. Warranty defeated. if a woman had been Tenant for life, the remainder or reversion to the next heir, and the woman had aliened in fee with warrany, and died, this warranty being collateral had barred the heir in remainder or reversion; howbeit in that case if the heir that had the reversion or remainder had by entry in the life of the woman avoided the estate so aliened, the warranty being annexed unto that estate, had been avoided also. Co. ibid. 385. a. 4. 28 If a man make a gift in tail at this day, Warranty ●●tinct. and warrant the land to him, his heirs and assigns, and after the Donée make a feoffment and dieth without issue, the warranty is expired, as to any voucher or rebater; for that the estate in tail, whereunto it was knit, is spent: It had been otherwise, if the Feoffment had been made before the Statute De donis conditionalibus; For then both the Donée and Feoffée had a fée-simple: And so are our Books to be intended in this and the like cases. Co. l. 3. 62. 63. Lincoln College case, & l. 10. 96. b. Seymors case. Littl. sect. 741. Co. ibid. 389. a. 3. 29 If Tenant in tail discontinue the tail in fee, The like and the Discontinuée is disseised, and the brother of the Tenant in tail releaseth by his deed to the Disseisor all his right, etc. with warranty in fee, and dieth without issue, and the Tenant in tail hath issue and die; Now is the issue barred of his action by force of the Collateral warranty descended upon him; but if afterwards the Discontinuée enter upon the Disseisor, then may the heir in tail well have his action of Formedon, etc. because the warranty is defeated; for when the estate, whereunto a warranty is annexed, is defeated, (although it be by a mere stranger, as in the case abovesaid) the warranty itself is also defeated: Sublato principali tollitur adjunctum, Littl. sect. 74●. etc. So likewise if the Discontinuée make feoffment in fee, reserving rend, and upon default, etc. a reentry, etc. and a collateral warranty of an Ancestor is made unto the Feoffee upon condition, etc. which Ancestor dies without issue; In this case also, if the Discontinuee by entry for the Condition broken, defeat the estate of the Feoffee, the warranty is also defeated, and the issue may bring his Formedon as before. Finch 14. Co. ib. 30. a. 1. Co. lib. 8. 34. Pains case. 30 If a woman Tenant in tail general taketh an husband and hath issue, which issue dieth, and the wife dieth without any other issue, Tenant by 〈◊〉 Courtesy. yet the husband shall be Tenant by the Courtesy, albeit the estate tail be determined, because he was entitled to be Tenant per legem Angliae, before the estate tail was spent, and for that the Land itself remaineth. But if a woman make a gift in tail, and reserve a rent to her and to her heirs, and after taketh husband and hath issue, and the Donee dieth without issue, Rend extinct and newly. the wife also dieth; In this case, the husband shall not be Tenant by the courtesy of the Rent; for that the Rent newly reserved is by the act of God determined, and no estate thereof remaineth: Howbeit, if a man be seized in fee of a Rent, and maketh a gift in tail general to a woman, she taketh husband, and hath issue, the issue dieth, the wife dieth without any other issue, he shall be Tenant by the Courtesy of the Rent, because the Rent remaineth, etc. A lease for years determined. 31 A. Lessee for the life of B. makes a lease for years by deed indented, and after purchaseth the reversion in fee, B. dieth; Co. Inst. pars 1 47. b. 4. In this case A. shall avoid his own lease, although it be by deed indented; for he may confess and avoid the lease, which took effect in point of interest, and determined by the death of B. because the estate which A. had in the land for the life of B. (out of which the lease for years was derived) being determined, the lease for years itself must needs also determine. Leases for years. 32 If a man take a lease for years of his own land by deed indented, the estoppel in this case doth not continue after the term ended; Co. bid. M. 31, 32 Eliz. London's case. because as by the making of the lease the Estoppel doth grow, so (consequently) by the end of the lease, An estoppel determined. the Estoppel is determined; For, that part of the Indenture, which before belonged to the Lessee, doth after the term ended, belong to the Lessor, which should not be, if the Estoppel continued. 38 H. 6. 24. 30 E. 3. 21. Vide 19 4. Warranty may be granted & increase upon an estate for life, otherwise for years. Accruer. 33 A man letteth Lands for life upon Condition, to have fee, Co. ibid. 37 8. a. 4. and warranteth the land in Forma praedicta, afterwards the Lessée performs the Condition, whereby the Lessee hath fee; In this case the warranty shall extend, and increase according to the estate: And so it is also, albeit the Lessor had died before the performance of the Condition; for then also the warranty shall rise and increase according to the estate; and yet the Lessor himself was never bound to the warranty, but it hath relation from the first Livery: And the reason of this is, because a warranty being a Covenant real executory, may extend to an estate in futuro having an estate whereupon it may work in the beginning: But if a man grant a Seignory for years upon Condition, to have fee with a warranty in forma praedicta, and after the condition is performed, this shall not extend to the fee; because the first estate was but for years, which was not capable of a warranty; And so it is, if a man make a lease for years, the remainder in fee, and warrant the land in forma praedicta, he in the remainder cannot take benefit of the warranty, because he is not party to the deed, and immediately he cannot take, if he were party to the deed, because he is named after the Habendum, and the estate for years is not capable of a warranty, etc. Remainder grants Rend charge voidable. 34 A. is Tenant in tail, the remainder to B. in tail, Co. lib. 1. 62. b. 4. Caples case. B. grants a rend charge issuing out of the land to C. and his heirs, A. suffers a common recovery and dies without issue; In this case C. shall not have the rent, because the remainder of B. being defeated by the recovery, the estate of his Grantee in the rent is also defeated. A remainder must vest, either during the particular estate, or eo instant that it determines. 35 A. seized of land holden in Socage deviseth it to D. for life, and after to the next heir male of B. B. hath issue C. A. dies, Co. lib. 1. 66. b. 4. Archers case, per tot. Curiam. B. enfeoffs D. with warranty; In this case, by the feoffment of the Tenant for life, the remainder is destroyed; for every contingent remainder ought to rest, either during the particular estate, or at lest eo instant, that it determines; because if the particular estate which should support the remainder, be once determined in Deed or in Law, before the contingency fall, the remainder itself must needs be also determined and void; Here therefore, in as much as by the feoffment of B. his estate for life was determined by a condition in Law annexed unto it, and cannot possibly be afterwards revived, for this cause the contingent remainder is destroyed as aforesaid, against the opinion of Gascoigne, 7 H. 4. 23. b. Co. lib. 1. 135. a. 4. Chudleys' case. 36 A. grants land to B. to the use of B. for the life of C. the remainder to the heirs male of C. the remainder to the next heirs of A. B. makes a feoffment to C. and his heirs; Here, by that feoffment, The like. the estate for life is destroyed; and by consequent the remainders which depend upon it, are destroyed also; for by the feoffment of the Tenant for life, title of Entry was given for the forfeiture, and at that time he in the next future remainder was not in esse to take it; and therefore the remainders in futuro by this matter ex post facto were utterly destroyed & made void: So if Tenant for life be, the remainder to the right heirs of I. S. If in this case Tenant for life make feoffment in fee during the life of I. S. the remainder is destroyed; for otherwise there should be a remainder without a particular estate, which cannot be. Co. ibid. b. 3. 11 R. 2. Detinue 46. 37 A gift in tail was made to A. C. the remainder to the right heirs of A. S. the Donee makes feoffment to B. in fee, and after A. S. dies, The like. the right heir of A. S. shall never have that remainder; for the estate of the Land was by the feoffment of the Tenant in tail devested and discontinued, and all the estates vested in the Feoffee, neither was there any particular Estate either in esse, or in right to support the remainder when it fell, etc. Co. l. 2. 52. a. 4. Sir Hugh Cholmleys' case. 38 If a man make a gift in tail, the remainder in fee, The like. he in the remainder grants his remainder to another for life, the remainder to the King in fee, upon condition that if he pay or tender 10 l. at the Rolls, etc. that then the grant shall be void: The tenant in tail suffers a recovery, and thereby destroys not only the estate tail itself, but likewise the remainder in fee, and the estate for life granted by him in the remainder, and so by consequent the remainder to the King, as also the condition, which depend upon the estate for life, etc. Co. lib. 2. 55. Bucklers case. 39 There is a diversity betwixt a grant made by the agreement of the parties, which standeth not with the rules of Law, Grant made upon a good ground & contra; Diversity. & can never by any subsequent (as by livery or attornment) be made good; & a gr●●t, which is good at the beginning, but is to have his consummation and perfection by some Ceremony subsequent: As in case of a Charter of feoffment, if the Feoffée enter before livery he is not a Disseisor; for the Charter is good, and the agreement of the parties is according to Law, and that may be made good by livery of seisin subsequent: But if lands in lease for years be granted to C. Habendum tenementa praedicta from Michaelmas next for life, and after Michaelmas the Tenant attorns; In this case the grant to C. is void, and cannot afterwards be made good by attornment, and therefore if he enter, he is made a Disseisor; for the Law will make construction upon the whole grant, and an estate of Franktenement cannot commence in futuro: And therefore observe well the difference betwixt a good beginning or foundation capable of a structure, and an evil one, which wants a foundation whereon the structure may stand, and be built, etc. Co. lib. 4. 24. a. 1. Copyhold cases. Clarke and Penyfathers' case. 40 If a Disseisor or the feoffée of a Disseisor, or any other, Admittances of copyhold. that hath a forcious or feasible estate or interest subject to the action or entry of another, holdeth Court, and maketh any voluntary grant upon the escheat or forfeiture of a Copyhold; such voluntary grant shall not bind him that right hath; for when after re-continuance of the Manor by action or entry, he shall have defeated the title of such Disseisor, etc. he shall also avoid such voluntary grants: But if such a Lord, that is in by such defeasible title, admit any of the Tenants upon surrender made to the use of another, or gives admittance to the heir upon descent, such admittances are good, because grounded upon the custom of the Manor, and therefore such acts are lawful, and quodam modo judicial, which he may be forced to do in a Court of Equity; and for that cause such admittances will bind those that right have, etc. Copyhold ●ce leased, ●e custom is destroyed. 41 If a Copyhold estate be forfeit, or escheat, Co. l. 4. 3. 1. a. 3. Frenches case. or otherwise fall into the Lords hands, if the Lord make a lease for years thereof, or for life, or any other estate by deed or without deed, or suffer if (before any new grant thereof) to be extended upon a Statute, recognizance, or the like; or if the Feme of the Lord have it assigned unto her in dower, etc. In all these cases and the like, the custom which supports the Copyhold tenure being destroyed, the tenure itself is also destroyed, so that it shall never after be granted by Copy, or holden by Copy of Court Roll; Howbeit after it is so forfeited or escheated as aforesaid, the Lord may keep it as long as he please in his hands before he makes any voluntary grant of it; and yet the Custom shall be preserved, because it is all that while demised or demisable, and so it ought to be by the Custom, etc. ●ease void ●on a void ●nsideration. 42 The King's patentée for years assigns divers parcels of the land to other several persons, still reserving to himself part thereof, Co. l. 5. 94. a. 1. Barwicks' case. and takes another lease in reversion for 21 years, the principal consideration whereof was the surrender of the old lease (whereof he had assigned divers parcels to others, as aforesaid) And after 3 years of the last lease were expired, in consideration of the surrender of the same last lease, the King grants him another of all the same land for three lives: In this case, the last grant of the lease for lives was adjudged void; because when the Patentee took the second lease, the consideration thereof was the surrender of the first lease, which could not be any good consideration, for that he had before assigned divers parcels of the land to others, and then the King was deceived in his Grant, and (by consequent) the second lease was void; Now therefore the surrender of the second lease (which was void) being the consideration of granting the last lease for lives, that last lease, being granted upon a consideration which was not valuable, must needs be void also. ●meys acmats. 43 If a Writ abate for Non-tenure of all, Co. l. 6. 10. a. 4. Spencer's case. the Demandant shall not have a new writ by Journeys accounts; because the first writ was taken out without cause or ground (33 H. 6.) but a praecipe of a Manor being abated for non-tenure of parcel, the Demandant shall have a Writ by Journeys accounts, because the Tenant is Tenant of the residue, for which the Writ is brought, and it were hard to force the Demandant to discover, in whom the estate of every parcel of the Manor stands. 4 E. 3. 159. ●dable lea● 44 When voidable leases, being void for a time, Co. l. 7. 8. a. 2. The Earl of Bedford's case. shall be ever after avoided, and when not, this difference is taken, viz. when the interest of him that makes the avoidance, is but for part of the term, so that after his interest determined, a residue of the term doth still remain; and when he, that makes the avoidance, so avoids the whole interest, that no part of the term at all doth remain after such avoidance: As if Tenant in tail of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die, his heir being under age; In this case, although the King in right of the heir may avoid those leases for his time, yet if after the King's interest determined, the heir accepts the rent, they shall be thereby made good again: But if the Patron of the Church of D. grant the prochein avoidance to another, and after (and before the Statute of 13 Eliz.) the Parson, Patron, and Ordinary had made a lease for years rendering rend, and the Parson had died, and the Grantée had presented a Clerk, who had been admitted, instituted, etc. in this case, that lease had been absolutely destroyed, and the Successor (although the Patron, that was party to the lease, present him) shall avoid it, etc. Co. l. 8. 43. b. 4. in Whittinghams' case. 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife, Deseasable 〈◊〉 states. makes feoffment by deed indented of it to certain persons upon condition, that they shall let the Land again unto the Baron and Feme for their lives, with divers remainders over in tail, the remainder to the right heirs of the Baron: and after the Baron dies, the Feoffées let the Land to the Feme for life, the remainders over in tail, the remainder to the right heirs of the Feme, whereas it should have been to the right heirs of the Baron; In this case, when the heir of the Baron enters for the condition broken, by his entry the feoffment that made the discontinuance, is defeated, and so by consequence the discontinuance itself is defeated also, so that the Feme may enter, and shall be in as of her former estate. Co. l. 8. 75. a. 3. in the Lord Staffords case. per Coke chief justice. 46 When one estate is to increase upon another estate by force of a condition precedent, the first estate ought to be permanent, Estates by accruer. which may serve as a firm foundation, whereon to build the future estate, and not removable at the will of the Grantor or Lessor: And therefore if a man grant an Advowson to another at will, upon condition that if he do such an act, he shall have fee; In this case, the estate at will is no such foundation as the Law requires to support the increase of an estate of Franktenement or Inheritance; for the Grantor may determine his will before the performance of the condition, and so avoid his own grant, and a Lease at Will cannot support a remainder over; So likewise if a man grant an Advowson, Rent, etc. for years upon condition, if the Lessée within a year pay 10 s. he shall have for life; and if he pay 20 s. within another year after he shall have fee, the Lessée performs both conditions, yet shall he have but for life; for the estate for life at the time of the Grant was but in contingency, which is no foundation upon which a greater estate may increase; because a possibility cannot increase upon a possibility, and the estate of Fee-simple cannot increase upon the estate for years, for that is drowned by the accession of the estate for life. Co. l. 8. 142. b. 1. in Doctor Druries' case. 47 If a man hath judgement in a Quare Imepedit, Quare I●●dit. Error. and hath a Writ to the Bishop, and the Bishop refuseth to admit his Clerk; Here the Plaintiff upon this collateral matter of refusal may have a Writ of Quare non admisit; but if the Defendant reverse the judgement by a Writ of Error, and after the Plaintiff in the Quare Impedit brings his Quare non admisit, the Defendant may plead no such record, and so bar the Plaintiff of bringing that Writ (Vide 26 E. 3. fol. 75. per Wilby and Hill.) In like manner, Execution. Error. Escape. if A. be taken by the Sheriff in execution at the suit of B. upon an erroneous judgement, and after make an escape, and after the judgement is reversed by a Writ of Error, the action upon the escape is lost, etc. Ibid. the principal case. 48 If the return of an Exigent be erroneous, Exigent ●●neous. the Outlawry which is grounded thereupon, is erroneous also; because the Writ of Exigent is the warrant by which they proceed to the Outlawry. Vide Proctors case, 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. & 12. 49 One that had cause of privilege in Banco, is arrested in London, Privilege Superseded and delivers a Supersedias; notwithstanding which, the Recorder gives judgement, and he is taken in execution, and is thereupon removed in Banco by a Corpus cum causa; And here, because after the Supersedeas delivered, there was a Nullity in the proceeding and judgement, the Court (without Writ of Error) awarded, that he should be discharged of the Execution, etc. Ibid. 143. a. 1. 50 If two judgements are given, Two judgements. The first defeated. and the last depends merely upon the first, as upon his foundation, there if the first fundamental judgement be reversed by Writ of Error or Attaint, the last (which appears in the Record to depend upon it) shall be reversed also; as in Assize and Redisseisin, so of a judgement upon the original, and another judgement in a Scire facias; so also of a judgement against the Tenant, and another against a Vouchee, and the like, etc. Conusee of a Statute. 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous judgement against the Garnisee, and hath the Statute delivered unto him, Ibid. 142. b. 7 H. 6. 4●. a. the Garnisée brings a writ of Error, Garnishment. and the Conusee sues execution upon the Statute, and hath it; Here, albeit the Garnisee reverse the judgement, yet inasmuch as the Statute was executed, that execution shall not be avoided by the reversal of the judgement, because the judgement was only to have the Statute delivered, Judgement, Execution. and the Execution upon the Statute is a thing executed, not at all depending upon the judgement: And yet in this case (by the opinion of Coke Chief justice) the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela; Audita Quaerela. because the cause and ground of the Collateral Action is disproved, and annulled by the reversal of the first judgement, and the first Plaintiff restored to his first action, upon which he may have his first and due remedy. Executors have execution. The Will annulled. 52 Executors have judgement in account, Ibid. 143. b. 4. per Coke chief Justice. and for the arrearages have the Defendant in execution, and afterwards the Testament was annulled, because the Testator was an Idiot, and the Record spiritual was removed into the Chancery by Writ, and then sent into the King's Bench, where the Action was brought; And hereupon the Defendant brought an Audita quaerela, Audita Quaerela. for that the Testament was disproved, and it was resolved in the Exchequer Chamber (an. 35 H. 8.) that the Audita quaerela would well lie. A Melius Inquirend. erroneous. 53 It was found by Mandamus 2 Jac. that P. S. held the Manor of O. in Soccage of Qu: Co. l. 8. 168. a. Paris Slaughters case. Eliz. as of her Manor of N. In 7 Jac. a Melius Inquirendum was awarded (reciting the former office) to inquire, whether the Manor of O. at the time of the death of P. S. was holden of the King in Capite, etc. whereupon an office was found, that at the time of the death of P. S. the said Manor of O. was holden of Qu: Eliz. by Knight service as of her Manor of N. and that at the taking of the inquisition it was holden of the King, etc. In this case the Melius was repugnant in itself, because it was impossible for the jury to find the Manor holden of King James at the death of P. S. which was in the fourth year of Qu: Eliz. for than it must needs be holden of the Queen, King James being then King of Scotland, etc. Now therefore, albeit the jury by the Inquisition had rightly found the tenure of the Manor, and that their finding thereof in that respect was good, and according to the truth of the case; yet because it was not warranted by the Melius, which was the ground of their Inquisition, all was adjudged insufficient and void, and a new Melius inquirendum was awarded. An Idiot examined in Chancery. 54 A man that is found an Idiot from his nativity by office, Co. l. 9 31. b. 4 in the case of the Abbot of Strata Mercella. may come into the Chancery and pray to be examined, or by his friends he may pray to be brought thither, and if it be found upon examination that he is no Idiot, the office thereof found, and all the examination, which was by force of the Writ or Commission, are utterly void without any traverse, monstrance de Droit, or any other suit. Assumpsit de●ea●●d. 55 An Executrix in consideration, Co. lib. 9 94. a. 4. Will. Banes case. that the Plaintiff will forbear till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon loan, promiseth to pay it at Michaelmas, and in an Action upon the case brought against her upon that promise, pleads non assumpsit; here, the consideration of forbearance is good, because although it be no benefit to the promiser, yet is it damage to the Plaintiff: And yet in this case if (in rei veritate) the debt were not due debt, Per Coke chief Justice. or the Executrix had not assets at the time of the promise, she may give that in evidence, and shall be thereupon aided; for then (in truth) there was not any consideration, upon which the assumpsit might be grounded; because to forbear a debt, which was not due, or wherewith she was not chargeable, could be neither benefit to the Defendant, nor damage to the Plaintiff. Co. l. 9 139. a. 3. & 141. a. 4. in Beamonts' case. 7 H. 4. fol. 16. 56 Baron and Feme being Tenants in special tail, A marriage dissolved, an● so an entail grounded thereon. are divorced (viz. by such a divorce, which dissolves the marriage ab inito, and the Baron and Feme à vinculo matrimonii) in this case they have ever after but an estate for their lives, because the marriage (which was the only means whereby they might have had heirs inheritable of the estate tail) being dissolved, the estate tail itself is thereby also determined, and extinct. Co. l. 10. 76. a. 4. the case of the Marshalsea. 57 When a Court hath jurisdiction of the cause, Erroneous proceeding in Court. and proceeds inversa ordine, or erroneously; there no action will lie, either against the party that sues, or against the Officer that executes the precept or process of the Court: But when the Court hath not jurisdiction of the cause, there all the proceeding is coram non judice, and actions will lie against them without any regard of the precept or process, etc. for the rule is Judicium à non suo judice datum nullius est momenti: See the book at large. Co. l. 10. 96. a. 〈◊〉 Edw. Sey●●ors case. 24 E. 3. 28. in Caloys case. 58 Tenant in tail, Dower determined. the remainder in tail to A. the reversion in fee to himself, bargains and sells the land to B. and his heirs; Here, by the deed indented and enrolled, etc. the Bargainée hath an estate descendable to his heirs, but determinable upon the death of the Tenant in tail, and hath also the reversion in fee exepctant upon the estate in remainder in tail, and here likewise the Feme of the Bargainée will be endowed: but in this case if the Tenant in tail die, the Dower which depended upon that estate, shall determine also. Co. l. 10. 96. b. 1. Edw: Soymors case. 59 Tenant in tail, Warranty determined. the remainder in tail to A. the reversion in fee to himself, bargains and sells the land to B. and his heirs, and afterwards also levies a fine to B. & his heirs with warranty, etc. In this case, albeit A. be the next heir to the Tenant in tail, yet shall not this warranty bar his remainder; For every warranty ought to be knit and annexed to an estate, for that a warranty hath his essence by dependency upon some estate; Now in this case at the time of the fine levied, the warranty was annexed to the Fée-simple determinable upon the death of the Tenant in tail without issue, and also to the reversion in fee, but doth not extend to the estate of A. in the remainder; for that was not displaced nor devested, but did still continue in him, because A. at the time of the fine levied, and after was seized of his remainder: Now than if the warranty at the time of the creation of it were annexed to an estate, the Conusée by his Feoffment or other act cannot extend if farther than it was at the time of the creation of it; And therefore when the estate tail (unto which the warranty was annexed) is determined by the death of the Tenant in tail without issue, the warranty (which hath his essence by dependency) is also determined; because then there is no estate left to support it, etc. 30 E. 3. casu ultimo in Henry Pigot's case. Co. l. 21. 27. b. 60 In Assize before Stouffe and others in the Country, A man unl●tered not bound. the Tenant pleads feoffment of the Plaintiff to him by deed of the land in plea, to have and to hold to him and his heirs, comprehending a letter of Attorney to deliver Seisin, Warranty void, as wel● the de●d. etc. and (in truth) the Plaintiff was a lay man not lettered, and the deed with the warrant of Attorney was read unto him according to the form of an estate tail, and upon the same intent he sealed and delivered the deed with the letter of Attorney in it to deliver Seisin: In this case, the deed did not bind the man unlettered, but was adjudged void: And therefore, albeit the deed and the warrant of Attorney were two several clauses, and that the said warrant was well and truly read unto him; yet because the same warrant did depend upon the feoffment, and had relation unto the estate in fee, that warrant of Attorney was adjudged void also, etc. Warranty defeated. 61 If a man enfeoff another of land with warranty by deed, F. N. B. 135. g. if the Feoffee make feoffment over, and take back an estate in fee; Here, the estate, unto which the warranty was annexed being destroyed, the warranty itself is also destroyed, and in this case he shall not have a warrantia cartae; because he is in, of another estate. The father in by tort, the heir by remitter, the Feme not endowed. 62 If a man hath title of action to recover land, and after he enters, F. N. B. 149. f. and disseiseth the Tenant of the land, and dieth seized, by which his heir enters; here, the heir is remitted to the title that his Ancestor had, and the Feme of the Baron that so dieth seized, shall lose her dower; because that estate which the Baron had, is determined; for that was an estate of fee by tort, and the heir hath an estate of fee, which was in his Ancestor by right, etc. Feme not endowed of the rents, but of the land. 63 If a man make a gift in tail, reserving rend to him and his heirs, F. N. B. 149. g. and after the Donor taketh Feme, and dieth, and the Tenant in tail also dies without issue; Here, the Feme of the Donor shall not be endowed of the rent, because the rent is extinct; for it was reserved upon an estate tail, which is determined: But in this case, albeit the estate tail of the rent is determined, yet shall the Feme be endowed of the land; because that doth still continue, and is not determined, as is the rent. A remainder must have an estate to support it. 64 By the rule of the Law a remainder ought to have a preceding estate to support it: And if that preceding estate fail, Pl. Co. 35. a. in Colthrists case. the remainder fails also; As if a lease for life had been made to a Monk, the remainder in fee, this remainder had been void; because the Monk had no capacity to take the estate for life, and so the estate preceding, the remainder is void, and then (ex consequent) the remainder is void also. Appropriation disappropriate. Ancient Demesn restored. 65 A Church appropriated to a spiritual Corporation, 3 E. 3. 74. b. becometh disappropriate, if the Corporation be dissolved. Finch 14. 66 A dissesor of Lands in ancient Demesn, 49 E. 3. 8. the Lord confirms unto him to hold at the Common Law, the Dissesee reentreth; Now shall the land be ancient Demesn again; for the estate, whereupon the confirmation should enure, is defeated. Finch 14. Absque impetione vasti determined. 67 The privilege of Absque Impetitione vasti is annexed to the privity of the Estate, (3 E. 3. 44. per Shared and Stove) so that if the estate, Co. l. 11. 83. b. 3 Bowles case. unto which that privilege is annexed, be changed, the advantage of that privilege is lost (5 H. 5. 9 a.) And therefore if a man make a lease for years without impeachment of waist, and after confirms the land to him for life, he shall be ever after chargeable with waste, 28 H. 8. Dyer 10. b. If a lease be made to one pur altar vie, without impeachment of waist, the remainder to him for the term of his own life; Now is he punishable of waist, for the first estate, unto which the advantage of Absque impetitione vasti was annexed, is drowned and gone, and therefore that privilege is gone also: So it is likewise of a Confirmation, etc. Privilege of 〈◊〉 by the cour●●sie lost by a●●nation. 68 It was adjudged in the case of one Ewens, M. 28. Co. ibid. & 29 Eliz. that where the Tenant in tail after possibility of issue extinct granted over his estate, the Grantée was forced in a Quid juris clamat to attorn; because by the assignment that privilege was lost; And this judgement was affirmed in the Kins Bench in a Writ of Error, and with it also agrees 27 H. 6. tit. Aide in Statham. No prohibition of waist by the alienee of the heir against tenant in dower. 69 The heir at the Common Law shall have a prohibition of waist against Tenant in Dower; but if the heir grant over the reversion, Co. ibid. his Grantée shall not have it; for it appears in the Register, fol. 72. that such an Assignee in an action of Waste against Tenant in Dower shall recite the Statute of Gloucester; and then (by consequent) he shall not have prohibition of Waste at the Common Law, for than he should not recite the Statute. Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. Co. Inst. pars 1 12. b. 4. 70 If a man be seized of lands as heir of the part of his mother, Privilege 〈◊〉 by a purchase of the land. and maketh a feoffment in fee, and taketh back an estate to him and his heirs, this is a new purchase; and if he die without issue, the heirs of the part of the father shall first inherit; because the estate, unto which the property of descending to the heirs of the part of the mother, being by the change of the same estate destroyed, that property itself is also destroyed; So likewise if a man so seized makes a feoffment in fee, reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the father, etc. Co. ibid. 83. a. 2. Co. l. 4. 88 in Luthrels' case. 71 If there be Lord and Tenant by Castleguard, Castleguard gone by a●● nation. and the Lord granteth over his signory to another; In this case, the Castleguard is gone, because the Grantee hath not the Castle, which is the ground of the service: For the same reason it is, that if one holdeth of me as of my Manor of D. by fealty and suit of Court, if I grant over the services of this Tenant, the suit is gone, because the Grantée hath not the Manor: But if the Castle be wholly ruinated, Si castrum sit penitùs dirutum, yet the tenure remaineth by Knight service, and it goeth in benefit of the Tenant, as to the guarding of the Castle, until it be re-eedified; but ward and marriage belongeth unto the Lord in the mean time. Co. Inst. pars 1. 53. b. 4. 72 After Waste done, Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state, that it was in at the time of the Waste done; for if after the Wast committed, the reversion granteth it over, though he taketh back the whole estate again, yet is the Wast dispunishable; So likewise if he grant the reversion to the use of himself and his wife, and to his heirs, yet the Wast is dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered; and consequently the Action of Waste for Waste done before, (which consists in privity) is gone also. Co. l. 5 28. a. 3. in Middleton's case. 73 An Executor before probat may release an action, Executor may release befo●● probat, not the Administrator. albeit before probat he cannot bring an action; for the right of action is in him: So also if two Executors prove the Will, and the third refuse, yet he may release: It is otherwise of an Administrator; for if A. release, and after take administration, that shall not bar him; because the right of action was not in him at the time of the release made. Co. Inst. pars 1 76. b. 3. 74 If there be Lord and Tenant, A conditional wardship devested. and the Tenant maketh a feoffment in fee of Lands holden by Knight service to the use of the Feoffée and his heirs, until the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited; the Feoffée dyeth, his heir within age; Here, the Lord shall have the wardship of body and lands conditionally: For if the Feoffor pay the money, and enter into the land, the wardship of both body and lands is divested. Vide pro ibid. Dyer 155. Pl. 20 4, 5. P. M. 75 A. by Indenture enroled in Chancery in consideration of money, Use upon an use. bargains and sells to B. the Manor of D. to have and to hold to B. and his heirs, to the use of A. for life, the remainder to the use of B. in tail: Here, because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendered out of another, the limitation of the two last uses was adjudged void. Dyer 186. 1. 2, 3 Eliz. 76 A man gives land to two, habendum eis pro termino vitae eorum, Cestuy que 〈◊〉 & eorum alterius diutiùs viventis, ad usum A. B. pro termino vitae suae, without more, and the two Lessées die: In this case, it seemed to the Court of Common Pleas that the estate was determined, because the estate upon which the use was created and raised was gone, etc. But Quaere, if such an estate had been made before the Statute of 27 H. 8. of uses. Dyer 205. 7. 3, 4 Eliz. 77 A writ of extent was awarded in the time of Queen Mary, Extent. returnable Quindena Martini, and the Writ is executed in the life of the Qu: but before the return she dies, and yet it was returned, and a liberate was thereupon granted in the time of Queen Eliz. Quaere, whether or no the Extent was returned without warrant. Error. 78 In debt the judgement was reversed, Dyer 130. 58. 6 Eliz. because there was no warrant of Attorney entered, and this albeit the Writ of Error was brought the same term, the record remaining still in the breasts of the justices, and the Plaintiff had prayed entry thereof: Note, that both the first Action and the Writ of Error were brought in Banco Regis. Lease void. 79 The Provost of Wells being Parson imparsonee of the Parsonage of Winsam, leaseth the tithes for fifty years rendering rend, Dyer 239. 40. 7 Eliz. which was also confirmed by the Dean and Chapter, but not by the Patron and Ordinary, the Provostship was by Parliament united to the Deanary, cum primo vacare contigerit. The Provost dies, the Dean accepts the rent, yet the lease is not affirmed by such acceptance, for the Provosts lease was void by his death, as it is of a Parson or Prebend; It was otherwise of a Bishop, Deane, Abbot, etc. which were elective, and (before the Statute of 1 Eliz. not printed) might make discontinuance; but if the lease above had been for life, it had not been void before entry: Also the acceptance above was to no purpose, for the reversion was determined, and the name of succession altered; As if Tenant in Dower or other particular Tenant make a lease and die, and he in reversion or remainder accept the rent, this is no affirmation, because the reversion is altered. 80 Hob. 10 Doctor Leyfield against Tisdale. 41 Things incident are adhaerent to their Superiors, or Principals. Deeds, etc. in whose custody to remain. 1 A man seized of Lands in fee hath divers Charters, Deeds, Co. inst. pars 1. 6. a. 2. The Lord Buckhursts case. Co. l. 1. 1, & 2. and Evidences, and maketh a feoffment in fee either without warranty, or with warranty only against him and his heirs; In this case, the Purchaser shall have all the Charters, Deeds, and Evidences, as incident to the lands, & ratione terrae, to the end he may the better defend the land himself, having no warranty to recover in value; for the evidences are (as it were) the sinews of the land, and the Feoffor being not bound to warranty, hath no use of them: But if the Feoffor be bound to warranty, so that he is bound to render in value, then is the defence of the title at his peril; and therefore the Feoffee in that case shall have no deeds that comprehend warranty, whereof the Feoffor may take advantage: Also he shall have such Charters as may serve him to deraign the warranty paramount. Likewise he shall have all Deeds and Evidences, which are material for the maintenance of the title of the land; but other evidences, which concern the possession, and not the title of the land, as Court Rolls, etc. the Feoffee shall have them, as concomitantia & incidentia to the possession. Land on the part of the mother. 2 If a man seized ol Lands as heir of the part of his Mother, Co. Inst. pars 1. 12. b. 4. maketh a feoffment in fee, reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the Father (vide N.B. 40. 70.) but if he had made a gift in fall, or a lease for life, reserving a rent, the heir of the part of the Mother shall have the reversion, and the rent also, as incident thereunto, shall pass with it; but the heir of the part of the Mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can pass therewith. The like for service. 3 If a man had been seized of a Manor, Co. ibid. as heir on the part of his Mother, and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcel, to hold of him by rent and service, albeit they be newly created, yet for that they are parcel of the Manor, they shall with the rest of the Manor descend to the heirs of the part of the Mother, quia multa transeunt cum universitate, quae per se non transeunt. Co. ibid. 4 If a man hath a Rent-seck of the part of his Mother, The like for distress. and the Tenant of the land granteth a Distress to him and his heirs, and the Grantee dieth, the Distress shall go with the rent to the heir of the part of the Mother, as incident or appurtenant to the rent; for now is the Rent-seck become a Rent-charge. Co. ibid. 19 b. 3. 5 By the Statute of Westm. 2. The land incident to the tenant in tail. the land is as it were appropriated (or incident) to the Tenant in tail, & to the heirs of his body; and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. to a man and the heirs of his body, either to the use of another and his heirs, or to the use of himself and his heirs, this limitation of use is utterly void; for before the said Statute of 27 H. 8. he could not have executed the estate to the use: P. 14 Jac. in B. R. And so it was adjudged in an Ejectione firmae between Cooper Plaintiff, and Franklin, etc. Defendant, Co. ibid. 22. b. 3. 6 The possibility of having heirs to inherit is so inherent and incident to a man as long as he lives, A remainder to a man's right heirs is a limitation to himself. that it cannot by any act of his be severed from him during his life, except when his blood is corrupt by attainder, T. 23 Eliz. Fenwick and Mitfords' case. etc. And therefore at this day, since the Statute of 27 H. 8. cap. 10. If a man seized of lands in fee make a feoffment in fee, and departed with his whole estate, and limit the use to his daughter for life, and after her decease to the use of his son in tail, and after to the right heirs of the Feoffor: In this case, although he departed with the whole Fee-simple by the feoffment, and limited no use to himself, yet hath he a reversion; for whensoever the Ancestor takes an estate for life, and after a limitation is made to his right heirs, the right heirs shall not be purchasers: And here in this case, when the limitation is to his right heirs, and right heir he cannot have during his life (for, non est haeres viventis) the Law doth create an use in him during his life, until the future use cometh in esse, and consequently the right heirs cannot be purchasers; And there is no diversity when the Law creates the estate for life, and when the party: And if the limitation had been to the use of himself for life, and after to the use of another in tail, and after to the use of his own right heirs, the reversion of the fee had been in him, because the use of the fee continued ever in him; And the Statute doth execute the possession to the use in the same plight, quality, and degree, as the use was limited. Co. Inst. pars 1 22. b. 4. 7 If a man make a gift in tail, or a lease for life, Void remainder. the remainder to his own right heirs, this remainder is void, and he hath the reversion in him; for the Ancestor, during his life, beareth in his body (in judgement of Law) all his heirs; and therefore it is truly said, that haeres est pars antecessoris: And this appeareth in a common case; for if Land be given to a man and his heirs, all his heirs are so totally in him, that he may give the land to whom he will. Co. ib. 23. a. 4. 8 Albeit Tenant in Frankmarriage is esteemed in Law a free tenure, till the fourth degree be past, Frankmarriage. Fealty. yet the Donées in Frankmarriage shall immediately make fealty; because fealty is incident to every tenure (except Frankalmoigne) and cannot be separated from it. Co. ib. 47. a. 3. 9 If a man make a lease for years, Rend incident to the reversion. and reserve a rent to him and his Executors, the rent shall end by his death, because the heir hath the reversion, and the rent is incident to the reversion. Co. ib. 68 a. 1. 10 Fealty is incident to Homage, because it is a part of Homage, Fealty. all the words of Fealty being comprehended within Homage. Mirror cap. 3. Co. ib. 69. a. 1. 11 As fealty is incident to Homage, Fealty, Homage, etc. so Homage and Knight service are incident to Escuage, and by the grant of services Escuage passeth with the rest. ●dship of Donee in●nt to the ●or. 12 If Tenant by Knight service maketh a gift in tail, Co. ibid. 77. a. 1. in Sir Thomas Wiat's case. T. 18 Eliz. in C. Ba. per Cur. and the Donée maketh a Feoffment in fee, and the Donée dieth his heir within age, the Donor shall have the Wardship of him; because he is his Tenant in right: But if the Feoffée die, his heir within age, the Donor shall not have the Wardship of his heir, but the Lord paramount; because he is Tenant in fait to him: Neither shall the Donor avow upon the Feoffée or his heir, for the services due unto him; because he must in his Avowry show the reversion in fee to be out of him by the Feoffment, and consequently the services incident to the reversion are also out of him, but he shall avow upon the Donée and his issue: And thus are all books that seem to be at variance either answered, or reconciled. ●ure. 13 There can be no tenure without some service; Co. ibid. 92. b. 1. because the service maketh the tenure, and is incident unto it. 〈◊〉 services 〈◊〉 Fealty seeable. 14 Of Incidents there be two sorts, viz. separable and inseparable; Co. ib. 93. a. 1. Separable, as rents incident to reversions, etc. which may be severed: Inseparable, as fealty to a reversion or tenure, which cannot be severed: For, as all lands and tenements within England are holden of some Lord or other, and either mediately or immediately of the King, so to every tenure (at the least) fealty is an unseparable incident, so long as the tenure remains, and all other services, except fealty, are severable. ●ident terres, etc. 15 The tenure in Frankalmoigne is an incident to the inheritable blood of the Grantor, Co. ibid. 99 a. 4. and cannot be transferred or forfeited to any other, no more than a foundership of an house of Religion (which is intended to be in Frankalmoign) or Homage Ancestrell, or the writ of contra formam Feoffamenti, or the writ of contra formam Collationis, or any other incident to their inheritable blood: but it is no incident inseparable; for the Lord may release to the Tenant in Frankalmoigne, and then the tenure is extinct, and he shall hold of the Lord paramount by fealty, as in the case of Littleton, Sect. 139. ●stresse inci●nt to fealty. 16 If rent-service be behind, the Lord may distrain for the arreare, Co. ibid. 142. a. 3. because fealty is incident to rent-service, and where fealty, etc. is incident to the rent, there is a distress also incident thereunto. 〈◊〉 leases Fe●y insepa●le. ●nt not in●arably in●ent. ●alty inci●nt. 17 In the case of a gift in tail, lease for life, or years, Co. ibid. 143. a. 1. the fealty is an incident inseparable to the reversion, so as the Donor or Lessor cannot grant the reversion over, and save to himself the fealty or such like service; but the rent may be excepted, because the rent although it be incident to the reversion, yet is it not inseparably incident. 18 If a man maketh a gift in tail without any reservation, Co. Inst. pars 1. 143. a. 2. the Donée shall hold of the Donor by the same services that he holds over; but otherwise it is of an estate for life or years; for there if he reserveth nothing, he shall have fealty only, which is an incident inseparable to the reversion. release of ●nd except ●e said rent. 19 If there be Lord and Tenant by fealty and rent, Co. ib. 150. a. 3. & 4. and the Lord by his deed reciting the tenure, releaseth all his right in the land, saving his said rent; In this case, the signory remains, and he shall have the rent as a rend service, and also the fealty incident unto it; for in saying, the said rend, it is as much as if he had said, the rend service, whereunto fealty is incident. ●ant of ser●es, quid o●atur. 20 If the Donée hold of the Donor by fealty and certain rent, Co. ibid. 150. b. 1. and the Donor grant the services to another, and the Tenant attorne, some have said, the rent shall not pass; because the rent cannot pass but as a rend service, being granted by the name of services: And the fealty cannot pass; because it is an incident inseparable to the reversion: But it seemeth that the rent shall pass as a Rent-secke; because at the time of the grant it was a rend service in the Grantor, and therefore there be words sufficient to pass it to the Grantée; and it is not of necessity, that it shall be a Rent-service in the hands of the Grantée, etc. Co. ibid. 148. b. 3. 21 If a man maketh a lease for life of Black acre, and White acre, Accrue● Rend app●oned. reserving two shillings rend, upon condition that if the Lessée doth such an act, etc. that then he shall have fee in Black acre, the Lessée performs the condition; Here, albeit by relation he hath the fée-simple ab initio, yet shall the rent be apportioned, for that the reversion of one acre, whereunto the rent was incident, is gone from the Lessor. Littl. §. 225. Co. ib. 150. a. 22 If there Lord and Tenant, Distress indent to feal● and fealty 〈◊〉 homage. and the Tenant holds of the Lord by fealty and certain rent, and the Lord grants the rent by his deed to another, etc. reserving the fealty, and the Tenant attorns to the Grantée of the Rent; Here, such a rent in the hands of the Grantée is not Rent-service, but Rent-secke; because the power of distraining remains still with the Lord, as an incident to the fealty, which he hath reserved, etc. So it is likewise where the Tenant holds by homage, fealty, Littl. §. 226, 227. Co. ibid. 150. b. and rend, and the Lord grants the rent, reserving the Homage, etc. but in this last case, if the Lord grant away the Homage, saving unto himself the rest of the services, and the Tenant attorn, etc. In this case, the Tenant shall hold the land of the Grantée, and the Lord shall have the Rent, but as a Rent-seck, and shall not distrain for it; because the power of distraining doth (of common right) go along with the Homage and Fealty, Co. ibid. 68 a. 1. Co. ibid. 151. b. 1. Fealty being an inseparable incident to Homage, and Distress the like to Fealty, etc. 23 Incidens is a thing appertaining to, Definitio. or following another as a more wrorthy or principal. Littl. §. 228. Co. ib. 151. b. 3, 4. 24 If a man let lands to another for term of life, reserving rend, Rend sep●●●bly, fealty 〈◊〉 separably ●●cident to the reversion. if he grant the rent, etc. saving the reversion, etc. the Grantée hath the Rent as a Rent-seck, for which he cannot distrain; because the fealty (unto which the Distress is incident) doth still remain in the Grantor, as an inseparable incident to the reversion; for, albeit the rent be also incident to the reversion, yet it is separably incident, whereas Fealty is inseparably incident unto it; so that although, when the rent was first reserved, it was Rent-service, and so by consequent had Fealty and distress incident unto it, yet being now by the grant fevered from the reversion and Fealty, it hath lost the privilege of distress, which always inseparably adheres to the Fealty, etc. Nevertheless, in the said case, if the Lessor grant the reversion for life, etc. the rent shall pass therewith as incident to the reversion, and the Grantée shall then have it as a Rent-service, whereunto Distress is incident, because it then passeth by the grant of the reversion, as with the superior or principal, and that without using these words in the Grant, cum pertinentiis, etc. Co. ibid. 192. a. 3. & 214. a. 2. 25 If two joint-tenants make a lease for life, Jointenants. reserving a rent to one of them, the rent shall enure to them both, because the reversion remains in jointure; and therefore the rent, which is incident to the reversion shall also enure in jointure, etc. unless the reservation be by deed indented; for than he only to whom it is reserved, shall have it, etc. so also a surrender to one shall enure to both. Littl. 348. Co. ib. 215. b. 3. 26 If there be Lord and Tenant, Rend incider to the reveron. and the Tenant make a lease for life, reserving to him and his heirs an annual rent, etc. and after the Lessor dies without heir, so that the reversion falls to the Lord by way of Escheat, and the rent of the Tenant for life is behind; In this case, the Lord by Escheat may distrain for the Rend arrear, Escheat. albeit it was reserved to the Lessor and his heirs; for both Assignees in Deed, & Assignees in Law shall have the rent; because the rent being reserved of inheritance to him and his heirs, is incident to the reversion, and goeth with the same. Co. ibid. 223. b. 4. 27 Albeit (as Littleton saith, Sect. 362. Tenant in 〈◊〉 barred by condition, & 〈◊〉 not. ) a Tenant in tail may by condition be barred from making any alienation and discontinuance of his estate contrary to the Statute of Westm. 2. yet cannot that estate be so clogged by a condition, that the incidents which are by Law annexed unto it, may be barred or severed from it. Co. l. 6. 41. a. 1. Sir Anthony Mildmayes case & 42. b. 4. & l. 10. 38. b. 4. Marry Portingtons' case. Now the incident● to an estate tail are, 1 To be dispunishable of waste. 2 That the Feme of the Donée shall be endowed. 3 That the Baron of the Feme Donée (after issue) shall be Tenant by the Courtesy. 4 That the Tenant in tail may suffer a common recovery: And therefore if a man make a gift in tail, upon condition to restrain the estate from having any of these incidents, the condition is repugnant and void in Law: And for this cause it is, that a Collateral or lineal warranty with assets, in respect of the recompense, is not restrained by the Statute of Donis conditionalibus, no more is a common recovery in respect of the intended recompense: And Littleton there to the intent to exclude the common recovery, saith, Tiel alienation & discontinuance, joining them together. Descriptio incidentium. 28 They that have Conusance of any thing, Co. ibid. 227. b. 4. are to have Conusance also of all incidents and dependants thereupon; For, an incident is a thing necessarily depending upon another. Vide 64. Stat. 21. H. 8. 19 29 By the Statute of 21 H. 8. cap. 19 it is enacted, Co. ibid. 268. b. 1. That if the Lord shall distrain upon the Lands and Tenements holden, etc. that he may avow, etc. upon the same lands, etc. as in lands, etc. within his signory, etc. without naming of any person certain, and without making avowry upon a person certain: Here, albeit the purview of this act be general, yet all necessary incidents are to be supplied, and the scope and end of the Act to be taken; And therefore although he need not to make his avowry upon a person certain, yet he must allege seisin by the hands of some tenant certain within forty years, etc. Incident services shall not be discharged without special words. 30 If there be Lord and Tenant, Co. Inst. pars 1. 305. b. 3. and the Tenant holds of his Lord by the service of Fealty and xx s. rent, if the Lord by his Deed confirm the estate of his Tenant to hold for xii d. or for a penny, etc. In this case (saith Littleton, Sect. 538.) the Tenant is discharged of all the other services, and shall pay the Lord nothing, but what is comprised within the same confirmation: Nevertheless, these words are thus to be understood, that the Tenant shall not render any more rent or annual service to the Lord, than is contained in the Deed; but other things, notwithstanding the said confirmation, the tenant shall yield to the Lord, as relief, aid pur file marier and aid pur fair fitz. Chivalier; because these are incidents to the tenure, which do still remain, and shall not be discharged without special words, by the general words of all actions, services, and demands. The like. 31 If a man hold of me by Knight-service, Rent-suit, Co. ibid. etc. and I release to him all my right in the Seignory, excepting the Tenure by Knight-service, or confirm his estate to hold of me by Knight-service only, for all manner of services, exactions, and demands; yet shall the Lord have Ward, Marriage, Relief, Aid pur file marier, & pur fair fitz Chivalier; for these be incident to the Tenure, which doth still remain. ●he rend pas●th with the ●version, but ●t è converso. 32 Where a Lease for term of years or life, Co. ib. 317. a. 1. Littl. § 572. or a gift in tail is made to a man, reserving rend, etc. if the Lessor or the Donor grant the reversion to another, and the Tenant attornes, the rent passeth to the Grantée, albeit the Deed of the grant of the reversion make no mention of the rent, because the rent is incident to the reversion, but not è converso; for if a man in this case will grant the rent, saving the reversion, albeit the Tenant attorne, yet that rent is but a rent-secke, etc. Co. ibid. 319. a. 3. 9 H. 6. 16. The Dean of Paul's case. 20 Eliz. 33 If the Lessor disseise Tenant for life, A rent incident or not incident to a reversion. Diversity. or ouste Tenant for years, and maketh a Feoffment in fee, by this the rent is reserved; upon the Lease for life or years is not extinguished; but by the regress of the Lessée the rent is revived, because it is incident to the reversion; And so it hath been adjudged: But if a man be seized of a rent in fee, and disseise the Tenant of the land, and make a Feoffment in Fee, the Tenant reentreth, this rent is not revived: And to note a diversity between a rent incident, and a rend not incident to a reversion, etc. Littl. §. 590, 591. Co. ibid. 324. 34 If I be seized of a Manor parcel in demesne and parcel in service, and I give certain acres of land, Rend incident to the reversion. A Donor cannot be ousted of it. parcel of the demesnes to another in tail, rendering rend; in this case, if I be disseised of the Manor, and all the Tenants attorne, and pay their rents to the Disseisor, and the Tenant in tail also pay to him the rend by me reserved, and after the Disseisor dies, and his heir is in by descent; yet in this case I may well distrain the Tenant in tail and his heirs for the rent so by me reserved; because the rend reserved is incident to the reversion; and the reversion of the land given in tail is still in me notwithstanding the disseisin and descent; for as long as the Donée in tail is in possession, he preserves the reversion in the Donor, and so long as reversion continues in the Donor, so long do the rents and services (as incident thereunto) belong to the Donor; neither can the Donor be put out of his reversion, unless the Donée be put out of his possession, and if the Donee be put out of his possession, consequently is the Donor put out of his reversion: But if the Donee make a regress and regain his estate and possession, thereby doth he ipso facto revest the reversion in the Donor, etc. There is the same reason of a Lease for life or years, rendering rend, etc. 35 He that hath a remainder expectant upon an estate tail, Error may b● brought by 〈◊〉 Reversion●●, or remainder shall have a writ of Error upon a judgement given against the Tenant in tail, Co. l. 3. 3. b. 4. The Marquis of Winchester's case. albeit there was no such remainder at the Common Law: For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate tail, all actions which the Common Law gave to privies in estate, are by the same act, as Incidents, implicitly given also according to the rule of the Common Law; And therefore as those in reversion or remainder, expectant upon an estate for life, shall have a writ of Error by the Common Law, of a judgement given against Tenant for life, although they were not made parties by aid, prayer, voucher, or receipt; So also, since the Statute de donis conditionalibus, shall he have, that hath a reversion or remainder expectant upon an estate tail. Co. l. 4. 8. b. 3. Bevils' case. 36 The seisin of a superior service is seisin of all inferior services, Superior service seisin o● inferior. incident unto it, as seisin of Escuage is seisin of Homage and Fealty, and seisin of Homage is seisin of Fealty, and seisin of Rent is seisin of Fealty, where the Seignory is by Fealty and Rent. Co. l. 4. 23. a. 1. Deal & Rigdens' case. 37 Where (by the custom of a Copyhold Manor) plaints have been made in the Court of the Manor in the nature of real actions, Plaints in 〈◊〉 copyhold 〈◊〉 to bar the 〈◊〉 in tail. if a recovery in such a plaint be had against Tenant in tail (admitting that Copyhold land may be entailed) that recovery shall work a discontinuance, and shall take away the entry of the issue in tail,; for, in as much as plaints in the nature of real actions are warranted by the custom, this is an Incident, which the Law annexeth to the said custom, viz. that such a recovery shall make a discontinuance; which agrees with the reason of the principal point in Brown's case, Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36, & 37 Eliz. betwixt Clun and Peale, Rot. 1417. Copyhold severed by cu●ome, conti●ue severed, albeit surrendered together ●n one copy. 38 If a Copiholder is seized by force of several Copies, Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4ds. rend, of White acre by uj d. and of Green acre by xij d. rent, and he makes waste in part of Black acre, or makes feoffment of it, or denies the rent of it, whereupon Black acre is forfeited; This is no forfeiture of White acre, or Green acre; for although they are all in one and the same hand, yet every of them is severally holden, and to every acre there is a several condition (as an incident) implicitly annexed unto it, so that the forfeiture of one, cannot be the forfeiture of any of the other; because the several conditions in Law do ensue the several tenors: So likewise if the Copiholder of the said three acres surrender them altogether in one surrender to the use of A. 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 only that, and neither of the other; For the said Tenendum (reddendo singula singulis) continues the several tenors; In like manner, if divers several Copyholds escheat to the Lord, and he re-grant them to another, Tenendum per antiqua servitia, etc. they shall be severally holden, as they were before the Escheat, etc. Several times for several copies. 39 If a man hath several Copyhold lands holden by several services, Co. l. 4. 28. a. 1. Hubbert and hamond's case. the Lord ought to assess and demand fines severally for each parcel so severally holden; For, the Tenant may refuse to pay the fine for one parcel and forfeit it, and may pay the fines for the other; because every several tenure hath a several condition in Law (as an incident) tacitè annexed unto it; And therefore the Lord ought for every several tenure, to assess and demand a several fine. The office of Shire-clerk incident to the Sheriff's office. 40 Queen Eliz. grants to one Mitton the office of Clerk of the County Court, or the Shire-Clerk of the County of Somerset with all fees, Co. l. 4. 33. a. 3. Mittens case. etc. for term of his life, and after the Queen makes Arthur Hopton High Sheriff of the same County, who interrupts Mitton, claiming that which was granted to him, as a thing incident to his office of Sheriff, etc. And it was adjudged, that the County Court, and the entering of all the proceed in it, are so incident to the office of Sheriff, that they cannot by Letters Patents be divided from it; and albeit the said grant was made to Mitton, when the office of Sheriff was void; yet when the Queen makes a new Sheriff, he shall avoid it, etc. Exigenter incident to the chief Justice. 41 Tempore vacationis, Co. ibid. 2 El. Dy●r 175. of the office of Chief justice of the Common Bank, 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 Chief justice of the County, which the Queen could not have; And therefore the next Chief justice shall avoid it, etc. 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 Mittens 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 appear by the judgement in Parliament, Anno 14 E. 3. cap. 10. by which it is ordained, that all Gaoles of Counties shall be rejoined 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, etc. 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. Spencer's case. parcel of the Demise, the thing to be done by force of the Covenant, is quodammodo incident, and appurtenant to the thing demised, and shall run with the land, and shall also bind the Assignée, although he be not bound by express 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, unless specially named; As if the Lessée covenant to repair the houses, etc. this is parcel of the contract, and extends to the supportation of the thing demised, and therefore is quodammodo incident and annexed to the houses, and shall bind the Assignée, although he be not expressly bound by the covenant; But if the covenant be, to build a brickwall upon parcel 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 bind the Covenantor himself, and his Executors or Administrators, but shall never bind the Assignee, because the Law will never annex a covenant to a thing which hath not essence, etc. It is otherwise. Co. ibid. b. 3. if the Covenantor for himself and his Assigns covenant to do it; for then the Assigns are specially named, etc. Co. 5. 24. a. 4. The Dean 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 repair the houses during the term, 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 express 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 term sold by force of an Execution; for, in that case also, the Vendée of the term shall have an action of Covenant, as a thing incident to the land, albeit all these come to the term by act in Law, etc. So likewise if a man grant to his Lessee for years, that he shall have so many Estovers, as shall serve to repair 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 corporal, or pecuniary, etc. Co. lib. 6. 7. a. 1. Wheelers case. 46 If the King grant lands in fee, Tenendum de nobis, Fealty incident, though not named. etc. per servitium unius rosae rubae annuatim, etc. solummodo pro omnibus & omnimodis aliis servitiis, etc. 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 rend, 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, etc. Co. l. 6 70. a. 3 Sir Moyle Finches case. 47 If there be Lord and Tenant by Fealty and Rent, Seignory extinct. and the Lord disseises the Tenant of the land, and makes feoffment in fee, by this the signory is extinct; but if a man make a gift in tail, or a lease for life, etc. rendering rend, and disseise the Tenant in tail or for life, etc. and make feoffment in fee; Here, albeit the estate passeth to the Feoffée, yet when the Donée or Lessée reenters, he shall revive the rent, as an incident to the reversion: There is the same Law also of a lease for years, etc. Co. l. 7 4. b. 3. Calvin's case. 48 Ligeance is a true and faithful obedience of the subject due to his Sovereign; Allegiance 〈◊〉 Incident. And this allegiance and obedience is an incident inseparable to every Subject; for as soon as he is born, he oweth by birthright ligeance and obedience to his Sovereign. Co. l. 7. 18. a. 3. Calvin's case. 49 There be regularly (unless it be in special cases) three incidents to a Subject born: The like. 1 That the Parents be under the actual obedience of the King. 2 That the place of his birth be within the King's Dominion: And 3 The time of his birth is chief to be considered, for he cannot be a Subject borne of one Kingdom, that was born under the ligeance of a King of another Kingdom, albeit afterwards one Kingdom descend to the King of the other. Co. l. 8. 54. a. 3. Syms case. 50 If a man be seized of an house in right of his wife, Estovers incident to a house. and another grants to the Baron and his heirs to have sufficient Estovers to burn in the house; In this case the Estovers are incident and appurtenant to the house, and shall descend to the issue of the Baron and Feme: So likewise, if one hath an house of the part of the Mother, and one grant to him and his heirs competent house-boot to be burnt in the same house; Here, those Estovers are incident to the house; and therefore, albeit that was a new purchase, yet it shall go with the house to the heir of the part of the Mother. Imprisonment incident to a Fine. 51 Unto every Fine imposed in Court, Imprisonment is incident; Co. l. 8. 59 b. 3. ●eechers case. And therefore in all actions, Quare vi & armis, as Rescous, trespass, vi & armis, etc. if the Defendant upon judgement given against him, be fined, he shall also be imprisoned; For, when the judgement is, quòd defendens capiatur, that is as much to say, as quòd capiatur, quousque finem fecerit, etc. A rent incident to a reversion. 52 If a man make a lease of three acres all of equal value per annum, Co. l. 8. 79. b. 3. Wyatt Wields case. rendering 3 s. rent, and the Lessor grants the reversion of one acre, and the Tenant attorns, the Grantée shall have 12 d. rend; For, albeit there was but one lease, one reversion, and one rent, yet that rent being incident to the reversion, which was severable, shall therefore attend upon the reversion, and upon every part of it. Incidents to Corporations. 53 When a body politic is incorporated by prescription by a certain name, then to implead, or to be impleaded, to grant and purchase, Co. lib. 10. 29. b. 4. The case of Suttons Hospital. Co. lib. 11. 77. a. 3. Magdalen College case. etc. are things incident unto it. Incidents inseparable. 54 If the Donee in tail holds of the Donor by fealty, and the Donor by deed enrolled grants the fealty to the King, that grant is merely void; because fealty is an incident inseparable to the reversion, as it was holden 26 Ass. Pl. 66. So also if the founder of a College, etc. will grant his Foundership to the King by deed enrolled, that is void; because it is inseparable to the blood, as it was holden, Co. l. 11. 78. a. 3. the same case. Tempore H. 8. B. R. tit. And therefore if before the Statute of 18 Eliz. cap. 2. (which was to make good all Grants made either by or to the Queen) a grant had been made to the Queen of such inseparable incidents, as of a Foundership, or of such services of Donee in tail, as aforesaid, that Act would not have made such grants good, because such things are not grantable, etc. Estovers. 55 Estovers or wood granted to be burnt in such an house, 12 Eliz. 381. Finch 15. shall go to him that hath the house, by whatsoever title he hath it; for one is inseparably incident to the other. Fealty. 56 Lord and Tenant by Fealty and Homage, 7. E. 3. 11. the Lord releaseth his fealty; this is void, for Fealty is incident to Homage. Finch 15. An office. 57 An office of skill and diligence, 12 Eliz. 379. or an Annuity pro concilio impendendo, cannot be forfeited by attainder of Treason. Finch 15. Court Baron. Fair. 58 A Court Baron is incident to a Manor, 19 H. 8. Br. Incidents 34. and a Court of Pipowders to a Fair: And therefore one cannot grant the Manor or Fair, reserving those Courts, Finch 15. Castleguard. 59 Where one holdeth of a man to keep his Castle, 31 E. 3. Assize 441. the Lord cannot grant his Castleguard, reserving his Castle. Finch 15. Covenant incident to the ●and. 60 It hath been adjudged, Co. Inst. pars 1 384. b. 4. that where two Coparceners make partition of land, and the one made a covenant with the other, to acquit her and her heirs of a suit that issued out of the land, the Covenantee aliened; In this case, the Assignee shall have an action of Covenant, albeit he was a stranger to the Covenant, because the acquittal did run with the land, and was incident unto it, in whose hands soever it should come, 42 E. 3. per Finchden. Covenant ●●ns with the ●and. 61 A. seized of the Manor of D. whereof a Chapel was parcel, Co. ib. 385. a. 1. a Prior with the assent of his Covent covenanteth by deed indented with A. and his heirs to celebrate Divine Service in his Chapel weekly, for the Lord of the said Manor, and his servants, etc. In this case, the Assignees shall have an action of Covenant, albeit they were not named, for that the remedy by Covenant doth run with the land, to give damages to the party grieved, and is (as it were) incident and appurtenant to the Manor: But if the Covenant had been with a stranger to celebrate Divine Service in the Chapel of A. and his heirs, there the Assignee shall not have an action of Covenant; for the Covenant cannot be annexed to the Manor, because the Covenantee was not seized of the Manor. F. N. B. 138. l. 62 In some case the heir shall have an action of Detinue for Charters, albeit he hath not the land, as if I be enfeoffed with warranty, A detinue for charters. and I enfeoff another with warranty in fee; Here, my heir shall have a Writ of Detinue for the deed, by which I was enfeoffed, to the end he may have the advantage of the warranty, etc. Co. l. 7. 9 b. 1. Calvin's 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 aught to defend his Subject; And this ligeance and obedience, which that power and protection thus draweth after them cannot be local 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, etc. 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 Country again, etc. Littl. §. 366. Co. Inst. pars 1. 227. b. 4. 64 If a man seized of lands in fee lets them for life without deed, A condition incident to as estate for life. rendering rend with clause of reentry upon nonpayment of the rent, whereupon if the Lessor enter, and the Lessée bring an Assize of Novel Disseisin, the jurors may find the matter at large, and the justices ought to adjudge it for the Tenant; albeit (regularly) a condition is not valid without deed showed in Court, and that the Lessor show no deed; for they that have conusance of a thing, are to have conusance also of all incidents and dependence 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, Rend & land incident to the person. who was seized of the land, where, etc. pro consilio impendendo, the Plaintiff pleads in bar, that the Defendant was attainted of Treason and committed to the Tower, & yet the Grantor had need of Counsel, and could not have access, etc. and upon demurrer the judgement 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 signory in Chief 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 merely 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 special tenure: Also, if the King at this day make a gift in tail to hold of him in Capite, and after he grant the reversion of that land to another in fee, neither the tenure nor service pass 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 justice of the C. B. being then also dead, Queen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters' office upon Colshil, and then made Brown Chief justice of that Court: But Brown refuseth Colshil, and admits Scrogges thereunto; And in this case it was resolved by all the judges and others (save the justices of the Common Bench) that the said office did not appertain to the Qu. to grant, but only in the dispose of the Chief justice for the time being, as an inseparable incident to his person and place, and that by reason of common usage and prescription. ●ase of Demesnes. 68 A Prior makes a lease of the Demesnes of a Manor rendering rend, Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Manor; And it was adjudged, that by the name of the Manor the rent and reversion of the Demesnes passed. chattel vest●●. 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite, who dies before seizure, 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. copyholds. 1 When custom hath once created Copyholds of Inheritance, Co. l. 4. 22. a. 3. in Brownes case. and that the land shall be descendable, than the Law doth also direct the descent according to the Maxims 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. contract imports an As●umpsit. 2 Every contract executory imports in itself an Assumpsit; Co. l. 4. 94. a. 4. Slades' case. For when one agrees 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 agrees to deliver them at a day to come, and the other in consideration thereof agrees 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 itself, as well a reciprocal action upon the case, as an action of debt; And with this agrees the judgement in Reade and Northwoods' case, Pl. Co. fol. 128. exchange imports warran●● and a con●ition. 3 In every exchange rightly made, Co. l. 4. 121 a. 4. Bastard's case. this word Excambium imports in itself (tacitè) a condition, and also a warranty, the one to give reentry, the other Voucher and recompense, and all in respect of the reciprocal consideration, the one land being given in exchange for the other: but that is only 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, etc. 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 another, if the land which B. had in exchange, be evicted from him by an eigne title, B. shall enter upon the alienée of A. etc. ●edi, & con●●ss● implies warranty and 〈◊〉 covenant. 4 If a man make a feoffment by this word, Dedi, Co. l. 5. 117. a. 3. Spencer's case. which implies a warranty, the Assignée of the Feoffee shall not vouch: but if a man make a lease for years by this word Concessi or Demisi, which imports a covenant, if the Assignee of the Lessee be evicted, he shall have a writ of Covenant; For the Lessee or his Assignee hath the yearly profits of the land, which increase by labour and industry, and if he should lose the land, he should also lose his labour and cost, unless he were helped by implicit covenant. ●ant of a ●ard. 5 If the Grantée of a Ward be impleaded, Co. l. 5. 18. a. ●. Ibid. he shall vouch the Grantor; because this word Grant, in case of the grant of a Ward (being a Chattel real) imports in itself a warranty, etc. Co. l. 6. 36. b. 1. Bishop of Baths case. 6 A. being Lessee for 60 years if he should so long live, Lessee from Reversions hath inter●s● termini. the reversion in B. and his heirs, B. grants a lease to C. Habendum; cum post, sive per mortem, sursum redditionem, vel forisfacturam praedicti A. acciderit vacare, etc. for 60 years: This last lease vesteth presently in C. in point of Interest (and doth not depend in contingency) to take effect in possession at the end of the first term, if by any of these accidents the first lease shall happen to be void; For, in this case, these words (which of them soever shall first happen) are employed in Law; and the lease is not void for the uncertainty, which of them will happen first, neither hath the Lessee election to choose which of them he pleaseth; as if the first Lessee surrender, the last term takes place immediately after such surrender, etc. Co. l. 7. 34. a. 4. Nevil's case. 7 If the dignity of an Earldom had been entailed to the heirs male, A dignity forfeitable for treason befo●● 26 H. 8. 13. it might have been forfeited for Treason before the Stat. of 26 H. 8. cap. 13. by reason of a secret condition in Law annexed unto it; for Earls are created for two purposes, viz. Ad consulendum regi tempore pacis, & ad defendendum Regem & patriam tempore belli; And therefore they wear a Cap and a Robe, in token of Counsel, and are girded with a Sword, to represent them gallant Champions, and Cavaliers: Now then when such a person against his duty, & the end of his dignity commits Treason against the King, his dignity (though entailed) is forfeited by that condition tacitè annexed to his estate. Vide 32. 17. Co. lib. 7. 40. Bedels' case. 8 A man by Indenture between him and his wife of one part, Blood is a s●ficient consideration to raise an use without expressing it 〈◊〉 his second son on the second part, and his third son of the third part, in consideration of natural affection, and that the land may remain in his blood, covenants to stand seized to the use of himself for life, after to his Feme for life, after of the one moiety to one son, and of the other moiety to the other son; In this case the use accrues to the Feme, although not named in the considerations of the deed; because the express limitation of the use to her (being his wife) imports in itself a sufficient consideration, etc. and the rather because it is not repugnant to the deed: So also if I covenant, that in consideration of fatherly love and affection to my eldest son, I will stand seized to the use of my eldest son for life, or in tail, and after to the use of my second son in tail, and after to the use to such an one my cousin in fee; Here, albeit the consideration expressed in words respect only the eldest son, yet the consideration apparent in the deed, in limiting the use to my second son, or to my Cousin, is sufficient in Law to raise an use: In like manner, if I covenant to stand seized to the use of my wife, son, or cousin, this shall well raise an use without any express words of a consideration; for, in that case, sufficient consideration appears, etc. Co. lib. 11. 25. a. Henry Harpers case. Co. l. 8. 34. b. 2. Pains case. 9 At the Common Law, if lands had been given to a woman, Tenant by 〈◊〉 courtesy. and to the heirs of her body, and she had taken husband, and had issue, and the issue had died, and the Feme also had died without other issue, by which the inheritance of the land reverted to the Donor; In this case, the estate of the Feme was determined, and yet the Baron shall be Tenant by the Courtesy; for that is tacitè employed in the grant. Co. l. 8 82. a. 4. Vivyors' case. 10 A. is bound to B. upon condition to stand to and abide the award of C. In an action of Debt brought by B. against A. the Defendant pleads, that C. made not award, the Plaintiff pleads, What is to 〈◊〉 pleaded 〈◊〉 an arbitrement revo●● that the Defendant discharged C. etc. In this case the Bond is forfeit, and the Plaintiff need not aver, that C. had notice of the Countermand; for that is employed in the words of the plea, Revocavit & abrogavit omnem authoritatem, etc. because without notice it is no revocation of the authority; and therefore, if there had not been notice, than the Defendant might have taken issue, quòd non revocavit, etc. and if no notice were given to C. it would have been found for the Defendant; as if a man pleads, quòd feoffavit, dedit, or demisit pro termino vitae, that implies livery; for without livery it could not be feoffment, gift, or demise for life: And therefore there is a diversity, when two things are requisite to the performance of an act, and both things are to be ●one by the same party, as in the case of feoffment, gift, demise, revocation, countermand, etc. and when two things are requisite to be performed by several persons, as upon the grant of a reversion, attornment is not employed in it, and yet without attornment the grant hath not perfection; but inasmuch as the grant is made by one, and the attornment is to be made by another, it is not employed in the pleading of the grant; but in the other cases both things are to be done by one and the same party, etc. Bridges & Bentleys' case, 21 H. 6. 3. accord. 28 H. 6. 6. & 6 H. 7. 10. To use a manual occupation implies a ●rade. 11 James Wagoner was arrested at the suit of the Chamberlain of London, Co. lib. 8. 129. a. 2. The case of the City of London. upon the forfeiture of the pain of 5 l. for that he non existens libera persona, etc. usus est manuali occupatione de Tallow-chandler etc. And upon the return of the Habeas Corpus into the King's Bench, the Court took advisement upon that part of it, whereby it was averred, that he non existens, etc. usus est manuali occupatione de Tallow-chandler, etc. and shown not that he sold any Candles, etc. For if he made them for his own use, and sold none for gain, he might well do it, as every one is permitted to bake or brew, etc. for their own use, etc. but it seemed to be employed 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 only for his own use; For it is not properly said, that one useth a manual occupation, when he only doth it for himself, as he that brews or bakes for his own use, cannot be properly said to use the occupation of Brewer or Baker, etc. Malice praepences implied in indictments 12 If one kill a Minister of justice 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, etc. percussit, etc. without alleging any special matter; for the evidence will well maintain the Indictment, inasmuch as in this case the Law implies malice praepences: So if a Thief, which offers to to rob a true man, kills the true man, in resisting the Thief, this is murder of malice praepences; or if one kill another without any provocation, or without any malice praepences 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 the malice praepences; for malice implied by the Law, being given in evidence, is sufficient to maintain the general indictment: And so it was adjudged in Mackalleyes case, for killing Fells a Sergeant 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 johannem nuper Episcopum Sarum, etc. was void; These words nuper Episcopum, etc. 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 certain causes, if one be sued there contrary to that Statute, he may not only have a Supersedeas (in the nature of a prohibition) to cause the judge 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 expressly give any such action to the party; for, that way of relief is a benefit, which (as a consequent) is implied in every such Statute. Co. lib. 11. 76. a. 4. Magdalen College case. 15 By the Statute of 18 Eliz. cap. 2. Good con●●●●ration imp●●ed. no conveyances of the Queen are confirmed, but such as are for the satisfaction of debts, etc. 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 employed, not only by the connexion of the preamble to the purview, but also by this word (consideration) which (as in 16 Eli●. Dyer 336.) is a cause or occasion meritorious, requiring a mutual recompense in Deed 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. Monopoli●● ) that every gift or grant of the King hath this condition, either expressly or implicitly 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 freedom or liberty of a Citizen, or Burgess, which if he break, A Freeman a Corpora● he may be disinfranchised, as if he commit any act, which is against the duty and trust of his freedom, and to the prejudice of the City or Burrow, and against the Oath which he took, when he was made Freeman, these are causes of his removal. Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel, Homage Ancestrel imp● 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 tail, Warranty applied. or a lease for life rendering rend, 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 heir, that hath the reversion; for the reversion, and the rend reserved makes a Warranty in Law by the Statute of Bigamis, cap. ultimo, albeit he hath no deed of it. Fitz. ibid. h. 20 If a man grant land by these words, Dedi, concessi, Dedi implies a warranty. etc. he shall be bound to Warranty during his life (but not his heirs, unless he be thereunto especially charged by the Grantor) for these words, Dedi, concessi, etc. 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, etc. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thief, An action of the case for words. and that such a night he would have rob him to his damage, etc. And A. comes, Et defend it vim, etc. & quoad propalationem, etc. querens non fuit damnum in forma qua, etc. to which plea the Plaintiff demurred in Law, and judgement was given for him; because (by implication) the words are confessed, and no damage can be more grievous, then taking away a man's good name, and a Writ of Inquiry was awarded. 22 Vide Max. 19 Pl. 1. Dyer 41. 4. etc. 30 H. 8. 23 In a Replevin the Plaintiff is nonsuit, 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 Sheriff's hands at one time unserved; In this case, the Writ of second deliverance is a Supersedeas to the Returno habendo, by which it is employed, 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 himself to the next avoidance 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 showing the testament of the first Grantée: And in this case it seems he need not show them, because albeit the Executors never proved the testament, yet their grant of the next avoidance was good, for that it was an administration employed by Law. Debt for rent. 25 A lease for years is made of an house with divers Implements rendering rend, the Lessor enters and makes feoffment, Dyer 212. ●7. 4 Eliz. the Lessée reenters, and for rent arreare the Feoffée brings debt, and adjudged mainteinable, albeit there w●● no privity; Howbeit, the regress of the Lessée is an attornment in L●●, whereupon it seems the Law creates a privity: For, in this case, the rent was not extinct, but only suspended, until the Termor by his regress 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 judgement, that it was not showed that the Parson was in life; Howbeit, because it was averred by Implication in the Court by these words, Fuit & adhuc est seisitus, etc. 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 avoidance 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 seemed it was, because the Plaintiff alleged, 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 Maxim 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 half blood, because he personates the Mother, and therefore shall succeed the brother in the inheritance. Acceptance of Rent. 2 Tenant in tail makes a lease for forty years, reserving a rent, Co. ibid. 46. b. 1. to commence ten years after: Tenant in tail dies, the issue enters and enfeoffs A. the ten years expire, the Lessee enters; if A. accepts the rent, the lease is good, for he shall have the fame election, that the issue in tail had, either to make it good, or to avoid it, etc. 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 join in an action of Waste. Courtesy. Dower. Waste. 4 A Tenant by the Courtesy or in Dower, Co. ibid. 54. a. 1. can hold of none but of the heir, 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. 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 reentreth for the condition broken, the action of Waste shall be brought against the Grantée, and the place wasted recovered, etc. 21. Tenant at ●ill. ●aron and ●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 Husband's, 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 wife's 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, etc. 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, etc. may be Lords of a customary Manor, as well as those that have fee; for ●●●eit they be not properly seized, but possessed, yet are they Domini pro tempore, not only to make admittances, but to grant voluntary copies of ancient Copyhold 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 lawful act, and they are compellable to do it; Howbeit they cannot make voluntary grants of Copies, as aforesaid, to bind the Disseisées, etc. 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 Copy by one, Copyholds grantable by an Executor. that is not Dominus pro tempore, nor that hath any thing in the Manor; As if the Lord of a Manor by his Will in writing, deviseth that his Executors shall grant the customary Tenements of the Manor according to the custom, etc. for the payment of his debts, and dieth, the Executor having nothing in the Manor, may make grants according to the custom of the Manor. Co. ibid. 59 b. 3. 9 If the Lord of the Manor for the time being be Lessée for life, Dominus pro tempore, compellable to admit. or for years, Guardian, or any, that hath a particular interest, or Tenant at will of a Manor (all which are accounted 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 custody do end or determine, or the Will is determined, though the Lord cometh in above the lease for life or for years, the custody, or any other particular interest or tenancy at will, yet shall he be compelled to make admittance according to the surrender: And so it was holden in the Earl of Arundels' case, in 17 Eliz. See more of this Co. l. 4. in the Copyhold cases, & T●in. 1. Jac. Inter Shepland and Ridler, in Repl. in Co. Ba. the case of Guardian in soccage adjudged. Co. ib. 76. b. 1. 10 In many cases the heir shall be in ward, The Lord that have Wardship, though not dying seized. albeit the Tenant died not seized, etc. nor in the Homage of the Lord: As if the Tenant maketh a feoffment in fee upon condition, and the Feoffor dieth, after his death the condition is broken, the heir within age entereth for the condition broken; In this case the heir shall be in ward, and yet the Feoffor had no estate or right in the land at the time of his death, but only a condition, and which was broken after his decease: but because the condition restoreth the Tenant to the land in nature of a descent (for he shall be in by descent) by the same reason shall it restore the Lord to the wardship, etc. Co. ib. 89. b. 4. 11 If a stranger entereth into the lands of the Infant within age of 14 years, & taketh the profits of the same, A stranger Guardian is soccage accountable. the Infant may charge him as Guardian in Soccage: And this doth well agree with the writ of account against a Guardian in soccage; for the words be, Idem B. praefato A. rationabilem compotum suum de exitibus pervenientibus de terris & tenementis suis in N. quae tenentur in soccagio, & quorum custodiam Idem B. habuit, dum praedicta A. infra aetatem fuit, & dicitur; and true it is, that in judgement of Law he had the custody of the lands, and is called Tutor alienus, whereas the right Guardian in Soccage is called Tutor proprius; Neither is it any plea for him to deny, that he is prochein amy, but he must answer to the taking of the profits, as Littleton saith, Sect. 124. Co. ibid. 108. a. 4. 12 If one holdeth land of a common person in gross as of his person, and not of any Manor, Tenure in Capite. etc. and this signory escheateth to the King, (yea though it be by attainder of Treason) he holdeth of the person son of the King, as he held before of the person of the Subject, and not of the King in Capite; because the original tenure was not created by the King: And therefore it is directly said, that a tenure of the King in Capite is, when the land is not holden of the King, as of any Honour, Castle, Manor, etc. But when the land is holden of the King as of his Crown. Vide Dyer 44. 28. etc. 30 H. 8. & Mag. Car. cap. 31. & 25. 4. Advowson appendent. 13 An Advowson is appendent to the Manor of Dale, Co. ib. 122 a. 1. of which Manor the Manor of Sale is holden, the Manor of Sale is made parcel of the Manor of Dale by way of Escheat; In this case, the Advowson is still only appendent to the Manor of Dale. Common appendent. 14 If Common appendent be claimed to a Manor, Co. ib. 122. a. 4. yet (in rei veritate) it is appendent to the Demesnes and not to the services; and therefore if a tenancy escheat, the Lord sh●ll not increase his Common by reason of that. An Assize for ●ent after disseisin. 15 If the Tenant rescue the Distress, Co. Inst. pars 1. 160. b. 3. and after is disseised of the tenancy; yet an assize lieth against him, for the Disseisin done of the rent by the Rescous; etc. Coparcenary ●n other ●ands. 16 If one of the Parceners take Baron and die, Co. ib. 174. b. 4. etc. the Baron being Tenant by the Courtesy is compellable by a writ de partitione facienda, to make partition, and shall be jointly impleaded with the other Coparcener; for he doth continue the state of Coparcenary, as the other Parcener doth, etc. So likewise if there be two Coparceners, and one of them doth alien in fee, the Alienée and the other Coparcener are Tenants in common, and several writs of Praecipe shall be brought against them, and yet the Parcener may have a writ of partition against the Alienée at the Common Law, which is a stronger case, than the case put of Tenant by the Courtesy. The heir in Hodgepodge. 17 If the Donées in Frankmarriage die before the lands be put into Hodgepodge with the other Coparcener, Littl. §. 270. Co. ib. 178. a. the heir of the Donées may well do it. Descent shall not take away entry. 18 If a Dissesor make a lease to a man and to his heirs during the life of I. S. and the Lessée dieth, Co. ib. 239. a. 3. living I. S. this shall not take away the entry of the Disseisée; because he that died seized, had but a Frée-hold, and heirs in that case were added to prevent an occupant: For an heir in that case shall not have his age, etc. as it was adjudged in Lamb's case, P. 16 Eliz. in Co. Ba. Right left after recovery. 19 If the Disseisée disseise the heir of the Disseisor, Co. ib. 266. a. 4. albeit the heir recover the land against the Disseisée, yet shall he leave the proceeding right in the Disseisée: So if a woman that hath right of Dower disseise the heir, and he recover the land against her, yet shall he leave the right of Dower in her. Attornment. 20 If either the Grantor or the Grantée of a Seignory, rent, reversion, Co. ib. 315. a. 4. remainder, etc. die before attornment, the attornment is thereby countermanded; But albeit the Tenant of the land die, or grant over his estate to another, yet may he, that hath his estate either by descent or grant attorn at any time. Wast main●einable. 21 Regularly, when the reversion is devested, Co. ib. 356. a. 4. the Lessor cannot have an action of Waste; yet in some special cases an action of Waste shall lie, albeit the Lessor had nothing in the reversion at the time of the Waste done: As if Tenant for life make a feoffment in fee upon condition, and Waste is done, and after the Lessée re-enter for the condition broken; In this case, the Lessor shall have an action of Waste: So likewise if Lessee for life be disseised, and Waste is done, the Lessée reenters; Here also, an action of Waste shall be maintained against the Lessee, etc. 5. Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly, Warranty that gins by disseisin. when the disseisin is done immediately to the heir, that is to be bound by it; And yet if the Father be Tenant for life, the remainder to the same in fee, the father by covin and consent maketh a lease for years, to the end that the Lessee shall make a feoffment in fee, to whom the father shall release with warranty, and all this is executed accordingly, the father dieth; Here, this warranty shall not bind, albeit the Disseisin was not done immediately to the son; for the feoffment of the Lessee is a disseisin to the father, who is particeps criminis: So it is if one brother make a gift in tail to another, and the Uncle disseise the Donee, and enfeoffeth another with warranty, the Uncle dieth, and the warranty descendeth upon the Donor, and then the Donee dieth without issue: Here, albeit the Disseisin was done to the Donee, and not to the Donor, yet the warranty shall not bind the Donor: So likewise if the father, the son, and a third person be joint-tenants in fee, the father maketh a feoffment in fee of the whole with warranty, and dieth, the son dieth, the third person shall not only avoid the feoffment for his own part, but also for the part of the son, and he shall also take advantage, that (in this case) the warranty commenced by disseisin, though the disseisin was done to another, etc. Co. l. 5. 79. b. Fitzherberts' case. Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine bars a● entail in reversion. a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall bar the estate tail, but not him in the reversion or remainder, if he maketh his claim, and pursue his action within five years after the estate tail spent, etc. Howbeit if a gift be made to the eldest son, and to the heirs of his body, the remainder to the father and to the heirs of his body, the father dieth, the eldest son levieth a fine with proclamations, etc. and dieth without issue, this shall bar the second son; for, the remainder descended to the eldest, and therefore what the father might have done by force of a fine, the eldest son shall in this case also do, etc. Co. lib. 3. 84. The case of Fines. Dalison, 2 El. & 7 Eliz. 24 If the Lessor enter for the condition broken, Debt for rent after surrender, etc. or if the Lessee surrender unto the Lessor; Here, the estate and term is determined, and yet the Lessor shall have an action of debt for the arrearages due before the condition broken, or the surrender made, as appears in Fitz. N. B. 120. & 122. 30 E. 3. 7. 6 H. 7. 3. b. (contrary to the book of 32 E. 3. tit. Bar 262. which is not Law) and this is in respect of the contract betwixt the Lessor and the Lessee. Co. lib. 3. 23. b. 4. Walkers case. 25 A man may prescribe in a Watercourse leading to his Grist-mill, Prescription 〈◊〉 a Waterhouse albeit it was of late time changed from a Fulling-mill to a Grist-mil, Et vice versa, because that alteration is not of the substance of the prescription, but the Mill may be so described, to show the nature and quality of it; and (doubtless) at first he might prescribe in the Watercourse before any Mill was built. Co. l. 4. 87. a. 1. Luttrels' case. Co. ibid. 26 If a man have Estovers either by grant or prescription belonging to his house, Prescription 〈◊〉 Estovers, etc. although he altar and change the rooms and chambers of the house, as to make the Hall to be the Parlour, and the Parlour to be the Hall, and such like alteration of the quality of the house, and not of the house itself, and without making any new Chimneys, whereby the owner of the wood may suffer prejudice, or albeit he make new Chimneys, or an addition to the house, yet spend none of the Estovers in th●se new Chimneys, or in the part newly added, doth in none of these cases destroy the ancient prescription; for then many prescriptions would be destroyed: There is the same law of Conduits, Water-pipes, and the like: Also if a man have an ancient window in his Hall, and after he convert his Hall to a Parlour or any other use, yet his neighbour cannot stop it, for he can prescribe to have a light in such a part of his house. ● corporation translated en●oyes the ancient privileges. 27 If a Corporation hath Franchises and Privileges by grant or prescription, and after they are incorporate by another name, Co. ibid. b. 1. as if they were Bailiffs and Burgesses before, now they are Major and Cominalty; or Prior and Covent before, and after they are translated to a Dean and Chapter, etc. Although in these cases, the quality and name of their Corporation is changed, and especially in the case of the Prior and Covent (for of Regular, which are dead persons in the Law, they are made Secular) yet the new Corporation shall enjoy all the Franchises, Privileges, and Hereditaments which the old Corporation had, be it by grant or prescription; for no man can be prejudiced by it, etc. A stranger ●ound by a custom. 28 In debt against an Administrator upon an Obligation, Co. l. 5. 83. a. Snellings case. the Defendant pleads, that the custom of London is, that the Administrator shall be bound to pay a debt upon a simple contract, as upon an Obligation, etc. and that he had already paid I. S. etc. And in this case it was adjudged, that the Plaintiff being a stranger, was as well bound by that custom, as if he had been a Citizen. Vide 1 E. 4. 6. accord. Presentation ●o an Advowson. 29 Windsor Plaintiff hath an Advowson of two parts, Co. l. 5 102. Winsors case. the Defendant of the third, the Plaintiff presents one, the Incumbent dies, then in the time of E. 6. he presents one Parry, who in the time of Queen Mary was deprived, quia conjugatus, etc. whereupon the Defendant presents his Clerk, who 1 Eliz. was also deprived by Juell and other High Commissioners, and the first sentence adjudged void, and Parry restored, the Clerk of the Defendant dies, Parry also dies, the Defendant presents, because his Clerk was deprived, whereupon the Plaintiff demurs; And in this Quare Impedit judgement was given against the Plaintiff; for albeit the Clerk of the Defendant was Parson for the time, to all purposes, and during the first deprivation Parry was not Incumbent; yet when the second sentence came, then was Parry incumbent again by force of the first presentation, institution, and induction, and there needed no new institution, etc. And by force of the second sentence the Presentée of the Defendant was removed, and Parry restored: And therefore when Parry died, which was the last Presentée of the Plaintiff, the Defendant shall present as in his turn, and by force of the second sentence Parry was Parson in the same plight & condition that he was in upon his first presentation, notwithstanding the presentment of the other by the Defendant, etc. inferior Courts. 30 When a writ of right is directed to the Lord of a Manor, Co. l. 6. 11. a. Jentlemans' case. or his Bailiffs, or a justicies, or other Vicontiel Writs are directed to the Sheriff, etc. that shall not change the nature or jurisdiction of those Courts, as to make the Lord or Sheriff (to whom those Writs are directed) to be judges of those Courts respectively, which were not so before; but the Suitors do still remain judges thereof; Neither yet shall the direction of those Writs to the Lord or Sheriff, as aforesaid (albeit they are in themselves matter of Record) constitute the Lord or Sheriff to be judges of Record, or a Court Baron, Hundred Court, or County Court, to be Courts of Record; For upon a judgement given in any of those Courts, a writ of False judgement lies, and not a writ of Error, etc. No change by ●emise of the ●ing. 31 When the King demises his Crown to the next Successor, Co. lib. 7. 29. b. 4. Discontinuance of process, per mort de la Roygne. upon the general resummons by the King's writ (which gins thus, Mandamus vobis, quod ad sectam nostram animumque ligeorum populi nostri, etc.) the original and issue (if any be joined) is revived; for that is a full record, and aught to be entered; it is otherwise of the process before issue joined, voucher, garnishment, etc. yet they shall be also revived upon a special writ, reciting all the special proceeding: And it appears by the book of Entries, tit. Reattachment, 499. that if the Issue be joined, and the jury returned, and a day given for trial, before which day the King dies, yet by special resummons all shall be revived, for the jury was returned of record, and the record thereof was made full and perfect, etc. Co. lib. 11. 64. a. 2. Doctor Foster's case. 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church. That every person shall resort to their Parish Church, or (upon let thereof) to some other every Sunday and Holiday, etc. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict, shall forfeit twenty pound for every month they so make default, and that of the forfeitures aforesaid, the Queen, etc. shall have the two third parts, viz. the one to her own use, the other for relief of the poor, etc. and the other third part the prosecutor shall and may recover by action of debt, etc. And by the Statute of the 29 Eliz. cap. 6. it is enacted, That every such offender once convicted, shall afterwards in Easter and Michaelmas Terms, pay unto the Exchequer twenty pound for every month's absence from Church, etc. and if default be thereof made, etc. the Queen's Majesty, etc. shall and may by process out of the Exchequer seize all the offenders goods, and two parts of his lands, etc. And lastly, by the Statute of 35 Eliz. cap. 1. It is ordained, etc. that for the more speedy recovering, etc. of the forfeitures, etc. payable to the Queen, etc. by virtue of this Act, and of 23 Eliz. 1. all and every such forfeitures, etc. shall be recovered, etc. by action of debt, etc. in the King's Bench, the Common Pleas, or Exchequer, as other debts may be recovered, etc. Here albeit the Statutes of the 29 and 35. seems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned, as given to the Queen in the other two subsequent Acts: Yet the Act of the 23. remains in full force according to the tenor of the same, notwithstanding the said subsequent Acts; because those two Acts do not give the penalty to any new person, but to the same person to whom the Statute of the 23. giveth it, viz. to the Queen, etc. and they are but acts of addition (especially that of the 35.) to give a more speedy remedy, than was given by that of the 23. etc. As in a Writ of Mesne, the process at the Common Law was Distress infinite, and although the Statute of Westm. 2. cap. 9 gives a more speedy process, and in the end a Forejudger, yet the Plaintiff may take which process he will, either at the Common Law, or upon the said Statute, because both are in the affirmative. Vide ibid. many authorities accordant, etc. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament, Grant of Ward. shall not exclude another person which was authorized to do the same thing by an Act precedent. It is provided by the Statute of the 8 H. 6. cap. 16. that after office found, etc. he which found himself grieved, might (within the month) after traverse, and to take the lands and tenements to farm, and that then the Chancellor, Treasurer, and other Officer shall demise unto him to farm, until, etc. (Vide 13 E. 4. 8.) And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three months: And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards, with the advice of one of the Council to make a lease of the Wards lands, or of an Idiots, during the time that they shall remain in the King's hands: Here, albeit the last designs another person, yet doth it not utterly take away the first: For, if before any lease made by the Master of the Wards, the Chancellor and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands: So also if the Master grant them first to another, the Chancellor, Treasurer, &c. cannot demise them to the party grieved, as Stanford holds Praer. fol. 69. a. & b. where he mentioneth the rule, Leges posteriores prio●es contrarias abrogant. In 43 Ass. Pl. 9 the Statute of 13 E. 3. de Mercatoribus, which gives assize to the Tenant by Statute Merchant, taketh not away the Assize, which the Tenant of the Franktenement had before, but both may well stand together; So in 33 H. 8. Dyer 50. if it should be enacted, that the youngest son should have an appeal of the death of his father, that would not exclude the eldest son of his fuit, because there are no words of restraint, etc. ancient De●esne. 34 In a writ of right Close, if the writ of the Demandant abate, F.N.B. 19 d. and thereupon he brings a writ of false judgement in the Common Pleas, and there the judgement being reversed, the writ is awarded good, then shall the Demandant hold plea there, and a judicial writ shall issue out of that Court in nature of the protestation made in the first writ, and if the protestation were in the nature of an assize of Mortdancester, the justices shall direct a writ to the Sheriff to summon the jurors to come out of the ancient Demesne to the Common Pl. and the whole matter shall be tried and determined in that Court,: And albeit judgement be given of that land in the Common Pleas, yet shall the land still remain ancient Demesne, as it was before. presentation ●y lapse. 35 If a man present to an Advowson, and after the Incumbent dies, F.N.B. 31. ●. and the Ordinary presents by lapse another Incumbent, and after that Incumbent also dies; now may the right Patron present again, and if he be disturbed, he shall have an assize De Darrein presentment, notwithstanding those mean presentments. Disturbance 〈◊〉 present. 36 If a disturber presents to an Advowson, F. N B. 32. ●. and the Patron brings an assize of Darrein presentment, and hanging the Writ the Incumbent dies, if the disturber present again another Incumbent, and dies, yet the Patron shall have an assize of Darrein presentment upon the first disturbance by Journeys accounts against the heir of the disturber: And so if the disturber present two or three times within the six months, the true Patron shall have an assize de Darrein presentment upon the first disturbance. Presentation ●y Coparce●ers. 37 If two Coparceners make partition to present by turn, F.N.B. 34. i. albeit the one Coparcener usurp upon the other, and presents in her turn, this presentment shall not put her out of possession; but she shall have her turn, when it falls again, and shall have a Quare Impedit, or Scire facias upon the Composition (if it be upon record) if she be disturbed to present. Presentation ●y an Abbot. 38 If in the time of the vacation of an Abbey or Priory, F.N.B. 34. m. a Church happens to be void, which is of the patronage of the Abbey or Priory, and a stranger usurps and presents unto it, this usurpation shall not prejudice the Successor; but that at the next avoidance of the said Church he may present, and have a Quare Impedit: It is otherwise, when the usurpation is made in the time of his Predecessor, for that puts the succession out of possession, if the six months be past. action of Deceit. 39 If a man lose land by default in a Praecipe quod reddat, and die, F.N.B. 98. q. his heir shall have an action of Deceit, as well as the father, and shall have restitution. The like. 40 If a man have execution by default upon a recognizance in a Scire facias sued against one, and the Defendant dies, F.N.B. 98. r. his Executors shall have a Writ of Deceit, and shall be restored. 〈◊〉 warrantia ●artae. 41 If a man hath a Warrantia cartae hanging, F.N.B. 135. l. albeit the Plaintiff that hath the Action against him, who brings the Writ De warrantia cartae be nonsuited in his action, that shall not abate the Writ De warrantia cartae; For, he may have that Writ, although he had no action sued against him for the land, etc. ●ecogni●ance. ●udita quae●a. 42 Rosse was bound in a Recognizance of 1000 Marks to Pope, Pl. Co. 72. Rosse & Pope's case. and Curson, according to the Statute of the 23 H. 8. cap. 6. and after Rosse and his wife by fine give to the Conisées the fifth part of the Manor of Burton Constable and other lands in the County of York in fee; And after Pope (as Survivor) sues execution of the said Recognizance in London against Rosse, and his body was taken, and the said Rosse, supposing the said fine of those lands in the County of York would have discharged him of the recognizance, brought his A●dita quae●ela, containing the whole matter, upon which Writ and Declaration Pope demurred in Law: And in this case, it was adjudged, that the Audita quaerela would not lie, nor that the purchase (by the Conusées) of parcel of the land, that Rosse had at the time of the recognizance acknowledged, could discharge the recognizance; because the person was properly charged with it, and not the land, but in respect of the person, etc. Finch 15. 43 The custom of Gavelkind is not changed, Gavelkind Ancient Demesne. though a fine and recovery be had of the same at the Common Law; for this is a custom by reason of the land, 6 E. 6. Dyer 72. Finch 16. and therefore runneth always with the land: But otherwise it is of land in ancient Demesne, partable amongst the Males; for there the custom runneth not with the land simply, but by reason of the ancient Demesne: And therefore because the nature of the land is changed by the fine and recovery from ancient Demesne to land at the Common Law, the custom of parting it amongst the Males is also gone. F.N.B. 21. b. Finch ibid. 44 If an erroneous recovery he had of lands in Burrough English the youngest son shall have a Writ of Error, Burrough ●●glish. because the land itself goeth to him: so shall all the sons of lands in Gavelkind. 42 E. 3. 3. Finch ibid. 45 Two Coparceners make partition, Parceners. and one covenants with the other to acquit the land: Now if the Covenantée aliens his part, the Alienée shall have a writ of covenant. Co. Inst. pars 1 171. a. 2. 46 If the annual value of the land be equal at the time of the partition, and after become unequal by any matter subsequent, Partition. as by surrendering, ill husbandry, or the like, yet the partition remains good. Judicis officium est, ut res, ita tempora rerum Quaerere, quaesito tempore, tutus eris. Co. inst. pars 1. 23. a. 11. 47 Whosoever is seized of land, Feoffment● his own 〈◊〉 the old 〈◊〉 manes. hath not only the estate of land in him, but the right to take the profits, which is in nature of the use, and therefore when he makes a feoffment in fee without valuable consideration to divers particular uses, so much of the use, as he disposeth not, is in him as his ancient use in point of Reverter: As if a man be seized of two acres, the one holden by Knight service in priority, and the other by the same service in posteriority, and maketh a feoffment in fee of both acres to the use of himself and his heirs, the old use continued in him, and the priority and posteriority remain: So it is of lands of the part of the Mother; for if one make a feoffment in fee of them to the use of himself and his heirs, the use shall still go to the heir of the part of the Mother, which could not be, if it were not the old use, but a thing newly created; The like law of lands, of the custom of Burrough English, Gavelkind, etc. Fitz. N. B. 1. 156. b. 48 If Tenant by Receipt upon default of Tenant for life appear, Tenant by ●●ceipt. and to received and pleads, and after loseth by action tried, etc. Yet the Tenant for life may have a Quod ei deforceat upon the Statute of West. 2. cap. 4. for the judgement is given against him for his default. Dyer 2. 1, 2. 6 H. 8. 49 If a Rent-charge be granted out of land pro consilio impendendo, Rend charge Prison in 〈◊〉 and the Grantée is afterwards attainted and committed to prison, yet he shall not lose the rent; for he may give counsel as well in prison as at large. Dyer 30. 20●. 28 H. 8. 50 The Feoffées to an use made a lease for life rendering rend, Cesty que ●s● before the Statute of Uses; in this case, Cestuy que use (who now hath the reversion in possession) shall distrain and make Avowry for the rent, without attornment: So it is if they had granted a rent upon condition, the Grantée (after the Statute) should have holden by the condition, in such plight as he did before. Law-day. Warren. 51 There are three Coparceners of a Manor, Dyer 30. 203. and the King grants them a Law-day, and they afterwards make feoffment of the Manor, yet shall they still retain the Law-day: So if a man hath a Manor, and the King grants him free Warren within his Manor, if he afterwards enfeoff the King of his Manor without the appurtenances, he shall still retain the Warren; For a man may have Warren or a Law-day in another's land, per tot. Cur. Action upon the case. 52 In an action upon the Case the Plaintiff was non s●it, Dyer 32. 5. 28, & 29 H. 8. whereupon the Defendant by the Statute of 23 H. 8. 15. had judgement to recover his costs, and after the record was removed by Error in B. R. by the Plaintiff, and hanging that suit, the Defendant brings an action of Debt in C. B. upon a new original, and counts upon the record of an action upon the Case: Error. And this matter was pleaded by the Defendant in this action, etc. And the better opinion of the Court was, that the action was maintainable (notwithstanding the writ of Error) because it was brought upon a new original. Frankalmoign. 53 Albeit the liturgy or book of Common Prayer was altered by the Statutes of 2 & 3 Edw. 6. cap. 1. 5 & 6 Edw. 6. cap. 1. Co. Inst. pars 1. 95. b. 2. and 1 Eliz. cap. 2. yet the tenure in Frankalmoign remains the same, and such Prayers and Divine Service shall be said and celebrated, as in all times shall be authorized by Parliament; C●mmon Prayer. yea although the tenure be (as Littleton hath it, Sect. 137.) A chanter un Messe, etc. ou a chanter un placebo & dirige, yet if the Tenant say Prayers in such a form as is lawfully authorized, it sufficeth: And as Littleton saith, Sect. 119. in case of soccage, the changing of one kind of temporal services into other temporal services altereth neither the name nor the effect of the tenure, so the changing of Spiritual services into other Spiritual services, neither altereth the name or effect of the tenure in Frankalmoign: For albeit the tenure in Frankalmoigne was reduced by the said Statutes to a certainty contained in the book of Common Prayer, and now since to an uncertainty again by extemporary Prayers; Yet seeing the original tenure was in Frankalmoigne, and the change was, and is by general consent in Parliament, whereunto (as is presumed) every man is party, the tenure remains as it was at first. Tenements devisable. 54 Tenements in London divisable by custom, come into H. 8. Dyer 155. 21. 4, 5 P. M. hands by the dissolution of Abbeys, and after the King grants them to hold in chief by Knight's service; In this case, a Devise of the whole is still good against the heir; but quaere, whether it be so against the King for wardship or primer seisin, by reason of the saving in the Statute of 32 H. 8. cap. 1. Verdicts returned. 55 The Clerk of the Assize may, Dyer 163. 54. notwithstanding the death of both the justices of Nisi prius, deli●er in Court the Records of the Verdicts taken before the same justices in the Circuit, etc. Death of a Defendant. 56 In a Replegiare, or an Assize against two, Dyer 175. 24. judgement shall not be arrested by the death of one of the Defendants after the last continuance, but shall be entered against the Survivor. Partition. 57 joint-tenants and Tenants in Common cannot since the Statute of 31 H. 8. 1. make partition by Parol, Co. lib. 6. 12. Morrices' case. no more than they could before, for albeit by that Statute they are compellable to make partition, yet it altars not the Common Law in that case. Assets. 58 In debt upon an obligation against the heir, it is no plea to say, Dyer 179. 43. Dyer 204. 2. that the Executors have assets. Vide Dyer 207. 15. Dyer 217. 61. 4 Eliz. 59 A Veni●e facias with Proviso was returned, served, Venire facial and pu● upon the file, and two hours after a Pluries venire facias, which was afterwards pursued by the Plaintiff was also returned and filled, each party also pursue their Habeas Corpora, which are likewise returned; Howbeit the Plaintiff failed of his Jurat. continuand. yet this was adjudged no discontinuance because the continuance by the Defendant sufficed, Discontinuance. and there is no diversity by the entry of the o●e, or of the other. Dyer 229. 49. 6 Eliz. 60 A Feme dies before Livery sued, Tenant by courtesy. Partition. yet (in this case) the Baron shall be Tenant by the Courtesy, and shall sue livery. Dyer 243. 55. 8 Eliz. 61 If there be three Coparceners, and one of them aliens her part, another of them brings a writ of Partition against the Alienée, and the third Coparcener upon the Statute; per Curiam it shall abate, because in this case a writ of Partition lieth at the Common Law, as it did before the Statute. Dyer 326. 3. 16 Eliz. 62 The Qu. was seized of Whaddon Chase in Com. Bucks, De malefactoribus in pa●●● and the Lord Grace was Lieutenant there in fee, and he and his Ancestors, and their Keepers had by prescription used to hunt stray Dear in the Demesnes of the Manor of Salden adjoining, as in Purlieus, the Manor of S. comes into the Queen's hands, who grants it to Fortescue in fee wi●h free Warren within the Demesnes thereof, Ita quòd nullus intret in warrennam illam ad fugandum fine licentia F. And it was held, that the unity of possession in the Queen of the Chase and the Manor of S. did not extinguish the purlew, and that the clause of Ita quòd, etc. was not to be intended against the Queen's Keepers, but other Subject only: So that, whereas Fortescues servant killed the servant of the Keeper for chase there; it was not justifiable by the Statute de Malefactoribus in pa●cis & Warrennis. 44 Personal things cannot be done by another. Co. Inst. pars 1. 66. b. 3. 1 A single Corporation consisting of one person only may do Homage; as a Bishop in right of his Bishopric, Corporation● single and aggregate. an Abbot or Prior in right of his Monastery, etc. But no Corporation aggregate of many persons capable (be the same Ecclesiastical or Temporal) can do Homage, as a Dean and Chapter, Major, and Cominalty, and the like; because Homage must be done in person, & a Corporation aggregate of many cannot appear in person; for albeit the bodies natural, whereupon the body politic consists, may be seen, yet the body politic or corporate itself cannot be seen, nor do any act but by attorney, and homage must ever be done in person, etc. Littl. §. 92. Co ib. 68 a. 2 The Steward or Bailiff of a Manor may take fealty for the Lord: Homage personal. but Homage cannot be made, save unto the Lord himself in person: and therefore Bracton saith (lib. 2. fol. 80.) Sciendum est, quod non per procuratores, nec per literas fieri poterit homagium, sed in propria persona tam Domini, quam tenentis, capi debet & fieri. C●. ibid. 1●4. b. 4. 3 The service of Homage is so nearly annexed to the person, Homage personal. as well of the Lords side, as of the Tenants, that the Tenant ought to seek the Lord, to the end he may do him Homage, if the Lord be within England: And therefore Bracton saith (lib. 2. 8.) Et sciendum est, quod ille qui hom●gium suum facere debet, obtentu reverentiae quam debet Domino suo, adire d●bet Dominum suum, ubicunque inventus fuerit in regno vel alibi, si possit commodè adiri, & non tenetur Dominus quaerere suum tenentem, & sic debet h●magium e● facere, etc. There is the same law of Fealty: It is otherwise of rent, for that is not personal, but may be paid and received by another, or tendered upon the land, etc. L●ttl. §. 153. & 157. Co. ib. 107. 2. 3. 4 Grand Serjeancy is a service to be done to the royal person of the King, and therefore cannot be performed by a Deputy, Grand S●r●ancy. without the King's special licence, or in some special cases; because the high and great offices, whereof that tenure doth for the most part consist, aught to be performed in proper person: Yet he that holdeth to serve him in his war, or by Cornage may make a Deputy, etc. infant's joyn●enants. 5 If two joint-tenants within age make feoffment in fee, Co. ib. 337. a. 4. they may enter jointly in their lands, or may join in a writ of right, but they cannot join in a Dum fuit infra aetatem; because the nonage of the one is not the nonage of the other. Livery. 6 If A. is to make a feoffment to B. and C. and their heirs without deed, and A. makes livery to B. in the absence of C. in the name of both, Co. Inst. pars 1. 49. b. 3. and to their heirs, this livery is void to C. because a man being absent cannot take a Fréehold by a livery, but by his Attorney being lawfully authorized by deed to receive livery; unless the feoffment be made by deed, and then the livery to one in the name of both is good. Demise of goods. 7 If a man demise sheep or other stock of Cattle, Co. l. 5. 16 b. 4. Spencer's case. or any other personal goods for a time, and the Lessée covenants for him and his Assigns, at the end of the time, to deliver such like cattle or goods, as good as the things demised were, or such a price for them, and the Lessée assigns the sheep, or, etc. over; This covenant shall not bind the Assignée; because it is but a personal contract, and there wants that privity, which is betwixt the Lessor and Lessée and his assigns of land, in respect of the reversion; for in case of a lease of personal goods there is not any privity, nor any reversion, but merely a thing in action in the personalty, which cannot bind any but the covenantor himself, and his Executors, and Administrators which do represent him: So it is also, if a man demise an house and land for years with a stock or a sum of money, rendering rend, and the Lessée covenants for him, his Executors, Administrators, and Assigns to deliver the stock or sum of money at the end of the term, yet the Assignée shall not be charged with this covenant; for, albeit the rend reserved were increased in respect of the stock or the sum, yet the rent doth not issue out of the stock or sum, but out of the land only; and therefore, as to the stock or sum, the covenant is personal, and shall only bind the Covenantor, his Executors, and Administrators, and not the Assignée, etc. Revocation under a man's own hand personal. 8 There is a diversity betwixt conditions, Co. l. 7. 13. a. 1. Englefields case. which are personal and individual, and cannot be performed by any other; and conditions, which are not so inseparably annexed to the person, but that they may be performed by any other; as it was resolved in the case of Thomas Duke of Norfolk (who in Anno 11 Eliz.) conveyed his land to the use of himself for life, and after to the use of Philip Earl of Arundel his eldest son in tail, with divers remainders over, with Proviso, that if he should be minded to alter and revoke the said uses, and signify his mind in writing under his own hand and seal, subscribed by three credible witnesses, that then, etc. And after the said Duke was attainted of High Treason, etc. In that case, the proviso or condition was not given to the Queen by the Act of 33 H. 8. because the performance of it was personal, and inseparably annexed to the person, viz. to signify his mind by writing under his own hand, which none could do, but the Duke himself: It is otherwise of payment of money, delivery of a ring or spurs of gold, or the the like; for they may be paid, delivered, or tendered by others, etc. Vide 55. 109. 〈◊〉 Retraxit personal. 9 A Retraxit cannot be entered, Co. l. 8. 58. 2. Beechers case. unless the Plaintiff or Demandant be in Court in proper person; for the entry is, quòd quaerens in propria persona sua venit & dicit, quòd ipse placitum suum praedictum ulterius prosequi non vult, sed ab inde omnino se retraxit, etc. And therefore a Retraxit cannot be acknowledged by an Attorney. Co. lib. 9 75. b. 4. Combs case. 10 There is a diversity betwixt a general and absolute power and authority, as owner of the land, Surrender by Attorney. and a particular power and authority by him which hath but a particular interest; as a Copiholder being owner of the land according to the custom, may surrender his Copyhold land by Attorney; but if A. be Tenant for life, the remainder in tail, etc. And A. hath power to make leases for 21 years, rendering the ancient rent, etc. he cannot make a lease by letter of Attorney by force of his power; because he hath but a particular power, which is annexed to his person: And so it was resolved in the Lady Gresham's case at the Assizes in Suffolk, 24 Eliz. by Wray and Anderson Chief justices, and justices of Assize there. Co. lib. 9 76. a. 1. Combs case. 11 Some things are so inseparably annexed to the person of a man, Villain. that he cannot do them by another, as the making of Homage and Fealty: So it is holden in the 33 E. 3. tit. Trespass 253. that the Lord may beat his Villain for cause or without cause, and the Villain shall have no remedy; but if the Lord command another to beat his Villain, the Villain shall have an action of Battery against him that so beats him. Co. Ibid. 12 If the Lord distrain the Cattle of his Tenant, Wrongful ●●●stresse. when nothing is behind, the Tenant for the respect and reverence which belongs to the Lord, shall not have an Action of Trespass vi & armis against the Lord; but if the Lord in that case command his Bailiff or Servant to distrain him, when nothing is arrear, the Tenant shall have an Action of Trespass vi & armis against the Bailiff or Servant, etc. 2 H. 4. 4. 11 H. 4. 78. 1 H. 6. 6. 9 H. 7. 14. Fitz. N.B. 25. c. 13 It seems, that before the Statutes, No Attorney allowed by the common Law. which grant that a man may make an Attorney, etc. the justices would not suffer either Plaintiff or Defendant, Demandant or Tenant to make attorney in any suit, or in any Court, etc. because the words of the Writ command the Defendant to appear, which ought always to be understood in proper person; and at this day also a man's real suit at a Leet, or Sheriffs turn, cannot be done by Attorney, but aught always to be in proper person, etc. Howbeit before those Statutes the King by his Prerogative might have granted to a man to make an Attorney in every action or suit, as well to the Tenant or Defendant, as to the Demandant or Plaintiff, and might have directed his writs or letters to the justices for that purpose, etc. F.N.B. 25. d. 14 If the Tenant for term of life be impleaded in a praecipe quod reddat, No receipt by attorney. he in reversion may pray to be received to defend his right in default of the Tenant, or upon his faint pleading,; but in this case he cannot pray by his Attorney to be received without a Writ out of the Chancery directed to the justices for that purpose, upon some cause alleged in the said Writ, etc. 22 E. 4. 34. Finch 16. 15 A man cannot excuse himself of a contempt (as of not serving the King's process, Answer of a contempt personal. of rescuing a Prisoner from the Sheriff or other Officer, or the like) by Attorney, but he ought to appear thereupon in proper person, etc. Co. l. 9 96. b. 4. Sir George Reynels' case. 16 The office of Marshal of the Marshalsea cannot be granted for years; because it is an office of great trust annexed to the person, The office o● the Marsh●● personal. & concerns the administration of justice, and the life of the Law, which is to keep such as are in execution in salva & arcta custodia, to the end they may the sooner pay their debts; And this trust is individual and personal, and therefore cannot be transferred to Executors or Administrators; For the Law will not confide in persons unknown; for the ordering of Matters, which concern the administration of justice, etc. 45. 6. personal service not apportioned or multiplied. 17 If a man hold land by the personal service of being Sewer, Co. l. 8. 105. b. 4. in John Talbots case. Carver, Butler, etc. to his Lord, or when the Tenant is bound by his tenure, Ad convivandum Dominum suum & familiam suam semel in anno, or ad aequitandum cum Domino suo, in Com. N. sumptibus suis propriis (vide 10 E. 3. 23. in John de Bromptons' case) by alienation of parcel of the land, the service shall not be apportioned or multiplied; because such services are personal, and are to be personally performed by one man only: Howbeit purchase of parcel by the Lord shall extinguish them. ●ilizers office personal. 18 The office of Filizer cannot be extended upon a Statute, Dyer 7. b. 28 H. 8. 10. or Elegit, albeit it is a Franktenement, for which an Assize lieth; because it is an office of trust and personal. several torts, several actions. 19 An action upon the Case was brought by two, Dyer 19 112. 28 H. 8. for that the Defendant called them two false Knaves and Thiefs; Here, the action was not well brought jointly, for that the wrong done to the one, was not the wrong done to the other; and therefore they ought to have severed in actions, as in case of false imprisonment. A thing in action cannot ●e transferred. 20 The reason why a thing in action cannot be transfered or granted over to another, is, because it is so annexed to the person, Dyer 26. a 16●. 28 H. 8. & 282. 28. 11 Eliz. & 300. 36. 13 Eliz. that it cannot be severed from him, nor by any means prosecuted but in his name, as an Obligation, Statute, Recognizance, or the like: So if a man hath an Advowson, and when it is void, the Patron grants proximam nominationem, Presentationem, & Institutionem, cùm primò & proximè vacuerint; In this case, the Grantée shall not have that Presentation, because it is a thing in action, which the Patron could not transfer, but the next to it he shall have, which was the first that could be granted. 45 They cannot be granted or transferred over, as matters of pleasure, ease, trust, and authority. To hunt, way, ●o diet, etc. 1 A licence to hunt in my Park, to go to Church over my ground, 12 H. 7. 25. 7 H. 4. 36. to come into my house to eat and drink with me, cannot be granted over: So of a way granted for life over my ground. Finch 17. Personal offices of trust. 2 The Patentée for life of an office of trust, 11 E. 4. 1. as to be a Chamberlain of the Exchequer, Squire of the body, &c. cannot be assigned over, unless it be specially limited in his Patent, that he may: And the reason, why (regularly) he cannot assign it over to another, is, because he may grant it to one in whom the King cannot confide, or that will be negligent, etc. Finch, ibid. Offices of skill. 3 The Kéepership of a Park, Stewardship, 12 Eliz. 179. Bailiwick of Husbandry, etc. for life cannot be granted over, because they are offices that require skill and diligence. Finch, ibid. An act. 4 A. licenceth B. to do an act; B. cannot grant this licence to another. Br. licences, 25. Finch, ibid. A warrant of attorney. 5 A warrant of Attorney is made to one to deliver seisin, 12 H. 8. 12. he cannot grant that authority over to another. Finch, ibid. arbitrators. 6 Arbitrators cannot assign their power over; Co. l. 5. 78. a. 1. samon's case. And therefore they ought to make so certain an end of the difference, that they may leave nothing to be further determined either by the parties themselves, or others; for they being judges of the case, their judgement ought to be certain. Office of Marshal. 7 The office of Marshal of the Marshalsea being an office of trust, Co. l. 9 96. b. 4. in Sir George Reynels' case. &c. cannot be transferred to another, but aught always to be granted for life, and to be executed by none but the Grantée himself; And therefore a lease for years of that office is void, for than it may fall into the hands of Executors or Administrators; and in matters concerning the administration of justice, the Law will not repose confidence in persons unknown, etc. Vide 44. 16. Dyer 7. b. 8 A Filizers office cannot be aliened, Filizer. because it is an office of trust and personal. Vide 44. 18. Hob. 13. Sir Daniel Norton and Simmes. 9 A Sheriff in making an Under-sheriff doth implyedly give him power to execute all the ordinary offices of the Sheriff himself, Sheriff. that may be transferred by Law, as serving of Process, Executions, or the like; Howbeit, the Under-sheriff cannot deal in a Writ of Redisseisin, because in that the Sheriff is a judge, nor in a Writ of Waste, where the Sheriff is commanded to go to the place wasted, because these are places of trust, and personal to the Sheriff himself. Hob. 134. Coventry and Woodhal. 10 The putting of an Apprentice to one man rather than to another, Apprentice. is a matter of great trust for his diet, health, and safety; And therefore (it seems) that trust cannot be transferred without consent of all parties interessed. 46 They being once suspended, or discharged for a time, are for ever after extinct. Pl. Co. 36. a. 3. Plaits case. 5 E. 6. Br. Escape 45. 1 Where the Defendant is once imprisoned upon an execution, One in exe●●tion enlarge A debtor, 〈◊〉 Executor. and makes an escape, the Plaintiff shall never after have remedy against him again, but aught to take his remedy against the Sheriff; For, if a personal thing be once in suspense, and the person of a man discharged of a personal thing for a time, that is a discharge for ever; as if the Debtée makes the Debtor and another, which survives the Debtor, his Executors, yet the debt is extinct for ever, etc. Dyer 140. Pl. 49. 2 A thing or action personal being once suspended (though but for an hour) is extinct and gone for ever, A personal charge exti● by suspen●● when it is by the act and conent of the party himself, who hath the thing suspended, as a Rent-secke, Rent-charge, or the like, which are personal duties, and against common right: So likewise if a Feme, Obligor, or Obligée marry with the party, and after they are divorced, Causa praecontractus, the debt is extinct, as it is ruled in 11 H. 7. So if a man grant to another a Rent-charge of 10 l. out of the Manor of Dale, and the Grantée by his Will deviseth, that the Grantor shall retain five years rend for a legacy of 50 l. and dies; whereby the rent is suspended for those five years: In Dyer fo. 140. it seems to be the better opinion, that both the land and person are for ever after discharged thereof. Dyer 371. 6. 23 Eliz. 3 In debt upon the condition of an Obligation consisting of divers points, if the issue be joined upon the breach of one point, Obligation extinct. which is found against the Plaintiff, and whereupon he is barred; Albeit all the other points of the condition are broken, yet he shall never sue the obligation again. Hob. 10. Friar against Gildridge. 4 Where there were an Obligée and two Obligors, Debt extinct the Obligée made the wife of one of the Obligors his Executrix, and died, the Executrix administered; In this case the action of Debt against the other Obligor is (at least) suspended, and then the Rule is, A personal action once suspended, is for ever after extinct. Vide infrà 54. 36. Hob. 131. Robins & Barns. 5 In a Quod permittat prosternere quandam domum, Nuisance. that by being new built, hindered a light of the next house by over-hanging; upon the issue and verdict it appeared, that the Defendant had built the said house upon the old foundation of an house which had been built there before, and had been pulled down (because ruinous) by one, that was then owner of both houses: And it was the opinion of the Court, that the unity of possession of both houses in one man did suspend that easement, so as the Defendant could not be charged with any damage, but for what should be caused, by making it hang over more than it did before; for that easement being once suspended, is gone for ever; albeit the houses come afterwards into several hands. 47 They die with the person. ●ste. 1 If the Tenant doth Waste, and he in the reversion dieth, Co. Inst. pars 1. 53. b. 4. the heir shall not have an action of Waste for the Waste done in the life of the Ancestor, nor a Bishop, Master of an Hospital, Parson, or the like, for Waste done in the time of the Predecessor: So if Lessée for years doth Waste and dyeth, an action of Waste lieth not against the Executor or Administrator, for Waste done before their time, etc. ●●●ion of accept. 2 Albeit in an action of account against a Guardian in Soccage, Co. ib. 90. a. 2. etc. the Defendant cannot wage his Law, yet in respect of the privity of the matters in account, and the discharge resting in the knowledge of the parties thereunto, an action of account lieth neither against the Executors of the Accountant, nor at the Common Law for the Executors of him, to whom the account is to be made, but that is helped by the Statute of West. 2. cap. 23. Rot. Parl. 50. E. 3. nu. 123. And it hath been attempted in Parliament to give an action of account against the Executors of a Guardian in Soccage, but never could be effected. ●●nity and 〈◊〉 charge. 3 An annuity is a yearly payment of a certain sum of money granted to another in fee, for life or years, Co. ib. 144. b. 3. and charging the person of the Grantor only, but doth not enure to the Grantée only; for his heir, and his and their Grantée shall have a writ of Annuity; but if a Rend charge be granted to a man and his heirs, he shall not have a writ of Annuity against the heir of the Grantor, albeit he hath assets, unless the grant be for him and his heirs. ●●cisor. ●ease. 4 If a Disseisor make a lease for life, the remainder in fee, Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right, this release shall enure to him in remainder; because as to this and some other purposes, they are but as one Tenant in Law; Howbeit if the Disseisée release all actions to the Tenant for life, after the death of the Tenant for life, he in the remainder shall not take benefit of this release; for it extended only to the Tenant for life, and ended with his life, as it was adjudged in Edw: Althams' case, Co. l. 8. 148. So also if the Disseisor make a lease for life, and the Disseisée release all actions to the Lessée, this enureth not to him in the reversion, etc. ●taile in an ●cale. 5 In a writ of right, when the trial is by Battle, Co. ib. ●94. b. 4. neither the Tenant nor Demandant shall fight for themselves, but shall find each of them a Champion to fight for them; because if either the Demandant or Tenant should be slain, no judgement could be given for the lands and tenements in question: It is otherwise in an appeal; for here the Defendant shall fight for himself, and so shall the Plaintiff also; because there, if the Defendant be slain, the Plaintiff hath the effect of his suit, viz. the death of the Defendant, etc. comment in life of ●●tor and ●●ntee. 6 Upon the grant of any thing, whereunto attornment is necessary, Co. ibid. 309. a. 4. as of a Seignory, rent, reversion, remainder, etc. the attornment must be made during the lives both of the Grantor, and also of the Grantée; for if either of them die before attornment the grant is void: And the reason hereof is, for that every grant must take effect (as to the substance thereof) in the life-time both of the Grantor, and of the Grantée whereas (in this case) if the Grantor dieth before attornment, the signory, rent, reversion, remainder, etc. descends to his heir, and therefore after his decease the attornment cometh too late; so likewise if the Grantée dieth before attornment, an attornment to the heir is void, for nothing descended to him; and if he should take, he should do it as a purchasor, whereas, heirs were added but as words of limitation of the estate, and not to take as purchasers, etc. Co. lib. 2. 36. a. Sir Rowland Heywards case. 7 If a man for good consideration bargain, sell, Election. and demise a reversion of land to the use of another for years, and the Grantor or Cestuy que use die before attornment or enrolment, the grant is in this case void or good at the election of Cestuy que use, void, if taken at the Common Law by way of grant, because then there wants attornment, but good, by way of Bargain and Sale according to the Statute of Uses, (27 H. 8. cap. 10.) and because the Statute of 27 H. 8. cap. 16. (of Enrolments) extendeth not unto it, for that no estate of Franktenement passes, but only an estate for years; And notwithstanding the death of the Grantor, and Cestuy que use (either one or both) the Executors or Administrators of Cestuy que use have power (as well as Cestuy que use himself) to choose, by which way they will claim, whether by way of grant at the Common Law, or by way of Bargain and Sale according to the said Statute of Uses, because Cestuy que use had immediately upon the grant a present interest in him, which he or (in case he had died) his Executors before election might have assigned over, and for that he claims one and the same thing by two several ways, it being in his or his Executors power to choose which of them they please: It is otherwise, where the election is to choose one of two several things, by one and the same way or title; for than nothing passeth before election, and that election must be made during the life of the parties: And therefore if I have three horses, and I give unto you one of my horses, in this case the election ought to be made in the life of the parties; for in as much as none of the horses is given in certain, the certainty (and therefore the property) commenceth by election: And with this agrees Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres (called Berewood) enfeoffs another of an house, and of 17 acre's parcel of the said wood, and makes livery in the house; here, nothing passeth of the wood before election, and therefore his heir could not make election, etc. Co l. 8. 6●. a. 1. in Jo: Trollops case. 8 If the Bishop make Certificate, and die before it be received, Certificate a Bishop. the Certificate is worth nothing, but the Successor ought to certify a new. Fitz. 55. Co. lib. 9 87. a. 4. Pinsons' case. 9 An action of Debt lieth not against Executors upon a contract for the eating and drinking of the Testator; for that action dieth with him, Wager of Law. Executors. because in that case, the Executors cannot wage their Law, as the Testator might have done; for a man shall never have an action against Executors, where the Testator might in his life time have waged his Law, because they cannot have the benefit of Law-wager, as he might have had, etc. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case. 10 Of the family of the Lord De la Ware, there was Grandfather, Dignity restrained fo● life. Father, and Son, the Grandfather 3 H. 8. was summoned to the Parliament by Writ, and after in 3 E. 6. it was enacted, that the father should be disabled during his life from claiming any dignity, but was afterwards by Qu: Eliz. called to the Parliament, and sat in the House as a puisne Lord, and died, after whose death the son sued in Parliament to be restored to the place of his Grandfather, viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby, and it was granted him: For there was a diversity taken betwixt a disability personal and temporary, and a disability absolute and perpetual: As if a man be attainted of Treason or Felony, this is absolute and perpetual disability by corruption of Blood, and shall bar any of his posterity to claim any hereditament in Fée-simple as heir unto him, or to any other Ancestor paramount him: But when a man is only disabled by Parliament (without any attainder) to claim any dignity for his life, this is a personal disability for his life only, and his heir after his death may claim as heir to him or to any of his Ancestors above him, etc. And upon this diversity, Thomas Lord De la ware, Anno 39 Eliz. was restored to the place in Parliament originally belonging to his Family. Wast by Baron. 11 Where a lease is made to the Baron and Feme for term of life or years, the Feme shall not be punished for Waste, F.N.B. 59 ●. committed by the Baron after the Baron's death. M. 3. E. ●. Battery. 12 When a corporal hurt or damage is done to a man, 12 H. 8. 12. as to beat him, etc. if he or the party beaten die, the action is gone. Finch 17. Covenant by Lessor. 13 The Lessor covenants to pay quitrents during the term, 1, 2 P.M. 114. Finch 17. and dieth, his Executors shall not pay them; for it is a personal covenant which dieth with the person. Debt against Executors. 14 In debt against Executors, who plead fully administered, Dyer 32. 2 28, & 29 H. 8. and they gave in evidence to the Inquest, that they had paid divers debts upon contracts made by the Testator, whereas this suit was upon an obligation, whereupon the Plaintiff demurs: And it seemed to the justices that there was no cause to delay it, because they were not compellable to pay such debts, for that they die with the person, and the Plaintiff had judgement de bonis testatoris. Quitrents. 15 The Lessor covenants with the Lessée to pay and bear all quitrents, etc. not naming his Executors or Assigns: If the Lessor die, Dyer 114. a. 60 1, 2 P. M. his Executors are not bound, according to the opinion of divers justices, Tamen quaere. Covenant employed and express. 16 If there be Tenant for life, remainder in fee, Dyer 257. 13. 9 Eliz. and Tenant for life demise for 15 years and die, he in remainder enters, and the termor brings covenant against the Executors of the Lessor upon the Demise only, which is but an employed covenant; and it was adjudged it would not lie, albeit the lease were by Indenture, unless it had been broken in the life of the Testator, it is otherwise also of an express covenant: But an employed covenant is personal, and dies with him. Vide Stat. 32 H. 8. 34. Note, that if the heir out the termor of the father, covenant lies against him upon the demise for the privity. Vide Max. 55. Licence to retail wines. 17 Queen Mary grants to one licence to sell Wines by retail with a non obstante, the Statute of 7 E. 6. 5. and doth not limit how long, Dyer 270. 22. 10 Eliz. but there is a commandment in the Patent to the Officers to permit him to do it during his life: And it was held by Dyer and Sanders, that it was durante beneplacito only, and that the pleasure determined by the death of the Queen, the commandment ceased also by her death. Warden of the Fleet. 18 Whitacres brings an action of Debt against the Executors of the Warden of the Fleet upon an escape in the life of the Testator, Dyer 322. 25. 15 Eliz. and it was adjudged it would not lie; because the offence was but trespass, which died with the person; And by the Common Law debt did not lie against the Warden, but an action upon the Case, until the Statute of 1 R. 2. 12. which gives debt against the Warden, but speaks neither of Heir or Executor: It is otherwise, where the recovery is in the life of the Warden. 48 Things do enure diversely according to the diversity of the time. Purchase by Inhabitants. 1 The Parishioners, or Inhabitants, or probi homines de Dale, Co. Inst. pars 1. 3. a. 2. or the Churchwardens; are not capable to purchase lands (but goods they are) unless it were in ancient time, when grants were allowed to pass by such names. Grant to commoners. 2 An ancient grant by the Lords to the Commoners in such a waste, Co. ibid. that a way leading to their Common should not be straitened, was good; but otherwise it is of such a grant at this day: And so in ancient time a grant made to a Lord, & hominibus suis tàm liberis quàm nativis, or the like, was good; but they are not of capacity to purchase by such a name at this day, etc. Co. l. 9 28. a. 3. in the case of the Abbot of strata Marcelia. 3 When an ancient grant is general, obscure, or ambiguous, A charter interpreted, as the Law was, when it was made. 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. Vide ibid. many authorities in the point. Vide suprà, 25. 22. Co. Inst. pars 1. 21. b. 3. 4 If the Donor give lands in liberum maritagium, reserving a rent, Frankmarriage, the fifth degree. this reservation shall take no effect till the fourth degree be past, but after that time the rent shall be paid according to the reservation. Littl. Sect. 19 Finch 18. Co. ib. 147. b. 1. 5 If a man grant a rent out of Black-acre to one and to his heirs, Rent-charge and seck. and grant to him, that he may distrain for this in the same acre for term of his life, this is a rend charge for his life, and a rent seck afterwards, Diversis temporibus. Co. l. 7. 24. b. 3. Butts case. Co. ib. 171. a. 3. 6 Judicis officium est, ut res ita tempora rerum Quaerere, quaesito tempore, tutus eris. Co. ib. 178. a. 4. 7 A gift in Frankmarriage was before the Statute of Westm. 2. Frankmarriage out of use. a Fée-simple, and since that Statute, a Fée-taile; So as it is true, that the gifts do continue (as Littleton saith, Sect. 271.) but not the estates; for the estate is changed, as appears in the same Author, Cap. Fee-tail: And albeit Littleton saith (Sect. 271.) that such gifts have been always since used and continued; yet now they are almost grown out of use, and serve now principally for Moot-cases, and questions in law, that thereupon were wont to rise. Co. l. 5. 119. b. 1. in Whelpdales' case. 8 When an obligation was once a deed, Non est fact●●, when a deed was, and is no deed. and after before action brought becomes no deed, either by rasure, addition, or other alteration, or by breaking the seal, etc. In this case, although it were once a deed, 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 deed. 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 appearance of the Inquest, the Mice had eaten the Label, unto which the seal was fixed, by the negligence of the Clerk, in whose custody it was; Here, the justices charged the jurors, that if they found the deed to be deed 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 fee, Lease and confirmation. join in a lease to C. Immediately after the delivery of the deed 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 George's 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 i● ward during the life of her father. the Daughter shall not be in Ward, because she is yet heir apparent 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 heir apparent, and not the Daughter: And no heir apparent shall be in ward during the life of the Father. Co. l. 7. 18. a. calvin's case. 11 The time of the birth of a man or woman is chief to be considered to make them a Subject borne, or not, Antenati & Postnati. and is (as it were) of the essence of a Subject born: For a man cannot be a Subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King of England, albeit the Kingdom of the King under whose ligeance he was borne, do afterwards descend to the King of England: And this is the reason, that Antenati 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, etc. ●●ttle in ●und, tender 〈◊〉 late. 12 Tender of the rent upon the land before the Distress, Co. l. 8. 147. 2. 4. The 6 Carpenters case. makes the Distress tortuous; tender after the Distress and before the imparkment makes the detainer, but not the taking tortuous; tender after the imparkment makes neither the one nor the other tortuous; for than it comes too late, in regard the cause is then put to the trial of the Law to be there determined. 13 Distinguenda sunt tempora, & concordabis leges. Co. l. 9 16. b. Anna Bedingfeilds' case. ●state to the ●st issue in ●ile. 14 Thomas Bowls in consideration of marriage with Anne Hid, Co. lib. 11. 80. a. 4. Lewes' Bowls case. covenants to stand seized of the Manor of D. to the use of himself and Anne for their lives, and after to their first issue male, and the heirs male of his body, and after to the heirs male of the bodies of Thomas and Anne, etc. In this case, before issue had, Thomas and Anne were seized of an estate tail executed sub modo, viz. until issue, and then by operation of Law, the estates were divided, viz. Thomas and Anne became Tenants for life, the remainder in tail to the issue, the remainder to the heirs male of Thomas and Anne, etc. ●landerous ●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 jurors find for the Plaintiff, and assess 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 indeed 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 allegeth the said several words spoken at several times, as several causes of action; the●e, if upon not guilty pleaded, the jurors assess damages entirely, judgement shall be arrested for all; for he grounds his action upon two several scandals, whereas one of them is not actionable, etc. 〈◊〉 perquisite ●y the purchase of a villain. 16 If a man hath a Villain in right of his wife, Co. Inst. pars 124. b. 1. and the Villain purchase land, he shall have that perquisite in her right; but if the Villeine purchase it after issue had, than the Baron shall have the perquisite to him and his heirs; because by the issue he is entitled to be Tenant by the Courtesy in his own right. 49 Quod prius est tempore, potius est jure. Vide Max. 62. Pl. 10. 19 remitter. 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 always 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, etc. or the like: For, Quod prius est, verius est, & quod prius est tempore, potius est jure, etc. Confirmation ●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 years the Lessor did first confirm, and after the Lessor confirmed the lease for thirty years, and after the Tenant for life died within the thirty years: In this case, the lease for thirty years was determined by the death of the Tenant for life, and the Lessée for sixty years might enter; for that albeit the lease for sixty years 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, temps Eliz. Co. l. 4. 89. b. 4. Druries' case. 3 If a Countess retain two Chaplains, The first Dispensations; Wast void. those two are only capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countess retains a third, that cannot divest the capacity of dispensation, which was vested in the two first; For albeit the Countess may entertain as many Chaplains as she will, at the Common Law, yet can she not have more than two capable of Dispensations by force of the Statute; and reason requires, that he which hath longest served, shall be first preferred; For, qui prior est tempore, potior est jure. F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment, Priority of wardship. which are holden severally of divers Lords by Knight-service, and after he dies, his heir within age, that Lord which shall first hap the Ward, shall have him, because there is no priority: But if he purchase land, which is holden by Knight-service of one Lord, and after purchase other land holden of another Lord by the like service, and after die, his heir within age; In this case, that Lord shall have the Ward of the heir, of whom the land, which be first purchased, is holden; for that he held of him by a more ancient feoffment (viz. by priority) than he held of the other Lord of whom he held by posteriory, etc. Co. l. 4. 66. b. 3. Fulwoods' case. 5 If a man be bound in two Statutes, A former statute first fo●● and the last Statute is first extended and put in execution▪ Yet the first Conusée upon extent shall be first served, and the last Conusée shall stay till the first be satisfied. Dyer 32. 2. 28, & 29 H. 8. 6 In debt against Executors, who plead fully administered, Debt aga●●●● Executors. and it was given in evidence by the Defendants, that they had paid divers debts upon contracts made by their Testator, and shown not that they were paid before the Plaintiffs writ purchased, whereupon the Plaintiff demurs, and that was the chief reason why judgement was given for the Plaintiff. Dyer 133. a. 1. 3, 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another, Grant of the next avoidance. after which grant the Incumbent makes a lease of the Benefice for 60 years, reserving rend to him and his Successors under the value in the King's books; afterwards the Patron, Grantor, and his wife together with the Ordinary confirm the Lease, and then the Incumbent is deprived for marriage, and the Grantée presents his Clerk, who enters upon the Lessée to avoid the lease; In this case, it seems his entry is congeable, because the Grant preceded the lease. Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate, after notice he cannot dispose of any of the goods to others, Ordinary. before he hath satisfied that debt, for which the action was brought against him. Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Fairs and Markets; But it was held, Scire facial. that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent, but è contrà. 10 Vide Hob. 7. Spendlowes and Burket, concerning the grant of an avoidance, and a lease of a Prebendary in Lincoln. 50 According to the diversity of the same person. Co. Inst. pars 1. 8. a. 1. in calvin's case. Co. ib. 129. a. 3. 1 A man seized of lands in fee hath issue an Alien, Alien not 〈◊〉 heritable. viz. born out of the King's ligeance, that issue cannot be his heir propter defectum subjectionis, albeit he be born within lawful marriage; neither yet shall he inherit to his Father or any other, although he be made Denizen by the King's letters Patents: Nevertheless, if the same man be naturalised by act of Parliament, he shall not then be accounted in Law alienigena, but indigena, and shall be capable of inheriting, etc. ruption of ●d for a 〈◊〉. 2 The same man may have some children capable of inheriting his land after him, and others incapable, Co. ib. 8. a. 2. according to the several conditions, in which he stood at the several times, when he had those children: Co. ib. 129. a. 3 As if an Alien be made Denizen, the issue which he hath after the denization shall be his heir, and not the issue which he had before: So also, if a man hath issue a son before his attainder, and obtaineth his pardon, and after the pardon hath issue another son; here, at the time of the attainder, the blood of the eldest was corrupted, and therefore he cannot be heir; but if he die living his father, the younger son shall be heir; for he was not in esse at the time of the Attainder, and the pardon restored the blood, as to all issues begotten afterwards, etc. ●lain free 〈◊〉 a time. 3 If Villeinage be pleaded by the Lord in an action real, mixed, Co. ib. 127. b. 4 or personal, and it is found, that he is no Villain, the bringing of a Writ of Error is no enfranchisement, because thereby he is to defeat the former judgement: and if in the mean time the Villain bring an action against the Lord, the Lord need make no protestation, so long as the record remains in force, for at that time he is free, etc. ●●●is utrum warranty. 4 If a Juris Utrum be brought by a Parson of a Church, Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no bar, for that he demanded the land in the right of his Church in his politic capacity, and the warranty descendeth on him in his natural capacity, etc. warranty. ●fession. 5 If a collateral Ancestor release with warranty, Co. ib. 392. b. 3 and enter into religion, now doth the warranty bind; but if afterwards he be deraigned, then is the warranty defeated. ●nt extin●shed. 6 One that hath a rend charge going out of the wife's land, 14 H. 8. 6. Finch 18. releaseth it to the husband and his heirs; Yet, in this case, the husband shall not have the rent: but the release shall enure unto him by way of extinguishment only, as seized in right of his wife. ●●ant and ●firmation. 7 The Parson of Weston in Com. Glocest. An. 9 El. demised his Rectory to W. Hodges, than Patron of the same Rectory, for 50 years, Co. l. 5. 15. a. 3 Mewcomes case. Trin. 30 Eliz. in the Exchequer. who Anno 14 Eliz. by his deed assigned it over to Sir John Throgmorton, & the Bishop confirms the lease, Anno 17 Eliz. in the life of the Lessor; And in this case it was resolved, that the assignment of the saidlease so granted by the Patron, imports in itself both a grant, and also a confirmation of the term; so that a deed of the same thing, by the same person, to the same person, and at the same time, shall enure to two several purposes, viz. to a grant of the interest, as Lessée, and to the confirmation of the same interest, as Patron: So also if Tenant for life grant a Rent-charge to him in the reversion in fee, and the Reversioner by his deed grant it over to another and his heirs, this is a good grant and confirmation also to make the rent good for ever, in respect of the several relations that are in him in the reversion, viz. as Grantor of the rent, and as Reversioner in fee: In like manner, if the Disseisor make a lease for life, the remainder to the Disseisée, and the Disseisée grant the remainder over, this is a good grant and confirmation also, etc. 〈◊〉 contract. ●stardy. 8 If a man marry with a woman that was formerly contracted with another, and hath issue by her, Co. l. 6. 66. a. 4 in Sir Moyle Finches case. that issue in truth and in Law bears the surname of the Father: but if afterwards the Baron and Feme be divorced causa praecontractus, then hath the issue lost the surname of the Father; because Cognomen majorum est ex sanguine tractum, and then is the issue a Bastard, and Nullius Filius. ●ember of parliament. 9 A Member of Parliament, while he continues a Member, Dyer 60. a. 22, 23. 36 H. 8. is freed from arrests of his person; but when he ceaseth to be a Member, he may be arrested again, and albeit be being a Member be arrested upon an execution for debt, yet that is no discharge of the debt, but after the Parliament he may be taken again by execution upon the same judgement. Dyer ibid. 10 Regularly, Seizure of Villain. the Lord may seize his Villain wheresoever he finds him, yet if he abide a year within ancient Demesne, his condition is altered, and the Lord cannot seize him: So while the Villain remains in the King's presence, the Lord cannot seize him, but afterwards out of his presence he may; And these privileges the Law giveth to Villeins in favorem libertatis. 51 According to the diversity of several persons. Vide infrà, 86. Co. Inst. pars 1. 46. a. 3. 1 If Tenant in tail make a lease for years, reserving xx s. rent, Lease by ●●nant in 〈◊〉 good, & 〈◊〉 to severa●●sons. and after take a wife & die without issue; now as to him in the reversion the lease is merely void; but if he endow the wife of Tenant in tail of the land (as she may be, though the estate tail be determined) now is the lease as to the tenant in dower (who is in, as of the estate of her husband) revived again, as against her; For, as to her the estate tail continueth, and she shall be attendant for the third part of the rent and services, etc. So it is if Tenant in tail make a lease for years ut supra, and dieth without issue, his wife enseint with a son, he in the reversion enters, against him the lease is void; but after the son is born, the lease is good, if it be made according to the Statute of 32 H. 8. cap. 28. and otherwise is voidable. Co. ibid. 46. a. 4. 2 The King made a gift in tail of the Manor of Eastfarleigh in Kent to W. to hold by Knight's service; W. made a lease to A. for 36 years, The like. reserving 13 pounds rend; W. died, his son and heir of full age, all this was found by office: As to the King, this lease is not of force; for he shall have his primer seisin, as of lands in possession, but after livery the Lessée may enter: And if the issue in tail accept the rent, the lease shall bind him, and shall be good as to him, etc. And so it was adjudged in Austin's case, Pa. 2, & 3 Ph. and M. as Mr. Plowden reported to the Lord Coke. Co. ibid. 3 If tenant in fee take wife, and make a lease for years, and dieth, Lease voi● to the Fe●● the wife is endowed, she shall avoid the lease, and it shall be void as to her; but after her decease the lease shall be in force again against him in reversion, etc. Co. ib. 107. a. 2. 4 Tenure by Cornage of a common person, is Knight-service, Cornage. but of the King, is Grand Serjeancy; so as the royal dignity of the person of the Lord maketh the difference of the tenure. Co. ib. 188. a. 1. 5 If an husband, wife, Joyntena●● of a right, 〈◊〉 differing ●●tures. and a third person had purchased lands to them and their heirs, and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fee, and died; In this case, the wife and the other joint-tenant were joint-tenants of the right, but in several manners according to their several interests, viz. the wife had right of action, and the other joint-tenant right of entry; For at the Common Law the alienation of the husband was a discontinuance to the wife of the one moiety, and a disseisin to the other joint-tenant of the other moiety: Howbeit these differing rights might well stand together in jointure; for they are joint-tenants of the right, because they may join in a writ of right, etc. Co. ib. 202. a. 3 6 If a man seized of lands in right of his wife, Entry of several persons ●●veral effects maketh a feoffment in fee by deed indented, upon condition that the Feoffée should before a certain day demise the lands to the Feoffor for his life, Co. l. 8. 43, 44. Whittinghams' case. etc. If the condition be broken, the Feoffor may re-enter, and shall be again seized as in his former estate, viz. in right of his wife: But in case the Feoffor die before entry, albeit the heir of the husband enter for the condition broken, yet it is impossible for him to have the estate, that the Feoffor had at the time of the condition made; for the Feoffor had an estate in the right of his wife, which commenced by the coverture, and with the coverture was dissolved; And therefore when the heir entereth for the condition broken, and defeateth the Feoffment, his estate doth vanish, and the estate is thereupon immediately vested in the wife, etc. Issue in tail. Particeps criminis. 7 If Tenant in tail and his issue disseise the Discontinuée of Tenant in tail: and Tenant in tail die, whereby the lands descend to the issue; Co. Inst. pars 1. 357. b. 2. In this case, the issue shall be remitted, and shall be in as Tenant in tail against every stranger, and shall deraign the first warranty; but not against the Discontinuée, because he was Particeps Criminis, 11 E. 4. 2. Finch 18. Feoffment good against all but him that right hath. 8 A Lessée for years may make a Feoffment, Co. ib. 367. a. 3. Littl. §. 698. and by his feoffment a Fée-simple shall pass, and if a warranty be annexed to such an estate, albeit such a warranty cannot bar the Lessor, or his heirs, because it commenceth by disseisin; yet between the parties such a warranty standeth good; for thereupon the Feoffée may vouch the Feoffor or his heirs, as by force of a lineal warranty: And therefore if a Lessée for years or Tenant by Elegit, Statute Merchant, Statute Staple, etc. or a Disseisor incontinent make a feoffment with warranty, if the Feoffée be impeached, he shall vouch the Feoffor, and after him his heir also; because this is a covenant real, which binds him and his heirs to recompense in value, if they have assets by descent to recompense; for there is a feoffment de facto, and a feoffment de jure; And a feoffment de facto made by them, that have such interest or possession as is aforesaid, is good between the parties, and against all men, save only against him that hath right, etc. The like. 9 If before the Statute of 1 R. 3. cap. 9 Littl. §. 701. Co. ib. 369. a. 1 a man had granted a message with the appurtenances to certain Barrators for maintenance by a feoffment with warranty, by reason whereof the true Tenant durst not abide in the house, this warranty commenceth by disseisin, & shall not bind him that right hath; but some have said it shall be of force between the Feoffor and Feoffée, etc. Lineal & collateral warranty. 10 If a man hath issue two sons, and is disseised, Littl. §. 707. Co. ib. 371. b. 4. and the eldest son releaseth to the Disseisor by his deed with warranty, etc. and dies without issue, and after the father dies, this is a lineal warranty to the younger son; because the land by possibility might have descended from the eldest to the younger son; but in that case, if the younger son release to the Disseisor with warranty, and dieth without issue, that is a collateral warranty to the eldest son, and also to the issue of his body; because the eldest son by no possibility, could convey the title of the land to himself by means of the younger: But in the same case, if the eldest son die without issue of his body, than the warranty is lineal to the issues of the body of the younger: And so the warranty that was collateral to some persons, may become lineal to others: And therefore if Tenant in tail hath issue three sons, and discontinue the tail in fee, and the second son releaseth by his deed to the Discontinuee with warranty, etc. and after the Tenant in tail die, and the second son die without issue, this is collateral warranty to the eldest son; but in case the eldest son die also without issue, it becomes a lineal warranty to the youngest, etc. Difference. Bars, respects, several. 11 An Act of Parliament or the Common Law may make an estate void as to one person, and good as to another person; For example, Littl. §. 708. Co. l. 1. 87. b. 1. Corbets case. if lands be given to the Baron and Feme, and to the heirs of their two bodies, and the Baron levy a fine with proclamations, and hath issue, and die; this fine by force of the Statute of 32 H. 8. cap. 36. shall bar the issue in tail, but it shall not bind the Feme, so that in respect of one it is a good bar, and in respect of another it is no bar: So also in a praecipe, if one be vouched; In that case, having regard to the Demandant, the Vouchee is Tenant, and a release to him from the Demandant is good, but having regard to a stranger, he is not Tenant. and therefore a release to him from a stranger is not good: Likewise, if one be possessed of a term for years as Executor, and surrender it; here, as to one respect the term is extinct, and as to another respect it is assets, etc. Co. l. 5. 60. a. 4. in Gooches case. 12 If a fraudulent conveyance be made to avoid a debt, Fraudulent conveyance. the grant is void, as to the Creditor by the express provision of the Statute of 13 Eliz. cap. 5. but as to all other persons it stands good. Co. lib. 6 78. b. The Lord of Aburgavennies case. 13 A. and B. are joint-tenants for life, A charge upo● one of the joint-tenants. and judgement is given for C. against A. in an action of Debt, A. releaseth to B. before execution; here, albeit B. is now in by the Lessor, and not by A. and the estate of A. as to all strangers, is determined, yet as to C. who hath the judgement (whereby the moiety of A. was charged with the execution) the estate of A. (during the life of A.) hath continuance: But in case A. die before execution, B. shall hold it discharged, etc. Co. ibid. 79. a. 14 If there be two joint-tenants in fee, joint-tenants, Rent-charge. and the one grants a Rent-charge in fee, and after releaseth to the other; In this case, albeit to some intent he, to whom the release is made, is in by the first Feoffor, and no degree is made betwixt them, yet as to the Grantée of the Rent-charge, he is in under the joint-tenant that releaseth, and he that surviveth shall not avoid it after the decease of him that releaseth. Vide M. 30. c. 8. Co. ibid. 15 A. and B. are joint-tenants for life, The like. the reversion to C. judgement is given against A. in an action of Debt, A. releaseth to B. B. dies, C. enters; Yet, as to him that hath the judgement, the estate of A. (so long as A. liveth) hath continuance. Co. ibid. 16 If the Baron being seized of a Rent or Common in fee, The like for Dower. release to the land Tenant, this rent is extinct, yet having regard to the Feme it hath continuance; for she shall be endowed thereof. See there many authorities in the point; and Co. l. 7. 38. b. 3. Lillingstons' case. Co. l. 6 79. b. 4. Sir Edward Phittons case. 17 In the general pardon of 43 Eliz. there was this proviso, General pardon. that any Clerk might make a Capias utlagatum at the suit of the Plaintiff against outlawed persons, to the intent to compel the Defendant to answer, and that the party shall sue a Scire facias, before the pardon in that behalf shall be allowed; but this is only as having regard to the Plaintiff; for as to the King; it is an absolute pardon, and grant of his goods, Lord and Villain. etc. so that the pardon was available to discharge the Defendant against the King, but not to discharge him against the party Plaintiff: 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 seized of lands in fee, and make feoffment thereof, Bastard. Feoffment. Livery. and after die without issue: In this case, if livery were made by the Bastard himself in person, and so the feoffment executed by himself, it shall stand good; but if livery were made by attorney, the lands shall escheat, etc. Co. lib. 8. 145. Davenports case. 19 A. hath a Rectory, unto which a Vicarage is appendent, Grant of the next avoidance. for certain years yet in being, and grants the next avoidance 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 term, the Grantée shall present, etc. So also if the Lessée for years grant a rent, Surrender after grant of a rent. and then surrender; yet for the benefit of the Grantée, the term hath continuance; albeit in rei veritate it is determined. drowrie, ●uo War●●nto. 20 In avowry, 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 show 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 show his title. exception of ●rees. 21 If Lands be demised to one for life, exceptis quercubus, ulmis, & fraxinis adhunc crescend: ultra crescentiam 21 annorum, etc. 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. ●everance of ●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. manor, ●anted, ex●●pt an acre. 23 A man makes a Lease of a Manor, 1. 2. P. M. 104. Finch. 18. except an Acre this Acre is no part of the Manor, as to the Lessor, but as to him, that hath right to demand the Manor 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. ancestor and ●eir; and the testator, and executor Cor●●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 heirs of A. the Fee vesteth in A. as if it had been limited to him and his heirs) 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 been limited to him and his Executors. ●rank-mar●age. 2 A. enfeoffs B. upon Condition, Co. ibid. 219. b. 3. that B. shall make an estate in Frankmarriage to C. with one such as is the daughter of the Feoffor; In this Case, B. cannot make an estate in Frankmarriage; because the estate must move from the Feoffée, and there is not betwixt the Feoffée and the Daughter of the Feoffor the near relation of Blood, which is required betwixt the Donor and the feme Donée in Frankmarriage; for here the Daughter is not at all of the blood of the Feoffée. protection ●nd Subjecti●● relata from ●e birth. 3 In matters of state, Subjectio, and Protectio are Relatives, Co. l. 7. 4. b. 3. Calvin's case. and immediately upon the birth of a subject that relation gins; 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 birthright; so also is the Sovereign 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 only; 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 King's protection: because the King (if he please) may pardon and restore him to his Country again. Co. l. 7. 30. 4. 1. Discontinance of Process. ●●mmons and resummons ●●ta. 4 For Continuance of Process 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, re●●● and that B. shall keep his Courts, etc. 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 Fee, 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, rel●● 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 panel 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 Wron● relata. the one properly and generally, the other relative and strike; properly, as when costs of suit are also included in it, etc. But when the Plaintiff showeth the wrong done unto him to the damage of such a sum, this is to be taken relative, for the wrong which is passed 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 expenses 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, Discontinuance. Vid● M. 23. & 5. that made the discontinuance, was not once seized by force of the Tail (except it be by reason of Warranty, etc.) according to the Rule in Philosophy, 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 entire, and Fee-right thereof was never in him. 9 If a Feoffment be made to two, Livery to 〈◊〉 enures to both. and livery is made only 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 eyes 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 days after, Place of p●●ment of R●● that then it shall be lawful for the Lessor to re-enter; In this case, it ought to be tendered at Dale a convenient time before Sunset upon the last of the 40 days; for albeit it be not by express words, that if the Rent be behind and unpaid at Dale by the space of 40 days, etc. 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 days, 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 the● the Executors shall be charged; for they are co-relatives with him, and represent his person, it is otherwise of the heir, unless 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 entirely possessed. 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 Entire authority; Howbeit the Law is otherwise of other jointenants. 13 A. by Indenture enrolled demiseth the Manor of D. to B. and his Heirs in fee farm rendering Rend with clause of distress, Dyer 157. Pl. 28. 4, 5. P. M. Rend not ●tinct by a Fine. and upon nonpayment a reentry, & by the same Indenture Covenants to make such assurance, etc. 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 levy a Fine of the said Manor, etc. before such a feast, etc. which Fine should be to the only 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 ●eo quae B. habuit ex dono A. with release and warranty according to the course of Fines, etc. 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 juror 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 Sheriff in Dower, the Termor gives, grants, Dyer 240. 43. 7 Eliz. and assigns 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 certitu●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. bonham's case. brings a praecipe quod reddat against John de Clydrow, Reference of words. and the Writ was; quod justè, etc. reddat manerium de Wicombe, & duas crucat terrae cum pertinentiis in Clydrow; In this case, the Town of Clydrow shall not relate to the Manor quia non indiget; for the Manor may be demanded without making mention, that it lieth within any Town, but cum pertinentiis, although it cometh after the Town, yet doth it relate to the Manor, quia indiget, etc. Vide 3 E. 4. 10. The like. 2 If a man grant Rend in manerio de praecipiend. in C. Acres of Land parcel of the same Manor with clanse of distress in the C. Acres; Co. l. 8. 154. b. 2. Sir Edw. Althams' case. In this case the Rent shall only issue out of the C. Acres; and the general words shall be construed according to the special words, according to the Rule in Margery Mortimer's 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 Rend and go no farther, Co. ibid. these words shall create an estate for life; but if the habendum he for years, that shall qualify the general words. ●ail. 4 If a man give Lands to one and his Heirs, Co. ibid. habendum to him and the Heirs of his body, he shall have but an Estate-fall, and no Fee expectant; for the habendum qualifies the general words Precedent. 5 A Feme hath title of Dower in Lands in Wethersfield, & Gosfield, Co. l. 8. 154. 2. 4. Sir Ed. dw. Althams' case. and releaseth to the Reversioner omnes actiones, etc. sectas querelas, & Demand quaecunque nec non totam dotem suam, ac titulum, ac actionem dotis sibi contingent, etc. de aliquibus terris in Wethersfield, etc. this is only a Release of her Dower in Wethersfield, and not in Gosfield. ●●peachment Waste. 6 If a man demise Land for life absque impetitione vasti, Co. l. 11. 82. b. 3. Lewis Bowles case. the Lessée may cut down the Timber-trees, and convert them to his own use; but if it be absque impetitione vasti per aliquod breve de vasto; In that case, the Action only shall be discharged, and not the property in the Trees, so that the Lessor, after they are felled, may seize them, etc. Co. l. 3. 83. a. 4 Twines case. 7 No purchaser shall avoid a precedent conveyance made by fraud and covin, What is a good consideration within the Statute of 13 Eliz. 5. but he that is a purchaser for money or other valuable consideration; For albeit in the preamble of the Statute of 13 El. 5. it is said, For money or other good consideration, and likewise in the body of the Act, For money or other good consideration; Yet these words, good consideration, are to be understood only of valuable consideration, and this appears well by the clause, which concerns them, that have power of revocation; for there it is said, For money or other good consideration paid or given, and this word, paid, is to be referred to, money, and, given, is to be referred to good consideration, so the sense is, For money paid, or other good consideration given, which words exclude all considerations, of nature, blood, or the like, and are to be understood of valuable consideration, which may be given; and therefore he that makes the purchase of the land for valuable consideration, is the only purchaser within that Statute: And this last clause doth well expound these words, other good consideration, mentioned before in the preamble and body of that Act. 54 No man can do an act to himself. Co. Inst. pars 1. 38. b. 4. & 39 a. 4. 1 A Feme Guardian in Soccage shall not endow herself De la plus beale, without judgement; Feme, Dowe● but after judgement she may (as Littleton saith, §. 49.) for then it is the act of the Law, and not simply hers. Co. ib. 48. b. 1. 2 If A. by Deed give lands to B. to have and to hold after the death of A. to B. and his heirs, this is a void deed; Grant in f●turo void. because he cannot reserve to himself a particular estate, and construction must be made upon the whole deed. Littl. §. 168. Co. ib. 112. a. 3 A man cannot make any grant of lands, Baron can●● grant to fe●●●. etc. to his wife during the Coverture, because they are but one person in Law, and a man cannot do an act to himself, etc. Littl. §. 212. Co. ib. 141. a. 4 A man cannot be judge in his own cause; No distress irrepleviable. and therefore if a man will prescribe, that if any Cattle he Damage pheasant upon the Demesnes of his Manor, he may detain them, until he be satisfied for the damage at his own will and pleasure; this custom is repugnant to reason, and ought not to be allowed by the judges: For, Malus usus abolendus est, quia in consuetudinibus non diuturnitas temporis, sed soliditas rationis est confideranda. Co. ib. 141. a. 2. Finch 19 5 A fine levied before the Bailiffs of Salop, was reversed, A Fine void. because one of the Bailiffs was party to the fine, Quia nemo debet esse judex in propria causa; Nemo potest esse judex etc. Hillar. 4. H. 4. Coram Rege, Salop. Littl. §. 479, 480. Co. ib. 280. a. 1. and 307. a. 4. Littl. §. 543, 544. 6 If there be Lord and Tenant, Extinguishment of rent, etc. and the Lord releaseth to the Tenant his Seignory, this must of necessity enure by way of extinguishment; For, the Tenant cannot have service to be taken of himself, neither yet can one and the same man be both Lord and Tenant: So also if a Rent-charge be granted out of land, and the Grantée releaseth or granteth the rent to the Terretenant; in this case, the rent is extinct; for a man cannot have land, and also rend issuing out of the same land, neither yet can he pay the rent to himself: There is the same reason of Common of Pasture released to the Tenant of the land, for that also works an extinguishment; because a man cannot have Land, and a Common of Pasture issuing out of the same land, etc. Co. ib. 280. a. 3. 7 If there be Lord and Tenant by Fealty and Rent, Increasing, & extinguishment. the Lord granteth the Seignory for years, and the Tenant attorneth, the Lord releaseth his Seignory to the Tenant for years, and to the Tenant of the land generally; the whole Seignory is extinct, and the estate of the Lessée also: but if the release had been to them and their heirs, than the Lessée had had the inheritance of the one moiety, and the other moiety had been extinct: And the reason of this diversity is, because when the release is made generally, it cannot enure to the Lessée longer than for life, because it enureth by way of enlargement, and being made to the Tenant of the land, it enureth by way of Extinguishment, because he cannot do service to himself, and then there cannot remain in the Seignory a particular estate for life: But when the release is made to them and their heirs, each one takes a moiety, the one by way of increasing of the estate, and the other by extinguishment. acceptance. attornment. 8 If there be Lord and Tenant, Littl. §. 558. Co. ib. 312. b. and the Tenant lets the Tenements to a Feme for term of her life, the remainder over in fee, the Feme takes Baron, and after the Lord grants the services, etc. to the Baron and his heirs; In this case there can be no attornment by parol, etc. because the Baron that ought to attorn, cannot attorn to himself, but his acceptance of the grant of the Seignory amounts to an Attornment in Law. The like. 9 If the Lord grant his Seignory to the Tenant of the land and to a stranger, the Tenant cannot properly and formally attorn to himself; Co. ib. 313. a. 1. but his acceptance of the grant is a good attornment in Law to extinguish the one moiety, and to vest the other moiety in the stranger. 10 If there be Lord and Tenant, and the Tenant take Feme, Littl. §. 559. Co. Inst. pars 1. 313. a. and after the Lord grant the services to the Feme and her heirs; Acceptance. Attornment. Here can be no formal attornment, because the Baron cannot attorn to himself and his wife in his wives right; yet his acceptance of the deed is a good attornment in Law to vest the services in the Feme and her heirs; but during the coverture they are suspended, etc. Grant of the Seignory to tenant for ●ife of the tenant. 11 If there be Lord and Tenant, Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for term of his life, saving the reversion to himself; Here, if the Lord grant the Seignory to the Tenant for life in fee, albeit as to all things concerning the right, the Seignory hath his being (as if the Tenant die without heir, the tenancy sh●ll escheat to the Grantée, etc.) yet as to the possession during the particular estate, the Grantée shall take no benefit of the Seignory; and therefore during that time he shall have no Rent, Service, Wardship, Relief, Heriot, or the like; because these duties belong to the possession, and he cannot do or pay them to himself. Remitter. 12 The principal cause, Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682, 683, 684, etc. why a Tenant in tail in many cases is remitted, is because (as Littleton saith) there is no person, against whom he may sue his Writ of Formedon; for none is Tenant of the Franktenement but himself, and against himself he cannot sue, etc. There is the same reason also of other Remitt●rs. Finch 19 Co. l. 33. a. 3. in the Marq. of Winchester's case. Vourcher assignee. 13 If a man make a feoffment in fee to A. his Heirs and Assigns, Co. ib. 385. b. 2. A. enfeoffeth B. in fee, who re-enfeoffeth A. he or his Assigns shall never vouch; because he cannot be his own Assignée; but if B. had enfeoffed the heir of A. he might vouch as Assignée; for the heir of A. may be Assignée to A. inasmuch as he claimeth not as heir. Warranty. 14 If Tenant in tail make feoffment to his Uncle, Co. ib. 389. b. 3. & 390. a. 1. Littl. Sect. 743. and after the Uncle make a feoffment in fee with warranty, etc. & take again an estate to him in fee, and then enfeoff a stranger without warranty, and die without issue, and the Tenant in tail die; Here the issue in tail shall not be barred by the warranty made to the first Feoffee; because that warranty by the Uncle's resuming an estate in fee of the land, is utterly defeated; For if the warranty should have stood in force, then should the Uncle have warranted it to himself, which could not be, etc. ● self act ●●id. 15 A man cannot present himself to a Benefit, Finch 19 8 H. 6. 29. 3 El. Dyer 188 make himself; an Officer, sue himself, or summon himself; and therefore if a Sheriff suffer a common recovery, it is Error, because he cannot summon himself. Finch 19 16 A man cannot be judge and party in a Suit; No Judge of two Be●ch● at once. And therefore if a justice of the Common Place be made a justice of the King's Bench (though it be but hac vice) it determineth his Patent for the Common Place; for if he should be judge of both Benches together, he should control his own judgements; because if the Common Pleas err, that error shall be reform in the King's Bench. Co. l. 1. 174. a. 3. Diggs case. 17 If a man by Indenture covenant to stand seized to the use of himself for life, the remainder to others in tail, The Feoff●● in without 〈◊〉 try or cla●● etc. and also reserve unto himself power of revocation, and doth revoke the uses accordingly, immediately upon such revocation the uses so limited are determined without entry or claim; because he himself was Tenant for life of the land, and he cannot enter or make claim upon or against himself, etc. And therefore it is agreed in the 20 E. 4. 18, & 19 that if a Feoffment be made upon collateral condition, and before condition performed, the Feoffée demiseth the land to the Feoffor, if after the Feoffor perform the condition, the land shall be immediately in the Feoffor without entry or claim; because he himself is already in possession thereof: So likewise if a Villain purchaseth rend issuing out of the Lords land, that rent shall be in the Lord without entry or claim, causa qua suprà. Co. l. 2. 51. b. 4. Sir Hugh Cholmleys' case. 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale, and to his Successors, None can present hi● self. this is void as to the Successor; because the Successor can never take any benefit thereof by way of presentation; for he cannot present himself, etc. Co. l. 4. 55. a. 1. The Saddler's case. 19 In all cases at the Common Law, No tra●●● or action against the King. when the King was seized of any estate of Inheritance or Franktenement by any matter of record, he that right had could not by the Common Law have any travers, or real action, upon which he might have an Amoveas manum; for that the King by his Writ could not command himself; but he was put to his Petition of right (in the nature of his real action) to be restored to his Franktenement and Inheritance, 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68 b. 3. John Trollops case. 20 If a Bishop himself be sued, Bishop E●communi●●on. and he pleads in disability of the party, Plaintiff, excommangement by himself or his Commissary (who is as his Deputy) albeit it be for another cause than that in question, yet that shall not disable the Plaintiff; because in this case the Bishop himself is party; and with this agrees. 16 E. 3. Excom. 5. 5 E. 2. Excom. 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9 Co. l. 8. 118. a. 1. Doctor bonham's case. 21 The Precedent and five elect of the College of Physicians in London, ought not to be judges to give Sentence or judgement, Judge and party. Ministers to make summons, and parties to have the moiety of the forfeiture; albeit they have an Act of Parliament to protect them, viz. 14 H. 8. cap. 5. For, Nemo debet esse judex in propria causa; imò iniquum est aliquem suae rei esse judicem. Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Manor of Dale, The like. yet he shall hold no plea, wherein himself is party; For Iniquum est, etc. Co. 9 123. b. 4. Anthony Lowes case. 23 The Duchy of Lancaster, before it was united to the Crown, Duchy of Lancaster. was holden of the King in Capite; but when they remained in one and the same person, the ancient tenors of the Crown did sleep perpetuo somno, because the King could not hold of himself. F. N. B. 21. i. 24 In the Common Pleas, upon Error in Process, Error in 〈◊〉 not revers● in the same Court. or in default of the Clerks, the justices there may reverse their own judgement (so it be done the same term) without suing any Writ of Error: And if it be deferred till another term, yet may it be reversed by the said judges upon a Writ of Error: But if it be Error in Law (which is the default of the justices themselves) that Court cannot reverse such a judgement, no not by a Writ of Error; For, that Error is to be redressed in another Court before other justices by Writ of Error, because the justices of the Common Pleas are not competent judges of their own error. Conspiracy. 25 A writ of Conspiracy cannot properly lie against one single person; because one person cannot be said to conspire with himself. F. N. B. 116. l. None can be a prisoner to himself. 26 If the Warden of the Fleet, who hath his office in fee, Pl. Co. 37 a. 3. The Sheriffs of London's case. die seized, his Son and Heir being then in prison, and the office descends unto him being so in prison; In this case, the Law will adjudge him out of prison, albeit the Fetters be upon his legs; for that he cannot keep himself in prison, and therefore shall be adjudged at large. No donor to himself, Stat. 27 H. 8. 27 If A. seized of lands in fee before the Statute of uses (made Anno, Pl. Co. 59 a. 4. Wimbish and Talbois case. 27 H. 8.) had granted the same lands to Feoffees in trust to the use of himself and his wife in tail, and afterwards the Statute is made; Here, by force of that Statute, the possession being conveyed to the use the Feoffors are Donors, and not A. For it seemeth improper and repugnant, that A. should be Donor to himself. Feoffees of lands charged with a recognizance. 28 If the Conisor of a Recognizance (according to the Statute of 23 H. 8. cap. 6.) enfeoff the Conisee of parcel of the land, Pl. Co. 72. b 3. Rosse Vens Sir Tho. Pope. in Audita quaerela. F. N. B. 104, n. & 105. c. Vide Dyer 193. 30. 2, 3 Eliz. and a stranger of another parcel, and reserve parcel in his own hands; Here, the Conisee shall not have execution against the stranger: For if one Feoffee of the Conisor (where his land only is put in execution) may have an Audita quaerela, against all the other Feoffees, to make their lands also to be put in execution, and to be contributory to the entire charge; By the same reason, if the Conisee himself be one of the Feoffees, the lands in the hands of the other Feoffees shall not be chargeable with the execution; for that the Conisee himself cannot be contributory with them (for his part) towards the satisfying of the charge; because he cannot contribute to himself, neither can he be contributory for a personal thing due to himself; Neither yet shall the Charge be apportioned, but all shall be extinct as against the other Feoffees: Howbeit against the Conisor himself, the Conisee shall have execution for the parcel still remaining in his hand, etc. Lands to be sold by Executors. 29 At the Common Law, Co. Inst. pars 1. 113. a. 3. if lands had been willed to be sold by Executors, or had been devised to Executors to be sold, if any of them had refused, the rest could not have sold them: but now that is helped by the Statute of 21 H. 8. cap. 4. viz. the first by the express words of that Statute, and the other by the equity of the same: Howbeit in neither of those cases, when the one refuseth, can the other make sale to him, that so refuseth; because he is party and privy to the last will, and remaineth Executor still. The younger ●rother chargeth the land ●f the elder. 30 The younger brother disseiseth the elder, Dyer 5. 1. 25 H. 8. who is barred in an Assize by a false oath, the younger chargeth the land, and dies without issue, and the land descends to the elder brother; In this case, the elder brother is without remedy, because there is none (but himself) against whom he may bring the attaint, and therefore he shall still hold the land charged. ●ythes. 31 If the Parson of a Church purchase a Manor within his Parish; Dyer 43. 21. 30 H. 8. Here, by this purchase and unity of possession, the Manor, which was tytheable before, is now made non decimabilis, because he cannot pay tithes to himself. ●itnesse. 32 It was resolved in the Common Bench, Co. Inst. pars 1 6. b. 4. Pasch. 10 Jac. that a wife cannot be produced as a witness, either against or for her husband, because they are one person in Law, Duae animae in carne una, and he cannot be a witness to or for himself in his own cause. Dyer 220. 14. 5 Eliz. 33 A recognizance was acknowledged to Sir Nicholas Bacon and two others before Sir Nicholas himself, being then Lord Keeper, Recognisance and it was adjudged void as to him, and good for the others. Dyer 279. 10, 11 Eliz. 34 The Citizens of York were incorporate by R. 2. York City. by the name of Major, Sheriffs, and Citizens, and claim to be so before by prescription, and to have a custom to seize goods foreign bought, & foreign sold; Now in a suit against them for seizing such goods, the Venire facias issued to the Sheriff of the County, De vicinetu Castri Eborum, because it was next adjacent to the City; for it was not thought fit to direct it to the Sheriffs or Coroners of York, because they were Citizens and parties. Dyer 304. 54. 14 Eliz. 35 The next avoidance is granted to three, Quare Impedit. Habendum iis & uni eorum conjunctim & divisim, the first presents the third, who is admitted, instituted, and inducted, and adjudged good; Howbeit, if the Bishop had refused to admit him alone, his Quare Impedit, peradventure would have failed, he having a joint Interest in the avoidance, and the Habendum being void in Law, as it seems. Hob. 10. Friar and Gildridg. 36 The Obligée made the wife of one of the Obligors his Executrix, Debt ext●● and died, the woman Executrix administered, than her husband being one of the Obligors, made her his Executrix, and died, leaving assets to pay the debt, than she died, and a stranger took administration of the goods of the Obligée unadministred, and brought his action against the surviving Obligor; but it was adjudged per Curiam, that the action would not lie, because when one of the Obligors made the Executrix of the Obligée his Executrix, and left assets, she could not sue herself, but the debt was presently satisfied by way of retainer, and (consequently) no new action could be had for that debt. Vide suprà, 46. 4. Hob. 85. Day and Savage. 37 Trial of the Customs of London shall not be by Certificate from the Major and Aldermen of that City (albeit it be by their Recorder) to the superior Courts of justice, Customs of London. because they cannot be judges and parties, when their Customs come in question. 55 The Law favoureth privity. Vide Max. 47. 16. Co. Inst. pars 1 28. a. 2. 1 Tenant in tail after possibility of issue extinct hath divers privileges annexed to his estate, Tenant in 〈◊〉 after possibility. which a bare Tenant for life hath not (for which see Co. Inst. pars 1. 27. b.) nevertheless if he grant over his estate to another, his Grantee shall not have them; for he hath those privileges in respect of the privity of his estate, and of the inheritance that was once in him: And therefore it was adjudged in the case of one Evens, Mich. 28, & 29 Eliz. that where Tenant in tail after possibility of issue extinct granted over his estate to another, that the Grantée was compelled to atturn in a Quid juris clamat, as a bare Tenant for life, Quid jur●● clamat. and is so to be named in the writ; For by the assignment the privity of the estate being altered, the privilege was gone; and this judgement was affirmed in a writ of Error: And herewith also agreeth 27 H. 6. Aid, Statham, 29 E. 3. 1. b. Co. l. 11. fol. 83. b. Bowls case. Vide infrà 116. Co. ib. 35. a. 1. 2 If the husband make several feoffments of several parcels, Assignment Dower by 〈◊〉 Feoffee, & 〈◊〉 the heir. and dyeth: and one of the Feoffées assign dower to the wife of a parcel of land in satisfaction of all the Dower, which she ought to have in the lands of the other Feoffées; In this case the other Feoffées shall take no benefit of that assignment; because they are strangers thereunto, and cannot plead the same: But in the same case, if the husband died seized of other lands in Fée-simple, and the same descended to the heir, and the heir endoweth the wife of certain of those lands in full satisfaction of all the dower that she ought to have, as well in the lands of the Feoffées, as in his own lands, this assignment is good, and the several Feoffées shall take advantage of it: And therefore if the wife bring a Writ of Dower against any of them, they may vouch the heir, and he may plead the assignment which he himself hath made in safety of himself, lest they should recover in value against him; So as there is a privity in this respect between the Heir and the Feoffées, and by this means the assignment may be pleaded by the heir that made it. Livery to the Lessee for years. 3 If a man let lands for years, the remainder over to another in fee, Co. ib. 49. a. ●. & 143. a. 2. Albeit livery be not necessary for the Lessee for years, yet because the immediate possession belongeth to him, he must of necessity take the livery, otherwise no estate can pass to him in remainder: And livery being accordingly made unto him, it shall convey the estate to him, in remainder, by reason of the privity of those estates; For, the particular estate and the remainders, which depends upon it (though there be never so many) do all make in Law but one estate; and therefore livery to the Lessee for years shall enure to him in remainder, etc. Waste. 4 The advantage of bringing an action of Waste consists in privity; Co. ib. 53. b. 3, 4. for if after the Waste done, the Reversioner granteth away his estate, albeit he afterwards taketh back the whole estate again, yet as the Waste dispunishable; So likewise if he grant the reversion to the use of himself and his wife, and of his heirs, yet the Waste is dispunishable, etc. because the estate of the reversion (wherein the privity is to that purpose consisted) continueth not, but is altered, etc. If an estate tail determines, hanging the action of Waste, so that the Plaintiff becomes Tenant in tail after possibility, etc. the action of Waste is gone. If the Tenant doth Waste, and he in the reversion dieth, the heir shall not have an action of Waste for the Waste done in the life of the Ancestor; nor a Bishop, Master of an Hospital, Parson, or the like, for Waste done in the time of the Predecessor: And so if Lessee for years doth Waste and dieth, an action of Waste lieth not against the Executor or Administrator, for Waste done before their time: But if there be two Coparceners of a reversion, and Waste is committed, and the one of them die, the Aunt and the Niece shall join in an action of Waste, etc. Vide Inst. 116. ●mage. 5 If there be two Coparceners or joint-tenants of a Seignory, Co. ib. 67. b. 2. if the Tenant doth Homage and Fealty to one of them, he shall be excused against the other; and this is by reason of the privity and entireness of their estate. Homage extinct. 6 In homage Ancestrel, Co. ib. 102 b. 3. continuance of blood on the Lord's side is not always necessary; for an Abbot, Prior, Bishop, or the like, may be Lord by Homage Ancestrel; but yet there ought to be privity of succession time out of mind in one and the same politic body; for if that body be once dissolved, though a new one be bounded of the same name, and all the possessions be granted to them, yet the Homage Ancestrel is gone; Howbeit if a Prior and Covent be translated (Concurrentibus hiis, quae in jure requiruntur) to an Abbot and Covent, or to Deane and Chapter; In that case, because the privity is preserved, the Homage Ancestrel doth also remain; for albeit the name be changed, yet the body was never dissolved, but in effect remaineth still, etc. Homage extinct upon alienation. 7 If the Tenant that holds by Homage Ancestrel, Co. ib. 103. a. 3. Litt. Sect. 147. aliens his land to another, the Alienee shall not hold of the Lord by Homage Ancestrel, because the privity of the estate is altered, and the continuance of it in the blood of the Tenant is dissolved: And if the Tenant take again an estate in see of the land from the Alienee, he than holdeth by Homage, but he shall not hold by Homage Ancestrel, causa qua suprà: So it is also if the Tenant make a feoffment in fee upon condition, and dieth, his heir performeth the condition, and reentreth; Here, the Homage Ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate, as it was agreed in a Case between the Lord Cromwell, and one Andrews, Mich. 14, & 15 Eliz. But if the Tenant maketh a lease for life, or a gift in tail, this is a continuance of the privity and estate in the Tenant, in respect of the reversion that remaineth in him; because in that case the see was never out of him, etc. Co. l. 8. 75. b. 3. The Lord Staffords case. Co. ib. 103. b. 2. 8 If the Tenant by Homage Ancestrel alien his land, The like. and the Alienée is impleaded, and vouch the Alienor, albeit he cometh in (by fiction of Law) to many purposes in privity of his former estate; yet to this purpose he cannot come in, as Tenant by Homage Ancestrel, because of the discontinuance of the estate and privity, for that the tenancy was not continued in the blood of the Tenant: And therefore Britton saith, Britt. 170. a. Et come ascun soit vouch per homage & le Signior tend à averrer que le tenement dount il est vouch, fuit translate horse del sank del primer purchassour per feoffment, ou per ascune autre translation; en tiel cas, soit le tenant charge de voucher son feoffor, ou ses heirs, etc. Howbeit if the land were recovered against the Tenant upon a faint title, and the Tenant recover the same again in an action of an higher nature; Here the Homage Ancestrel remains; because in that case, the right was a sufficient mean to preserve the privity and continuance: So it is also if he had reversed it in a writ of Error. Co. ib. 103. a. 4. 9 If Cestuy que use after the Statute of 1 R. 3. 1. Cestuy q●● use. and before the Statute of Uses, (27 H. 8. 10.) had made a feoffment in fee, upon condition, and entered for the condition broken, he should have detained the land against the Feoffées for ever; for that the estate and privity was for the time taken out of the Feoffées, and thereby dissolved for ever. Co. ib. 117. a. 2. 10 The Lord shall not take advantage of any obligation, covenant, Things in action. or other thing in action made to the Villain, because they lie in privity, and cannot be transferred to others: Neither shall the Lord have a thing in action by Escheat; for the same reason, Co. l. 10. 48. a. 3. Lampets' case: Co. Ibid. Neither yet shall the Lord by voucher or otherwise take advantage of a warranty made to a Villain his heirs and assigns, because it is in lieu of an action, and consists in privity, etc. Co. Inst. pars 1. 130. b. 1. 11 Albeit the Vouchee, Tenant by resceit, Prayée in aid, A protecti●● cast for v●●chee, etc. or Garnishée be no Parties to the Writ, yet before they appear, a Protection may be cast for them; because when the Demandant grants the Voucher or resceit in judgement of Law, they are made privy; And although the Demandant counterplead the Voucher or resceit, yet if it be adjudged for them, and so they made privy in Law, a Protection may be cast for them, as aforesaid: And so it is of the Garnishée, a Protection may be cast for him at the day of the return of the Scire facias, etc. Co. ib. 146. a. 1. 12 If a Rent-charge be granted to A. and B. and their Heirs, joint-tenants in Avowry. A. distraineth the beasts of the Grantor, & he sueth a Replevin, A. avoweth for himself, and maketh conusance for B.A. dieth and B. surviveth; In this case, B. shall not afterwards have a Writ of annuity; because the election and Avowry for the rent by A. barreth B. of any election to make it an annuity, albeit he assented not to the Avowry, and this is by reason of the privity of their estate, etc. Co. ib. 170. b. 1. 13 Husband and Wife Tenants in special Tail have issue a daughter, the Wife dieth, Coparcen●● the Husband by a second Wife hath issue another daughter, both the daughters enter (where the eldest is only inheritable) and make partition; here, the eldest daughter is concluded during her life to impeach the partition; or to say that the youngest is not Heir, and yet the youngest is a stranger to the Tail; but in respect of privity of their persons, the partition shall conclude; for a petition between mere strangers in that case is void: Howbeit the issue of the eldest shall avoid this partition, as issue in Tail. The like. 14 I. S. seized of Lands in Fee hath issue two daughters, Co. ib. 170. b. 2. viz. Rose bastard eigne, and Anne mulier puisne and dieth, Rose and Anne do enter, and make partition; In this case, Anne and her Heirs are concluded for ever; and this is by force of the Privity, that is betwixt them. account. 15 An action of Account must he grounded upon Privity; Co. ib. 172. a. 4. for without Privity no Action of Account can be maintained, viz. either a Privity indeed by the consent of the party as in such an action against a Receiver, or Bailife (for against a Disseisor or other wronged doer no account doth lie) or a privity in Law (ex provisione legis) made by Law, as against a Guardian in soccage, etc. alienation of 〈◊〉 property in 〈◊〉 coparcenary. 16 In coparcenarie, if one of the parts be evicted by an eigne title, Co. ib. 173. b. 2. Littl. Sect. 262. she that so loseth her part shall enter upon the rest to have recompense, etc. because yet the Privity, which the Law creates betwixt them, doth still remain, but if one of the parceners sell her part, and then the part, which the other parcener hath, is evicted, etc. In that case, the parcener, that so loseth her part, shall not enter upon the Alienée; for that by the alienation the privity is dissolved: Littl. §. 260, And therefore if a man hath land in tail, and also as much in Fée-simple, and hath issue two Daughters, and die, and the Daughters make partition, so that the entailed land is allotted to the eldest, and the Fée-simple land to the youngest; Here, if the youngest Daughter alien the Fee-simple land to another in fee, and hath issue, and die, the issue may well enter into the entailed land, and shall hold it in property with her Aunt; Yet shall not the eldest sister enter into half of the lands in Fee-simple upon the Alienee; because by the alienation the privity of the estate was destroyed, etc. So it is also, Co. ib. 172. b. 4. if the youngest Daughter had made a gift in tail; because the reversion expectant upon an estate tail is of no account in Law; for that it may be cut off by the Tenant in tail at his pleasure; Exchange. It is otherwise of an estate for life, or years, etc. And what is said of parcenary, is also true of exchange in point of eviction, etc. ●oparceners. 17 If a man is seized of a Carve of land by just title, Littl. §. 262. Co. ib. 173. b. and disseiseth and Infant within age of another Carve, and hath issue two daughters, and dies, and the Carve by good title is allotted to the eldest, and the other to the youngest, who alieneth it to another in fee, and after the Infant at full age enters upon the Alienee; In this case, the youngest daughter hath excluded herself from having any part of the Carve by good title; for that by her alienation the privity was destroyed: Howbeit if the youngest daughter before the entry of the Infant had only granted it for years, or life, or in tail, saving the reversion, there peradventure it were otherwise; because in that case the privity is not utterly destroyed, she having reserved to herself the reversion and fee. eviction in coparcenary. 18 In coparcenary, Co. ib. 173. b. 4. if the whole estate in part of the purparty be evicted, that shall avoid the partition in the whole, be it of a Manor, which is entire, or of acres of ground, or the like, that be several; for in that case the privity remains, and the partition implieth (for this purpose) both a warranty and a condition in Law, and either of them is entire, and therefore doth give in this case an entry into the whole: And so hath it been resolved (in Bastard's case, Co. l. 4. fol. 121.) both in the case of partition, as also of an exchange. There is likewise the same reason, when any estate of is evicted from the Coparcener in all or part of her property; for than it shall be also avoided in the whole: As if A. be seized in fee of one acre of land in possession, and of the reversion of another expectant upon an estate for life, and he disseise the Lessee for life, who makes continual claim; A. dieth seized of of both acres, having two daughters, partition is made, so as the one acre is allotted to the one, and the other acre to the other, the Lessee enters, the partition is avoided for the whole, and so likewise was it resolved in the case abovesaid. Vide infrà 100 Co. ib. 186. b. 2. 19 If there be two joint-tenants of an Advowson, joint-tenants of an advowson. and the one presenteth to the Church, and his Clerk is admitted and instituted, this in respect of the privity shall not put the other out of possession; but if that joint-tenant that presented, dieth, it shall serve for a title in a Quare Impedit brought by the Survivor. Littl. Sect. 304. Co. ib. 193. b. 1. 20 If there be three joint-tenants, Joyntenant● Release. and one of them releaseth to another of his companions all his right in the land without the word Heirs, this shall enure to that companion and his heirs, to hold that part in common with the other joint-tenant; and this is by reason of the privity of their estate, and for that he, to whom the release is made, is seized per my & per tout, of the fee and inheritance. Co. ib. 193. b. 2. 21 If there be two Coparceners, Coparceners Release. and the one hath issue twenty daughters, and dieth, the other may release to any one of the daughters her whole part: And here, albeit she, to whom the release is made, hath not an equal part; Nevertheless, by reason of the privity and the entireness of the estate the release is good, although it be made without the word Heirs: But if there be two joint-tenants of twenty acres, and the one maketh a feoffment of his part in eighteen acres, joyntenants' release. the other cannot release his entire part, but only in two acres, because the joint-tenant is severed for the residue. Littl. Sect. 334. Co. ibid. 205. b. 4. & 207. a. 1. 22 If a feoffment be made in Mortgage upon condition, Privity bet●● Ancestor an● Heir, Test●● and Exec●● Intestate and Administrator, Ordina●● that the Feoffor shall pay such a sum at such a day; albeit the Feoffor die before the day of payment, yet may the heir redéem the Mortgage by the payment or tender of the money; So also may the Executor or Administrator, or (in their default) the Ordinary; although there be no mention in the deed of payment by any of them: And all this by reason of the privity betwixt the Ancestor and heir which is, and the Testator and Executor, and the Intestate and Administrator, or Ordinary; for the heir is privy in blood, and the Executor, Administrator, and Ordinary are privies in right. Littl. Sect. 336. Co. ib. 207. b. 4. & 208. a. 2. 23 If a feoffment be made upon condition, Feoffee up●● condition may red●●● that the Feoffée shall pay xxl. unto the Feoffor upon such a day, etc. And if payment be not made, that then it shall be lawful for the Feoffor, etc. to re-enter. If the Feoffée sell the land to a stranger, payment or tender made by either of the Feoffées shall be effectual to settle the estate in the last Feoffée; for the first Feoffée may do it, because he was privy to the condition; and the last may also do it, because he was privy in estate, and in judgement of Law hath an estate and interest in the condition for the salvation of his tenancy. Co. ib. 208. b. 3. 24 There is a diversity between a condition of an Obligation, Condition from Obl●● or Feoffee. or a condition upon a feoffment, where the Act that is local is to be done to a stranger, and where to the Obligée or Feoffor himself: As if one make a feoffment in fee, upon condition that the Feoffée shall infeoff a stranger, and no time limited, the Feoffée shall not have time during his life to make the feoffment; for than he should take the profits in the mean time to his own use, which the stranger ought to have, and there is no privity between the Feoffée and the Stranger, and therefore he ought to make the feoffment as soon as conveniently he may, and so it is also of the condition of an Obligation: But if the condition be, that the Feoffée shall re-enfeoff the Feoffor, there the Feoffee hath time during his life, by reason of the privity of the condition, that is between them, unless the Feoffee in this case be hastened by request, etc. Co. ib. 209. a. 3 25 For the redemption of an estate in Mortgage, Privies in 〈◊〉 the Executors or heir may make the tender; For albeit the heir be a third person, yet is he no stranger; but he, and the Executors also are privies in Law, etc. Vide Littl. Sect. 337. Privies by deed. 26 If a man enfeoff another upon condition, Co. ib. 213. a; 4. Littl. §. 345. that he and his heirs shall render unto a stranger a yearly rent, etc. This is not rend (properly so called) and the reservation is merely void, because there wants privity: But if A. be seized of certain lands, and A. and B. join in a feoffment in fee reserving a rent to them both and their heirs, and the Feoffee grant, that it shall be lawful for them and their heirs to distrain for the rent so reserved, this is a good grant of a rent to them both; because B. is party and privy to the deed, as well as A. and the clause of distress is a grant of the rent to A. and B. But if B. had been a stranger to the deed, than B. had taken nothing &c. Privies in blood, estate, and right. A reentry cannot be transferred. 27 If an estate be made upon condition, and clause of reentry, Littl. Sect. 347. Co. ib. 214. b. 4. at the Common Law none shall take advantage of such reentry, but only parties or privies; As if a man let land to another for term of life by Indenture, rendering rend to the Lessor and his heirs, and for default of payment a reentry, etc. If after the Lessor grant the reversion to another in see, and the Tenant attorn, etc. In this case the advantage of reentry is gone for ever; For albeit, if the rent happen to be arrear, the Grantee of the reversion may distrain for it, because it is incident to the reversion; yet shall he not for that cause enter into the land, and out the Tenant; for that the advantage of reentry (at the Common Law) belongs only to the Lessor himself, and unto his heir, as privy in blood unto him, and cannot by grant of the reversion be transferred unto another; neither yet can it be left in the Lessor or his heirs, because he hath departed with his whole estate in the land: But if the Lessor has died seized of the reversion, his heir should have taken advantage of such reentry; for that he is privy in blood unto him, as aforesaid. And therefore there is a diversity between the reservation of a rent, and a reentry; for a rent cannot be reserved to the heir of the Feoffor, leaving out the Feoffor himself; but the heir may take advantage of a Condition, which the Feoffor himself could never do; As if I enfeoff another of an acre of ground, upon condition, that if my heir pay to the Feoffee, etc. xx s. that he and his heirs shall re-enter, this condition is good: and if after my decease, my heir pay the xx s. he shall re-enter: for he is privy in blood, and shall enjoy the land as heir unto me. So also if a Bishop, Archdeacon, Parson, Prebend, or any other body politic or corporal; Ecclesiastical or Temporal, make a lease, etc. upon condition, his successor may enter for the condition broken, for they are privies in right: Likewise, if a man have a lease for years, and demise or grant the same upon condition, etc. and die, his Executors or Administrators shall enter for the condition broken; for they are also privies in right, and represent the person of the dead. feoffor shall ●lead a deed ●oll. 28 If feoffment be made by deed Poll upon condition, Littl. Sect. 375. and because the condition is not performed, the Feoffor enters; In this case, if either the deed Poll be pleaded by the Feoffée, and by that means showed to the Court, or that the Feoffor otherwise happens the possession of the said deed albeit that deed properly belongs to the Feoffée, and not to the Feoffor; yet because the Feoffor is privy unto it, he shall make use of it, and be received to plead it. Release. 29 If two men do trespass to another, who releaseth to one of them by his deed, the other trespassor shall make use of that release, if he have it to show; because they are parties and privies in the trespass; so likewise if two be bound in an obligation, and the Obligée releaseth to one of them, both are discharged, etc. ●●ir, Execu●●●, privies. 30 If an action of Debt upon an Obligation be brought against an heir, Littl. §. 376. Co. ib. 23●. a. he may plead in bar a release made by the Obligée to the Executors; and yet the deed doth properly belong to the Executors and not to him; but because both he and they are privies to the Testator, such a release shall enure as well to him as to them, if he be able to produce it, otherwise it shall not avail him. Littl. §. 396, 397. Co. ib. 242. a. 31 If a man seized of lands in fee hath issue two sons, and die seized, Privity of blood and title. and the youngest son enters by abatement into the land, and having issue dies thereof seized, and the issue enters into the land, this shall not be a descent to take away the entry of the eldest son, or of his heirs; because the Law intendeth that the youngest son entered claiming the land as heir to his father, and for that the eldest son claimeth also by the same title, viz. as heir to his father; therefore he and his heirs may well enter upon the second son and his heirs, in respect of the privity of blood between them, and of the claim by one and the same title: But in the same case, if after the father's death the eldest son had entered, and then the youngest son had disseised the eldest, and had died seized; that had been a descent to take away the entry of the eldest or of his heirs; for that was a plain disseisin, and the privity of blood shall not help that case, etc. So also where lands were given to the husband and wife, and the heirs of their two bodies, and they had issue a daughter, and the wife died, and the husband had issue by another wife, four sons, and died, and the eldest son abated and died seized; This descent did take away the entry of the daughter, because there wanted privity of title, for that they claimed not by one and the same title: And in the first case, albeit the eldest son hath issue and dieth, and that after his decease the youngest son or his heir entereth, and many descents be cast in his line; Yet may the heirs of the eldest son enter, in respect of the privity of the blood, and of the same claim by one title: But if the youngest son make a feoffment in fee, and the Feoffée die seized, that descent shall take away the entry of the eldest, in respect that the privity of the blood faileth: And admit, that the youngest son be but of the half blood to his brother, yet is he of the whole blood to his father; and therefore if he entereth by abatement, and dieth seized, it shall not bar his elder brother of his entry; Howbeit, if after the decease of the Father, a Stranger doth first enter and abate, upon whom the youngest son entereth and disseiseth him, and die seized, this descent shall bind the eldest; for he entered by disseisin, and not by abatement, etc. Co. ib. 243. a. 1 32 If a man be seized of lands in the nature of Burgh English, Privity of blood and ●●tle. and hath issue two sons and die, and the eldest son, before any entry made by the youngest, entereth into the land by abatement, and dieth seized, this shall not take away the entry of the youngest brother, in respect of the privity of blood betwixt them, and for that they claim by one title, etc. Co. ibid. 33 If the father make a lease for life, The like. and hath issue two sons and dieth, and the Tenant for life dieth, and the youngest son intrude, and die seized, this descent shall not take away the entry of the eldest, causa qua suprà: But if the father had made a lease for years, it had been otherwise; for that the possession of the Lessée for years maketh an actual freehold in the eldest son, etc. Co. ib. 243. a. 2. 34 If two Coparceners make partition to present by turn, The like. and one of them usurp in the turn of the other, this usurpation shall not put the other out of possession, because of the privity betwixt them, and for that they claim by one title; and albeit they do severally present to the Ordinary, yet the Church is not litigious for the same reason. Co. ibid. 35 Upon a writ of Di●m clausit extremum, The like. if the youngest son had been found heir, the eldest had no remedy by the Common Law; because they claimed by one title, etc. but now that is helped by the Statute of 2 E. 6. cap. 8. Co. ib. 243. a. 3. 36 If two persons be in debate for tithes, Tithes un●● one Pat●●● which amount to above the fourth part, and one man is Patron of both Churches, no Indicavit doth lie, for that both Incumbents claim by one and the same Patron, etc. Fitz. N. B. 45. Mortdancester. 37 Assisa mortis antecessoris non tenet inter conjunctas personas, Co. ib. 242. a. 4 Littl. Sect. 398. sicut fratres & sorores, etc. For these are privy in blood; but it lieth against strangers, and then damages are to be recovered against a stranger, but not against his brother. Privity of blood and title. 38 If a man seized of lands in fee, hath issue two daughters, Co. ib. 243. b. 2. and die the eldest enters into the whole, and hath issue and dies seized, and her issue enters, and hath also issue and dies seized, and the second issue enters, & sic ultrà. Yet the youngest daughter or her issue, as to her moiety, may enter upon whatsoever issue of the eldest, notwithstanding such descent, because they claim by one and the same title, and by reason of the privity the entry of the eldest shall be accounted in law the entry of them both, etc. Howbeit in the same case, if both the sisters had entered after the death of their father, and had been seized, and then the eldest sister had disseised the youngest of her moiety, and had issue, and died seized, and the lands had descended to the issue of the eldest sister, then could not the youngest sister nor her heirs have entered, etc. causa qua suprà: So also if one Coparcener enter claiming the whole, and make a feoffment in fee, and take an estate to her and her heirs, and hath issue, and die seized; this descent shall take away the entry of the other sister, because by the Feoffment the privity of the Coparcenary was destroyed, etc. In joint-tenants, privity in title. 39 If lands be given to two, and to the heirs of one of them, Co. ib. 247. b. 3. he that hath the Fée-simple shall not have an action of Waste upon the Statute of Gloucester, against the joint-tenant for life; but his heir shall maintain an action of Waste against him upon the same Statute, so that the heir shall in this case maintain an action, which the Ancestor could not: And this is in respect of the privity betwixt the joint-tenants, and for that they claim by one and the same title; whereas after the decease of the joint-tenant that had the fee, the Survivor claims by one title, and the heir by another, viz. the one by the first feoffment, and the other by descent from his father, etc. 40 If land be let to a man for term of life, the remainder for life, Littl. §. 416. Co. ib. 252. a. 3. the remainder in fee, Privity in estate. and the Tenant for life alien in fee, and he in the remainder for life make continual claim before the dying seized of the Alienée, and after the Alienée dies seized, and then he in the remainder for life dies before any entry made by him; In this case, he in the remainder in fee shall take advantage of the continual claim made by the Tenant in remainder for life, and may enter upon the heir of the Alienée; because the right of entry, which the Tenant for life in remainder had gained by his entry, shall go to him in the remainder in fee, in respect of the privity of estate, and so it is also of him in the reversion in fee in like case; for he is also privy in estate, etc. The like. 41 If two joint-tenants be disseised, Co. ibid. and the one of them makes continual claim and dieth, the Survivor shall take benefit of his continual claim, in respect of the privity of their estate. The like. 42 If Tenant in tail, the remainder in fee with warranty, Co. ibid. have judgement to recover in value, and dieth before execution without issue, he in remainder shall sue execution; for he hath right thereunto as privy in estate. Seignory per ●qua servitia. 43 If a Seignory be granted by fine to one for life, Co. ibid. the remainder in fee, the Grantee for life dieth, he in the remainder shall have a per quae fervitia, for he hath right to the remainder, and is privy in estate. Co. ib. 265. b. 4. Littl. Sect. 491. Co. lib. 8. 151. b. 3. Edward Althams' case. Co. ib. 266. a. 1. Littl. §. 490. a. Infrà 114. Co. ib. 284. b. 3. 44 In a praecipe quod reddat, Privity of vouchee, etc. a release from the Demandant to the Vouchée is good, and yet the Vouchée hath nothing in the land; but the reason of that is, because when the Vouchée entereth into the warranty, he becometh Tenant to the Demandant, and may render the land to him, in respect of the privity between them; Howbeit a stranger cannot release to the Vouchée; because in rei veritate he is not Tenant of the land: And therefore if after the Vouchée hath entered into warranty, and become Tenant in Law, a collateral Ancestor of the Demandant releaseth to the Vouchée with warranty, he shall not plead this against the Demandant; for that release by a stranger is void, because there wants privity, etc. So also it is, if the Tenant alien hanging the praecipe, the release of the Demandant to the Tenant the praecipe is good, and yet he hath nothing in the land, etc. Co. l. 1. 87. b. Corbets case, per Walmsley. Co. Inst. pars 1. 266. a. 1. 45 In time of vacation, an Annuity, that the Parson ought to pay, Release to 〈◊〉 Patron good. may be released to the Patron, in respect of the privity: But a release to the Ordinary only seemeth not good, because the Annuity is temporal. Littl. § 452. Co. ib. 267. b. 1. 46 A release of a right made to him in reversion or remainder, Privies in estate. shall aid & benefit him that hath the particular estate, for years or life, or an estate tail; So likewise shall a release of a right made to the particular Tenant for life, or in tail, aid and benefit him or them in the remainder, etc. because they are all privies in estate, etc. Littl. Sect. 454. Co. ibid. 268. a. 47 If there be Lord and Tenant, and the Tenant is disseised, Release to privies go●d. and the Lord release to the Disseisee all his right in the Seignory and in the land; this is a good release, and the Seignory is thereby extinct; and this is by reason of the privity, that is between the Lord and the Disseisee. And therefore there is an observable difference betwixt a Seignory or Rent-service, and a Rent-charge; For a Seignory or Rent-service may be released & extinguished to him, that hath but a bare right in the land, and the reason of this is in respect of the privity between the Lord and the Tenant in right; For the Disseisee is not only in that case as Tenant to the Avowry; but if he die, his heir within age, the heir shall be in ward, and if of full age, he shall pay relief; and if he die without heir, the land shall escheat: but there is no such privity in case of a Rent-charge, for there the charge only lieth upon the land: A Seignory may likewise be released by the Demandant to the Vouchee, Co. ib. 269. a. 1. as also by the Donor to the Donee, after the Donée hath discontinued in fee, and this is merely in respect of privity without any estate or right, etc. And therefore if the Donée in tail maketh a feoffment in fee, and the Donor release to him and his heirs all his right in the land, this shall extinguish the rent; because the Lord must avow upon him, and yet the Tenant in tail after the feoffment hath no right in the land; but the reason is in respect of the privity, and for that the Donor is of necessity compellable to avow upon him only; For, if he should avow upon the Discontinuée, than it should appear of his own showing, that the reversion, whereunto the rent is incident, should be out of him, and consequently the Avowry should abate: And so it was resolved Trin. 18 Eliz. in the Common Pleas, in Sir Thomas Wiat's case: Much more than shall a release made by the Donor to the Donée, being disseised, extinguish the rent reserved upon the gift in tail; Littl. §. 455. because in that case the Donée had still a right in him; Howbeit this is also in respect of the privity, that is betwixt the Donor and Donée; yet here by such a release no right of the reversion shall pass to the Donée, because at the time of the release he had nothing but a right in the land, etc. For a release of a right in lands and tenements to one that hath but abare right, Co. ib. 267. a. 4. & 273. a. 2, etc. regularly is void: And to make such a release available, he, to whom it is made, must have either frée-hold in Deed or in Law in possession, or a state in remainder or reversion in fee, or fée-tail, or for life, etc. Release be●ore entry ●oid. 48 A man lets his land to another for term of years, Littl. Sect. 459. Co. ib. 270 a. 3. 4. and the Lessor releaseth to the Lessée all his right, etc. before the Lessée enter into the land; that release is void, as to enlarge his estate, the Lessée having only Interest termini, and not possession of the land; but if such a Lessée enter and have possession, than such a release unto him after entry shall be available to enlarge his estate, according to the limitation of the same; by reason of the privity that is betwixt them, by force of the same lease: Howbeit if a man make a lease for years to begin presently, reserving a rent, if before the Lessée doth enter, the Lessor releaseth all the right that he hath in the land, albeit this release cannot enlarge his estate, yet it shall in respect of the privity extinguish the rent: And so it is also, if a lease be made to begin at Michaelmas, reserving a rent, and before the day, the Lessor releaseth all his right, etc. this cannot enure to enlarge the estate, nevertheless it shall extinguish the rent in respect of the privity, as it was resolved in the Exchequer 39, & 40 Eliz. between Sir Henry Woodhouse, and Sir William Paston. Release of Joyntenant of an advowson. 49 A man granteth the next avoidance of an Advowson to two, Co. ib. 270. b. ●. the one of them may before the Church become void, release to the other; For albeit the Grantor cannot release to them to increase their estate, because their interest is future, and not in possession; yet one of them to extinguish his interest, may release to the other in respect of the privity: But after the Church becomes void, then is such a release void; because it is then (as it were) but a thing in action. Pasc. 38 Eliz. in Quare Impedit, per Denuet verse l'evesque de Norwich in Com. Banco. Release to tenant at will good: to tenant at sufferance, void. 50 A release to a Tenant at will is good; Littl Sect. 460, 461. Co. ib. 276. b. 3. 271. a. 132. because between the Lessor and such a Lessée there is a possession with a privity; but a release to a Tenant at sufferance (viz. who cometh to the possession first lawfully, and then holdeth over) is utterly void; because he hath a possession without privity; As if Lessée for years hold over his term, etc. a release to him is void; for that there is no privity between them, and so are the books that speak of this matter, to be understood; for if a man entereth into land of his own wrong, and take the profits, his own words, That he will hold it at the will of the owner, cannot qualify his wrong, but he must needs be a Disseisor, and then a release to him is good; or if the owner consented thereunto, then is he a Tenant at will, and that way also a release is good: Howbeit, there is a difference, when one cometh to a particular estate in land by the act of the party, and when by act in Law; for if the Guardian hold over, he is an abator, because his interest came by act in Law, etc. Privies, their several kinds. 51 Privity in the understanding of the Law is , Co. ib. 217. a. 3. 1 Privies in estate, as between Donor and Donée, Lessor and Lessee, which privity is ever immediate: 2 Privies in Blood, as the heir to the Ancestor, or between Coparceners, etc. 3 Privies in Representation, as Executors, etc. to the Testator. 4 Privies in tenure, as the Lord and Tenant, etc. which may be reduced to two general heads, Privies in Deed, and Privies in Law. To these also may be added Privies in right, as Prececessor and Successor, unless you may rank them with Privies in Representation. Release with●●t privity ●oid. 52 A release shall not enure by way of enlarging of an estate, Co. ib. 272. b. 4. etc. Little. Sect. 547. unless there be privity of estate, as between Lessor and Lessee, Donor and Donee, for if A. make a lease to B. for life, and the Lessee maketh a lease for years, and after A. releaseth to the Lessee for years, and his heirs; this release is void to enlarge the estate; because there is no privity between A. and the Lessee for years: So likewise if a man make a lease for 20 years, and the Lessee make a lease for 10 years, if the first Lessor doth release to the second Lessée, and his heirs, that release is void: Likewise if the Donee in tail, make a Lease for his own life, and the Donor release to the Lessee and his heirs, this release is void to enlarge the estate, etc. Co. ib. 273. a. 4. 53 If a man make a Lease for years, the remainder for life, Release to privies in estate, good. a release by the Lessor to the Lessee for years, and to his heirs, is good; for that he hath both a privity and an estate; and a release also to him in the remainder for life and his heirs, Doct. Leyfields case. is good also; for these are privies in estate, etc. But they ought to have the Deed ready in their fist to plead. Co. l. 10. 93. a. 4. Littl. §. 470, 471. Co. ib. 275. a. 4. 54 If my Tenant for term of life lets the land to another for term of the life of the Lessee, the remainder to another in Fee; The like. Here, if I release to my Tenant's Lessee for life, I am barred for ever, albeit there be no mention of Heirs; because at the time of the release I had no reversion, but only a right to have a reversion; for by such a Lease and the remainder over, which my Tenant made, my reversion was discontinued or rather devested, etc. And such release shall also enure to him in remainder, to take advantage thereof; as well as the Tenant for life; because he and my Tenant's Lessee for life are privies in estate, etc. being (as it were) but as one Tenant in Law solely seized in his Demesne as in fee, at the time of the release made, etc. So likewise if a Disseisor make a Lease for life, Co. ib. 275. b. 2. and the Disseisee doth release all his right to the Lessee, this release shall enure to him in the reversion, etc. Co. ib. 279. b. 2. 55 If there be Lord and Tenant, The like. and the Tenant maketh a lease for life, the remainder in Fee, if the Lord release to the Tenant for life the rent is wholly extinguished, and he in the remainder shall take benefit thereof: So also if the heir of the Disseisor be disseised and the Disseisor make a Lease for life, the remainder in fee, if the first Disseisee release to the Tenant for life, that shall enure to him in remainder, etc. Co. ib. 285. b. 4. 56 A release of actions shall only extend to such as are privies to the Deed of release and to none other; A release of actions extends only privies. and therefore if the Disseisee release unto the Disseisor all actions real, and the Disseisor maketh a feoffment in Fee, and an Assize is brought against them, the Feoffee shall not plead the release to the Disseisor; for that he is not privy to the release: So likewise, if a Disseisor make a Lease for life, the remainder in Fee, and the Disseisee release all actions to the Tenant for life; after the death of the Tenant for life, he in the remainder shall not plead that release: Also if the Disseisee release all actions to the Disseisor, and die, this is only a bar to the Disseisee during his life, for after his decease his heir may have an action, as some have said (19 H. 6. 23. a.) And hereby may appear a manifest diversity between a release of a right, Co. ib. 286. a. 4. and a release of actions, etc. If the heir of the Disseisor make a Feoffment in Fee to two, and the Disseisée releaseth to one of the Feoffées all actions, and that Feoffee dieth, the Survivor shall not plead that release. etc. Co. ibid. 297. b. 1. 57 If the Disseisor make a Lease for life to A. and B, Disseisee affirms to j●● tenant of D●seisor. and the Disseisee confirm the estate of A. B. shall take advantage thereof; because of the privity; for the estate of A. which was confirmed, was joint with B. and in that case the Disseisee shall not enter into the land, and divest the moiety of B. So likewise, if the Disseisor enfeoff A. and B. and the heirs of B. if the Disseisee confirm the estate of B. for his life, this shall not only extend to his Companion: but also to his own whole Fee-simple, etc. release from Disseisee. 58 If a Feme Disseisoresse make a Feoffment in Fee to the use of A. for life, and after to the use of herself in tail, Co. ib. 297. b. 4. and the remainder to the use of B. in Fee, and then taketh husband the Disseisée, who releaseth to A. all his right, this shall e●●are to B, and to his own wife also; for they are all privies in estate, etc. A Confirmation works not without privi●ie. 59 A Confirmation shall never enlarge an estate, Co. ib. 296. a. 2. & 305. a. 4. & b. 2. Littl. Sect. ●38 but when there is privity, neither yet shall it regularly abridge Services, but where there is privity: As if there be Lord and Tenant, and the Tenant holds of the Lord by Fealty, and 20 s. rent, the Lord may by his Deed confirm the estate of the Tenant to hold by 12 d. or by a penny, or by an half penny, and in this case the Tenant is discharged from all other Services, but what are contained in the said Confirmation; and this is in respect of the privity between the Lord and the Tenant: but if there be Lord, Mesne, and Tenant, the Lord cannot confirm the estate of the Tenant to hold of him by lesser Services; for such a Confirmation is void; because there is no privity between them, etc. Attornment to one Joyntenant good. 60 If a reversion be granted to two by Deed, Co. ib. 310. a. 1. Co. l. 2. 67. b. Tookers case. and the Lessée attorne to one of them according to the grant, this Attornment shall enure to both the Grantées, in respect of the privity, etc. Attornment to the particular tenant vests all the remainders. 61 If a reversion be granted for life, the remainder in tail, Co. Inst. pars 1. 310. the remainder in fee; the attornment to the Grantée for life shall enure to them in remainder, to vest the remainders in them; for they are privies in estate, etc. And in this case, albeit the Tenant shall declare in express terms, that he doth only attorne to the Grantée for life, and that those in remainder shall take no benefit by that attornment after his death, yet shall the attornment be good to them all; for having attorned to the Tenant for life, the Law (which he cannot control) doth vest all the remainders, in respect of the privity, etc. Upon grant of a Seignory, or rend service, the person to be charged aught to attorne. 62 Upon the grant of a Manor or a rend service, Littl. Sect. 553. Co. ib. 311. a. 1. & b. 2. Littl. Sect. 557. none ought to attorne, but he, that is privy, and presently to be charged, and without such attornment the grant availeth not; As if a man be seized of a Manor, which is parcel in demesne, and parcel in service, if he alien this Manor to another; all that hold of the Alienor, as of his Manor, aught to attorne to the Alienee, otherwise the services remain still in the Alienor: But if the Lord make a Lease for years, or for life of a Manor, and the Fréeholders' attorne to the Lessée; here, if afterwards the reversion of that Manor be granted, the Attornment of the Lessée for years or life shall bind the Fréeholders'; for by their former Attornment, they have put the Attornment into the mouth of the Lessee, their Attornment being involved within his. So likewise, Littl. Sect. 554. if there be Lord and Tenant, and the Tenant lets his land to another for life, or makes a gift in tail, saving the reversion; Here, if the Lord grants the Seignory to another, he in the reversion ought to attorne to the Grantee, and not the Tenant for life, or in tail; for he is the true Tenant to the Lord and not they, etc. Also if there be Lord, Mesne, and Tenant, Littl. Sect. 555. and the Lord will grant the Services of the Mesne; In that case, albeit in the grant he maketh no mention at all of the Mesne, yet the Mesne ought to attorn and not the Tenant peravaile, because he is the next privy in tenure, that aught to be charged, etc. And therefore there is a diversity to be observed between a rend service, and a rend charge or a rent seck; for, as to a rend service, no man (as hath been said) can attorne, Co. ib 311. b. 2. but he that is privy, etc. So in case of a rend charge, it behoveth, that the Tenant of the Freehold doth attorn to the Grantee, without respect of any privity: And this is the reason, that the Disseisor only in the case of a grant of a rend charge, shall attorn; because he is Tenant of the ; but in case of a grant of a rend service, the Attornment of the Disseisee sufficeth in respect of the privity: And therefore if there be Lord and Tenant by homage, fealty and rent, and the Tenant is disseised, and the Lord grants the rent to another, the Disseisee attorneth this is void; but if he had granted over this whole Seignory, the attornment had been good; And the reason of this diversity is; for that when the rent is granted only, it passeth as a rent seck, and consequently the Disseisor, being Terretenant, must attorne; but when the entire Seignory is granted, than the Disseisee in respect of the privity may attorn, etc. Littl. §. 557. Co. Inst. pars 1. 312. a. 1. 63 If there be Lord and Tenant, Attornment by the per● chargeable, good. and the Tenant let his Tenement to another for life, the remainder in Fee, and after the Lord grants the services to another, etc. and the Tenant for life attornes, this is good enough; for he that is privy, and immediately Tenant to the Lord, must attorn, and that is, in this case, the Tenant for life: And so on the other side, if a Seignory be granted to one for life, the remainder to another in Fee, the attornment to the Tenant for life is an attornment to him in remainder also; because they are privies in estate, etc. Vide suprà 61. Littl. Sect. 562. 64 If there be Lord and Tenant, Attornment by the re●●oner. and the Tenant make a Lease for life, saving the reversion; Here, if the Lord grant the Seignory to the Tenant for life in Fee; in this case, he in the reversion ought to attorne to the Tenant for term of life, because he is the Tenant to the Lord, in respect of the privity, etc. Litt.. Sect. 568. Co. ib. 316. a. 1. 65 Regularly upon the grant of a reversion the Terretenant shall attorn; yet if Tenant in Dower, or by the Courtesy, Attornment by Dower 〈◊〉 Courtesy. grant over his or her estate, and afterwards the heir grant over the reversion; in respect of the privity, the Tenant in Dower, or by the Courtesy shall attorn and not the Grantée; and likewise by reason thereof they shall be subject to an action of Waste, so long as the reversion remaineth in the heir; albeit they have granted over their whole estate; because so long as the heir keepeth the reversion, they are to be attendant upon him; for that their Grantée cannot ●e Tenant in Dower, or by the Courtesy, etc. F. N. B. 55. e. 56. a. f. Littl. Sect. 571. Co. ib. 317. a. 1. 66 If land be let to a man for term of years, Attornment by Lessee for life or yea●● good. the remainder to another for term of life, reserving to the Lessor a certain rent by year; and livery is made to the Lessée for years; in this case, if the reversioner grant over his reversion, attornment made either by the Lessée for years; or by the Lessée for life in remainder, shall be available to settle the reversion in the Grantée, in respect of the privity of those estates, which depend one upon another. P. 15. Eliz. in Brasbritches case in Co. Ba. per Dyer. Littl. Sect. 574. Co. ib. 318 a. 1, 2. Co. l. 2. 67. a. Tookers case. 67 If two joint-tenants let their land for life, reserving rend, Release of one Joyntenant to another. etc. if one of them release unto the other, that release unto the other, that release is good, to settle the whole estate and rent in him, to whom the release is made, without any attornment at all of the Tenant for life, in respect of the privity between the Tenant for life and them in the reversion; So it is also, albeit there be three or more joint-tenants, and one of them release to one of the other: Howbeit, there is a difference between these releaseth; for the release in the ●●e case maketh no degree, but he, to whom the release is made, is supposed in from the first Feoffor; whereas in the other it worketh a degree, and he, to whom the release is made, is in the per by him, that made it, yet in neither of these cases is there any attornment requisite, by reason of the privity: But if one joint-tenant make a Lease for years, reserving a rent and dieth, the other joint-tenant shall have the reversion, because he claims paramount that Lease, as by the first Feoffor; Howbeit he shall not have the rent, for that there is no privity between him and the Tenant for years, as there was in the other case between the tenant for life, and them in the reversion, etc. Attornment by ●ne Joynte●ant good for ●oth. 68 If two joint Lessées for years, Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor, and he enfeoff another; Here, if one of the Lessées re-enter, this is a good attornment, and shall bind both, in respect of the privity between the joint-tenants; For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case. Grant of a Seignory by ●ne shall have ●n Assize be●ore attornment. 69 If there be Lord and Tenant, Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580, 581, 582. v. Dyer R. 5. & 6. and the Lord grants the Services by Fine; hereby the Services are immediately in the Grantée by force of the Fine; Howbeit he cannot distrain for any part of the Services without attornment, because an Avowry is in lieu of an action, which he cannot have without privity, nor privity without attornment, neither yet before attornment can he have an action of waist, a writ of entry ad communionem legem, or in consimili casu, or in casu proviso, a Writ of Customs and Services, a Writ of Ward, etc. But if a man make a Lease for years, and grant the reversion by Fine, if the Lessee be ousted, and the Conusee disseised, the Conusee without attornment shall maintain an Assize: for that Writ is maintained against a stranger, where there needeth no privity: And of such things as the Lord may seize or enter into without suing any action, the Conusee before any Attornment may take benefit, as to seize a ward or heriot, or to enter into the lands or tenements of a ward, or escheated to him, or to enter for an Alienation of Tenant for life or years, or of Tenant by Statute Merchant, Staple, or Elegit, to his Disherison. Discontinuance bars entry. 70 One of the chief reasons, why a Feoffment in fee, gift in tail, Co. ib. 327. a. 1. or Lease for the life of the Lessée, made by the Tenant in tail, doth make a discontinuance to take away the entry of him in reversion or remainder, in case the Tenant in tail die without issue, is, because the Tenant in tail, and he in the reversion or remainder are privies in estate, etc. Where it is no ●ane. 71 If Tenant in tail make a Lease for the life of the Lessée, Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another; and the Tenant for life attorns, and dies, and the Grantée of the reversion enters in the life of the Tenant in tall, and after the Tenant in tail dies; In this case, the issue cannot enter, but is put to his Formedon; in respect of the privity between the Tenant in tail and his issue, the Grantee of the reversion having seisin and execution of the entailed lands in the life, and from the grant of the Tenant in tail himself: Howbeit, if Tenant in tail make a Lease for life, and grant the reversion in fee, and the Lessee attorn as before; and that Grantee granteth it over to another, and the Lessee attorneth again to the last Grantee, and then the Lessee for life dieth; so as the reversion is executed in the life of Tenant in tail; yet this is no discontinuance, but that after the death of the Tenant in tail the issue may enter; because the last Grantee was not in of the grant of the Tenant in tail himself, but of the first Grantee, between whom and the issue in tail there is no privity, etc. ●iscontinu●ce. 72 If at this day Tenant in tail make a Lease for life, Co. ib. 333. b. 4. and after by Deed indented and enrolled according to the Statute, he bargaineth and selleth the reversion to another in fee, and the Lessee dieth, so as the reversion is executed in the life of Tenant in tail; Albeit the Bargainee is not in the per by the Tenant in tail (but rather in by force of the Statute) yet in as much as he claimeth the reversion immediately from him, which is executed in his life time, this is a discontinuance: And so it is, and for the same cause, if Tenant in tail had granted the reversion to the use of another, and his heirs, etc. in respect of the privity between the Tenant in tail and his issue, etc. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use, A trust goeth to Executory, and not to the Baron. taketh Husband and dieth, the Husband surviving, shall not have this trust, but the Executors or Administrators of the Wife, for it consisteth in privity. P. 32 Eliz. in Canc. in Withams' case, etc. Co. Inst. pars 1 352. a. 4. 74 In every Estoppel privity is required; Estoppels. for it ought to be reciprocal, viz. ought to bind both parties; and therefore (regularly) a stranger shall neither take advantage; nor be bound by an Estoppel; But privies in blood, as the heir; Privies in estate, as the Feoffee, Lessee, etc. Privies in Law, as the Lord by escheat, Tenant by the Courtesy, Tenant in Dower, the Incumbent of a Benefice, and others that come under by act in Law, or in the Post, shall be bound, and take advantage of estoppels, etc. Littl. §. 674, 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life, For an act●●● of waste pri●● is requisite. saving the reversion to the Lessor, and after one sues a feigned action against the woman, and recovers the house against her by default, so that the woman may have against him a Quod ei deforceat, according to the Statute of Westm. the second; by this, the reversion of the Lessor is discontinued, so that he cannot have any action of Waste either against the woman; because she hath not possession of the house, nor against the recoverer by feigned title; for that there is no privity between the Lessor and him; but in this case, if the Feme take Baron, and the recoverer lets the house to the Baron and Feme; Here, the Feme is in her remitter by force of the first lease; and than if the Baron and Feme make waste, the first Lessor shall have against them a writ of waste; because in as much as the Feme is in her remitter, the Reversioner is also remitted to his reversion, and so (by consequent) the privity and power of bringing a writ of Waste is recontinued: For, when the reversion is devested, the Lessor cannot have an action of Waste; because the writ is, that the Lessée did waste ad exhaeredationem of the Lessor; and that inheritance must continue at the time of the action brought. It is likewise to be observed, that in an action of waste brought by the Lessor against the Lessée, the Lessee, in respect of the privity cannot plead generally, Riens en le reversion, That the Lessor hath nothing in the reversion; but he must show how and by what means the reversion is devested out of him; but if the Grantee of a reversion bringeth an action of waste, the Lessee may plead generally, that the Lessor hath nothing in the reversion, because in that case there wants privity, etc. 〈◊〉 l. § 698. 〈◊〉 ●ib. 366. b. 3. 76 Regularly a warranty that commenceth by disseisin, is, Warranty commecing 〈◊〉 disseisin, 〈◊〉 not. when the disseisin is done immediately to the heir that is to be bound; Yet if the father be Tenant for life, the remainder to the son in fee, the father by covin and consent maketh a lease for years, to the end that the Lessee shall make a feoffment in fee, to whom the father shall release with warranty, and all is executed accordingly, the father dieth; this warranty shall not bind, albeit the disseisin was not done immediately to the son; for the feoffment of the Lessee is a disseisin to the father, who is particeps Criminis; Nevertheless by reason of the privity between the father and his Lessee, that which is done by the Lessee, is conceived done by the father; for that they are not only privies in estate, but likewise in this case, privies in combination: So if father, and son, and a third person be joint-tenants in fee, the father maketh a feoffment in fee of the whole with warranty, and dieth, the son dieth, the third person shall not only avoid the feoffment for his own part, but also for the part of the son, and he shall take advantage, that the warranty commenced by disseisin, albeit the disseisin was done to another; because all the three joint-tenants were also privies in estate, etc. So it is also if one brother make a gift in tail to another brother, and the Uncle disseise the Donee, and enfeoffeth another with warranty, the Uncle dieth, and the warranty descendeth upon the Donor, and then the Donee dieth without issue; Here, albeit the disseisin was done to the Donee, and not to the Donor, yet the warranty shall not bind him; for what was done, in this case, to the Donee, aught to be adjudged done to the Donor, because all these were privies in blood, etc. ●●rticular e●●●te and remainder, one state. 77 If there be Tenant for life, Co. ib. 369. b. 2. the remainder in fee by lawful and just title, he in the remainder may obtain and get the pretenced right or title of any stranger, and shall not thereby incur the penalties of the Statute of the 32 H. 8. cap. 9 made against buying such titles; because the particular estate and the remainder are in Law accounted as one estate, in respect of the privity that is found between them. ●ontra formam ●llationis. 78 No man shall have a writ of Contra formam collationis, Co. ib. 384. b. 1. but only the Feoffor and his heirs, who are privy to the deed, and privies in blood. F. N. B. 211. c. assignee may ●ouch. 79 If a man enfeoff A. and B. to have and to hold to them and their heirs, with a clause of warranty, Co. ib. 384. b. 3. Praedictis A. & B. & eorum haeredibus & assignatis; In this case, if A. dieth, and B. surviveth, and dieth, and the heir of B. enfeoffeth C. he shall vouch as Assignee, and yet he is but the Assignee of the heir of one of them; for in judgement of Law (and in respect of the privity) the Assignee of the heir is the Assignee of the Ancestor, and so the Assignee of the Assignee shall vouch in infinitum, within these words (his Assigns.) 80 If a man enfeoffeth A. to hold to him his heirs and Assigns, Co. ib. 3 84. b. 4. A. enfeoffeth B. and his heirs, The like. B. dieth; Here the heir of B. shall vouch as Assignée to A. to his heirs of Assigns, and Assigns of Assigns, and assigns of heirs (in respect of the privity) are comprehended within these words (his Assigns) which seemed to be a question in Bractons' time: And the Assignée shall not only vouch, but also have a Warrantia cartae. Land warranted without the word heirs. 81 If a man doth warrant land to another without this word (Heirs) his heirs shall not vouch: And, regularly, Co. ibid. if a man warrant land to a man and his heirs, without naming Assigns, his Assignée shall not vouch; But if the father be enfeoffed with warranty to him and his heirs, the father enfeoffeth the eldest son with warranty and dieth; Here, in respect of the privity, the Law giveth to the son advantage of the warranty made to the father; and the rather, because by act in Law the warranty betwixt the father and the son is extinct. Vourcher, Rebutter. 82 If a man at this day be enfeoffed with warranty to him, Co. ib. 385. a. 3. his heirs and assigns, and he make a gift in tail, the remainder in fee, and the Donée makes a feoffment in fee; Here, that Feoffée shall not vouch as Assignée; because no man shall vouch as Assignée, but he that cometh in, in privity of estate; but he must vouch his Feoffor, and that Feoffor shall vouch as Assignée; Howbeit such an Assignée may rebutt. Rebutters without privity. 83 If a warranty be made to a man and his heirs without this word (Assigns) he grants over the land to another in fee, Co. ibid. his Assignée shall not vouch, but the Assignée or any other Tenant of the land may rebutt: And albeit no man shall vouch or have a Warrantia cartae, either as 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 Error. 84 If a man be outlawed in a personal action, Co. Inst. pars 1. 289. a. 2. etc. and brings his writ of Error; if he, at whose suit he was outlawed, will plead against him a release of all actions personal, this seems to be no plea; because by the said action he shall recover nothing in the personalty, but only to reverse the Outlawry: Howbeit in that case, a release of the writ of Error is a good plea; For albeit the Plaintiff in the writ of Error 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 Error to him is sufficient to bar the Plaintiff in the writ of Error of the suit and vexation by the said writ of Error. Co. ib. 48. a. 4. & 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées, Livery to 〈◊〉 Joyntenant good to bo●●. and the Feoffor makes livery only 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, etc. So likewise, if there be two joint-tenants 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 Courtesy or in Dower, Wast against tenant in dower, and by the Courte●● can hold of none but of the heir, 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. etc. (Vide infrà 94.) Also if waste be done by a stranger, they shall answer for it, etc. Co. l. 2. 66. b. 4. Tookers' case. 87 There are two jointenants for life, Attornment 〈◊〉 one Joyntenant good 〈◊〉 both. the reversioner grants over his estate in fee, one of the jointenants only doth attorn, this is a good attornment of both to settle the reversion in the Grantee, in respect of the privity and entireness of their estate, Co. ib. 67. a. 2. etc. 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 jointenant give seisin of rent, that shall bind 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 Winchester's case. 88 Albeit by the general words of the act of attainder of all rights, Right of action not forfered by atta●●er. etc. and hereditaments, etc. made against the Lord Norris in the 28 H. 8. all his lands, etc. 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 Error, 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 only, to recover the land, is a thing which consists only 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 Upon judgement given against Tenant for life, A reversioner shall bring Error, etc. or against Tenant in tail (since the Statute de donis conditionalibus) he in the reversion or remainder may have a writ of Error, 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 Error 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, etc. Co. l. 3. 6. a. Cuppledikes case. 90 Baron and Feme are seized 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 only, 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 praecipe, and albeit the Baron who had the estate tail, was only vouched, and not the Feme, who had a joint 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 recompense 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 judgement 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 jointly seized 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 wife's inheritance had been joint 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, the remainder to D. in fee, A. makes feoffment in fee, the Feoffée suffers a common recovery, in which B. is vouched, and he over the common Vouchée; In this case A. is not bound, but B. and all the remainders over are barred: For albeit by the feoffment of A. all the remainders were discontinued, and the estates of B. C. and D. were converted to mere rights, and that the remainder could never be remitted before the estate tail in possession were recontinued; Yet in case of a common recovery (which is the common assurance of the land) he that comes in as Vouchée shall be in judgement of Law in, in privity of the estate, which he ever had; although the precedent estate, upon which the estate of the Vouchée depended, were devested or discontinued, etc. Privities of estate, diversity. 92 There are three manner of privities, Co. l. 3. 22. b. 4. Walkers case. viz. 1 In respect of the estate only. 2 Of the contract only. 3 Of the estate and contract together: Privity of the estate only, as between the Grantée of the Lessor and the Lessee, or (if the reversion escheat) between the Lord by escheat and the Lessee, so also between the Lessor and the Assignee of the Lessee, there is privity in estate only; for that there is no contract betwixt them: Privity of contract only, which extends only to the person of the Lessor and the person of the Lessee, as when the Lessee assigns over his interest, notwithstanding such assignment the privity of the Contract still remains between them (as to bring against the Lessee an action of Debt for rend arrear, or the like) albeit the privity of the estate be removed by the act of the Lessee himself: Privity of estate and contract together, is between the Lessor and Lessee themselves, so long as the estate is continued betwixt them, etc. Vide Dyer 4. b. 1. 24 H. 8. The like. 93 Lord and Tenant, the Tenant makes feoffment in fee; Co. ib. 23. a. 4. in this case, the privity which was between them in estate, or in tenure, is gone; Nevertheless for the arrearages due, as well before, as after the feoffment until notice, etc. the privity between them as to the avowry doth still remain: And at the Common Law, before the Stat. of Quia emptores terrarum, if the Tenant had made a feoffment to hold of the chief Lord, the Feoffée by no tender that he could make, could compel the Lord to avow upon him; but the Lord might still avow upon the Feoffor, for that the privity did still remain, and the Tenant by his own Act could not change the avowry of the Lord, etc. Howbeit in the first case, if the Lord grant over his Seignory, or if the Feoffor die, there the privity as to the avowry is destroyed; for that is personal, and holds only between the Lord and the Feoffor themselves in person: So also if after the assignment of the lease, the Lessor grant over his reversion, the Grantée shall not have an action of Debt against the Lessée; For the privity of contract, as to the action of Debt holds only between the Lessor and the Lessée themselves in person: So in the same case, if the Lessée die, the Lessor shall not have an action of Debt against his Executors, for the privity consists only between the Lessor and Lessee, etc. Co. ib. b. 3. 94 If Tenant in Dower, Dower, Courtesy, Waste, etc. or Tenant by the Courtesy assign over their estate, yet privity of action remains between the heir and them, so that he shall have an action of Waste against them for Waste done after the assignment: But if the heir grant over the reversion, than the privity of the Action is destroyed, and the Grantee cannot have any action of Waste save only against the Assignee; because between them there is privity of estate; but between the Grantee, and the Tenant in Dower, or Tenant by the Courtesy there is no privity at all, Vide suprà, 86. Co. ib. b. 4. 95 If the Lessor enter for the condition broken, Privity of contract. or the Lessee surrender to the Lessor; Now is the estate and term determined, and yet the Lessor shall have an action of Debt for the arrearages due before the condition broken, or the surrender made, as appears by F. N. B. 120, 122. 30 E. 3. 7. 6 H. 7. 3. b. (against the book of 32 Edw. 3. Tit. Bar 262. which is not law) And this is in respect of the privity of the Contract, which still remains between the Lessor and the Lessee, etc. Co. ibid. Vagle & Glover's case. 96 If the Lessee for years assign over his Interest, The like. and the Lessor by deed indented and enroled according to the Statute, bargain and sell the reversion to another, the Bargainee shall not have an action of Debt against the Lessee; because there is no privity between them; Nevertheless, after the assignment, the Lessor himself might have an action of Debt against the Lessee himself for rend due after the assignment; because the privity of the contract between the Lessor and Lessee doth still continue, as long as the Lessor retains the reversion: So likewise if an Executor of a Lessee for years' assigns over his interest, Co. l. 3. 24. a. 1. Overton and Sydhals case. an action of Debt lieth not against him for Rent due after the assignment: Also if Lessee for years assign over his interest and die, the Executor shall not be charged for the rent due after his death; For by the death of the Lessee the personal privity of the contract as to the action of Debt (in both these cases) was determined, Co. ibid. Brome and Hores case. 97 A. let's to C. 3 acres of land for years, rendering rend, Privity of estate and contract. the said C. assigns all his estate in one acre to another. A. suffers a common recovery to the use of B. in fee, who brings an action of Debt against the first Lessee, this action will well lie; for inasmuch as the Lessee assigns his interest but for part, & remains possessed of the residue, not only the Lessor, but also his Assignee, or he that claims under him, shall have an action of Debt for the entire rent against the Lessee; because there was not only privity of contract, but also privity in estate and contract together; and therefore in this case, the action runs with the estate: So also at the Common law before the Stat. of Quia emptores terrarum, if the Tenant had made feoffment in fee of part of the tenancy; In that case there was no apportionment, but the Lord or his Grantee shall avow upon the Feoffor, for that he remains Tenant in respect of the residue: Howbeit, if he had made feoffment of all, than the Grantee of the Lord shall not avow upon him, etc. Co. ibid. Marrow and Tur●ins case. 98 In debt against two Administrators upon a lease made to their Testator, the Defendants plead, that before the rent arrere, The like. one of them had assigned all his interest to J. S. of which the Plaintiff had notice, and accepted the rent, by the hands of the Assignee, due since the assignment, and before this rent now demanded was due; Here, upon the demurrer of the Plaintiff the judgement passed against him; because the privity of the contract was determined by the death of the Lessée, and for that after the assignment made by the Administrator, debt lieth not for rend due after such assignment. See Dyer 4. b. 1, etc. rebutter. 99 C. being possessed of a Mess with the appurtenances for 30 years, Co. l. 4. 52. a. 3. in Rawlins case. demised all his interest therein to R. and after C. (having departed with his whole interest in the Mess) by Indenture demised a Stable belonging to the same unto W. for six years. And then R. re-demiseth the whole Mess with the appurtenances to C. for 21 years; In this case, if W. be impleaded for the Stable by C. W. shall rebutt and maintain the lease of the Stable for six years against C. by way of conclusion; because all parties and privies in estate or interest are bound by Estoppels. Warranty and condition implied in exchange and ●●itition. 100 The warranty which is employed in every exchange, Co. l. 4. 121. b. 1. in Bastard's case. runs only in privity; For none shall vouch by force thereof, but only such as are parties to the exchange or their heirs and no Assignée; Howbeit an Assignée may rebutt by force thereof, albeit the exchange be without deed, as appears (3 E. 3. tit. Form. 44. 2 E. 2. Qui in vita, 16.) There is the same law also in case of partition; and as it is in case of warranty, so it is also in case of the condition, which the Law doth also imply upon every exchange: And therefore if A. exchange with B. and B. alien to C. who is evicted by title paramount; In this case C. shall not enter upon the other; for as the warranty, so also the condition runneth in privity to such only as are parties to the exchange, and to their heirs, and doth not extend to the Assignée; So likewise none shall have a Contra formam feoffementi, but the Feoffée or his heirs; Howbeit the Assignée may rebutt (Vide F. N. B. 163. c. 22 H. 6. 50 b. 30 H. 6, 7. a. 10 H. 7. n. e.) but in the same case if the title of A. who aliened not, be evicted, he shall enter into the land which he gave in exchange, albeit B. had aliened it over, etc. Vide suprà 18. & 78. Joyntenants' ●emise at will. 101 If two joint-tenants make a lease at will, rendering rend, Co. l. 5. 10. b. Hensteads case. and one of them dies, all survives to the other, and the Lessée continues his possession; Here, the survivor shall have an action for the whole rent, in respect of the privity, etc. Fuit dit. Grantees presentment to 〈◊〉 avoidance ●od seisin for 〈◊〉 Grantor. 102 A man seized of an Advowson in fee, Co. l. 5. 97. b. 4. The Countess of Northumberlands case. grants the next avoidance to another the Incumbent dies, the Grantée presents; Here, albeit the Grantor nor his Ancestors, or those whose estate he hath ever presented, yet this presentment of the Grantée shall be adjudged sufficient seisin in the Grantor and his heirs, and shall serve to make title in a Quare Impedit; And this seems to be in respect of the privity between the Grantor and the Grantee; for that the Grantee presents in the right and title of the Grantor, etc. And therefore if the presentment be alleged in the Lessor or Donor, and also in the Lessee or Donee, this is not double; for the presentment of the Lessee or Donee is the presentment of the Donor or Lessor, and the presentment of the Lessor or Donor is only traversable: So also if the Grantee for years of a Seignory, or a Guardian happen the seisin of the services, this shall be good seisin for him in the reversion: And with this agrees F. N. B. 179. f. 45 E. 3. 26. 11 E. 3. Tit. Ass. 86. ●ord paramount may ●arge tenant travail. 103 At the Common Law the Lord was not compellable to take his rent of any other then of him who was his immediate Tenant in privity, Co. l. 6. 58. a. 2. in Brediman● case. and therefore at the Common Law the Lord paramount was not compellable to accept his rent by the hands of the Tenant paravail, or by the hands of a Tenant for life, where the reversion was over. And that well appears by the Statute of Westm. 2. cap. 9 Capitalis Dominus fervitia & consuetudines sibi debetas renuebat accipere permanus alterius, quàm per manus proximi tenentis suis, & sic tenentes in dominico amiserunt proficua tenementorum suorum; Non habeat capitalis dominus potestatem distringendi tenentes in dominico, dum praedictus tenens offerat ei servitia debita & consueta. Co. l. 7. 7. b. 3. The Earl of Bedford's case. 104 If Tenant in tail of lands holden by Knight-service make leases not warranted by the Statute of 32 H. 8. cap. 28. and die, Guardian 〈◊〉 Bishop may 〈◊〉 evict voida●●● estates. his heir within age; the Guardian in privity and right of the heir in tail shall avoid those leases during the time that the heir is in Ward: So also if a Bishop make a lease for years not warranted by the Statute, (so that the lease is voidable by the Successor) and dies, the King shall avoid that lease, during the vacation of the Bishopric, viz. in privity and right of the same Bishopric; for that the Guardian in the one case, and the King in the other are not strangers, but privies in right: Howbeit in the case of the Guardian, he shall avoid the lease, as to his own interest only; but shall not prejudice the heir of his election at his full age to confirm the same leases if he please: For, Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest: So likewise, if the heir within age before the entry of the Guardian, or the Ancestor being within age, make a lease for years rendering rend,, the Guardian may enter in privity and right of the heir, and shall avoid the lease; Howbeit the Lord by escheat shall not avoid voidable estates made by his Tenant who was an Infant; for regularly none shall avoid voidable estates by reason of infancy, but only such as are parties or privies, viz. the Infant himself or his heirs, being privies in blood, and in the case abovesaid the Guardian as privy in right, etc. Co. l. 7. 13. a. 1. in Englefeilds' case. 105 Thomas Duke of Norfolk, Power 〈◊〉 vocation. in Anno 11 Eliz. conveyed his lands to the use of himself for life, and after to the use of Philip Earl of Arundel his eldest son in tail, with divers remainders over, and with proviso, that if he should be minded to alter, and revoke the said uses, and should signify his mind in writing under his own hand and seal, subscribed by three credible witnesses, that then, etc. and afterwards the said Duke was attainted of high treason: In this case, that proviso or condition was not given to the Queen by the act of the 33 H. 8. cap. 20. because the performance thereof was personal, and inseparably annexed to the person, viz. to signify his mind by writing under his own hand, which none could do but the Duke himself; upon which point all the possessions of the Dukedom so conveyed as aforesaid, were saved, and not forfeited by the attainder. Vide 44. 8. ●o. ib. 13. a. 3. 106 The Templars held divers of their possessions in Frankalmoign (which tenure, as Littleton saith, Privity st●●er then the ●●neral word 〈◊〉 an Act of ●●●liament. is annexed in privity to the blood of the Donor) and after they were dissolved, and by Parliament, Anno 17 E. 2. their possessions were given to the Hospitalers, to hold them in the same manner as the Templars held; yet by those general words they held not in Frankalmoign; because the privity of the tenure on the Tenant's part continued not, and that privity being personal and inseparable, by the general words of the act was not transferred to the Hospitalers: There is the same law of the impropriation of a Church, Founder●● inseparab●● which is also on incident inseparable to the house of Religion, whereunto the Church is impropriate: And therefore it is adjudged P. 3. E. 3. that the Hospitalers by the said Act of the 17 E. 2. should not have an Impropriation, which was formerly inseparably annexed to the Corporation of the Templars; because such a thing as that consisting in inseparable privity by the general words of an Act of Parliament shall not be transferred to others. Co. l. 7. 13. a. 4. Englefeilds' case. 107 In tempore H. 8. Brook tit. Corodie 3. it is holden, Founders●● inseparable that a foundership, which is inseparably annexed in privity to the blood of the Founder, shall not be forfeited by attainder. ●ivity in ●oud, estate ●●d law, diversities. 108 There are three manner of privities, viz. privity in blood, Co. l. 8. 42. b. 4, etc. in Whittinghams' case. privity in estate, and privity in Law: Privies in blood are meant of privies in blood Inheritable, and that is in 3 manners, viz. inheritable, as heir general, heir special, or heir general and special: Privies in estate are, as joint-tenants, Baron and Feme, Donor and Donee, Lessor and Lessee, etc. Privies in Law are, as when the Law, without blood or privity of estate, casts the land upon one, or makes his entry congeable, as the Lord by escheat, the Lord that enters for Mortmain, Lord of a Villain, etc. And first, privies inheritable, as heir general, shall take benefit of Infancy; and therefore if an Infant Tenant in Fee simple, make feoffment and die, his heir shall enter; there is the same Law also of him that is heir general and special; as if a man give lands to another and the heirs male of his body, and the Donée within age make feoffment in Fee, his Son, that is heir general and special, shall enter: It is so also of him, that is heir special and not general, as if, in the same case, the Donée hath issue two Sons, and the eldest hath issue a daughter, and the Donee dies, and the eldest Son within age makes feoffment, and dies without issue male, the youngest Son is special heir per formam doni, and shall avoid the feoffment of his brother, although he is not heir general; because he is privy in blood; and hath the land by descent. So if lands be given to one and the heirs female of his body, and the Donee, having issue a son and a daughter, makes feoffment within age and dies; Here, the daughter, being heir special (unto whom the right of entry descends) shall enter, and not the son, unto whom nothing descends: So it is likewise of the heir in Borough English; for in all cases, when any claims by descent, as heir special, he shall take benefit of a right of entry, which descends unto him for the infancy of his Ancestor: There is likewise the same Law, if his Ancestor were non compos mentis at the time of making the feoffment; because in those and such like cases, the heir general cannot enter; for that no right or title descends unto him; but the right descends to the heir special. Howbeit privies in estate (unless it be in some special cases) shall not take advantage of the infancy of the other; and therefore if Donee in tail within age make feoffment in fee and die without issue, the Donor shall not enter; because there was only privity in estate between them, and no right accrued to the Donor by the death of the Donée: So if there be two joint-tenants in fee within age, and the one maketh feoffment in fee of his moiety and dies; the survivor cannot enter by reason of the infancy of his companion; because by his feoffment the jointure was severed, so long as the feoffment remains in force; And therefore in such case the heir of the Feoffor shall have a Dum fuit infra etatem, or shall enter into the moiety: But if there be two joint-tenants within age, and they join in a feoffment; in that case a joint right shall remain in them, and therefore if one of them die, the right shall survive, and the survivor shall have the right of the land, as from the first Feoffor; which makes Littleton seem to hold (cap. Discontinuance fol. 44.) that the Survivor may enter, in respect of the right accrued unto him; For otherwise (indeed) this mischief would ensue, that the heir of that Feoffor which died, cannot enter; for that the right survived, nor yet the survivor, because he shall not take advantage of the infancy of his companion, but shall be forced to his writ of Right, which without question he may have; for that after the feoffment, the joint-tenants might have joined in it, etc. Lastly, privies in Law, as Lord by escheat, Co. ib. 44. a. 4. etc. shall never take advantage of the privity of infancy; because he is a stranger to it; and when the Infant dies without heir, the feoffment is unavoidable. The same Law of Coverture and non same memory. 109 A. grants lands to B. in tail, Accruer of estate. and farther that if B. or his heirs pay unto A. upon such a day at such a place xx s. that then B. shall have an estate of Fee-simple in the lands to him and his heirs; In this case, the privity of the estate ought to be continued, and the condition ought to be performed by B. or his heirs, Co. l. 8. 75. b. 1. The Lord Staffords case. and the performance thereof is not available, if the estate be altered (and this is proved by the Lord Lovels case in Pl. Com.) for if the Lessée for life or for years, or Donée in tail, who hath such a condition annexed to his estate, alien before the Condition performed, or if the Lessée for life or years surrender unto the Lessor, he shall never after take benefit of the Condition; because the privity of the estate in such case ought to continue; for that the increase of estate ought to enure upon the particular estate, as upon a foundation: And therefore in this case, if Lessée for life or for years, or the Donée alien all their estate, and take an estate again, and after perform the Condition; yet nothing shall thereby increase unto him; because by the absolute alienation the privity for a time was absolutely destroyed, which by any taking again of the estate cannot be revived; as if a Coparcener after partition makes feoffment in fee, and then takes again an estate to her and her heirs; in that case the privity of the estate to have aid to deraigne the warranty paramount is destroyed (11 H. 4. 22. Vide 38. E. 3. 20. b.) but if Lessée for life grant his estate upon Condition, and enter for the Condition broken, and after that perform the Condition annexed to his estate, there peradventure the fee shall accrue unto him; for the possibility was not absolutely destroyed, and when he enters for the Condition broken, he is in by his ancient estate; neither yet is it necessary that the particular estate should continue to all respects; but, if such privity of estate continue, as is capable of the increase of an estate, it sufficeth: And therefore if such a Lessée for life make a Lease for years, or such a Lessée for years make a Lease for a less term, or if such a Donée make a Lease for his own life or for years; yet for the privity of estate, that still continues in them, they are capable of a farther increase of their estate: Howbeit if such a Tenant in tail make a Lease pur altar vic; there he is not capable of any increase; because he hath gained a new redersion in fee, and the first privity remaineth not; And yet in that case if the Lessée for life die, then is the first privity of the estate revived. So if a man make a gift in special tail with such a condition of increaser, as abovesaid, and after the Feme dies without issue: so that he is now become Tenant in tail after possibility of issue extinct; In this case albeit the estate be changed, yet in as much as the privity doth still remain, he may by the performance of the Condition have fee afterwards. So also if a Lease be made to two with condition to have fee, and the one dies, the survivor may perform the condition and have fee; but if the same jointenants have made partition of the term, the condition is destroyed; for the estate in fee ought to increase to them jointly, and not in severalty, etc. Vide 34. 11. Co. l. 9 17. b. 2. Anne bedingfield's case. 110 There is a greater privity, Vourcher 〈◊〉 Dower. when the Feme is endowed of the immediate estate, which the heir of the Baron hath by descent, than when she is endowed either by a stranger, or of any other estate; for, if the Feme be endowed of the immediate estate descended to the heir of the Baron, if she be impleaded afterwards, she shall vouch the heir, and shall be newly endowed of other lands, which the heir hath; but if the Feme be endowed by the Alienée of the Baron or of the heir, if she be impleaded, she shall not vouch the Alienée to be newly endowed; And this is the cause, that when a Feme brings a Writ of Dower against the Alienée of the Baron, etc. and he vouch the heir, the Demandant may testify, that the heir hath lands descended unto him in the same County, (for to another County the original doth not extend) and may pray, that she may be endowed of his estate; and this is (for the benefit of the Voucher,) to be newly endowed. Vide in 4 E. 3. 36. & 6 E. 3. 11. The Tenant in a Writ of Dower voucheth the heir of the Baron, and the Demandant testifies, that he hath lands by descent, etc. in the same County, and judgement was given against the heir; but if he had had none there, it should have been given against the Tenant. In 6 E. 3. 20. The Feme of a stranger brings a Writ of Dower, and the Tenant voucheth the heir, etc. the Demandant shall not recover against the heir, because there wants privity: In 18 E. 3. 36. in Dower, the Tenant voucheth, and the Vouchee voucheth the heir of the Baron of the Demandant, the Demandant testifies that the heir hath assets by descent in the same County; here, the Demandant shall not recover against the heir, but against the Tenant only; for in this case, there is not immediate privity betwixt the Demandant and the heir; because the Demandant shall recover against the heir only, when the Tenant in Demesne voucheth him, and not when the Vouchée of the Tenant in Demesne voucheth him. Detainment of Charters no ●●ea. 111 No stranger, albeit he be Tenant of the land, Co. ib. 18. 2. 3. and hath the evidences conveyed unto him, may in a Writ of Dower plead Deteinment de Chartres; for, this plea lies only in privity, viz. for the heir of the Baron: And the heir also in this case may divers ways be in the degree of a stranger, so that he shall be disabled from pleading Deteinment of Chartres; as 1 If the heir hath the land by purchase; 2 If the heir did deliver the Charters to the Feme (as it is resolved 7 E. 3. Dower 101.) 3 If the heir be not immediately vouched, viz. by the Tenant in the Writ of Dower, but by his Vouchees (18 E. 3. 36.) 4 If the heir comes in as Vouchée, having no lands in the County, where the Dow●● is demanded; 5 If he comes in as Tenant by receipt, as appears in 16 E. 3. tit. Dower 57 and by many other books: And the reason hereof is manifest by the true pleading of deteinment of Charters; for he, who pleads that plea in bar of Dower, aught to plead, that he hath been always ready and yet is, to render Dower, if the Demandant will deliver unto him his writings; now Tenant by receipt, or such a Vouchée, as is aforesaid, cannot plead, that he hath been always ready to render Dower; for that the Demandant cannot recover against the heir in such cases (viz. either being Vouchée, or received) neither can he render unto the Demandant the Dower, which by the Law doth belong unto her, etc. ●laim within ●●e years by ●●urdance, ●c. 112 Upon a fine acknowledged of land according to the Statute of 4 H. 7. cap. 24. Co. lib. 9 106. a. Margaret Podgers case. The Guardian by nurture or in soccage may enter in the name of the infant, who hath right to enter into the same lands, and this shall vest the estate in the infant without any commandment or assent; because there is privity between them: So likewise he in the reversion expectant upon an estate for life or years, or the Lord of a Tenant by copy, etc. may well enter (within that Act) in the name of the Tenant for life, Lessée for years, or Tenant by Copy, and also in their own right, as well to save their own Franktenement and Inheritance, as also the said particular interests; for the Lessor, or the Lord are not Strangers, because they are privies in estate: And as the entries of those particular Tenants shall avail the Lessor and the Lord in those cases in respect of the privity of their estates; So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall avail the same Tenants, in regard of the privity of their estates, and for the salvation of their several rights, without any request precedent, or assent subsequent: for in these cases the Lessor and the Lord pursue the title and claim, which they have to the inheritance, by lawful entry within the five years, according to the saying contained in the said Act: Howbeit he that is a mere stranger, and hath no right, shall not by his entry within the 5 years in the name of him, that right hath, avoid such a fine, unless he have some request or commandment precedent, or assent subsequent to authorise him to do it; because the said Act hath appropriated the pursuit thereof, by way of action or lawful entry, unto him that right hath, either by interest, or privity, or else by request or Commandment precedent, or assent subsequent, etc. Co. l. 10. 43. b. 4. Jennings case. 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder (as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against T●● for life. ibid. 13. 44. Ass. pl. 35. & 5 E. 4. 2.) And the reason hereof is, because the particular estate and the estate in remainder (in respect of the privity) make but one estate, and one warranty may extend to both, and therefore the recompense in value shall also enure to both. Co. l. 10. 48. a. 3. in Lampets' case. 114 Albeit the wisdom and policy of the Sages of our Law hath provided, that no possibility, right, title, Right and title may be released, 〈◊〉 not transfered. or thing in action shall be granted or assigned to strangers, to avoid multiplicity of suits, oppression of the people (principally of the Terretenants) and the subversion of the due and equal execution of justice; Nevertheless all rights, titles, and actions by the prudence and policy of the Law, may be released to the Terretenant for the same reason of his repose and quiet, and for the avoidance of suits and contentions, and to the end every one should live in his calling with peace and plenty: And therefore a right or title to the Franktenement or Inheritance (be it in presenti or futuro) may be released in five manners; 1 To the Tenant of the Franktenement in Deed or in Law, without any privity; 2 To him in remainder; 3 To him seized of the reversion, without any privity, but an estate cannot be enlarged without privity; 4 To him that hath right, only in respect of privity; As if the Tenant be disseised, the Lord may release his Services, in respect of the privity and right, without any estate; 5 In respect of privity only, without right; As if Tenant in tail make Feoffment in fee, the Donée after the Feoffment hath not any right, and yet in respect of the privity only, the Donor may release unto him the rent and all services saving the fealty: So also the Demandant in a praecipe may release to to the Vouchée, or to the Tenant after feoffment, etc. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case. 115 It is a Maxim in the Law, that when he, Release, 〈◊〉 not plead 〈◊〉 (where the●● is privity) without ●●●ing it. that is party or privy in estate or interest, or he, that justifies in the right of him, who is party or privy, is forced to plead a Deed, albeit he, that is privy claims but parcel of the original estate, yet in that case he ought to show the original Deed to the Court; As if the King demiseth land to B. for life, B. demiseth the same land to C. for years; here, if C. be impleaded, he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate. Vide William Poles assize (3 H. 6. 20, 21, & 22.) which was in effect this; A. by indenture enfeoffs B. of the Manor of Dale rendering unto A. and his heirs 5 marks rend per annum, with clause of distress; A. grants to C. for life xxvi s. viij. d. per annum, parcel of the same rent, who being first seized and then disseised, brings an Assize of the said parcel granted to him, and because in the same Assize the Plaintiff produced not the original indenture of the reservation of the whole rent made to his Grantor, judgement was given against him, albeit he claimed but parcel of the said rend, and the reason thereof was in regard William Pole the plaintiff was privy in the estate of the rent, and claimed by the first grant. And in the case above put, the reason holds against the stranger, in regard the Lessée might have bound the Lessor by Covenant to have showed forth the Deed, when occasion should have required. In 35 H. 6. it was agreed, that Guardian in Chivalry shall not plead a release made to his Tenant without showing it forth: So in 14 H. 8. 4. It was agreed by all, that he, who is privy in estate, as Feoffée, Lessée for years, etc. or that justifies, as servant to him, that is privy, aught to show the Deed to the Court, which they plead, etc. And in Debt against the heir, he shall not plead a release made to the Executors without showing it; for there is privity betwixt them; and with this agrees the 13 E. 2. Monstrans des faits 4●. Howbeit on the other side, where a man is a stranger to the Deed, and claimeth not the thing comprised in the grant, nor any thing out of it, nor doth any thing in right of the Grantée, as Bailife or Servant, there he shall plead the Patent or Deed without showing it: If the Tenant plead the grant of the Lord with attornment, Co. ib. 94. 2. he shall not show it, & sic de simlibus: But when he that claims the thing, or any right or interest out of it, or justifies in right of the Grantée; there he ought to show the first grant; as the second Grantée of a rend charge shall show the first grant, and so shall his bailiff; and the Grantée of a rend charge shall not plead the release of the Disseisée to the Disseisor without showing it; for albeit he claim not the land of which the release is made, yet he, that hath rend out of land, hath also right in the land, which by a release of all his right shall be extinct, and therefore in such case he ought to produce the Deed: And with this agrees the 20 H. 7. 6. & 14 H. 8. 5. The Disseisée shall not plead a release to the Disseiser, neither of right in the land, nor of rent issuing out of the land, without showing it; for, where one claims the thing, unto which the release is made, or right or interest out of it, the Law creates a privity in respect of his estate or right in the land, viz. to this intent, that he shall not have benefit of the Deed without showing it. Impeachment ●f waist is gone ●y altering the ●●tate. 116 If an estate of land be granted, without impeachment of waist, Co. l. 11. 83. b. 3. Lewis Bowles case. that privilege is individually annexed unto that estate (3 E. 3. 44. per Shared and Stone.) If one, that hath a particular estate without impeachment of waist, change his estate, he loseth that advantage (5 H. 5. 9 a.) If a man make a Lease for years without impeachment of waist, and after he confirms the land to him for his life, he shall be afterwards chargeable for waste (28 H. 8. Dyer 10. b.) If a Lease be made to one pur altar vie without impeachment of waist, the remainder to him for term of his own life; here, he is punishable of waist; for the first is estate drowned and gone; and so it is also of a Confirmation. The heir at the Common Law shall have prohibition of waist against the Tenant in Dower; but if the heir grant over the reversion, his Grantée shall not have prohibition of waist; For it appears in the Register fol. 72 that such an Assignee in an action of waist against Tenant in Dower shall recite the Statute of Gloucester; and therefore he shall not have prohibition of waist at the Common Law; for than he should not recite the Statute. Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. & suprà 1 & 4. ●ouchee, etc. ●y have a ●rit of Er●●, etc. 117 If a man be vouched and enter into warranty and leaseth, F. N. B. 21. c. he may have a Writ of Error, and shall assign the errors, which happened between the Demandant and the Tenant, or between the Demandant and himself as Vouchee: And so he in reversion, that prays to be received for default of the Tenant for life, or for his faint pleading, if he be recovered and plead and lose, he shall have a Writ of Error, and shall assign the error that happened between the Demandant and Tenant, or between the Demandant and himself, that so prayed to be received: So also if Tenant for life lose by default, he in the reversion shall have a Writ of Error, albeit he neither was received, nor prayed to be received; And he shall assign for error any matter, that happened between the Demandant and Tenant, that so lost by default: And all this is in respect of the privity and interest, which the Vouchee and Reversioner had in the land so recovered by the judgement. F. N. B. 21. l. m. & n. 118 In a plea of land against the Tenant, if the Tenant die, Who may bring writ's 〈◊〉 Error. he that is heir to the Tenant for that land, shall have a Writ of Error, and not he that is heir at the Common Law; as in Borough English, if the Tenant lose the land by erroneous judgement; the youngest son shall have the Writ of Error; and so shall he that is heir in special tail; And this in respect of the special privity and interest, which they have in the land: And for the same reason it is, that in case land be lost by erroneous judgement, the Tenant may have a Writ of Error, and so also may the Vouchees have another Writ of Error upon one and the same judgement; and so may the Tenant, and the Tenant by receipt, and all at one time hanging. Executors also or Administrators shall have a Writ of Error upon a judgement given against their Testator for debt or damages: So likewise the heir shall have a Writ of Error to reverse an out-lawry of Felony pronounced against his father, to restore him to the privity of blood between his father and him. F.N.B. a. 22. b. The Successor of an Abbot, Prior, Parson or such like bodies politic, shall have a Writ of Error upon a judgement, given against their Predecessor, of all things, which touch the Succession or Corporation; but if a man recover against a Parson, Bishop, or the like, debt or damages, by judgement or action personal, their Executors shall have a Writ of Error upon such judgement, and not their Successors; because their Executors or Administrators have interest in such things, and not the Corporation, etc. If a man sue execution erroneously against the recongnisor upon a recognizance, the Feoffée of the recognisor shall have a Writ of Error, etc. F. N. B. 22. c. 119 In a praecipe quod reddat of land, if the Tenant disclaim, No writ of Error upon disclaim. whereby the Demandant recovers, in that case the Tenant shall not have a Writ of Error, against his own Disclaimer; because by that plea he hath waved all the privity and interest, that he had in the land; but if the Tenant only plead non-tenure, and thereupon it is found against him, so that the Demandant recovers, in that case the Tenant shall have a writ of Error, etc. F.N.B. 98. q. r. 120 If a man lose land by default in a praecipe quod reddat, and die, Heir and ●●cutor privies. the heir shall have an action of deceit as well as the father, and shall have restitution; for he is privy in blood: So likewise, if a man have execution by default upon a recognizance in a Scire facias sued against one, and that Defendant die; his Executors shall have a Writ of deceit, and shall be restored; for they are privies in right, etc. F.N.B. 108. a. 121 The Vouchée, or Tenant by receipt, or he in the reversion, Reversione shall have ●taint or E●● (where he joins to the Tenant for term of life by aid prayer) shall have an attaint, if they lose by false verdict: And if the Tenant for life lose by false verdict, he in the reversion shall have an attaint or Writ of Error, living the Tenant for life; but this is by the Statute of 9 R. 2. cap. 3. F.N.B. 108. b. 122 In trespass if the Defendant plead villanage in the Plaintiff, Attaint by 〈◊〉 heir in vill●nage. and he saith that he is free, and he is found free by false verdict, etc. and after the Defendant dies, here, his heir shall have an attaint to avoid this Estoppel, and false verdict, albeit it was given in an a ●●n personal. Sed quaere de hoc. Writ of Covenant by Assignee. 123 Fitz-Herbert saith, F.N.B. 145. m. & 146. c. the second Lessée shall have a Writ of Covenant against the Lessor, if the Lease be made to him and his Assigns with waranty: And yet he saith afterwards, the Assignée of the Lessée shall maintain a Writ of Covenant against the Lessor; albeit in the Deed of Covenant there is no mention of any Assignée. Ideo quaere de hoc. Executor privy. 124 At the Common Law if lands had been willed to be sold by Executors, or had been devised to Executors to be sold, Co. Inst. pars 1. 113. a. 3, if any of them had refused, the rest could not have sold them; but now that is helped by the Statute of 21 H. 8. cap. 4. viz. the first by the express words of that Statute, and the other by the equity of the same: Howbeit in neither of those cases, when one refuseth, can the other make sale to him that so refuseth; because he is party and privy to the last Will, and remains Executor still. The heir sued shall not have contribution. 125 If a man seized of 3 acres of land acknowledge a recognizance or Statute, etc. and enfeoff A. of one acre, and B. of another acre, Co. l. 3. 12. b. 2. Sir William Herbert's case. and dies, so that the third descends to his heir; In this case, if execution be sued only against the heir, he shall not have contribution, no more than the father should have had, if he had been living; for they are privies in blood; And therefore it is said, that the heir fits in the seat of the Ancestor, Et haeres est alter ipse; filius est pars patris; mortuus est pater, sed quasi non est mortuus, quia reliquit similem sibi, etc. Release of dower. 126 The Baron makes a Lease for life, and dieth, Co. Inst. pars 1 265. a. 3. a release made by the wife of her Dower to him in the reversion is good; Albeit she hath no cause of action against him in praesenti. And this is because of the privity of estate, that is between the Tenant in Dower, and him in the reversion, etc. The privity of Executors for wardship. 127 Where the Statute of West. 1. cap. 22. Co. ib. 79. a. 2. giveth unto the Lord two years of the heir female after her age of 14, thereby is implied, that if the Lord dieth within the two years, yet his Executors or Administrators (although not named) shall also enjoy the same; for, when the Statute so vesteth an Interest in the Lord, the Law giveth the same unto his Executors or Administrators, because they are privies unto him in representation. Then put case, that the Lord hath the wardship of the body and land of an heir female, and maketh his Executor, and dieth before her age of fourtéen years, whether the Executor shall in that case have the two years, because the Executor is not Lord, nor named in the Statute: And (in this case) my Lord Coke takes it, that the Executor, having the wardship of the body and land, shall also have the two years, for that they were vested in the Lord, and in respect of the privity, as aforesaid. The privity of Executors. 128 Executors and Administrators might take benefit of the general pardon in 43 El. and might plead it, as well as the Testator himself. Co. l. 6. 79. b. in Sir Edward Phittons case. So 3 Eliz. Dyer, 201 upon the Statute of 23 H. 8. Executors shall have an Attaint. 6 E. 6. Bendloes, Executors shall have restitution upon the Statute of 21 H. 8. Also Administrators shall have a Writ of Error upon the 27 Eliz. as it was adjudged in 36 Eliz. in the Lord Mordants case in the Exchequer Chamber; yet these three last Statutes speak only of the party, and not of his Executors or Administrators. Vide 28 Ass. Pl. 7. 11 E. 3. Executors 77. ●he husband ●all not have ●hings in acti●●. 129 Marriage is an absolute gift of all Chattels personal to the husband, and also a gift of all Chattels real sub modo, Co. Inst. pars 1 351. which the Feme hath in possession and in her own right (for which see R. 93. Ex. 5.) but Chattels real or personal, consisting merely in action the husband shall not have by the intermarriage, unless he recover them in the life of the wife, albeit he survive her; As a writ of right of Ward, a Valour maritagii, a forfeiture of marriage, arrearages of rent, a presentation to a Benefice, debts by obligation, contract, or otherwise, which did accrue to the wife before marriage; the husband (I say) shall not have these or the like, unless he and his wife recover them, because they consist in privity; and therefore albeit the husband survive the wife, yet he shall not have them, but the Executors or Administrators of the wife: So if a Feme Sole be possessed of a Chattel real, and be thereof dispossessed, and then taketh husband, and dieth, albeit the husband survive, yet this right is not given to the husband by the intermarriage, but the Executors, etc. of the wife shall have it: So it is likewise, where the wife hath but a possibility, and of Reliefs, etc. Howbeit now by the Statute of 32 H. 8. cap. 37. if the husband survive the wife, he shall have the arrearages as well incurred before the marriage, as after, etc. Co. Inst. pars 1. 169. a. 3. 130 Between joint-tenants there is a twofold privity, viz. in estate, Privity of ●ceners. and in possession; between Tenants in common, there is privity only in possession, and not in estate; but parceners have a three fold privity, viz. in estate, in person, and in possession. Co. Inst. pars 1 208. b. 3. 131 There is a diversity, Tender of ●ney to a st●ger. where a condition concerneth a transitory or local act, and is to be performed to the Feoffée or Obligee, and where it is to be performed to a stranger; as if A. be bound to B. to pay 10 l. to C. Here A. tenders to C. and he refuseth; In this case the Bond is forfeit, because there is no privity betwixt them, and A. cannot compel C. to receive it; but if it were to be paid to the Obligée, upon tender and refusal the bond is saved, by reason of the privity betwixt them. Co. ib. 209 a. 2. 132 If a man be bound to A. in an Obligation with condition to enfeoff B. (who is a mere stranger) before a day, The like. the Obligor doth offer to enfeoff B. and he refuseth: Here the obligation is forfeit, for the Obligor hath undertaken to enfeoff B. and there wants privity betwixt him and B. But if the feoffment h●d been to be made to the Obligée himself, or to any other for his behoof, a tender and refusal shall save the Bond▪ because of the privity betwixt them; So likewise if A. be bound to B, with condition that C. shall enfeoff B. In this case, if C. tender, and D. refuse, the obligation is saved; for it shall be intended that the feoffment should be made for the benefit of the Obligee, which implies privity. Co. ib. 245. a. 4. 133 A strangers entry (of his own head) upon the Bastard eigne to the use of the Mulier, Bastard & ●●lier entry. is not good without the Muliers consent thereunto afterwards; Howbeit, the entry of the Guardian in soccage or chivalry (of their own heads) without the Muliers assent, is good to avoid the title of the Bastard eigne, because of the privity, for they are no strangers. Dyer 29 a. 194 28 H. 8. 134 Tenants in Common cannot make partition without deed, Partition. but Coparceners may, because they are privies, and as one heir, and (by consequent) have a threefold privity, viz. in estate, person, and possession. Vide suprà 130. 135 Vide Max. 114. c. 58. & Hob. 130. Oats and Frith. 56 Equal things cannot drown one another, & contrà. Co. Inst. pars 1 273. b. 3. 1 If a man make a lease for ten years, the remander for 20 years, A release of Lessee for years to Le● for years. he in the remainder releaseth all his right to the Lessee for ten years; In this case, the Lessee for ten years hath an estate for 30 years; for one chattel cannot drown another, neither yet can years be consumed in years. ●estate tail ●not drown, 〈◊〉 be extinct. 2 If a gift be made to the eldest son, and to the heirs of his body, Co. ib. 372. a. 4. the remainder to the father, and to the heirs of his body; the father dieth, the eldest son levieth a fine with proclamations, and dieth without issue, Co. l. 2. 61. a. in Wiscots' case. this shall bar the second son; because the father, while the remainder was in him, might by levying a fine have barred the youngest son of taking any benefit by it; and therefore, when the remainder descends to the eldest son, a fine levied by him shall also be of like force to bar the youngest; for that an estate tail can neither drown, nor be extinct; because such an estate was Fee-simple at the Common Law, and may by possibility endure for ever. ●ease for life ●y uphold a ●se for years 3 If a man letteth lands to another for life, Co. Inst. pars 1. 54. b. 4. the remainder to him for 21 years, he hath both estates in him so distinctly, as he may grant away either of them; for a greater estate may uphold a less in the same person, but not è conversò; and therefore if a man make a lease to one for 21 years, the remainder to him for term of his life, the lease for years is drowned, etc. ●ond annuls contract, and Judgement a ●nd. 4 A Statute Staple or obligation in nature thereof, Co. l. 6. 45. in Higgins case. is but an obligation recorded, and an obligation, be it of record, or not of record, cannot drown another obligation: but if a man hath a debt by simple contract, and he takes an obligation for the same debt, or any part thereof, the contract is determined (3 H. 4. 17. 11 H. 4. 9 E. 3. 50, 51.) So when a man hath a debt upon an obligation, and by ordinary course of Law hath judgement thereupon, the contract by specialty, which is of a meaner nature, is by judgement of Law drowned and changed into a matter of record, which is of an higher nature, etc. Vide 61. 7, 8. extinguishment of a Seignory. 5 If the Lord be Guardian of the land, Co. Inst. pars 1 367. a. 3. or if the Tenant maketh a lease to the Lord for years; or if the Lord be Tenant thereof by Statute Merchant, Statute Staple, or Elegit, and maketh a feoffment in fee of the land to a stranger, he doth hereby extinguish his Seignory; because by his own act he hath vested the Seignory and Tenancy into one hand, by which means the tenancy is drowned, which before was but in suspense: So if there be Lord and Tenant by fealty and rent, Co. l. 6. 70. a. 3. in Sir Moyle Finches case. and the Lord disseise the Tenant of the land, and make feoffment in fee to another, hereby the Seignory is extinct. ●here joyn●ancy may 〈◊〉 merged, ●d where ●ot. 6 If a man make an estate to three, and to the heirs of one of them, Co. l. 2 61. a. in Wiscots' case. there the one of them hath Fée-simple, & yet the jointure continues; for it is all but one estate created at the same time, and therefore the Fée-simple cannot merge the jointure, which took effect with the creation of the remainder in fee; but when 3 are joint-tenants for life, and after one of them purchaseth the fee, or the fee descends upon him, there the Fée-simple mergeth the estate for life, and severeth the jointure; for the estate for life was in esse before, and may be merged or surrendered, but so cannot the estate for life in the first case, etc. Vide Pl. ibid. ●enure ex●ct. 7 Land was held of the Archbishopric by Knight-service, Dyer 154. 18. 4. 5 P. M. and in the time of E. 3. this land was given by fine to one Strangwayes in tail, the remainder in fee to E. 3. the tenant in tail dies, his issue within age: In this case (by and others) if the King will accept of the remainder, the issue shall hold of none, nor be in ward to any; because the tenure and service are gove and extinct by the King's Fée-simple. schy of Lan●ster. 8 After the Duchy of Lancaster came into the King's hands, Dyer 209. 22. 3 Eliz. albeit the revenue were kept several, yet per nomen Regis nomen Ducis dimergibatur; for he could not be Sovereign and Subject too. Vide 3 H. 6. 57 Things are to be construed, Secundum aequalitatem rationis. Finch 20. Bract. l. 1. c. 3. 1 This Rule in Law imports a logical virtue, a kind of equity, as Bracton calleth it, where he saith, Aequitas est rerum convenientia, quae paribus in causis paria jura desiderat, & omnia bene coaequiparat. Et dicitur aequitas, quasi aequalitas: whose nature is to amplify, enlarge, and add to the letter of the Law. 27 Eliz. Co. l. 3. 13. Sir Will. Herbert's case. 11 H. 7. 12. b. 2 Upon a recognizance acknowledged by the Ancestor, Equal interests require ●qual contri●●tions. or a judgement in an action of Debt given against him; If he die seized of two acres, whereof one is holden in Borough English; or having issue two daughters, which make partition; or if he die without issue, whereby part of his land descendeth to the heir of his father's part, and part to the heir on the part of his mother: In all these cases, if one only be charged, he shall have contribution against the other; for they are in aequali jure. Finch 20. Co. l. 2. 25. b. 4. The case of Banker. 26 Ass. Pl. 37. 3 If two, four, or more men being severally seized of lands, Equal exten● join in a recognizance, all their land must be equally extended. Finch 20. Finch, ibid. 4 This Rule doth chief shine and show forth itself in the exposition of Statutes, Exposition of Statutes. by extending things there provided to mischiefs in the like degrees, etc. Finch, ibid. 5 This Rule is also of great use for guiding the grounds and maxims of things, which newly start up, Grounds of Law. according to the rule of the Common Law. 23 H. 8. Fitz. 6 Uses at the Common Law were nothing, Uses regard●● as estates. yet in time gaining greater regard to be imputed amongst Inheritances, are now demeaned as other Inheritances at the Common Law; so as possessio fratris shall be of them; & of lands in Borough English, the use shall descend to the youngest son: And now also these uses being turned into estates, shall be demeaned in all respects, as estates in possession. Finch 20. 7 When custom createth Inheritance in Copyhold lands, Copyhold 〈◊〉 Freehold. and maketh the lands descendable, Co. l. 4. 22. then shall the Law direct the descents according to the Maxims and rules of the Common Law, to have a possessio fratris, and the like: But not to collateral things, as tenancy by the Courtesy, Dower, descent to toll an entry. Finch 20. Co. Inst. pars 1 24. b. 1. 8 Equity is a construction made by the judges, Equity, a construction m●●● by the Judges that cases out of the letter of a Statute, yet being within the same mischief, or cause of making the same, shall be within the same remedy, that the Statute provideth: And the reason hereof is, for that the Lawmaker could not possibly set down all cases in express terms; Aequitas est convenientia rerum, quae cuncta coaequiparat, & quae in paribus rationibus paria jura desiderat. And again, Aequitas est perfecta quaedam ratio, quae jus scriptum interpretatur & emendat, nulla scriptura comprehensa, sed solum in vera ratione consistens. Aequitas est, quasi aequalitas. Bonus judex secundum aequum & bonum judicat, Co. ib. 24. a. 4. & aequitatem stricto juri praefert. Et jus respicit aequitatem. And therefore the cases set down in the Statute of Westm. 2. are there put only for examples of estates tail, general and special, and not to exclude other estates tail; For, Exempla illustrant, non restringunt legem. And this appears by the words of the same Stat. Auxi sont divers autres estates en le tail, etc. And herewith also agreed Littleton §. 21. Carbonels' case, 33 Ed. 3. Tail 5. 3. E. ●. 32. 18 Ass. Pl. 5. 18 E. 3. 46. 1 Ma. Dy. 46. The Lord Barkleys' case. Pl. Co. 251. Co. ib. 53. b. 3. 9 Albeit the Statute of Gloucester, Wast and ●●struction convertible. which provideth remedy against waist, speaketh not of the exile of Villeins, yet that also is comprehended under the general word of waste; so that exile or destruction of Villeins, or Tenants at will, or making them poor, where they were rich, when the tenant came in, whereby they depart from their tenors is to be adjudged waste; for waste and destruction in their larger sense are words convertible, etc. ●ivery of ●nds in ward. 10 A livery of lands out of the King's hands is in the nature of a restitution, which is to be taken favourably; Co. ib. 77. a. 4 For if livery be made of a Manor cum pertinentiis, the heir shall thereby have an Advowson appendent; Howbeit it is otherwise in grants by Letters Patents. 11 By the Statute of 2 E. 6. cap. 8. it is enacted, Co. ib. 77. b. 2. That such persons as hold for term of years, statute Merchant, Staple, ●legit, etc. within 2 E. 6. 8. or by copy of Court-roll, or have any rent, common, or profit apprender out of any lands found in any office, whereby the King is entitled to the wardship of the same lands, or to the forfeiture of lands upon attainder of treason, felony, praemunire, or any other offence, may have, hold, enjoy, and perceive their several estates, interests, and profits, although they be not found in the office; Here, albeit those two estates only are saved by the letter of the said Act; yet it being a beneficial Law, the estate of Tenant by Statute Staple, Merchant, Elegit, and of Executors, that hold lands for payment of debts, etc. are taken to be within the benefit of that clause: which was doubted in 14 El. Dyer 319. ●ncertain te●ure found, ● E. 6. 8. 12 Where an office is found by these words or the like, quod de quo, Co. ib. 77. b. 3. vel de quibus tenementa praedicta tenentur, juratores praedicti ignorant, or that the lands are holden of the King, sed per quae servitia juratores ignorant, neither of these shall be taken for an immediate tenure of the King in chief; but in such cases a melius inquirendum shall be awarded, as hath been accustomed of old time: And this provision is made by the Statute of 2 E. 6. cap. 8. And here, albeit that Statute saith no more; yet (by the equity of the same Statute) if the first office find a tenure for the King per quae servitia, etc. and upon the Melius the tenure is found for a Subject; In that case▪ the first office hath lost his force, and need not to be traversed; and the Melius is in the nature of a Diem clausit extremum, or a Mandamus, etc. And this was but a declaration of the ancient Common Law, as by these words of the same Statute (as hath been accustomed of old, etc.) it appeareth; but if upon the Melius it be found again as uncertainly, as before is said, than it is in judgement of Law a tenure in Capite, Howbeit if upon the Melius a tenure be found for the King, Ut de manerio, etc. sed per quae servitia, etc. it shall be taken for Knight-service. ●arons and Knights fees. 13 At or before the Statute of Magna carta, cap. 2. Co. Inst. pars 1 83. b. 3. All Earldoms and Baronies were derived from the Crown, and were holden of the King in Capite, and the King would not then suffer them to be divided, or severed: And such entire Earldoms and Baronies are within that Statute to pay relief according to the limitation thereof: Howbeit at this day Earls and Barons are without such Earldoms and Baronies of the King's gift in chief; For at the creation of an Earl, he hath sometimes an Annuity granted unto him, and sometimes nothing at all, but rather giveth somewhat for his Honour; So as such Earls and Barons so created are clearly out of the Statute of Magna Carta, and are to pay such reliefs as other men, that hold of the King in Capite: For as the heir of a Knight shall not pay 100 s. relief, unless he hath a Knight's fee, etc. so neither the Earl nor Baron shall pay any relief by that Statute, unless he hath an Earldom or Barony intended by the same Statute, etc. ●xecutors to ●ll lands. 14 By the Statute of 21 H. 8. cap. 4. it is provided, Co. ib. 113. a. 3. that where lands are willed to be sold by Executors, though part of them refuse, yet the residue may sell: And here, albeit the letter of the Law extendeth only where Executors have a power to sell; yet being a beneficial law, it is by construction extended also where lands are devised to Executors to be sold. Co. ib. 143. a. 4 Littl. Sect. 216. 15 The Law so regardeth equity and equality, Tenure of land. that it will in divers cases work according to them without any provision or reservation of the party: And therefore, if before the Statute of Quia emptores terrarum, a man had made a feoffment in fee, rendering rend to him and his heirs, this was Rent-service, for which he might distrain of common right; And if he had made no reservation at all of any rent or service; Yet the Feoffée should then have holden of the Feoffor by such service, as the Feoffor held over of his Lord next paramount: For, the Law in this case did create a tenure. Littl. Sect. 222. Co. ib. 148. b. 3. 16 If a man seized of divers lands, of some in Fée-simple, Rent-serv●● apportionable. and of the rest in tail, make a gift in tail, or a lease for life, or years of all, reserving a rent, and die; Here, if the issue in tail avoid the gift or lease, as to the entailed lands, the rent shall be apportioned; for seeing the rent is reserved out of, and for the whole land; it is reason, that when part thereof is evicted by an elder title, that the Donée or Lessée should not be charged with the whole rent, but that it should be apportioned ratably according to the value of the land. Co. ib. 154. a. 1. 17 By the Statute of 7 R. 2. cap. 10. it is enacted, Equity up●● 7 R. 2. ●●. that an Assize of rents issuing forth of lands in divers Counties shall be taken in Confinio comitatus, which seems to be meant only of Counties that border one upon another. Nevertheless, albeit the Counties do not join, but have twenty Counties lying between them, yet the assize in Confinio comitatus doth lie, and the justices shall sit between the said Counties: And where the Statute seems to speak of two Counties only, the like Law is, when the rent issueth out of lands lying in more Counties than two. Co. ibid. a. 3. 18 The Statute of Merton, cap. 2. (made 20 H. 3. Equity up●● Merton. 20 H. 3. ) which gives the writ of Redisseisin, is as followeth: Item si quis fuerit disseisitus de libero tenemento & coram justiciariis Itinerantibus seisinam suam recuperaverit per Assinam novae disseisinae, vel per recognitionem eorum, qui fecerint disseisinam, & ipse disseisitus per Vicecomitem seisinam suam habuerit, fi iidem disseisitores posteà post iter justiciariorum, vel infrà, de eodem tenemento iterum eundem conquerentem disseisiverint, & inde convicti fuerint, statim capiantur, etc. Here, albeit this Statute seems to intent only lands and tenements, Littl. Sect. 233. yet Littleton, §. 233. Rent-seck 〈◊〉 charge. expounds it to extend also to a Rent-charge, or a Rent-seck; For although they are against common right, yet a man may have a in them; And therefore if a man grant omnia tenementa sua, a Rent-charge or a Rent-seck will also pass thereby: Also by the same Statute the Assize seems to be limited to be taken only coram justiciariis Itinerantibus; Howbeit Littleton (there) speaketh generally, and so is the Statute to be intended, viz. before any other justices, that have authority to take Assizes, and Justices Itinerant are only set down there for an example: And albeit that Statute saith, Recuperavit per Assisam, etc. by the verdict of the Assize, as Littleton in the same Chapter expoundeth it; or per recognitionem, etc. by confession; yet if the recovery be upon a demurrer, or by pleading of a record and failer of it, or by any other manner, such recoveries are also within the equity of the same Statute; And therefore Littleton in the abovesaid Section speaketh generally, Et recovera le seisin del rent, intimating, that it ought to be understood of all manner of recoveries in an Assize of Novel disseisin: Westm. 2. ● by equity, though pe● And in that manner is the abovesaid Statute confirmed by Westm. 2. cap. 26. And here it is worthy observation, that this Statute is expounded by equity, notwithstanding it is a penal Law; for by the said Statute of Westminst. 2. double damages is given upon the recovery. Co. ib. 174. a. 3. Co. l. 4. 121. b. 4 Bastards case. 19 There is a diversity between a recovery in value by force of a warranty upon an exchange, and upon a partition; Exchange. Partition. Recovery. for upon an exchange, he that loseth, shall recover a full recompense for all, that he so loseth: But upon a partition, the patcener that loseth shall only recover the moiety or half of that which is lost; to the end that the loss may be equal. 48. Equity of 32 H. 8. 32. 20 The Tenant by the Courtesy shall have a writ of Partition upon the Statute of 32 H. 8. cap. 32. Co. ib. 175. a. 4. as well as joyntenant or Tenant in common for life or years; For albeit he is neither joyntenant nor Tenant in common (because a praecipe lieth against the Parcener or Tenant by the Courtesy) yet forasmuch as he is in equal mischief as another Tenant for life, he shall be intended within the equity of that Statute. Division of lands. Hodgepodge. 21 If a man seized of lands in fee, hath issue two daughters, Littl. Sect. 267. and giveth part of them to one of his daughters in Frankmarriage, and dies; In this case, albeit the lands undisposed of exceed in value the other lands, given in Frankmarriage, yet shall not the Donée in Frankmarriage have any part thereof, unless she will put her part in Hodgepodge with the other lands, and then they shall be equally divided between the sisters. And it seemeth by our old books, Co. ib. 176. b. 3 Glanvil, l. 7. cap. 5. that by the ancient Law there was also a kind of resemblance hereof concerning goods: Simo autem post debita deducta, Division of the testators goods. & post deductionem expensarum, quae necessariae erunt, id totum, quod tunc superfuerit, dividatur in tres parts, quorum una pars relinquatur pueris, si pueros habuerit defunctus; secunda uxori, si superstes fuerit; Et de tertia parte habeat testator liberam disponendi facultatem, si autem liberos non habeat, tunc medietas defuncto, & alia medietas uxori; Si autem sine uxore decesserit, liberis existentibus, tunc medietas defuncto, & alia medietas liberis tribuatur; Si autem sine uxore & liberis, tunc id totum defuncto remanebit. Lambert, 119. 68 And by the law before the Conquest it was thus provided; Sive quis in curia, sive morte repentine fuerit intestatus mortuus, Dominus tamen nullam rerum suarum partem (praeter eam, quae jure debetur) herioti nomine sibi assumito; verùm eas judicio suo uxori, liberis, & cognatione proximis, justè pro suo cuique jure distribuito. Frankmarri●ge. Hodgepodge. 22 If a man seized of 30 acres of land, each acre of equal value, Littl. §. 273. Co. Inst. pars 1. 179. a. 1. hath issue two daughters, and giveth 15 acres to one of them in Frankmarriage, and dies seized of the other 15 acres; In this case, the other sister shall have the 15 acres so descended, and the Baron and Feme shall not put their 15 acres in Hodgepodge with them, because the parts are already equal: but this is to be thus understood, if they are of equal value at the time when the Partition should be made: For, if the land given in Frankmarriage, be by the act of God decayed in value, or if the remnant of the lands in Fée-simple be improved after the gift, they may be cast into Hodgepodge: And the Law will adjudge of the value, as it is at the time of the Partition, unless it be by the proper act or default of the parties, etc. And it seemeth to some, that in case they be of equal value at the time of the partition, that then the reversion in fee of the lands given in Frankmarriage shall only descend to the Donee, for otherwise the other sister shall have more benefit than the Donee; and so their parts would not be equal; and then their parts might be put into Hodgepodge, notwithstanding the 30 acres are all of equal value at the time of the partition, which is against the reason that Littleton gives, Sect. 273, etc. ●rvivor of ●yntenants. 23 If there be two joint-tenants in fee, Co. ib. 193. a. 3. and the one letteth his part to another for the life of the Lessor, and the Lessor dieth; some say, that his part shall survive to his companion; for that by his death the lease was determined: Howbeit others hold the contrary, and their reason is; First, because at the time of his death the jointure was severed, for so long as he lived the lease continued: And secondly, because notwithstanding the act of any one of the joint-tenants, there must be equal benefit of survivor, as to the Frée-hold; but here, if the other joint-tenant had first died, there had been no benefit of Survivor to the Lessor without question; because at that time the jointure would have been severed; And this last seems to be the opinion of Coke, for that he puts it last, according to his own rule, and the course which he observes Littleton to use. Co. ib. 341. b. 4. 24 A Bishop, Abbot, Dean, Master of an Hospital, Abbot, etc. Writ of right Parson a J●● utrum. or any other such body politic or corporate, which hath a sole seisin of lands in fee in right of their several Corporations, if any such be ousted, they shall (if need be) have a remedy agreeable to their right, viz. a Writ of Right, which is the highest remedy, for that they have the highest estate: It is otherwise of a Parson; because the entire fee and right is not in him; his highest writ being a Juris utrum etc. Co. ib. 365. b. 2. 25 Albeit the Statute of Gloucester, cap. 3. (made in 6 E. 1. Alienation by Tenant by courtesy no bar. for the relief of the heir against the alienation of the Father, Tenant by the courtesy, with warranty, etc.) maketh one by mention of a Writ of Mortdancester, Cozenage, Aiel, and Besaiel; yet a Writ of Right, a Formedon, a Writ of Entry ad communem legem, and all other like actions are within the purview of that statute; for those actions are but put for examples. Again, where it is said in the same Statute (if the Tenant by the Courtesy alien) yet his release with warranty to a Disseisor, etc. is within the purview of that Statute, because it is in equal mischief; and if that evasion might take place, that Stat. should have been made in vain: So also if Tenant by the Courtesy be of a Seignory, and the tenancy escheat unto him, and after he alieneth with warranty, this shall not bind the issue, unless assets descend; for it is in equal mischief, etc. Co. ib. 313. a. 2. 26 Albeit the preamble of the Statute of 34 H. 8. cap. 20. Gifts of the King, 34 H, 〈◊〉 20. extendeth only to gifts in tail made by the Kings of England before that Act (viz. hath given & granted, etc.) and the body of the Act referreth to the preamble (viz. that no such feigned recovery hereafter to be had against such tenant in tail, etc.) So as this word (such) may seem to couple the body and the preamble together; Yet in this case (such) shall be taken for such in equal mischief, or in like case; and by divers parts of the Act it appeareth, that the makers of the Act intended to extend it to future gifts, and so is the Law taken at this day without question. Littl. Sect. 732. Co. ib. 383. b. 1. 27 Some do expound these words of the Stat. of Gloucester, cap. 3. Heritage in Gloc. 3. i● heritance by purchase, 〈◊〉 the heritage of his mother, to be the lands which the mother hath by descent: And that construction is true; but that Stat. (by the authority of Littleton, Sect. 732.) extendeth also, where the mother hath it by purchase in Fée-simple; for so saith Littleton himself, that this word (Inheritance) is not only intended, where a man hath lands by descent, but likewise where a man hath a Fée-simple by purchase; because his heirs may inherit him: And albeit it be true, that the Statute extendeth to an estate in Frankmarriage acquired by purchase, yet doth it extend also to all estates in tail, as well by descent as by purchase, Frankmarriage being put there but only for an example. Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple, that hath a warranty for life, Warranty life. either by an express warranty, or by Dedi, be impleaded and vouch, he shall recover a Fée-simple in value, albeit his warranty were but for term of life; because in that case the warranty was annexed, and did extend to the whole estate of the Feoffée in Fée-simple: But if Tenant in tail let the Tenements for life, the remainder to another in fee, and a collateral Ancestor confirm the estate of the Tenant for life for the term of his life only with warranty, and die, and the Tenant in tail hath issue and die, Here, the issue is barred during the life of the Tenant for life by the Collateral warranty; And, in that case, if the Tenant for life be impleaded and vouch he shall only recover in value but an estate for life; because the warranty was annexed and doth extend to that estate only, etc. too estates ●ade together ●f the same ●nd. 29 If a man make a Charter of feoffment of an acre of land to A. and his heirs, Co. ib. 21. a. 2. and also another Deed of the same acre to A. and the heirs of his body, and deliver Seisin according to the form and effect of both Deeds; In this case, he cannot take a Fee simple only (as some hold; because Livery was made according to the Deed in tail, as well as to the Charter in fee; neither can the livery enure only to the Deed of estate tail with a Fee simple expectant; because livery was made, as well upon the Deed in Fee simple, as the Deed in tail: And therefore others hold; that in this case, it shall enure by moities, viz. to have an estate tail in the one moiety, with the Fee simple expectant; and a Fee simple in the other moiety; And so the livery shall work immediately upon both Deeds: And this last seems to be the opinion of Coke himself; being put last, according to his own rule; which he often delivers in this part of his Institutes. ●ower of ●ings entire. 30 Albeit of many Inheritances, that be entire, whereof, Co. Inst. pars 1. 32. a. 1. no division can be made by meats and bounds, a woman cannot be endowed of the thing itself, yet a woman shall be endowed thereof in a special and certain manner: As of a Mill a woman shall not be endowed by meats and bounds, nor yet in common with the heir; but either she may be endowed of the third toll-dish, or de integro molendino per quemlibet tertium mensem: And so of a Villain either the third day's work, or every third week or month: A woman shall also be endowed of the third part of the profit of Stallage, of the third part of the profits of a Fair, of the third part of the profits of the Office of the Marshalsea, of the keeping of a Park, of a Dove-house, of a Piscary, viz. tertiam piscem, vel jactum retis tertium; Of the third presentation of an Advowson. A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm. And herewith agreeth reverend antiquity. De nullo, quod est sua natura indivisibile, & secationem sive divisionem non patitur nullam partem habebit, sed satisfaciat ei ad valentiam. Of the third part of the profits of Courts, Fines, Heriots, etc. Also a woman shall be endowed of tithes, and then her surest way is to take the third sheaf; for what land shall be sown is uncertain. ●ower recovered by parts. 31 Regularly the Feme ought to be endowed of an entire third part in severally by meats and bounds; Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seized of lands in Fee, take a wife and enfeoff eight persons, and dies, a Writ of Dower is brought against those eight persons, and two confess the action, and the other six plead in bar, and descend to issue. here, the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided; and after the issue is found for the Demandant against the other six, the Demandant shall have also judgement to recover against them the third part of six parts of the same land, in eight parts to be divided. ●nsent of ●iage equal. 32 If a man of the age of 14 years marry a woman of the age of ten, Co. ib. 79. b. 1. at her age of twelve he may as well disagree, as she may, albeit he were of the age of consent; because in the contracts of matrimony, either both must be bound, or equal election of disagreement given to both; and so è conversò, when the woman is of the age of consent, and the man under. delivery of ●ods by a ●nkrupt 〈◊〉 good. El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed, according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts. shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors, which are willing to submit to the order of the Commissioners in that behalf; for the Statute saith, that the distribution shall be, To every one of the Creditors, etc. rate and rate like, according to the quantity of his or their debt: So that one shall not prevent the rest, but all may be in equali jure, according to that of Cato, Ipsae etenim leges cupiunt, ut jure regantur. Co. ibid. 35 H. 8. tit. Testaments Br. 119. 34 A man holds three Manors of three several Lords by Knight Service, each Manor of equal value; here, Devise of 3 Manors ●●den by Knight Service. he cannot devise two of the Manors, and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills; For than he should prejudice the other two Lords; but by a favourable and equal construction of the said Statutes, he hath power to devise only two parts of each Manor; So that equality amongst them shall be observed. 4 E. 3. tit. Ass. 178 Co. ibid. 35 The Lord of a Manor shall not approve it all, Approveme● albeit he leave sufficient Common in the lands of other Lords, according to the Statute of Merton. cap. 4. Co. ib. 48. E. 3, 5. 36 In Dower, Vourcher in Dower. if the heir be vouched in three several Wards within the same County; execution shall be had against one only; but all shall be equally charged. 29 E. 3. 39 there is the like case. Co. l. 3. 13. a. 3. Sir william Herbert's case. Co. l. 3. 13. a. 4. in Sir William Herbert's case. But it is Sir John Lanfords' case. 29 E. 3. 50 37 Four men were bound in a Recognisance of debt to A. and after one of the Conusors' dies, leaving his heir within age, A Recognisance by 〈◊〉 and one di● the Conusee brings a Scire facias against the three Survivours to have execution, who plead, that the heir of the Conusor, who was dead, was within age, and in as much as during his minority, he could not be charged, and the Survivours ought not to be charged only, they demand judgement, etc. And because A. could not gainsay it; the Court awarded, that the Paroll should stay; and this judgement was afterwards confirmed in the King's Bench by a writ of Error. Co. ibid. b. 3. 38 If judgement be given against two Disseisors in an Assize for the land and damages and one of the Disseisors die, Judgement ●gainst two Disseisors, 〈◊〉 one dies. the execution shall not be awarded against the surviving Disseisor; that was party to the wrong, but the heir as well as the Disseisor shall be equally charged 19 E. 3. tit. execution 81. Co. ibid. b. 4. 39 Albeit at the Common Law no land was subject to an execution for the debt of a Common person, Land not chargeable with debt. but only by force of certain Statutes made for that purpose; yet the judges and Sages of the Law have always expounded general Statutes of that nature according to the Rule of the Common Law (which is always grounded upon the perfection of reason) and not according to any private and sudden conceit and opinion: And therefore in as much as the said Statutes have subjected a man's land to an execution for his debt, the judges and Sages of the Law have considered the rule and reason of the Common Law in case of the heir of an Obligor; in which case the land was subject to an execution for debt by the Common Law and accordingly do adjudge and resolve the cases, which arise upon the said Statutes. Co. ib. 1●. a. 1. 40 If two men alien land with warranty, Land equ● charged. the land of the one shall not be only rendered in value; neither yet, if one of them die, the land of the Survivor shall be only rendered in value; but the charge shall be laid equally upon them: For a joint bond that binds the land shall not survive, or lie only upon the Survivor; as in case of a joint warranty, where two for them and their heirs warrant the land to another and his heirs, the Survivor shall not be solely vouched; neither yet may the Sheriff deliver the land to the one or the other at his pleasure; for in executions, which concern the realty, and charge the land, the Sheriff cannot make execution of the land to one only; So also if two are bound to warranty, and both die, both the heir ought to be vouched, and both of them ought to be equally charged. equality of third part. ●cending ●ands in ●ite) requi● in a devise. & 34 H. 8. 41 Willam Barnerds and his wife being seized of the Manor of Hinton in tail, being the wife's jointure, and holden in Capite; Co. l. 3. 32. a. 4. Butler and Baker's case. And W. B. being also seized of lands in Fobing, both which amounted to the full third part of all his lands; And W. B. being likewise seized of the Manor of Thoby (holden also in Capite) which amounted to two third parts, etc. W. B. devised to his wife the Manor of Th. upon condition, that she should waive her former jointure, etc. W. B. dies, the wife in pais refuseth her former jointure: In this case, W. B. could not by the Statutes of Wills (32 & 34 H. 8.) devise the whole Manor of Thoby; because the Manor of H. and the lands in F. were not a third part of the clear yearly value of all his lands, as they ought to be according to the provision of the said Statutes; for that the cléer title and present possession of the Manor of H. was but in possibility, and depended merely upon the will and pleasure of the wife; and she could not by a bare refusal in pais divest her title to the jointure: But in that case, W. B. had only power by those Statutes to devise two third parts of the Manor of H. and also two third parts of the rest of his lands; to the end that the King might have an equal and proportionable third part apparelled with like accidents and circumstances, that the other two thirds parts were, according to the true intent and meaning of the same Statutes. afine for ●ars within ●e Statute of 1 H. 7. 20. 42 If a Feme Tenant in tail accept a fine Sur conisance de droit come ceo, etc. and thereby doth grant and render the land for 1000 years, Co. l. 3. 51. b. 2. in Sir George Brown's case. pretending that this is not within the words of the Statute of 11 H. 7. cap. 20. which prohibits discontinuance, alienation, release, etc. Yet that is alienation within the intention of the same act; because within the same mischief, etc. ●ses within ●e Stat. of H. 8. 10. ●ough not ●thin the let● of that ●at. 43 If a man make a feoffment to the use of himself for his life, Co. l. 4. 2. a. 2. Vernons case. and after to the use of his wife for her life for the jointure of the wife, this estate in remainder is within the intent of the Statute of 27 H. 8. cap. 10. For albeit that Statute doth only express these five forms, viz. 1 To the Baron and Feme, and to the heirs of the Baron; 2 To the Baron and Feme and too the heirs of their two bodies; 3 To the Baron and Feme, and to the heirs of the body of one of them; 4 To the Baron and Feme for their lives; 5 To the Baron and Feme for the life of the Feme: yet many other estates, not there particularly expressed, are within that act; for the said particular forms are but put there for examples, and not to exclude any other estate, which is to the like effect, and accords with the intent of the makers of the same Act: So likewise an estate in Fee simple conveyed to the Feme for her jointure, Co. ibid. 3. b. 1. per Dyer in Villiers and Bevamonts' case. 4 & 5. P. & M. 146. and in satisfaction of her Dower is a jointure within the equity of the said Act; for that is a competent livelihood to the Feme of an estate of Franktenement, to take effect presently after the death of the Baron for all the life of the Feme and more: And so it is resolved in Sir Morrice Dennis case 8. Eliz. Dyer 248. And therefore the case of 6 E. 6. Dower Br. 69. (where it is said, that an estate in Fee simple conveyed to the Feme for her jointure is not within the Stat. of 27 H. 8.) is misreported, and aught to be intended that such an estate is not within the Statute of 11 H. 7. cap. 20. which restrains the alienations of Femes, etc. subsequent ●tute may taken with●●he equity 44 It is frequent in our books, that an Act made of later time shall be taken within the equity of an Act made long before: Co. ibid. So the Statute of Malbridge, which was made Anno 52 H. 3. gives the ward of the heir of the Tenant that holds by Knight Service, notwithstanding a feoffment made by collusion, at which time, of a Statute made long afore. and for 200 years after and more, viz. until the Statute of 4 H. 7. cap. 17. (which gives the ward of the heir of Cestuy que use) the heir of Cestuy que use was not in ward; And yet it is holden in 27 H. 8. 9 if Cestuy que use since the Statute of 4 H. 7. make feoffment in fee by Collusion to defraud the Lord of his ward, that is taken within the equity of the said Statute of Malbridge: Co. ibid. 4. a. 4. & b. So also the Statute De donis conditionabilibus made 13 E. 1. as to the warranty of the Tenant in tail with assets, is taken within the equity of the Statute of Gloucester cap. 3. made 6 E. 1. as it is held 11 E. 2. tit. garranty Stath. & 38 E. 3. 23. For a Formedon in descender was given in lieu of a Mortdancester: Likewise the Statute of Westm. 2 cap. 25. made 13 E. 1. gives a Certificate, but it gives not adjournment; Howbeit adjournment is taken by the equity of the Statute of Magna Carta cap. 12. made 9 H. 3. as it is held 12 H. 4. 9 So the Statute of 7 R. 2. cap. 10. gives an Assize for rent in confinio Comitatus, and Redisseisin is also taken in case of rent by the equity of the Statute of Merton cap. 3. made 20 H. 3. Vide 1 E. 3. 25. b. So in Dyer 12 Eliz. 289. Pl. 60. The Bishop of London being one of the High Commissioners by force of the Statute of 1 Eliz. cap. 1. was translated to the Arch Bishopric of York, yet his authority (notwithstanding that preferment remains by force of the Statute of 1 E. 6. cap. 7. So also, albeit lands were not devisable till the 32 H. 8. yet if a man devise lands to a woman for term of her life, or in tail, etc. for her jointure, and in satisfaction of her Dower, that is a jointure within the Act of the 27 H. 8. For as an estate for life made to a Feme for her jointure before marriage, when she is not his wife, is within the equity of that Act, So an estate for life devised to a Feme for her life, which takes effect after his death when the marriage is dissolved, is also within the equity of the same Act; because such an estate stands well with the intent of the makers of the same Act of 27 H. 8. Co. ibid. 5 ●l. Dyer 20. in the Court of Wards. and likewise with the nature of the jointure intended thereby: And therefore if a man seized of certain lands in fee holden in Soccage, and of other land in tail holden in Capite, devise by his Will in writing the third part of all his lands to his wife in recompense of her Dower, and dies, and the wife enter into the third part of the lands holden in Fee simple, that shall be a bar of her Dower by force of the said Act of 27 H. 8. It is otherwise, where a man deviseth land to his wife for term of her life, Co. ibid. 4. a. 3. M. 38. & 39 El. inter Leak and Randal in Cur. Gardorum. etc. generally; for that cannot be averred to be for her jointure, etc. because a devise imports a consideration in itself, and unless it be plainly expressed in the will what it is for, it shall be taken only as a benevolence; neither yet can any averment be taken out of the Will, unless it properly arise, or may be collected out of the words contained in the same Will, etc. Vide 51. Co. l. 4. 57 a. 3. in the case of the Saddlers, etc. 45 Albeit the Statute of 36 E. 3. cap. 13. Equity of the Stat. of 36● 3. 13. gives travers and Monstrance de droit from Lands seized into the King's hands by offices returned only into the Chancery; yet by equity of that Statute; if the offices be returned into the Exchequer, and not into the Chancery there also the Subject may put in his traverse, or Monstrance de droit: as appears by a precedent in Qu. Eliz. time, between the said Queen and one Collins and Howstead. Co. l. 4. 65. a. 4. in Fulwoods' case. 46 Although the Stat. of Westm. 2. cap. 18. which gives the Elegit, Equity es● Stat of Ele● W. 2. 18. names only the Sheriff to execute it; yet by equity of the same Stat. the Sergeant of the Mace in London, or any other immediate Officer to any of the King's Courts of Record may execute the same Writ in their several jurisdictions, etc. Co. l. 4. 106. b. 1. adam's and Lambert's case. 47 Albeit by the Stat. of the 1 E. 6. cap. 14. Equity of th● Stat. of S●stitious us● 1 E. 6. 14. only such estate (given to superstitious uses) as are to have continuance for ever, seem to be given to the King; Yet other estates of less continuance, as estates in tail, for life, etc. employed for such uses, are also given to the King, by the equity of the same Act: And the rather, because Omne majus continet in se minus. ●enant in ●wer shall ●ot recover 'cording to ●er loss. 48 If a man be seized in fee or in tail of three acres, Co. l. 4. 122. a. 2. in Bastard's case. each acre of equal value, and dies, the heir endows the Feme of the third acre, and after the Feme is impleaded by one that hath title paramount, and she voucheth the heir; Here she shall not recover in value according to her loss, but only the third part of two acres which remain; for by the Law she ought to have but the third part of that which her husband might keep and enjoy by good title, etc. Vide plus, ib. Discretion limited by rea●●n. 23 H. 8. 5. 49 The Commissioners of Sewers upon the Statutes of 6 H. 6. Co. l. 5. 99 b. 4. in Rooks case. cap. 5. & 23 H. 8. cap. 5. are not only to charge those that have lands adjoining upon the Banks, Ditches, Gutters, etc. but likewise all others that are in any danger, or shall receive any profit by that, which is to be done in that particular; wherein the said Commissioners have authority to proceed according to their discretion; which nevertheless is to be limited and bounded with the rule of Law, and Reason: For discretion is a science or understanding to discern betwixt falsehood and truth, betwixt wrong and right, betwixt shadows and substance, betwixt equity and colourable glosses and pretences, and not to proceed according to a man's own will and private affections; because Talis discretio discretionem confundit, etc. Common of ●i●●nage. 50 If the Commons of the Town of A. and of the Town of B. are adjacent, Co. l. 7. 5. b. 3. Sir Miles Corbets case. and that the one ought to have common with the other because of vicinage, and in the Town of A. there are 50 acres of Common, and in the Town of B. 100 acres of Common; In this case, the Inhabitants of the Town of A. cannot put more Cattle in their Common of 50 acres, than that will feed, without having any respect to the Common within the Town of B. nec è converso; for the original cause of this Common for cause of vicinage was not for profit; but for the preventing of Suits in a Champion Country, by reason of the reciprocal escapes out of the one Town into the other; And therefore if the Common of the Town of A. will depasture 50 Cattle, and that of the Town of B. 100 Cattle, it can be no prejudice to the one or to the other, if the Cattle of the one Town do reciprocally escape and depasture out of the one Town into the other; For if all their Cattle depasture promiscuously together, per my & per tout, that can be no prejudice to the one or to the other, etc. ●an slaughter 〈◊〉 the day or ●ght, diversi●. 51 It is a good exposition of a Statute to expound it according to the reason of the Common Law: For example, at the Common Law, Co. l. 7. 6. b. 3. in Milborns case. if one had been slain in a Town in the daytime, viz. while there was yet full daylight, and the had escaped, the Town was therefore amercied, and so it is holden in the 21 E. 3. Coronae 238. Dum quis felonicè occisus fuit per diem, nisi felo captus fuit, tota villata illa oneretur. And with this also agrees 3 E. 3. Coronae 293. But if such a murder or homicide had been committed in the night, the Town should not then have been amercied by the Common Law; because than no folly could be imputed to the Inhabitants of the Town for letting him escape, etc. For the Scripture saith, The day is ordained for man to labour in, Psal. 104. and the night to take his rest: And the Poet saith, Ut jugulent homines, surgunt de nocte latrones: And from this resolution of the Common Law, the Statutes of Winchester 13 E. 1. and of 27 Eliz. cap. 13. are to be expounded; For albeit no time be specified in those Statutes, when the robbery should be committed, for which damages are to be answered by the Hundred; yet it is adjudged in 29 Eliz. in the case between Milborn, and the Hundred of Dunmow in Essex, that for a Robbery done before day, the Hundred shall not answer; but only for that, which is committed in the day time betwixt light and light. And howbeit at the Common Law (as is aforesaid) the Inhabitants in great Towns were not to be amercied, albeit the escaped, when the Murder or Homicide was committed in the night; Yet at this day, since the said Stat. of Winchester, by which it is enacted, that in Cities, and great Towns that are enclosed, the gates shall be shut at Sunset, until Sunrising next morning. Now the Inhabitants of such Cities and Towns are amerciable, if such escape, although the Murder or Homicide happen to be committed in the night, as well as if it were committed in the day; For now that act hath changed the reason of the Law, and therefore the Law itself is also changed: Ratio est anima legis, & mutata legis ratione, mutatur & lex: For at the Common Law before the Statute, if a man were slain in the night (as is said before) there was no fault to be imputed to the City or Town, but now if they do not keep their gates shut according to the Statute, by reason whereof the offender escapes, then is the fault and negligence in them; and this agrees with the book in 3 E. 3. Coronae 299. which see also in Co. pro ut in margin. Vide 149. 35. Co. l. 7. 32. The case of a fine per le Roy. 52 Inasmuch as the King is bound by the Stat. De donis conditionalibus, as it is adjudged in the Lord Bailie's case, in Pl. Co. 240. Stat. De d● binds the K● and there● he takes befit of 4 H. 7. ● 32 H. 8. by which Act the King is restrained from alienation (for it is provided by the same Act, Quod finis ipso jure sit nullus) Reason requires, that the King shall take benefit of the Acts of 4 H. 7. and 32 H. 8. which enable the Tenant in tail to bar his ●●●es; For it is agreed in all our Books, that the King shall take benefit of any Act, although he be not named (12 H. 7. 21. 35 H. 6. 60. Pl. Co. ubi supra) And it would be hard if the King being issue in tail of a gift made to the Subject, should be in worse condition than if he were not King. Co. l. 8. 173. b. Virgil Parker's case. 53 The King's Tenant by Knight-service conveyeth half his land for the jointure of his wife that shall be, Equality of the third 〈◊〉 descending. and after marriage he demiseth the other half for years for the payment of his debts, and legacies, and deviseth 1000 l. to his younger Children: In this case it was resolved that inasmuch as the advancement of his wife is as well within the Statute of 27 H. 8. Co. l. 10. 84. a. 4. Leonard Leveis case. as the payment of his debts, and the preferment of his children; and for that the operation of that Statute doth principally take effect by the death of the King's Tenant: For that cause, albeit the estate of the Feme hath the precedency, yet the Kings third par● shall he taken equally out of both those halfs, and not out of the half so demised only. And so it was also resolved, M. 41, & 42 Eliz. between Remington and Savage, and the 23 Eliz. in Thynnes case. And agrees also with the common experience of the Court of Wards. Co. l. 95. a. 4. Connys case. 54 In a writ of Mesne the Parol shall not stay for the nonage of the Plaintiff; for it is not reason, In a writ of Mesne the krol shall 〈◊〉 stay for l●●y. that the Infant shall be distrained for the services of the Mesne, during his nonage (which indeed he cannot avoid.) and shall not have remedy till his full age; but inasmuch as his nonage shall not privilege him from the payment of the rent during his nonage, the Law also in that case, giveth remedy to him during his nonage, etc. Co. l. 9 133. b. 3 Matth. Meves race. 55 A. seized of Gavelkind land, Equality 〈◊〉 the third 〈◊〉 descending. holden in soccage of I. S. and of other lands holden in Capite, devised part thereof to B. the eldest son of his son (being dead) and the rest to his youngest son, and dies, B. being within age: In this case, it was resolved, that the King shall have his third part out of each several part, so that the charge shall be equal, and shall not fall upon one of the parts only. Vide 35 H. 8. Br. Testam. 19 E. 3. Ass. 178. 21, & 22 Eliz. 366. b. Dyer. Equity of executing a recognizance. 56 If a man be bound in a Statute Merchant, F. N. B. 103. b. Pl. Co. 72. Rosses case. & Co. l. 3. 12. b. 4. Sir Will. Herbert's case. and after make a feoffment of parcel of his lands to one man, and of another parcel of his lands to another man, and the Recognisée sues execution upon the Statute, and hath execution against one of the Feoffées; Here, that Feoffee shall have an Audita quaerela against the other Feoffee, to show cause why the Recognisee shall not have execution against the lands of that other Feoffee, as well as against the lands which he hath, etc. Equity of a later statute from a former. 57 The Statute Merchant (made 13 E. 1. Pl. Co. 82. b. 3. Partridge, verse. Strange and Croker. ) binds all the lands of the Conisor to the execution, and provides, that they shall be delivered to the Conisee upon reasonable extent, but speaks not a word, that they shall be delivered to the Extendors, in case they extend them too high; yet they shall be delivered to the extendors by the equity of the Statute of Acton Burnel made before (viz. Anno 11 E. 1.) which saith, that the goods praised too high shall be delivered to the Praisers themselves at the rate they set them, etc. (Vide 44.) And yet the Statute Merchant is a penal law. A Judgement bars a new action. 58 If a man bring an action of Debt upon an Obligation, Co. lib. 6. 46. a. 2. in Higgins case. and he is barred by judgement, so long as that judgement stands in force, he cannot have a new action; pari ratione, when he hath judgement in an action upon the same Obligation, so long as that judgement remains in force, he shall not have a new action. Copyhold fines must be 59 If the fines of Copiholders of a Manor be uncertain, Co. l. 11. 44. a. 4. in Richard Godfrey's case. the Lord cannot demand or exact excessive or unreasonable fines, but if he do the Copiholder may refuse to pay the fine, and the reasonableness thereof shall be determined by the justices, etc. Quàm rationabilis debet esse finis non definitur, sed omnibus circumstantiis inspectis pendet ex justiciariorum discretione; And so it was adjudged in C. B. between Stallon and Brady, P. 9 Jac. Rot. 1845. Vide Co. l. 4. 47. b. reasonable. 60 An advowson descends to two Coparceners, Dyer 55. 5. 34, 35 H. 8. one of them being within age, and in ward, the Guardian marries with the elder, the Church is void, the Guardian presents in the name of both the sisters, and the Church is void again when the younger sister comes to full age; In this case, it seems the eldest shall have the Presentation, if the younger sister will not join with her, for this shall be said the comment●ment of the Turn, because the presentment was before in both their names: Quaere tamen, because it may be imputed to the folly of the Baron, who would not present in his and his wife's name, when he had full power to do it, according to Max. 117. Coparceners. Presentment. Verdict. 61 If a jury eat or drink before their agreement at their own costs, Dyer 55. 10. 34 & 35 H. 8. that offence is unable, but if it be at the costs of either party, it is cause of Error in the judgement that passeth upon such a verdict, because it implies affection and suspicion. 62 Vide Max. 178. 22. Prohibition against committing of waste. 63 If a Parson of a Church and A. be Tenants in Common of a Wood, and A. endeavours to make Waste, Co. l. 11. 49. a 2. in Richard Lifords case. the Parson for the preservation of the timber trees shall have a prohibition against him, that he shall not make Waste; and the reason thereof is said to be, for that if the Parson of a Church will waste the inheritance of his Church to his private use in felling the trees, the Patron may have a prohibition against him; for the Parson is seized as in right of his Church, and the Glebe is the Dower of his Church (for thereof it is said to be endowed, and so say many ancient records) and therefore inasmuch as a prohibition lieth against him, reason requires that he shall have like remedy against him, who holds with him in common. See likewise ubi supra, a notable case, wherein the Bishop of Duresme is inhibited to commit Waste in the Woods belonging to his Bishopric, at a Parliament holden at Carlisle in the 35 E. 1. by the ordinary remedy at the Common Law by prohibition out of the Chancery, etc. Vide F. N. B. 49. 3. 11 H. 7. 12. b. 64 A man binds himself and his heirs in an obligation having heirs and leaving lands both of the part of the father and of the mother; Lands equally charged. In this case, both the heirs shall be proportionably charged. Co l. 2. 25. b. 4. In the case of Bankrupts. Dyer 186. 68 2 Eliz. 65 The Statute of 1 M. 7. ordains, that all Fines, Fines. whereupon proclamations are not duly made, by reason of the adjournment of any term by Writ, shall be as good, as if that term had been holden from the beginning to the end, and proclamations therein made according to the Statute of 4 H. 7. 24. The said Statute of 1 M. speaks of the adjournment of the whole term, yet if part of the term be only adjourned, that is taken to be within the equity of the same Statute, as it happened in 2 Eliz. when in Tr. T. there were but two days dies juridici. Dyer 230. 56. 6. Eliz. 66 A Servant makes a bill, Contract by a servant. testifying the buying of ware to the use of his Master, and this without seal, in which he binds himself to pay the debt; In this case, debt lieth not against the Servant, but action upon the case; for it is the debt of the Master, and the Assumpsit of the servant. Alfords case. Hob. 91. the L. W. howard's case. 14 Jac. 67 In the Starre-Chanber in a cause between the Lord William Howard plaintiff, and Bell and others Defendants, Tenant right, It was holden by Coke and Hobert, that the Tenants of a Manor claiming Tenant right (which the Plaintiff being Lord of the Manor supposed to be void in Law) might all join together in a peaceable manner, to defend the cause, being common to them all; and therefore, though some particular persons were sued, yet the rest might defend the suit upon their common charge: And the reason was, for that, the title being one against all, There was in effect but one defence, and one Defendant, for the trial of one man's case tried all; And therefore the Courts of justice do every day deny them to be witnesses one for another in such general cases, as in cases of Common, Modus decimandi, and the like, wherein also it is many times ordered for avoiding of multiplicity of suits, that a trial be had in one man's case for all; Now therefore as they are acknowledged parties to their prejudice in defence, so likewise reason requires, that they should be in like manner allowed to be parties for their advantage: And so it was said, it had been ruled in that Court before in the case of the Lord Grey of Groby; yet the Lord Chancellor seemed to be of a contrary mind, and cited a Precedent to that purpose in 8 Eliz. Hob. 120. 68 The Law doth not allow any man to strike in private revenge of ill words, And the reason of the wisdom of the Law in that case is, Words and blows. because there is no proportion between words and blows; but he that is strucken may strike again, per Hobert in the Lord Darcies case of the North, against Gervase Markham. 58. In quo quis delinquit, in eo de jure, est puniendus. Co. Inst. pars 1. 233. b. 2. 1 If a Keeper of a Park kill any Dear without warrant, A Parker forfeits his off●● for waste. or fell or cut any Trees, Woods, or Vnderwoods', and convert them to his own use, it is a forfeiture of his office; for the destruction of vert is, by a mean, destruction of venison; So it is also if he pull down the lodge, or any house within the Park, wherein hay is used to be put for feeding of the Dear or the like, it is a forfeiture of his Office; for, in quo quis delinquit, in eò de jure est puniendus. Co. l. 3. 11. b. 4. Sir William Herbert's case. 2 At the Common Law, Goods liable for debt recovered, and the person for Trespass. if a common person had sued a Recognisance, or judgement for debt or damages, he could not have had the body or lands of the Defendant in execution; but in such case should have had execution only of his goods and Chattels, or of grain, or some other present profit, which grew upon the land; for which purpose the Common Law gave the Sheriff power, either by a Levari facias, to levy them upon his Lands and Chattels, or by a Fieri facias, upon his Goods and Chattels; for, in as much as he failed to satisfy the debt and damages by his Goods and Chattels, or the issues and profits of his land, reason required, that they only should be taken in execution, and not his body or lands: On the other side, if a man commit any force; for as much as his body is a chief agent therein, the Common Law doth then subject his body to imprisonment, which is the highest execution, whereby he loseth his liberty until he hath both satisfied the party, and made fine to the King; and therefore it is a rule in Law, that in all actions quare vi & armis, a Capias lieth, and where a Capias lieth in process, there (after judgement) a Capias ad satisfaciendum lieth, and there also the King shall have a Capias pro fine; And with this agrees 8 H. 6. 9 35 H. 6. 6. 22. E. 4. 22. 40 E. 3. 25. 49. E. 3. 2. and many other books; Howbeit by the Statutes of Marlbridge cap. 23. and Westm. 2. cap. 11. a Capias was given in account (for at the Common Law the process in account was distress infinite) and after by the Statute of 25 E. 3. cap. 17. Such process was given in debt, as in account, etc. And as concerning the other abovesaid Writs of execution, viz. a Levari facias, and a fieri facias, they ought to be sued within the year after the judgement, or the Recognisance acknowledged, otherwise at the Common Law the Plaintiff or Conusée was driven to his writ of debt: Howbeit now by the statute of Westm. 2. cap. 45. a Scire facias is given, and by the statute of West. 2. cap. 18. Cum debitum fuerit recuperatum, etc. the Elegit is given for a moiety of the land, etc. which was the first Act, that subjected land to the execution of a judgement or of a Recognisance, which is in the nature of a judgement (F. N. B. 265. g.) And by the Statute of 13 E. 1. De mercatoribus, 27 E. 3. cap. 9 & 23 H. 8. cap. 6. upon a Statute Merchant, or Staple, all the lands which the Conusor hath at the time of the Conusance, shall be extended, in whose hands soever they afterwards come, etc. Howbeit in debt against the heir upon an obligation made by the Ancestor, the Plaintiff by the Common Law shall have all the land, which descends unto him, in execution against him, and yet he shall not have execution of any part thereof against the father himself; but the reason hereof is, because otherwise the Plaintiff would be without remedy; for the Common Law gives an action of debt against the heir, and then if he might not have execution of the land against the heir, he should reap no fruit by his action; because the Chattels of the debtor belong to the Executors or Administrators, etc. Goods too high appraysed, delivered to the appraysors. 3 The Statute of 13 E. 1. Pl. Co. 82. b. 3. in Partridge verse Strange and Croker. (called the Statute merchant) binds all the lands of the Conisor to the execution, and provides, that they shall be delivered to the Conisée upon reasonable extent, and speaketh not a word of the delivering them to the extendors, in case they extend them too high; yet they shall be delivered to the extendors, in that case, by the equity of the Statute of Acton Burnel made before (viz. anno 11 E. 1.) which saith, that the goods praised too high shall be delivered to the Praysors themselves at the rate they set them; For reason requires, that they should be punished by the same means, that they intended to to punish others. Vide Max. 57 44. and 57 Adonibezek. 4 Quum autem fugerat Adonibezek, L. Jud. cap 1. ver. 6, 7. persecuti sunt eum (Israelitae) & prehendentes eum, amputarunt pollices manuum ejus, & pedum ejus, tum dixit Adonibezek septuaginta rege, pollicibus mannum suarum, & pedum suorum amputatis; colligebant sub mensa mea; quemadmodum feci, sic rependit mihi deus, etc. 59 Omne majus continet in se minus. Co. Inst. pars 1 44 b. 1. 1 Albeit by the Statute of 13 El. cap. 10. Grants of Ecclesiastical persons. Ecclesiastical persons are in express terms restrained from making any estates of the lands, which they hold in right of their Bishoprics, Colleges, Churches, etc. other then for one and twenty years, and three lives from the making of them, yet may they make Leases for lesser term or fewer lives, etc. 25. Co. ib. 45. b. 3. 2 In the King's case this word Committo doth amount sometimes to a grant as when he saith, Commissimus de W. de B. officium Seneschalliae, Commission imports a Lease. etc. quam diu nobis placuerit, and by that word also he may make a Lease; and therefore a fortiori a common person may do the same. Co. ib. 52. b. 1. Hill. 39 El. inter Stanton & Barnes in B. R. & Co. l. 3. 9 a. 3. Heydons case & l. 4. 23. a. Gravenors' case. 3 A custom of a Manor, time out of mind used, Copyhold grantable in fee may be granted for a lesser term. was to grant certain lands, parcel of the said Manor, in Fée-simple, and never any grant was made to any and the heirs of his body, for life, or for years; And the Lord of the said Manor did grant to one by Copy for life, the remainder over to another, and the heirs of his body: And it was adjudged, that the grant and remainder over was good; for the Lord having authority by Custom, and an interest withal, might grant any lesser estate; because in this case the Custom, that enableth him to the greater enableth him to the lesser, Omne majus continet, etc. It is otherwise where one hath but a bare authority, etc. 17. Co. ib. 68 a. 1. 4 Fealty is a part of Homage, and incident unto it; because all the words of Fealty are comprehended within Homage. Co. ib. 223. a. 3. 5 A man before the Statute of Quia emptores terrarum might have made a feoffment in fee, and added further, Restrain● to alien good. that if he or his heirs did alien without licence, that he should pay a fine, at that time this had been good; So likewise it is said, that then the Lord might have restrained the alienation of his Tenant by Condition; because the Lord had then a possibility of reverter; And therefore it is so still at this day in the King's case; because he may reserve a tenure to himself, etc. Littl. §. 418. Co. ibid. 25 3. a. 4. 6 When a man makes a feoffment of lands lying in several towns within the same County, Claim in p●● good for all 〈◊〉 the same County. Livery of Seisin given of the land lying in one of those towns in name of all the rest, lying in the other towns, will pass the estate of all to the Feoffée; And therefore a fortiori it seems good reason, when a man hath title of entry into lands or tenements lying in divers towns within the same County before any entry by him made, that by entry into parcel thereof in the name of all, the seisin of all is vested in him, as well as if he had actually entered into every parcel: For, if it be so in a feoffment passing a new right, much more it is for the restitution of an ancient right, as the worthier and more respected in Law, etc. Co. ibid. 260. a. 3. 7 If a man in prison shall not be bound by a recovery upon default for want of answer in a Court of Record in a real action, A prisoner 〈◊〉 bound for a default. which is matter of Record; A multo fortiori a descent in pais, which is a matter of Deed, shall not for want of claim bind him that is in prison, etc. Co. ibid. 8 As the argument à minore ad majus doth ever hold affirmatively, Major & ●nor: Negatif Affirmative. so the argument à majore ad minus, doth ever hold negatively, and the reason hereof is this, Quod in minori valet, valebit in majori; & quoth in majori non valet, nec valebit in minori. Co. Inst. pars 1 262. Littl. §. 441. 9 At the Common Law before the Statute of Non-claim (Anno 34 E. 3. cap. 16.) and in the Stat. of 4 H. 7. cap. 24. One out of th● Realm not barred by a descent. If a man that had tit●e of entry into lands, had not laid his claim within a year and a day, after a fine le●yed of the same land, he had lost the land for ever; Howbeit in that case, if he that had such right were out of the Realm at the time of the fine levied, his title had been thereby saved: And if against a fine which is a matter of record, the title of a stranger shall be in that case saved, much more against a descent, which is a matter in fait, shall the entry of him that is out of the Realm at the time of the descent cast, etc. be preserved; so that he may well enter at his return, notwithstanding such descent, etc. release of all demands dis●argeth all action's, etc. 10 If the Plaintiff after judgement release all demands, Co. ib. 291. a. 4 & b. Littl. §. 508. the execution is discharged: Also by a release of all demands, all actions real, personal, and mixed, are discharged. Likewise Appeals, title or right of entry, Rent-service, Rent-charge, Rent-seck, Common of Pasture, etc. A warranty, which is a Covenant real, and all other Covenants real & personal, Estovers, all manner of Commons, and profits apprender, Conditions before they be broken or performed, and also after; Annuities, Recognizances, Statutes Merchant, and of the Staple, Obligations, Contracts, etc. All these and divers others by the word Demands, are released and discharged; because that word, being of so large an extent, contains them all, etc. ●o disseisin of ●ent without ●ornment. 11 A Disseisor cannot disseise the Lord of the rents and services without the attornment of the Tenants to the Disseisor; Co. ib. 322. b. 4. For seeing an attornment is requisite to a feoffment, and other lawful conveyances; A Fortiori, a Disseisor, or other wrong doer shall not gain them without attornment; The like law is of an Abator and an Intruder. ●etenced aht. 12 Where the Stat. of 32 H. 8. cap. 9 Co. ib. 369 a. 4. Vide infrà 40. (made for the suppression of Maintenance) prohibiteth buying, selling, etc. of any pretenced rights or titles in the plural number; nevertheless any one right is within that Statute, etc. Pl. Co. 83. & 86. Partridges case. Vide 40. manslaughter. 13 By a pardon of murder, Man-slaugther is also pardoned. Finch 21. Finch, ibid. ●taint. 14 An attaint supposing a Verdict to have passed before two justices, whereas it passed before four, is good enough. ●covery. 15 A recovery pleaded of three acres where it was of six, Finch, ibid. is good enough. indition. 16 A condition, that I shall not enfeoff I. S. is broken, Finch, ibid. if I enfeoff I. S. and I. D. ●pihold. 17 A Copyholder of a Manor, Finch, ibid. where the custom giveth liberty to demise in fee, may demise for any less estate without other prescription. Vide 3. ●●ise. 18 Where the custom is, 18 E. 3. 8. that a man shall not devise his lands for any higher estate than for term of life; Yet if a devise be made in fee, and the Devisée claim but for life, the devise is good. Finch 21. ●iso. 19 By the Statute of 32 H. 8. cap. 1. 2, & 3 P. & M. Dyer 150. b. that giveth power to devise two parts of one's land, a devise of the whole had been good for two parts, although the Stat. of Explanations (34 & 35 H. 8. cap. 5.) had not been made. Finch 21. ●mes ●ure. 20 An estate of Fée-simple conveyed to the Feme for her jointure, Co. l. 4. 3. b. Vernons case. and in satisfaction of her Dower is a jointure within the equity of 27 H. 8. For if an estate for life be a competent livelihood for her, much more an estate in Fée-simple, etc. Sir Morrice Denurs case. Dyer 8 El. 248. ●hold, wi● estate. 21 Where the custom of a Copyhold Manor is to grant Copyhold lands for one, two, or three lives, Co. l. 4. 29. b. 4. there a grant to a Feme Durante viduitate is good; for that is a less estate, and therefore included in the other, etc. Downs case. ●nt in● con● 22 This word (Attaint of murder) in the Statute of 3 H. 7. cap. 1. Co. l. 4. 46. a. 4. in Kath. Wrote● case. shall not be meant only of a person that hath judgement of life, but also extended to a person convicted by confession or verdict; for a person attaint is a person convict and more. 36. Co. l. 4 106. a. 4. in adam's. & Lambert's case. 23 Albeit by the express words of 1 E. 6. cap. 14. Superstitious uses. Estates in Fée-simple (given to superstitious uses) seem only to be given to the King, (for the words are, To the finding of a Priest to have continuance for ever, etc.) yet that Stat. by construction extends also to every less estate, as to an estate in tail for life, etc. Co. l. 5. pars 1. 6. b. 4. The King's Ecclesiastical law. 24 If by the proviso of 1 Eliz. cap. 2. The high Commission may censure depravers of the Common Prayer. the Ecclesiastical jurisdiction of Arch-Bishops, Bishops, and other inferior Officers is saved; so that they may still punish by deprivation and other Ecclesiastical censures, all such as shall deprave the book of Common Prayer, notwithstanding by the same Act there is other provision made for the punishment of such offenders before temporal Magistrates; Much more shall high Commissioners (authorised by another Statute of the same year, cap. 1.) have power to inflict due punishment for the like offence; albeit in the said Act of 1 Eliz. cap. 2. there be no such provision made for them, as for Bishops, etc. Because, Cui licet, quod majus est, non debet, quod minus est, non licere. Co. l. 5. 6. b. 1. The Lord Mountjoys case. 25 The words of the Statute of 1 Eliz. concerning leases to be made by Bishops, etc. are these, other then for the term of 21 years, Leases by t●● Clergy. or three lives (without saying, or under) and yet a lease for a less term is good: There is also the same exposition of the Stat. of the 13 Eliz. cap. 10. whereof the words (as to that point) are the same. 1. Co. l. 5. 29. b. 4. in Prince's case. 26 In Prince's case, in the 5 Rep. it was said, Administration of bo●● Notabilis. that it was adjudged in a case between Vere and Jeffres' in tempore Reg. Eliz. That where one had goods only in an inferior Diocese, yet the Metropolitan of the same Province pretending that he had bona Notabilia in divers Dioceses, committed the administration, etc. This administration was not void; but only voidable by sentence; because the Metropolitan hath jurisdiction over all the Dioceses within his Province: But if an Ordinary of a Diocese commit the administration of the goods, when the party hath bona Notabilia in divers Dioceses, such administration is merely void, as well to the goods within his own Diocese, as elsewhere; because he can by no means have jurisdiction of the cause. Co. l. 5. 91. a. 1. in Hoes case. 27 A man assigns a debt unto Queen Eliz. by deed enroled in satisfaction of a debt due to her from him, as Collector of the Fifteen, Three include 〈◊〉 with proviso, that if the Lord Treasurer, and the Barons of the Exchequer, or any two of them, for some reasonable cause should disallow & revoke the same, that then it should be void: In this case revocation by three of the Barons shall be sufficient; for if three doth it, two doth it at least, etc. Co. l 5. 115. a. 1. in Wades case. 28 If a man tender more money than he ought to pay, Tender 〈◊〉 greater f●●●. that is good enough; for Omne majus continet in se minus, and the other aught to receive so much thereof, as is due unto him: Quando plus fit, quam fieri d●bet, videtur etiam illud fieri, quod faciendum est: Et in majore summa continetur minor. 29 In the general pardon of the 28 of Eliz. Burglary was excepted; Attainder 〈◊〉 Burglary ●doned. and thereupon the judges were then moved, Co. l. 6. 13. a. 4. in the cases of pardon. H. 29 Eliz. whether the attainder of Burglary was thereby also excepted; And it was resolved that it was; For if Burglary itself was excepted, while it was yet doubtful, whether it would be found Burglary, or no, and before it did appear to the eye of the Law to be so; à fortiori when Burglary appears upon record by judgement of Law, it shall be excepted. Co. l. 6. 56. a. 1. in the Lord Chandos case. 30 By the grant of the Manor, without this word, of the reversion, By the 〈◊〉 Manor 〈◊〉 version p●seth. the reversion shall pass, albeit at that time the Grantor had not the Manor in possession, but in revension; for this word Manor includes all estates, and degrees of estates, of or in the Manor: As if A. gives the Manor of B. to B. in tail, and after the Donor is attainted of treason, whereby the King is seized of the reversion, and after by his Letters patents grants Manerium de D. to another and his heirs; In this case albeit the King grants the Manor of D. is in possession, yet the reversion shall pass; for the King hath an estate (viz. the reversion in fee) grantable in him, & the estate tail of the common person need not be recited, etc. The King not deceived. 31 If the King be Tenant pur altar vie, Co. l. 7. 12. a. 4. in Englefeilds' case. and makes a lease for forty years; Here, albeit the King (having but an estate pur altar vie) cannot absolutely contract for a lease of forty years; yet without any recital or mention of the estate for life, the lease is good; for the lease for years is in judgement of Law, less than a lease pur altar vie, and the King doth no wrong or prejudice to any by such a demise, neither yet is he deceived in his grant, because, in judgement of Law, that is a lease for forty years, if Cestuy que vie shall so long live, etc. Fine in a court Leet. 32 If for an amerciament upon an offence committed out of a Court Léet and found by the jury (whereof the jury only have conisance and for which they only are to impose the amerciament) the Lord of the Léet hath power to distrain, Co. l. 8. 41. a. 4. in Greisleys case. etc. Much more for a fine imposed by the Steward in Court for some contempt, etc. committed in the Court itself (and whereof the Steward only hath conisance) shall the Lord, etc. distrain the goods of the party offending, and impound them, etc. or else make sale thereof at his election, etc. A lease for years less than an estate for life. 33 If a man upon a grant reserve unto himself power to make leases, so that they shall not exceed 21 years, or three lives; In that case, Co. l. 8 70 b. in Whitlocks case. he may make leases of 99 years, if any three shall so long live; because such a lease exceeds not three lives, but is in truth less; for an estate for years, which is but a Chattel, is less in estimation of Law, than an estate for life, which is a Franktenement. An Officer may make a Deputy. 34 When an Officer hath power to make assigns, he hath power, Co. l. 9 48. b. 4. in the Earl of Shrewsburies' case. implicit, to make Deputies; For, Cui licet, quod majus est, non debet, quod minus est, non licere. And therefore when an office of Stewardship, or the like, is granted to one and his heirs, he may thereby make an Assignée, and (by consequent) also a Deputy, etc. An arrest within the liberties of London. 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment, viz. that the precept was to arrest the Defendant, Co. l. 9 67. a. 1. in Mackallyes case. Si inventus foret infra libertates Civitatis praedicti (viz. London) And the Indictment was, Quid in parochia Sancti Martini Bowyer Row in Warda de Farringdon infra Londinum praedict. the Sergeant arrested him, and so he pursued not the precept; for the precept was infra libertates London: But notwithstanding that exception the Indictment was resolved to be good; because the said Parish and Ward in London shall be intended to be within the liberties of London; For these words, liberties of London have a larger extent, than the word London, and do include in them the City of London itself, etc. Justices of the King's Bench are Justices of Gaol delivery, & Oyer and Terminer. 36 The Justices of the K. Bench are taken to be within the words of the stat. of 2 E. 6. cap. 24. (which ordains, Co. l. 9 118. b 2. in the Lord Sanchiers case. that for the trial of accessaries in another County, than where the principal was indicted, Certificate of the Indictment of the principal shall be made to the justices of Gaol delivery or of Oyer and Terminer; before whom the accessary is to be tried, etc.) for that the justices of the K. Bench are the sovereign justices of Gaol delivery, & of Oyer & Terminer; and therefore they are included within the same words; And upon the same ground it is holden, in 7 E. 4. 18. & 4 H. 7. 18. that if an indictment of forcible entry be removed into the King's Bench, the justices of that Bench shall award restitution, and yet the S●at. of 8 H. 6. cap. 9 speaks only of justices of Peace; but the reason is, because the justices of the King's Bench have sovereign and supreme authority in such cases: And therefore in the Lord Sanchiers case in the 9 Rep. the justices of the King's Bench wrote (according to the said Act of 2 E. 6.) to the justices of Gaol delivery in London, before whom the Principal was tried, etc. who thereupon certified the record accordingly, etc. Co. l. 11. 60. a. 3 Doctor Foster's case. 37 The Statute of 23 Eliz. cap. 1. which ordains, Attaint mo●● than convi●●. that every person, etc. being lawfully convicted of not going to Church, etc. shall forfeit xx l. per mensem, etc. seems to intent only conviction by verdict; because that being a penal Law shall not be understood by equity; Yet in that case he, against whom any judgement is given, either upon a Nihil dicit, or upon an insufficient plea pleaded, and demurrer thereupon, is convict within the purview of the same Stat. For albeit this will not follow, Such a man is convict, therefore he is also attaint, and judgement is given against him; Yet this is a good consequence, Such a man is attainted, or adjudged, ergò, he is convict: For he that is attainted, or against whom judgement is given, is convict, and more, etc. 22. F. N. B. 56. 1. 38 In a writ of Waste, if the premises thereof rehearse, Quare, Waste. cum de Communi Concilio regni nostri Angliae provisum sit, quod non liceat alicui facere vastum, etc. in terris, domibus, boscis, & gardinis; And in the end of the same Writ it is alleged, quod defendens vastum fecit in terris only, or in boscis only, or in houses only; yet is the Writ good; For omne majus continet in se minus, etc. F. N. B. 136. f. 39 If the Tenant holds by the services, Tenure. by which the Mesne holds over, and also by some other, this is good equality to have acquital, because it is such and more, etc. F. N. B. 150. p. 40 Glanvile saith, that ad ostium ecclesiae, Dower ad ●●um. man cannot assign for dower more, than a third part, and if he doth, the Feme shall be admeasured; Howbeit he may well assign her less; Omne majus, etc. 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, etc. 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, etc. And therefore it ordains, that the party so grieved, may have his suit in that case, etc. Here, that Statute speaks of false deeds, etc. in the plural number; yet if a man forge one false deed only, he shall incur 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 only 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, etc. Pl. Co. 87. a. 3. Partridges case. 43 Where the Statute of 32 H. 8. cap. 9 prohibits the buying, Pretenced 〈◊〉 to a lease. etc. of any pretenced rights, etc. a lease for years is prohibited, as well as an estate in fee, in tail, or for life; for under the word (any) the less estate shall be contained in the greater: So also the Statute of 23 H. 6. Sheriffs. cap. 10. prohibits that no Sheriff shall let to farm in any manner his County, etc. whereby he is restrained to let to farm any part of his County, because the less is contained in the greater, etc. 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 Dean or any other Ecclesiastical person may resign to the King, as divers did to King E. 6. because the King hath the authority of the supreme 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 ma●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 or●undus, etc. 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, etc. to enable him to sue only; or may grant him a denization sub conditione, etc. Devise for Executors ●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 three or four Executors, and during the life of A. one of the Executors dieth, and then A. dieth, the other two or three Executors may sell; for the greater number includes the less, 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 been 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 three) and one dies, the other two might have sold it, but not if there had been only 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, etc. and the award was, that A. should pay B. 20 pound: 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 etc. And therefore if the arbitrement were not made of all the matters in controversy, the Award was void: But the Award was adjudged good, because when the submission is general of all actions, etc. Generale nihil certi implicat; and therefore it stands well with the generality of the words, that there was but one cause depending in controversy betwixt them; And Omne majus continet in se minus. But it is otherwise, where the submission is of certain things in special, etc. Waste. 48 The Lessée covenants to cut no trees, Dyer 115. b. ●7 1, 2 P. M. and gives bond to perform covenants, the Lessée cuts ten trees, and the Lessor sues him upon the bond, and assigns for breach the cutting of twenty trees, he pleads that he did not cut twenty trees, upon which they are at issue, and the jury found that he cut only ten; yet judgement was given for the Plaintiff; for the other ten trees were but surplusage, and omne majus, etc. Lease by a prebend. 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 contained in the Indenture was adjudged good for 50 years. 60 Additio probat minoritatem. ●e is Fee-simple. 1 When you find it said in any Book, Co. Inst. pars 1. 189. a. 3. that a man is seized in fee without saying more, it shall be understood in Fée-simple; and not in Fée-taile, unless there be but unto it such an Addition, Fee-tail, etc. And therefore in Heraldry the younger sons give the differences. And in France by Monsieur (without any addition or other title) is to be understood the King's only brother, and by Madam (without more) the King's only sister; and therefore they are said in French to be Monsieur sans queüe, and Madam 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 Longeville, Madame de Cheureuse, etc. 61 A matter of higher nature determineth a matter of lower nature, & contrà. Co. Inst. pars 1. 83. a. 4. 1 If a Tenant by Castleguard do serve the King in his war, Castle-guard he shall be discharged against the Lord, according to the quantity of the time that he was in the King's host. Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription, A record, or writing qua●eth a prescription. albeit such a record or writing exceed the memory or proper knowledge of any man, yet are they within memory of man, and shall quash the prescription for a matter in writing shall determine a matter in fait; and a record or sufficient matter in writing are good memorial: and therefore it is said, litera scripta manet, and when we will by any record or writing commit the memory of any thing to posterity, the phrase is, tradere memoriae, etc. 21 H. 7. 5. 3 A man hath liberties by prescription, The like. and after taketh a grant of those liberties by Letters Patents from the King, this determineth the prescription, for a matter in writing determineth a matter in fait. Finch 22. Co. l. 6. 45. a. 4. Higgens case. Vide ib. parl. auth. 33 H. 8. Dyer 50. Pl. 4. 4 If an offence, which is murder at the Common Law, Murder d●●ned by treason. be made treason, no appeal shall lie of it; because the offence of murder is drowned, and it is punishable as treason only, whereof no appeal lieth, etc. Finch 2●. Co. ib. 41. b. 4. 5 If A. be Tenant for life, the remainder or reversion to B. for life, Tenant for life may surrender to the reversioner 〈◊〉 life. in this case A. may surrender to B. For, the estate of B. for term of his own life, is higher than an estate for another man's life; and therefore if Tenant for life enfeoff him in the remainder for life, this is a surrender and no forfeiture; And generally from this ground it is, that estates of lower nature are drowned in others of higher nature, when they meet together in one and the same person: Hereupon also ariseth extinguishment between Lord and Tenant, etc. Co. l. 541. a. 2. in Sparrows case. 6 If a man bring an action of Debt by bill in London, or Norwich, Suit in a lower Court abates not 〈◊〉 in an high●. or in any other inferior Court, and after bring a writ of Debt in the Common Pleas, that suit in the higher Court, which is purchased hanging the suit in an inferior Court, shall not abate, as appears in 7 H. 4 8. & 3 H. 6. 15. Vide 43 E. 3. 22. & 7 H. 4. 44. Briminghams' case. Co. l. 6. 45. a. 2. in Higgins case. 7 After judgement upon an obligation for Debt, A Iudgmen● destroys a bond. so long as that judgement remains in force, the Plaintiff cannot have a new action upon th●t obligation; For, as when a man hath a debt by simple contract, if he take an obligation for the same debt, or for any part thereof, that taking of the obligation determines the former contract (3 H. 4. 17. 11 H. 4. 9 9 E. 3. 50, 51.) So when a man hath a debt upon an obligation, and by the ordinary course of Law hath judgement thereupon, the contract by specialty, which is of a lower nature, is by the judgement of the Law changed into a matter of record, which is of an higher nature. Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by deed or prescription, The like. and bring a writ of Annuity, and hath judgement; So long as this judgement remains in force, he shall never have a writ of Annuity more, albeit the Annuity be of inheritance; but shall in that case have a Scire facias upon that judgement; because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature. Vide 37 H. 6. 13. judgement in an action of forging a false deed is a good bar in another action upon the same forger: But if recovery be in debt upon an obligation per Justicies; there notwithstanding such judgement, the Plaintiff may have an action of debt upon the same obligation in a Court of Record; For the County Court being not a Court of Record, the obligation is not by a judgement in that Court changed into any other thing of an higher nature; but so long as such judgement remains in force, the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court: M. 2. Jac. Rol. 3172. in Com. Banco. 11 H. 4. Br. Faits 19 Howbeit if a man be indebted upon an obligation, and afterwards acknowledge a Statute Staple for the same debt, and in full satisfaction of the said obligation, in that case the Creditor may sue which of them he pleaseth; for a Statute Staple or obligation in nature thereof, is but an obligation recorded; and an obligation, be it of record, or not of record, cannot drown another: Also a bare obligation, and an obligation in nature of a Statute Staple, are two distinct bonds made by assent of the parties without process of Law, whereof the one hath no dependence upon the other, but in an action brought upon an obligation, the suit is grounded upon the obligation, as the edifice upon a foundation, and the Plaintiff hath judgement to recover the debt due by the same obligation; so that by a judicial proceeding and act in Law, the debt due by the obligation is transformed and metamorphosed into a matter of record; And a judgement in a Court of Record is a higher matter, than a Statute Staple, Statute Merchant, or any recognizance acknowledged by assent of parties, without judicial proceeding. No Oyer and Termin. where the K. Bench s●ts. 9 In the Lord Sanchiers case in the 9 Rep. it was moved, Co. l. 9 118. b. 3. in the Lord Sanchiers case. & in the case of the Marshalsea. Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not, in the Termtime, be indicted, arraigned, and convicted at Newgate before Commissioners of Oyer and Terminer, for the County of Middlesex, and it was resolved that he could not; For the King's Bench is more than an Eire, and therefore in the Termtime no Commissioners of Oyer and Terminer, or of Gaol delivery, by the Common Law, may sit in the same County, where the King's Bench sits; because in praesentia majoris, cessat potestas minoris: And with this accords the 27 Assizes, Pl. 1. But Carlisle and Inweng, the two Confederates of the Lord Sanchier, were indicted and attainted in London, where the murder was committed, before justices of Oyer and Terminer, in the Termtime; because it was in another County, than where the King's Bench sat. No Marshalsea where the K. Bench sits. 10 At the Common Law the Court of Marshalsea had jurisdiction of Pleas of the Crown, and had a general authority in effect, Co. l. 10. 71. a. & 73. b. in the case of the Marshalsea. as justices in Eire had; for they were in part the Vicegerents of the Chief Justice of England within the Verge: Howbeit after that by the Statute of 28 E. 1. cap. 5. the justices of the King's Bench were enjoined to follow the Court, the general authority of that Court as to those purposes vanished; because they being only the Vicegerents of the Chief Justice, in his presence their authority ought to cease, for, in presentia majoris, cessat potestas minoris, &c, An entail extinct in a Fee-simple. 11 Sir Thomas Wyatt being seized of divers Manors in tail, Dyer 115. 65, 66. 1, 2 P. M. the remainder in H. 8. in fee in the beginning of Queen Mary's reign forfeits them for treason, whereby they escheat to the Queen. In this case, the estate tail was utterly extinct, and the Queen is in of her ancient Fée-simple executed, for she cannot be in of the Fée-simple determinable upon the entail, because then there would be two Fee-simples in the Qu: which is absurd; And therefore rather than so, the entail shall be merged in the Queen's ancient Fée-simple. Error. 12 An Exigent is returnable by the roll Octabis Mich. but the writ of Exigent was returnable Mensae, Dyer 211. 32. 4 Eliz. and the Defendant was outlawed betwixt Octabis and Mensae, and this was adjudged error; because the roll is of more credit than the writ, and determines it. 62 The more worthy thing draweth unto it things of less worthiness. Finch, 23. 1 The body of a man is more worthy than land, The body more worthy than land. therefore land shall follow the nature of the person, as a Villain shall make free land to be Villein-land; but Villein-land shall not make a free man to be a Villain: So likewise the King's land, which he hath in his natural capacity, Co. Inst. pars 1. 15. b. 3. shall be demeaned according to the privilege and prerogatives of his body royal: As if the King hath issue a son and a daughter by one Venture, and a son by another Venture, and purchaseth lands and dieth, and the eldest son enters and dies without issue, the daughter shall not inherit those lands, nor any other Fée-simple lands of the Crown; but the younger brother shall have them: Where note, that neither possessio fratris doth hold of lands, which are the possessions belonging to the Crown; neither yet doth Half-bloud make any impediment to the descent of lands of the Crown, as it fell out in experience after the decease of E. 6. to Queen Mary, and from Queen Mary to Queen Eliz. both which were of the half blood, and yet inherited not only the lands which King Edward and Queen Mary purchased, but also the ancient lands parcel of the Crown. A man, that is King by descent on the part of his mother, purchaseth lands to him and his heirs, and dies without issue, this land shall descend to the heir of the part of the mother; whereas, in the case of a Subject, the heir of the part of the father shall have them: So King Henry the eighth purchased lands to him and his heirs, having issue two daughters, Queen Mary, and Queen Eliz. and after the decease of E. 6. the eldest daughter Queen Mary did inherit only all the lands in Fée-simple; for the eldest daughter or sister of a King shall inherit all his Fée-simple lands: So it is also if the King purchaseth lands of the custom of Gavelkind, and die having issue divers sons, the eldest son shall only inherit those lands: And the reason of all these cases is (as afore is said) for that the quality of the person doth in these and many other like cases alter the descent, so as all the lands and possessions, whereof the King is seized in jure Coronae, shall secundum jus Coronae attend upon and follow the Crown; And therefore to whomsoever the Crown descends, those lands and possessions shall descend also; For, the Crown and the lands, whereof the King is seized in jure Coronae, are Concomitantia: And the lands and possessions belonging to the Crown do follow and attend upon the Crown, as upon the more worthy, etc. Co. ib. 43. a. 4. 2 When the Royal body politic of the King doth meet with the natural capacity in one person, The King no minor. the whole body shall have the quality of the Royal politic, which is the greater and more worthy; For Omne majus trahit ad se quod minus est: And therefore, in judgement of Law, the King, Co. ib. 16. a. 1. as King, cannot be said to be a Minor; because in the Royal body politic there can be no minority: So likewise if the right heir of the Crown be attainted of Treason, yet shall the Crown descend to him, and (eo instant) without any other reversal, the attainder is utterly avoided as it fell out in the case of H. 7. etc. Co. ib. 87. b. 3. 3 If a man be seized of a Rent-charge, Rent-seck, Things in grant follow land. Common of p●sture, or such like inheritance which do not lie in tenure, and dieth, his heir being within the age of 24 years; In this case the heir may choose his Guardian,; but if he hold lands in soccage together with such like inheritances; Then shall the Guardian in soccage not only take into his hand the lands holden in soccage, but such inheritances also; because he hath the custody of the heir, etc. Co. ib. 114. b. 2. 4 Albeit a man cannot prescribe to have bona & catalla proditorum, Of felons goods not perscription. faelonum, etc. yet may they, or the like privileges be had obliquely (or by a mean) by prescription; For a County Palatine may be claimed by prescription, and by reason thereof to have bona & catalla Proditorum, felonum, etc. ●he grant of a manor pasteth services., 〈◊〉. 5 Whatsoever passeth by livery of seisin, either in deed or in Law, Co. ib. 121. b. 2 may pass without deed, and not only the rents and services (parcel of the Manor) shall with the demesnes (as the more principal and worthy) pass by livery without deed; but likewise all other things regardant, appendent, and appertinent to the Manor (as incidents and adjuncts to the same) shall together with the Manor pass without deed, and all these shall so pass without saying, cum appertinentiis. Privileges ●●nct. 6 If A. be seized of a Manor, Co. ib. 121. b. 4. whereunto the franchise of waif and stray, and the like are appendent, and the King purchaseth the Manor with the appurtenances; Now are these Royal franchises remitted to the Crown, and not any longer appendent to the Manor, etc. Common Law and Franchise. 7 When a matter alleged extendeth into a place at the Common Law, and likewise into a place within a Franchise, Co. ib. 125. b. 3. it shall be tried at the Common Law. An Assize in Confi●io Comi●tus at the Common law. 8 Before the Statute of 7 R. 2. cap. 10. Co. ib. 154. a. 1. no Assize in confinia Comitatus lay at the Common Law for the recovery of rent issuing out of lands that lay in several Counties; but for a Common of Pasture, Turbary, Piscary, Estovers, and the like in one County, appendent or appurtenant to land in another County, an Assize in confinio Comitatus did lie at the Common Law; because the land as the more worthy drew them to it; But land could not be appendent or appurtenant to land; And so it is of a Nuisance done in one County, to lands lying in another County; For, in that case also, the like Assize did lie at the Common Law etc. release of one winter shall ●●e prejudice ●●e other. 9 If three joint-tenants be disseised, and they arraign an Assize, Co. ib. 285. a. 4. & Co. l. 2. 68 a. 4. in Tookers' case. 30 H. 6. Barr. 59 45 E. 3. 10. and one of them release to the Disseisor all actions personal, this shall bar that joint-tenant, but it shall not bar the other two Plaintiffs; For having regard to them, the realty shall be preferred, and Omne majus trahit ad se minus dignum: And in a writ of Ward brought by two, the release of the one shall not grieve the other, but shall enure to his benefit; For he shall recover the whole Ward, and hold his Companion out, etc. 10 In Law there are three kinds of rights, Jus proprietatis, Co. ib. 266. a. 2. Jus possessionis, and Jus proprietatis & possessionis, and this last is anciently called Jus duplicatum, or Droit, Droit: For example, if a man be disseised of an acre of land, the Disseisée hath Jus proprietatis, the Disseisor Jus possessionis, and if the Disseisée release to the Disseisor, he than hath Jus proprietatis & possessionis: And regularly it holdeth true, that when a naked right to land is released to one, possessionis 〈◊〉 draw jus ●●●rietatis. that hath Jus possessionis, and another by a mean title recover the land from him, the right of possession shall draw the naked right with it, & shall not leave a right in him, to whom the release is made: For example, if the heir of the Disseisor be in by descent, and A. doth disseise him, and the Disseisée releaseth to A. Now hath A. the mere right to the land; but if the heir of the Disseisor enter into the land, and regain the possession, that shall draw with it the mere right to the land, and shall not regain the possession only, and leave the mere right in A. but by the recontinuance of the possession, the mere right is therewith vested in the heir of the Disseisor: So likewise if the Disseisée enter upon the heir of the Disseisor, and enfeoff A. in fee, and the heir of the Disseisor recover the whole estate, that shall also draw with it the mere right, and leave nothing in the Feoffée, etc. 19 ●●y must be 〈◊〉 of the ●●ge. 11 The Lessor for years of a Mess, a Close, Co. l. 2. 31 b. in Bettisworths' case. and other certain lands in Dale, makes a feoffment of all, and giveth livery in the Close in name of all, the Lessée being at the same instant residing in the Mess; And it was adjudged, that this livery was void, as well for the Close as for the Mess, and other lands so demised; For when the Message with the land is entirely demised, the Message is the principal; because that serves for the habitation of man, and in a Praecipe shall be first demanded before land, as the more worthy, and the demand for rend arrear shall be made at the Message, as at the more principal and notorious place within the Demise; So that the Message being the more worthy and the Principal, and the land but as accessary, without question the possession of the Mess by the Lessée for years, at the time of the livery made, is good possession of the land demised with it, etc. Co. l. 2. 68 a. 4. in Tookers' case. 12 In an action of Waste brought by two, Waste is 〈◊〉 in the personalty. release of all actions personal by one shall bar the other; for in Waste the personalty is the principal. 9 H. 5. 15. per Cur. Vide suprà 9 Co. l. 11. 48. a. 2. in Lifords' case. 13 If a man by deed indented bargain and sell, Land more worthy tha● trees. give and grant his Manor of Dale, and all his trees growing thereupon to another, and the deed is not enroled according to the Statute, in as much as the Manor passeth not to the Bargainée, neither shall the trees pass; albeit they are granted by express words, and may pass without enrolment, and that a man's own grant shall be taken most strongly against himself, etc. Co. l. 11. 51. b. 4 in Lifords' case. 14 If after a man hath disseised me, The like. I regain the possession of the land; after my regress into it, the Law shall adjudge, that the Franktenement still continued in me ab initio; And therefore if the Disseisor, or his Feoffor, or his Disseisor cut down any trees, or grass, or sow any grain, and sever them, or sell them to another; yet after my regress I may take them, wheresoever I shall find them; because the re-continuance of the land, as the principal, shall regain my property in them as accessories; albeit they be carried from off the land, for the carrying of them thence cannot alter my property in them, etc. Co. Inst. pars 1. 8. a. 4. 15 If a man buy divers fishes, as Carp, Bremes, Tenches, Fish, Do●● etc. incident the free- 〈◊〉 etc. and put them in his pond, and dieth; In this case the heir shall have them, and not the Executors, for they shall go with the Inheritance, and the rather, for that they were at liberty, and could not be gotten without industry, as by Nets and other Engines; Otherwise it is, if they were in a trunk, or the like: Likewise Dear in a Park, Coneys in a Warren, and Doves in a Dove-house, young and old, shall go to the heir. 11 H. 4. 31. 16 An Adulterer takes away another man's wife, Wife with●● clothes. and puts her in new clothes, the Husband may take the Wife with her clothes, Finch, 22. 10 El. 323. b. 17 A box insealed with Charters shall go to the heir with the Charters, and not to the Executors. Finch 22. A box with cha●ters. Finch 23. 18 A base Mine, where there is Over, shall be the Kings, A Mine 〈◊〉 the Ore. for the worthiness of the Ore. Littl. §. 478 Co. Inst. pars 1. 278. b. 4. 19 If a man be disseised by an Infant, who aliens in fee, The right lows the possession. and the Alienée dies seized, and his heir enters, the Disseisor being still within age, and then the Disseisée releaseth to the heir of the Alienée: In this case, if the Disseisor enter upon the heir of the Alienée, as he may, he shall enjoy the land for ever; for a bare right shall never be left in the heir of the Alienée, but shall ever follow the possession, etc. So likewise if a man maketh a gift in tail, the remainder in fee, the Tenant in tail dieth without issue, a stranger intrudes, and he in the remainder brings a Formedon, and recovereth by default, and maketh feoffment in fee, the Intrudor reverseth the recovery in a writ of deceit, and entereth, he shall detain the land for ever: So it is also when a Disseisor dies seized, and a stranger abates, and the Disseisée releaseth to the Abator, etc. Here, if the heir of the Disseisor enter, he shall detain the land for ever: For, Co. ib. 283. b. 3. in all these cases the right to the possession shall draw the right of the land to it; neither yet shall any of these be relieved by bringing their writ of right, etc. And the rule to know, when the possession shall draw the right of the land to it, and when not, is this; when the possession is first, and then a right cometh thereunto, the entry of him that hath the right to the possession, shall gain also the right, which (as appears in those cases before put) followeth the possession, and the right of possession draweth the right unto it: But when the right is first, and then the possession cometh to the right, Littl. § 486. 48. albeit the possession be defeated, yet the right shall remain: As if the Disseisée enter upon the heir of the Disseisor, albeit the heir may recover the possession of the land against the Disseisée in an Assize of Novel Disseisin, or in a writ of Entry in the nature of an Assize; Yet shall the Disseisée afterwards recover the land again from the heir in a writ of Entry en le per, of the disseisin made unto him by his Father, or otherwise in a writ of Right; because the mere right of the land did still remain in the Disseisée, etc. Co. ib. 266. a. 3. So if a woman, that hath right of Dower, disseise the heir, and he recover the land against her, yet shall he leave the right of dower in her, etc. Because when the naked right is precedent before the acquisition of possession upon the defeasible estate, than (in consideration of Law) is the right more worthy than the possession, but when the possession is before the right, then is the possession more worthy, etc. according to the Rule, Quod prius est tempore, potius est jure. And this likewise holds true, when the mere right is subsequent, and transferred by act in Law, for there also albeit the possession be recontinued, yet that shall not draw the naked right with it, but shall leave it in him: As if the heir of the Disseisor be disseised, and the Disseisor enfeoff the heir apparent of the Disseisée, being of full age, and then the Disseisée dieth, and the naked right descends to the heir, and the heir of the Disseisor recovers the land against him, yet doth he leave the naked right in the heir of the Disseisée: So if the Discontinuée of Tenant in tail enfeoff the Issue in tail of full age, and the Tenant in tail die, and then the Discontinuée recovers the land against him, yet doth he leave the naked right in the Issue: For in these cases also, as before, the right although it seems to be subsequent to the possession, yet is it indeed before it, in respect of the privity, viz. (in the first case) of blood between the father and son, and (in the other case) of estate by force of the gift in tail; because the right of the father is (by construction of law) the right of the son, and the right of the Ancestor is the right of the issue in the tail. 10. ●ujus est solum, ●us est usque ad ●lum. 20 The earth is more worthy than the other elements, Co. Inst. pars 1 4. a. 3. because it was ordained for the habitation of man; and therefore it hath in Law a great extent upwards, not only of water, but a air, and all other things even up to heaven; for, cujus est solum, ejus est usque ad coelum, etc. ●ember of parliament. 21 The person of a Member of Parliament is free from arrests, Dyer 60. a. 20. because the King and all his Realm have an interest in his person pro bono publico, and therefore the private commodity of any particular man is drowned in it, and shall not be regarded, etc. ●ease of an ●use with ●plements. 22 A lease for years of an house with divers Implements rendering rend, the Lessor enters and makes feoffment, the Lessée reenters, Dyer 212. 37. 4 Eliz. and for rent arreare the Feoffée brings debt, and adjudged maintainable, albeit there was no privity, and this per 5 Henry 7. where the Devisée brings Debt: And there the rent was not extinct, but only suspended, until the Termor by his regress revived the reversion; Neither yet (in this case) shall there be an apportionment of the rent for the Implements, because Magis dignum trahit ad se minus dignum. Vide Dyer 361. 15. 20 Eliz. Dyer 216. 55. 4 Eliz. 23 The Statute of 1 Mar. dissolves the Court of Augmentations, Receivers office. by this the receivers office of the said Court was also dissolved. Sir Robert Chester's case: Howbeit the fee continued by a Proviso in the same Statute. 63 Accessarium Sequitur Principale. Co. Inst. pars 1. 49. a. 3. 1 If an house or land belong to an Office, An office or Corodie draweth land. by the grant of the Office by deed, the house or land passeth, as belonging thereunto: So likewise if an house or chamber belong to a Corodie, by the grant of the Corodie, the house or chamber passeth, etc. Co. ib. 56. a. 3. 2 If the Lessée at will by good husbandry and industry, Land drawe● the profits. either by overflowing, trenching, or compassing of the meadows, or digging up the bushes, or the like, make the grass to grow in more abundance; Yet if the Lessor put him out, the Lessée shall not have the grass; because the grass being the natural profit of the earth, aught to go with it: So it is also, albeit he sow's Hay-séed, and thereby increaseth the grass, &c, Co. ib. 122. a. 2. 3 If a Manor be divided between Coparceners, An advowson after partition remains appendent. and every one hath a part of the Manor without saying any thing of the Advowson appendent, the Advowson remains in coparcenary, and yet in every of their turns, it is appendent to that part, which they have, and so it is also if they make composition to present against common right, yet it remains appendent. Co. ib. 131. b. 2. 4 The King by his Prerogative (regularly) is to be preferred in payment of his duty or debt by his debtor before any subject, The King's debt first p●●, except in s●● where a fine 〈◊〉 due to the 〈◊〉 and damages to the party. although the King's debt or duty be the latter; and the reason hereof is, for that Thesaurus Regis est fundamentum belli, & firmamentum pacis: And thereupon the Law gave the King remedy by the writ of Protection, Cum clausula volumus, to protect his Debtor, that he shall not be sued or attached, until he had paid the King's debt; but hereof grew some inconvenience, because many times to delay other men of their suits, the King's debts were the more slowly paid: For remedy whereof, it was enacted by the Stat. of 25 E. 3. cap. 19 That the other Creditors might have their actions against the King's Debtor, and also proceed to judgement, but not to execution, unless that Creditor will take upon him to pay the King's debt, and then he shall have execution for both the debts: Howbeit in some cases the Subject shall be satisfied before the King; for (regularly) whensoever the King is entitled to any fine or duty by the suit of the party, the party shall be first satisfied, as in a Decies tantum against a juror, or an Embraceor; for there the tenfold damages shall be first satisfied, and then the King's fine; because this is as accessary to that: So likewise if in an action of Debt, the Defendant deny his deed, and it is found against him; in that case he shall pay a fine to the King, but the Plaintiff shall be first satisfied; And so it is in all other like cases; The like course was also taken in Bills preferred by Subjects in the Star Chamber; For if costs and damages were there recovered by the party, they were answered before the King's fine, etc. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Manor, whereunto a Villain is regardant, A Manor draws the Villain. enfeoff the Villain of the Manor, and dieth, the issue shall have a Formedon against the Villain, and after the recovery of the Manor, he shall seize the Villain; Howbeit, before the recovery of the Manor he cannot seize the Villain, for that the Manor was principal, etc. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another, Rend and ●vice incident to the reversion. etc. and the Tenant attorns the rent and service pass by this word (reversion) because they are incident unto it; but by the grant of the rent the reversion shall not pass; because the Incident shall pass by the grant of the Principal, but not the Principal by the grant of the Incident, Accessarium non d●cit, sed sequitur suum principale. Scire facias ●llows the ●cord. 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands, etc. in case the said lands be evicted, giveth a Scire facias out of the same Court, from whence the former execution did proceed, etc. to have execution of other lands, etc. If the record be removed by writ of Error into another Court, and there affirmed, the Tenant by execution, that is evicted, shall have a Scire facias (by the equity of that Statute) out of the Court, into which the writ of Error was brought; because the Scire facias must be grounded upon the record, and Accessarium sequitur principale, etc. villain and advowson appendent to a Manor. 8 Albeit a man cannot at all be put out of possession of his Villain in gross, nor directly of his Villain regardant; yet may he per obliquum, Co. ib. 306. b. 4. etc. and by a mean be put out of possession of his villain regardant to a Manor. For by putting him out of possession of the Manor, which is the Principal, he may likewise be put out of possession of the Villain regardant, which is but accessary; And so it is also of an Advowson appendent to a Manor; And therefore by the grant of a Manor without saying cum pertinentiis, the Villain regardant, Advowson appendent, and the like do pass; For if the Disseisor shall gain them, as Incidents to the Manor, whose estate is tortuous, A multo fortiori the Feoffée, who cometh to his estate by lawful conveyance, shall have them, as Incidents; And where the entry of the Disseisée is lawful, he may seize the Villain regardant, or present to the Advowson, etc. before he enter into the Manor; But it is otherwise where his entry is not lawful; And so are our ancient Authors to be intended, and a point much controverted in our books to be resolved. Vide Dyer 5, 6. 9 If the reversion of Lessée for life be granted, Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate, Attornment ●ollows the ●and. the Lessée cannot attorn, but the Assignée, for the attornment follows the land: So likewise, if Lessée for life assigneth over his estate upon condition, the Assignée shall attorn, because he is Tenant of the land, etc. The demesns, etc. follows the Manor. 10 Attornment of the Tenant of a Manor to a Disseisor of the Demesnes shall dispossess the Lord of the rents and services, Co. Inst. pars 1. 323. a. 1. parcel of the Manor; because both Demesns, rents and services make but one entire Manor, and the Demesnes are the principal, etc. A charge follows the land. 11 If there be 80 acres of Meadow, Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise, viz. thirtéen acres thereof to A. 10 acres to B, etc. So as sometime the 13 acres lie in one place, and sometime in another, and so of the rest: In this case, if A. being seized of these 13 acres in fee, grant a Rent-charge out of those 13 acres generally, lying in the Meadow of 80 without mentioning, where they lie particularly; There, as the estate of the land removes, the charge shall remove also. Advowson ●ollows the Manor. 12 Tenant in tail of a Manor whereunto an Advowson is appendent, maketh a discontinuance, Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchester's case. the Discontinuée granteth the Advowson to Tenant in tail and his heirs, Tenant in tail dieth, the issue is not remitted to the Advowson; because the issue had no action to recover the Advowson, before he recovered the Manor, whereunto the Advowson was appendent: And so it is also of all other Inheritances regardant, appendent, or appurtenant, a man shall never be remitted to any of them before he recontinueth the Manor, etc. whereunto they are regardant, appendent, or belonging, according to that of Britton, Nul ne poit clamar droit en les appurtenances, ne en les accessories, que nul droit ad en le principal: And also that of Bracton, Item, excipi potest, etc. quàmvis jus habeat in tenemento & pertinentiis, primò recuperare debet tenementum, ad quod pertinet advocatio, & tunc postea presentet & non ante, etc. Et de haec materia in Rotulo Sancti. Mich 3. H. 3. in come. Norfolk de Tho. Bardolf, etc. But on the other side, if a man be remitted to the principal, he shall also be remitted to the appendent, or accessary, albeit it were severed by the Discontinuée, or other wrongdoer: And therefore if there be Tenant in tail of a Manor, whereunto an Advowson is appendent, and he enfeoffeth A. of the Manor with the appurtenances, A. re-enfeoffeth the Tenant in tail, saving to himself the Advowson, Tenant in tail dieth, his issue being remitted to the Manor, is consequently remitted to the Advowson, although at that time it was severed from the Manor: Co. ib. 363. b. 3. So it is in the same case, if Tenant in tail be disseised, and the Disseisor suffer an usurpation; For here also, if the Disseisor enter into the Manor, he is likewise remitted to the Advowson. 15. Co. ib. 355. b. 4. 13 In any action for the recovery of the principal, Judgement 〈◊〉 the principal draweth the accessories. together with the accessary, a man shall never release the principal, & have judgement of the accessary: In an action of waste, if the Defendant confess the action, the Plaintiff may have judgement for the place wasted, and release the damages; but he cannot have judgement for the damages, and release the place wasted; because the place wasted being in the realty is the principal, and the damages being in the personalty, are but as accessories; for without judgement for the principal; the Plaintiff can have no title to the accessary; but having judgement for the principal, he is thereby also entitled to the accessories, and therefore may release them, etc. Co. ib. 378. a. 4. 14 A man letteth lands for life upon condition to have fee, Warranty ●creaseth according to t●● estate. and warranteth the land in forma praedicta, afterwards the Lessée performeth the condition, whereby the Lessée hath fee: Here, the warranty shall extend and increase according to the estate; And so it is likewise, albeit the Lessor had died before the performance of the condition; for then also the warranty shall rise and increase according to the state, and yet the Lessor himself was never bound to the warranty, howbeit it hath relation from the first livery, etc. Co. ib. 363. b. 3. 15 If Tenant in tail be of a Manor, whereunto an Advowson is appendent, the Tenant in tail discontinueth in fee, the Discontinuée granteth away the Advowson in fee, and dieth, the issue in tail recontinueth the Manor by recovery, he is thereby remitted to the Advowson, and shall present when the Church becometh void, etc. 12. Co. ib. 384. b. 4. 42 E. 3. 6. per Finchden. 16 It hath been adjudged, Acquital follows the 〈◊〉 that where two Coparceners made partition of land, and the one made a covenant with the other to acquit her and her heirs of a suit, that issued out of the land, the Covenantée aliened; In this case the Assignée shall have an action of Covenant, and yet he was a stranger to the Covenant; because the acquital as accessary did run with the land, which was the principal. Co. ib. 385. a. 2. 17 If a man make a feoffment in fee of two acres to one, Warranty follows the fee. with warranty to him, his heirs and assigns, if he make a feoffment of one acre, that Feoffée shall vouch as Assignée; for the warranty, as accessary, follows the land, as principal: And therefore there is a diversity between the whole estate in part, and part of the estate in the whole or in any part: As if a man hath a warranty to him, his heirs, and assigns, and he make a lease for life, or a gift in tail, the Lessée or Donée shall not vouch, as Assignée; because he hath not the estate in Fée-simple, whereunto the warranty was annexed; but the Lessée for life may pray in aid, or the Lessée, or Donée may vouch the Lessor or Donor, and by this means they shall take advantage of the warranty: But if a lease for life, or a gift in tail be made, the remainder over in fee, such a Lessée or Donée shall vouch as Assignée; because the whole estate being out of the Lessor, the warranty by consequent doth follow it; and the rather, because the particular estate and the remainder do in judgement of Law (as to this purpose) make but one estate, etc. Grant of the Manor passeth all liberties and incidents. 18 If the King grant to one and his heirs, Bona & Catalla felonum, Co. l. 3. 32. b 3. in Butler and Baker's case. Per Anderson & Periam sur conference ewe ove divers auters justices, 25 Eliz. in Baker's case. & fugitivorum, or utlagorum, fines, amerciamenta, etc. within such a Town or Manor; In this case he cannot devise them to another, nor leave them to descend for a third part, according to the Statutes of 32 and 34 H. 8. of Wills; because they are of no yearly value; For the first branch of the 34 H. 8. ordains, that the hereditaments devisable by those Statutes should be of a clear yearly value, etc. And therefore those Statutes extend not to such kind of hereditaments. Nevertheless, if a man be seized of a Manor, unto which a Léet, or Waife and Stray, or any other hereditament, which is not of any yearly value, is appendent or appurtenant; Here, by the devise of the Manor with the appurtenances, they shall pass as incidents to the Manor: For in as much as those Statutes by express words enable him to devise the Manor, by consequent they enable him to devise the Manor with all incidents and appendants unto it: And it was never the intention and meaning of the makers of those Statutes, that when the Devisor hath power to devise the principal, he shall not have power to devise that which is incident and appendent unto it, but that the Manor, etc. shall be dismembered, and fractions made of things, which by lawful prescription have been united and annexed together, etc. Principal and accessory. 19 If there be principal and accessary, Co. l. 4. 43. b. 2. in Syers case. & Co. ib. 44. a. 1. in Bibiths' case. and the principal is pardoned, or hath his Clergy, the accessary cannot be arraigned; For the Maxim of Law is, Ubi factum nullum, ibi forcia nulla; & ubi non est principalis, non potest esse accessarius. Then before there appears to be a principal, one cannot be charged, as accessary; but none can be said to be principal, before he be so proved and adjudged by Law; and that ought to be by judgement upon verdict, or confession, or by outlawry; for it sufficeth not, that (in truth) there is a principal, unless it appear so by judgement of Law: And this is the reason, that when the principal is pardoned, or takes his Clergy before judgement, that then the accessary shall never be arraigned, because it appears not by judgement of Law that he was principal; and the acceptance of the pardon, or prayer of the Clergy may be an argument, but can be no judgement in Law, that he is guilty; Howbeit, if the principal after attainder be pardoned, or hath his Clergy allowed, there the accessary shall be arraigned; because it then appears judicially, that there was then a Principal. 28, 29. 34, 35. Land & tree. severed. 20 When a man makes a lease for life or years, Co. l. 4. 64. b. 2. in Herlakendens case. the Lessée hath but a special interest or property in the trees (being great timber) as accessories annexed to the land, so long as they are annexed unto it: But if the Lessée or any other sever them from the land, the property and interest of the Lessée is thereby determined, and the Lessor may take them as accessary things, which were parcel of his Inheritance, and in which the interest of the Lessée is determined, etc. The like. 21 If I let my land for life. and after grant the trees, Co. ib. 62. b. 4. and after that the Lessée dies, yet the Grantée cannot take them, as it was holden per toram Curiam, in 21 H. 6. 46. d. because at the time of the Grant, the Lessée had a property in them, as accessories annexed to the land, etc. Vide Max. 25. The like. 22 If trees (being great timber) be blown down by the wind, Co. ib. 63. b. 1. the Lessor shall have them (for they were parcel of his Inheritance) and not the Tenant for life or years; But if they be dotards, without any great timber in them, the Tenant for life or years shall have them, etc. Superstitious uses draw good uses. 23 When certain sums are limited to superstitious uses, Co. l. 4. 115. a. 2. in Adam's & Lambert's case. and one use is separated and divided from the other, there the finding of one of them only shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but only the sum appointed to the superstitious use, which was employed within five years before the making of that Statute: but if one of the uses depend upon the other, there the finding of the principal or any part thereof shall give all the land to the King: As if land be given to the intent that an Obits shall be found in such a Chapel, and that upon the Obits. 10 s. shall be distributed and employed to the Priest; and 6 s. 8 d. to divers poor persons, that shall be present at it, and the residue of the profits to the reparations of the Chapel: In this case, if the Obits be maintained in any part within the five years, although the 6 s. 8 d. be not employed to the poor men, nor any thing at all upon the reparations of the Chapel within the five years; Yet all the land shall be given to the King by the said Statute; because all the uses depend upon the first. 24 In suits in the Star Chamber (before the repeal of that Court) albeit the suit was for the King, Co. lib. 5. 51. Hall's case. Upon censure or sentence, the King cannot pardon the damages or costs before censure or sentence, contr●. and the offence such as the King might pardon, yet when the censure was once given, and damages given to the Plaintiff, than the Plaintiff had particular interest in them by the censure which the King would not pardon: But if the pardon had been obtained before the censure, there the pardon had discharged all; for then the Court could not have proceeded to any censure of the Principal, and by consequent neither of damages, which are but accessories: There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation, casting violent hands upon a Clerk, or the like; for these being suits, pro salute animae, vel reformatione morum; are in truth suits only for the King, although prosecuted by the party: And therefore if in such a suit the Plaintiff hath expended any costs, and the King before sentence pardons the Defendant, in that case the costs are lost, causa qua suprà; It is otherwise, if he be not pardoned till after sentence, for than costs being thereby given to the Plaintiff, he hath a particular interest in them, which the King's pardon cannot frustrate, etc. Co. l. 5. 96. b. 3. in Goodales' case, being adjudged in Randall case, 23, & 24 Eliz. in the Court of Wards. 25 A. seized in fee of certain lands, A condition accessary to the estate. by deed indented and enroled according to the Statute, covenants with B. That if B. pay unto A. his Heirs or Assigns 10 l. upon such a day at such a place, that then A. and his heirs will stand seized of the said lands to the use of B. and his heirs, A. having issue a son, makes his Will in writing, and makes C. his Executor, and withal deviseth that C. shall have the land during the minority of his son, and then dies, his son within age: In this case the question was, to whom after the death of A. the Tenant ought to be paid, and it was resolved, that it ought to follow the estate of the land, as an accessary unto it, and shall not be paid unto C. either as Termor or Executor, because C. could not be such an Assignée, as is meant by the words of the Covenant, having by the devise only a particular interest in the land; Neither yet, if A. had granted the land for life or years, could any such Lessee have been Assignée in that case; because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate, in case the condition were not performed; and therefore the payment thereof aught to be made to his son and heir, or unto the Assignée of the Covenantors whole estate, as if the Covenantor had made an absolute feoffment in fee, or else a gift in tail, or lease for life, with the remainder over in fee, than the Feoffée, Donée in tail, or Lessée for life, might be Assignées, to whom the Condition ought to be performed; because in those cases the Covenantor departed with the whole estate, unto which the Condition was annexed, etc. ●he estate ●ile not bar●d, the rever●ō or remainder not barred also. 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided, Co. l. 8. 77. b. 4. in the Lord Staffords case. that no common recovery had against Tenant in tail, who is party to the recovery, shall bar his issues, when the King hath the reversion, etc. by this (Inclusiuè) the act preserves the reversions and remainders in tail of the Kings grant; for they cannot be barred, but when the estate tail, upon which they depend, is barred: And this is the reason, that when Tenant in tail is in of another estate, and suffers a common recovery as Tenant, this shall not bar any reversion or remainder; because it barreth not the estate of the Tenant in tail, being party to the recovery, and upon whose estate such reversion or remainder depends: For, quod non valet in principali, in accessoria seu consequenti non valebit, & quod non valet in magis propinquo, non valebit in magis remoto. Ordinary sub●ect to an a●tion. 27 If before the Statute of Westm. 2. cap. 19 Co. l. 9 39 b. 2. Hensloes' case, an action lay at the Common Law against the Deputies or Committées of the Ordinary (by the name of Executors) as appears by 38 E. 3. 26. & 42 E. 3. 2. A multo fortiori, an action shall lie by the Common Law against the Ordinary himself, who is the Principal, and from whom the Administrators do now derive their power. principal and Accessary. 28 Albeit the Principal be attainted erroneously, Co. l. 9 119. a. 4. in the Lord Sanchiers case. either for error in process, or because the Principal being out of the realm, etc. was outlawed, or because he was in prison at the time of the Out-lawry, etc. yet shall the accessary be attainted; for the attainder of the Principal stands good, until it be reversed; and with this agrees the resolution of all the justices in the King's Bench, 2 R. 3. 12. And in the 18 E. 4. 9 the Principal was erroneously outlawed for felony, and the Accessary was taken, indicted, arraigned, convicted, attainted and hanged, and afterwards the Principal reversed the Out-lawry, and was indicted and arraigned, and found not guilty, and thereupon was acquit: And in this case (forasmuch as there can be no accessary, but where there is a principal, and here there was no principal) the heir of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder, either by entry or action at his election: For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled; because by reversing the attainder against the Principal, the attainder against the Accessary, which depended upon the attainder of the principal, is ipso facto utterly defeated and annulled; And this doth notably appear in an ancient book, de tempore E. 1. tit. Mortdancester, 46. where the case was this; A. was indicted of felony, and B. of of the receipt of A. A. eloigns himself, and is outlawed, B. was taken, and put himself upon inquest, and was found guilty, and was thereupon attainted and hanged, and the Lord entered as in his escheat: After which time A. came in, and reversed the Out-lawry, and pleaded to the felony, and was found not guilty, wherey he was acquit; Hereupon the heir of B. brings a Mortdancester against the Lord by escheat, and therein showeth all this matter, and so upon a Demurrer it was awarded, that the heir should recover seisin of the land; For if B. had been living, he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon, when A. was no Felon. 19 29. 34, 35. principal and accessary. 29 The makers of the Statute of 4 & 5 P. & M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Poulters case. observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning, etc. and not from any accessary, have provided that the accessary before the fact (in that and other cases there provided for) shall be also outed of his Clergy, which was taken to be a good interpretation, made by that Parliament of all the Acts which concerned that matter; For if the Principal shall have his Clergy, it would be absurd to take away Clergy from the accessary; because if the Principal hath his Clergy before judgement, the accessary shall not be arraigned. Vide suprà 19 F. N. B. 32. a. primer. 30 If Baron and Feme present to an Advowson in right of the Feme, which is appendent to the Manor of the Feme, Advowson appendent to an acre of land. and after the Baron alien an acre, parcel of the Manor, together with the Advowson in fee to a stranger, and dies, and after the stranger presents, and then aliens the acre to another in fee; saving the Advowson to himself, and after the Church becomes void; Here, the Feme shall present, and if she be disturbed, she shall have an Assize of Darrein presentment, because the Advowson was severed from the acre; but if the Advowson were appendent to the acre, then ought the Feme to recover the acre, before she can present to the Advowson. F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas, Quare non admisit out of the King's Bench. and the record is removed by a writ of Error into the King's Bench, and there affirmed; In that case he shall have a writ to the Bishop there, and aught to sue a Quare non admisit against the Bishop there, upon that record, etc. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas, The like for an attaint. if the record be there, which is the principal, or it may be sued in the King's Bench upon false verdict given in the Common Pleas, if the record be removed into the King's Bench, etc. Ibid. 33 A recovery was had in an Assize brought in the King's Bench, The like. and afterwards the record was sent into the Common Pleas, and the party sued an Attaint upon that record in the Common Pleas; For the record is the principal, and the Attaint thereupon is accessary, which see in tit. Assize, 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital, Principal and Accessary. or hath a charter of pardon, and plead it, etc. In that case the Accessary shall not have a writ of Conspiracy, because he is discharged by the death of the Principal, or by the charter of pardon made unto the Principal, etc. 19 28, 29. Pl. Co. 99 b. 4. Matters of the Crown, etc. 35 Divers persons were accused for murdering of a man, Principal and Accessary. whereof some did actually murder him, and were fled, others stood by, aiding and abetting those that committed the murder; and these last were taken, and arraigned as principals, etc. Besides these, there was one Gittin indicted, as accessary unto them all; but stay was made of his arraignment, until he might be arraigned as Accessary to them all at one time; for he could not be arraigned as Accessary to them that were escaped, because they were not yet attainted, etc. Co. Inst. pars 1. 96. b. Littl. § 137. 36 Where the Common or Statute-law giveth remedy in soro seculari (whether the matter be temporal or spiritual) the Conusance of that cause belongeth to the King's temporal Courts only, Remedy is foro secul●i for spiritual things. unless the jurisdiction of the Ecclesiastical Court be saved, etc. As if an Abbot or Prior hold of his Lord by Divine Service certain, and that service is not performed, the Lord hath his remedy in foro seculari; for if he distrain for not doing it, he shall upon his avowry recover damages at the Common Law, viz. in the King's Temporal Court for the not doing of it; And if issue be taken upon the performance of the Divine Service, it shall be tried by a jury of twelve men; because albeit the service be spiritual, yet the Seignory, as also the damages to be recovered, are temporal: It is otherwise of service by Frankalmoign, which is always uncertain; Co. ib. 96. a. 4. for there the right being merely spiritual, and the remedy only by the Ecclesiastical Law, the Conusance thereof doth belong to the Ecclesiastical Court, etc. Co. l. 11. 27. b. 3. in Henry Pigot's case. 37 In 30 E. 3. casu ultimo, a deed of feoffment, A letter of ●torney void, though read right to one unlettered. in which a warrant of Attorney to deliver seisin was inserted, was read to him that was to be the Feoffor, being a man unlettered, in the form of an estate tail, but was (indeed) a feoffment in fee, and the warrant was read truly, as it was writ, and both were sealed and delivered, and seisin given accordingly; Howbeit, in this case, the deed was adjudged void, because read in another form, etc. and the warrant of Attorney (albeit it were truly read) was adjudged void also; because it depended upon the feoffment, and had relation to the estate in fee. Vide 84. 8. A Villeins estate, not the lands before recovery of the Villain. 38 Servi fugitivi dicuntur esse in statu libero, Bract. l. 5. cap. 10. § 3. fo. 7. a. donec dominus versus eos sibi perquisirit per legem terrae, nec habebit potestatem aliquam in eyes vel liberis suis, terris, aut aliis bonis ipsorum, donec corpus, quod principale est, disrationaverit. A condition or ●ovenant runs ●ith the land. 39 A lease is made to Baron and Feme by indenture, Dyer 12. 65. 28 H. 8. in which there is a Proviso, that if they or their Executors shall be disposed to sell and alien the term, that then the Lessor shall have the first offer, he giving for it as much as another will give: And here, the question was, whether this was a condition or a covenant, and the better opinion seems to be, that it is rather a condition than a covenant; Howbeit whether it be the one or the other, it runs with the land: So as albeit the Feme joined not in the Indenture, nor was party thereunto, yet if she survive the Baron, she shall hold the land charged with the condition or covenant, as an accessary thereunto: So in 38 E. 3. a feoffment was made by deed with divers covenants, and one of the Feoffées sealed it, and the other not, but yet occupied the land, and survived, and it was resolved the Survivor should be bound by the covenants and seal of his companion. Qui sentit commodum, sentire debet & onus. Vide M. 236. A penalty for ●ot singing ●asse, etc. 40 An Abbot with the assent of his Covent grants for them and their Successors to a man and his heirs, Dyer 24. 149. 28 H. 8. to find one of his Monks to sing Mass, Matins, and Vespers every Holiday in such a Chapel, and grants over, that toties quoties defectus fuerit in aliquo, etc. that they will forfeit to him and his heirs five pound. In this case, if by a failer of the service, the nomine poenae of 5 l. be forfeit, the heir shall have an action of Debt for it, and not the Executors; for the heir having an inheritance in the penalty, it follows the nature of the land given to the religious house, as an accessary thereunto. disseisor and ●isseisee. 41 After regress of the Disseisée, Dyer 31. 219. 28 H. 8. the Disseisée shall have the grain of the Disseisor, albeit they be severed from the land by the Disseisor, per totam Curiam, and in B. R. in Says case. principal and abettor. 42 At the Common Law before the Statute of 2 & 3 Edw. 6. 24. Dyer 38. 50. etc. 29. H. 8. in an appeal of Robbery, the Abettors were to be prosecuted in the same County where the Robbery was committed, and where the Principal was attainted, and not where the abetment was proved to be; But that Statute hath now settled it in the County where the Abettors shall be taken. guardian. 43 If a man be seized of a Rent-charge, Rent-secke, Co. Inst. pars 1. 87. b. 3. Common of pasture, or such like Inheritances, which lie not in tenure, and die, his heir within the age of fourtéen years: In this case, the heir may choose his Guardian; But if he hold any land in Soccage, the Guardian in Soccage shall take into his custody, as well the Rent-charges, etc. as the land holden in Soccage, because he hath the custody of the heir, which is the Principal. ●●rrender. 44 By surrender of the Letters Patents themselves, Dyer 179. 44. 2 Eliz. the Duplicate thereof (though it been also under the Great Seal) is also gone. 45 Vide Hob. 4. Musgrave against Wharton. 64 Things accessary are of the nature of the Principal. 40 Ass. Pl. 25. 1 A servant procureth another to kill his Master, No accessary. this is no petty Treason in the servant, because it is but felony in the other, which is the principal. Finch 23. 7 H. 6. 19 b. 2 A Parson grants an Annuity with a Nomine poenae, A Parson's successor chargeable. the Successor shall be charged with the Nomine poenae due in his Predecessors life, and not his Executors. Finch 23. 26 H. 8. Dy. 7. Finch 23. 3 The profits of the office of a Filizer, Profits of a Filizers office not chargeable. Lop not titheable. &c. cannot be put in execution upon a recognizance, statute, etc. because the office itself, being an office of trust, cannot. 26. El. Molins. Finch, 23. 4 Tithe is not payable of Oaks usually topped and lopped (though it be every seven or eight years) for the branches are of the nature of the principal, viz. the Oak itself, for which no tithe is to be paid. Co. Inst. pars 1. 13. a. 1. 5 A man seized as heir on the part of his Mother, The effect ensues the cause, and the recompense the loss. maketh a feoffment in fee to the use of him & his heirs; Here, the use being a thing in trust and confidence shall ensue the nature of the land, and shall descend to the heir on the part of the Mother: So likewise if a man hath a Seignory as heir of the part of his Mother, and the tenancy doth escheat, it shall go to the heir of the part of the Mother: Also if the heir of the Mother's part of land, whereunto a warranty is annexed, be impleaded and vouch, and thereupon judgement is given against him, and also for him to recover in value, and dieth before execution; Here, the heir of the Mother's part shall sue execution to have in value against the Vouchée; for the effect ought to pursue the cause, and the recompense shall ensue the loss. Co. ib. 42. a. 4. 6 A man may have an estate for term of life determinable at will; An estate for life determinable at will. As if the King doth grant an office to one at will, and also grants a rent to him for the exercise of his office for the term of his life, this is determinable upon the determination of the office. Co. ib. 53. a. 3. 7 If Glasse-windows (though glazed by the Tenant himself) be broken down, or carried away, it is waste; for the glass is part of the house: Waste. And so it is of wainscot, benches, doors, windows, fornaces, and the like, annexed or fixed to the house, either by him in the reversion, or the Tenant. Co. ib. 122. a. 1 8 Nothing can be properly appendent or appertenant to any thing, Advowson appendent 〈◊〉 Demesnes. unless the principal, or superior thing be of perpetual subsistence and continuance; For example, an Advowson that is said to be appendent to a Manor, is in rei veritate appendent to the Demesnes of the Manor, which are of perpetual subsistence and continuance, and not to resists or services, which are subject to extinguishment and destruction. Co. Inst. pars 1. 124. a. 4. 9 If an Executor hath a Villain for years, A perqui●●● shall accr●● the Execute Termor, 〈◊〉 and the Villain purchaseth lands in fee, & the Executor enters; In this case the Executor shall have the whole fée-simple of the lands; Howbeit because he had the Villain en auter droit, as Executor, to the use of the dead, it shall be assets in his hands, as the Villain is: And therefore note a diversity between the quantity of the estate, and the quality of it; for in this and the like cases, the Law respecteth not the quantity of the estate (for not only Tenant in tail and Tenant for life of a Villain, shall have the perquisite of the Villain in fee, but Tenant for years, and Tenant at will also shall have it in fee) but it principally respecteth the quality of the estate; For in what right the Executor hath the Villain, in the same right shall he have the perquisite: So it is also in the case of a Bishop, that hath a Villain in right of his Church; Also if a man hath a Villain in right of his wife, he shall have the perquisite also in her right: But if the purchase be after issue had, than the Baron shall have the perquisite to him and his heirs; because by the issue he is entitled to be Tenant by the Courtesy in his own right, etc. Distress for owelty of partition. 10 Littleton saith, § 219. Co. ib. 144. b. 4. that for a Rent-charge the Grantée hath his election either to bring his writ of Annuity, or to distrain, etc. Howbeit of a rent granted for owelty of partition, a writ of Annuity doth not lie; because it is of the nature of the land descended, and therefore for that the Grantée shall only distrain, etc. Assize & redisseisin. 11 If a man recover land in an Assize of Novel disseisin, Co. ib. 154. b. 3. whereunto there is a Common appendent or appertenant, and after is redisseised of the Common, he shall have a re-disseisin of the Common; for it was tacitly recovered in the Assize. Coparcenary of rent for owelty, etc. 12 If there be three Coparceners, and they make partition, Co. ib. 169 b. 2. and one of them grant 20 s. per annum, out of her part to her two sisters and their heirs for owelty of partition; Here, the Grantées are not joint-tenants of this rent, but the rent is in nature of Coparcenary, and after the death of the one Grantée, the moiety of the rent shall descend to her issue, in course of coparcenary, and shall not survive to the other, for that the rent doth come in recompense of the land, and therefore shall ensue the nature thereof; And if the grant had been made to them two of a rent of 20 s. viz. to the one ten shillings, and to the other ten shillings, yet shall they have the rent in course of coparcenary, and join in action for the same. Coparcenary of rent. 13 If two Coparceners by deed indented alien both their parts to another in fee, Co. ib. 169. b. 4. rendering to them two and their heirs a rent out of the land, they are not joint-tenants of this rent, but they shall have the rent in course of coparcenary; because their right in the land, out of which the rent is reserved, was in coparcenary. joint-tenancy for life, and several Inheritances. 14 If land be given to two men and the heirs of their two bodies, Co. ib. 183. b. 4. they have joint estates during their lives, and afterwards several Inheritances; and therefore if one of them have issue and die, the other shall have all the land during his life by right of Survivor, but after his death that issue shall enjoy his father's part: and if that issue die without issue, the Donor shall enter into that moiety, and not the issue of him that survived; For in as much as originally the inheritance was several, the reversion is also several; And therefore upon the several determination of the estate in tail the Donor may enter; for as upon one joint and entire gift or lease. there is one joint and entire reversion, so upon several gifts or leases, there be several reversions, etc. Rend reserved enures to both the joint-tenants. 15 If two joint-tenants make a lease for life, Co. ib. 192 a. 3. reserving a rent to one of them, the rent shall enure to them both; because the reversion whereunto the rent is incident, remains still in jointure; unless the reservation be by deed indented, and then he only, to whom it is reserved, shall have it, etc. Vide Dyer 308. 75. Winter's case. Damages shall be several amongst Cop●rceners. 16 If three Coparceners recover land and damages in an Assize of Mortdancester, albeit the judgement be joint, Co. ib. 198. a. 4. viz. that they shall recover the land and damages; yet the damages being accessary (though personal) do in judgement of Law depend upon the Frée-hold, being the principal, which is several; And although the words of the judgement be joint, yet shall it be taken for distributive; And therefore in that case it two of them die, the entire damages do not survive, but the third shall have execution according to her portion, etc. A right may be forfeited. 17 The right of a particular estate (which is as accessary) may be forfeited as well as the particular estate itself (which is the principal) and he that hath but a right of a Remainder, or reversion, Co. ib. 252. a. 2. shall take benefit of such a forfeiture: As if Tenant for life be disseised, and levy a fine to the Disseisor, he in the reversion or remainder shall presently enter upon the Disseisor for the forfeiture: So it is also, if the Lessée after the disseisin had levied a fine to a stranger; For, albeit to some respects, Parts finis nihil habuerunt, yet is it a forfeiture of his right. Co. ib. 252. b. 1. 18 The entry of a man to re-continue his inheritance or frée-hold, Several disseisin must have several entries and actions. must ensue his action for recovery of the same; As if three men disseise me severally, of three several acres of land, being all in one County, and I enter in one acre in the name of all the three acres, this is good for no more, but for that acre which I entered into; because each Disseisor is a several Tenant of the frée-hold, & as I must have several actions against them for the recovery of the land, so mine entry must be several; And so it is, if one man disseise me of three acres of ground, and letteth the same severally to three persons for their lives, etc. There the entry upon one Lessée in the name of the whole, is good for no more, than that acre, which he hath in his possession: But if the Disseisor had let severally the said three acres to three persons for years, there the entry upon one of the Lessées, in the name of all the three acres, shall re-continue and revest all the three acres in the Disseisée; for that the Disseisée might have had one Assize against the Disseisor, because he remained Tenant of the Frée-hold for all the three acres; and therefore in that case one entry shall serve for the whole: So if one disseise me of one acre at one time, and after disseise me of another acre in the same County at another time, in this case my entry into one of them in the name of both is good; for that one Assize might be brought against him for both the Disseisins: But if I enfeoff one of one acre of ground upon condition, and at another time I enfeoff the same man of another acre in the same County upon condition also, and why the conditions are broken, and entry into one acre in name of both is not sufficient; for that I have no right to the land, nor action to recover the same, but a bare title, and therefore several entries must be made into the same, in respect of the several conditions: But an entry into one part of the land in the name of all the land subject to one condition is good, although the parcels be several, and in several Towns: And so note a diversity between several rights of entry, and several titles of entry, by force of a condition. Co. ib. 387. a. 4. 19 If Tenant in Fée-simple, that hath a warranty for life, Warranty. either by an express warranty, or by Dedi, be impleaded, and vouch, he shall recover a Fée-simple in value; albeit his warranty were but for term of life; because the warranty extended in that case to the whole estate of the Feoffee in Fée-simple: But if Tenant in tail make a lease for life, the remainder in fee, etc. And a collateral Ancestor confirms the estate of the Tenant for life with warranty for term of life, of the Tenant for life, and dies; In this case, if the Tenant for life be impleaded and vouch, he shall recover in value but an estate for life, because the warranty doth extend to that estate only. Co. Inst. pars 1. 392. b. 4. 20 If a man make a gift in tail with warranty, All accessaries to an estate tail are entailed, as well as the estate itself. this warranty is also entailed; And therefore a release made by Tenant in tail of the warranty shall not bar the issue, no more than his release shall bar the issue to bring an attaint upon a false verdict, or a writ of Error upon an erroneous judgement given against the father; Neither yet can his gift bar the issue of the deed, that created the estate tail, nor of any other deed necessary for defence of the title; For these are accessaries to the estate tail, and are as firmly entailed, as the estate itself, etc. Co. l. 8. 79. b. 4. Wyatt Wields case. 21 A man is seized of a Message and forty acres of land, Common apportionable. unto which he can prescribe to have Common in 200 acres of waste belonging to the Manor of Dale, for all the cattle levant and couchant upon the said Message and 40 acres: In this case, if he sell five acres, parcel of the forty (whether the Common were appendent or appurtenant) the Alienée shall enjoy a proportionable part of the Common, as belonging to the said five acres: For albeit at the beginning, there was but one Common attending upon one tenancy, yet in as much as it is attendant upon a tenancy, that is severable, and upon every part thereof, the Common shall be severable as well as the tenancy, so that the Alienée of part of the tenancy shall enjoy also a part of the Common answerable to that part of the tenancy, etc. So likewise, if he that hath such a Common appertaining to his land, as aforesaid, demise parcel of the land to another, the Lessée shall have common for his beasts levant and couchant, etc. Joint covenants relate ●o joint interests. 22 S. and his wife bring an action of Covenant against B. upon Covenant made by Indenture tripartite, Co. l. 5. 18. b. 4. Slingsbies' case. in which B. covenants with the Plaintiffs, and also with I. S. and his wife, Et assignatis suis, & cum quolibet, & qualibet eorum, that he was sole seized of the land, etc. And in this case it was adjudged, that the action would not lie singly for the Plaintiffs only, but I. S. and his wife ought also to have joined in the action; because as their interests in the land was joint, 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 Green acre to C. and covenant with them, & quolibet eorum, that he is right owner of them, etc. 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 jointly, the Covenant had been joint in respect of their joint interest, etc. 23 A Lord of a Léet cannot distrain for the certainty, Co. l. 11. 44. b. 2. & 45. a. 2. in Godfrey's case. belonging to the same Léet, unless he can prescribe, that he and those whose estate he hath, have formerly distrained for it; because the certainty being against common right, and only 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 itself, 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 itself (which is the principal) consists in prescription. It is otherwise in a Court Léet; because for the Fines and Amerciaments of that Court distress is incident of common right, etc. ●he Court Christian may ●ke a recog●sance of a debt. 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, etc. But if by reason of matrimony 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 lieth 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, etc. principal and accessary. 25 If a man cause one as Principal to be appealed of murder or felony, and another as Accessary unto him, F.N.B. 115. a. and after he is nonsuited in his appeal; In this case, the Accessary shall have a writ of Conspiracy, as well as the Principal. ●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, etc. ●t of the abt upon a ●t. Merchant ●iable. 27 If a man make a Statute Merchant in 100 l. payable at divers days, 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 recognizance was made, may have execution for that day, and shall not stay execution till all the days of payment be past; because a Statute savours 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 merely personal, and entire, etc. Co. l. 47. b. & 192. b. F.N.B. 9 a. 28 A writ of Dower lieth as well for a thing appendent or appurtenant to land, as for the land itself, etc. Dower. F.N.B. 50. a. 29 If a Parson hath a Chapel annexed to his Parsonage, Glebe. to which Chapel there is Glebe appurtenant, the Parson shall have a Juris utrum as well of that, as of Glebe belonging to the Parsonage itself. 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, rend otherwise. in five years, I shall not have an action of Debt, until all the days be incurred, because it is but one entire contract; But if a man make a lease of lands for five years, rendering each year 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, etc. he shall have an action of Debt for each year, etc. 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 joint-tenants for life, Attornment by one Joyntenant sufficeth. the reversioner grants over his estate in fee, one of the joint-tenants only doth attorn, this is a good attornment of both to settle the reversion in the Grantée; because the estate of joint Lessées is entire (for every joint-tenant is seized per amy & per tout) and by consequent the reversion, which is dependant and expectant upon such an estate, is entire also, etc. Co. Inst. pars 1. 139. a. 4. 32 Some actions follow the nature of those, Actions. whereon they are grounded, as the writs of Error, 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 aught to join 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 murder or death is only one, so ought the Writ and Count to be one also: And therefore if one bring an appeal of death against divers, and all but one make default, yet the Plaintiff ought to bring his writ, and likewise to count against all, etc. 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 thereof descends upon him; In all these cases, both body and land are discharged; for by the execution against body and land, the land was the facto charged, and so became debtor, and by the feoffment, surrender, or descent, the land was also discharged; because a discharge of part of a thing in execution is a discharge of all, be it by act of the party, or by act of Law; for the duty being personal and entire, the execution (as accessary thereunto) is entire also, etc. Co. l. 10. 109. b. 4. in Legates case. 35 If a Bailiff or other officer of the King's Manor suffer any to intrude upon any parcel of the Demesnes, No conce●●ment. so that nothing is answered for it in particular unto the King, but only the ancient rent of the Manor, etc. Yet that parcel so intruded upon, shall not in Law be said to be concealed, nor pass by any such name in any grant of it from the King; For, the Manor itself being in charge and account, by consequent every part thereof is so also; And Turpis est pars, quae non convenit cum suo toto. Co. Inst. pars 1. 337. a. 4. 36 If two joint-tenants within age make feoffment in fee, Joyntena●● shall joy●● action. they may enter jointly in their lives, or join in a writ of right, because entry or a writ of right follow the nature of the estate, which is joint; but they shall not join in a Dum fuit infrà aetatem, because that follows the nature of their several persons, which (in that case) are the principals, for the nonage of the one is not the nonage of the other, etc. Rend partable as the land. 37 If Gavelkind land be let for years rendering rend, Dyer 5. b. 1. 26 H. 8. the rent is partable as the land; It seems to be otherwise of a Rent-charge granted out of the land, because that is collateral to the land, and entire: per Fitz-herbert. Principal and Accessary. 38 Mistress Sanders was accessary to the murder of her husband, Dyer 253. 103. 8 Eliz. and because it was but murder in the principal that killed him, it could not be petty Treason in his wife; It is otherwise, where the wife conspires with her servant to kill her husband, Dyer 332. 25. 16 Eliz. who doth it in the absence of the wife, yet this is petty Treason in the wife, being but accessary, because petty Treason in the servant. 65 A man's own words are void, when the Law speaketh as much, or otherwise. Vide M. 41. 6, 7, 9 New invented settlements void. 1 If lands are given to a man to have and to hold to him and his heirs on the part of his Mother, Co. Inst. pars 1. 13. a. 2. yet the heirs of the part of the Father shall inherit; for no man can institute a new kind of Inheritance, not allowed by the Law, and the words, On the part of his Mother are void: So if lands are given to a man, and to his heirs male, the law rejecteth this word, Male; because there is no such kind of inheritance, etc. No execution of the estate to the use. 2 By the Statute of Westm. 2. cap. 1. Co. ib. 19 b. 3. the land is as it were appropriated to the Tenant in tail, and to the heirs of his body, and therefore if an estate be made, either before or since the Statute of 27 H. 8. cap. 10. (of uses) to a man and the heirs of his body, either to the use of another and his heirs. or to the use of himself and his heirs, this limitation of use is utterly void; For before the said Statute of 27 H. 8. he could not have executed the estate to the use: And so it was adjudged in an Ejectione Firmae, between John Cooper Plaintiff, and Thomas Franklin, and others Defendants. P. 14. Ja. in B. R. A man's heirs remain in him during his life. 3 If a man make a gift in tail, or a lease for life, Co. ib. 22. b. 4. Binghams' case. Co. l. 2. 91. b. 2. & in Mitfords' case. T. 31 El. ibid. recite cum plur. ab author. the remainder to his own right heirs, this remainder is void, and he hath the reversion in him; For the Ancestor during his life, beareth in his body (in judgement of Law) all his heirs; and therefore it is truly said, that Haeres est pars antecessoris: And this also appeareth in a common case; for if land be given to a man and his heirs, all his heirs are so totally in him, as he may give the land to whom he will; So it is also if a man be seized of lands in fee, and by Indenture make a lease for life, the remainder to the heirs male of his own body, this is a void remainder; for the Donor cannot make his own right heir a purchaser of an estate tail without departing with the whole estate out of him, but by departing with the whole estate he may; As if a man make a feoffment in fee to the use of himself for life, and then to the use of the heirs male of his body, this is a good estate tail executed in himself, and the limitation is good by way of use; because it is raised out of the estate of the Feoffées, which the Feoffor departed with, etc. Reversion in ●ature of a remainder. 4 If a man make a feoffment in fee to the use of himself in tail, Co. Inst. pars 1. 22. b. 4. and after to the use of the Feoffée in fee; In this case, the Feoffée is in by the Common Law, not withstanding the express words of a remainder, and the Statute of uses, 27 H. 8. cap. 10. For he hath still a reversion but in nature of a remainder, and yet the Feoffor hath the estate tail executed in him by the same Statute. Delivery of a writing. 5 If a man deliver a writing sealed to the party to whom it is made, Co. ib. 36. a. 1. Co. lib. 9 137. a. 1. in Thoroughgoods' case. as an escrow to be his deed upon certain conditions, etc. this is an absolute delivery of the deed, being made to the party himself; for the delivery is sufficient without speaking of any words (otherwise a man that is mute could not deliver a deed) and tradition is only requisite; and therefore when the words are contrary to the Act, which is the delivery, the words are of none effect; For, non quod dictum, sed quod factum est, inspicitur: And hereof though there hath been variety of opinions, yet is the Law now settled, agreeable to judgements in former times, and so it was resolved by the whole Court of Common Pleas, H. 12. Jac. But it may be delivered to a stranger as an escrow, etc. because the bare act of delivery to him without words worketh nothing, etc. Co. ib. 51. b. 3. Littl. § 64. 6 In exchange, if the estates be not equal, albeit the parties agree, Exchange. yet is the exchange void; for the agreement 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 deed 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 Trespass 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, etc. & a mes autres Signors) is not of necessity, but only added for explanation sake; For, the homage is referred only 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 Land 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 moiety of him that dieth; for, Uni eorum diutius viventi, are but idle words; because (without them) the jointenant 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 sum. that a lesser sum of m●●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 str●●ger, no ren●. that he and his heirs shall render unto a stranger a yearly rent of 20 s. etc. 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 seized of it, and then failer is made, yet can he not have Assize for it; and for that the estate moved not from the stranger, neither yet was he party to the deed, etc. But such a sum reserved in that case, is only a pain set upon the Tenant, which if he pay not, etc. the Feoffor may enter, etc. 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 D●●●● may ●●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 fail, the estate determineth by the express 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, etc. Littl. § 446. Co. ib. 265. a. 14 These words in a release, Release of future inte●●●● void. Quae quovismodo in futurum habere potero, are void in Law: For no right passeth by a release, but only the right which the Releasor hath at the time of the release made; for if there be father and son, and the father is disseised, and the son, living the father, releaseth by his deed to the Disseisor all the right that he hath, or may hereafter have in the land, without clause of warranty, etc. and after the father dies, etc. 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 father's death, etc. A perpetuity void. 15 A man gives land to Mary and Joan (two sisters) Et haeredibus de corporibus eorum legitime procreatis (by which they had a joint 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 jointure, 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, etc. But in as much as his intent was contrary to Law; for that cause, if the jointure 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, etc. 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 fee; because such an estate may be conveyed by act executed, etc. 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, etc. 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. etc. the rule, arbittement, etc. 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 assign Auditors to take an account, or make a Factor, or submit myself to an arbitrement, albeit these are made by words expressly irrevo●able, or if I grant, or am bound, that all these shall stand irrevocably, yet they may be revoked: So if I make my testament irrevocable, yet may I revoke it; for my act or my words cannot alter the judgement of the Law, and make that irrevocable, which of his own nature is revocable, etc. And therefore if I be bound by obligation to stand to the award of I. S. albeit if I discharge that arbitrement, I shall forfeit my bond; Yet is my submission in that case revocable; and so is the book in 5 E. 4. 3. b. which seems to be contrary in that point, well reconciled, etc. Restraint to demise, void. 18 The Charter of the Incorporation of Suttons Hospital restrains them to alien or demise, but in a certain form; Co. l. 9 30. b. 4. in the case of Suttons Hospital. this is only a precept and ordinance testifying the King's desire, but binds not in Law: So likewise in another part of the same Charter, the exemption of the Ordinaries jurisdiction is but a clause declaratory; For being a Lay-corporation, it neither can, or aught to be visited, etc. A defective ●●●re. 19 In the case of Monopolies in the 11 Report, Co. l. 11. 85. b. 3. in the case of Monopolies. the Defendant being charged by the Plaintiff to have sold Cards, etc. contrary to the privilege granted to the said Plaintiff by Letters Patents of Qu. Eliz. etc. puts in this bar, that the City of London is an ancient City, and that within it, time out of mind, etc. there hath been a society of Haberdashers, and that within the said City there was a custom, Quod quaelibet persona de societate illa, usus fuit & consuevit emere, vendere & liberè m●rchandizare omnem rem & omnes res Marchandizabiles infra hoc regnum Angliae de quocunque vel quibuscunque personis, etc. and pleaded farther, that he was Civis & liber homo de civitate & societate illa, and that he sold playing Cards, etc. as was lawful for him to do, etc. But the Justices gave no regard to this Bar, because it was no more than what the Common Law would have said, and then no such particular custom ought to have been alleged; For, in his, quae de jure communi omnibus conceduntur, Consuetudo alicujus patriae vel loci non est alleganda, and with this accords 8 E. 4, 5. etc. Dyer 19 b. 115. 28 H. 8. 20 The Lessor covenants, Lessee may take boots without assignment. that the Lessée shall have sufficient Hedg-boot by the assignment of his Bailiff; In this case, for as much as this covenant is in the affirmative, and floweth from the Lessor, and is no more than what the Law gives a Lessée privilege to do, per Baldwin and Fitzherbert, the Lessée may take Hedg-boot without assignment. Tamen quaere, for Shelley is of another opinion, because Cujus est dare ejus est disponere, & Modus & conventio vincunt legem, and the Lessée also seems to be bound by the acceptance of the lease upon those terms, Ideo quaere. Howbeit, if I let to one two acres of Meadow, and that it shall be lawful for the Lessée to cut the grass by the assignment of the Lessor; yet the Lessée may cut the grass without my assignment. Dyer 179. 45. 2 Eliz. 21 A man seized in fee of lands in Burrough English since the Statute of 27 H. 8. makes a feoffment in fee to the use of himself, Burrough English. and the heirs males of his body engendered, Secundum cursum communis legis, and after dies seized accordingly, having issue two sons; In this case, the youngest son shall have the land, notwithstanding the words before. Vide 26 H. 8. 5. Dyer 230. 57 6 Eliz. 22 The Lord by Knight-service releaseth and confirms to the Tonant to hold by a Spur; In this case, Tenure. the new reservation is void upon the estate before created; Howbeit the tenure by fealty still remains. Dyer 238. 36. 7 Eliz. 23 A Coroners Inquest indicts a man of murder, & quòd fugam fecit, Coroners Inquest. and upon his arraignment he is acquit, and another found guilty, ut oportet, and it was also found, that he did not fly, yet he shall forfeit his goods; for upon his arraignment in this case, the flight shall not be given in charge, because they were before forfeited by the Coroners Inquest. Hob. 5. Crow and Edwards. 24 In debt upon an obligation of 60 l. for the payment of 31 l. 10 s. at Coventry, issue was taken, that the money was paid at Coventry, Trial in foreign County. and yet by consent of parties, and a paper Rule of Court, the issue was tried at London, and found for the Plaintiff, and judgement given; Howbeit, upon a Writ of Error brought in the Exchequer Chamber the judgement was reversed; for consent of Parties cannot change the Law. Hob. 13. Sir Daniel Norton and Simmes. 25 If a Sheriff will make an under-sheriff, Sheriff. provided that he shall not serve Executions above 20 l. without his special warrant, this proviso is void, as being against Law and justice: For albeit he may choose not to make an under-sheriff at all, or may make him at his will, and so remove him wholly, yet he cannot leave him an under-sheriff, and yet abridge his power, no more than the King may, in case of the high Sheriff himself. Vide 167. 52. Hob. 120. Smales and Dale. 26 Albeit a Tenant in Common enter into the whole, Tenants in Common. and claim all expressly, yet he cannot thereby dispossess his companion; for the possession of him that so enters, is over all lawful, as well before such claim as after, so as there is no possession altered by such claim, and then a sole claim without more can never change the possession, and without a change of possession (which the Law protects) it remains as before, and therefore a Coparcener, joint-tenant, or Tenant in common can never be disseised by his fellow, but by an actual Ouster: For the same reason it is, that is a Tenant in Common do alone bring an action of trespass against a stranger, his action shall be abated, by pleading him Tenant in Common with another, albeit his entry were made generally and expressly into all, which proves that the entry of one serves for all, for else they could not join in an action of trespass. 66 Expressio eorum, quae tacitè insunt nihil operatur. ●pon the Qu. ●ant of the ●version, de●and must be ●pon the ●●nd. 1 Queen Eliz. let's for years rendering rend, Co. l. 4. 73. Boroughs case. payable at the receipt of the Exchequer at Westm. Seu ad manus balivorum, vel rec●pturum, etc. with condition to be void for nonpayment, etc. the Queen grants the reversion in fee; Here, the demand of this rent ought now to be made upon the land: For in the Queen's case, the limiting of the payment of the rent at the receipt of the Exchequer, or to the hands of the Bailiffs, etc. is no more, than the Law would have ordered, if no place or person at all had been named in the Patent; So that such a limitation (in the Queen's case) operated nothing; And therefore when the Queen alieneth the reversion to a Subject, it is then as if no limitation at all had been made, where, or to whom the rent should be paid; and then the payment ought to be upon the land, which is the principal debtor, and so by consequent ought the demand also, etc. Expressio eorum, quae tacitè insunt, nihil operatur, & expressa non prosunt, quae non expressa proderunt. ●pon grant of ●ood, the ●ord, growing ●eedlesse. 2 If a man grant the Manor of Dal● for years to another, Co. l. 5. 11. a. 4. in Ives case. except the wood and under-wood growing and being upon the said Manor, these words (growing and being) are words of abundance; because without them the Law will imply as much; for by the demise of wood and underwood upon the Manor, it is implied, that they are growing; And therefore to demise all the wood upon the Manor, and all the wood growing upon the Manor, is all one, etc. Grant of pawnage in reversion. 3 If the King demise the herbage and pawnage of a Park to A. for life, and after grant the reversion of the same to B. for life, Co. l. 8. 56. b. 1. in the Earl of Rutland's case. without saying quàm citò the first demise Per mortem, sursum redditionem, forisfacturam, vel aliquo alio modo quocunque expiraverit, etc. In this case, there is no uncertainty in the last demise, when it shall take effect in possession; for it shall begin when the first demise determines, Of an estate ●●r life in re●rsion. because so much is implied in Law: And therefore if the King, reciting, that another holds the Manor of Dale for his life, grants the said Manor to B. for his life. In this case, the Law implies, that the second grant shall take effect upon the determination of the first grant; there is also the same law of a gift in tail, or a grant in fee, etc. ●rant of the ●●●t avoidance during a ●●rm. 4 A. possessed for 15 years of the Rectory of Sale, Co. l. 8. 145 a. 2. in Davenports case. unto which a Vicarage was appendent, grants the prochein avoidance of the Vicarage to B. if it shall become void during the said term, etc. and dies intestate, his Administrator surrenders the Rectory to him in reversion, and then before the expiration of the said 15 years the Vicarge becomes void: In this case, notwithstanding the said surrend●, B. shall have the next avoidance; because the limitation abovesaid, if it shall become void, etc. imports no more, than what the Law would have said if it had been omitted; For if Tenant for years grants the next avoidance, the Law will imply such a limitation, if the Church shall become void during the term; And therefore, Expressio eorum quae tacitè insunt nihil operatur. ●●feitures for ●●ing Mass 〈◊〉 recusancy. 5 By the Statute of 23 Eliz. cap. 1. it is provided, Co. l. 11. 58. a. 1. in Doctor Foster's case. That every person that shall say or sing Mass, etc. shall forfeit the sum of 200 marks, and that he, which willingly hears Mass, shall forfeit 100 marks, etc. without limiting to whom the forfeitures shall accrue; and then follows the clause of forfeiting xx l. a month to the Queen, and after 10 l. a month for keeping a Schoolmaster, etc. after which follows the clause of the distribution of the forfeitures, viz. That all forfeitures of any sums of money limited by that Act shall be divided into three equal parts, etc. And in Doctor Foster's case in the 11 Report, it was objected, that this last clause of distribution did only extend to the said forfeitures of 200 and 100 Marks, etc. which were not given to any person in certain, but indefinitely and generally, that they should be forfeit, without naming to whom; and therefore the said clause of distribution did only refer to them; but the xx l. per mensem, for Recusancy was expressly given to the Qu: and so was not any of the other forfeitures; And therefore that clause of distribution shall not extend unto that, which was before given to the Queen, but unto those penalties only, which were left indefinitely, and given to none: Howbeit it was answered, and resolved, that the said branch of distribution shall extend as well to the clause of the penalty for Recusancy, as to the clause of saying or hearing Mass; because it is all one to say, he shall forfeit (generally) or he shall forfeit to the Queen; for the Queen shall have them in both these cases, and Expressio eorum, quae tacitè insunt nihil operatur. 67 Parte quacunque integrante sublata, tollitur totum. Co. l. 3. 41. a. 3. in Ratcliffs case. 1 Lands in Fée-simple shall ever descend to the heir of the whole blood, and never to the heir of the halfe-bloud; Blood co●ted shall ta● inherit. For in as much as the blood, which is between the heir and his Ancestor, is that which makes him heir (for without blood none can inherit) it is great reason, that he, which hath the full and entire blood, shall inherit before another, which hath but a part of the blood of the Ancestor; because, Ordine naturae, totum praefertur unicuique parti: And therefore Bracton saith, Propter jus sanguinis duplicatum, tam ex parte patris, quàm ex parte matris, dicitur haeres propinquior soror, quàm frater de●alia uxore; And Britton saith, that Right of blood in that case makes the female exclude the male, according to the Maxim, Possessio fratris facit sororem esse haeredem: And that of Aristotle, libro topicorum, parte quacunque integrante sublatur, tollitur totum; quod verum est, si accipias partem integrante pro parte necessaria, seu essentiali; As in the case abovesaid the blood of the father and the mother, are but one entire inheritable blood, and both of them are necessary and essential to the procreation of an heir; And therefore, Deficiente uno, non potest esse haeres: And upon this reason, it seems to Britton, cap. 5. If a man be attainted of felony by judgement, that the heirs begotten after the attainder are excluded from all manner of succession of heritage, as well on the part of the mother, as on the part of the father; & the reason thereof is, because the son begotten after the judgement had not two inheritable bloods in him; For, at the time of his generation the blood of the father was corrupt; and then, Ex leproso parent, leprosus generatur filius: And when the father is attainted of Felony, the blood on his part being corrupted, the son (as it seems to him) hath but half the inheritable blood in him without corruption, viz. the blood of the mother, and therefore he holds, that such a son shall not be inheritable, no not to his mother: And with this agrees 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 bloods commixed in him, which could not be corrupted by the attainder subsequent, but only as to him that offended. See more of this matter. Co. Inst. pars 1. 8. a. Co. l. 11. 39 a. 4. in Metcalves case. 2 In an action of Account upon the judgement, quod Computet, No writ ●●or befog whole ●ment completed. before the final judgement given for the arrearages and damages, a writ of Error lieth not, for in that writ these words, Si judicium inde redditum sit, etc. are meant not only de principali judicio, but also the 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 judgement was given, sues his way of Error to remove the record into the King's 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, etc. 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 Trespass is brought against two, Co. ibid. b. 1. and the one appears and pleads, so that he is attainted of the trespass, 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, etc. The Lord Cromwel's case against Cawary and others, per Prisot, tempore H. 6. 〈◊〉 like. 4 In trespass 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, etc. 〈◊〉 like. 5 A man cast in a writ of Error, upon a judgement 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, etc. 〈◊〉 like. 6 In Formedon brought by Fitz-williams against Copley, Co. ibid. b. 3. 12 Eliz. Dyer 291. the Demandant hath judgement of part etc. 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 King's Bench; but the Court would not grant it, before the whole matter in demand should be determined; for the justices of the King's Bench should proceed without warrant, if they should proceed 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 King's Bench, also the original is inti●●, and cannot be here and there too, etc. 〈◊〉 Impe. 7 The next Advowson is granted to two, Dyer 279. 8. 11 Eli●. who join in a Qu●●e Impedit. the one dies, this shall cause the writ to abate. 〈◊〉 not inhe●bl●. 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. ●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 trespass against B. C. and D. B. pleads not guilty, whereupon issue was joined: C. and D. make a justification, ●ob. 70. Parker's case. and thereupon after a replication a demurrer was joined; Hanging this demurrer, the issue was tried against B. and damages given, and judgement against him; after which judgement the Plaintiff entered 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 joined in this writ of Error, because there was no judgement against them, nor they grieved, and the writ of Error is, Ad grave da●●um, etc. 68 Ex tota materia emergat Resolutio. Co. l. 3. 59 b. 1. in Lincoln College case. 1 It is the office of a good Expositor of an act of Parliament to make construction of all the parts together, Discontinuance by the husband of 〈◊〉 wives land. and not of one part alone by itself; Nemo enim aliquam partem rectè intelligere possit, antequàm 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 joined to the first, with this conjunctive, And that it shall be lawful for any person. etc. to whom the said Inheritance, etc. shall appertain, to enter, etc. doth clearly 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 between the parties themselves, and against all others, save only against such as have title, etc. and they only have power to make them void and of none effect by their entry, as aforesaid; For, estates of Franktenement or Inheritance cannot be defeated without entry, and therefore by entry they ought to be made void. Co. l. 7. 42. a. 3. in Beresfords' case. 2 Such an Exposition of a Deed must be made, An entail good, wi●● menti 〈◊〉 the body ●●gotten. that all the parts thereof may well stand together, and that withal it may stand with the rule of Law: So if lands be given to the use of Aden, and of the heirs male of the said Aden lawfully begotten, and for default of such issue, to the use of divers others in remainder, etc. Here, albeit there wants the words (of the body) yet is this a good limitation of an estate tail; For, otherwise it would be against the intent of the Donor, and all the remainders over would be void; and if these words should be turned into Latin, they ought to be rendered thus, Et haeredum masculorum de praefato Adeno legitimè procreate. and not haeredum masculorum praefati Adeni, which is clearly proved by the subsequent clause, and for default of such issue, etc. For issue cannot be of Aden, unless the words should be, De dicto Adeno, and so in this case the one clause is well expounded by the other, etc. Co. l. 8. 93. a. 1. in Frances case. 3 In Replevin the Defendant avows for damage fesant, The Plai●● plea in 〈◊〉 destroyed, 〈◊〉 yet recover the Plaintiff pleads in Bar, that the said lands were holden in soccage, and that I. S. being thereof seized in fee by his last Will, devised them unto him for sixty years, if he should so long live, etc. Unto which the Defendant pleads, that it was true, there was such a devise made, but after the said devise I. S. enfeoffed certain persons thereof to the use of the Plaintiff for sixty years, if he should so long live, etc. whereupon the Plaintiff demurs: And in this case it was resolved, that although it appeared, that the title, by which the Plaintiff claimed in his bar to the Avowry, was utterly destroyed (for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment, which the Avowant afterwards pleads, and which the Plaintiff confesseth by his demurrer) yet shall the Plaintiff have judgement, because his Count is good, and the Avowant in his replication to the bar of his Avowry, hath done two things; For first, he hath destroyed the title, which the Plaintiff made by the Will; And again, he hath given to the Plaintiff another title, viz. to have the land for 60 years by force of the uses declared upon the feoffment; And therefore in as much as upon the whole record (according to which the Count ought to judge) it plainly appears, that the Plaintiff hath a lawful term in the Lands, and that the Defendant had taken his wrongfully, for that cause judgement was given against the Avowant, and for the Plaintiff, albeit the title, which the Plaintiff made for himself, was destroyed, etc. ●etters Pa●ents and Acts ●f Parliament ●est expounded by themselves. 4 The best Expositor of Letters Patents, and Acts of Parliament, Co. l. 8. 117. a. 4. in Doctor bonham's case. are the Letters Patents, and the Acts of Parliament themselves, by the construction and conference of all the parts together; Optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum: Et injustum est, nisi tota lege inspecta, una aliqua ejus particula proposita judicare vel respondere. The count made good by the bar; the bar by the replication, etc. 5 In Doctor bonham's case in the eighth Report, Co. l 8. 120. b. 1. in Doctor bonham's case. although it was admitted, that the Plaintiffs replication was not material, and the Defendants had demurred thereupon; yet in as much as the Defendants had confessed in the bar, that they had imprisoned the Plaintiff without cause, the Plaintiff had judgement: And this is the diversity there taken, that when the Plaintiff replies, and by his replication it appears, that he hath no cause of action, there he shall never have judgement; but when the bar is insufficient in matter, or amounts to a confession of the point in debate, and the Plaintiff replies and shows the truth of his matter to enforce his case, and in judgement of Law it is not material; yet in that case shall the Plaintiff have judgement: For 'tis true, that sometimes the Count shall be made good by the bar, and sometimes the bar by the replication, and sometimes the replication by the rejoinder, etc. Howbeit the diversity is, that when the Count wants time, place, or other circumstance, that may be made good by the bar, so it is also of the bar, replication, etc. as appears in 18 E. 4. 16. b. But when the Count wants substance, no bar shall then make it good, so likewise of a bar, replication, etc. and with this agrees 6 E. 4. 2. Bone cas, & nota ibidem dictum Choke; Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24, etc. But when the Plaintiff makes replication, sur-rejoin, etc. and thereby it appears, that upon the whole record the Plaintiff had no cause of action, he shall never have judgement, albeit the bar, rejoinder, etc. be insufficient in matter; for the Court ought to make judgement upon the whole record, and every one shall be intended to make the best of his own case: Vide Riegeways case in the third Report, 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25, & 26 Eliz. in B. R. and M. 29, & 30. in the same Court between Gallis and Burbry. ●he like. 6 Albeit the replication be insufficient, Co. l. 8. 133. b. 1. in Turner's case. yet if the bar be also insufficient in matter, upon the whole record the Plaintiff shall have judgement; It is otherwise, when by the replication it appears, that the Plaintiff hath no cause of action; for there the Plaintiff shall never have judgement, although the bar be insufficient: As in Debt upon an Obligation with condition to perform covenants in an Indenture, the Defendant pleads performance of all the Covenants generally, when it appears to the Court; that divers of them are in the negative or disjunctive, and so the plea in the general affirmative insufficient; Yet if the Plaintiff reply, and show a breach of one of the Covenants, which by his own showing is no breach (upon which the Defendant demurs) judgement shall be given against the Plaintiff; because upon the whole record it appears, that the Plaintiff hath no cause of action; For the Obligation is endorsed with condition to perform Covenants, so that the Plaintiff hath no cause of action, until there be a breach of Covenant, and by the showing of the Plaintiff himself there is not any breach sufficient in Law to give him cause of action, and it is always intended, that every one will show the best of his case, etc. But when the bar of the Defendant is insufficient in substance, and the Plaintiff replies and shows the truth of his case, whereby he produceth no matter against himself; but matter explanatory, or peradventure not material, there the Court shall judge upon the whole record, and (the Count being good) for insufficiency of the Bar without any regard to the replication, judgement shall be given for the Plaintiff: As if a man plead a grant by Letters Patents in Bar, which are not sufficient, the Plaintiff by replication showeth another clause in the said Letters Patents; which clause is not material, the Defendant demurers in Law; In this case judgement shall be given against the Defendant, & sic in simililibus. Co. l. 8. 163. a. 3. in Blackamors case. 7 Among the misprisions remediless by the Statutes made for the amendment of records, this is one, Misprisions 〈◊〉 Clerks. that albeit the verdict upon issue tried be given for the Plaintiff, yet if upon the whole record it appears to the Court, that the Plaintiff hath no cause of Action, he shall never have judgement, and so it hath been often adjudged. Co. l. 9 53. a. 2. in Hickmots case. 8 In debt upon an Obligation, A release pleaded wi●● exception. the Defendant pleads a release of the Plaintiff, etc. which was in this manner. A. doth acknowledge himself satisfied and discharged of all bonds, debts, etc. made by B. (the Defendant) and it is agreed, that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due, wherein B. and C. stand bound to A. etc. The Plaintiff replies, that the obligation excepted, and the obligation in Curia prolata are one and the same, whereupon the Defendant demurs: And in this case it was resolved, that the exception extended to all the premises; because all the words before make but one entire sentence, and the one depends upon the other; For it is reason, that when Bonds are satisfied, that they should be delivered; and exceptio semper ultimò ponenda est; It was also reason, that this bond of 40 l. should be excepted, because it was not due when the release was made, etc. Co. l. 10. 99 b. 3. in Beawfages case. 9 M. 10. Jac. upon a motion at the Bar it was resolved, Bond taken by the She●●●● not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias, for the payment of the money in Court, etc. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is, that he shall let to bail by Writ or Bill, etc. which he could not do before, as appears, 19 H. 6. 43. The second shows the form of the body, etc. The third contains a penalty, that if the Sheriff take an obligation in any other form, etc. than is there prescribed, that it shall be void, so that upon consideration of all the branches together, and upon their coherence and dependence one upon another, it plainly appears, that the said Statute doth extend only to obligations of such as are within their guard and custody, and not otherwise. Co. l. 10. 138. b 1 in Chester Mills case. 10 Always such construction ought to be made of an Act of Parliament, that one part thereof may agree with the rest, Exposition an Act. and that all may stand well together, etc. Co. l. 11. 44. a. 4 in Richard Godfrey's case. 11 The justices shall assess the Fines of Copiholders upon the due consideration of all circumstances, Copyhold Fines. Quàm rationabilis debet esse finis non definitur, sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione: And so it was adjudged in Communi Banco Inter Stallon Plaintiff, and Brady Defendant, P. 9 Jac. 1845. Rot. Co. l. 5. 79. b. in Fitzherberts case. 12 Tenant for life, Warranty that com●ceth by dosin. the remainder to his son and heir apparent in tail, by covin and agreement betwixt him, and A. and B. to the intent to bar his son of his remainder by a collateral warranty, makes a lease for years to A. who makes feoffment in fee to B. to whom the father releaseth with warranty, and all this is by covin and consent betwixt the parties, to the intent aforesaid; After this the father dies, and the warranty descends upon the son, being then of full age: Resolved, per totam curiam, that this warranty shall not bar the son; because the feoffment of the Lessée for years is disseisin, and the father himself is particeps Criminis, and agreeing thereunto; then albeit the release with warranty is made after the disseisin; yet in as much as the disseisin was to such an intent and purpose, the Law will adjudge upon the whole Act, as it is agreed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty, albeit he make the feoffment twenty years after the disseisin, yet the Law will adjudge upon the whole act, and the disseisin and warranty shall be coupled together according to the intent of the parties; and therefore in such case the law will adjuge the warranty to begin by disseisin, albeit they are made at several tim●s: So if a man make a lease of lands in two several Counties, reserving an entire rent, abeit the liv●ry be made at several times (first in one County, and then in another) yet the rent is issuing out of the lands in both Counties; So likewise if a man make a charter of feoffment of certain lands with warranty, and deliver the deed, and after make livery of the land secundum formam cartae; Here also, the Law will adjudge upon the whole act; and albeit the deed be delivered at one time, and the livery of the land at another time, and although a warranty ought to enure upon an estate, yet upon the whole matter the warranty is good. Eldest child. 13 The use of a recovery was limited by a Latin deed to the use of H. (viz. he against whom the recovery was had) for life, Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in tail, etc. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid, wherein the use was limited to the use of the eldest child of the body of H. etc. H. hath issue two children, whereof the elder was a daughter, and the younger a son; And in this case, it was adjudged, that the daughter should have the land; for albeit the word puero be indifferent to each sex; and then the Male for dignity should be preferred, yet because the English indenture hath declared the construction to be the eldest child, the daughter shall have it. Advowson. 14 The Rectory of West Bodwin ought to have come to E. 6. Dyer 350. 21. 18 Eliz. by attainder of felony, to which the Advowson of the Vicarage was appendent, and was concealed; Queen Eliz. grants the Rectory, Et omnia haereditamenta, parcella, spectant, vel pertinent. dict. Rectoriae, and because the patent was in tam amplis modo & forma, as the Felon had it, and also Ex certa scientia, so as the Queen was not deceived, it was adjudged, that the Advowson passed without special mention thereof. 69 Parts simul sumptae componunt totum: & Totum comprehendit suas parts. ●●int grants ●asse all. 1 Where all the joint-tenants join in a feoffment, Co. Inst. pars 1. 186. a. 3. every of them in judgement of Law doth give his own part; And so by that means the whole estate doth pass to the Feoffée according to the feoffment; So it is also, when all that have right, title, or interest in any thing, Littl. § 534. Co. ib. 302. a. b. do join in a conveyance, the estate shall be thereby clearly settled in the Grantée, as the Disseisée and the Disseisor, or his heir, the Lessée for years or life, and the reversioner, and the like. ●●●ant of a Benefice. 2 The Parson, Patron, and Ordinary may charge the Glebe, Littl. § 648. Co. ib. 343. b. 4. etc. F. N. B. 152. 8. for they all have in them the Fée-simple thereof; So may the Patron and Ordinary in time of vacation, and the Glebe of a Donative may be charged by the Patron and Incumbent without the Ordinary, etc. ●●ant of a mortgage. 3 A. enfeoff B. upon condition, Co. l. 1. 146. b. Mayowes case. the Feoffor and Feoffée by deed grants a Rent-charge to C. the condition is broken, and the Feoffor enters; yet is the grant of the rent good; For, both of them joining together in the deed, they had power to charge the land, etc. Co. l. 4. 26. b. 1. in Nelwiches' case, & Meals case. Co. l. 4. 24. b. Murrels case. 4 If the Lord of a Copyhold Manor grant the inheritance of all his Copyholds; albeit no mention at all is made of the grant of the Manor, Grant of Copyholds. yet the Grantée may keep a Copyhold Court, and take surrenders, make admittances, etc. It is otherwise, where he grants the Inheritance of some of them, retaining the rest to himself; for in that case the Grantée cannot keep Court; because those Copyholds are in that case severed from the Manor, etc. F. N. B. 48. r. 5 A Parson shall have a Juris Utrum, Recovery of a Benefice. where the lands or tenements are aliened by his Predecessor, or if recovery be had against the Predecessor by default, or reddition, or Nient dedire of his Predecessor: where he hath not prayed in aid of the Patron and Ordinary; but if he pray in aid of the Patron and Ordinary, and they join in aid, and render the land or do not gainsay the Demandants action; in that case, the Successor shall not have a Juris Utrum, because the entire estate was in them three, and they altogether had power by Law to dispose of it. Dyer 34. 20. etc. 28 & 29 H. 8. 6 Two were outlawed upon an appeal of Murder, Charter of pardon. and they purchased their charter of pardon in these words, Donavimus, remittimus, etc. W. B. & L. B. omnia & omnimoda Utlag. versus praef. W. & L. vel versus eorum alterum promulgat, etc. And exception was taken by the King's Council, because the words of pardon were joint, whereas they should have been Pardonavimus, etc. W. B. & L. B. & eorum alteri, etc. because each felony was several, and the several contumacies should have had several pardons; but the pardon was allowed, because (as it seems) it comprehended all that both or either of them were guilty of. And such another pardon was also allowed in 22 E. 4. Term. Rot. 19 but the book is misreported, and contrary to the record. 7 Vide suprà 27. 9 70 Entire things cannot be severed. Co. Inst. pars 1. 32. a. 1. and 164. b. 3. 1 Of Inheritances that are entire, Dower of entire things. no division can be made by meats and bounds; And therefore a woman cannot be endowed of the entire thing itself, but shall be endowed thereof in a special and certain manner: As of a Mill not by meats and bounds, nor in common with the heier, but of the third toll dish, or de integro molendino per quemlibet tertium mensem: And so of a Villain, either of every third day's work, or of every third week, or month: So likewise a woman shall be endowed of the third part of the profits of stallage, of a Fair, Park, Dove-house, Pischary, viz. Tertium piscem, vel ictum retis tertium, and of the third part of the profits of the office of the Marshalsea, Et de tertia parte exituum provenientiam de custodia Gaolae Abathiae Westm. Of the third part of the profits of Courts, Fines, Heriots, etc. Of the third presentation to an Addowson, etc. Co. ib. 47. b. 3. & 292. b. 3. Littl. §. 512, 513. & Co. l. 8. 153. a. 1. in Edward Althums case, and l. 10. 12●. in Cluns' case. 2 If a man demise lands for years reserving rend, Entire action & contrà. the Lessor may have several actions of debt for every year, or half-years rend according to the Covenant, etc. So likewise upon a Recognisance to pay an hundred pound at five several days, the Conifée presently after the first day of payment shall have execution for that sum, and shall not tarry till the last be past, because these touch the realty, and are of the nature of the land, and the profits thereof, which are severable, and the several payments upon the Recognisance, are in the nature of so many several judgements: So it is also of a Covenant or promise; for after the first default an action of Covenant, or an action upon the Case doth lie; because these are also several in their nature: But if a man be bound in a bond, or by contract to another to pay a hundred pound at side several days, he shall not have an action of Debt before the last day be past; for a bond or contract are merely in the personalty, and entire, neither yet can a bond be sued above once, as a covenant, etc. may. F. N. B. 130. h. & 131. a. The like. 3 In trespass, or any action in nature of trespass, Co. ib 130 b. 2. which is in Law several, and where every one may answer without the other, there a protection cast for one, shall serve for him only, unless they join in pleading; or if they plead several pleas, and one Venire facias is awarded against all, there a protection cast for one shall put the plea without day for all (and therefore in former times the Plaintiff used to sue out several Venire facias in those cases for fear of a protection, etc.) But in every action or plea, real or mixed, against two (where a protection doth lie) or in debt, detinue, or account, a protection cast for the one doth put the plea without day for all; for these actions are in their nature entire, in respect of the joint privity and interest, that atttend them, etc. The like. 4 If a real action be brought by several Praecipes against two or more, if the Demandant be nonsuit against one, Co. ib. 139. a. 4. he is nonsuit against all; For, as to the Demandant, it is but one entire writ under one Teste, etc. ●n Annuity ●●de a Rent-charge. 5 A man grants a Rent-charge to another and his heirs, Co. ib. 144 b. 4. the Grantée dies, and his wife recovers dower thereof against the heir; In that case the heir cannot after such endowment bring a writ of Annuity for the other two parts; for either the whole must be a Rent-charge, or the whole must be an Annuity; because otherwise it would not be according to the deed of the grant, which is entire without fractions, etc. A rent-charge extinguished ●●y purchase of ●art of the ●and. 6 If a man, which hath a Rent-service, purchase parcel of the land, Littl. § 222. Co. ib. 147. b. 4. out of which that rent is issuing, that shall not extinguish the rent, save only for the parcel; For Rent-service in that case is severable, and may be apportioned according to the value of the land; because it issueth out of the profits of the land, and is due by common right: But if a man hath a Rent-charge to him and his heirs issuing out of land, and he purchaseth parcel of that land to him and his heirs, the whole Rent-charge is extinct, and the Annuity also; because a Rent-charge is entire, and issuing out of every part of the land against common right: Co. ib. 149. a. 1. So likewise if one holds his land of his Lord by the service of rendering to his Lord yearly at such a Feast an Horse, a Spur of gold, a Clovegilliflower, or the like, if in that case the Lord purchase parcel of the land, such service is gone; because such things are in their nature entire, and cannot be severed or apportioned. Vide bruerton's case, Co. l. 6. 1. A rent-charge becomes a rent-seck. 7 It is said, that if a man grant a rent out of three acts, Co. ib. 147. b. 1. and Co. l. 7. 24. b. 2. Butts case. and grant over, that if the rent be behind, the Grantée shall distrain for the rent in one of the acres, this rent is entire, and cannot be a Rent-seck out of two acres, and a Rent-charge out of the third acre, and therefore it is a Rent-seck for the whole, and yet he shall distrain for it in the third acre: So if a rent be granted to two and their heirs out of an acre of land, and that it shall be lawful for one of them and his heirs to distrain for it in the same acre, this is a Rent-seck; For in as much as they stand jointly seized of one entire tent, it cannot be as to one a Rent-seck, and as of the other a Rent-charge; And this distress is as an appurtenant to the rent; And therefore in that case the Survivor, or their Grantée of the rent may distrain for it, etc. ●n entire rent-charge multiplied. 8 If the service of the Tenant be to render unto the Lord yearly at such a Feast an Horse, a Red-rose, or the like entire annual service, Co. ib. 149. a. 1. and Co. l. 6. 1. bruerton's case. which cannot be severed, and the Tenant alien part of the land to a stranger; In that case, because the rent cannot be apportioned, it shall be multiplied, and both the Feoffor and Feoffée shall pay each of them a Horse, Red-rose, etc. And therefore if the Tenant, which holds by such service enfeoffs the father of the Lord of part of the land, and that land afterwards descends to the Lord; Yet that shall not extinguish that annual entire service, but the Feoffor shall still hold by a horse, etc. because the service was multiplied, and each of them, viz. the Feoffor and the Feoffée held by a horse, etc. Co. ib. 149. a. 2. 9 A. hath a Common of pasture certain (as for ten beasts) in forty acres of land, and twenty of those acres descend unto him; in that case, Common 〈◊〉 certain shall remain 〈◊〉 descent of parcel. the Common certain shall be apportioned: It is otherwise, if it be common of pasture sans number; for that being entire and uncertain, cannot be apportioned but shall still remain: So it is also of common of Estovers, Turbary, Piscary, etc. Co. ib. & Co. l. 6. 2. bruerton's case. 10 If three joint-tenants hold by an entire yearly rent, as a horse, Rend entire extinct by ●●covery of part. a grain of wheat, or the like, and the Tenants cease by two years, and the Lord recovers two parts of the land against two of them, and the third saves his part by tendering of the rent, etc. and finding surety, Albeit the Lord comes to the two parts by lawful recovery, grounded upon the default and wrong of the two joint-tenants, yet shall the entire annual rent be extinct. Vide infrà, r. 114. c. 45. Co. ib. & Co. l. 6. 1. bruerton's case. 11 If the Tenant holdeth by fealty and a bushel of wheat, Extinctly purchase of part. or a pound of Pepper, or of Comyn or such like, and the Lord purchaseth part of the land, there shall be an apportionment, as well as if the rent were in money; because such services will admit separation and division: But if the rent were by one grain of wheat, or one pepper-corn, or one séed of common, by the purchase of part, the whole shall be extinct; because these things are entire, and will not admit division, or severance. Co. ib. 149. b. 1. 2. and Co. l. 6. 1. in bruerton's case. 12 If there be Lord and Tenant by Fealty and Heriot service, Heriot servi●● and Heriot ●stome. and the Lord purchase part of the land, the Heriot-service is extinct; because it is entire, and also of such value, that peradventure the land still remaining in the Tenant's hand, will not for the future be able to discharge it: It is otherwise, where the Tenant holds by Heriot-custome; for there purchase of part shall not extinguish the service, yet in that case also the Heriot is entire; but Consuetudo vincit communem legem. Littl. § 223. Co. ib. 149. a. 4. 13 If the Tenant holds of his Lord by Homage, Fealty, Escuage, Fealty & Homage remi● after purchase. and Rent, and the Lord purchase parcel of the land, In this case, the Rent and Escuage shall be apportioned; but the Homage and Fealty shall still remain entire for the residue of the land still remaining in the Tenant's hand; because he still holds the residue of the land of him, and then he must hold it by some service or other, and therefore those services being in their nature unseverable and entire, they shall totally remain, being indeed the fréest and least chargeable services that the Tenant can hold by, etc. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge, The charge of a stature not apportionable. which is in his nature entire, may by act in Law be apportioned, as when the Grantée of the rent comes to the land by descent, or the like; Yet in such cases the writ of Annuity faileth, because that writ being grounded upon the grant by deed (which is entire) must be sued for the whole, and cannot be sued for part: Also a rent in respect of the realty may be apportioned; but the personalty is indivisible, and shall not be severed, no not by act in Law; As if execution be sued of body and lands upon a Statute Merchant or Staple, and afterwards the inheritance of part of those lands descends to the Conusée; In this case, all the execution is avoided; for the duty being entire, and personal, cannot be divided, etc. Annua nec debitum judex non separat ipsum. Co. ib. 15●. b. 2. 15 A Rent-service is of its own nature apportionable; Rent-service becomes rent-seck. Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seignory, it thereupon becomes entire and unsev●●able according to the nature of a Rent-secke: And therefore if there be Lord and Tenant by fealty and certain rent, and the Lord by deed grant the rent in fee, fée-taile, or for life, saving the fealty, the rent, which before was Rent-service, is by that severance of it from the Seignory made a Rent-seck; and than if the Grantée purchase part of the land out of which that rent is issuing, the whole rent is extinct. 16 If a man be seized of two acres of land in two several Counties, Co. ib. 153. b. 4. and maketh a lease of both of them, reserving two shillings rend; In this case, albeit several liveries be made at several times, yet is it but one entire rent in respect of the necessity of the case, and he shall distrain in one County for the whole rent, and make one avowry for the whole, etc. A County entire, for livery. 17 Every County is as it were an entire body of itself, Finch, 79. Littl. § 418. so that upon a feoffment of lands in many Towns in one County, livery of seisin made in one parcel in any one of those Towns in the name of all, sufficeth for all the lands in all the other Towns within the same County; but upon a feoffment of lands in divers Counties, there must be livery of seisin in every County: For entry. In like manner, Littl. § 417. Co. ib. 252 b. 4. if a man have cause to enter into lands lying in divers Towns in the same County, if he enter into one parcel thereof lying in one Town, in the name of all the lands in the same County, by such entry he hath as good possession of all those lands, as if he had entered into every parcel; but if they lie in several Counties, there must be several entries. Co. ib. 153. b. 4. So likewise if a man de disseised of a rent issuing out of lands lying in divers Towns within one and the same County, he shall need to bring but one Assize for the recovery of that rent, etc. But if the lands lie in several Counties, he shall have several Assizes in confinio Comitatus, and in either County shall make his pliant of the whole rent; Howbeit there shall be but one Patent to the justice. And this Assize in confinio Comitatus is given by the Statute of 7 R. 2. Stat. 7. R. 2. 10. For no Assize lay in that case at the Common Law, but the party might distrain for the whole rent in either County. The like for ●ervices. 18 If a man hold divers Manors or lands in divers several Counties by one tenure, and the Lord is deforced of his services, Co. ib. 154. a. 2. he shall have several writs of customs and services, viz. For every County one writ returnable at one day in the Court of Common Pleas, and thereupon Count according to his case by the Common Law: But if the Tenant in that case do cease, the Lord shall not have several writs of Cessavit ut suprà; For the writ of Cessavit is given by Statute of West. 2. cap. 21. and the form and manner of that writ is therein prescribed; for which cause it is holden in our books, that in that case a Cessavit lay not at the Common Law, etc. ● Villain, advowson, etc. ●ndivisible. 19 Of Inheritances some be entire, and some several, and of entire, Co. ib. 164. b. 3. some be divisible, and some indivisible, etc. If a Villain descend to two Coparceners, this is an entire inheritance; and albeit the Villain himself cannot be divided, yet the profit of him may; for one Coparcener may have him one day or week, and the other another day or week, etc. They may likewise have an Advowson in coparcenary, and may present by turns; because that is also an entire Inheritance, which cannot be divided. estovers, ●●ots, and ●ings uncer●in not divi●ble. 20 If a man have reasonable Estovers, as House-boot, Co. ibid. b. 4. Hay-boot etc. appendent to his Frée-hold, they are so entire as they shall not be divided between Coparceners: So if a Corodie incertain be granted to a man and his heirs, and he hath issue divers daughters, this Corodie shall not be divided between them; It is otherwise of a Corodie certain, for thereof partition may be made. Likewise Homage, Fealty, Piscary uncertain, Common sans number, and the like, cannot be divided between Coparceners and the two last, not only because they are entire, but also because it would be a charge to the Tenant of the Soil, if such hereditaments should be divisible, the interest in them being unlimited, etc. Co. ib. 190. a. 3. 21 If a Corodie be granted to two men and their heirs; In this case, Grant of a Corodie to two. because the Corodie is incertain, and cannot be severed, it shall amount to a several grant, viz. to each of them one Corodie; for the persons be several, and the Corodie is personal, and the grant shall be taken most strongly against the Grantor. Littl. § 314. Co. ibid. 197. 22 If two Tenants in Common of lands in fee make a gift in tail or a lease for life to another, rendering to them yearly a certain rent, Tenants in common 〈◊〉 join in an asise of an 〈◊〉 thing. and a pound of Pepper, and an Hawk, and an Horse, and they are seized of that service, and afterwards all the said services being arreate, they distrain for it, and the Tenant makes rescous; In this case, as to the rent, and the pound of Pepper, they shall have two several assizes, because those rents are severable, and the two Tenants in Common claim and hold the reversion (unto which the same rents are incident) by two several titles: But as to the Hawk and Horse, albeit they be Tenants in Common, etc. they shall join in the assize, because these things are entire and cannot be severed; for one of them alone by himself cannot make his plaint in Assize for the moiety of an Hawk, or of an Horse; because the Law will never suffer a man to demand any thing against the order of nature or reason, as it appeareth by Littleton, Sect. 129. Lex enim spectat naturae ordinem. Co. ibid. b. 3. 23 Tenants in Common shall join in a Quare Impedit, In an ad●●son, ward, etc. because the presentation to the Advowson is entire: Also they shall join in a writ of right of Ward, and ravishment of Ward for the body, for the same reason. Co. ib. 197. b. 4. § 285. a. 4. 24 If two Tenants in Common be of the Wardship of the body, Release, ●o prejudice. and a stranger ravisheth the Ward, and one of the Tenants in common releaseth to the ravisher, this shall go in benefit of the other Tenant in common, and he shall recover the whole; Neither yet shall that release be any bar to him; for that the Wardship of the body is entire, and cannot be severed; Co. l, 5. 97. b. the Countess of Northumberlands case. So it is also if there be two joint-tenants of an Advowson, and they bring a Quare Impedit, and the one doth release, yet the other shall sue forth and recover the whole presentment: Likewise two Tenants in Common shall join in a detinue of Charters, and albeit the one be nonsuit, yet the other shall recover. Co. Inst. pars 1. 199. b. 4. 25 There is a diversity between Chattels real, Tenant's i● common. Ward. Villain. that are apportionable, and severable, as leases for years, wardship of lands, interest of tenements by Elegit, Statute Merchant, Staple, etc. of lands and tenements, and Chattels real entire, as Wardship of the body, a Villain for years, etc. For if one Tenant in Common take away the ward, or the Villain, etc. the other hath no remedy by action; but he may take them again: Howbeit for the other, he, that is outed, may have remedy against his companion that outs him, viz. by Ejectione Firmae, Ejectment of Ward, Quare ejecit infrà terminum, etc. Co. ib. 200. a. 3. 26 If two Tenants in Common be of a Manor, Waife. Estray. to which Waife and Stray doth belong, a stray doth happen, they are Tenants in common of the same, and if one doth take the stray, the other hath no remedy by action, but only to take it again; unless by prescription they claim to have them by turns, etc. Co. ib. 215. a 3. 27 The Grantée of part of the reversion shall not take advantage of a Condition, by the Statute of 32 H. 8. cap. 34. A condition entire. As if a lease be made of three acres, reserving a rent upon Condition, and the reversion is granted of two acres, the rent shall be apportioned by the act of the parties; but the condition is destroyed for that it is entire and against common right: It is otherwise in the King's case, etc. release of 〈◊〉 actions. 27 In mixed actions, as an action of Waste, Litt. § 492. etc. which are mixed both in the realty, and personalty, a release of all actions real, or a release of all actions personal, is a good plea in bar; because the action is in its nature entire, and therefore a release of part shall annul all, etc. There is the same reason of an Assize of Novel disseisin, a writ of Annuity, Quare Impedit, etc. inheritance & behold entire ●erm not so. 28 If a Disseisor make a lease for a hundred years, Co. ibid. 285. a. 4. Co. ib. 297. a. 2. & Co. l. 5. 6. in Fords Case. the Disseissee may confirm parcel of those years, viz. Either the whole land for part of the term, or part of the land for the whole term, etc. So likewise if the Tenant for life make a lease for a hundred years, the Lessor may confirm either for part of the term, or for part of the land; but an estate of Inheritance or Frée-hold cannot be confirmed for part of the estate; infirmation 〈◊〉 part of a ●●me. because those estates are entire, and not severable as years be: And therefore if the Disseisée confirm the estate of the Disseisor, Litt. § 519. albeit in the deed of confirmation, the limitation be expressed to be in tail, for years, for a day, or only for an hour, yet hath the Disseisor a Fée-simple, because his estate was before the confirmation entire and unseverable. ●●eritance & behold entire 29 If any Disseisor make a lease for life, the remainder in fee, Litt. § 525. Co. ibid. 297. a. 4. & b. 2. if I confirm the estate of the Tenant for life, yet after his decease I may well enter; because they are several estates, and nothing is confirmed but the estate for life: So it is also when the several estates are in one and the same person, as if the Disseisor make a gift in tail the remainder to the right heirs of the Tenant in tail, or the remainder first for life, confirmation ●one jointenant shall e●●e to both. and then to the right heirs of the Tenant in tail; In these cases, if the Disseisée confirm the estate of the Tenant in tail, it shall not extend to the other estates, causa qua suprà: But if the Disseisor make a lease for life to A. and B. and then the Disseisée confirms the estate to A. Here B. shall take advantage thereof; because the estate of A. which was confirmed, was entire and joint with B. and therefore in that case, the Disseisée shall not enter into the land, and divest the moiety of B. So likewise if the Disseisor enfeoff A. and B. and the heirs of B. and then the Disseisée confirms the estate for his life, this shall not only extend to his companion, but to his whole Fée-simple also; because to many purposes he had the whole Fée-simple in him, and the confirmation shall be taken most strongly against him that made it, etc. 〈◊〉 confirmati●o Baron & ●e not good. 30 If I let land to a Feme sole for term of her life, Litt. §. 525. Co. ibid. 299. a. 4. who takes husband, and after I confirm the estate of the Baron and Feme to hold for their lives; In this case the Baron did not hold jointly with his Feme, but held in her right for the term of her life; because the wife had the whole estate in her before for life, and jointenants ought to come in by one entire title, &c, ●●nment ●c. 31 If the reversion of three acres be granted, Co. ibid. 309 b. 4. & Co. Litt. 5. 81. a. 4. in Fords case. and the Lessée agree to the said grant for one acre, this is good for all three: So it is also of an Attornment in Law, if the reversion of three acres be granted, and the Lessée surrender one of the acres to the Grantée, this attornment shall be good for the whole reversion of the three, according to the Grant, etc. For the Grant being entire, the attornment must be entire also. ●nment & ●ory entire. 32 If here be Lord and Tenant, Co. ibid. 314. a. 4. Litt. §. 563. and the Tenant hold of the Lord by twenty manner of services, and the Lord grants his Seignory to another, if the Tenant pay de facto any parcel of any of the services to the Grantee, this is a good attornment for all the services; although the Intent of the Tenant was to attorne but for that parcel, only: because, albeit there be divers manners of services, which the Tenant ought to perform, yet is the Signiory entire, and the Tenant having attorned for part, it cannot be void for that part, and good it cannot be, unless it be for the whole, etc. Neither can the Tenant attorne for a time, or upon Condition, etc. Co. l. 5. 81. a. 4. in Foores' Case. Litt. §. 566. Co. ibid. 315. a. 3. 33 If there be many jointenants, which hold by certain services, The like. and the Lord grant to another the services, and one of the jointenants attorne to the grantée, this is as good, as if all had attorned, because the Signiory is entire, for there cannot be an attornement in part, etc. So also a seisin of a Rent by the Lands of one jointenant is good for all, and a seisin of part of a Rent is a good seisin of the whole, etc. Co. ibid. 335. a. 1. 34 If the donée in tail enfeoff the denor alone, Discontin … by enfeoffment t●e Denot, 〈◊〉 a stranger. that makes no discontinuance: because the reversion in that case is not discontinued, etc. But if he enfeoff the donor and a stranger, this is a discontinuance of the whole Land, because the stranger is then seized per my & per tout, as well as the donor, etc. Co. Inst. p. 1. 373. b. 2. 35 If Husband and Wife Tenants in special tail, Warranty descending entirely 〈◊〉 the issue. have issue a Daughter, and the Wife die, the Husband by a second Wife hath issue another Daughter, and discontinueth in Fee, and dieth, a Collateral Ancestor of the Daughters releaseth to the discontinuée with Warranty, and dieth, the Warranty descendeth upon both Daughters: yet the issue in tail shall be barred of the whole: because in judgement of Law the Warranty descended upon each of them entirely. Co. ibid. 390. a. 2. 36 If a Man maketh a Feoffment in Fee with Warranty to the Feoffée his heirs ad assigns, Warranty entire. and the Feoffée re-enfeoffeth the Feoffor and his Wife, or the Feoffor and any other stranger, the whole Warranty remaineth still, because the Warranty is entire and not parted: So it is also if two do make a Feoffement with Warranty to one and his heirs and Assigns, and the Feoffée reinfeoff one of the Feoffers, In this Case also the Entire Warranty doth remain, etc. Co. ibid. 367. b. 4. Litt. §. 60. 37 If a Man of full age, The like. & an Infant make a Feoffement in Fee with Warranty, this Warranty is not void in part, and good in part, but it is good for the whole against the Man of full age, and void against the Infant: For albeit the Feoffement of an Infant, passing by livery of seisin, is voidable, yet the Warranty, which taketh effect only by deed, is merely void, etc. Co. lib. 1. 86. b. 3. in Corbets Case. 38 If a Man let Lands for years, the remainder in Fee, A Lease 〈◊〉 remainder … entire Estate. and livery is made to the Lessée for years only, this shall convey the Fée-simple to him in remainder, For albeit livery be not necessary to the Tenant for years, yet it shall enure for the benefit of him in the remainder: because the particular term, and all the remainders, which depend thereupon (though never so many) do in judgement of Law make but one entire Estate, which takes effect at one and the same time, etc. Co. l. 3. 86. b. 3. Corbets Case. 39 Since the Statutes of Uses, 27 H. 8. A Condi●●●● without f … ctions. If a Man make a gift in tail, with proviso or upon Condition, that if the donée doth such an Act, that his Estate, shall cease during his life, or if a Feoffment in Fee be made with proviso, or upon such a Condition, that his Estate shall cease during his life, these provisoes or Conditions are utterly void, against Law: for such an estate tail or in Fee in Land being entire, and without fractions, such a Condition or limitation annexed to such Estates ought to destroy the whole Estate, unto which they are annexed, and not part thereof: and he that enters for the condition broken, aught to have the same estate, which he had, when he made the estate conditional, which was entire, and without fractions, etc. ●o fractions 〈◊〉 Estates. 40 If a man make feoffment in fee of land to the use of A. and his heirs every Monday, Co. ibid. 87. a. 4. Per Walmasly. and to the use of B. and his heirs every Tuesday, and to the use of C. and his heirs every Wednesday, these limitations are void; For we find no such fractions of estates in the Law, ●void Livery. 41 A man makes a lease for years of an house, Co. l. 2. 31. b. Bottisworths' Case. and of a Close lying by itself, and of certain other lands in Dale, the Lessor makes feoffment of all, and makes livery in the Close, the Lessée being at that present in the house: In this case the livery was adjudged void for all; because the demise being entire, the possession of the house is the possession of all entirely demised with it, etc. So it had been also, if the Close had been demised by the Lessée at will, but not for years. ●o fractions 〈◊〉 bargain & ●le. 42 If a man be seized of a Manor, part in demesne, Co. l. 2. 35. b. 3. in S. Rowl. Hayward's case. part in lease upon Rent reserved, and part in Copyhold, and by Indenture in consideration of money, etc. demiseth, granteth, bargaineth, selleth, etc. unto A. B. and C. the said Manor with the Appurtenances, and the reversions and remainders thereof, etc. together with all rends reserved upon any demise, etc. to have and to hold to them and to their Assigns immediately after the decease of the owner of the Manor, for the term of seventéen years; In this case, the grant ought to take effect entirely, as a demise at the Common Law, or entirely by bargain and sale, by raising of an use by force of the Statute of 27 H. 8. and not for part by the Common Law, and for another part by raising of an use; for thereby the Manor may be dismembered, which is against the express demise and bargain; because both parties agreed, that a Manor should be entirely demised and bargained, and also that a Man nor should be accepted by the Lessée without any fraction or division thereof. ●●●tenancy 〈◊〉 entire E●●●te. ●●●omment by ●e good for ●ll. 43 If there been two jointenants for life, Co. l. 2. 66. b. 4. & 67. a. Tookers Case. and the Reversioner grants over his estate, whereupon one of the jointenants only doth attorn; Yet this is a good attornment of both to vest the whole reversion in the Grantée; because the estate of the joint Lessées being entire (for every jointenant is seized per my & per tout) the reversion, which is dependant and expectant, upon such an estate is entire also; and therefore the attornment by one of them, is attornment for both to convey the whole reversion, etc. So if the Lessor disseise his two, Lessees for life, and enfeoff another, and one of the Lessées re-enter this act of one of them is attornmenf in Law for both: If one jointenant give seisin of Rent, that shall bind 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, this is holden good attornment in Law for both (Baldwin 28 H. 8. Dyer, 12. b.) And all this in the respect of the entireness of their estate, etc. 〈◊〉 condition of ●●bond to perform to Covenants is entire. 44 A. having an office and power to make Deputies, Co. l. 3. 83. b. 4. Colstrits Case. by Indenture betwixt him and B. and for a hundred pound paid, etc. makes deputation thereof to B. and A. covenants with B. that if A. die before B. that then the Executors of A. shall repay unto B. fifty pounds, with divers other Covenants in the said Indenture concerning the said office in the enjoyment thereof; And A. was bound to B. in two hundred pounds for the performance of Covenants, and in debt the breach was alleged for the nonpayment of the said fifty pounds, in as much as B. survived A. Here, albeit the said Covenant to repay fifty pounds was lawful, yet in as much as the rest of the Covenants were against the Statute of 5 E. 6. cap. 16. The bond which was a thing entire being void for those unlawful Covenants, it was utterly void for all: And if the addition of a Lawful Covenant should make the bond of force as to it the Statute would then serve to little or no purpose, etc. Co. l. 4. 9 a. 3. Bedils Case. Ibidem a. 4. 45 Seisin of any part of a service (as of part of a Rent, A reservation of a Rent entire. of one day's work, when it is done or the like) is actual seisin of all to have an Assize: because the service in that case is entire, etc. So if a man make a Lease for life, or a gift in tail, rendering the first years a quarter of wheat, and after the yearly Rent of C. S. the seisin of the wheat is the seisin of the Rent, whereupon he may have an Assize: for all is but one entire reservation, etc. Co. l. 4. 33. a. 2. in Mittens Case. 46 When the King makes a Sheriff durante beneplacito, The Sheriffs' Office entire. albeit he may determine his Office at his pleasure, yet he cannot determine it in part, as for a Town, or hundred, or any other part, nor abridge the Sheriff of any thing incident or appurtenant to his Office: for the Office is entire, and so ought he to continue in his Intiretie without any fraction or diminution whatsoever: unless it be by Act of Parliament, or that the King makes any Town etc. A County of itself, and Constitutes there a sheriff, and all things incident to a Sheriff within the said Town: but he cannot determine the Office of the Sheriff, or any part thereof without, but by constituting a new Sheriff, viz. for the execution and administration of justice: because the Office is in its nature entire, etc. Co. lib. 4. 52. Rawlins Case. 47 A possessed of an house, whereunto a stable was adjoining, A proviso entire. for the term of 30 years, by deed indented in consideration of 25 l. fine to be afterwards paid, demised the same house and stable to B. for 21 years, rendering unto A. 24 l. per annum quarterly, and also 5 l. quarterly at the same feasts, until the said 25 l. fine should be paid, upon condition that if the said sum of 25 l. or the said Rent should be arreare at any Feast etc. that then it should be Lawful for A. to re-enter: And afterwards and before any day of payment B. re-demiseth the said stable unto A. for 10 years, who entered, and after the Rent of 24 l. per annum is arreare, and Lawfully demanded, and also the 5 l. parcel of the sum in gross was not paid: In this case, the whole Condition, as also the reentry of A. is suspended: For albeit the condition stands upon two parts in the disjunctive, viz. Either for the payment of Rent, or of a sum in gross (which was collateral) yet in as much as B. redemised part of the demise to A. (viz. the stable) whereinto A. entered, and the Rent was hereby suspended, and hereupon the entire condition, both as to the Collateral sum as also to the said Rent, was likewise suspended: because although the condition comprehend two several things in the disjunctive of two several natures, viz. The one a Rent issuing out of the land, which is incident to the reversion, and may be suspended by the intermeddling with the land: the other matter collateral to the land, which cannot be suspended by the said re-demise: yet here there are not several conditions, but one entire condition, which refers to two several branches: and therefore being suspended in part it is suspended in all: And that the condition was entire, it appears by the Conclusion thereof, viz. that for the nonpayment of the one or of the other, it should be Lawful for the Lessor to re-enter into all the land: so that it is but one entire Condition and one entire entry, which is not by the Acts of the Parties to be apportioned or divided etc. The like case was adjudged p. 27 El. Rot. 185. inter Brightman and Somerford. Co. lib. 4. 94. b. 2. in Slades Case. 48 A, and B. Bargain together, Annual payment of whea● that A. for a certain consideration shall deliver unto B. yearly 20 quarters of Barley during the life of B. in this case if A. fail of any one year's payment B. cannot have an action of Debt for it until all the years be incurred; because an Action of Debt is entire and cannot be sued above once; How beit he may in that case have an Action upon the case for it, etc. as it was adjudged in the case between Redman and Peck 2. & 3. P. & M. Dier. 113. 〈◊〉 condition entire. 49 A Condition annexed to an Estate is so entire, Co. l. 4. 119. b. 4. in Damports Case. that it will not admit any seperance from the Estate, unto which it is annexed without the destruction of it, and being annul as to some persons, or for part, it is annulled for all; As if A. demise Land to B. and his Assigns, with condition, that neither B. nor his Assigns shall alien without the Licence of A. If A. give B. Licence to alien the Land, to whom he pleaseth, and he Assigns the Lease to C, neither C. nor any after-assignée is bound by that condition; but the Condition is thereby absolutely determined; so that no alienation, which may be made afterwards shall be a breach of the Condition, or give cause of entry to the Lessor; for the Lessor cannot dispense with an alienation for one time, and yet the same Estate remain still subject to the condition afterwards: And albeit the proviso be, that neither the Lessor nor his Assigns shall alien, yet when the Lessor licenceth the Lessée to alien, he shall never defeat, by force of that proviso, the term, which is absolutely aliened by his Licence; for the Assignée, (and so by consequent every subsequent Assignée afterwards) shall retain it in the same plight, that it was in, when the Lessee granted it, than it was absolute and severed from any condition, etc. And as the dispensation to one is a dispensation to all other subsequent Assignées, so it is also as to persons; for in case of jointure, where the Estate is in more than one, a Licence of Aliening granted to one shall enure to all, as it was adjudged in Crompton and Leeds case, T. 28. E. Rot. 256. in the Co. Pl. Likewise if the Lessor Licence the Lessée to alien part of the Land, he may alien the rest or any part thereof without Licence; because a Condition cannot be divided, or apportioned by the Act of the Parties, as it was holden by Popham Cl. Instit. against the opinion in Dier. 16 E. 334. The like. 50 A Lease was made by Indenture for 21 years of 3 Manors A. B. and C. rendering per annum. for A. 6. l. for B. 5 l. and for C. 10 l. to be paid at a place out of the Land, Co. lib. 4. 120. a 4. in Dumports Case. with a condition of Reentry into all the three Manors for Default of payment of the said Rents, or any of them; and after the Lessor by deed indented and enrolled bargains and sells the Reversion of an house and 40 acres of Land, parcel of the said Manor of A. to one and his heirs and afterwards by another deed indented and enrolled bargains and sells all the residue to another and his heirs, and whether the second barginee might enter for the Condition broken or not, was the Question; And it was adjudged (P. 14 E. Rot. 1015) that he could not enter for the condition broken; because the Condition being entire cannot be apportioned by the Act of the Parties, but, by the severance of part of the reversion, was utterly destroyed, etc. ●n Exchange ●●tire, being a condition in ●aw. 51 If A. give in exchange 3 acres to B. for other three acres, Co. l. 4. 121. 4. b. 2. in Bustares Case. and after one acre is evicted from B in this case all the exchange is defeated, and B. may enter into all his Land; for albeit the exchange had been good, if A. had given but two acres, or one Acre, or less, yet in as much as all the three acres were given in exchange for the other, and the Condition (which was employed in the exchange) was entire, upon the eviction of that one acre the condition in Law is broken, and thereupon entry given into all; for it is the property of a Condition to defeat all, and not a part only, except the Condition be restrained only to a part, as it is not in this case. And therefore there is no diversity between an entire thing (as a Manor) and a thing, that is severable, in point of exchange, etc. There is the same Law also of a Partition, as it is agreed in 13 E. 4. 3. f. &. 42. Ass. pl. 22. in the Earl of Pembroke's Case. Co. l. 4. 121. a & 122. b. Bustards Case. 52 Baron seized of the Manor of Dale to the use of himself and his Feme, and of the heirs of the body of the Baron, The like. levies a fine to A. who enfeoffs B. who enfeoffs C. C. exchanges the said Manor of Dale with B. for the Manor of Sale, the Baron dies, the Feme enters into the Manor of Dale; In this case B. may re-enter into the Manor of Sale; for as when the whole Estate in part is evicted, all the exchange is defeated, so here, when the Estate of the Franktenant for the life of the Feme, which is but parcel of the Estate, is evicted in all the Land, or in part, the whole exchange is thereby defeated, by reason of the condition in Law annexed unto it; for albeit a reversion expectant upon an Estate for life may be given in exchange for Land in possession, yet when C. was seized of the Manor of Dale in his Demesne as of Fee, and gives that in possession unto B. in exchange, as aforesaid, after that the Feme enters and evicts the Estate for life, etc. B. may re-enter into the whole Manor of Sale, which was so given in exchange; because the Condition in Law (annexed to the exchange) being broken for part of the Estate, is defeated for all; etc. So likewise if he in the reversion in Fee disseiseth his Lessée for life, and then gives that Land in exchange to another for other Land, and after the Lessée for life enters; In that case also the other may re-enter into his Land again, and hereby defeat the whole exchange; because the implied Condition is in his nature un-severable and entire. 53 A Lets to B. the Manor of Dale for 30 years, A surrender entire. except all wood and under-wood growing and being upon the Manor, Co. lib. 5. 11. Jves Case. after A. let's to B. all the wood & underwood, etc. for 62 years without impeachment of waist, And after A. let's to B the Manor for 30 years from the expiration of the former ease of 30 years, the first 30 years expire, the Lessée cut the trees, the Lessor brings an Action of waist; And judgement was given for the Plaintiff for by the accept of the future Lease, the lease for 62 years was presently and actually surrendered, because it could not be surrendered in part, and in force for the residue of the term; and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease, which he could not do so long as the first lease stood in force: so likewise if the Lessee for 20 years accept a lease for three years to begin ten years after, this is a present surrender of the whole term; for the last ten years cannot be surrendered, and the first ten still remain in esse, because that would make fractions, of the term, which is in its nature entire: Neither can he, that hath a lease for 20 years surrender the last ten years by any express surrender, saving unto him the first ten years, etc. Co. lib. 5. 11. b. 3. & 56. a. 1. Knight's Case. 54 Two Houses are let to one man, An entire condition. the one for 4 l. Rent per annum the other for 20 s. per annum, with proviso, that if the said Rend of 5. l. be behind in part or in all, than the Lessor shall re-enter; these Houses afterwards escheat to the King, who after grants that, upon which the ●0. s per annum is reserved, to I. S. the Rent thereof is arreare; In this case, the Patentée cannot enter for the Condition broken; because albeit the Rents were several, yet the Condition was entire by the express reservation, and gives in entire reentry into all for default of payment of any part of the Rent; and therefore by the severance of any part of the reversion all the condition (as to all common persons) is destroyed; Howbeit the whole condition remains entirely in the King with the reversion of the other House, and that is in respect of his prerogative, etc. ●he whole ●●rm one in●●●e day. 55 The Lessée for years brings an ejectione firm, Co. lib. 5. 74. b. 1. in Wymarks' Case. the Defendant saith that before the lease, the Lessor bargained and sold to him in Fee by indenture enrolled within six months, whereby he was seized, until diseised by the Lessor, who let the land, etc. The Plaintiff pleads that the bargain, etc. was upon Condition, which was broken, etc. the Defendant demurs, and showeth cause according to the Statute, viz. Because the Plaintiff shown not forth the Indenture of the Condition; And in this case judgement was given for the Plaintiff; because when any deed is showed in Court, the deed by judgement of Law remains in Court all the term, in which it is showed; but at the end of the term if the deed be not denied, than the Law adjudgeth it in the Custody of the Party, to whom it belongs; for all the term in Law is but one day: and therefore the deed shall be intended to remain in Court all the term, in which it is showed; for the term in that case is Entire, and will admit of no fractions; And so by consequent the Plaintiff may in such case take advantage of the Condition comprised in the deed shown forth by the Defendant himself, so he do it in the same term, as aforesaid, etc. verdict and damages in●●●e. 56 Goods were cast super arenas, aqua salsa minimè coopertas, Co. l. 5. 108. a. 3. in Sir Henry Constables Case. Manerii de B. infrà fluxum & refluxum maris, and another parcel were floating super aquas maris refluent. ex arenis ejusdem Manerii infrà fluxum, etc. The Patentée of the Manor and Fee of holderness in Com. Ebor. brings an Action of Trespass against him, that seized them to the use of the Lord Admiral: And the jury assessed damages entirely for all; In this case judgement was given against the Plaintiff; because the Goods so floating upon the Waters (called Flotsam) did not of right belong to him, but to the Lord Admiral; And therefore the Verdict being entire, (viz. given for both) and so the damages of the wreck being thereby made un-severable from those of the Flotsam, the Plaintiff could take nothing by his wort. So in Trespass (21 H. 7. 34. b.) the Defendant justifies for part, and Pleads not guilty for the residue, the jury inquire of one of the things, and tax damages entirely; here, the whole Court (against Fineux) adjudged it not good, 22 E. Dier. 369. accord. M. 14 & 15 El. in Trespass by Pooly for his Servant beaten and his Close broken, and said not, per quod servitium amisit, upon non culp. the jury assessed damages entirely, and it was adjudged not good. See 9 H. 7. 3. M. 30, & 31 El. inter Moor & Bedle in Assumpsit, where the Plaintiff lays two breaches, whereof one was insufficient, upon non assumpsit the jury assessed damages entirely; And in this case there were two resolutions, 1 It shall be intended, that they gave damages for both; 2 Because the Plaintiffs had no cause for one of the allegations, ●●tire servi●●. the judgement was to be reversed in the Exchequer Chamber, etc. 57 Concerning entire Services, Co. lib. 6. 1. in bruerton's Case. and where they may be apportioned, warranty in●●●e. and where not, see bruerton's Case, per tout, Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warranty is an Entire thing, which will not suffer partition, but shall always either entirely remain, or be entirely annulled; Co. lib. 6. 126. Morrices' Case. and therefore, if there be two joint-tenants with Warranty, and petition is made between them by judgement, in a writ de partitione facienda, by force of the Statute of 31 H. 8. cap. 1. in this case, the Warranty shall remain to each of them entirely; because upon the Kings writ they are compellable by the Statute (unto which every one is Party) to make partition, and so the Party pursuing his remedy according to the Act shall not receive any prejudice by the operation of the same Act, unto which every one is party: but if they had made partition by deed, by consent (since the said Act,) albeit they were compellable by writ to make partition, yet in as much as they did not pursue the Statute to make partition by writ, for that cause such partition remains as it was before at the Common Law, and (by consequent) the Warranty is gone, (as it was agreed, in 29 El. 3. tit. Garr.) because the Warranty is indivisible, and cannot be parted as the Land may. Co. lib. 6. 23. The Marqu. of Winchester's Case. 59 The Marcquesse of Winchester by will (as it was supposed, A will for Lands, and Testament 〈◊〉 goods being one writing are entire. ) devised divers Lands, jewels, etc. To his reputed Sons, and also made them Executors; They endeavouring to prove this will in the prerogative Court, A suggestion was framed in the name of the marquis his Son and heir, to have a prohibition out of the King's Bench, supposing that he was not of sanae memoriae at the time of the making of the will, which was pleaded in the Spiritual Court, in Arrest of the probat of the will, and thereupon a motion was made in the King's Bench to have prohibition generally to stay all the proceed in the Ecclesiastical Court, viz. as well for the Legacies and bequests in the personalty, as for the Lands; and the reason and ground of that motion was; for that the will concerning the Lands, and the Testament concerning the goods, being all mixed together in one entire will, if those in the Ecclesiastical Court should proceed concerning the Testament of the goods, that would prevent and prejudice the trial in the King's Bench; for if he was of sanae memoriae at the making of the Testament of the goods, he could not be of non sanae memoriae at the time of the making of the will of the Land, both being made at one and the same instant; And the Common Law ought to determine, what shall be said to be sanae and perfect memoriae at the time of making the will concerning the Land, and therefore the prohibition shall be general, quod fuit concessum per totam Curiam. And in the Argument of his case the Lord Coke, being then Attorney general cited a case between L. Loyde and L. Loyde, in 38, & 39 El. in the K. B. where it was ruled accordingly in terminis terminantibus, and that no Consultation should be granted for any part, until the whole matter should be tried in the same Court. Co. lib. 8. 51. b. 3. in Syms' Case 60 In formedon in remainder the Tenant pleads in bar collateral Warranty, descended upon the Ancestor, Warranty ●●tire. unto whom the remainder was made, the demandant saith, that the said Warranty descended also upon B. another Coheir of the Warranty, and that the Warranty quoad medietatem tantum descended upon the demandant: nevertheless it was resolved per totam curiam, that the demandant was barred for the whole; for the Warranty in that case is entire, and extends to all the Land, and is a bar to every person, upon whom it descends, of all the right, which he hath in the Land, and if each of them had right in the Land jointly or severally, each of them is barred, and if one of them only had right and the other nothing, he that hath the sole right shall be barred of all, etc. vide Pl. ibid. & 5 E. 2. Garr. 78. 4 H. 7. 18. b. 6 E. 3. 50. 11 H. 4. 20. 41 E. 3. 3. 10 H. 7. 13. Co. l. 8. 105. b. 1. in John Talbots Case. 61 Divers services, Entire servi●● (by reason of their Entireness) upon alienation of parcel of the tenancy sh●ll be multiplied, sometimes also the Lord shall be contented with one entire service amongst all the several alienées; And sometimes up●n the Lords purchase of parcel thereof such a service shall be either totally extinct, or else totally preserved: And therefore when an entire thing (be it a valuable Chattel, as a Horse, Ox, a golden Spur, a Bow and arrows, a Sword, a Ganflet only, or the like, or matters of pleasure, as a Falcon, or other Hawk, a Dog, or say other things of pleasure) shall be rendered or paid by the Tenant to the Lord: in that case the entire service by the alienation of parcel of the tenancy shall be multiplied, so that each particular alienee shall render the whole service, and yet upon purchase of parcel by the Lord the whole is extinct, as it was resolved in bruerton's Case in the 6. Rep. fol. 1. So likewise homage and fealty by alienation of parcel shall entirely multiply: because when the Tenant makes homage or fealty, he doth them for all the tenements, which he holds of the Lord, so that those services extend to the entire tenancy, and to every part thereof, and albeit the Lord purchase parcel, yet the homage and fealty do still remain for the residue: also Knight-service, which is an entire service to be performed by the body of a man, shall be multiplied upon alienation of parcel, and albeit the Lord purchase parcel, yet it shall not be extinct, but shall entirely remain for the risidue, quia par bono publico, & defension regni, And the escuage shall be apportioned: But the personal service to be Sewer, Carvex, Butler, etc. or when the Tenant is held by his Tenure ad convivandum Dominum suum & Familiam suam semel in Anno; & ad equitandum cum Domino suo in Comitatu N. sumptibus suis propriis, etc. (vide 10 E. 3. 23. in John de Bromptons' Case) by alienation of parcel shall not be apportioned, or multiplied, for such services, which are for the private Benefit of the Lord and are personal: to be done by one man, shall not be multiplied: Because they are to be personally performed by one man only, and multiplication of them would be a charge and prejudice to the Lord: And these also in regard of their interinesse by the Lords purchase of parcel shall be totally extinct: So it is also when the Tenure is to perform some manual labour, as to cover or repair the Hall of the Lord, to make or repair the Pale of his park, to blow or sow his Demesnes, to reap or cut down his grain, or the like, these services and others like unto them shall not be multiplied, albeit parcel of the tenancy be aliened, yet amongst all the alienées the whole service shall be performed; and if the Lord purchase parcel, the whole shall be extinct, etc. There is the like Law also in Heriot-service: For by alienation of parcel of the tenancy it multiplies, and by the Lords purchase of parcel the whole service is extinct: It is otherwise of Heriot-custome: For in that Case notwithstanding the Lords purchase of parcel, the entire service remains for the residue, because such custom is incident to the whole Land, and also to every Part thereof, etc. trespass in●●re, ●ccord. 62 In an Ejectione firmae against two or more, Co. lib. 9 79. b. 4. in Henry Peytoes' Case. an accord and Satisfaction for one shall also discharge all the other Ejectors and Trespassors: for that action is entire, and cannot be discharged as to one, and yet prosecuted against the rest. signiory in●●●e. 63 There is the King Lord Paramont, the Mesne, Co. l. ●. 134. b. 3. in Ascoughs Case. who holds by Knight-service in Capite, and Tenant paravaile in Soccage: the Mesne Grants the mesnalty to the use of himself for life, and after to the use of the Tenant paravaile in tail: In this Case the mesnalty is not suspended during the life of the Mesne by force of that remainder in tail: for, a remainder in tail or for life expectant upon an estate for life, or in tail, shall never suspend a mesnalty, Seignory, Rent, etc. because albeit the remainder vests presently, yet that cannot suspend the present Franktenement of the Rent during the life of the first Tenant for life, who is indeed the true Tenant to the Lord or to the reversioner, upon whom avowry shall be made, etc. and as a Signiory, Rent, &c. cannot be suspended in part, and in esse for part, in respect of the Land, out of which it is issuing, so neither can a Signiory, Rent, etc. be suspended in remainder, and yet be in esse for a particular Estate in possession, for then necessarily there must ensue fractions of Estates, and particular Estates shall be created without Donors or Lessors against the Rules and Maxims of the Law, etc. It is otherwise, if the mesne grant his mesnalty to one for life, or in tail, the remainder to the Tenant peravaile in Fee; for in that case the mesnalty is totally extinct; because there the Tenant peravaile hath as high an Estate in the inheritance of the mesnalty, as he hath in the tenancy, neither is there, in that case, any possibility of reviving the mesnalty; and here also the mesnalty is not extinct for the Inheritance, and in esse for the particular Estate for life or in tail in possession, but the mesnalty by the remainder in Fee is extinct in all; for otherwise this absurdity would follow; that there would be a Fée-simple of the tenancy peravaile, and also a Fée-simple of Signiory perament, and but an Estate for life or in tail only of the mesnalty; and so a tenancy in Fée-simple shall be only holden of a mesnalty for life or in tail, and a Signiory in Fee shall be issuing out of a mesnalty for life or in tail only, which is impossible, and can by no means be, etc. Vide 3 H. 6. 1. 15 E. 4. 12. Co. l. 10. 128. a. 4. in Cluns' Case. 64 If Tenant for life make a Lease for years rendering Rend at Easter, and the Lessée occupy for three quarters of the year, A term in …. and in the last quarter before Easter the Tenant for life dies, here shall be no apportionment of Rent for three quarters of the year, because the time is entire; and in respect thereof there shall be no apportionment, neither yet was the Rent due before Easter. Howbeit in the same case if part of the land had been avicted before Easter, and that Feast had incurred in the life of the Lessor, there shall be an apportionment of the Rent; but not in respect of the time, which doth still continue but in regard, that part of the Land demised is evicted, etc. Vide 27 E. 3. 84. b. Co. l. 10. 134. b. 3. in Read and Redmans' Case. 65 In Actions merely personal or personal and in some sort mixed with the realty, in which entire things are demanded, Actions Entire. if there be divers Plaintiffs, and one be summoned and severed, the death of him, which is so summoned and severed (where the entire thing survives to the other) shall not abate the writ, as in a writ of ward of the body, or the like, etc. Co. lib. 11. 4. a. 2. in Auditor Curls Case. 66 The Office of Auditors of the Court of Wards (according to Statute of 22 H. 8. cap. 46.) cannot be granted in reversion; The Office of Auditor of the Court of ward● entire. because they two make up one judge or judicial Officer of that Court, and as none can give judgement of things in futuro, so neither may any be admitted a judge in futuro, according to the Rule, Officia judicialia non concedantur antequam vacent; And besides, great inconvenience might ensue thereupon; for he; that is at the time of the grant sufficient to execute it, may perhaps, when it falls, be un-capable and un-sufficient for it: And albeit that Office be only in part judicial and in part ministerial, and ministerial Offices may be granted in reversion; yet in as much as two persons have both of them but one Office, & are as one Officer, that Office is by the said Act made so entire, that it cannot possibly be divided; for, the King cannot make two Auditors of the minister in● Office, and other two to execute the judicial part, because then there would be four persons, which the Act restrains to two; neither yet can the King make one Person to have the judicial voice, and the other the ministerial Office; For then there would be two Officers, and two Offices, whereas the Act makes but one Officer; and then also one of them shall have a distinct Office and voice, whereas the Act joins them together in two Persons; And therefore in as much as the ministerial part is so united with the judicial part, and that jointly in two Persons, which make up one entire Officer, that there is no possibility of severing the one from the other, as the judicial part cannot be granted in reversion, so neither, can the ministerial, etc. Trespass entire though against many. 67 When in Trespass against divers Defendants; Co. lib. 11. b. 1. in S John Heydon. Case. Ibid. 7. a. 2. & 43 El. Rotulo 1694. inter Auste● Pl. and Willer. and Ald. Deed fen. they plead none culp. or several pleas, and the jury finds for the Plaintiff in all, the jurors cannot assess several damages against the Defendants; because it is but one Trespass, and also made joint by the Plaintiffs writ and count; And albeit one of them be the most malicious, and de facto doth the greatest wrong, yet all coming forth to do an unlawful Act, and being all of one party, the Act of one is the Act of all, that are present and of the same party: And therefore in such case if the hand of one of them only gives a mortal wound, whereupon death follows, that is murder in all, that are present and of the same party, albeit the others intended not to give a wound so mortal, as appears in Mekallies' Case in the 9 Report. Copercenery ●inti●e. 68 If two Caperceners' Tenants in tail lose by default, F. N. B. 155. h albeit the default of the one is not the default of the other, yet in respect of the entireness of their estate they shall join in a Quod ei deforciat, etc. M. 46. 3 E. An execution ●ntire. 69 If an execution be sued of the body and of the land, Pl. Co. Rosses Case. and afterward the Conusor enfeoffs the Conuse of parcel of the land, or surrenders parcel of the land unto him, or the fée-simple of parcel thereof descends upon him, in all these cases, both body and land are discharged; for by the execution against the body & land, the land was the facto charged and so become debtor, and by the feoffment, surrender, or descent the land was also discharged; because a discharge of part of a thing in execution is a discharge of all, be it by the Act of the party, or by Act of Law; for the duty being personal is entire and so is the execution entire also, etc. 〈◊〉 Manor in●ire. 70 It is ordained by the Statute of the 25 E. 3. cap. 16. Pl. Co. 109. b. 3. in Fulmerstons' Case. That by the execution of non-tenure of parcel no writ shall abate, but only for the quantity of the non-tenure, which is alleged; Nevertheless, in a praecipe quod reddat of a Manor; if the Tenant plead non-tenure of parcel, the whole writ shall abate; because a Manor is an entire thing; And therefore the judges have taken it to be against reason, that by his Demand of the whole Manor he should recover against him, that is but tenant of parcel thereof, for which cause they have expounded that Statute only to extend to writs, where things demanded are several, as acres are, and not to extend to writts, where the things demanded are entire. 〈◊〉 venire facias ●tire. 71 In an appeal of death against divers, they plead not guilty, Co. Inst. p. 1. 256. b. 3. and one joint venire facias, is awarded; if one challenge peremptorily, he shall be drawn against all; otherwise it is of several venire facias. ●n obligation ●tire. 72 In 9 H. 5. fol. 15. Co. lib. 11. 27. b. 2. in Henry Pigot's Case. One brings a writ of Debt of 20 l. against another and counts upon an obligation of the same sum, the Defendant pleads, that he was a lay man, and knew not letters, and he acknowledged himself to be bound to the Plaintiff by the same deed in 20 s. which he hath paid and thereof shown an Acquittance and as to the residue of the sum in the said Obligation, obligation nient son fait; And in this case, the Obligation was adjudged void for all; because, the sum being entire, it could not be good for 20. s. and void for the residue of 20. l. but must needs be void for all. Co. l. 11. 27. b. 3 & 28. a. 4. in Henry Pigot's Case. 73 If there be two absolute and distinct Clauses or Covenants in a deed, and one of them is read to a man not lettered, and the other not, A deed inti●●. it is good for the Clause or Covenant that was read, and void for the other: Howbeit if a deed contain divers such absolute and distinct Clauses or Covenants, if any one of them be altered by addition, interlineation, or razure, this Mis-fensance ex post facto shall make the whole deed void (as it is holden in 14 H. 8. 25, 26.) For albeit they are several Clauses or Covenants, yet it is but one entire deed. 3 H. 7. 5. If two be bound in an obligation, and after the seal of one of them is broken, this mis-fensance ex post facto shall make the obligation void against both; because it is an entire thing, that will not admit severance, etc. Co. l. 5. part 2. 1. a. Claytons' Case. 74 If Indentures of demise be engrossed bearing date the 26 of May, Days are entire and a●mit no fra●●●ons. to have and hold for three years from hence forth, and they are afterwards delivered at 4 of the Clock in the afternoon upon the 20 day of June than next following; In this Case, the Lease shall commence upon the day of the delivery; for, from hence forth shall have reference to the delivery (when the deed took effect) and not to the date, and it shall not begin immediately after the delivery, viz. at 4 of the clock in the afternoon, but that whole day shall be part of the demise; because a day is (in judgement of Law) an entire thing, that will admit no fractions, to avoid un-certainties, which are always the mother of contention. And therefore the day of delivery is taken inclusiuè viz. to the first day of the demise; so it is also if a Lease be limited to begin à confectione, It is otherwise, when the lease is to begin a die confectionis, or à die datus; for (in that case) the day itself is excluded, etc. And so the doubt in 12 E. Dier 286. is well explained, and with this resolution agrees 14 E. Dier 307. St. 27 H. 8. cap. 16. The words of the Statute of Inrollements are (within six months after the date of the same writings, etc.) and it was adjudged (T. 21 E. in Co. Bard) that if such writings have date, the six months shall be accounted from the date, but if they want date, then from the delivery; And therefore when the six months are accounted from the date, the day of the date is excluded as it was adjudged P. 4 E. Rot. 812. for, from the date, and from the day of the date are all one, because (in that case) the entire day of the date is excluded; But it seems by the resolution abovesaid, when they are accounted from the delivery, the day of the delivery is to be totally included within the account, causâ quà suprà. Co. l. 7. 8. a. the Earl of Bedford's Case. 75 Tenant in tail maketh Lease of Land holden voidable by the issue, and dies, his heir under age, An advoke entire. the King as guardian may during the un-age avoid that Lease, but it may be recontinued by the heir's acceptance of the Rent after his full age: So it is also where a voidable Lease is made by a Bishop; for albeit the King during the Vacancy may avoid it, yet the successor by acceptance may recontinue it: because in these Cases the term is partable, and may for part be avoided, and for the presidue be continued: It is otherwise of entire things, when the whole interest is avoided: as if the Patron of a Church grant the prochien avoidance to another, and after and before the Statute of 13 E. the Parson, Patron, Ordinary make a Lease for years rendering Rend, and the Parson dies, the grantée presents one, who is admitted instituted and inducted and dies, this Lease is avoided absolutely in all, and shall not hold good against the second successor: So (●. E. 3. 2. E. 3. 8. 8.) an advowson by Licence is granted to a Prior and his successors, and is afterwards appropriate to the Prior, etc. here if the Feme of the grantor be endowed of the Advowson and her Clerk inducted, the appropriation is defeated for ever, etc. So if a Feme covert (as a Feme sole) levy a fine, by the entry of the Bar on all is avoided, 7 H. 4. 23. yet if the Baron had not entered, it had bound the Feme and her heirs. In copercinerie eviction of part annuls all. 76 In the Copercenery in part of the Purparty be evicted, Co. Inst. pars 1. 173. b. 4. that shall avoid the partition in the whole, be it of a Manor, that is entire, or of acres of ground, or the like, that are several; for the partition (in that Case) implieth for this purpose both a Warranty, and a Condition in Law, and either of them is entire, and giveth an entry (in this Case) to the whole; Co. l. 4. 1. 12. Bustards Case. And so it was resolved in Bustards Case Co. l. 4. 121. both in the Case of exchange and partition. peerage in copercinencie. 77 If an Earldom, Barony, Co. Inst. pars 1. 156. a. 3. or other Peerage descend to Coparteners, the Lands shall be divided, as amongst other Partners, but the dignity (being entire) cannot be parted, neither shall it descend to the eldest alone; but (in such Case) the King (who is the sovereign of honour and dignity) may confer it upon which of the Coheries he please. A County entire. 78 A writ of Dower is brought against the Alienée of the Baron, Co. lib. 9 17. b. 2. in Anus Benigfields Case. and he voucheth the heir; In this Case, the Demandant may testise that the heir hath Lands descended unto him in the same County (for to another County the original doth not extend) and may pray, that he may be endowed of his Estate: So in 4 E. 4. 36. & 6 E. 3. 11. The Tenant in a writ of Dower vouched the heir of the Baron, and the Demandant testifieth that he hath Lands by descent, etc. in the same County, and judgement was given against the heir: But if he had none there, it should have been given against the Tenant. Vide suprà 55. 110. An entire condition. 79 If there be an obligation with Condition, Dier. 16. 88 28 H. 8. that if I infeoff another before such a Feast of the Manor of Dale, discharged of all manner of Rents; In this Case, if a stranger hath a Rent issuing out of the said Manor, and I make a Feoffment, and at another day afterwards and before the Feast I purchase a release of the stranger, here the Condition is not observed, in as much as the Manor ought to have been discharged at the time of the Feoffment simul & semel, because the Condition was entire: But if the Condition be, that I pay 10. l. build an house, and go of your errand to Paul's before such a Feast; In such Case, I may well do these Acts upon several days before the Feast, because the Condition was not entire. ●ease to two. 80 If a Lease be made to two for lives term of their, Dier. 67. a 18. 3 E. 6. and they make partition, and the one dies, his part shall revert to the Lessor, because their lives are several, the life of the one not being the life of the other: But in a Lease be made to two for term of years, with proviso, that if the Lessées die within the term, that then the term shall cease, and they make partition, or out of them, aliens his part, and dies; In this Case the Lessor cannot enter into his part that dies, but the grantee or the executors of the Lessée (if he made an alienation) shall have his part during the life of the Survivor; because the term of years is entire, and cannot cease as to one, and continue to the other. ●stresse. 81 An Honour is entire as well as a County or Manor, and therefore a distress taken in the County of Wilts in a place which is parcel of the Honour of Wallingford (the castle and Court whereof is within the County of Berk) was driven to that castle and there impouded and upon a replevin delivered (since the Statute of 1, 2. P. M. 12. Dier. 168. 20. 1 El. ) and held good; For afterwards at the suit of the Defendant the Plaint was removed by an Accedas ad Curiam directed to the Sheriff of Oxon, and the Plaintiff counted of the taking in praedicto loco in Com. Wilts, and all held good per Curiam. Dier 227. 44. 6 El. 82 A general pardon discharged all post fines under 6 l. And for the fine there were two writs of Covenant, Post-fine. but only one concord of Lands in two Counties, and the Post-fine being extracted entirely did exceed 6 l. but being divided it was under, which division Sank-ford requested; but the Concord being entire, the Court adjudged the Post-fine but one also. Dier 246. 70. 8 El. 83 In a Replegiare against a Bishop and others, Challenge. they were at several issues, but one venire facias was awarded, the Bishop challengeth the Array, because there was no Knight; and this challenge was held good for all, because the venire facias was entire, albeit the issues were several. Dier 256. 11. 9 El. 84 Tenant for life surrenders the one Moiety, Entire reservation. and the Lessor grants the whole Land to a stranger, Habendum the one Moiety for life, and the other for 40 years after the death of the Tenant for life, rendering 40 l. per annum. In this Case the Lessor may distrain and a vow for the whole Rent presently, albeit the one Moiety be but terra revertens, and the reason is for that the reservation is entire. Dier 260. 22. 9 El. 85 In Debt upon a lease for years of several parcels, Non demisit pleaded. the parties are at issue upon non dimisit, and it was found a demise of all but one parcel, and damages assessed; Howbeit the Plaintiff could not have judgement, because the Lease and Count were entire, and did contain all. Hob. 66. Cox and Jenner. 86 Where too commit Trespass, Trespass. a release to one of them of all actions real and personal, enures to both, albeit he to whom the release is made, is not party to the suit, but is only mentioned in the declaration with a simul tum, etc. because the Trespass is entire, and therefore cannot be released to one, but must also be released to all, that are guilty thereof. Vide Hob. 70 Parkens Case. Ho. 180. Slowley and Sveley. 87 Where a man hath a personal Action against two Defendants, Trespass. if they plead severally, and he be non-suite against the one, before he hath judgement against the other, he shall be barred against both: for the Trespass being entire, the non-suite worketh in nature of a release of the whole. 71 Argumentum à Divisione est fortissimum in Lege. Co. Inst. p. 1. 213. b. 3. 1 An example or two of this Argument you shall find in Littleton, An impa●●● Rent. whereof the first is in Sect. 344. where he puts this Case: If a man enfeoff another upon Condition, that he and his heirs shall render unto a stranger and his heirs an annual Rent of 20 s. etc. and upon failer of payment that the Feoffor and his heirs may enter, this is a good Condition, yet the sum so reserved cannot be properly called a Rent; For (saith he) if it should be a Rent; it ought to be either Rent-service, Rent-charge, or Rent-secke, but it is not any of those: For if the stranger be once seized of it, and after be denied it, he shall not have an Assize for it, because it is not issuing out of any Tenements, etc. So that if it be arreare, the stranger hath no other remedy, but that the Feoffor or his heirs may enter, and yet if they do enter, then is the Rent gone for ever; And therefore he concludes, that such a charge upon the Landis not a Rent, but only a pain laid upon the Tenant of the Land and his heirs, that in Case payment be not made according to the Indenture, they shall lose the Land by the entry of the Feoffor and his heirs, etc. An Estate during coverture. 2 Another example hereof you shall find Sect. 380, & 381. Co. ibid. 235. b. 1. Where to prove that an Estate made to Baron and Feme during the Coverture is an Estate unto them for their two lives, he useth this argument; Every man (saith he) that hath an Estate of Franktenement in Lands or tenements, hath an Estate in them. either in Fee, or Fee tail, or for his own life, or pur altar vie; But the Baron and Feme have not by such a Grant, Fee, nor Fee tail, nor an Estate pur altar vie. Ergo, they have an Estate for the term of their lives: Howbeit that is upon a Condition in Law, viz. If one of them die, or a divorce be sued betwixt them, that then it shall be Lawful for the Lessor or his heirs to enter, etc. And in this Case if they make waste the Feoffor and his heirs shall have a writ of waist against them, supposing by his writ, Quod tenet ad terminum vitae, etc. But in his Count he shall declare the special manner of the Lease. Common ratione commorantiae void. 3 In Trespass the Defendant justifies, Co. lib. 6. 60. a. 2. in Gatewands' Case. that all Inhabitants in any ancient mesuage within the Town of Dale have used to have Common in the place where, etc. in Sale, ratione condonantiae, etc. And this Custom was adjudged to be against Law: Because there are only four kinds of Commons, viz. Appendent, appurtenant, in gross, and for vicinage, and Common Ratione commorantiae is none of them, etc. 80. 18. The Estate of the Duke of Cornwall. 4 Edward 3. Co. lib. 8. 27. a. 2. in the Prince's Case. gave unto the Black Prince the Dukedom of Cornwall, etc. Habendum & tenendum eidem Duci, & ipsius & haeredum suorum Regum Angliae filiis primogenitis, & dicti loci Ducibus in Regno Angliae haereditariè successoris, etc. And it was resolved in 3 Jac. in the Prince's Case, that that the Prince had an estate of Fée-simple in that Dukedom; because every Estate of Inheritance is either Fée-simple, or Fee-tail, but that Estate could not be Fée-taile; for it is not limited or restrained, (either by express words, or by words which do tout amount) to the heirs of the body of the Prince; because he that is to inherit that Dukedom, aught to be the first borne Son of the heirs of the Black Prince, be it heir Lineal or Collateral; and such heir ought also to the King of England, etc. Vide infrà 192. 3. 72 The Generals must go before, and the Specials must follow after. general's be●e Specials. 1 In a writ the General shall be put in demand and in Plaint before the special, as Land before Pree, Pasture, Wood, juncarie, The Rule of the Register. Marish, etc. Wood before Alders, Willows, etc. Finch 24. 73 The more worthy shall be set before the lesser worthy. ●grees of shiness of ●d, etc. 1 An entire thing shall be demanded before the moiety part or parts, Co. Inst. p. 1. 4. a. 2. & Co: l. 11. 82. a. 4. Bowls Case. the thing of greater dignity before that which is of less, as a mesnage before Land; for albeit Land be of more esteem than any of the other elements (because it was principally made for man to rest on, which he cannot do in any of the other elements) yet Land builded upon, is more worthy than any other Land, because it is for the habitation of man, and in that respect hath the precedency to be demanded in the first place in a praecipe; howbeit a Castle shall be demanded before a mesuage or Manor; because it is more worthy than they, being ordinarily an habitable for a Noble personage, etc. Finch 24. and the Rule in the Register. Finch. 25. 2 In a Replevin if it be of two chattels, one quick, Of Chattels. and the other dead, the living thing shall be first demanded. Finch 25. and the Rule in the Register. Finch. ibidem. 3 Where one hath the presentment to a Church two turns, Of present Action to a benefice. and another the third turn, he that had the third turn, bringing a Quare Impedit shall not begin with his own turn first, but with the other two turns. Co. Inst. part 18. a. 3. 4 My Lord Cook well observes, Fee-simple the most worthy Estate. that Littleton did worthily begin his Book with an Estate in Fée-simple, because all other Estates being derived from that, it must needs be the most worthy: for (saith he) A principalioribus & dignioribus est inchoandum. Co. lib. 2. 46. b. 1. in the Arch Bishop of Canterb. Case. 5 By the Statute of 31 H. 8. cap. 13. It was enacted, Words of inferior rank e●clude them of higher degree. that all Monasteries, etc. Colleges, etc. which after that Act should happen to be dissolved, renounced, relinquished, forfeited, given up, etc. or by any other mean should come to the King's highness, etc. should be vested, deemed and judged by authority of Parliament in the very actual and real possession of the King, etc. And afterwards by the Act of 1 E. 6. cap. 14. The College of Maid-stone in Kent was given to E. 6. Now the Question was, whether by the General words of the Statute of 31 H. 8. That College was not to be deemed in the Actual possession of E. 6. because the Edict of 1 E. 6. was a mean, by which it came to the King's hands, and therefore fulfilled these words of that Statute, by any other mean: But it was resolved per totam Curiam, that the Statute of 31 H. 8. could not be so understood; For when the Statute speaks of dissolution, renouncing, relinquishing, forfeiture, giving up, etc. which are inferior means, by which such Religious houses came to the King: then the said last words (by any other mean) cannot be intended of an Act of Parliament, which is the highest manner of conveyance, that may be: And therefore the makers of that Act of 31 H. 8. would have put that in the beginning, and not in the end after other inferior conveyances, if they had intended to have extended the Act to that: But these words (by any other mean) are to be thus expounded, viz. by any such inferior means: So likewise it hath adjudged, that Bishops are not included within the Statute of 13 El. cap. 10. For that Statute gins with Colleges, Deans and Chapters, Parsons, Vicars, and concludes with these words, and others having spiritual promotions, these last words do not include Bishops, causa qua suprà: So also in the Statute of West. 2. cap. 41. The words whereof are these: Statuit Rex, quòd si Abbates, Priores, Custodes Hospitales & aliarum Domorum Religiosarum, etc. These last words include not Bishops, as it was holden Dier 1, & 2. P. &. M. fol. 109. Causa qua suprà. Co. l. 8. 133. a. 1. in Turner's Case. Et Co. 9 88 b. 4. in Pinchons' Case. 6 An Executor or Administrator ought to execute his Office, Precedency debts legac● and to Administer the goods of the dead lawfully, viz. ought to pay all duties Debts and Legacies in such precedency and order, as he ought to pay them by the Law, and if he vary therefrom, he shall be taken to do in his own wrong: And therefore he ought first to discharge judgements, Statutes, and Recognizances, than Debts and Duties by bond, after that Debts upon simple Contract, and last of all Legacies, etc. Vide Co. lib. 5. 28. b. 4. Harrisons Case. Co. l. 8. 157. a. 4. in Blackamoors Case. 7 In an Original writ if the Feme be named before the Baron, it shall abate, albeit that be nothing but want of form, Feme not for the 〈◊〉 etc. 8 Exceptio semper altiùs ponenda est. And therefore if a release run thus: Exception ●ust come last A. doth acknowledge himself satisfied, etc. of all Bonds, Co. l. 9 53. a. 2. in Hickmots Case etc. made by B. and it is agreed that A shall deliver all such Bonds as he hath un-delivered to B, except abond of 40 l. wherein B & C stand bound, etc. Here the exception extends to all the premises, and it could not be inserted sooner, because the proper place thereof is to come last, etc. Reservation ●fter the Estates. 9 The proper place of a reservation is to come after the limitation of all the Estates; and therefore if A left to B Habendum pro uno anno, Co. l. 10. 107. a. 1. in Lofields' Case. etc. & si in fine anni both parties shall be agreed, that the Demise shall be renewed or continued for a longer time, tunc habend. premissa for three years, rendering yearly durante termino praedicto 40 l. etc. In this case the Reservation shall extend as well to the first year, as to the other three years; because the reservation was to be inserted after all the Estates: so likewise if a man by deed indented demise lands to A, Habendum to him for life, the remainder to B, and to the heirs of his body; and for default of such issue to remain to C, in tail or for life, Reddendo inde to the lessor and his heirs an annual rent, this reservation shall extend not to the last estate only, but to the two former estates also: because it could not be conveniently inserted, before all the estates were limited; for his proper place is to succeed them, etc. 10 There is an order observed in the Register, F. N. B. 2. c. when a man demands divers parcels of Land in his writ, The method observed in ●rits. which are of divers natures, which parcel shall be first specified in the writ, and which next to that, and so of the rest: for which order take these two verses following for your direction. Mes. vagium Tost. 'em Mol. endinum Col. umbare Gar. dinum Ter. ra Pra. tum Pas. tura Bos. cousin Brew. ra mora Junca. ria Maris. cousin Alve. tum Pis. caria Red. ditus sectare priora. And if a man in his writ will demand ten messages, and ten acres of land, and ten acres of meadow, and ten of pasture, etc. and after in his writ will demand the moiety or third part of a message, or of an Acre of land, or of meadow, or of pasture, etc. then the form of the writ is first to set down to whole, and afterwards the moiety or third part, F. N. B. 33. m, & 34 v. etc. presentation turn. 11 If two sisters have an advowson, which happens to be void, the elder sister shall have the first presentment, and so shall the baron of the elder sister, if he be tenant by the courtesy, and the tenant in dower (in that case) shall have but the third presentment, etc. 74 Sicut natura non facit saltum, Ita nec Lex. ●der in writs 1 In writs of Entry sur disseisin, if the degrees be not duly observed, Co. Inst. p. 1. 238. b. 3. and the writ framed accordingly, that error will make it abatable: As if a man bring a writ of Entry sur disseisin in the Per, or in the Per y cui, or in the Post, when it ought to be a writ of Entry sur disseisin in the nature of an Assize, that is, an error whereupon the writ shall abate, etc. Collations, 2 When a Quare impedit is brought against the disturber and the Bishop, & sir months pass, Co. l 6. 52. a. 1 in Boswells case. in that case the Bishop shall not collate by laps, neither yet if other six month's pass, shall the Metropolitan collate; for the Metropolitan shall never present by laps, but when the inferior Ordinary might before have collation by laps, and doth increase his time; so that, in this case the first degree being wanting, the other that follow, shall fail, etc. awardship. 3 If the tenant make a feoffment by collusion, Co. l. 9 120. b. 4. in Quicks ca etc. the Lord ought to recover the land by wrii of right of ward before he can have a writ for the ravishment of the ward, etc. H. N. B. 143. k. 12. H. 4. 13. b. 33. H. 6. 16. per Priset. Co. l. 10. 44. b. 4. in Jennings case. 4 If the reversioner in fee, and the tenant of a mean estate for life, Proximity of Estates respected. do both at one and the same time pray to be received, the mean estate for life in respect of the immediateness and proximity thereof shall be preferred before the reversion in fee, for the words of the statute of West. 2. cap. 3. (which gives that receipt) being general, viz. admittantur haeredes vel illi, ad quos spectat reversio, etc. the Law, which always respects order of proximity, prefers the next (though little) estate, be it in remainder or reversion for life, before the more remote (though great) estate in fee, etc. And with this accords 24. E. 3. 32. in Pierce Grimsteads case. Co. l. 11 99 a. 4 in James Baggs case. 5 If a Major and Aldermen of a Town corporate, Upon a fa● return the Court ca●●● proceed. which have power by Charter or presciption to dis-infranchise, do dis-infranchise one of their members, and upon motion in the King's Bench the judges there do award a writ unto them to restore him, or otherwise to signiffe the cause, etc. and they certify sufficient cause to remove him, but it is false: In this case, the Court cannot thereupon award another writ to restore him, neither yet can any issue be taken thereupon; because the parties are strangers, and have no day in Court: Howbeit the party grieves may well have an Action upon the special matter against those that made the certificate, and aver that it is false: And if it be found for him, and he obtain judgement against them, so that if may appear to the justices, that the causes of the return are false, then shall they award a writ of restitution, and not before: and this is proved by the reason of the Book in 9 H. 6. fol. 44. where it is holden, that upon a Corpus cum causa, if the cause returned be sufficient, but indeed false, the Court ought to remand the prisoner, and he is thereby put to no mischief; for if they had no authority to imprison him, or that the cause certified be false, he may have a Writ of false Imprisonment against them, etc. Vide Fitz. Tit. corpus cum causa, p. 2. the case of 9 H. 6. well abridged. F. N. B. 19 i. 6 In a Writ of false Judgement upon a Writ of right patent, No error b●fore all c●●fied. etc. or a Writ of right close the plaintiff shall not assign his errors, before all the Record be certified, viz. not only the original, but likewise all the residue of the Record. F. N. B. 20 e. & 22 f. 7 In a Writ of Error, when the Record is removed, When erro● are to be ●signed. the Plaintiff shall assign his Errors, before he shall have a Scire facias against the Defendant ad audiendum errores, etc. Howbeit he shall have a Scire facias before the Record shall be entered: for it shall not be entered before the parties have day by the Scire facias, etc. F. N. B. 38. o. 8 Upon a Quare Impedit, if the Sheriff return tardè, and the Defendant appears, and the Plaintiff is demanded, and comes not in; Upon a 〈◊〉 return no 〈◊〉 to the Bishop in this case the Defendant shall not have a Writ to the Bishop, etc. because no Writ was served against him; for he ought to have the Writ served against him, before he can have that privilege, etc. F. N. B. 39 e. 9 When a man sues a Quare Impedit against another; A Certific● of an acc● before: 〈◊〉 admitta●. and after they hanging the suit, he sues a ne admittas to the Bishop, etc. and after they accord in the Co. Pl. to present by turn to that advowson: in this case a special Writ shall issue out of the Chancery to the Bishop to admit the Clerk of him; who ought by that accord and composition to present to the first turn; but first the King ought to send a Certiorare to the justices of the Com. Pl. to certify him in his Chancery of the accord there, and upon that Certificate the King shall send his Writ to the Bishop, as aforesaid, etc. A Writ de secunda super o●eratione. 10 In a Writ de admensuratione pasturae, F. N. B. 126. 1. all the Commoners shall be admeasured, viz. as well those that were not parties to the writ, as those that were: but yet if any of them which where not parties, etc. surcharge the Common after admeasurement, they shall not forfeit their , (nor yet the value of them) which were in the pasture above the due number, because they were not parties to the first writ; neither shall the party that complains recover damages against them in that writ for such surcharge: for a writ de secunda super oneratione lieth not, save only against him, against whom the first Writ was sued, etc. 11 In an Assize of Fresh-force in London against Jekef Foxley and Agnes his wife, Matter of fact first to be found, and then that in Law to be resolved. and eleven other, whereof ten appeared by Baily, Pl. Co. 91. a. 1. in the Case of the Fresh-force in London against Foxley and others. and plead, No such Agnes, the wife of Foxley in rerum natura, and demand judgement of the plaint, & quod inquiratur per Assisam, & si, etc. Nul. tort. nul. diss. etc. and the others plead the same plea by Attorney: And the Plaintiffs, as to the plea in abatement of the Plaint demur in law, and as to the other plea they pray the Assize: And whether the writ should abate or not, was argued at Guildhall by the Council of both parts before the Assize was taken: but afterwards the Council of the Plaintiffs perceiving that the matter was argued before time, (for the Assize ought first to have inquired all the matter, and if they had found the exception, and had also found a disseisor and tenant, then would it have been time to have disputed what the Law have determined in that case, and not before) they therefore prayed the Court when the Assize was sworn, that they might first inquire of the matter pleaded in abatement of the Plaint, which was done accordingly, &c. for the course formerly run, was preposterous, and not suitable to such orderly proceeding, as the Law requires: And so it was found, that there was no such Agnes, etc. and yet the writ did not abate for the rest, etc. 75 A digniori fieri debet Denominatio & Resolutio. Quod ei de●rceat for tenant in Dower and by the courtesy. 1 It hath been a question in our Books, Co. Inst. p. 1. 353. a. 4. whether upon a Recovery had by default, in an Action of Waste against tenant in dower, or by the Courtesy, a Quod ei deforceat, lieth by the Statute of West. in cap. 4. For some have holden, that in an Action of Waste. although it be brought against a tenant in Dower, or by the Courtesy, that have a Frée-hold; yet the damages are the principal, because they were recoverable against the tenant in Dower, and by the Courtesy, by the common Law; and the Statute of Gloucester gave the place wasted but for a penalty; so as the nature of the Action (say they) remaineth still to be personal; for that the damages are the principal, &c But the best opinion is conceived to be, that albeit in that Action the damages may be the more ancient recompense, yet (doubtless) the place wasted (being in the realty) must needs be the more principal: And therefore upon a Recovery had by default in an Action of Waste against tenant in Dower, or by the Courtesy, a Quod ei deforceat, lieth, as well as in any other Action, etc. for à digniori fieri debet denominatio & resolutio, etc. ●●e Kings ●nnis-playes 2 If the King grant the office of the Tennis-Playes in Westminster, Co. l. 8. 45. b. 4. in John Webs Case. by the name of the King's Tennis-playes in Westm. etc. this grant shall be taken in a reasonable sense, viz. the Tennis-playes for the King's Household, and not only for the Tennis-play, when the King himself plays in his Royal Person; for the King is the Head of his Household, and therefore à digniori parte the Tennis-playes for his household may be well called, The King's Tennis-plays, etc. Co. l. 10. 47. b. a. in Lampets' case. 3 A. Lessée for 500 years deviseth to B. for his life, Executor or Legatee. Election. and after his decease, the remainder to C, and to the heirs of his body, and makes B. his executor, and dies, B. takes upon him the charge and enters: In this Case, when the devise is ut suprà to the executor for life, and after to another, etc. and the executor enters generally, he shall have the Lease as executor, which is his first and general authority, and not as Legatory, without claim or demonstrartion of his election; albeit the testator was not indebted to any, etc. Co. l. 11. 38. b. 4. in Metcalfes' case. 4 When a thing (whereof there are divers degrees and qualitites) is indefinitely mentioned in a Writ, Count, or other Record, Principal things include inferior. the principal and most worthy thing shall be intended; as in 6. Eliz. Dier. 236. when a penalty is inflicted by Act of Parliament to be recovered in any of the King's Courts of Record, it shall be intended of the Principal Courts at Westm. 20. H. 6. 23. In account, supposing the Defendant to be his Receiver from the feast of St. Michael, this shall be intended the principal Feast of St. Michael the Archangel, and not of St. Michael de Monte Tumbe, so 13. H. 4. 4. 21. H. 6. 8. & 37. H. 6. 29. If the father and son are of one name, viz. I. S. if I. S. be named generally in a Writ, Count, or other Record, this shall be intended of the father, for he is the more worthy: Likewise, 10. E. 4. 11. 7. R. 2. Tit. Barr. 241. A man is bound to prove a thing, or a thing is to be tried; this shall be by the most principal proof and trial in law, viz. by a jury; so if it be spoken of fee, it shall be intended fée-simple; Litt. §. 193. & Co. Inst. part. 1 124. b. 3. or if of escuage, it shall be intended of the principal Escuage, viz. of Escuage uncertain, Litt. fol. 21. And fee a notable case to this purpose in 5 E. 2. Resceit 165. were the Case was this: In admeasurement of Pasture against a man and his wife, judgement was given, that the admeasurement should be made, and after it was made in pais, and returned in Banco 15. Hillar. at which day the Baron made default, and the Feme came in Court before the judgement rendered in the principal, and the prayed to be received: In this case, albeit it was moved, that she came too late, viz. after the admeasurement awarded, which is a judgement: yet thereunto Herle said, that it was no judgement upon the principal: And where the Statute of West. cap. 3. is; Si uxor ante judicium venerit, etc. Statutum debet intelligi de principali judicio. So also in 2 E. 3. Resceit 139. In an Assize of Mortd. against Baron and Feme, the Assize was awarded by default, and the Assize remained always pro defectu Juratorum, & then the Feme prayed to be received; and it as objected, that judgement was given, that the Assize should be taken: nevertheless the Feme coming in before final judgement, was received; and with this accords 17. E. 2. ibid. 173. and 22. Ass. pl. 22. After the Assize awarded, the Feme was received, 24. E. 3. 29. and divers other Books accord, etc. Co. l. 11. 39 a. 4. in Metcalfes' ease. 5 These words in a writ of Error, Si judicium inde redditum sit, No writ of Error, before judgement 〈◊〉 all. etc. are intended not only de principali Judicio, but also the integro Judicio, viz. when all the matter within the original is determined, as in 34. H. 6. 18. in Humphrey Bohuns Case in Quare impedit brought by two; the one pleads to the Issue, and the other confesseth the Action, upon which confession judgement is given; and he against whom the judgement was given, sues a writ of Error to remove the Record into the King's Bench: Here Prisot & tota Curia say, this cannot be; for the writ of Error shall rehearse all those, that are parties to the original writ, and then the writ saith, Et si Judicium inde redditum sit, tunc recordum illud habeatis, etc. which proves that it cannot be removed, before the whole matter be determined, etc. 76 The Law requireth decency and order. The Homager must seek his Lord. 1 The tenant ought to seek the Lord to do him homage, Co. Inst. pars 1 104. b. 4. Bract. fol. 80. Britton. fo. 171 if the Lord he within England; for this service is personal, as well on the Lord's side, as on the tenants; and in this Case the Law requireth decency and order; And therefore Bracton saith, Et sciendum, quod ille, qui homagium suum facere debet, obtentu reverentiae, quam debet domino suo, audire debet dominum suum ubicunque inventus fuerit in regno, vel alibi, si commodè possit adiri, & non tenetur dominus quaerere suum tenentem, & sic debet homagium ei facere, etc. and there is the same Law for fealty, ec. Causae Matri●onii praelocuti 2 If a woman give lands to a man and his heirs, Co. ibid. 204. a. 3. & 226. a. 3. causa matrimonii praelocuti: In this Case, if she either marry the man, or the man refuse to marry her, she shall have the land again to her and to her heirs; but on the other side, if a man give land to a woman and to her heirs, causa matrimonii praelocuti, though marry her, or the woman refuse, he shall not have the lands again; for it stands not with the modesty of women in this kind to ask advice of learned Council, as the man may and aught, etc. And for the same reason a woman may aver the cause, although it be not contained in the Deed, yea albeit the feoffment be made without Deed. Order in pleading. 3 The order of good pleading must be observed, Co. Inst. pars 1. 303. a. 2. which being inverted, great prejudice may grow to the party, tending to the subversion of Law: Ordine placitandi servato, servatur & jus, etc. And therefore first, in good order of Pleading, a man must plead to the jurisdiction of the Court: Secondly, to the person, and therein first to the person of the Plaintiff, and then to the person of the Defendant: Thirdly, to the Court: Fourthly, to the Writ: Fifthly, to the Action, etc. which order and form of Pleading you shall read in the ancient Authors, agreeable to the Law at this day: and if the Defendant misorder any of these he loseth the benefit of the former: Again, the Count must be agreeable, and conform to the Writ, the Bar to the Count, etc. and the judgement to the Count; for none of them must be narrower or broader than the other, etc. 4 If the King make a Lease for years, rendering Rend, Co. l. 4. 13. a. 3. in Burroughs Case. with condition to be void upon nonpayment of the Rent, Reentry gi●en to the King without demand. the King shall take advantage of that condition without any demand: For so long as the Reversion and Rent continue in the King, the Law dispenseth with the demand, as a thing un-decent, it being against the dignity of the King to wait upon his subject, or to demand any thing of him: It is otherwise, if the King grant over the Reversion; for his grantée shall not take advantage of the Condition, without demand of the Rent: But in the other Case the Law (which always requireth that decorum and conveniency be observed) appoints the subject to attend upon his Sovereign, and in that Case to perform the first Act, although it be in the case of a Condition, which trencheth to the destruction of his Estate: Howbeit this is only a personal Prerogative annexed to the person of the King for order and decencies sake, and not in respect of the nature and quality of the Rent, etc. ●o demand 〈◊〉 the value of ●arriage. 5 One Of the reasons which the Lord Cook adds in the Lord Darcies Case, Co. lib. 6. 71. b. 2. in the Lord Darcies Case. why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand, is this; If the Common Law (saith he) would have enforced the Lord to have made tender to his word, etc. it would also have appointed all necessary circumstances for the performance of such a tender, as a certain place, etc. where it should be done, and would not have left the Lord, which is the superior, to find out the Ward which is the inferior; and who may, if he will, take advantage of his own shifts, when there can be no laches at all in the Lord, etc. 6 Amongst other reasons produced to prove, None but of the household shall sue in the Marshal●●. that in Suits prosecuted in the Marshalsea, Co. l. 10. 73. b. 2. in the Case of the Marshalsea. one of the parties (at least) ought to be of the King's household; this is one, because (saith the Book) it would not be comely, that a Car-man or other Mechanical person should at his pleasure sue another in that Court, and upon that occasion take liberty to appear in Aula Regis, (where that Court was originally kept) absque vestimentis aulicis; for those that appear in Court use to wear garments suitable to that place: And therefore it is recorded by Luke the Evangelist, cap. 7. vers. 25. Coepit de Johanne dicere ad turbam, etc. Quid existis visuri, hominem mollibus vestibus amictum? Ecce qui vestitu magnifico utuntur, etc. sunt in Palatiis Regis, etc. And the Common Law regards conveniency, and altogether disallows indecorum, and every thing done contra bonos mores. 77 Negatio Conclusionis est error in Liege. Co. l. 10. a. 4. in Priddle and Nappers Case. 1 In Attachment upon a Prohibition, the Plaintiff counts against A. proprietary of Tithes, Lands in the Prior's hand● not tithable. that heretofore the Prior of Montecute was seized of twenty Acres of Land, etc. before and at the time of the dissolution, and held those Acres; and also the Rectory simul & semel, etc. Ratione cujus the Prior held the said Lands discharged of Tithes: The Defendant conveys title to the Land, &c, Absque hoc, that the Prior held them discharged of Tithes, etc. Here the plea of the Defendant pro consultatione habenda (for he is in a manner, an Actor) was insufficient, because he traverseth a thing not traversable: For the prescription of the unity ought to have been traversed, and not the Conclusion, viz. Ratione cujus; because as in Logic the conclusion of a Syllogism cannot be denied, but either the major or minor Proposition; so neither in Law, which is the perfection of Reason, etc. Co. ibid. 2 In a Praecipe, Ancient Demesne, one that pleads that the Manor of Dale is ancient Demesne, and that the Land in demand is parcel of the Manor, and so ancient Demesne, there the Demandant cannot say, that the Land in demand is not ancient Demesne; because that is the Conclusion upon the two first preceding Propositions, viz. 1. That the Manor is ancient Demesne. 2. That the Land in demand is parcel of the Manor; for sequitur conclusio ex praemissis; and therefore it cannot be denied, and with this agrees 41. E. 3. 22. 48. E. 3. 11. and many other Books. 78 The Law respecteth the Bonds of Nature. Co. Inst. p. 1. 78. a. 2. 1 If before the Statutes of 32 & 34 H. 8. Wardship the father had enfeoffed any of his younger sons, or others for the making of his wife a jointure, or for the advancement of his daughters, or for the payment of his debts, Co. l. 6. 76. a. 3. in Sir George Cursors Case. and after had enfeoffed and conveyed the Land to his heir, and had died, his heir within age, his heir should not have been in ward, neither was it Collusion upon the Statute of Marlbr. cap. 6, etc. because he was bound by the law of Nature and Nations to provide for them; but now by force of those Statutes he shall be in ward for his body, and for a third part of the Land, etc. No wardship ●uring the father's life. 2 A. hath issue B. a daughter, and his heir apparent, who being married to C. hath issue by him D a son; B. dies, Litt. §. 114. Co. Inst. ibid. a. 3, etc. and A. that holds Land by Knights-service, dies seized, and the Land descends to D, as heir unto A. and within age: In this Case, the Lord shall have the wardship of the Land, but not the wardship of the body of the heir; for none shall be in ward for his body to any Lord, during the father's life; because the Law of Nature requires, that the father during his life shall have the marriage of his heir apparent, rather than the Lord, or any other person whatsoever. The Law is the same, if D. had been 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, etc. Again, this privilege extends not to any collateral heir, but only to the son or daughter being heir apparent: for albeit a man shall have an Action of Trespass, Quare consanguinem & haeredem coepit; and albeit the words be cujus maritagium ad ipsum pertinet; because the well:- bestowing of his heir apparent in marriage is a great establishment of his house; yet that is to be understood as against a wrongdoer; 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 fee upon condition, and taketh the Lord to husband, and have issue a son; the wife dieth, the issue entereth for the condition broken, the Lord entereth 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 seemeth 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 judgement 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 Signories by Knights-service, began; And that wardship, by reason of nature, cannot be waved, and claim made in respect of the Signiory: 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 Plaintiff or Defendant, Challenge to ●he Array and ●●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 Sheriff marry the daughter of either party, or è converso, this is a principal challenge; so if there be affinity between the son of the Sheriff 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, etc. 5 If a juror be of blood or kindred to either party, (Consanguineus, Co. ib. 157. a. 3 which is compounded of con and sanguìne, ●o the Poles. quasi eodem sanguine natus) this is a principal Challenge to the Poles, 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 Plaintiff challenge a juror for kindred to the Defendant, it is no Counter-plea to say, that he is of kindred also to the Plaintiff, though he be so in a nearer degree; for the words of the venire facias forbiddeth the juror to be of kindred to either party. 6 If a Body politic or incorporate (sole or aggregate of many) bring an Action that concerns their Body politic or incorporate, Co. ibid. The like. if the juror be of kindred to any that is of that body (albeit the Body politic or incorporate can have no kindred) yet for that those Bodies consist of natural persons, it is a principal Challenge, etc. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge, The like and to the favo●●. and equivalent to Consanguinity, when it is between either of the parties; as if the Plaintiff or Defendant marry the daughter or Cousin of the juror, or the juror marry the daughter or Cousin of the Plaintiff or Defendant; and the same continues, or issue be had: And if the son of the juror hath married the daughter of the Plaintiff, etc. albeit this be no principal Challenge, because it is not between the parties, yet is it a Challenge to the favour, etc. Co. l. 3. 38. b. 4. in Ratcliffes' Case. 8 Martha Wilcocks, A maid conveyed away and married. (one of the daughters and coheirs apparent of Eliz. the relict of William Wilcocks, and then the wife of Ralph Ratcliff) dwelling in her mother's 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. Ratcliff: 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, than 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, etc. 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, etc. in pain for the man to suffer imprisonment, etc. and for the maid to lose her land, as aforesaid, etc. 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 only in the mother, etc. Co. l. 3. 39 a. 4. in Ratcliffes' Case. 9 It is said, No wardship during the ●●thers life that if there be Lord and Feme tenant by Knights-service; and the tenant make a lease for life, and after the Lord and the tenant intermarry, and have issue between them a son, and the Feme dies, and after the father dies, the son within age, here the executors shall not have the wardship, by reason of the Seignory; for the father hath the wardship of his eldest son jure naturae, which is inseparable, and cannot be waved, and he cannot have the wardship of his son by the death of his wife, in respect of his Seignory; for that was inseparably vested in him as father, immediately upon the birth of the son jure naturae: And Littleton saith, that the father during his life shall have the marriage of his son and heir apparent, and not the Lord, etc. 3. Co. l. 6. 22. Ambrosia George's Case. 10 Viscount Bindon being seized of land in capite, had issue, The like. Douglas his daughter and heir, who being married to Sir Arthur Gorge, had issue by him Ambrosia a daughter, Douglas dies, and likewise Viscount Bindon, Ambrosia being under age, afterwards Sir Arthur Gorge takes another wife, and hath Issue a son, Ambrosia remaining still under age. In this case, Ambrosia was not in ward, during the time she remained heir apparent to her father; but after her father had a son, so that she remained no longer heir apparent; then had Queen Eliz. the Wardship both of her body and Lands, etc. Allegiance ●●ue by nature. 11 Faith, Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Sovereign by the Law of Nature, which cannot be changed or taken away; for albeit judicial and Municipal Laws have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature (for that Law only consisting in commanding or prohibiting without any certain punishment or penalty) yet the very Law of Nature itself could never be altered or changed: And therefore it is certainly true, that Jura naturalia sunt immutabilia. And here with agreeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. & 6. For example, 33. H. b. 55. 6. If a man hath a Ward by reason of a Seignory, and is outlawed, he forfeiteth the wardship to the King; but if a man hath the wardship of his own Son or Daughter, which is his heir apparent, and then is outlawed, he cannot forfeit that wardship, because nature hath annexed it to the person of the Father, as it appeareth in 33 H. 6. 55. b. So likewise the Faith, Obedience, and Ligeance, which we own to our Sovereign cannot be taken away; For, bonus Rex nihil a bono patre differt, & patria dicitur à patre, quia habet communem patrem, qui est pater patriae. In the same manner, Maris & foeminae conjunctio est de jure naturae, 35 H. 6. 57 as Bracton and Doct. & Stud. in the places before quoted do hold: And therefore if he that is attainted of treason or felony be slain by one, that hath no authority, or executed by one, that hath authority, but pursueth not his Warrant; In this Case, 21 E. 3. 17. b. the eldest son can have no appeal; for he must bring his appeal as heir, which privilege, being ex provisione hominis, he loseth by the attainder of his Father: Howbeit his Wife (if he have any) shall have an appeal; because she is to have her appeal as Wife, which she continueth to be, notwithstanding the attainder; for that maris & foeminae conjunctio is de jure naturae; And therefore (it being intended to be of true and lawful matrimony) is indissoluble: and this is proved by the book in 35 H. 6. fol. 57 So if there be Mother and Daughter and the Daughter is attainted of felony, now can not she be heir to her Mother, for the cause afore said: yet after her attainder if she kill her Mother, this is parricide and petite treason: For still she remaineth her Daughter: because that is of nature. If a man be attainted of felony or treason, 4 E. 4. 35 H. 6. 57 2. Ass. Pl. 3. he hath lost the King's Legal protection: for he is thereby utterly disabled to sue any Action real or personal (which is a greater disability than an alien in league hath) and yet such a Parson so attainted hath not lost that protection, which by the Law of Nature is given to the King: for that is indelebilis & immutabilis, and therefore the King may protect and pardon him; and if any man kill him without warrant (albeit attainted as aforesaid) he shall be punished by Law as a : By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire, is by express words out of the King's protection generally; and yet this extendeth only to legal protection, as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection, which the Law of Nature giveth unto him; and therefore notwithstanding that Statute the King may protect and pardon him: And although by that Statute it was farther enacted, that it should be done with him as with an enemy, by which words any man might have slain such a person (as it is holden in 24 H. 8. Coron. Br. 197.) until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him. A man outlawed is out of the benefit of the Municipal Law; for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus; And Bracton (l. 3. tract. 2. cap. 11. saith that caput gerit lupinum, etc. yet is he not out either of his natural ligeance, or of the King's natural protection; for neither of them is tied to municipal laws, but is due by the law of Nature, which was long before any judicial or municipal laws: And therefore if a man were outlawed for felony, yet was he within the King's natural protection: for no man but the Sheriff could execute him, as it is adjudged in 2. Ass. Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Sovereign, etc. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriff of any County above one year, and that, notwithstanding any clause of non obstante to the contrary, that is to say, notwithstanding that the King should expressy dispense with the said Statute; howbeit it is agreed in 2 H. 7. that against the express purview of that Act, the King may by a special non obstante dispense with that Act; for that the Act could not bar the King of the service of his subject, which the law of nature did give unto him: One of the Chiefest grounds, according to which the Case of the postnati was resolved in 6 Jac. was, because obedience and ligeance of the subject to the Sovereign is due by the law of Nature; for if they be due by that law, and the same law be parcel of the laws of England as well, as of all other Nations, and is immutable, and that postnati & we of England are united by birthright in obedience and ligeance (which is the true cause of natural subjection) by the law of Nature, It clearly followed, that Calvin (the Plaintiff in that cause) being borne under one ligeance to one and the same King, could not be an alien borne: And there is great reason (as it was then alleged) that the law of Nature should direct that Case, wherein five natural operations were remarkable, 1 The King had the Crown of England by birthright, being naturally procreated of the blood Royal of this Realm; Secondly, Calvin the Plaintiff, was naturalised by procreation and birthright, since the descent of the Crown of England; Thirdly, Ligeance and obedience of the subject to the Sovereign due by the Law of Nature; Fourthly, Protection and government also due by the Law of Nature: Fiftly, It was presently said, that this Case of Calvin in the opinion of divers was more doubtful in the beginning, but the farther it proceeded the clearer and stronger it grew, and therefore that the doubt did arise from some violent passion, and not from any reason grounded upon the Law of Nature, quia quantò violentus motus (qui sit contra naturam) appropinquat ad suum finem tantò debiliores & tardiores sunt ejus motus, sed naturalis motus, quantò magis appropinquat ad suum finem, tanto fortiores & velociores sunt ejus motus: And for as much as in case of an alien Borne, you must of necessity have two federal ligeances to two several persons, but in this Case one person alone is head of both, and the postnati, and we now joined in ligeance so that one head, (which was copula, & tanquam oculus of that Case) And ligeance of the subjects of both Kingdoms being due to their Sovereign by one and the same Law, viz. by the Law of Nature, the postnati cannot be aliens of either Kingdom, but ad invicem naturalised subjects of both; for, Non adversatur diversitas regnorum, sed regnantium; non patriarum, sed patrum patriarum; non coronarum, sed coronatorum: non legum municipalium, sed Regum Majestatum, etc. Mother guardian. 1● If the Grandfather hath issue a Son, F. N. B. 1● and the Son take Wife and hath issue and die, the Mother of the issue shall have the Wardship of the issue, which is her own Son, and not the Grandfather; Albeit the issue may have the Land, which ought to descend unto him from the Grandfather, & that the Mother shall not have it, etc. No champerty in the Son. 13 The Statute of Articuli sup. cartas cap. 11. provides, Pl. Co. 88 b. 3. Partridges case. that no Minister, or other whatsoever, to have part of the things, which are in Plea, shall undertake businesses, which are so in plea; yet if the Tenant hanging a percipe quod reddat against him, enfeoff his Son and heir apparent, this shall be out of the danger of that Statute, as it is taken in 6 E. 3. 274. in a writ of Champerty (see it also in Fitz. Champerty 10.) and the reason of this is, for that the Son cannot be said a Maintainer of the Father; because he is bound to aid and assist his Father, when and as often as he may, being enjoined so to do by the Law of nature, etc. The Son may a bet his mother. 14 By the Statute of West. 2. cap. 12. it is ordained, Pl. Co. ibid. that in an appeal it shall be inquired, who were the Abettors, and that they shall render damages to the party acquit; Nevertheless, if the heir abet his Mother to bring the appeal, although it is within the words of that Statute, yet shall he be out of the danger of it, And so Herle took it, in 6 E. 3. 274. For Common Law and reason say, that he ought to be aiding to his Mother, and may also abet her. Considerations to raise uses. 15 Affection for the provision of heirs male, that one shall engender, Finch, 25. Co. Inst. p. 1. 21. b. 1. Brotherly love, etc. are good consideration to raise an use; But long Acquaintance and familiarity, are not: Howbeit consideration of Marriage is more favoured in Law, than any other. Maintenance. 16 The Son may maintain his Father and one Brother another, etc. Finch, ibid. 17 Brothers or Cofins shall not wage Battle in a writ of right, Finch, ibid. etc. The Wife may relieve her Husband. 18 A Statute, Finch, ibid. that maketh it Felony to receive or give meat and drink to one that committeth such or such an offence, (the party so receiving or giving having knowledge thereof) stretched not to a Woman, that receiveth or giveth meat and drink to her Husband in such a Case, etc. Privity in Blood strongest. 19 You shall find three manner of Privities spoken of in the Law, Co. l. 8. 42. b. 4. & 44. a. 4. in Whittinghams' Case. viz. Privity in Blood, Privity in Estate, and Privity in Law; Privite in Blood is, that between the Ancestor the Heir, Privity in Estate, as between jointenants, Baron and Feme, Donor and Donée, Lessor and Lessée, etc. Privies in Law are, as when the Law without Blood or Privity of Estate casts the Land upon one, and makes his entry Congeable, as the Lord by escheat, the Lord that enters for Mortmain, Lord of a Villain, etc. Now of these three sorts of privities, only the first (which is by blood, and therefore most natural) shall take advantage of Infancy, Coverture, non sanae memoriae, etc. and not the other two. And therefore if an Infant, Tenant in Fée-simple, make a Feoffement and die, his Heir shall enter; There is the same Law also of heirs special, and of heirs general and special, unto whom the right of entry descends per formam doni, or by the Custom, as all Lands in Gavelkind, Borough-English, etc. It is otherwise of privies in Estate, and in Law; And therefore if the Donée in tale within age make feoffment in Fee and die without issue, the Donor shall not enter; Because there was only privity in Estate betwée them, and no right accrued to the Donor by the death of the Donée: So if there be two jointenants in Fee within age, and the one makes Feoffment in Fee of his moiety, and dies, the sur-vivor cannot enter by reason the Infancy of his Companion; Because by his Feoffment the joyntenure was severed, so long as the Feoffment remains in force; and therefore in such Case the Heir of the Feoffor shall have a dum fuit infra aetatem, or shall enter into the moiety: In like manner Privies in Law (as the Lord by escheat, etc.) shall never take advantage of the Privity of Infancy; because they are strangers to it: And in that Case if an Infant Tenant make Feoffment and die without Heir, the Feoffment is un-avoidable: here is the same Law of Coverture and non sanae memoriae, etc. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case. 19 It is said, that one of the Chiefest reasons, 32, & 34, 3● H. 8. of Wil●. that moved the Parliament in 32 H. 8. and in 34 & 35 H. 8. to give liberty to dispose of the two third parts of Lands by will or otherwise for a Competent livelihood of Wives, and Children, or for payment of Debts, was this; Because these Cases were ordinary, usual, and necessary; And for that every man is in his life time bound by the Law of God, of Nature, and of Nations, to make provision for his Wife, and Children, and also for the payment of his Debts, etc. Co. ibid. 77. a. 2. 20 There is a nearer Relation between Father and Son, Father nee● than Grandfather. then between Grandfather and Grandchild; And therefore if there be Grandfather, Father, and divers Sons, and the Grandfather in the life time of the Father conveys his Land to some of the Sons, this is out of the Act of 32 H. 8. of Wills; For the Father ought to have the immediate care of his Sons and Issues; But if the Father be dead, than the care of them belongs to the Grandfather, and then if he convey any of his Lands to any of them, that is within the said Statute. Co. Inst. pt. 1. 123. b. 2. Litt. §. 189. 21 It is regularly true, A Villain may sue his Lord. that the Villain cannot bring any Action against his Lord, yet he may have against his Lord an appeal of the death of his Father, or of any other of his Ancestors, whose heir he is, etc. because the villain is both by duty and in nature bound to pursue such an Action. Co. lib. 3. 12. b. 2. St. Will. Herbert's Case. 22 If a man seized of three Acres of Land, No contribution to the heir. acknowledgeth a recognizance or Statute, etc. And enfeoffs A. of one Acre, and B. of another, and the third descends to his heir: in this Case, if execution be sued only against the heir, he shall not have contribution: For he comes in the place of his Ancestor, and sits in his State: Haeres enim est alter ipse & filius est pars patris, And as it is said, Mortuus est pater & quasi non mortuus, quia reliquit similem sibi. Co. Inst. p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fee, and after the Feoffée is impleaded and voucheth the Feoffor. The heir apparent shall derraigne the warranty from upon feof●●● for the mother. she may have aid of her Copercever to deraigne a Warranty per amount, but never to recover per rata against her by force of the Warranty in Law upon the partition; For (as Littleton saith) by her alienation she hath dismissed herself to have any part of the Land as parcener, but if there be two Coperceners and they make partition, and the one of them enfeoffs her Son and heir apparent and dieth, and after the Son is impleaded; Here, albeit he be in by the Feoffment of his Mother, yet shall he pray in aid of the other Copercener to have the Warranty per amount, and to recover per rata, not only because the Warranty betwixt his Mother and him is by Law annulled, but likewise for that he is alter idem with his Mother. Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in tail after the Statute of 4 H. 7. 24. Issue in tail barred by 〈◊〉 fine. and before the Statute of 32 H. 8. 36. did bind the issue in tail, and his title was not preserved by any of the save in 4 H. 7. because (albeit he claimed per formam doni, yet) claiming through his Father, the Land came to him in the nature of a descent. Dier 128. b. 61 2, 3. P. M. 25 If any of the King's subjects be beyond Sea, and is commanded by the King to return home, and in contempt refuseth so to do, Allegiance. all his Goods and Chattels, Lands and Tenements shall be seized for the use of the King; And this is by reason of the faith and allegiance, which he oweth to the King by the Law of Nature: And this was the Earl of Richmond's Case in 19 E. 2. in Scaccario. The like. 26 If a Bastard were borne at Turney, Dier 224. 19 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature: So it is also of the issue of Aliens born within this Realm. 27 Vide Hob. Rep. pag. 1. The Earl of Clanrichards' Case 10. Grisley against Loather Formedon. 28 In a cessavit brought by the Husband and Wife, Hob. 1. The E. of Clanrichards' Case. or in a writ of Escheat, a consimili casu, or Action or Wast, because there is a vested in them already either a Signiory or reversion actually, and therefore the Land holden, or the present Estate to return, is come in possession, therefore in these Cases, Reverter is to be made to them both, and so are the Books in 3 H. 6. 2. 20 E. 3. Brief 372. Register 238. F. N. B. ●10. Also in a Formedon in Reverter, wherein nothing is already revested, but the right only returns, there the right may be laid to return, either to the Wife alone, or to the Husband and Wife, as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife, sometimes to the Husband and Wife: But in a Formedon in descender upon a descent to the Wife, there the descent must be made in the writ to the Wife alone, because the descent followeth the blood, and to that the Husband is a stranger, and so are the Books in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives, and made the descent in blood to the Wives only, and yet concluded, that the right aught to descend to the Husbands and Wives: And exception was taken to it, and ordered by the Court, that it should be amended, and the descent made only to the Wives. Assumpsit. 29 In an Action upon an Assumpsit, Hob. 10. Grisley and Loather. that A. would give to B. 100 l. if B. would give her consent, that A. might marry her Daughter, and it was moved in arrest of judgement, that the action would not lie, the consideration being to travel or charge, but only a bare consent: howbeit, it was held by three justices against one, that the consideration was good, because the Mother hath by the Law of Nature a special stroke to incline the Daughter's mind either one way or other, and the desire of her consent and the working of it shows, that the Plaintiff so conceived it. 79 Nemo praesumitur alienam posteritatem suae praetulisse. Collateral Warranty. 1 If the Tenant in tail discontinue the tail and hath issue and die, Co Inst. p. 1. 373. a. 3. Litt. § 709. and the Uncle of the issue release to the discontinue with Warranty, etc. and die without issue, this is Collateral Warranty, and shall bar the Issue in tail, albeit the Uncle had no right at all to the land entailed; because the Law presumeth that the Uncle would not un-naturally disinherit his Lawful Heir, being of his own blood, of that right, which the same Uncle never had, but came to the Heir by another mean, unless he would leave him greater advancement some other way; For nemo praesumitur, etc. And in this Case the Law will admit no proof, against that which the Law presumeth: And so it is likewise of all other Collateral Warranties; no man is presumed to do any thing against nature. 〈◊〉 conveyance ●ot within the ●●at, of Wills. 2 If a man make a voluntary Conveyance of his Land to the use of any of his collateral blood, who is not his heir apparent, Co. l. 6. 77. a. 3. in Sr. Geo-cusrons Case. that is not within the Act of 32 H. 8. of Wills; For it cannot be intended, that he will disinherit his heir on purpose to defeat the King of his Ward (seeing every one hopes to live to see his heir attain his full age) much less to defraud him of his Primer seisin. Vide Dier 307. 71. 80 The Law esteemeth and judgeth of all things according to their nature and quality. Co. Inst. p. 1. 91. b. 4. 1 Where the tenant holds of his Lord by fealty and a pound of pepper, or a pound of Cummin, or a certain number of Capons, Certain services not doubled for relie●. or hens or a pair of Gloves, or certain bushels of wheat, or the like; the Lord shall have so much for relief as he receives in rent, viz. a pound of pepper, a pound of Cummin, or the like: But if the tenant holdeth of the Lord by doing certain work-days in Harvest, or to attend at Christmas, or the like, he shall not double the same; for of corporal service or labour, or work of the tenant, no relief is due. It being only payable, where the tenant holdeth by such yearly rents or profits, which may be paid or delivered, etc. Co. ib. 92 a. 2. Litt. §. 128, & 129. 2 When the tenant holdeth by such yearly rents or profits, Not to be distrained for presently. as may be presently delivered, the relief is due to be paid to the Lord immediately upon the tenant's death; and upon nonpayment thereof the Lord may distrain for it presently: Howbeit if the tenant holds of his Lord by a Rose, or by a bushel of Roses, to be paid at the Feast of St. John Baptist, if such a tenant die in winter, the Lord shall forbear to distrain for the Relief, until the season of Roses; for Lex spectat naturae ordinem, Lex non cogit ad impossibilia. And therefore it is observed by my Lord Cook, that Littleton puts a diversity between Corn and Roses; for Corn will last, and therefore the tenant must deliver the Corn presently before the time of growth, and so of saffron, etc. but Roses and other flowers that are fructus fugaces cannot be kept, and therefore are not to be delivered, until the time of growing; neither is the tenant driven by law artificially to preserve Roses; for the Law in these cases respected nature, and the course of the year, etc. Co. ib. 121. b. 4 & Co. l. 4. 36. b. 4. in Tyrringhams' case. & Pl. Co. 168. Hill & Granges Case. 3 Prescription (although never so ancient) cannot make any thing appendent or appurtenant, Things properly appendent and appurtenant. unless the thing appendent or appurtenant agree in quality and nature with the thing whereunto it is so appendent or appurtenant; as a thing corporeal cannot properly be appendent to a thing corporeal, nor a thing in-corporeal to a thing incorporeal; but things incorporeal which lie in grant, as Advowsons', Villains, Commons, and the like may be appendent to things corporeal, as to a Manor, house, or lands: so also may things corporeal be appendent to things incorporeal, as laud's to an Office: but yet these also aught to agree in nature and quality: for Common of Turbary or Estovers cannot be appendent or appurtenant to Land, but to an house to be spent therein; nor a Léet which is temporal to a Church or Chappel, which is Ecclesiastical: Neither can a Noble man, Esquire, etc. claim a seat in a Church by prescription, as appendent or belonging to land, but to an house; for that such a seat belongeth to the house, in respect of the Inhabitancy thereof; and therefore if the house be part of a Manor, yet in that case he may claim the seat, as appendent to the house for the reason aforesaid. Co. ibid. 129. a. 4. 4 A man cannot be naturalised either with limitation for life, Naturalisation. or entail, or upon condition; for that is against the absoluteness, purity, and indelebility of natural Allegiance. Co. ib. 130. a. 4 5 Corporations aggregate of many are not capable of the Protections of Profecturae or moraturae; Corporation because the Corporation itself is invisible, and resteth only in consideration of law. Ca ib. 144. b. 4 6 Littleton saith (§ 219) that the Grantée of a rend charge hath election to bring a writ of annuity, Rent-charge and so changing the person only to make it personal, or else to distrain upon the land, and so to make it real; but this is to be understood with some limitation; for of a rent granted for owelty of partition, a writ of Annuity doth not lie, because it is of the nature of the land descended: Also of such a rent as may be granted without deed, a writ of Annuity doth not lie, although it be granted by deed, etc. 7 If there be two joint-tenants, Co. ib. 192. b. 3. Litt. §. 302. and the one lets his moiety to another for life. ●oynt-tenants In this Case, the jointure is severed so, that if the joint-tenant which still retains the frank-rent of his moiety, have issue and die, the issue shall have that moiety by descent; because a franktenant cannot by nature of jointure be annexed to a bar● reversion, etc. Divine Service & frank-almoigne. 8 Where the Common or Statute Law giveth remedy in foro seculari, Co. Inst. p. 1. 96. b. Litt. §. 137. (whether the matter be temporal or spiritual) the Connusance of that Cause belongs to the King's temporal Courts only, unless the jurisdiction of the Ecclesiastical Court be saved, etc. as if an Abbot or Prior hold of his Lord by Divine Service certain, and that Service is not performed, the Lord hath his remedy in foro seculari, because the Service being certain, proof thereof may be made in a temporal Court: It is otherwise of tenure in frank-almoigne; for that Service being spiritual and uncertain, must be de●●ned and recovered in foro Ecclesiastico, in an Ecclesiastical Court, unto which Court the Connusance of that cause doth properly belong, etc. Tenants in common for Rend arrear. 9 If two tenants in common of Lands in fee make a gift in tail, Co. ibid. 197. Litt. §. 314. or a lease for life, reserving a yearly rent, and a pound of pepper, and an hawk, and an horse, and they are seized of that service; and afterwards all the said service being arrear, they distrain for it, and the tenant makes rescous; In this Case, as to the rent and pound of pepper they 〈◊〉 have two several Assizes, because the two tenants in common hold the reversion (unto which that service is incident) by several titles: but as to the hawk and horse, albeit they be tenants in common, etc. they shall join in the Assize; for one of them above by himself cannot make his plaint in Assize for the moiety of an hawk or of an horse; because the Law will never suffer any man to demand any thing against the order of nature, or reason, as it appeareth by Littleton § 129. Lex enim spectat naturae ordinem, etc. Conditional ●eoffments ●or obligations. 10 If A. enfeoff B. of Black ac●e, Co. ib. 208. b. 4 upon condition that if C. enfeoff B. of White acre, A. shall re-enter; In this Case, C. hath time during his life to make the feoffment, if B. doth ●o● hasten it by request, and so likewise of all Obligation: Howbeit in some Cases, although the condition be collateral, as aforesaid, and is to be performed to the Obligée, and no time limited, etc. yet in respect of the nature of the thing, the Obligor shall not have time during his life to perform it: As if the condition of an Obligation be, to grant an Annuity or yearly rent to the Obligée during his life, payable yearly at the Feast of Easter, this Annuity or yearly rent must be granted before Easter, or else the Obligée shall not have it at that Feast during his life, & sic de similibus: And so it was resolved by the judges of the Common Pleas, in Andrews case: for which see Dier. 14. Eliz. 311. ●he like. 11 If a feoffment or bond be made upon condition, Co. ib. 210. a. 4 that the Feoffor or Obligor shall pay a certain sum of money to the feoffée or obligée at such a day, but no place limited for the payment thereof; In this case, the Feoffor or Obligor ought to seek out the feoffée or obligée to make payment thereof accordingly, if he be to be found within England, etc. for in case of an Obligation the Law was always clear, and in case of a feoffment, although it hath been sometimes controverted, yet at this day that doubt is settled, it having been oftentimes resolved, that seeing the money to be paid is a sum in gross and collateral to the title of the land; the feoffor must tender the money to the person of the feoffée; and it is not sufficient for him to to tender it upon the land: otherwise it is of a rent, that issueth out of the land: Howbeit, if the condition of a bond or feoffment be to deliver twenty Quarters of wheat, or twenty loads of timber, or the like, the Obligor or Feoffor is not bound to carry the same about, and to seek the Feoffée or Obligée; but the Feoffor or Obligor before the day must go to the Feoffée or Obligée, and know where he will appoint to receive it, and there it must be delivered. And so note a diversity between money and things ponderous, or of great weight: Likewise if the Condition of a Bond or Feoffment be to make a Feoffment, there it is sufficient for him to tender it upon the Land, because the State must pass by livery, etc. Co. ibid. 285. b. 3. 12 Every man shall plead such pleas as are proper for him, Pleas of a disseisor. and apt for his defence to be pleaded: As a disseisor that hath nothing in the land may plead a release of Actions personal, because damages are to be recovered against him, and therefore for his defence he may plead it. But a release of Actions real he cannot plead, because he hath no Estate in the land. And none shall plead a release of Actions real in an Assize, but the tenant of the land. Et sic de caeteris. Co. ibid. 338. a. 3. 13 A particular Estate of things that lie in grant cannot commence without deed, Things that lie in grant. and consequently that Estate cannot be surrendered without deed; but albeit a particular Estate be made of Lands by deed, yet may it be surrendered without deed, in respect of the thing demised; because the particular Estate might have been made without deed: And so on the other side, if one be tenant by the Courtesy, or tenant in Dower of an Advowson, Rent, or other thing that lies in grant, albeit there the Estate began without deed, yet in respect of the nature and quality of the thing that lies in grant, it cannot be surrendered without deed: And so if a Lease for life be made of Lands, the remainder for life, albeit the remainder for life began without deed, yet because Remainders and Reversions, though they be of lands, are things that be in grant, they cannot be surrendered without deed, etc. Co. ibid. 144. a. 3. 14 A Rent cannot be granted out of a piscary, a Common, No rent o●● of things incorporeal. an Advowson, or such like incorporeal Inhabitants, but out of lands or tenements, whereunto the Grantée may have recourse to distrain, or which may be put in view to the Recognitors of an Assize. And although it be out of Lands or tenements, yet it must be out of an Estate, that passeth by the Conveyance, and not out of a right, as if the Disseisée release to the Disseisor of Land, reserving a rent, the reservation is void, & sic de similibus. Co. l. 4. 43. b. 4. in Bibithes' Case. 15 John Goffe., the brother and heir of R. Goffe., No accessory before the 〈◊〉 in manslaughter. brings an Appeal of murder of the said R. Goffe. against Bibithe, as principal, and against Hoell David, as accessary before, and against David & Thomas, as accessary after: The principal pleads not guilty, and by nisi prius in the County of Manmouth he was found guilty of manslaughter and not guilty of murder: and in this Case it was resolved per Popham Chief justice & totam Curiam in the King's Bench, that Hoell David was discharged: because there could not be any accessary before the fact in Case of manslaughter: for manslaughter ought to Ensue upon a sudden debate of effray, because, if it be premeditate, it is murder. 16 A Feme sole deviseth land to A. and his heirs; A femes will revoked by taking Bar●● if A. survive him, Co. lib. 4. 16. b. 2. in Fierce & Hembling Case. they intermarry, the Feme revokes, and often saith (during the Coverture) that A. shall not have it, and dies, whereupon the heir of the Feme enters: And in this Case it was resolved, that the making of a Will is but the inception of it, and that it taketh not any effect until the death of the Devisor; for Omne testamentum morte consummatum est, & voluntas est ambulatoria usque extremum vitae exitum: And therefore it would be against the nature of a will to be so absolute, that the party which made it being of sane and perfect memory, might not have power to countermand it; and then this taking of Baron being the Femes proper act, shall be accounted a countermand in Law, of the will; and thereupon the heir of the Feme recovered the Land, etc. Payment to a terme●, no seisin of rent. 17 A man deviseth a rent for life out of the Manor of Dale, Co. lib. 6. 57 a. 4. in Bredimans' Case. and deviseth the Manor for years, the termor enters, and pays the Rent: after the Term ended, the Devisée brings an Assize against the Tetretenant: And in this Case it was resolved per totam Curiam, that the payment of the rent by the termor was not seisin to bind the Terretenant, after the determination of the Term, in respect of the weakness and meanness of the interest of the tenant for years, who at the common Law could not prejudice nor draw in question the estate of the franktenement, etc. Common ratione commorantiae not good. 18 In Trespass, the defendant justifies, Co. lib. 6. 60. a. 3. in Gatewards' Case. that all Inhabitants in any ancient Message within the Town of Dale have used to have Common in the place, etc. in Solo ratione commorantiae, And it was adjudged per totam Curiam, that this Custom was against Law for divers reasons, amongst which this was one, that such a claim of a Common is against the nature and quality of a Common; for every Common may he suspended or extinguished; but such a Common as that shall be so incident to the person, that no certain person shall be able to extinguish it: for so soon as he which releaseth, etc. removes, the new Inhabitant shall have it again, 71. 3. Allegiance not local. 19 In calvin's Case, the plea of the Defendants, that confined the ligeance of the Plaintiff Calvin to the Kingdom of Scotland only, Co. l. 7. 9 b. 2. Calvin's case. (Infra ligeantiam Regis Regni sui Scotiae, & extra ligeantiam Regis Regni sui Angliae) and so did make one local ligeance for the natural subjects of England, and another local ligeance for the natural subjects of Scotland, was adjudged utterly unsufficient; because ligeance being a quality of the mind, that follows the subject whithersoever he goeth, it is against the nature thereof to be local, or confined within any one particular Kingdom or Country; And therefore it is truly said, Qui abjurat regnum, amittit regnum, sed non regem; amittit patriam, sed non patrem patriae; for notwithstanding the abjuration, he oweth the King his ligeance, and still remaineth within the King's protection; because the King, if he please, may pardon him and restore him to his Country again, etc. ●eisin of rent ●aversable. 20 There is a diversity, Co. lib. 9 33. a. 3. in Backnals' Case. when the Lord in his avowry varies from the truth of the quality of the services, by colour of seisin and possession, which he hath got of his tenant, and when he varies from the truth of the quantity of the services, by reason of seisin, which he hath got of more than he ought to have of the same nature; for where the Lord avows, because the tenant holds of him certain land by fealty, rent, and suit of Court, and alleges seisin of all, and for the rend arrear, etc. whereas the true tenure was by fealty and rent only: In this case, the seisin of the suit is not material, because it is of another quality and nature, and the tenancy originally was not charged with any service of such a quality as suit of Court: And therefore in such case the tenure is traversable. But where the rent is 2 s. per annum, if the Lord hath happened quiet and voluntary seisin of more rent, than he ought to have, as of 3 s. etc. (without any cohertion of distress) there, because the tenancy is charged with service of such nature and quality, and for that it is not to be presumed, that the tenant would willingly pay more rend, than he ought, the seisin is traversable, and not the tenure, etc. Co. Inst. p. 1. 117. a. 2. 21 If a man be Lessée of a Villain, for life, for years, or at will, Lessee, Villain and the Villain purchase lands in fee, if the Lessée entereth into the Lands, he shall hold the Lands as a Perquisite to him and his heirs for ever; for the Law respected the quality and not the quantity of his Estate, etc. 22 A tenant holdeth of his Lord certain Lands in soc●age, Relief. to pay yearly a pair of guilt Spurs, ●o. ib. 90. b. 4. or five shillings in money a● the Feast of Easter: In this Case the rent is uncertain, and the tenant may pay which of them he will at the said Feast, and likewise the tenant may pay which of them he will for relief; but if he pay it not when he ought, then may the Lord distrain for which of them he will: Howbeit if the tenure be to attend on his Lord at the Feast of Christmas, or to pay ten shillings, there the relief must be ten shillings, because it is against the nature of the other to be doubled. Co. ib. 207. a. 2 23 If an Obligation of 100 l. be made for the payment of 50 l. at a day, and at the day the Obligor tender it, Payment of money or wheat. Diversity. yet in an Action of Debt upon the Obligation, if the Defendant plead the tender and refusal, he must also plead, that he is yet ready to pay the money, and tender the same in Court: But if a man be bound in 200 quarters of wheat for the delivery of 100 quarters, and the Obligor tender at the day the 100 quarters, etc. he shall not (in such case) plea● uncore priest, because although it be parcel of the Condition, yet they being bona peritura, if will be a charge for the Obligor to keep them; and therefore (in such case) he is not bound to say, he is always ready to pay the same 100 quarters, etc. 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 priest, 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, etc. or for the performance of an Arbitrement, or the doing of any Act, etc. 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 seized of land devisable by the custom, lets it for years, Rend reserv●● a chattel. rendering rend, and deviseth the rent to a stranger, and dies, and the stranger is seized 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 administered. Dier. 30. b. 206 28. H. 8. The Plaintiff saith, that they have Assets in Essex, and thereupon the Defendants demurred; and judgement 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 jury 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 waist, or entereth 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 seems 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 rend 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 Manor cum pertinentiis, the Heir shall thereby have the Advowson appendent: 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 moiety to the one for life, and the other moiety 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 enlarge and increase. 30 There being three 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 fee, the tenant for life dies, and the eldest son enters into the whole, and then the second brother and the alienée bring a joint 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 entitled 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 join. deprivation. 31 The Precedent of Magdalen College 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 Assize, ●●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 been 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 Assize of Nuisance. 〈◊〉 in gross 〈◊〉 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 & assigns, 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 than a third part of all his land to descend, after the Feme dies, And in this Case it was adjudged, that the Queen 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 gross. 81 In persons, the Law looketh at the excellency of some, and giveth them singular Privileges, and preeminences above others, as to the King, the Queen his Wife, noblemans, and Peers of the Realm; 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 Frankmarriage, and the Woman dieth without Issue, Frankmarriage. the man in the King's Case shall not hold it for his life; because the Woman was the cause of the gift; but it is otherwise in the Case of a common person. Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die, An alien. albeit he were seized of Lands in Fee, or Fee tail; yet shall not his Wife be endowed: but if the King take an Alien borne, and die, she shall be endowed by the Law of the Crown, And yet Edmund brother to E. 1. married the Queen of Navarre, Rot. Parl. 26 E. 1. Rot. 1. and died; And it was resolved by all the judges, that she should be endowed of the third part of all the Lands, whereof her husband was seized in fee. Co. ib. 90. a. 4. & F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson, and the Church becomes void, Bishop Advowson. and the Bishop dies, neither the Successor nor the Executors shall present, but the King, because it is but a Chose in action. Co. ib. & 388. a. 2. & F. N. B. 33. p. q. r. 4 A man holds the manor of D. whereunto an Advowson is appendent, of the King by Knights-service, the Church becomes void, Advowson, Wardship, E●ecutors. and then the Tenant dies, his heir under age, in this Case, the King shall present, and not the Executors of the Tenant; And this is by reason of a prerogative, that belongeth to the King to provide for the Church being void, for, where the tenure by Knight-service is of a Common Person, the Executors of the Tenant shall present, etc. Co. ib. 108. b. 2. 5 Tenure by rendering yearly to the Lord, a Bow, a Sword, Petty Serjeancie, Soccage. a Dagger, a Gauntlet, or such other small things belonging to war, in Case of a Common Person, is nothing else, but plain soccage, ab effectu; because it had such effects and incidents as belong to soccage; and neither ward nor marriage, etc. But in the King's Case, in respect of the dignity of the King's Person, it obtaineth the Name of Petty Serjeancie, etc. Co. ib. 118. a. 2. & Litt, § 177, 178. 6 If a Villain purchase Land and alien it before the Lord enter, Villain purchas Land, 〈◊〉 goods seis●● the Lord is barred for ever; For, before the Lord enters, he hath neither jus jure nec jus ad rem, but only a possibility of an Estate, which Estate he must gain by his entry; And therefore if the Villain doth by way of prevention alien, before the Lord doth enter, the Lord is for ever barred of the possibility, which he had to enjoy the Land: Si autem servus vendiderit feodum, Fleta, l. 3. c. 13 Britt. fol. 98. a. 19 E. 2. Dow. 171. quod sibi & haeredibus perquisiverit, antequam Dominus seisinam inde caeperit, valet donatio, & Dominus sibi ipsi imputer, quod tantum expectavit; saith Fleta: Howbeit if the King's Villain purchaseth Land, and alieneth, before the King (upon an Office found for him) doth enter, yet the King after Office found shall have the Land, Quia nullum tempus occurrit Regi; And yet after Office found, the King shall not have the mean profits; because the title commenceth by the seizure. Litt. §. 178. It is otherwise of Goods in the King's Case; For if the King's Villain acquire any Goods or Chattels, the property of them is in the King before any seizure or Office: And it is well said of an Ancient Author, Myrrh. cap. 3. Britt. fol. 88 Al Roy quant al droit de la Corone, on á franch Estate ne poet nul temps accurre, and another speaking in the Person of the King, saith, Nul temps nest limit quant á mes droits, etc. ●●narty. 7 Where a Church is presentative, Co. ibid. 119. b. 4. & 344 a. 4. it is full by admission and institution against any common Person, but against the King it is not full before Induction. ●●een pur●●s sue. 8 By the Common Law the Wife of the King of England is an exempt Person from the King, Co. ibid. 132. a. 4. & Co. l. 4. 23. b. 2. Clerk & Pennyfathers' Case. and is capable of Lands and tenements of the gift of the King, as no other Feme covert is, and may sue and he sued without the King; for the wisdom of the Common Law would not have the King (whose continual care and study is for the Public, & circa ardua Regni) to be troubled and disquited for such private, and petty causes: So as the wife of the King of England is of ability and capacity to grant and to take, to sue and to be sued, as a Feme sole by the Common Law; Also the Queen of England hath many other prerogatives, viz. She shall find no pledges, for such is her dignity as she shall not be amerced: ●●ince. Neither she nor the King's Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King: In a Quare Impedit brought by her, some say, that plenarty is no plea, no more then in the Case of the King; plenarty. Bai●●●e, Hundred. If any Bailiff of the Queens bring an Action concerning the Hundred, he shall say, In contemptum Domini Regis & Regi●ae: The Queen shall pay no toll, etc. ●enancie part aliened, di●●●ain in all. 9 If the Queen's Tenant alien a certain part of his tenancy to one, Co. ibid. 133. b. 1. and another part to another, the Queen may distrain in any one part for the whole, as the King may do: but other Lords shall distrain but for the rate; Ane therefore where the Queen so distraineth, there lieth a writ de onerando per rata portione: ●rit of right ●●rected. Also the writ of right shall not be directed to the Queen no more than to the King, but to her Bailif: otherwise it is when any other is Lord. side counter●leaded. 10 In case of Aid prayer of the Queen, Co. ibidem. it is Domina Regina inconsulta, and the cause of the Aid prayer shall not be counterpleaded no more than in the King's Case: And see where the aid shall be granted of the King and Queen: and where, of the Queen only, and she of the King: 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Aid del Roy, 66. 10 E. 3. 18. 26 H. 6. Aid le Roy 24. ●●otect Marle●●. distress. 11 A protection shall be allowed against the Queen, Co. ibidem. but not against the King, neither shall the Queen be sued by petition, but by a praecipe: The Queen is not bound by the Statute of Marlebridge for driving a distress into another County. ●eath, treason ●●wag. 12 If any do compass the death of the Queen, Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason, as in the Case of the King: No man may marry the Queen Dowager without the King's licence. ●●shops Court 〈◊〉 Rec. certif. 13 A Bishop being an Ecclesiastical judge, Co. ibib. 134. b. 2. and sometimes a Lord of Parliament, by reason of the Barony annexed to his Bishopric the Law giveth much Honour and Reverence unto him; And therefore none but the King's Courts of Record (as the Court of Common Pleas, the King's Bench, justices of Goal-delivery, and the like) can write to the Bishop to certify Bastardy, Mulierty, Loyalty of Matrimony, and the like Ecclesiastical matter; For it is a Rule in Law, that none but the King can write to the Bishop to certify; And therefore no Inferior Court, inferior ●ourt. as London, Norwich, York, or and other Incorporation can write to the Bishop: but in those Cases the Plea must be removed into the Court of Common Pleas, and that Court must write to the Bishop, ●●are Impe●● Wales. and then remand the Record again: and this is the reason, why a Quare Impedit did lie of a Church in Wales in the County next adjoining, for that the Lordships Marchers could not write to the Bishop: Neither shall Conusance be granted in a Quare Impedit, because the Inferior Court cannot write to the Bishop: And herewith agreeth Antiquity: Bract. l. 3. 106. Fleta l. 5. c. 24. Britton 248. b. Nullus alius prae●er Regem potest Episcopo demandare Inquisitionem faciendam: And another speaking of Loyalty of Marriage, Nec alius quàm Rex super hoc demandaret Episcopo, quod inde inquire●et: Episcopus alterius mandatum quàm Regis non debet obtemperare: And herewith also agreeth Britton. Co. ibid. 137. b. 3. & F. N. B. 79. a. If a Villain remain in the Ancient Demean of the King a year and a day, without claim or seizure of the Lord, Villain. Ancient Demesne no 〈◊〉 the Lord cannot have a writ of Nativo habendo, or seize him, so long as he remains and continues there: And the reason of this was in respect of the service he did to the King in Ploughing and tillage of the Demeanes, and other labours of Husbandry for the King's benefit: Glanv. l. 5. c. 5. Fleta l. a. c. 44. Britton fol. 79. Myrrh. cap. 2. And herewith agree old books, which say, that his Immunity was sometimes granted by common consent to the King for his profit, and for the help and ease of his Villains: So likewise, Priest, Chappel. if a Villain be a Priest of the King's Chapel, the Lord cannot seize him in the presence of the King, for the King's presence is a privilege and protection for him, 27 Ass. Pl. 49. Co. ibidem. 15 If a Villain be professed a Monk, or a Wife a Nun, Villain. the Lord cannot seize them, etc. Co. ibid. 156. a. 3. 16 If a Peer of the Realm or Lord of Parliament be demandant or Plaintiff, Tenant or Defendant, Lord Knight Jury. there must a Knight be returned of his jury, or else the Array may be quashed: but if he be returned, albeit he appear not, yet the jury may be taken of the residue: And if others be joined with the Lord of Parliament, yet if there be no Knight retured the Array shall be quashed against all: So also in the like case in Attaint, there ought to be a Knight returned of the jury: Note, That this present Parliament, which commenced Anno 16. Can. Bishops were by Act of Parliament excluded the house of Lords: Bishops. and therefore Quere, whether at this day this Law holds in their Case or no; Howbeit it seems still to hold, because they still retain their Baronies, in respect whereof they enjoyed Places and had votes in that house, and (doubtless) shall still retain divers other Privileges, which of right belong to Temporal Peers, that have Baronies: Tamen quaere. Co. ibid. 156. l. 6. b. 3. 17 At the Common Law, Challenge peremptory. any subject under the degree of a Peer of the Realm upon an Indictment or Appeal of Treason or Felony against him, might (in favorem vitae) challenge peremptorily, viz. 35. or any other number under three juries: But a Lord of Parliament that being a Peer of the Realm, is to be tried by his Peers, shall challenge none of them; because they are not sworn as other jurors be, Peer, 〈◊〉 Challenge. but find the party guilty or not guilty upon their faith or allegiance to the King, and they are judges of the fact, and every of them doth separately give his judgement, beginning at the lowest, etc. How the Common Law hath been altered concerning peremptory Challenges, see Co. ubi in margin. Co. ibidem. 18 A Peer of the Realm or a Lord of Parliament, as a Baron, Peer no ●●ror. Viscount, Earl, marquis, and Duke (propter honoris respectum, in respect of honour and Nobility) are not to be sworn on juries, and if neither party will challenge him, he may challenge himself; For, by magna Carta it is provided, Quòd nec super eam ibimus, Lords, Commo●. nec super eam mittemus, nisi per legale judicium parium suorum, aut per legem terrae: Now the Common Law hath divided all the subjects, into Lords of Parliament, and into the Commons of the Realm; Trial per pares. The Peers of the Realm are divided into Barons, Viscounts, Earls, Marquesses, and Dukes; The Commons are divided into Knights, Esquires, Gentlemen, Citizens, Yeomen, and Burgesses; and in judgement of Law any of the said degrees of Nobility are Peers to another, as if an Earl, marquis, or Duke be to be tried for treason or felony, a Baron or any other degree of Nobility is his Peer: In like manner a Knight, Esquire, etc. shall be tried per pares; and that is by any of the Commons, as Gentlemen, Citizens, Yeomen, or Burgesses; So as when any of the Commons is to have a trial, either at the King's suit, or between party and party, a Peer of the Realm shall not be impanesse● in any Case. Words of con●●son: bind in ●he King's case, ●nd of a wil 19 If a man maketh a Feoffment in Fee, ad faciendum, or faciendum, Co. ibid. 204. b. 4. or ea intention, or ad effectum, or ad propositum, that the Feoffée shall do or not do such an Act, none of these words make the State in the Land conditional; For in judgement of Law they are no words of Condition, and so was it resolved, Hill. 18 E. in Co. Banco: But this is to be understood in the Case of a common person; for in the King's case, these or the like words do create a Condition: and so it is also in the Case of the will of a Common person, etc. Condition not destroyed in ●●e Kings case. 20 A Common person being grantée of part of a reversion of Land, Co. ibid. 21●. a. 3. shall not take advantage of a Condition by force of the Statute of 32 H. 8. cap. 34. As if a lease be made of three acres reserving a Rent upon Condition, and the reversion is granted of two acres, the Rent shall be apportioned by the Act of the parties, but the Condition is destroyed: for that it is entire, and against Common right: Howbeit in the King's Case the Condition in that Case is not destroyed, but still remains in the King, notwithstanding such alienation of part, etc. The Kings E●●ate no de●ree. 21 In a Writ of entry sur disseisin an estate made to the King makes no degree; Co. ibid. 239. a. 2. and therefore if a dissessor by deed enrolled convey the Land to the King, and the King by his charter granteth it over, the disseisée cannot have a writ of Entry in ●e per & cui, but in le post, etc. ●ying seized, 〈◊〉 descent. 22 If there be Tenant for life, the remainder in tail, Cb. ibidem 4. the remainder in Fee, and Tenant in tail disseiseth the Tenant for life, and dieth seized, this shall take away the entry of the Tenant for life: But if the King's Tenant for life be disseised, and the disseisor die seized, this descent shall not take away the entry of the Lessée for life; because the disseisor could gain no Estate against the King, and then he could not die seized of any more, than a bare Estate of frée-hold during the life of the Lessée; And Littleton saith, Litt. § 387. that a descent of an Estate for term of another man's life shall not take away an entry, etc. ●escent. ●●ant. 23 It is said; if the King die seized of Lands; Co. ibid. 246. a 2. and the Land descend to his Successor, this shall bind the disseisée, though he were an Infant at the time of the descent; because the privilege of an Infant in that Case holds not against the King. ●vowson. ●nder. Ma. 24 In a writ of right of Advowson brought by the King, Co. ibid. 294. b. 2. & F. N. B. 31. d. the Tenant shall not render the Di. Mark because nullum tempus occurrit Regi, and therefore the King shall allege, that he or his Progenitor was seized without showing any time; It is otherwise in the Case of a common person; for then the Tenant shall tender a Di. Mark against him, that brings the writ, to inquire of the seisin alleged in the Court, etc. ●at Attorn. 25 A grant of a Seignory, Rent, Reversion, Remainder, Co. ibid. 309 b 2. & F. N. B. 60. 1 etc. to the King or by the King to another, is good without attornment, and this is by force of his prerogative. ●nt fine At● in distrain 26 In case of a deed, nothing passeth before attornment; Co. ibid. 314. b. 2. in Case of a fine, the thing granted passeth as to the State, but not to distrain, etc. without attornment: but in the King's Case, the thing granted doth pass both in Estate and in Privity to distrain etc. without attornment unless it be of Lands or tenements, that are parcel of the Duchy of Lancaster, and lie out of the County Palatine. Co. ibid. 318. a. 3. 27 Tenant for life shall not be compelled to attorne in a quid juris clamat upon a grant of a reversion by fine, Quid juris clamat in Chi● Attornment. holden of the King in Chief without licence; And the reason hereof is not, because the Tenant of life must be charged by the fine (for his Estate was more ancient, than the fine levied) but because the Court will not suffer a prejudice to the King, and the King may seize the reversion and Rent, and to the Tenant shall be attendant to another, etc. Co. ibid. 33 5. a. 3. 28 If there be Tenant in tail, Descent. Co● Recovery, 〈◊〉 Bar. the reversion or remainder in the King, In that Case the Tenant in tail cannot dis-continue the Estate tail; but Tenant in tail, the reversion in the King, might have barred the Estate tail by a Common Recovery, until the Statute of 33 H. 8. cap. 20. which restraineth such a Tenant in tail; Howbeit that Common Recovery neither barred nor dis-continued the King's reversion, etc. Co. ibid. 344. b. 4. & Co. l. 6. 49. b. 4. in Boswels Case. 29 At the Common Law before the Statute of W. 2. cap. 5. A writ of righ● of Advow●● if a stranger had presented his Clerk, and he had been admitted and instituted to a Church, whereof any subject had been lawful Patron, the Patron had no other remedy to recover his Advowson, but by a writ of right of Advowson, wherein nevertheless the incumbent was not to be removed: And so it was also at the Common Law, if an usurpation had been had upon an Infant, or Feme Covert, having an Advowson by descent, or upon Tenant for life, etc. the Infant, Feme Covert, and he in the reversion were driven to their writ of right of Advowson; For at the Common Law if the Church were once full, Plenarty. the incumbent could not be removed, and plenarty generally was a good plea in a Quare Impedit, or assize of Darreine presentment: Howbeit at the Common Law, if any had usurped upon the King; and his presentée had been admitted; instituted, and inducted (for without induction the Church had not been full against the King) the King might have removed him by Quare impedit, Quare Imp●dit. and so have been restored to his presentation; for, therein he hath a prerogative, quod nullum tempus occurrit Regi, etc. Co. ibid. b. 2. F. N: B. 34. c 30 If the King do present to a Church, Revoke p●sentation. and his Clerk is admitted and justified; yet before induction the King may repeal and revoke his presentations, etc. Co. ibid. b. 3. 31 A tortuous Act or entry, or a false, Entry. Feigned. Recovery. a feigned recovery against Tenant for life or in tail, the reversion or remainder in Fee to the King, shall never divest any Estate, remainder, or reversion out of the King: It is otherwise in the Case of a common person. Co. l. 4. 23. b. 2. In Clerk and Penni-fathers' Case. 32 If the Queen be only Tenant for life of a Copyhold Manor, Copyhold. Manor. and a Copyhold of in-heritance escheats unto her, the Queen may grant it, to whom the pleaseth, and that shall bind the King his heirs and successors for ever; for she was Domina pro tempore; And the custom of the Manor also shall bind the King, etc. Co. l. 4. 55. a. 4. in Sadl. Case. 33 When the King's title and the title of a subject concur in commencement, Titles concur. the King's title shall be perferred (as Weston holds, Pl. Co. 263. b.) Co. l. 4. 58. a. 3. in the Saddler's Case. 34 When the King's Tenant seized of Land in Fee dies without heir, Escheat. the Fee and franktenement is presently (after his death and before office thereof found) cast upon the King; for in such Case it ought to be in some person or other, and if any person enter into the Land, and take any of the profits, an information of Intrusion by the King may be perferted against him before office or seizure; because the King immediately after the Tenant's death is in actual possession, and hath not only a franktenement in Law, as a Common person in such Case hath: And as to that, this diversity is taken, that when the King's Tenant dies in possession without heir, so as in that Case possessio est vacua, and in none, there the Law adjudgeth the King (unto whom no laches can be attributed) in actual possession presently; but when another is in seisin and possession at the time of the escheat, so that Possessio plena est & non vacua, In that Case the King shall not be adjudged in possession, The King's Tenant. ●lien. villain. Mortmain. until that seisin and possession be removed; as if the King's Tenant be disseised and die without heir, or if an Alien nee, or the King's Villain, or the Alienee in Mortmain be disseised and die without heir, and all that found by Office, in those Cases the King shall not be in possession, until the possession and seisin of the terretenant be removed: But if Land descend to the King after the death of his Father, or of any other Collateral Ancestor, the King shall be immediately in actual possession before entry or seizure: So likewise if the King make a Lease for life, or a gift in tail, and the Lessée dies, or the donée dies without Issue; In that Case, the possession shall be actually in the King without any entry or seizure, and with this accords 9 H. 7. 2. 6. where it is expressly said, that when none is in possession, it shall be adjudged in the King according to his title: and so the doubt, which Stamf. makes Prerogative, 53. b. is well resolved. Condition, ●emand. 35 If the King make a Lease for years rendering Rend with Condition to be void upon nonpayment of the Rent, Co. l. 4. 73. a. in Boroughs Case. the King shall take advantage of that Condition without any demand, it being a thing undecent and against the dignity of the King to wait upon his subject, or to demand any thing of him: it is otherwise, if the King grant over his reversion; For his grantée shall not take advantage of the Condition without demand of the rent: & this is by reason of a personal prerogative (in this Case) annexed to the person of the King, and not in respect of the nature and quality of the Rent; for, that remains the same, whether paid to the King or to a subject, upon the ground or elsewhere, etc. too Houses ●mised. 36 Two houses are let to one man by one demise, Co. l. 5. 55. b. 3. & 56. a. 1. Knight's Case. rendering for the one 4 l. per annum, and for the other 20 s. per annum, with proviso, that if the said Rend of 5 l. be arreare in part or in all, than the Lessor to re-enter. The Inheritance of these Houses afterwards escheats to the King, ●he fold, ●ent. ●eare. indition. who after grants the reversion of that, upon which 20 s. per an. is reserved to I. S. the Rent thereof is arreare; In this Case, the Patentée cannot enter for the Condition broken; because by the severance of any part of the reversion all the Condition (as to a Common person) is entirely destroyed: It is otherwise in the King's Case: for the Condition remains entirely in the King with the reversion of the other House, and that is in respect of his prerogative, etc. eggs grants ●ourably in●●ted. ●ein. ●en. ●vowson. 37 The Law makes a difference between the King's grants (who is always presumed to intent Ardua regni pro bono publico omnium, Co. ibid. 36. a Knights Case. & Co. l. 7. 14 a. in Englefeilds. etc. and the grants of subjects, who have leisure to attend their private affairs; for, the grants of a subject are always interpreted most strongly against him, that makes them: but the King's grants are always taken with a favourable and beneficial interpretation, so that no prejudice may happen to him by construction or implication upon his grant, otherwise then was truly intended by it: And therefore if the King grant Land to I. S. and his heirs, when in truth I. S. is the King's Villain, this shall not enfranchise the Villain by Implication: There is the same Law of an alien nee: 17 E. 3. 39 An Advowson of a prebendary holden of the King was aliened to an Abbot and his successors, and the King grants to the Abbot and his successors, that they shall hold the Prebnedary in proper use; nevertheless he shall seize the Advowson for alienation in Mortmain, and shall destroy the Appropriation: for he shall not be outed of his right to the Advowson by Implication: Debt Release. And in 2 R. 3. 4. 21 E. 4. 46. & 34 H. 6. If two be undebted to the King, & the King release to one of them, this shall not discharge the other, in 6 H. 7. 15. & 11 H 7. 10. If the King release all demands, right, Restr. to al●● of Inheritance shall not be there by released: 21 H. 7. 7. The King grants Lands in Fee, upon condition that the grantée shall not alien, this is good: Howbeit in all these cases the Law is otherwise in the case of a common person, etc. Co. ibid. a. 4. Knight's Case. 38 In many cases the King that claims by a subject, Rent-secke distrain. shall be in better case (in respect of the dignity and prerogative incident by the Law to the Royal person of the King) than the subject himself, by whom he claims; As if the King had a rent seek by attainder of treason, or by grant, etc. he shall distrain for it not only in the land charged, but likewise in all his other lands, and yet the subject, by whom the King claims, shall not distrain for it at all: If a subject hath a recognizance or obligation, Recognisan● Oblige. and afterwards he is outlawed or attainted: in this case, the King shall seize all the land of the Counsor, or obligor, whereas he himself could have but a moiety: if a subject demise land rendering rend, and a reentry upon default of payment thereof: in this case the subject shall not take advantage of such a condition without demand of the rent, etc. but if the inheritance of that land come to the King by Act of Parl. attainder, grant, Seize all. Condition. Demand. Priority. etc. he shall take advantage of the breach of such a condition without demand of the rent, F. N. B. 142. etc. if the King purchase a Seignory, of which land was holden by posterity, the King shall be in better condition than the subject, from whom the claims, and in that case shall have the priority: and so shall his grantée also, etc. as is holden in 24 E. 3. 65. Fitz. tit. guard 27, 47. Co. l. 5. 91. b. 3. in Semaynes Case. 39 In all cases when the King is party, Sheriff 〈◊〉 open doored. the Sheriff (if no door be not open) may (after notice given of the cause of his coming, & request made to have the door opened) break open the house of the party, either to take him or to make other execution of the King's process, if he cannot otherwise enter into it, but so it is not, in the case of a subject, etc. So for felony or suspicion of felony, the King's officer may break the house to take the fellow; because in every felony the King hath an Interest, and where the King hath Interest, Felony. the writ is Non omittas propter aliquam libertatem; and therefore the liberty or privilege of an house shall not hold out against the King: & besides it concerns the Common Wealth that felons be apprehended, and in that respect also the King hath a special Interest, being the head of that body, etc. Co. l. 5. 104. a. in Baker's case. 40 T. 42 E. in B. R. in Ejectione firmae, it was resolved, Demur. that if the Plaintiff show in evidence any matter in writing, Record, or Sentence in the Ecclesiastical Court, whereupon Question in Law may rise, and the defendant offers to demur, etc. the Plaintiff cannot refuse to join in demurrer, unless he will waive his evidence; so if the Plaintiff produce witnesses, and the defendant admit their testimony to be true, he may demur, etc. So also may the Parliament demur, mutatis mutandis: Howbeit upon evidence in an information for the King his Council shall not be compelled to demur: But in that Case, the Court may direct the jury to find the special matter, and thereupon they shall adjudge the Law, as appears in 34 H. 8. Dier 53. And this is by reason of the King's prerogative, who may also waive the demurrer, and take issue at his pleasure, Nota bene. Co. lib. 5. 106. a. 4. & 108. b. 1. in Sir Henry Constables case. 41 Originally the Common Law gave unto the King all such things, as were In nullius bonis, as Wreck, viz. Goods, Things 〈◊〉 liu● bo●i. quae naufragio ad terram appelluntur: Flotsan, viz. When the Ship is drowned or otherwise perished, and the Goods float upon the Sea: Wreck. Jetsam as when the Ship is in danger to be drowned, and to dis-burden the Ship, the Goods are cast into the Sea, and after notwithstanding the Ship, perisheth: Estrayers. Lagan (vel potius Figan) as when the Goods so cast out are so ponderous, that they sink, and the Mariners to the end they might find them again fasten a piece of Cork or a Boy to them, that will not sink, and therefore this seems to be called Ligan à Ligando: It gave also to the King Estrays (which Bracton calls Animalia vagantia, and others Animalia vacantia, quia Domino vacari debent: Also treasure trove, and the like; Because by the Rule of the Common Law, when none could claim a property in any Goods, the King was to have them by his prerogative: And therefore Bracton saith, Sunt alia quaedam, quae in nullius bonis esse dicuntur, sicut Wreccum maris, Bract. l. 3. c. 3. Grossus Piscis, sicut Sturgio & Balena: & aliae res, quae Dominum non habent, sicut animalia vagantia, & quae sunt Domini Regis propter privilegium. Mare Clausum. And note, that the King shall have Flotsan, Jetsan, and Lagan by his prerogative, as well as wreck; Albeit they be, in or upon the Sea: for the Sea is of the King's Ligeance, and parcel of this Crown of England, as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrees well with the opinion of Bracton, that wreck, etc. are things in nullius bonis, and come into the hands of the subject Originally by Kings grant, his words are these; Britt. c. 33. Et ausi purchas lou per franchise grantee par nous de choses trowes en nulluy biens, si come de wrecke de near, & beasts estrayantes, of Coneys, Leures, & pessons, & Pheasants, & Pertris, & autres Bestes sauvages, par franchise de aver wreck de meer trouve en son soil, & waif & estray trouve en son fee, garrennes en ses demesnes terres, etc. Lady Peer. ●rest. 42 A Countess by descent or marriage cannot be arrested for debt or trespass, 1 In respect of her dignity: 2 The Law presumes, Co. l. 6. 52. b. 3. in the Case of Isabel Countess of Rutland. that she hath sufficient in Lands and Tenements, so hereby to be distrained; for albeit in respect of her sex she cannot sit in Parliament, yet she is a Peer and shall be tried by her Peers, as appears of 20 H. 6. cap. 9 which was nothing else but a declaration of the Common Law: So it is also of a Baron, that is a Peer of Parliament. 11 H. 4. 15. In homine repligiando against the Lady Spencer, it appears, that the said Lady was a Peer of the Realm. ●pon account Lady not ex●ined. 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrearages of account was brought by the Lady of Aburgavenie against another, the Defendant pleads Rien luy doit, and is ready to make his Law, and prays by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined, which Act is general, viz. that examination shall be made, which is always intended upon oath: And there Cokein, who gave the Rule, said, La Dame d'Aburgavenie est un Peer del Realm, & ne sera bien fait de luy faire venir d'estre examine: Car par mesme la reason nous Dames fair venir chescun Duke on Countee d'Angliterre. Rolfe Sergeant, purquoy now? Sr. Le dit Statute est general, & est fait pur chescun home haut & base; A que Cokein dit, le ley voit over diversity pur enter Signior ou Dame, etc. & altar Common Person: By which book it may be observed, that a Lady, which is but the wife of a Baron is a Peer of the Realm, and is in equipage (as to Nobility and privileges incident to their dignities) with Dukes, ●duo Juror. Earls, etc. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralph Everden Knight brings a writ to the Chancery and also a writ of the Privy seal to the justices, rehearsing, that he was a Baron, and commanding them to discharge him of his oath in juratis accessis & recognitionibus quibuscunque; because the Barons ought not to be sworn upon Inquests and Recognitions against their wills; and by good advice he was clearly discharged thereof. See more examples to the same purpose, ubi in marg. Co. l. 7. 25. b. 1. in calvin's Case 45 Foedera percutere, to make Leagues, Peace & war● Denization. doth only and wholly pertain to the King, and not to the subject; so also doth Bellum indicere: Likewise the King only without the subject may make not only letters of safe conduct, but letters patents of Denization, to whom and how many he please, and may enable them at his pleasure to sue any of his subjects in any action whatsoever, real or personal, which the King could not do without the subject, if the subject had any Interest given unto him by the Law in any thing concerning an Alien borne: Nay, the Law is more precise herein, then in a number of other Cases, of higher Nature; For the King cannot grant to any other to make of strangers born, Denizens, it is by the Law itself so inseparably and individually annexed to his Royal Person (as the Book is in 20 H. 7. 8.) because the Law esteemeth it a point of high prerogative, Jus majestatis, & inter insignia summae potestatis, to make Aliens borne, subjects of the Realm, and capable of the Lands and Inheritances of England, in such sort as any natural borne subject is: And therefore by the Statute of the 27 H. 8. cap. 24. many of the most ancient prerogatives, and Royal Flowers of the Crown, as Authority to pardon Treason, Murder, Manslaughter, and Felony, Power to make justices in Eyre, justices of Assize, justices of Peace, and Gaol-delivery, and the like, having been severed and divided from the Crown were again remitted to the same: But authority to make Letters of Denization, was never mentioned therein to be resumed; because there was never any that claimed the same by any pretext whatsoever, being a matter of so high a point of prerogative, etc. Co. l. 7. 14. a. 4. in Englefeilds' Case. 46 A. Seized of the Manor of Dale in Fee, A Coven●●, Power of Revocation. Covenants with B. to stand seized to the use of himself for life, the remainder to B. in tail, the remainder to B. in Fee, with proviso, that upon delivery or tender of a ring to B. by himself or another, as the Estates shall be void: A. is outlawed for treason, the King seizeth the Land, and lets a Lease to D. for 40 years; Treason. Seizure. and after the King gives a Commission under the Great Seal to E. to tender the ring to B. according to the Condition: In this Case, if a Common Person had enjoined the King's Estate, by making such a Lease of 40 years, Demise by th● King's power Revocation remains. he had utterly deprived himself of revoking the Estate, and of taking advantage of the Condition; because his Act shall be most interpreted against himself: But (in that Case) the King's demise shall not enure (to his special prejudice) to two intents, viz. To a demise of Land, and also to a suspension of his Condition, whereby he might defeat the Estate for life, and the other Estates, that depend upon it; or to a demise in respect of his present Estate pur altar vie, and also to a Confirmation in respect of his Condition (whereby otherwise he might defeat all) as shall be also in Case of a Common Person: For the King's grant shall always be taken according to his express intention comprehended in his grant, and shall not extend to any other thing by Construction or Implication, when it appears not by his grant, that his Intent extended unto it: and therefore in such Cases, the King ought to be truly informed, and he ought to make a special and particular grant, which by express words may enure to all such several intents, as are desired, etc. Co. l. 7. 16. a. 4. in the Case of Swasn. 47 All White Swans not marked, Swans wild. which have gained their liberty: and swim in an open and common River, may be seized to the use of the King by his prerogative; Because Volatilium (quae sunt ferae naturae) alia sunt regalia, alia Communia: Now a Swan is a Royal bird, and therefore if the property thereof be not known, it belongs to the King by his prerogative: And there was always an ancient Officer of the King, called Magister deductus Cignorum, who continues even to this day: Nevertheless, the subject may also have property in white Swans not marked, Swans not marked in private waters. as some may have Swans not marked in their private waters, the property whereof belongs unto them, and not unto the King: And albeit they escape out of their private waters, yet they may take them, and convey them home again: And with this agrees Bracton, lib. 2. cap. 1. fol. 9 Si autem animalia fera fuerint mansueta, & ex consuetudine eunt & redeunt, volant & revolant, (ut sunt Cervi, Cigni, Pavones, Columbae, & hujusmodi) eo usque nostra intelligantur, quamdiu habuerint animum revertendi. But if they once gain their natural liberty, and do swim in open and common Rivers, the King's Officer may seize them in the open and common River for the King; because one white Swan without such pursuit (as is aforesaid) cannot be known from another. And when the property of a Swan cannot be known, (it being of its nature a Royal Fowl) it belongs to the King, etc. Duke of Corneal. 48 In the Prince's Case (Co. l. 8. fol. 28. a.) It was resolved, Co. lib. 8. 28. a. 3. in the Prince's Case. that the Act of 11 E. 3. by force whereof the King's eldest son was made Duke of Cornwall, was such an Act. whereof the judges and all the Realm ought to take Conusance; because it concerned the King, and his firstborn son and heir apparent to the Crown for the time being, perpetuis futuris temporibus; Conusance of an Act of Parliament. for every subject hath interest in the King, and none of his subjects who are under his Laws, are divided from him, being their Head and Sovereign; So that the King's affairs concern the whole Kingdom, and especially when the Prince, the first begotten son of the King, and his Heir apparent to the Crown is therein concerned: Corruscat enim Princeps radiis Regis Patris sui, & censetur una persona cum ipso Rege, Treason against the Prince. as it is declared in the Act of Parliament of 38 H. 6. And therefore if any shall intent the death of the Prince, and shall make declaration thereof by some overt Act, that is, Crimen laesae Majestatis, high Treason, by the ancient Common Laws of England, and is so declared by the Statute of 25 E. 3. etc. Prince. 49 1 H. 5. fol. 7. If the Prince, as Prince of Wales, Co. ib. b. 2. hath judgement to recover, and afterwards the Crown descends to him, he shall, as King, sue execution. Queen. Conusance. 50 The Act of the 35 H. 8. Co. ibidem. which concerns the Capacity of the Queen was such an Act, whereof the judges ought to take Conusance, because it concerned the King's Wife, as it was resolved in the Lord Barkleys' Case, Pl. Co. 231. ●dges. ●rciaments 51 There are some persons which shall not be amerced, Co. l. 8. 61. b. 4. in Beechers Case. and therefore (by consequence) shall find no pledges, as the King, and also the Queen, who (as to that) participates of the King's Prerogative, F. N. B. 31. f. 47. c. 101. a. 18 E. 3. 2. Br. amerciament 53. ●endment ●f a writ. 52 An Original writ by the Common Law was not amendable in the case of a common person, for which see 13 E. 3. Tit. Amendment 63. Co. l. 8. 156. b. 2. in Blackamoors Case. which was before any Statute made concerning Amendment, etc. And 16 E. 3. tit. Variance 59 and 29 E. 3. Amendment 68 But in the King's Case in a Quare Impedit, where the Quare Impedit was praesentere for praesentare, and after exception taken to it, and before answer, by the advice of the Chancellor, (out of which Court that writ issued) and of the justices of the King's Bench, the writ was amended in the Chancery, and the defendant was made to answer thereunto by award, Vide 4 H. 6. 16. & 40. Ass. Pl. 26. ●e King's ●arter shall 〈◊〉 interpreted 〈◊〉 fulfil the eggs intent. 53 When the King's Charter may be taken to two several intents, Co. l. 8. 167 a. 4. in the Earl of Cumberlands Case. and both intents are of effect and good, in many Cases it shall be taken to such an intent, as shall be most beneficial for the King; but if it may be taken to one intent of effect and good, and to another intent void and of no effect; it shall then be taken and construed to such an intent, as that the Kings Grant may take effect, and that (in judgement of law) shall be understood to stand with the King's intent; for it was not his intent to make a void Grant: And with this agrees the Book in 21 E. 4. 44. In the Abbot of Walthams' Case, and the resolution in the Earl of Cumberlands Case in the 8 Report. 167. where the Case was, that E. 2. granted the Castle of Skipton, to Robert de Clifford in tail, and H. 6. grants to Thomas Lord Clifford (Cousin and Heir of the body of Robert the reversion of the said Castle, necnon Castrum, etc. Here, the King's intent appeared to be, that Thomas Lord Clifford should have all his Estate in the Castle: And therefore whether it be taken to be a grant of the Reversion, in case the former grant in tail was good, or of the possession, in case that former grant was void, it is not material, in regard it appears clearly by the express words of the Charter, that the King intended, he should have it in possession, either the one way or the other: So if the King grant Totum illud Manerium, sive firmam de D. or totam illam Rectoriam sive Advocationem de D. In this Case also, whether the King hath a Manor, or else a Farm and no Manor, or a Rectory Impropriate, or else an Advowson, and no Rectory, that which the King hath, passeth; for the effect of the Grant is, that be it Manor or Farm, Rectory, Impropriate, or Advowson, that which the King in truth hath, passeth by the Grant. Co. l. 9 38. b. 3. in Hensloes' Case. 54 Of ancient time, before the Statute of 31 H. 3. cap. 11. Goods of an Intestate. when a man died intestate, and did make no disposition of his goods, nor committed his trust to any in that behalf: In that Case the King (who as Parens Patriae, hath the supreme care to provide for all his Subjects: to the end, every one may enjoy that, which he ought to have) did use by his Ministers to seize the goods of the Intestate; to the intent, that they might be preserved and bestowed for the burial of the dead, for the payment of his debts, for the advancement of his wife and issues if he had any, and if not, then of those of his blood: And this appears in Rotulis Clausis de 7 H. 3. M. 16. Bona Intestatorum capi solebant in manus Regis, Ordinaries. etc. And afterwards this care and trust was committed to Ordinaries; for there could be found none more fit to have such care & charge of the Intestates transitory goods after his death, than the Ordinary, who all his life had (or at least ought to have had) the care and charge of his immortal soul, as it is said in Pl. Co. 280. in Greisbrooks' Case; And therefore the Ordinary was in that respect appointed in loco parentis, And this appears also by the construction of John Stratford, Arch Bishop of Canterbury, at a Synod in London, Anno Domini 1380. where he confessed, that the Administration of the goods of an Intestate was granted to the Ordinaries, Consensu Regis & Magnatum Regni, etc. Co. l. 9 49. a. 1 in the Earl of Shrewsbury's Case. 55 If the King grant the Office of Stewardship of the Manors of D. and S. to an Earl, without power to make Deputies: Stewardship. nevertheless, in respect of the meanness of the Office in a base Court, and of the dignity of his Person, being an Earl, it is implied in law for conveniency, that he may in that Case make a Deputy, for whom he ought to answer, so that no prejudice may happen to the King: And his Deputy shall execute Officium laboris, as to hold a Court Baron, and to enter Pleas, Surrenders, etc. And need requires in Cases of difficulty, or which concern the King's profit, the Earl shall execute Officium fiduciae, Bracton lib. 1. cap. 8. scientiae, & ingenii. For, Comites dicuntur à comitando, quia comitantur Regem. Comites à comitatu, sive à societate, nomen sumpserant, qui etiam dici possunt consuls: Reges enim tales sibi associant ad consuetudinem: And that was the greatest title of Honour, that was from the Conquest, until the 11 of E. 3. when the Black Prince was created Duke of Cornwall, and those which of ancient time were created Earls, were of the blood royal; And even unto this day, the King in all his appellations styles them. Per nomen charissimi consangninei nostri, for which causes the Law giveth unto them high and great privileges: And therefore their bodies shall not be arrested for debt, trespass, etc. because the Law intends, that they assist the King with their Counsel pro bono publico, and keep the Realm in safety by their prowess and valour: And for the same reason it is, that they shall not be put upon juries, albeit that be for the service of the County: Also if issue be taken, whether the Plaintiff be an Earl, or no, it shall not be tried by the Country, but the King's writ: Also the Defendant shall not have a day of grace against a Lord of the Parliament; because he is conceived to attend the public: And all these and many other do appear in our Books: 48 E. 3. 30. Regist. 179. F. N. B. 247. 48. Ass. Pl. c. 23. Ass. Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that, as when such an Office descends to an infant, or to a man de non sanae memoriae, they of necessity ought to exercise it by Deputy: so likewise an Earl for the necessity of his attendence (which the Law intends) upon the King and the Commonwealth, that Stewardship of a base Court shall be executed by Deputy: Also if a Parkership be granted to an Earl, without words to make a Deputy, yet he may keep it by his servants: And if a Duke have licence to hunt in a Park, the Law will allow him attendance suitable to his condition, etc. Marshalsea. Seizure. Office. Scire facias. 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsea, Co. l. 9 95. b. 3. in Sir George Reynels' Case. by divers voluntary escapes; and it was resolved, that the King might seize that Office, without suing out a Scire facias: And in that Case it was observed, 1 That the King in some cases shall be in possession by seizure without Office, as in 21 H. 7. and Stamf. in case of temporalties of a Bishop, and of Prior's aliens; because the certainty of them appears in the Exchequer. 2 He shall sometimes be in possession by Office without seizure, as of Lands, Tenements, Offices, etc. which are local, o● whereof continual profit may be taken, as upon condition, attainder, wardship, etc. (Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Saddlers, Rep. 5.) And the Office albeit false, yet cannot be avoided without traverse; for he cannot traverse the King's title in the information, Traverse. Advowson. etc. 20 E. 4. 10. 3 The King shall be in possession by Office and seizure of an Advowson, and thereof he is not in possession until presentment, admission, and institution; And if the King, upon refusal, bring a Quare Impedit, the owner may traverse the King's title in that Action without traverse of the Office; because it is not a manual, but an incorporal hereditament; also the right to present is casual, and not continual. 4 The King shall be in possession without office, where his tenant died without heir, 9 H. 7. 2. 5 When distinct matters amount to an office, in that case there ought to be a Scire facias, before the King can seize. 6 When a common person is put to his Action: In that Case the King upon office is put to his Scire facias, etc. ●o tenure re●erved. Capite. 57 When the King grants any land without reservation of any tenure, or absque aliquo inde reddendo, or the like, Co. l. 9 123. b. 3. in Anthony Lowes Case. the Land by operation of Law shall be holden of the King in capite by knights-service, according to the rate and proportion of Land holden by knights-service, viz. more or less, according to the quantity of the Land, etc. 58 When any thing is due to the King, Co. l. 9 132. a. in Holis Case. he ought to have the full and complete effect of the thing so due unto him; As if there be Grandfather, Father, and Son of Lands, whereof some are holden of the King in capite by Knight-service in capite, and the residue of other Lords, etc. And the Grandfather conveys all the Lands holden of other Lords, and part of the capite Lands to the Father for life; the remainder to the Son in tail, the remainder to the right heirs of the Grandfather; And the residue of the capite Lands to four younger Sons (successively) for life, the remainder to the right Heirs of the Grandfather: the Grandfather dies, the Father tenders his livery, and dies before livery sued, or office found, the Son being of full age and all this is found by office, and the Son continues the livery, the four younger Sons being still in life. In this Case, albeit by the death of the father before livery sued, the King hath lost the privilege of having primer seisin after the death of the Grandfather (as it was adjudged in Northcots case, and in Hales case, in the 8 Rep. &c.) for here the Son shall not sue livery, nor pay primer seisin, because they were due by the Father, after the death of the Grandfather: and the Son (living the Father) is not within the Statutes of 32 & 34 H. 8. for the Lands conveyed unto him; Nevertheless, in the same Case, the King shall have primer seisin for the Lands conveyed to the younger Sons, because they are within the three Cases, in which wardship and primer seisin are given unto the King, by the said Acts, viz. Advancement of his wife, preferment of his children, and payment of his debts: And the reason hereof is, because when the said Acts give unto the King primer seisin, it is intended of an actual and effectual primer seisin, and not of one which is only Mathematical and Imaginary: for (as before is said) the King ought always to have a full and complete effect of the thing, which is due unto him. So also if the King hath title to present by lapse hâc vice, and he present, and his Clerk is admitted and instituted, but dies before induction: In this Case, the King shall present again; for he had not the full and complete effect of his presentation, as it was resolved by Sir James Dyer & rotam Curiam, in Gyles. his Case, 18 Eliz. in Co. Ba. Likewise if the King marry a daughter, Marriage again. which he hath inward, infra annos nubiles, and before the age of consent, the Baron dies, the King shall have the marriage of the Heir again; because the first marriage was not complete, as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred. And the King donor in tail before the Statute of West. 2. de donis, etc. was not barred by the alienation of the Donée, post prolem suscitatam, without Assets, albeit there were collateral warranty: Howbeit, in all these Cases a common person shall be barred, etc. Co. l. 10. 113. b 1. in Legates Case 59 When the King grants any thing upon a false insinuation, Grant upon false suggestions void. or suggestion such a grant of the Kings is void; for in that Case there is a diversity between the King & a common person: For a Subject, that may intent his private affairs, shall not in such Case avoid his Grant: but the King, who intends the Public good, shall avoid his Jure Regio as it was said in 21 E. 3. 47. in the Earl of Kent's Case: And this is an high and great Prerogative, which the King hath; that when he makes any Grant upon such false suggestions, those Grants are void in Law: So also when upon false insinuations and pretexts he makes any grant, as of a Monopoly, Monopolies etc. which in truth is in the prejudice of the King and Commonwealth, the King (Jure Regio) shall avoid such Grants, and such Letters Patents shall be by judgement of Law canceled: And therefore in Legates Case, in the 10 Rep. it is wittily said of Perpetuities, Monopolies, and Patents of concealment, Concealment that they were born under an unfortunate Constellation; because as soon as they were drawn in question, Perpetuities. judgement was always given against them, and never for them; they having always two inseparable qualilies incident unto them, viz. to be troublesome and fruitless. ●ent 60 If rend be payable at the Feast of Easter, Co. l. 10. 127. b. 4. in Cluns' Case. and the tenant pay the rent in the morning, and the Lessor die before noon, this payment is voluntary, and good satisfaction against the Heir, but not against the King, 44 E. 3. 3. ●he King not ●●rred by Acts ●f Parliament 61 When the King hath any Prerogative, Estate, Right, Title, Co. l. 10. 74. b. 4. in Magd. Coll. Case. or Interest, by the general words of an Act of Parliament, he shall not be barred of them, as in case of reasonable aid, the King hath an Estate and Interest in it, and therefore the general words of the Statute of West. 1. cap. 35. shall not extend unto it; Also the King hath a Prerogative, quod nullum tempus occurrit Regi, and therefore the general Acts of Limitations, or of Plenarty shall not extend unto him: F. N. B. 7. b. & 32. c. Likewise the King by his Prerogative may sue in what Court be will, and of that Prerogative he is not barred by the general purview of the Statute of Magna Charta, cap. 11. Et sic de similibus. ●arks. licence. 62 None can make a Park, Chase, or Warren, Co. l. 11. 87. b. 1. in the Case of Monopolies without the King's licence, because that were quodam modo to appropriate such things as are ferae naturae, & in nullius bonis, to himself, and to restrain them of their natural liberty, which he cannot do without the King's licence, etc. possessors of ●●e King's ●oods, and ●●eir execute, etc. acceptable. 63 The Earl of Devonshire, being Master of the Ordnance, Co. l. 11. 90. a. in the Earl of Devonshire's Case obtained a Privy Seal to convert to his own use, etc. All the unserviceable Ordnance expressed in a Book, in regard the King was informed, that the Masters did use to claim and enjoy them, as fees and avails belonging to their Office; whereupon he sold them, made his executors, and died: And in this Case it was resolved, that albeit the Earl claimed them to his own use, yet in regard the grant was made upon a false suggestion, he was in his life-time accountable to the King for them; because in the King's Case the Law makes a privity; for if any take the King's goods, or enter into his Lands by wrong, the King may charge him in account (33 H. 6. 2. 4 H. 7. 6. 7 H. 7. 10. 15 H. 7. 17. 1 Eliz. 149. Breretons case, and 40 Ass. Pl. 75) If goods be devised to the King, in whose hands soever they come, the possessor shall be charged in account to the King, and the King shall not be put to his Action of Trespass; for then by the death of the party the King should be without remedy: but the King by his Prerogative may have an Action of account against the executors of the party, as appears in Littleton, fol. 28. And the King is not constrained to charge the Defendant, as Bailiff or Receiver, as a common person ought; but the King may allege in his Information generally, that he ad compotum Domino Regi reddend. tempore mortis suae tenebatur in such sums of money due to the King, etc. as appears by many precedents in the Exchequer, and in the King's Bench; And therefore if the Earl was in his life-time bound to render an account unto the King, his executors shall do it after his decease, etc. If one by Letters Patents, or by virtue of his Office, hath power to assess Fines upon grants or admittances made to Copiholders within such a Manor of the Kings, and he assesseth little fines for the King, and underhand takes great sums, or other rewards of the Copiholders to his own use, in deceit and prejudice of the King: In this case he shall be charged to the King in account for all; for in truth all was due to the King; and if he die, his executors in the King's Case shall be charged; for it is holden in 39 Ass. Pl. 18. that the Officers and Ministers of the King may advantage him, but can never do any thing to his dis-advantage. Co. l. 11. 90. b. 4. in the Earl of Devonshire's Case. 64 M. 37. & 38 Eliz. None can ●●pose of the King's trea●●●● without h●● licence. An Information was preferred in the Exchequer against Carey and Dodington, executors of Sir Walter Mildmay, Knight, Chancellor of that Court, to render an account of 1525 l. of the Queen's treasure by him converted to his own use, etc. the Defendants plead, that Sir Walter Mildmay non recepit, etc. ad computandum, nec die mortis tenebatur Reginae in Compoto, etc. And the special Verdict was, that the Treasurer and under-treasurer of the Exchequer made a warrant to four Tellors or two, to pay to Sir Walter Mildmay 100 l. per annum, for his diet, and 40 l. per annum for his Attendance in the Vacation (by reason that by the annexing of the Court of first-fruits and Augmentation the Chancellor was constrained to attend more than other Chancellors had formerly done) And in 2 Eliz. the Queen directs a Privy Seal to the Treasurer, Chamberlains, and under-treasurer of the Exehequer, commanding them or some of them to pay to such as should be employed by her, etc. for their labours and expenses, at their discretions, according to their merits, in as large manner, as any Treasurer, Chamberlains, or under-treasurer had done before: And in this Case it was resolved, that no Officer nor all of them together can ex officio dispose of the King's treasure without the Kings warrant, although it be for the honour and profit of the King; because the King's treasure is the ligament of peace, and the sinews of war, and of so high a nature, that the imbezeling of treasure trove (although not found in the King's Coffers) was treason; And treasure and other valuable chattels are so necessary and incident to the Crown, that, in the King's Case, they shall go with the Crown to the successor, and not to executors, as in case of common persons, as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the King's treasure; for it cannot be done by Parol, or by the privy Signet; but aught to be done under the Great Seal, or Privy Seal: It was also further resolved in this Case, that albeit Sir Walter had thus received the Queen's treasure to his own use; yet inasmuch as he received it without lawful warrant (he knowing that it was the Queen's treasure) the Law makes privity in the Queen's Case; and therefore she might charge him as an Accountant: And so it was also adjudged in the Exchequer in Jurdens Case, P. 31. Eliz. Rot. 150. Neither yet is it of necessity, that the King's money or goods should come into the hands of the Testator; for if he were only a mean or Instrument, whereby the King was put to loss or damage, he shall be charged with so much as he hath so endamaged the King, and shall be compelled at the King's Suit reddere rationem thereof, which is in nature of an Account, for which there is a notable precedent in M. 30. E. 3. Rot. 6. Porter's Case, which see in Co. l. 11. 92. b. in the Earl of Devonshire's Case. And therefore it was also resolved in Sir Walter Mildmayes Case, that the Queen might either charge the executors of Sir Walter, or those that made such unlawful warrant, at her election: And if they were dead, their executors, etc. for in as much as they were in their life-time chargeable by the Law; in that Case, if they die before judgement against them, without question their executors shall be charged; because where the Testator is by the Law chargeable to satisfy the King for loss or damage done unto him, his death shall not dispense therewith but that his Executors shall be also chargeable to the King, etc. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead, Protesta●● that the Tenements are not holden of the King, albeit the writ supposeth as much, but he ought to take it by protestation, and to plead other matter in bar, if he have any matter to plead. ●ender Di. ●ark. 66 In a writ of Right, F. N. B. 5. m. the Demandant ought to count of his own seisin, or the seisin of his Ancestor, etc. yet the seisin is not traversable; but the tenant may tender a Di. mark, to inquire of that seisin, etc. and if it be found with the tenant, that the Ancestor was not seized, the Demandant shall be barred: Howbeit, if the King be party Demandant, the Tenant shall not tender a Demy Mark to inquire of the seisin; but he ought to plead in bar; and there the tenant shall not impar● without the assent of the King's servants. The King may ●●cuse appearance. 67 The King by a writ de warrantia diei may command the justices to excuse the Defendant of appearing at the day, F. N. B. 17. b. whereunto he was adjourned to appear in proper person; And whether the Cause alleged in the writ be true or false, it is not material, when the King certifies, that he is in his service; for it seems by the words of the writ, that the King by his Prerogative may warrant that default for a day: And so also it seems that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned, make default, that before judgement upon that default the King may command such a writ to the justices rehearsing, that the tenant was in his service, etc. and commanding them that his default should not turn to his prejudice: And it stands with reason, that the King may do it; because every one is bound to serve the King in his affairs, etc. omnipresence 〈◊〉 his Courts. 68 If false judgement be given for the King in any Action or Suit, F. N. B. 21. b. & 107. q. & Finch 81. the party grieved shall have a writ of Error, and assign Errors without suing any Scire facias against the King ad audiend. errores, because the King is always present in Court, and that is the cause, that the form of Entry in all Suits for the King, is Edvardus Herbert Miles Attornatus Domini Regis generalis, qui pro domino Rege sequitur, venit hic in Curia, etc. And doth not say, Dominus Rex per Edvardum Herbert Attornatum suum, etc. And therefore it is also, that the King cannot be Nonsuit; that all Acts of Parliaments that concern him, are general, and the Court must take notice of them, without pleading them; for he is in all, and all have their part in him, etc. ●ake Attor●ys. 69 It seems, that before the Statutes, which ordain, F. N. B. 25. c. e. ● & 26. a. that a man may make Attorneys, etc. the justices neither would nor could suffer the Plaintiff or Defendant, Demandant or tenant, to make Attorneys in any Action or Court whatsoever; yet the King by his Prerogative (even before those Statutes) might grant to a man power to make Attorneys, and by his Writs or Letters might command the judges to admit and receive them, etc. and that without any cause showed in the writ, etc. ●●e King can●●t be Joint●ant. 70 In the Register, there is the form of a writ, F. N. B. 32. g. wherein a common person is joined with the King in a Quare Impedit, which runs thus, Rex vice comiti, etc. praecipe R. de C. quod justè, etc. permittat nos & P. de T. praesentare, etc. But Fitz. saith in his N. B. that the common opinion in his time was, that the King should have the whole presentment sole, and should have a sole Action, etc. although he seems to hold the contrary himself, Ideò quaere. ●sent again. 71 If the King recover by a Quare Impedit, F. N. B. 34. f. and after ratify the Estate of the Incumbent, yet at the next avoidance the King shall present, because the Recovery and judgement for him were not executed. ●●●sent by 〈◊〉. 72 In a Free Chapel of the Kings, F. N. B. 34. ●. where the Dean ought to give the prebend's, if he make not collation within six months unto them, then shall the King present unto them by Laps, as Ordinary. F. N. B. 34. k. 73 If the Bishop make collation and die before induction, Not inducted or instalment, and the King seize the temporalties, he shall have that presentment, because the Church is not full against the King, until the Parson or Prebend be inducted or installed. F. N. B. 35. a. 74 If the King's tenant hath title to present to an Advowson, Advowson, Ward, Present. which is void, and the six month's pass, and after the King's tenant dies before the Bishop presents by laps, and leaves his heir within age, and in ward to the King; In this case, the Bishop shall not present by laps, but the King shall have the presentment by reason of the ward, etc. F. N. B. 35. p. 75 In a Quare Impedit for the King, Not stopped. albeit the Defendant hath a writ to the Bishop against the King, yet the King may sue a new Quare Impedit against the party of the same avoidance, and make another title. F. N. B. 37. f. 76 The King may sue a Ne admittas, after the six months past, Ne admittas. where he hath a Quare Impedit, or an Assize de Darrein presentment depending, because Nullum tempus occurrit Regi●; It is otherwise in the Case of a common person; because the Bishop may then present by laps, the title of presentment being devolved to him, etc. F. N. B. 38. e. 77 In a Quare Impedit between two strangers, The King's title. if the title appears to the Court for the King, they award a writ to the Bishop for the King accordingly. F. N. B. 60. i. 78 Upon grant of a Reversion, Wast. Attornment. (although it be by fine) the Grantée cannot bring an Action of waist against the tenant before Attornment; but if the King grant a Reversion by his Letters Patents, the Grantée may have an Action of waste before Attornment. F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing, Peregrination, Ne exe●s reg● absque liar 〈◊〉 Regis. or other Cause whatsoever pleased him, without the King's licence, and he was not to be punished for it: Howbeit, because every man is by Law bound to defend the King and his Realm; therefore the King at his pleasure may by his Writ (de securitate invenienda, quòd se non divertat ad partes exteras, sine licentia Regis) command, that he shall not go out of the Realm without his licence, etc. And if he doth it, he may be punished for dis-obeying the King's Command: And it seems, that this Commandment may be made by the Kings Writ under the Great Seal, Privy Seal, or Privy Signet: For in this Case the Subject is bound to take notice of every Seal the King hath, as well as of the Great Seal: F. N. B. ibid. c. The King may do the like by his Proclamation, in Case he cannot be found to have the Writ served upon him, which if he obey not, it is a contempt, for which he shall make fine to the King: Note, that by the Statute of 5 R. 2. cap. 2. it was ordained, that none should go out of the Realm without the King's licence, which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed: So that at this day it seems, that the Subject hath the same liberty that he had at the Common Law: Dier. 296. 19 yet by the words in the beginning of the writ, which are these; Rex A. de B salut. etc. Quia datum est nobis intelligi, quod tu versus partes exteras absque licentia nostra clàm destinas te divertere. It seems he cannot go out of the Realm unlicensed by the King, etc. As Dyer. observes 165. p. 6. Ideo quaere de hoc. Protection. 80 If after the King hath granted to one his protection, F. N. B. 92. b. c. any man takes his Goods, or enters into his Lands, etc. or beats his Servants, etc. the party grieved shall have a special writ directed to the Seriffe to inquire of them, and to certify it before the King, etc. And it seems, that the King shall make process against them by venire facias, as upon an Indictment, and that they shall make fine hereupon. Sea-banks S●wers. 81 The King ought of Right to have and defend his Realm as well against the br●akings in of the Sea, F. N. B. 133. a. as against enemies that it be not drowned or wasted, and to provide remedy for it: And also to provide that his subjects, have their passages throughout the Realm by Bridges and safe Ways; And therefore if the Sea-bankes be broken, or Sewers and Gutters be not scoured that the fresh waters may have their direct Course, the King may and aught to make a Commission to inquire thereof, etc. And to hear and determine those defaults: But now matters, that concern Sewers, are regulated by direct late Statute, viz. 23 H. 8. 5. & 13 El. 9 etc. Priority. Wardship. 82 If a Man hold of the King by Posteriority, F. N. B. 142. f. and of another man by priority, and after the King grants to the Queen the Seignory for term of life, and after the Tenant dies, his heir within age; In this Case, the Queen shall have the wardship of the body, having no regard to the Posteriority; Because the Reversion of the Seignory remains still in the King: It had been otherwise, if the King had granted it in remainder to another in Fee, for than it seems, they should not have had the priority, etc. Annuity. 83 If the King grant an Annuity to one for term of life or years, F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity, as to say, by the hands of the Sheriff of S. or by our Bailiff of the Manor of S. and then the Sheriff or Bailiff shall have allowance upon that Patent showing, if he pay it; And if there be not such words in the grant of the Annuity, than the grant is void; For he cannot sue to the King for it, and no person is bound to pay it unto him, if he be not named and expressed in the Patent, etc. side. ●●ayer. Procedendo. 84 If a Man pray in Aid of the King, F. N. B. 253. e. f. and the Aid is granted, then shall it be awarded, that he shall sue to the King in the Chancery; And the justices of the Common Pleas shall cease, until a Writ De procedendo in loquela come unto them, etc. And then they may proceed in the Plea, until it go on so fare, that judgement ought to be given, etc. For the Plaintiff: And then also the judges ought not to proceed to judgement, until another Writ De procedendo ad judicium be brought unto them; And if the King certify the justices by his writ, that the Lands are seized into the King's hands: then also shall they surcease until a writ De procedendo & loquela be sent into them, etc. And if it appear to the justices upon Record, that the Tenements are seized into the King's hands, or if it appear to the Court by the pleading and showing of the Parties, that the King hath an Interest in the Land, or shall lose Rend, etc. or services, than the Court ought to cease, until they shall receive a procedendo in loquela from the King, etc. F. N. B. 154. d. e. 85 If the King by his writ certify the justices, Justice's to surcease upon the King's Certificate. that the Lands are in his custody by reason of the nonage of some heir, taken by Inquisition, and returned into the Chancery, commanding them, that they shall not proceed, Rege Inconsulto. In that Case, it seems that the justices ought to cease for the present: albeit there be no such Office found nor returned: for they are bound to give credit to the King's certificate, albeit that it be not true, etc. And in Assize de Novel disseisin, if the King send his writ to the justices that the Defendant holds the Land put in view of the King's gift for term of life, by the King's Charter, commanding them not to proceed, Rege Inconsulto here, although the Tenant will not plead this, yet it seems that the justices ought to cease by that writ: So if the King rehearse in the writ, that the Tenant is in his service in war beyond Sea, or in Scotland, and that he holds by Charter of the Kings grant for term of life commanding, that they shall not proceed, Rege Inconsulto, but to continue the Assize, until a certain day; there also it seems, they shall surcease; Because the Tenant cannot plead it; for if the Escheator will say, that he seized the Land into the King's hand, in an Assize brought by any person, the Court shall surcease for that saying, and by force of the King's Certificate, etc. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriff's turn or at Leets, unless it be for some great cause: Men of Religion. And if they be distrained to come unto them, they may have a writ De exoneratione sectae, etc. out of the Chancery, to discharge themselves of such service, etc. F. N. B. 159. c. 87 If Land descend to Coperceners, Suit of Copeceners. for which only one suit ought to be done; In this Case, if the Land be holden of the King, than all the Coperceners ought to make a suit, as well after the partition as before, But if the Land be holden of another Lord, than the eldest Sister or her Feoffée shall only make the suit, etc. And if the Lord do distrain the other Coperceners for that suit, they shall have a writ De exoneratione sectae, etc. to discharge themselves of it, etc. Pl. Co. 76. b. in The Lord Willoughbies' Case. 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood (in the King's Case) Coronatoribus de Com. L. for the King's writs, in such Cases, The King's Writ. will admit a favourable construction, for the fulfilling of the King's full intent, etc. Finch 81. 89 For the Kings prerogate, see Finch 81. etc. and elsewhere throughout his whole Book, under the several heads, when there is any difference between this Case an that of a subject. Finch 83. 90 The King never dieth, Demise. Le Roy. but in Law it is said the demise of the King, and a gift unto the King without more, trencheth to his Successors. 91 The particular prerogatives due to the King by the Common Law may be (for that most part) referred to one of the eight heads hereafter following, notified in the outward margin by their several and respective letters, as followeth, 1 Divine perfection. A 2 Infiniteness. B 3 Majesty. C 4 Sovereignty & power. D 5 Perpetuity. F 6 Justice. G 7 Truth. H 8 Omniscience. I Idiot. 92 Because every subject is by Law in the protection of the King, Co. l. 4. 126. a. 2. in Beverleys' Case. who therefore is of right bound to defend his subjects persons and Estates; and for as much as an Idiot is not able to govern himself or order his Estate, The Law of England hath provided the King to be his Tutor to Govern and order both his person, and Estate; For the Statute of Praerogativa Regis (made in the 17 of E. 2. cap. 9) was nothing else, but a declaration of the Common Law, etc. Rend reserved. 93 It is a Maxim in Law, that the Rent must be reserved to him, Co. Inst. p. 1. 143. b. 4. from home the State of the Land moveth, and not to a stranger: but some do hold, that it is otherwise in the King's Case. Upon a joint purchase tenement in common. 94 If Lands be given to A. de B. Bishop of N. and to a secular man, Co. ibid. 190. a. 4. to have and to hold to them two and to their heirs; In this Case, they are joint-tenants; For each of them take the Lands in their natural capacity: But if Lands be given to the King and to a subject, to have and to hold to them and to their heirs, yet they are Tenants in Common and not joint-tenants; For the King is not seized in his natural capacity, but in his Royal and Politic capacity, in Jure Coronae, which (in respect of the Majesty of his King's Person) cannot stand in jointure with the seisin of a subject in his natural capacity: And therefore if there be two joytenants and the Crown descend to one of them, the jointure is thereby severed, and they are become Tenant in Common, etc. Grant in Mortmain. 95 It appeareth by Littleton §. 140. Co. ibid. 99 a. 3 (which my Lord Coke saith is a secret in Law) that in the King's licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmain; for the King shall not be intended to be mis-conusant of the Law, and when he licenseth expressly to alien to an Abbot, etc. (which is in Mortmain) he needs not make any non obstante of the Statutes of Mortmain; for it is apparent to be granted in Mortmain, and the King is the head of the Law, and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui, for the maintenance of his grant to be good according to the Law. Descent of ●etrage to Females. 96 When an Earldom or Barony descends to one Daughter or other heir Female, she shall solely enjoy both the Dignity and Lands, Co. ibid. 165. a. 3. but where it descends to more heirs Females than one, the Lands shall be divided as amongst other Coperceners: Howbeit, in that Case, the dignity cannot be divided, neither shall the Eldest have it, as to be a Countess, Baronesse, etc. But (in such case) the King, who is the Sovereign of Honour and Dignity may for the uncertainty confer it upon which of the Daughters he please; this is to be intended, when the Ancestor dies seized of Peerage in Fée-simple. ●ings in A●●n. 97 If the King grant his own recognizance, the suit shall be in the name of the grantée; but if he grant an obligation forfeited for outlawry, Dier 1. 7. P. 4 H. 8. the suit shall be in the King's name. ●e like. Fuit dit. 98 Bruerton, who was attained 28 H. 8. had certain obligations, Dier 30. b. 208 28 H. 8. which were forfeited to the King, and the King grants them to his Wife, without any words, that it should be lawful for the grantée to bring Actions thereupon, yet the Feme brings an Information in her own name for the said obligations; And upon demurrer thereupon it was adjudged, that the Action was well brought, because the King only may grant a thing in Action. Finch, as Ley French edition. Fol. 22. 99 The King may licence things prohibited by Statute, The King's sense. as to coin money, which is made Felony by the Statute, and before that; it was lawful for any one to do it, because it is but malum prohibitum, But malum in se, as to levy a Nuisance in the high way, the King cannot licence a man to do, but after it is done he may pardon it: Howbeit, if the Statute saith, that his licence shall be void, there the licence shall have a clause of non obstante, 2 H. 7. grants 73. viz. shall say, Notwithstanding any Statute to the contrary, otherwise it is not good, as the Statute of 23 H. 6. 8. ordains, that the Kings grant to be Sheriff of any County longer than a year shall be void, notwithstanding that his Patent shall have a Clause of Non obstante, yet with a Clause of Non obstante such Patent shall be good, Dier 52. 1. 33 H. 8. but not without that Clause: Howbeit neither without such a Clause nor with it can he dispense with a Statute before it be made; And therefore a licence to carry Bell-mettal out of the Realm, notwithstanding any Statute made or to be made, is not good, if a Statute be made after to prohibit it, for he cannot dispense with an Act of Parliament before it be made: Howbeit he may in things, wherein he hath an inheritance or interest, as to grant to own to be discharged of taxes and subsidies to be granted, this is good. 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King, Knight not bound by S●●. unless they concern the Commonwealth, or he or the thing they concern be specially named, as the Statute of West. 2. of entails binds the King, because it concerns the whole Com. Wealth; so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted, bindeth the King, because Indictments are specially named: But if by Statute one be attainted and his Lands forfeit, with a proviso that of such Lands as he was seized to the use of any other, Cesty que use should enter upon him, for it is not for the Common Wealth, neither yet is the King named therien. Co. l. 4. 35. b. 1. in Bozouns Case. 101 When the king by the Common Law cannot make a grant, Non obstante. there a non obstante of that Common Law will not against the reason of the Common Law make the grant good; but when the king may lawfully by the Common Law make a grant, and the Common Law only requires, that he be so instructed, that he may not be deceived, there a non obstante supplying it, stands with the reason of the Common Law, and shall make the grant of the good; And therefore if the King grant a protection in a Quare Impedit or an Assize with a non obstante of any Law to the contrary, such grant is void; for by the Common Law a Protection lieth not in either of those Cases, for the damage that may happen to the Plaintiff by such great delay; And therefore in such Case a non obstante shall not avail, where the King by the Common Law cannot grant the thing, as it was Ruled in 39 H. 63. 9 Advowson. Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriff without the usual assembly and Election in the Exchequer. Dier 288. 54 12 El. 103 The King may demise a Manor, Q●. Imp. except the Courts and perquisites, so cannot a Common Person. Dier 351. 22. 18 El. 104 Some books are, that by an usurpation, the King shall be out of possession and put to his writ of right of Advowson, But 35 H. 8. it is there, that the King may gain possession by presentment and plenarty by 6 months, and that against an infant, who is a purchasor. Vide Fitzh. Tit. Qu. Impedit 151. 8 E. 3. and M. 16 & Trin. 38 E. 3. & Stat. Westm. 2. c. 5. Hob. 126. 105 In a Quare Impedit, if the title appear to the Court to be in the King, albeit he be no party to the suit, yet they ought to award a writ to the Bishop in his behalf. The Chancellor, etc. of Camb. against Walgrave. 106 The King's Certificate under his signet Manual was received as evidence in Chancery without exception, Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton. 82 Likewise the Law giveth greater privileges to men, then to Women. Wardship, ●ody, Father, ●ot Mother. 1 A. Tenant of Land holden by Knight-service, Litt. §. 114. Co. Inst. p. 1. 84. a. 3. hath issue B. a Daughter and his heir apparent, who being married to C. hath issue and dies, A. dies seized, and the Land descends to the issue within age; In this Case the Lord shall have a wardship of the Land, but not the wardship of the body of the heir; for none shall be in ward for his body to any Lord during his father's life: It is otherwise where the Father dies, living the Mother, when the Land, holden by Knight-service descends to the issue on the part of the Father, because the Law in that Case confides more in, and giveth more respect unto the Father then the Mother, etc. Villain. 2 If a Villain taketh a free woman to Wife, Litt: §. 187. and have issue between them, the issues shall be Villeins; but if a Niefe taketh a Freeman to her Husband, their issue shall be Free. Feme no wit●esse. 3 In some Cases Women are by Law wholly excluded to bear testimony, as to prove a man to be a Villain, Co. Inst. p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent. Fleta l. 2. cap. 44. Fitz. title Villain 32. 36, & 37. 83 The Law tendereth the weakness and debility of other persons, as those out of the Realm, in Prison, Femes covert, and other Women also: Likewise Infants, Lunatics, Idiots, and such as have other imperfections. ●ortion. 1 If Coperceners make partition at full age, and un-married, Co. Inst. p. 1. 166. a. 1. Litt. §. 243. 256, etc. and of sanae memoriae, of Lands in Fée-simple, it shall hold good and firm for ever, albeit the values be un-equal: but if it be of Lands entailed, or if any of the Perceners be of non sanae memoriae, it shall bind the parties themselves, but not their issues, unless it be equal: Or if any be covert, it shall bind the husband, but not the Wife or her heirs: Co. ibid. 170. b. 4. & 171. a. 4. & Litt. §. 258. Or if any be within age, it shall not bind the Infant, etc. Howbeit if the Feme covert after she becomes sole, do assent unto the partition it shall bind her for ever: and therefore in that Case the partition is not void but only voidable: There is the same Law of an Infant, that assents after he attains his full age, etc. remitter. 2 If Tenant in tail make a Feoffment in Fee upon Condition, Co. ibid. 202: b. 2. and dieth, the issue in tail within age doth enter for the Condition broken, he shall be first in as Tenant in Fée-simple: as heir to his Father, and consequently, and instantly he shall be remitted: but if the heir be of full age, he shall not be remitted: because he might have had his Formedon against the Feoffée, and the entry for the Condition is his own Act, etc. ●escent. 3 A descent shall not take away the entry of an Infant: Litt. §. 402. Co. ibid. 245. b. 4. unless (his Mother being privement enseinte) the descent was cast before his birth: for then there was not cause of entry at the time of the descent cast, etc. ●escent. 4 A dying seized shall not take away the entry of a Feme Covert, Litt. §. 403. Co. ibid. 246. b. 1. unless the disseisin etc. was made, when she was sole, and of full age, and that she take Husband, before she attain her full age. 5 If a descent be cast during the life of one that is non compos mentis, albeit he himself cannot enter (because he cannot disable himself) yet his heir may well enter notwithstanding such descent, Litt. §. 405. Co. ibid. 247. etc. Descent. Litt. §. 436. Co. ibid. 259. a. 3. 6 A descent shall not take away the entry of a man in prison, Descent. when the disseisin was made, and the descent cast during the time of his imprisonment, neither yet is he (in that Case) enforced by law to make continual claine by his servant, or any other by his warrant, or commandment; For, things done by deputy are seldom well done, but every man will be willing to see his own business most effectually spéeded and performed: An the reason, why in this and the like Cases a man imprisoned shall not be bound, is, for that (by the intendment of Law) he is kept without intelligence of things abroad; and also that he hath not liberty to go at large to make entry or claim, or to seek Counsel, Litt. §. 438. etc. So likewise if a Recovery by default be had against a man in prison, he shall avoid it by writ of error: For a man in prison by process of Law ought to be kept in salva, Co. ibid. 260. a. 3. & arcta custodia, and by the Law ought not to go out, though it be with a keeper and with the leave and sufferance of the Gaoler: Howbeit imprisonment must be Custodia, non poena; for Carcer ad homines custodiendos, non ad puniendos dari debet, etc. 7 A man out of the Realm in the King's service, Descent. etc. at the time of a disseisin, Litt. §. 439. and a descent cast; may enter at his return; because a man out of the Realm (by intendment of Law) cannot have knowledge of the disseisin, etc. Litt. §. 441. Co. ibid. 262. a. 2. 8 At the Common Law before the Statute of Non-claime 34 E. e. cap. 6. or that of making proclamations after a fine, Non claim Fine. 4 H. 7. cap. 24. one out of the Realm was not barred, albeit he made not claim within a year and a day after a fine levied, etc. Co. ibid. 290. a. 4. 9 If a man have a judgement given against him for debt or damages or be bound in a recognizance, and dieth, his heir within age, No exec●●● against the heir under age. or having two daughters, and the one within age, no execution shall be sued of the Lands by Elegit, during the minority: albeit the heir is not specially bound, but charged as Terretenant: So also against an heir within age no execution shall be sued upon a Statute Merchant or Staple, nor upon an obligation or recognizance taken by force of the Statute of 32 H. 8. cap. 6. for it is excepted in the process against the heir: Neither if the heir within age endow his Mother, shall execution be sued against her, during his minority. Litt. §. 594. & 633. 10 At the Common Law, If a Feme Inheritrix had a Baron, Feme Inh●●trix. who being under age, had aliened the Femes land in Fee, and died: In this Case the Feme or her heir might have entered: which they could not have done (before the Statute of 32 H. 28. cap. 8.) if the Baron had been of full age: for (by the Common Law) the Feme was (in that Case) put to her Cui in vita, and her heir to his Sur cui in vita; Descent. because such Feoffment of the Baron did work a dis-continuance, etc. Co. ibid. 337. a. 1. 11 If the Husband within age take a Wife a Feme Tenant in tail general, and the Husband make a gift in tail, and dieth within age, Feme Tena●● in tail. in this Case, the Wife may enter: or the heir of the Baron (in respect of the new reversion descended unto him) may enter; but if the heir enter presently thereupon his Estate vanisheth, etc. 12 If Husband and Wife be both within age, Baron and Feme. and they by deed intended join in a Feoffment, reserving a Rent, and the Husband dieth: Co. ibid. 23. In this Case, the Wife may enter, or have a Dum fuit infra aetatem: But if she were of full age, she shall not have a Dum fuit infra aetatem, for the nonage of her Husband; Albeit they be but one person in Law. 13 If two joint-tenants being within age, make enfeoffment in Fee, Co. bid. 337. b. 1. and one of the Infants dies and the other survives; Infant's j●ynt-tenants. In this Case, the surviving joint-tenant may enter: Because the right descends so that they may join in a Writ of right, etc. Likewise if there be two joint-tenants, the one of full age, and the other within age, and both make a Feoffment in Fee, and he of full age dieth, the Infant may enter, or have a Dum fuit infra aetatem, but for the moiety only. Feoffment. 14 When an Infant makes a feoffment being within age, Co. ibid. 337. b. 2, 3. Litt. §. 635. he may enter either within age, or at any time after full age, and likewise after his death his heir may enter; meliorem enim conditionem facere potest minor deteriorem nequaquam: Also a special heir shall take advantage of the Infancy of the Ancestor, Borough-English. as if tenant in tail of an Acre of the Custom of Borough-English make a feoffment in fee within age: and dieth, the youngest Son shall avoid it: for he is privy in blood and claimeth by descent from the Infant: Special tail. So likewise if Tenant in tail to him and the heirs Female of his body make a feoffment in Fee and dieth within age, having issuing a Son and a Daughter, the Daughter shall void the feoffment: And so note (by the way) that a cause to enter by reason of the Infancy, is not like to conditions, Warranties, and Estoples, which even descend to the heir at the Common Law. 15 If Tenant in tail enfeoff his heir apparent, Co. ibid. 350. b. 1. Litt. §. 664. the heir being of full age at the time of the Feoffment, Feoffment re●●●. and after the Tenant in tail dies, this is no remitter to the heirs Because it was his folly, that he, being at full age, would take such a feoffment; But such folly cannot be adjudged in the heir; if he had been within age at the time of the feoffment made, in respect of his tender years and want of experience. 16 If tenant in tail enfeoff a Feme in Fée, and die, and his issue within age takes the same Feme to Wife, ●aile. ●eme. Remitter. Litt. §. 665. this is a remitter to the Infant within age, and the Feme then hath nothing; Because no folly can be judged in him, being within age at the time of the Espousals; It is otherwise, if such heir were of full age at the time of the Espousals; For then the heir hath nothing but right of his wife, etc. There is the same Law, Co. ibid. 351. b. 4. where the Tenant in tail enfeoffs his issue (being within age) and the wife of the issue in fee, and dieth; for in this Case also the issue is remitted, etc. 17 If a Feme seized of lands in fee take Baron, Co. ibid. 351. b. 4. Litt. §. 666. who aliens the same lands in fee, and the Alienée lets the Lands to the Baron and Feme for life, saving the Reversion to the Lessor and his Heirs: In this Case the Feme is remitted, and is seized of the Lands in her Demesne, as of fee, as she was before; because the reprisal of the Estate shall be adjudged in Law the act of the Baron, and not of the Feme: so that no folly can be adjudged in the Feme, who was covert at the time of making the Lease: And in this Case, the Lessor hath nothing in the Reversion, because the Feme is seized in fee, etc. And here, Litt. §. 648, 669. if the Lessor sue an Action of waist for waste committed by the Baron; albeit the Baron cannot (against his own feoffment and reprisal) bar the Lessor, by showing the remitter to his Feme, etc. yet in such an Action if the Baron make default to the great distress, and the Feme prey to be received, and is received accordingly, she may well show the whole matter, and how she is in her remitter, and so shall she bar the Lessor of his Action, etc. for regularly in every Case, where the Feme is received for default of the Baron, she shall in pleading have the same advantage that a Feme sole hath, etc. There is the same Law, if the Alienée had made the Lease by Deed indented, or by Fine, because in taking a thing by Fine, the Feme is never examined, etc. Co. ib. 353. a. 1 18 If a Feme covert be received in an Assize, and plead a Record, Assize. Disseisor. and fail, she shall not therefore be adjudged a Disseisor, as she should be, if she were sole, etc. So if a Feme covert only levy a Fine executory, and a Scire facias is brought against her and her husband, if she be received upon the default of the husband, she shall bar the Conusée, which if she had been sole, she could not do, etc. Co. ib. 353. a. 3 19 In the acknowledging of a Fine by a Feme covert, Fine. Examination. lest she should be deceived or any way abused, her examination ought to be secret, and to this effect, viz. whether she be content to levy a Fine of such lands (naming them particularly and distinctly, and the state that passeth by the Fine) of her own voluntary free will, and not by threats, menaces, or any other compulsory means. Litt. §. 677. Co. ib. 356. b. 3 20 If the Baron dis-continue the land of the Feme, Remitter. and the Discontinuée lets the same land to the Feme for term of her life, and gives her seisin thereof accordingly: In this Case, whether the Baron were out of the Realm, when the Lease was made, or within the Realm, or whether the Baron agree to the Lease, or no; nevertheless the Feme (in this Case) is remitted: It had been otherwise, if she had been sole at the time of the Lease made, for than she could not have been remitted, etc. Litt. § 696. Co. ib. 364. a. 4 21 If two joint-tenants of lands in fee, the one of full age, Remitter the other under age, are disseised, and the disseisor dies seized, and his Issue enters, one of the joint-tenants being still within age, and after he attains his full age, the heir of the Disseisor lets the Lands to both the joint-tenants for their lives; this is a remitter (as to the moiety) to him, that was within age; because his entry was congeable: But the other hath but an Estate for life in the other moiety, because his entry was taken away by the dying seized, etc. for the Infant (being favoured in Law) had right of Entry, whereas the other had only right of action, etc. 22 At the Common Law (before the Statute of 11 H. 7. cap. 20. Warranty. ) if tenant in Dower had aliened the Land in fee with warranty, Litt. §. 725, & 7●6. Co. ib. 380. a. 3 and th●t warranty had descended to the Heir, who was to inherit the land in Dower, the Heir had been thereby barred to demand the same land: Howbeit if the Heir were within age at the time of the warranty descended upon him: In that Case, the Heir might enter and avoid the Estate either within age, or at any time after his full age: but if he were within age at the time of the alienation with warranty, and became of full age before the descent of the warranty, the warranty did bar him for ever, etc. 23 Albeit Laches of a man non compos mentis may prejudice him for his entry (as if he be disseised, Co. l. 4. 125. a. 4. in Beverleys' Case. and a descent is cast, Fine. in this case he cannot enter) yet it shall not prejudice his right; as if a man non compos mentis were disseised, and the disseisor had levied a Fine, in this Case (at the Common Law) although the year and day had passed, yet he that was non compos mentis, was not bound thereby, but that he might well enter: And this is proved by the Statute de modo levandi Fines, made Anno 18. E. 1. which was nothing else but a Declaration of the Common Law: There is the same Law of an Infant, one in prison, or not within the four Seas, or of a woman not duly examined; for in all these Cases a Fine was not binding at the Common Law, although claim was not made within a year and a day, as appears by the same Statute, etc. There is also the like exception of such persons in the later Statute of Fines, with Proclamations made, 4 H. 7. cap. 24. which proves, that the Lawmakers had in all Ages a special care to provide for persons that had such defects and imperfections, etc. Idiots King, Tutor. 24 In Case of Idiots or fools natural, Co. l. 4. 1●6. a 2. in Beverleys' Case. because (as Bracton saith) Non multum distant à brutis, qui ratione carent, the Law of England, (as well as the Law Civil) hath provided a Tutor for them, viz. the King, and hath made provision for the preservation both of their Inheritance, and also of their goods, as appears by Britton. fol. 16. and likewise by Prerogativa Regis, cap. 9 made 17 E. 2. which was nothing else but a Declaration of the Common Law: And albeit that Statute only saith, Quòd Rex habebit custodiam terrarum fatuorum naturalium, etc. yet the King shall have as well the custody of their bodies and goods, as of their lands, and also of all other hereditaments, as well those which they have by purchase, as others which they have by inheritance at the Common Law, etc. And the reason of this is, because (as Fitz. N. B. saith, 232.) the King is bound of right by his Laws to defend his Subjects, their Goods and Chattels, Lands and Tenements: And therefore every Subject being by the Law in the King's protection, an Idiot who cannot defend or govern himself, nor order his Estate, aught of right to have both his person and estate protected and ordered by the King, etc. Executor 25 If an Infant be an Executor, Co. l. 5. 27. b. 2 in russel's case. a Release or Acquittance made by him, binds him not, unless it be in the due pursuit of his Office of Executorship, and for so much only as he really receives. Executor. 26 An Administrator (durante minore aetate) cannot sell any of the goods of the dead, if it be not of necessity for the payment of debts, Co, l. 5. 29. b. 3. in Prince's case or bona peritura, for he hath his Office of Administration pro bono & commodo of the Infant, and not for his prejudice; Also such an Administrator cannot assent to any legacy, unless there be Assets to pay debts, etc. and generally, he can do nothing to the prejudice of the Infant; for the words of the letters of Administration are, Administrationem omnium & singulorum bonorum ad opus, commodum, & utilitatem executoris durante sua minore aet●te, & non alitèr, nec alio modo committimus, etc. 27 Generally in all Actions real, Co. l. 6. 3. b. 1. in Markals Case. which the Infant brings of his own possession; P●● Infancy stolen de●●r. albeit he hath the land by descent, and that the tenant plead the deed or warranty of his Ancestor, the parol shall not stay for his nonage: For by presumption of Law, the granting of delay is in favour, and for the benefit of the Infant, lest by default of good understanding of his estate, and of the truth of the matter, he might be prejudiced of his right, which descends unto him from his Ancestor: And therefore, in such case the Law will rather suffer a delay, then hazard the right of th● land, the possession whereof his Ancestor hath by negligence, or otherwise lost: But when the Ancestor dies seized, and the land doth descend unto the Infant, and he enters and takes the Explees and profits; In this Case, it will he a prejudice to the Infant, if he should lose the possession which he had, and shall be thereof delayed, until his full age: It is otherwise, when only a naked right descends, unto him, for than he can suffer no such prejudice, but rather may run a hazard, etc. And with this agrees 12 E. 4. 17. in a writ of Entry sur disseisin, of a disseisin made to the Infant himself: And 41 E. 3. tit. Age 39 in a Writ of Right of a deforcement done to the Infant himself of land, which he had by descent: So likewise in Escheat and Cessavit, and a writ of Right sur disclaimer brought by an Infant, because he hath the Seignory in possession, which by Escheat, Cesser, or Disclaimer he might lose: and in that Case also his Ancestor had no right to the land, and therefore the Parol shall not stay for his nonage: In like manner in a writ of Mesne brought by an Infant, because the cause of Action, and the wrong gins in the time of the Infant himself, the Parol shall not stay, etc. 21 E. 3. Age 85. Temp. E. 1. Age 119. 7 E. 2. Age 140. Also in a Formedon in remainder, albeit the Infant demands Fee-simple, yet because his Ancestor, whose Heir he is, was never in seisin, nor took explees, (and therefore in such Case he shall allege explees only in the particular tenant, who had the estate upon which the remainder depended) for this cause the tenant (without plea) cannot pray, that the Parol may stay, in as much as the remainder was never in the possession of any of his Ancestors, and the Demandant himself is the first, in whom it will vest, and that shall have seisin of the land in demand, etc. It is otherwise in a Form. in reverter, causa qua suprà. Co. l. 6. 8. b. 1: in Ferrer case 28 At the Common Law before the Statute of West. 2. cap. 4. if one had suffered a recovery in any real Action against him by default (if he were lawfully summoned, Recovery by default. and that there were no error in the proceeding) he had not any remedy but by writ of Right: Howbeit the Law was otherwise in case of an Infant; for he was therein excused by reason of his tenderness of age, and want of understanding. Co. l. 7. 7. b. 4. in the Earl of Bedford's case. 29 When a Subject is Guardian in Chivalry, Voidable Leases. he in the right of the heir within age, and in his Guard, shall avoid voidable Leases, for so long time as he hath interest in the Lands, by reason of the Wardship: but this shall not prejudice the Heir of his election, to make the Leases good by acceptance of the Rent, etc. when he shall attain his full age, For, Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest: The Law is also the same, when the King is Guardian, etc. Co. l. 861. b. 4. in Beechers ca 30 Infants shall not be amercied, Amerc. Pledges. and consequently shall not find pledges, by reason of the weakness of their age: And therefore (in that Case) the entry is, Ideo in miserecordia, sed perdonatur quia Infans. Vide 43 Ass. Pl. 45. 44 E. 3. tit. Amerc. 10. 3 E. 3 Enfant 14. 14 Ass. Pl. 17. 41 Ass. Pl. 14. 17 E. 3. 75. Bracton. fol. 254. F. N. B. 195 h. Co. l. 8. 99 b. 4. in Sir Richard Letchfords case. 31 A Custom (that the Lord shall seize Copyholds after three Proclamations at three Courts, and non-claim by the heir, Copyholds. Proclamation. Non-claim etc.) shall not bind the Heir, that is, beyond Sea (extra Maria) at the time of the Proclamations made; so it is also of an Infant, non compos mentis, or one in prison; because (in judgement of Law) they are not bound to make claim, neither yet (by intendment) can they have notice thereof; for, if these four persons were excused (by the Common Law) though they made not claim within a year and a day after a Fine levied, or a Recovery in a writ of Right (being matters of record, and of extraordinary high esteem) in the Law) so that they were not barred of their right, notwithstanding their non-claim: A Fortiori, shall not Proclamations made in a base Court, and in a private corner be any bar unto them, etc. Vide 5 E. 3. 222. and 7 E. 3. 335. Also, if in a real Action a Recovery by default be had against a man in prison, it shall not bind him, but he may reverse it by writ of Error, as appears 5 E. 3. 50. b. 4 E. 2. Deceit 51. Littleton 102. b. Co. l. 9 76. b. 4. in Combs case 32 Where the custom is, Custom. Feoffment Age 15. that an Infant at the age of 15. may make a feoffment, he cannot do it by Attorney, because the Custom that inables any person disabled by the Law, aught to be pursued, and an Infant cannot make any thing to pass out of him by Attorney, Vide 11 H. 4. 33. Co. l. 9 85. a. ●. in Connys case. 33 Albeit the tenant of a Manor that is within age, may be distrained for rend arrear, and neither in that Case, Distrain per quae servi●. nor in a per quae servitia brought against him (when the tenancy descends) shall have his age; because at first the Lord departed with the land in consideration, that the tenant should hold of him, pay his rent, do his services, etc. And although upon grant of the Manor by Fine, he may be compelled to Attorn in such a writ; and if he Attorn upon grant thereof in pais, the Attornment is good; yet in a writ of Customs and Services, (which is a writ of Right in his nature, A writ of Custom & Seru. Age. and in which judgement final shall be given) against an Infant that is in by descent, he shall have his age, although it be upon his own Cesser, because he knoweth not what arrearages to tender before judgement, and that is a writ of right in his nature, and if he make not true tender, he shall lose the land: And so it was adjudged in 28 E. 3. 99 Vide 9 E. 3. 50. 14 E. 3. Age 88 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia, Attornment. that can be no mischief unto him; for notwithstanding his Attornment within age, he may at his full age disclaim to hold of him, or may say, that he holds not of him, or may acknowledge he holds of him, but by less or other services; And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia, 9 and Age 33. Vide 2 E. 2. Age 77 & 78. 37 H. 8. Attornment Br. Quid Juris clamat. 34 In a Quid Juris clamat brought by an Infant, the tenant saith, 43. E. 3. sol. 5. & 32. E. 3. cited per Coke, Ch. Justice, l. 9 85 b. 2. in Connys Case. that he holds the land for term of life of a Lease of the Infant's Ancestor, who granted that he should not be impeached of waste by deed, which he shown forth to the Court: Waste. And in this Case, because the Plaintiff was within age, and so could not acknowledge the deed, during his nonage, it was adjudged that he should stay until his full age; Nevertheless, in this Case, if when the Infant attains his full age, the Defendant attorns by judgement of Court, Parol Demur. No prejudice. this shall not any way trench to the Infant's prejudice: For albeit the Attornment were after his full age, yet in as much as there was no Laches in the Infant, but that he brought his writ de quid juris clamat to force the tenant to attorn the delay, which was till his full age (which the Law provided for his benefit) shall not turn to his prejudice: And therefore by judgement of law, (which doth wrong to none) he shall have as much advantage as well for the arrearages of rent, as for waste done, as if the Tenant had Attorned at the time of the Plea pleaded. Devise. Tail. Conclusion. 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole, Co. l. 10. 42. b. 4. in Mary Portingtons' Case, per Coke Ch. Justice. that if she should apparently and willingly conclude and agree to dis-continue the Estate, etc. that then the land should from thenceforth remain to another, etc. the Feme takes husband, and they two conclude and agree with J. S. to suffer a recovery of the Land, with intention to make void the Estate, and thereupon a common recovery was suffered accordingly, etc. And in this Case Coke Chief justice was of opinion, Feme covert ●an pass nothing without examination 〈◊〉 writ. that such conclusion of a Feme covert was of no force: neither yet could be any cause of forfeiture: for no Feme covert shall be barred (by her confession) of her inheritance or franktenement; but when she is examined by due course of Law (15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4, 5.) And none hath power to examine a Feme covert without writ (Vide 21 E. 3. 43. John de Holbornes' Case.) And this is the cause, that if Baron and Feme acknowledge a Statute or Recognizance, this is void, as to the Feme, albeit she survive her Baron, as it was holden P. 17 Eliz. in the Countess of Lennox Case: So if Baron and Feme acknowledge a Deed to be enroled, and it is enroled accordingly, this also is void, as to the Feme, (Vide 29 H. 8. Faits enrol. Br. 14. and 7 E. 4, 5. 16 H. 7. 5. and 21 E. 3. 43.) And the reason is, because no such writ is depending against the Baron and Feme, upon which the Feme may by the Law be examined: F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance, it is not void, but voidable by Audita quaerela, Statute. Recognizance during his nonage: And the cause of the diversity is, for that the judge (in case of an Infant) may by inspection know his age, but not know whether a woman be covert or no. And the use is always upon a common Recovery against Baron and Feme to examine the Feme, and to grant a Dedimus potestatem to take (upon examination) her Conusance, as in Case of a Fine; for in that Case also there is a writ, upon which she may be examined, Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant, although he appear by Guardian, Common Recovery. shall not bind him; for an Infant hath not such a disposing power upon the Land, as Baron and Feme have, but is utterly disableo by Law to convey or transfer his Inheritance or Franktenement to others, during his minority: And at this day a common Recovery appears to be a Common Conveyance or Assurance of Lands, etc. Co. l. 11. 77. a. 4. in Magd. Coll. Case. 36 If an Infant had conveyed lands to Queen Eliz. by deed enrolled that grant had not been established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant all Roy. Fine. (which was made for the confirmation of grants made to the Queen from primo to that time, etc. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law: So likewise if an infant had levied a fine to Queen Eliz. and afterwards the said Act was made; yet the infant notwithstanding the Statute, might have reversed such fine by writ of Error: And so it was resolved M. 32, & 33 El. in B. R. per Wray Chief Iust. & totam Curiam in Vaughan's Case; Co. ib. 78. a. 3. There is the same Law, if Baron and Feme had made a grant of the Land of the Feme to the Queen, Baron, Feme. for neither had his been made good by the said Act to have bound the feme (after the Coverture) or her heirs: Because the person of the feme covert is dis-abled to convey her Land, unless it be by fine upon due examination, and so also was it holden in the aforesaid Case of Vaughan. 37 If an infant hath a Manor by descent, Advowson, Usurpation. unto which an Advowson is appendent, F. N. B. 34. x. and suffers an usurpation to the Advowson, when the Church happens to be void, and after grants the Manor in fee at his full age, and after that the Advowson happens to be void again; In this Case, the infant shall present, and not the feoffée: for the Advowson was severed by the usurpation, and yet the infant may present. 38 If a Lease be made to Baron and Feme for life or years, Waste. the Feme shall not be punished for waste done by the Baron, F.N.B. 59 i Finch, 26. after the Baron's death. 39 A man may have a Writ of account against a Feme, Account. as receptrix denariorum, F.N.B. 110. d. or against a Chaplain: But a man shall not have a Writ of account against an infant. 40 Women shall not be compelled nor distrained to come to the Sheriffs turn, F.N.B. 161. a. b or to Leets, and if they be distrained, Femes nemy jure in Lees Dit. Wayve. they may sue the writ de exoneratione sectae, etc. to excuse themselves of that service, and thereupon they may also have alias plura and attachment, etc. And for as much as Femes shall not be sworn in Léets to the King, as men of the age of twelve years or upwards shall be, when a Woman is outlawed she is said to be waived and not outlawed; for she was never put nor sworn to the Law, but a man is said to be outlawed, because he is, or aught to be sworn to the Law, and then for contumacy he is put out of the Law, and so is said to be ut lagatus, quasi extra legem positus: And by the Rule of the Register two Women may join in such a writ, etc. 41 If an infant of tender age (viz. under the years of discretion) kill a man, Felony. that is not felony in him: Pl Co. 19 a. 2. in Fogassues Case. because he wanted discretion and understanding: and therefore the Law imputes it to his ignorance, which he hath at that age by nature, and so no default in him; and therefore it is called, In voluntary ignorance: For he cannot be wise and discreet, though he would, but is ignorant by compulsion, and therefore shall be excused: And such an Act is properly said to be ex ignorantia, where involuntary ignorance is adjudged to be the cause thereof: Felony. So if a man de non sanae memoriae kill another, albeit he hath broken the words of the Law, yet he hath not broken the Law: because he hath not any memory, or understanding, but mere ignorance, which falls upon him by the hand of God: and therefore the Law imputes it to involuntary ignorance and not to him, so that he shall be excused for the doing of it, etc. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales. in consideration of the frailty and inconstancy of Women, ordained that Law to restrain them from the alienation of the Lands of their deceased Husbands: and because they did conceive that they might (by flattering words) be easily deluded and enticed to covin, therefore they ordained in that Act a penalty against them, as a bridle of their inconstancy, to prevent them from being (in that manner) seduced. etc. Dower best possession. 43 A Woman shall be endowed of the best possession of her Husband, Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx. d. and Jo. S. release to the Husband (so as now the Husband holds by xx. d.) the wife being endowed of this land, shall hold only by the third part of iij. d. and not of xx. d. Dumbe. 44 If a dumb person bring an Action he shall plead by prochiene amy. Finch ibid. Tender upon a Mortgage for an Idiot. 45 In Case of a mortage (Littl. saith §. 334. Co. Inst. p. 1. 206. b. 4. ) if a stranger of his own head, that, hath no Interest, etc. will tender the moneys, etc. to the feoffée at the day appointed, the feoffée is not bound to receive them, etc. yet if the tender aught to be made by an heir, that is and Idiot, of what age soever, In that Case any man may make the tender for him, in respect of his absolute dis-ability, and the Law in this Case is grounded upon charity and so in like Cases. ●●●ant not out●●ed. 45 Minor verò, Bracton l. 3. fol. 125. r. & quia infra aetatem 12 annorum fuerit utlagari non potest, nec extra Legem poni, quia ante talem aetatem non est sub lege aliqua nec in decemi. ●●ant no acceptant, ●or can make ●●th. 46 An infant under the age of 12 years shall not be charged in account as Receiver or Bailiff, Co. ibid. 128. Co. Inst. p. 1. 172. a. 3. Litt. §. 258. Co. ib. 172. b. 1. because (by intendment of Law) before his full age he hath not skill and ability to raise or make any improvement or profit of the lands, Goods, or Chattels committed to his charge, Neither shall an infant under that age be sworn of an Inquest; for the Rule of Law is, Minor jurare non potest, And therefore an infant, cannot make his Law of non summons, neither shall his default in such Case grieve him: for seeing the mean to excuse the default is taken away by Law; the default itself shall not prejudice him: Howbeit, an Infant at the age of 12 years shall take the oath of Allegiance to the King, an this was (as Bracton saith) Secundum leges Sancti Edwardi, but indeed such was the Law in the time of King Arthur. Howbeit, an Infant cannot wage his Law in an Action of debt, no more than make oath of non summons, as aforesaid. 47 In Trespass by Will. de Walton against John Martin judgement was given, ●prisonment spited. that the Parliament should recover damages, Co. Inst. p. 1. 289. a. 4 & quoth praedict. Joannes capiatur. And the Record saith, quod predict Joannes venit coram Domino Rege & reddidit se prisonae, & quia constat Curiae per inspectionem corporis ipsius Joannis, quod idem Joannes est talis aetatis quod poenam imprisonamenti subire non potest, idem dictum est ei, quod eat inde sine die. Also Allen Abbot brought an appeal of Robbery against John Boskiseleke Clerk and others, who pleaded Not-guilty, and were not found guilty, whereupon judgement was given, that they should go quit, & predict Elena pro falso appello suo committatur prisonae, etc. (for by the Statute of Westm. 2. cap. 12. she ought to be imprisoned in that Case for a year) but the Record saith, Quia cadem Elena pregnans fuit, & in periculo mortis, ipsa dimittitur per manucaptionem, etc. ad habendum corpus usque Quind. Mich. etc. 48 Vide Max. 135. 1. and for Infants see Dier 104: a. 10, etc. and Max. 149. 55. Dier 148. 75. & 338. 41. Hob. 137. 49 A Lunatic shall not be charged with mean rates for default of Livery, sued or tendered. Burchers Case. 84 The Law (in some Cases) tendereth the ignorance of men un-lettered. 7 E. 3. 9 Co. Inst. P. 1. 301. b. 4. 1 If a man make a lease to A. for years, Lease for life. and after by his deed the Lessor voluit, quòd haberet & teneret terram pro termino vitae suae, this is adjudged by this verb (volo) to be a good confirmation for term of his life; Benignae enim faciendae sunt interpretationes cartarum propter simplicitatem Laicorum, ut res magis valeat quàm pereat. Co. lib. 5. 55. b. 2. in Knight's Case. Co. lib. 2. 3. a. Mansers Case. Dier ●. 16. El. 337, & 338. Pl. 39 2 A man not lettered is not bound to seal and deliver any writing which shall be tendered unto him; if there be not some present, Not bound t● seal a dee● unless read. that can and do first read the deed unto him; if he require them so to do; and if the deed be in Latin, French, or any other Language) which the party, that should seal the writing, understandeth not (in that Case if the party desire one to read it and expound it, and there is none present, that can or will do it in a language, that the party sealing doth understand he may well then refuse to deliver it: So likewise, albeit a man can read, yet if the deed be written in Latin, French, or some other language, that he understand not, and he demand to have it expounded, but can not have it done accordingly: In that Case also he may refuse to deliver it: For, Ignorantia est duplex, viz. facti & juris, & rursum ignorantia facti (quoad rem nostram attinet) est duplex, viz. Lectionis & linguae: Now ignorance in reading or of the language, quae sunt ignorantiae facti, may excuse: but as it is commonly said, ignorantiae Juris non excusat. Co. l. b. 2. 9 a. Through goods Case. Co. l 4. 44. b. 3. in Sanches Case. Co. l. 9 51. b. in the Earl of Shroesburys Case. 3 A writing read or expounded in another form than it purports, to one not Lettered, is not his deed, though be seal and deliver it. Not bounds 4 An Indictment ought to be full express and certain, Indictment. and shall not be maintained by argument or implication: because it is to be found by the oath of Laymen. 5 Pleading aught to be precise, exact, and certain: Special Verdicts. It is otherwise of special verdicts, which are to be found by Laymen: for the Law requireth no such preciseness in them, etc. In the Earl of Shroesburys Case. 6 If three distinct obligations are written upon one and the same piece of Parchment, Co. lib. 11. 27. b. 1. in Henry Pigot's Case. and one of them only is read to the obligée, Several Ob●●gations up●● one parchment. and he being a man not lettered, seals and delivers the whole, this is good for that obligation, which was read, but void for the rest: And this Case is agreed by Brudnel and Pollard, in 14 H. 8. 26. So if there be two absolute and distinct clauses in a deed, and one of them is read to the party not lettered, and the other not, it is good for the clause that was read, and ab initio void for the other. Obligation of xx. l. etc. for xx. s. 7 In 9 H. 5. fol. 15. Co. ibidem. One brings a writ of debt of xx l. against another and counts upon an obligation of the same sum, the defendant pleads that he was a Layman, and knew not letters, and he acknowledged himself to be bound to the Plaintiff by the said deed in 20 shillings, which he hath paid, and thereof showeth an acquittance, and as to the residue of the sum in the said Obligation, nient son fait: And in this Case, for as much as the deed consisted upon an entire sum, it was adjudged void for all: The same is also agreed in 14 H. 8. 26. & 30 E. 3. 31. Fee tail read for fee-simple. 8 In 30 E. 3. casu ultimo in an Assize before Sheriff and others in pais, Co. lib. 11. 27. b. 3. in Hear. Pigot's Case. the Tenant pleads feoffement of the Plaintiffs to him by deed of the Land in plea, to have and hold to him and his Heirs, comprehending a letter of Attorney to deliver seisin, etc. And in truth the Plaintiff was a Layman, ignorant of Letters, and the deed with the letter of Attorney was read unto him according to the form of an Estate tail, and for the same intent he sealed and delivered the deed with the letter of Attorney in it to deliver seisin; And in this Case, the feoffment was adjudged void, and the letter of Attorney also (albeit it were truly read) because it depended upon the feoffment, and had relation to the Estate in fee: Incidents to a deed. And there Thorpe justice said, that every deed ought to have writing, sealing and delivery: and when any thing passed, from such as have no understanding but by hearing only, there ought also to be reading added to the other three: And (indeed) he that is not lettered is reputed in Law as one, that cannot see but only hear, Blind. and all his understanding is by hearing: So likewise a man, that is learned, but cannot see, (as to purpose) taken in Law as a man not lettered; And therefore if a man be learned, but blind, if the deed be read unto him in another manner, etc. he shall avoid the deed: because all his understanding in such Case is by his hearing, as it was resolved in Suitors Case, in the Star-chamber, M. 9 Jac. who was a man of 115 years of age at the time of his death. Vide John Pinchons Case in 37 E. 3. 3. cited in Cook ubi supra. Vide 63. 35. 85 The Law favoureth Strangers, that are neither parties nor privies. ●ord. Tenant. feoffment ●pon Condi●●on. 1 Lord and Tenant, and the Tenant maketh a feoffment in Fee upon Condition, the Feoffor dyeth, Co. Inst. p. 1. 76. b. 1. after his death the Condition is broken, and the Heir within age entereth, for the Condition broken; In this Case, albeit the Feoffor had no Estate or right in the Land at the time of his death, but only a Condition, and which was broken after his decease, yet the Heir shall be in ward, for the Lord was neither party nor privy to the Conditional feoffment, and therefore there could be no default in the Lord to bar him of his wardship. Manor. condition. advowson. ●pendant. 2 A man seized of Land, whereunto Condition is appendent, Co. ibid. 122. b. 1. is disseised; In this Case, the disseisée cannot use the Condition, until he entereth into the Land, whereunto it is appendent: But if a man be disseised of a manor, whereunto an advowson is appendent, he may present unto the Advowson, before he enters into the Manor; And the reason of this diversity is, because in the Case of the Condition it should be a prejudice to the Tenant of the soil; for if the disseisée might put on his cattle, the disseisor might do so too, which would be a double charge to the Tenant; It is otherwise of an Advowson, etc. Co. ibid. 132 b 2. 3 Profession or entering into Religion is a Civil death, so that his heir shall inherit; howbeit, Profession Tolleth not entry. this shall work no prejudice or wrong to a stranger, that hath a former right: And therefore if the disseisor entereth into Religion, and is professed, so as the Land descends to his heir, yet this descent shall not toll the entry of the disseisée, etc. Co. ibid. 148 b. 3 4 If there be Lord and Tenant of 40 acres of Land by fealty and 20 shillings Rend, if the Tenant maketh a gift in tail; Rend suspended in all. or a lease for life or years of parcel thereof to the Lord; in this Case the Rent shall not be apportioned in any part, but the rent shall be suspended for the whole: for a Rent-service (saith Litt. §. 222) may be extinct for part, and apportioned for the rest, but (regularily) it cannot be suspended in part by the Act of the party, and in esse for another part; So it is also, if the Lessor enter upon the Lessée for life or years into part, and thereof disseise or put out the Lessée, the Rent is suspended in the whole; In parts. Howbeit, a Seignory may be suspended in part by the Act of a stranger: As if two joint-tenants or coperceners be of a Seignory, and one of them disseise the Tenant of the Land, the other joint-tenant or copercener shall distrain for his or her moiety; for it is no reason, that they (being strangers) should suffer any prejudice by the Act of another etc. Litt. §. 222 Co. ibid. 149 b. 4 5 If a man hath a Rend charge to him and his heirs, Rent-charge not extinct to a stranger. issuing out of certain Land, if he purchase any parcel thereof to him and his heirs, all that rent-charge is extinct; so as the unity of possession of parcel of the Land and of the Rent (by the Act of the party) extinguisheth the whole Rent: Howbeit, if the grantée of a Rent-charge grant the Rent to the Tenant of the Land and to a stranger: In this Case the Rent shall not be totally extinct, but only for the moiety, etc. Co. ibid. 208 b. 3. & Co. l. 2. 75. b. 3. Lord Cromwel's Case. Co. ib. 128. a. 3 Co. lib 6. 31. a. Bothies' Case. 6 As concerning a Condition of an Obligation, Condition, Stranger. Feoffee. Obligee: and upon a Feoffment, there is a diversity, where the Act, that is local; is to be done to a stranger, and where to the obligée or feoffor himself: As if one make a feoffment in Fee, upon Condition, that the Feoffée shall enfeoff a stranger, and no time limited, the feoffée shall not have time during his life to make the feoffment: for than he should take the profits in the interim to his own use, which the stranger ought to have: And therefore in that Case, Co. ibid. & 218 b. 4. he ought to make the feoffment, as soon as conveniently he may: And so it is likewise of the Condition of an Obligation: It is otherwise, when the Condition is, that the feoffée shall reinfeoff the Feoffor: for there the Feoff hath time during his life, unless he be hastened by request, and this is in respect of the privity of the Condition between them: There is another diversity, when the obligor or feoffée is to a stranger, & when a stranger is to enfeoff the feoffée or obligée: As if A. enfeoff B. of Black-acre, upon Condition that if C. enfeoff B. of White-acre, A. shall re-enter: In this Case, C. hath time during his life, if B. doth not hasten it by request: And so likewise of an Obligation, etc. vide infra 11. Co. ibidem. 7 There is another diversity, Stranger. Feoffee. Obligee. where the Condition concerneth a transitory or Local Act, and is to be performed to the feoffée or obligée, and where it is to be performed to a stranger; As if A. be bound to B. to pay ten pounds to C. A. tenders to C. and he refuseth it; In this Case the bond is forfeited, whereas, if the feoffée or obligée refuse it upon tender, the bond is not forfeit, in respect of the privity of the Condition, etc. Co. ibid. 209. b. 2. & Co. l. 5. 96. Goodalls' Case. 8 If it be agreed between the Mortgagor and the Executors of the Mortgagée, that the Mortgagor shall in appearance pay the whole sum, Condition performed payment of part. but that afterwards the Executors shall repay part thereof bacl to the Mortgagor: This is no performance of the Condition; For the Estate of the Land shall not be devested out of the heir, which is a third person, without a true and effectual payment, and not by a colour or shadow of payment; And the agreement precedent ought to guide the payment subsequent. Payment to the first or second feoffee at pleasure. 9 Upon a Condition for the payment of money to the feoffée his heirs or assigns, if the feoffée make a feoffment over, Co. ibid. 210. a. 3. it is in the election of the feoffor to pay the money to the first feoffée, or to the second feoffée; And so if the first feoffée die, the feoffor may either pay the money to the heir of the first feoffée, or to the second feoffée; For, the Law will not enforce the feoffor to take knowledge of the second feoffment, nor of the validity thereof, whether the same be effectual or not, but at his pleasure; because he is conceived to be a mere stranger unto it, and the first feoffée and his heirs are expressly named in the Condition, etc. A thing collateral in satisfaction. 10 Upon a Condition for payment of money there is a diversity, Co. Inst. p. 1. 212. b. 4. when the money is to be paid to the party, and when to a stranger; For, when it is to be paid to a stranger, there if the stranger accept an Horse or any collateral thing in satisfaction of the money, it is no performance of the Condition, because the Condition in that Case is strictly to be performed: But if the Condition be, that a stranger shall pay to the obligée or feoffée a sum of money, there the obligée or feoffee may receive an Horse, etc. in satisfaction, etc. Condition to enfeoff the feoffor and his Feme, or the feoffor and a stranger. 11 If a feoffment be made upon Condition, Litt. §. 352. Co. ibid. 219. a. 4. & 220. a. 3. & b. 1. that the feoffée shall regrant the Land to the feoffor and his Feme in tail, the remainder to the right heirs of the feoffor, and no time is limited for the doing of it, the feoffée hath time to do it during his life, unless hastened by Request; So it had been also if the Condition had been, to have reenfeoffed the feoffor and a stranger: because the feoffor, who is privy to the Condition, is to take jointly with his Feme, or with the stranger: It is otherwise where the Condition is to enfeoffée a stranger, or strangers only: for there it must be done in convenient time, etc. But put Case (as it is in Littleton §. 352.) that the feoffor die before the Estate tail he conveyed according to the Condition, so that the Feme doth only survive to take it, whether is not the feoffée (in that Case) bond to convey an Estate to the Feme (as Littleton there saith) as near the Condition as he can, in convenient time, or shall have time to do it during his life: And it seems, that he ought to do it in convenient time, etc. because the Feme is a stranger to the Condition; There seems to be the same Law also in the other Case, if the stranger happen to survive the feoffor, etc. Tamen quaere. Vide supra 6. Feoffor. Stranger. Estate. Taile and remainder. 12 If a man make a feoffment upon Condition, Co. ibid. 291. b. 1. & 220. a. 3 that the feoffée shall make a gift in tail to the feoffor, the remainder to a stranger in Fee, there the feoffée hath time during his life: because the feoffor, who is party and privy to the Condition, is to take the first Estate: but if the Condition were to make a gift in tail to a stranger, the remainder to the feoffor in Fee, there the feoffée aught to do it in convenient time: because the stranger is not privy to the Condition, and he ought to enjoy the present profits of the Land, etc. Howbeit if the Condition be to grant an Estate in fee to the feoffor and his heirs, or to the feoffor & his Feme in tail, the remainder to the right heirs of the feoffor, (if in the first Case) the feoffor, or (in the other Case) the feoffor and his Feme die before the Estate settled, etc. by the feoffée, he hath time during his life to do it to the heir in Fee or in tail, unless hastened by Request: because the heir is privy in blood to the feoffor, and (as to that purpose) represent his person, etc. condition be ●eaded with●● the deed. 13 In all actions real, personal, and mixed, it is regularly true, Co. ibid. 225. a. 3. & 227. b. 3. that the Condition of a deed cannot be pleaded to defeat a Frée-hold without showing forth the same deed in Court: Howbeit a stranger which is not privy to the condition, Co. ib. 225. a. 3 nor claimeth under the same, shall not after the condition is executed in pleading, be enforced to show forth the deed: As if Land be mortgaged upon Condition, and the Morgagée letteth the Land for years, reserving a rent, the Condition is performed, the Morgagor reenters: In an Action of Debt brought for the Rent, the Lessée shall plead the Condition and the reentry, without showing forth any Deed; because he is a mere stranger unto it, and by intendment cannot come by it. Litt. §. 584. Co. ib. 321. a. 4 14 If the Reversion of a Tenant for life be granted by fine to another in fee, and the Grantée dies before Attorment, Revers. gra●ed by fine. Action of wa● without a tr●●. and the Land descends to his Heir: In this Case, the Heir cannot distrain or avow upon the Tenant for life, nor bring an Action of waste against him before Attornment; there is the same Law also of the Assignée of such a Grantée, etc. Howbeit if such a Grantée die without Heir, so that the Land escheats to the Lord of the Fee: In that Case, the Lord shall bring an Action of waste, etc. without attornment; because he is a stranger, and cometh in méerly in the Post. Co ib. 338. b. 15 When a Reversion and a particular Estate, A lease, etc. drowned or hath continuance for the benefit of a stranger, etc. or a Rent and the Land out of which it issues, etc. happens to come into one and the same hand by Grant, Surrender, or otherwise: if the interest of a stranger be therein concerned, the particular Estate, or Rent, etc. shall (in consideration of Law) either be drowned or continued, when either the one way or the other the stranger may reap a benefit, or prevent a prejudice: Howbeit of Parties and Privies no such consideration shall be had: Litt. §. 636. As if a Feme inheritrix take Baron, and have issue a son, and that Baron die, and she takes another Baron, and the second Baron lets the Land for life, and after the Feme dies, and the tenant for life surrenders his Estate to the second Baron, etc. In this Case, the son may immediately enter upon the second Baron, for between the Lessée and the second Baron the Estate for life is determined, and so likewise for the benefit of the issue it shall be adjudged in Law to be: Also, if he in the Reversion after an Estate for life make a lease for years, or grant a rent-charge, etc. and then the Lessée for life surrenders: In this Case, the lease or rent shall commence presently, because it is for the benefit of the Lessée for years, or the Grantée of the rent (who are strangers, etc.) that it should so do. But if a Reversion be granted with warranty, and the tenant for life surrender: In this Case, the Grantée shall not have execution in value against the Grantor, who is a stranger, during the life of the tenant for life, for as to the Grantor, the Estate for life (notwithstanding such surrender) shall (in consideration of Law) be conceived to have continuance, lest such a surrender might work a prejudice to the Grantor that is a stranger: So if tenant for life surrender to him in Reversion, being within age, he shall not have his age; for that would be a prejudice to a stranger, who is to become Demandant in a real action, etc. Also, if tenant for life grant a rent-charge, and after surrender, yet the rent shall remain, during the life of the tenant for life; for otherwise it would work a prejudice to the Grantée of the rent, who is a stranger. etc. and as to that purpose the reversioner cometh in under the charge. If a Bishop be seized of a rent-charge in fee. the tenant of the Land enfeoffs the Bishop and his successors, the Lord enters for the Mortmain, he shall hold it discharged of the rent; for the Lord claimeth under the Mortmain, and it is for his benefit that the rent should be extinct, etc. If a man maketh a lease to A. for life, reserving a rent of 40 s. per annum to him and his heirs, the remainder to B. for life, the Lessor grants the reversion to B. in fee, A. attornes: In this Case B. shall not have the rent, because although the fée-simple do drown the remainder for life between them, yet as to a stranger it is in esse, etc. and therefore B. shall not have the rent, but his heir shall have it. After assignment no action of debt against the ex●ecuto, or administator. 16 If the executor of a Lessée for years assign over his Interest, Co. l. 3. 24. a. 2. in Overton & Sydhals Case. T. 37. El. in B.R. an Action of debt shall not lie against him for Rent due after the assignment: So if the Lessée for years assign over his Interest and die, his Executor shall not be charged for Rent due after his death: because by the death of the Lessée the personal privity of the contract as to the Action of debt in both Cases being determined, the Executor becomes a mere stranger to the said Leases, etc. There is the same Law also of an Administrator, as appears P. 41 El. Rot. 2458. in C. B. Marrow & Turpins' Case. Statute of 33 H. 8. cap. 39 17 The makers of the Statute of 33 H. 8. cap. 39 Co. l. 7. 21. b. 3. in the Lord anderson's case (whereby the heir in tail is chargeable with the King's debts, as well as the heir in Fée-simple was at the Common Law) did not think fit to charge his alienée, when the heir in tail before any process or extent had bona fide aliened the Land; for, they had reason to favour the purchasor, farmor, etc. of the heir in tail, more than the heir himself; because they are strangers to the debts of the Tenant in tail, and come to the Land upon good consideration, etc. Rend 18 Lessée for years grants a Rent-charge, and surrenders, 1 El. 194. Finch, 27. yet the Rent shall be paid during the years: So if he in the reversion grant a Rent-charge during the term, and then the Lessée surrendreth unto him, he shall pay the Rent during the term: for, the stranger that is the grantée of the Rent) for his benefit shall say, that the term continueth, or that it is determined, etc. 86 Res inter alios acta alteri nocere non debet, sed quando que prodesse potest. Vide supra, Max. 51. & 43, 62. ●●e for life ●●●●sion 1 If a man make a Lease for life, Co. Inst. p. 1. 319. a, 4. and then grant the reversion for life, and the Lessée attornes, and after the Lessor disseiseth the Lessée for life, and makes a feoffment in fee, and the Lessée reenters; this shall leave a reversion in the Grantée for life, and another reversion in the Feoffee, and yet this is no attornment of the Grantée for life, because he doth no Act, nor giveth assent to any, which might amount to an attornment in law. But res inter alios acta alteri nocere non debet, etc. ●on●r Donce Discontinuance. 2 If land be given in tail, saving the reversion to the Donor, Co. ib. 335. a. 1 and after the tenant in tail by his deed enfeoffs the Donor in fee, this is no dis-continuance of the Estate tail, because the reversion being already in the Donor, it cannot by the feoffment of the tenant in tail, be dis-continued; but if a man make a gift in tail, the remainder in tail, reserving the reversion to himself: In this Case, if the Donée enfeoff the Donor, that is a dis-continuance, because so there is a mean Estate, that otherwise would suffer wrong, and yet would be remediless: there is the same Law also, where the Donée enfeoffs the Donor, and a stranger, etc. for that is also a discontinuance of the whole Land, etc. ●eme not outed. 3 If a Feme covert be tenant for life, Co. ib. 335. a. 4 and the husband make a feoffment in fee, and the Lessor enter for the forfeiture; this shall not out the woman from her just right: for here, albeit the reversion was revested, yet the dis-continuance did still remain at the Common Law. Co. ibid. 369. b. 2 4 If there be tenant for life, Statute of 〈◊〉 H. 8. 9 Pretenced rights. the remainder in fee by lawful and just title, he in the remainder may obtain and get the pretenced right or title of any stranger, and shall not thereby incur the penalty of the Statute of 32 H. 8. cap. 9 not only for that the particular Estate and remainder are all one, or that it is a mean to extinguish the seeds of troubles and suits, but likewise because by the doing thereof there can happen no prejudice to any stranger: Howbeit if a disseisor make a Lease for life, lives, or years, the remainder for life, in tail, or in fee, he in remainder cannot take a promise or covenant, that when the Disseisée hath entered upon the Land. or recovered the same, that then he should convey the Land to any of them in remainder, thereby to avoid the particular estate, or the interest or estate of any other: For, the words of the Proviso be (buy, obtain, get, or have by any reasonable way or mean) and that is not by promise or covenant to convey the land after entry or recovery; because that is neither lawful, being against the express purview of the body of the Act, neither yet reasonable, because it is to the prejudice of a third person. Co ibid. 393 a. 2 5 If one man enfeoff two with warranty, Warranty. and the one releaseth the warranty, yet the other shall vouch for his moiety. Co. ibid. 298. a. 2. 6 If a Lease be made to an infant for life, the remainder in fee, Infant. the infant at his full age dis-agrées to the Estate for life, yet the remainder good; for that it was once vested by gooo title, and it is no reason, that the practice betwixt the Feoffor and the Infant, should prejudice him in remainder, who is a stranger, etc. Litt. §. 636. Co. ib. 338. a. 6 7 If a Feme inheritrix take Baron, and have issue a son, Feme. Inheritrix. and the Baron die, and she takes another Baron, and the second Baron lets the land which he hath in right of his wife to another for term of life; and after the Feme dies, and after the tenant for term of life surrenders his Estate to the second Baron, etc. In this Case, the son of the Feme may immediately enter, which he could not have done, if the tenant for life had not surrendered; And therefore here, Res inter alios acta liberis prodest, etc. Co. lib. 6. 1. b. Bru●rtons case 8 When the tenant holds by an entire service, Entire Service. as by the payment of an horse, or an hawk, etc. yearly: In that Case, if the Lord purchase any part of the Land, the whole service is extinct; but if the tenant alien the Land in parcels to several men that shall give the Lord, who is a stranger, an advantage and benefit; so that every one of the Alienées shall pay an horse, hawk, or the like: For, Res inter alios actae nemini nocere debent, sed prodesse possent, etc. Co. lib. 2. 67. a 4. in Tookers' Case. 9 If the reversion of two tenants for life, Attornment. or the Rent or Seignory of two joint-tenants be granted by fine: In a Quid juris clamat, quem redditum reddit, or a Per quae servitia against such joint-tenants, the one shall not be permitted to attorn without his companion; because if the one attorn alone, he may prejudice his companion, as if he will not claim to be dis-punished of waste, or condition to have fee, or a future term, etc. for upon general attornment in Court of Record, the Lessée shall lose all advantages, which are not claimed upon Record, because this question is demanded of him, Quid juris clamat? etc. And therefore he shall have no more than he claims upon Record: And for this cause one of the joint-tenants alone by himself shall not be permitted to attorn upon Record, in regard of the manifest prejudice which might happen to his companion, in case it should be attornment of both, etc. Co. lib. 3. 29. a 3. in Butler and Baker's Case. 10 It is said, that as relations shall extend only to the same thing, Relation. and to the same intent; so shall they also only extend between the same parties, and shall never be strained to the prejudice of a third person, who is neither party nor privy to the said Act; And therefore if a man make a feoffment of a Manor by Deed, or without deed, and a long time after the livery, the tenants attorn to the Feoffée: In this Case, the attornment by necessity, and ut res magis valeat, shall have relation (by fiction of Law) to pass the services ab initio; yet this relation shall not charge the tenants for the arrearages in the mean time: So if Feoffée upon condition grant a Rent-charge of the land, and after the Grantée brings a writ of Annuity; hear ab initio this was an Annuity between the Grantor & the Grantée; but as to the feoffor, who is a stranger, and is entitled to enter for the Condition broken, it shall have no relation to his prejudice: Likewise in 30 E. 3. 17. in a Dum fuit infra aetatem (against Richard Spellow) the tenant saith, that his father was seized, and died seized and so prayeth his age, the Demandant counterpleads the age, because the tenant and his father were jointly enfeoffed and to the heirs of the father: And it was adjudged that the tenant should not have his age; for albeit this refusal (of taking the land by purchase) shall have relation, as to himself; yet as to the Demandant, who is a stranger, it shall not have relation to delay his Action, when in truth the tenant had the franktenement by purchase. Devise of the third part descended. 11 W. B. and his wife were seized in tail of the Manor of Hinton, Co. l. 3. 29. b. 2 in Butler and Baker's Case. (for the jointure of the wife) holden in Capite, and W. B. was also seized of land in Fobbing, which Manor and Lands did amount to a full third part of all his lands; he was likewise seized of the Manor of Thoby in Capite, which amounted to the other two parts: W. B. deviseth Thoby to his wife, upon condition, that she should take no former Jointure, and dies, the Feme in pais refuseth the Manor of H. Here the question was, whether the will was good for the whole Manor of Th. or but for a part, by the 32 & 34 H. 8. And it was adjudged, that this refusal shall have only relation as to the Manor of H. and not to the Manor of Th. and to the intent only that the Feme should not be prejudiced by any thing concerning the Manor of Hinton; Howbeit that relation shall not prejudice the heir, which is a third person, and upon whom, by the death of the devisor, part of the Manor of Thoby descended, etc. Mesnalty. rent-seck. ●eisin. 12 If a mesnalty become rent-seck by surplusage, Co. l. 4 9 a. 4. in Bevils' case. as if the tenant holds of the Mesne by two shillings, and the Mesne holds over of the Lord by 12 d. and the Lord purchase the tenancy: In this Case, the ancient seisin of the entire rent of 2 s. is sufficient for the surplusage, being now changed to a rent-seck of 12 d. because the Mesnalty is extinct by the Act of the Lord, and of the tenant peravail, and the nature of the rent of the Mesne is not changed by his own Act, but by the Act of others: And therefore albeit the rent is become seck, yet the Mesne shall distrain for it, etc. as it is said in 2 E. 2. tit. Extinguishment 6. copyhold sur●●nd before ●●mit. 13 The heir of a Copyhold tenant may surrender to the use of another before admittance, as any other Copiholder may; Co. l. 4. 24. b. 1 in brown's ca and fol. 23. a. Fitches Case. but this shall not prejudice the Lord of his Fine due unto him by the custom of the Manor upon the descent: So admittance of a Copyhold tenant for life, is an admittance of him in remainder to vest the Estate in him: Howbeit that shall not bar the Lord of his Fine, which he ought to have by Custom, etc. copyhold. ●ease. ●eisor. 14 A Release by deed (and not by way of surrender) made by one, Co. l. 4. 25. b. 3 in Kite and Queintons' case that hath right to a Copyhold, to one that is in possession thereof by lawful admittance shall be effectual to extinguish that right, and to establish the possession of the party so admitted, because in such Case the Lord cannot suffer prejudice, for that he hath his Fine; but if a Copiholder be outed by wrong, there his release by deed to the disseisor, or any other wrongdoer; shall not transfer his right, nor any way bar him thereof, because that would tend to the prejudice of the Lord, being a third person: for so the Lord might lose his Fine and services, etc. And therefore a release by deed in such Case, is utterly void, etc. Co. lib. 4. 24. b. in Marrels' Case. 15 If the Lord of a Copyhold Manor Alien the Inheritance of one of the Copyholds to another, Copyhold severed from the Manor. that shall not alter the nature of the Copyhold, but that it shall still retain the quality of Copyhold land to descend to the next heir, etc. for, Custom having once established and fixed that Estate, it cannot be changed by the Act of the Lord: neither yet is it reason, that the Act of the Lord and the alienée should in that Case prejudice the Copiholder, who is a stranger: Howbeit such a Copyhold after such severance of it from the Manor can never afterwards be conveyed by surrender, or otherwise, but must still be left to descend, etc. Co. lib. 4. 118. a. 3. in Acton's Case. 16 If a Baroness in her Widowhood retain a chaplain according to the Statute of 21 H. 8. c. 13. and after marry a Peer of the Realm; Retainer of a Chaplain. Albeit this seems to be casus omissus in that Act, yet shall not such marriage be a Countermand of the retainer; for, Res inter alios acta, etc. Co. l. 5. 99 b. 4. 17 Tenants at Will, Act of tenants. or other particular Tenants or occupiers of Land cannot by their Act bind him, that hath the Inheritance. In Rookes Case. Co. l. 6. 12. b. 4. Morri●●s Case 18 It is said, that if two joint-tenants be with warranty, Joint-tenants, Warranty, Severalty. and one of them disseiseth the other, and the disseisée brings an Assize, and upon his prayer hath judgement to recover in severalty; In this Case, the Warranty is gone: For, albeit he hath partition by judgement, yet he, that is bound by the Warranty, is neither party nor privy, or any way consenting unto it: as he is, when the partition is made by force of the Act of Parliament. Co. l. 6. 50. b. 2. in Boswels Case. 19 It is agreed per totam Curiam in 50 E. 3. 14. Presentment by term. Guardian. b. that if Tenant for years, or Guardian bring a Quare Impedit, and the Defendant hath a Writ to the Bishop against the termor or Guardian, and his presentée is admitted, instituted, and inducted; yet the Tenant of the Franktenement is not put thereby out of possession, etc. Co. l. 6. 51. b. 4. in Boswels Case. 20 No imcumbent shall be removed upon the Statute of West. 2. In Quare I●pedit the Incumbent 〈◊〉 cap. 2. by Quare Impedit, or Assize de darrien presentment purchased within the six months, unless the incumbent be named in the writ, quia res inter alios acta alteri nocere non debet; Although the incumbent be in by defeasible title: And with his accords 9 H. 6. 32. For, quicunque aliquid statuerit, parte inaudita altera, aequum licet statuerit, haud equus fuerit. Co. lib. 6. 57 Bredimans' Case. 21 A man deviseth rend for life out of the Manor of D. and deviseth the manor for years to another, Rend paid b● the Lessee, 〈◊〉 prejudice to the terre-te● the termor enters and pays the Rent, af●er the term ended, the devisée of the Rent brings an Assize against the Terretenant; And it was adjudged that the payment of the Rent by the Tenant for years was not sufficient seisin to bind the Terretenant after the term determined: For, there is a diversity between receiving and giving of seisin; because it is true, that he which hath but a term for years may take seisin to the benefit of him that hath the Franktenement: In 45 E. 3. 26. The grantée for years of a Common useth it, this gives seisin to him in Reversion, 22 Ass. 84. accord 11 E. 3. Assize 86. payment to the grantée for years of a Rent, is sufficient seisin for him in Reversion: in M. 39, & 40. El. the Countess of Northumberlands Case in the 5. Rep. fol. 97. b. Presentment by the grantée for years of the procheine avoidance is a sufficient title in a Quare Impedit for the Grantor: There is the same Law of Lessée for life, tenant in Dower, by the Courtesy, Guardian, Tenant by Statute Merchant, staple, etc. And this agrees with divers opinions in 7 E. 4. 20. 22 E. 4. 9 b. 16 H. 7. 18. a. 9 H. 7. 23. Br. Quare Impedit, 1 22. 13 El. Dier 300. But sicut beatius est, ita majus est dare quam accipere, for the termor cannot give seisin of the Rent (as in the Case alone put) because that would trench to the dis-advantage of the Terretenant, who is a stranger: Howbeit he may take seisin, etc. for his benefit, according to the Rule, Res inter alios acta alteri nocere debet, sed quandoque prodesse potest. In Quare Impedit the Patron must be party. 22 John Hall brings a Quare Impedit against the Bishop of Bath and Wells, Co. l. 7 25. b. 4. in Mauntons' Case. and Thomas Maunton Clerk defendant for disturbing him from presenting to the Vicarage of W. And it was resolved, that the writ should abate; because the Patron was not named in the writ; for so the Patronage might be recovered against him, that hath nothing in it: And it is no reason, that he, who is Patron, should be dispossessed and outed of his Patronage, when he is a stranger and no party to the writ, and especially in this Case, when he may be made party to the writ, etc. So in 42 E. 3. fol. 7. One brings a Quare Impedit against another, the Defendant saith, that he claims nothing in the Patronage, but saith that the Bishop presenteth him by laps, Judgement si tort. etc. And there Belknap prayed a writ to the Bishop, because he dis-claimed in the Patronage, but the Court could not grant it: because neither the Patron nor the Bishop (who in that Case was in lieu of the Patron) were named in the writ: And therefore it was adjudged, that the writ should abate: For, if such a writ should be mainteinable, every Patron by covin between a stranger and the incumbent might be outed of his advowson: And with this agreed, 9 H. 6. 30, 31. etc. 3 H. 4. 2, & 3. 13 H. 8. 13. Howbeit in a Quare Impedit, when the presentation only 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, etc. as it was adjudged in 7 H. 4. 25. 37. Joint-tenant Release. Continuance. 23 A judgement in debt is given against joint-tenant for life, Co. l. 6. 78. b. in the Lord of Aburgavenies Case. who releaseth to the other, who dies, the Reversioner enters, the Plaintiff sues execution: And in this Case, it was adjudged, that notwithstanding the death thereof lessée, and that the Lessor enters, and is in of his ancient right; yet as to the Plaintiff the estate hath continuance: And if the Baron seized of Rent, Dower. Rent. Common. Common, etc. in fee, releaseth to the Terretenant, that Rent, Common, etc. is extinct: And yet having regard to the Feme they have continuance: for she shall be thereof endowed, as it is adjudged in 5 E. 2. Dower 143. etc. Rend in esse after release. 24 Dixwel and his Wife, Co. lib. 7. 38. Lillingstones' Case. and Sillingston and his Wife levy a fine of the Rectory of Litlington in Com. Bed. the Conusées render a rent: charge of 30 l. per an. to several for life to commence after his wives deceise, proviso, quod non extendit ad onerandum personas les Conusees, etc. and then also render the Rectory to Dixwell during his wife's life, the Remainder to Lillingston, etc. acknowledgeth a recognizance to Duncombe of 500 l. in the nature of a Statute staple according to the Statute of 23 H. 8. the Wife Dixwel dies, Lillingston enters, Dixwel releaseth to Lillingston, Duncombe, sues a Cerciorari to the Clerk of the Stat. who certifies the recognizance, whereupon the rent was extended, and upon a liberate was delivered unto Duncombe, who brings an Action of debt against Lillingston (who all that while was Tenant of the Rectory) and Duncombe averred the life of Dixwell: And it was adjudged, that as to Duncombe (who is a stranger) notwithstanding such release the Rent remains in esse; for, to some purposes by the Common Law a rent extinct shall be in esse, as to a stranger, etc. as if the Baron be seized of a rent in fee, and release to the terretenant; yet the Feme shall be endowed, etc. Co. l. 8. 133. a. 2. in Turner's Case. 25 If an Executor, or Administrator compound with one, Administrator, composition. who hath judgement of 100 l. for 60 l. this underhand composition shall not prejudice another creditor, that is a stranger: For, an Executor and Administrator ought to execute their office lawfully, in paying all duties, debts, and legacies in such precedency as the Law requires: truly, in converting nothing to their own use, diligently, quia negligentia semper habet infortunem comitem; And an Agreement between two shall not annoy a third person. See Goodals Case, Co. lib. 5. 96. & supra R. 85. ex 8. Co. lib. 8. 136. a. 1. in Sir John nedham's case. 26 If the obligée make the obligor his Executor, Bishop. Obligor. Administrator. this is (in Law) a release of the debt; because it is the Act of the obligée himself, and with this accords 8 E. 4. 3. 21 E. 4. 2. b. etc. But if the Archbishop Grant letters of Administration to the obligor, this shall not extinguish the debt, but it shall still remain; for, the Act of the Archbishop and the obligor shall not wrong the dead, who is (in that Case) as a third person. Co. l. 8: 138. a in Sir Francis barrington's Case. 27 It appears by the preamble of the Statute of 22 E. 4. cap. 7. Statute of 22. E. 4. 7. (which gives Licence of enclosing several woods in forests, etc. seven years after they are felled for the better preserving of them from cattle) between what persons and for or against whom that Act was made: And the parties to that great contract by Act of Parliament are, the subjects having woods, etc. within forests, chaces, and perliens, on the one part, and the King and other owners of forests, chaces, and perliens, on the other part: so that the Commoners are not any of the parties, between whom that Act was made: And therefore being strangers unto it ought to receive no prejudice by it: So likewise the Act of 2 H. 5. being made between the King and the Prior's aliens (whereby the Priories aliens were given to the King) shall not extinguish the annuity of the Prior of Castleacre, which he had out of a Rectory parcel of a Priory alien: Albeit there was not any saving in the Act: And M. 25, & 26 Eliz. in Boswells Case in Curiam Wardorum, it was resolved, that when an Act makes any conveyance good against the King, or any other person or persons in certain, this shall not take away the right of any other, albeit there be no saving in the act to preserve his right, etc. Co. l. 8. 145. b. 2. in Davenports Case. 28 The Earl of Huntingdon being possessed for 15 years of a Rectory unto which a Vicarage was appendent, Procheine, Avoidance infra 〈◊〉. grants the prochiene avoidance thereof, and dies, his Administrator surrenders, & the Vicarage becomes void within the term: And in this Case it was resolved, that the term (notwithstanding extinct by the surrender, yet) as to the grantée (who was a person) had continuance, etc. Co. l. 9 135. b. 2. in Astoughs Case. 29 It is regularly true, Coperceners' Disseisor. that a Seignory cannot be suspended in part and in esse for part, as it is holden in 32 H. 8. Extinguishment, Br. 48. nevertheless, habet haec regula plures fallentias; as if there be two Coperceners of a Seignory, and one of them dissieseth the Terretenant, or comes to the Land by defensible title, the other may distrain her for her moiety of the Signiory: for the practice of her Copercener against the Terretenant cannot prejudice her in that Case. Co. l. 9 141. a. 2. in Beaumont's Case. 30 If a disseisor make a gift in tail, Tenant in 〈◊〉 Fine no ba● the Donée makes a feoffment to A. and after levies a fine with proclamations to B. who had nothing &c. This fine with proclamations shall bar the issues in tail: because the issues in tail being privy shall not plead, quòd partes finis nihil habuerant: But it shall not bar by the disseisée: because the fine as to him was void: So that (in this Case) as to the heirs in tail the fine shall bind, but not as to the disseisée, who is a stranger: So likewise in Beaumont's Case in the 9 Rep. fol. 141. the fine levied by the Baron, as to the Issues in tail, was a bar, but not as to the Feme, who was a stranger unto it: And therefore if there be Baron and Feme tenants in special tail, the Reversion to the Donor, they have issue, the Baron levies a fine with proclamations to a stranger and dies, the Feme enters; In this Case the Feme hath devested the whole Estate out of the Conusee, and revested the Estate tail in herself, the immediate reversion to the Donor, and hath left nothing but a possibility in the Conusée: for the practice between the Baron and the Conusée shall not bar the Feme, of her right, who is a third person. Term not extinct by purchase of the fee. 31 A. possessed of an house in London for 31 years, deviseth, Co. l. 10. 52. a. 3. in Lampets' Case. that Isabel his wife shall enjoy the profits thereof, durante Viduitate, and that then the residue of the term should remain to B. and dies, Isabel by licence of the executor enters into the house, and purchaseth the fee, and then marries C. whereupon B. enters; And it was resolved, that he might so do; for albeit the whole term was in Isabel, quousque, etc. so that by the purchase of the Fée-simple, the interest of Isabel was extinct, yet that shall not defeat the executory Interest of B. but that after the marriage of Isabel, and not before, he may well enter, etc. Hammington and Rudyars Case, Tr. 28. Eliz. rot. 1674. cite per Co. Ch. Just. ubi in margin. In an Act of Parl. the subject concerned 32 Whereas the Act of 32 H. 8. cap. 46. ordains, Co. l. 11. 3. b. 4. in Auditor Curls Case. that the King shall appoint two to be Auditors of the Court of Wards, who shall be accounted as one Officer; In this Case, the King cannot appoint only one to execute that Office; for that would be a wrong to the subject, who by force of that Act are concerned in the appointment of that Officer, according to the same Act, etc. In a popular Action, the interest of the Informer not barred. 33 After a popular Action commenced, Co. l. 11. 65. b. 4. in Doctor Foster's Case. albeit the King's Attorney will enter, Ulterius non vult prosequi, or if the Defendant plead a special plea (wherein the Attorney-General useth to reply alone) albeit the Attorney will not reply or prosecute for the King, yet the Informer may prosecute for his part; because the Informer by commencing that Sult hath made that Action, which was popular, to become his private Action, which neither the King nor any other can release, as to the Interest of the Informer, Tr. 31 Eliz. Stretton and Tailor's Case, cite ubi in margin. A Praecipe in C●●ite of lands ●ot holden stayed. 34 If the tenant will sue a Praecipe in Capite in the King's Court for such Lands as are holden of another Lord, the Law will not suffer it, F.N.B. 3. d. but that Lord shall (in that Case) have a writ out of the Chancery directed to the justices of the Common Pleas, commanding them, that if it do not appear unto them, that the Lands are holden of the King, but of another Lord, that then they shall not proceed farther, etc. in that Plea, etc. assize de Dar●in present●ent. 35 If tenant for term of years, life, in Dower or by the Courtesy, F. N.B 31. g. suffer an usurpation to the Church, etc. and the term determines, or the tenant dies, he in the reversion who is heir to the Ancestor that last presented, shall have an Assize de darrein presentment, if he be disturbed: It is otherwise, if his own tenant, to whom he himself was Lessor, suffer an Usurpation; for than he shall not have such an Assize, etc. because (as it seems) it will be then imputed to the Lessors folly that he would not restrain the tenant from so doing, by the Covenant, etc. darrein pre●ntment. 36 In Darrein presentment between two strangers, F.N.B. 39 c. the Assize finds title for another stranger that was not party to the writ: In this Case that third party shall have a writ to the Bishop awarded him, albeit he was not party; for, the writ is, Quis advocatus ultimò praesentavit, etc. F. N. B. 61. b. 37 In a real Action, if the tenant make feoffment, Estrepement verse. tenant & feoffee hanging the Plea, and the Demandant is in doubt, that waste will be committed, etc. the Demandant may have a writ of Estrepement, both against the tenant, and also against his feoffée, etc. And it seems by the same reason, that he may likewise have a writ of Estrepement against the tenant, and also against those that are his servants, naming them by their names, etc. Albeit they have nothing in the tenancy, etc. Tamen quaere. F. N. B. 134. a. b. 38 In a Perambulatione facienda, Peramb●lati●●. if it be made by the consent of both parties, being tenants in fée-simple, it is binding to them and their heirs; but if tenant for term of life of a Seignory, and another who is tenant in fée-simple of another Seignory adjoining, sue such a writ or Commission, whereupon perambulation is made; It seems, that that shall not bind him in reversion; neither yet shall perambulation made by the assent of tenant in tail bind his heir. F. N. B. 150. c. 39 If the tenant fore-judge the Mesne, yet the Feme of the Mesne shall be endowed. Parsons One title. Two titles. Indicavit. 40 If two Parson's claim under one and the same Patron one of them may sue spoltation against the other in the Court Christian, albeit the profits amount to a fourth part or more: because the title of the Patronage comes not in debate: But if they claim by several Patrons, and the tithes, or profits, or pension spoiled amounts to a fourth part or more; then forasmuch as the Patron of the Parson grieved (being a stranger) may suffer prejudice, he shall (in that Case) have an Indicavit or Prohibition to remove the Suit into the King's Court, there to be tried at the Common Law; because then the title of the Patronage will come in debate, etc. Vide Statute West. 2. cap. 5. Pl. Co. 32. a. 3. in Colthirst & Beinshins case. 41 If a man demise land to A. for life, the remainder to B. for life, Remainder void. and if B. die, that then C. shall have the land, during the life of A. this demise is void for the prejudice of the particular Estate; for things done in prejudice of others shall be void; As in the Case of 21 E. 4. where the King had granted to an Abbot, that he should not be Collector, when any tenths were granted per Clerum Angliae: Exemption not void by Proviso. And then the Clergy of the Province of Canterbury had granteth a tenth to the King, with a Proviso, that no Collector, which the Bishop would return, should be discharged by any Letters Patents of Exemption made by the King; And the Bishop returned the said Abbot Collector; And there it is holden, that the Grant made by the Clergy in that point, viz. to charge persons exempt is void; because it is in prejudice of others: And so also the abovesaid remainder to C. shall rather be void, than a stranger shall suffer prejudice by it. Co. Inst. p. 1. 117. a. 2. 42 If a Villain purchase Land, the Lord may seize it, The Lord shall not sei●● common 〈◊〉 number. etc. but if he purchase a common Sans number, the Lord shall not have it; for the Lord may surcharge the same, and that would trench to the prejudice of the terretenant, who is a third person; there is the same Law also of a Corodie uncertain, granted to a Villain, and of all other such like uncertain inheritances. Co. ib. 100 b. 1 43 If the tenant be disseised, The Act of Disseisor no prejudice. and the disseisor in a writ of M●sne fore-judge the Mesne, this shall not bind the disseisée: so likewise if the Mesne be disseised, and a fore-judgment is had against the disseisor, this shall not bind the disseisée; for the words of the Statute of West. 2. cap. 9 are, Quando tenens sine praejudicio alterius, quàm medii, attornare se potest capitali Domino. 44 Admittances made by Disseisors, Abators, Intruders, Co. Inst. p. 1. 58. b. 2. Tenant at sufferance, Admittances per Dominos pro tempore. or others, that have defeasible titles, are good and effectual in the Law: For it is no reason, that the Lords competitors for the title of the Manor, should by any Act they do prejudice the Copyhold Tenants, who are strangers to the difference betwixt them; for if they be admitted by any, who is Dominus pro tempore, it sufficeth; howbeit such wrong-doers cannot grant voluntary Copies. Advantage to strangers. 45 Lessée for life levies a Fine, come ceo, etc. to a Disseisor: Co. l. 2. 55. b. 3. in Bucklers ca this is a forfeiture, and he in remainder or reversion shall take advantage of it: Vide plùs, ibid. It is said, that if the Disseisée levy a Fine to a stranger, the Disseisor shall retain the Land for ever: For the Disseisée against his own Fine cannot claim the Land, neither can the Conusée enter, for the right of the Conusor cannot be trans-ferred to him, but by the Fine the right is extinct, and the Disseisor shall take advantage thereof. Both wardship and relief 46 If there be Lord and tenant by divers tenors in Knight-service, and the tenant is disseised of the one, Co. Inst. p. 1. 83. b. 4. and the Disseisor dieth seized, and the tenant dieth seized of the other, his heir within age, the Lord seizeth the Body and Lands of that Manor, and after the heir at his full age recovereth the other Manor against the heir of the Disseisor: In this Case, the heir shall pay relief for the Manor recovered, and the descent cast shall not hinder it: for, res inter alios, etc. And so one Lord of the heir of one tenant shall have both wardship during his minority, and also relief at his full age. Vllain professed or Neife married. 47 If a Villain be made a secular Chaplain, Litt. §. 202. Co. ib. 136. b. 2. yet his Lord may seize both him and his goods; and albeit the Lord cannot seize his Villain that is professed in Religion; nor his Neife that is married to a Freeman; not this, because Marriage is honourable and indissoluable; not that, in favorem Ecclesiae, and because than he cannot live according to his Profession and Religion; yet in both these last Cases, the Lord shall have his Action in his Case, and shall recover what he is damnified; for albeit the Profession and Marriage were lawful; yet when they work a prejudice to a third person, an action lieth against the Sovereign of the house and the husband, to the value of the loss. Ordinary. Administrator 48 The Ordinary was sued, after the administration committed, Dier. 247. 73. 8 El. in plaint of a Debt in London, and Nihil habet being returned, upon suggestion the debt was attached in the hands of one W. who was indebted to the testator, and after four defaults of the Ordinary, being returned, non est inventus, and Oath made that the Debt was due, the Plaintiff had judgement and execution against the said W. against whom the Administrator also brings Debt, who pleads the matter suprà, whereupon the Plaintiff demurs, and it was adjudged, that he should recover: for after the administration committed, Debt lieth not either against or for the Ordinary, and (indeed) it lay not at all until West. 2. 19 which is within memory, and cannot make a custom: And it stands not with reason, that the undue actings of strangers should debar the Plaintiff of his due Debt. Tofts Case. 87 Nemo punitur pro alieno delicto. Co. Inst. p. 1. 145. b. 3. 1 In a Replevin, Replevin. the Defendant cannot claim property by his Bailiff or Servant, because if the claim fall out to be false, he that claims shall be fined for his contempt, which the Lord cannot be, unless he maketh claim himself; And, Nemo punitur pro alieno delicto. Co. ib. 54. a. 1. 2 A Guardian shall not be punished for waste done by a stranger, Guardian. it is so penal unto him; for he shall lose the wardship both of the body and of the land, though the waste be but of the value of twenty shillings; and if that sufficeth not to satisfy for the waste, than he shall recover damages of the waste, over and above the loss of the ward, And, Nemo punitur, etc. Co. l. 4. 33. b. 4 in Mittens Case. 3 Qéen Eliz. by her Letters Patents grants the Office of the Clerkship of the County-Court of the County of Somerset to Mitton, and then constitutes Arthur Hopton, Grant of the Clerk of the County. High Sheriff of the same County, who grants that Office to another, and (upon Mittens complaint) it was adjudged that he might: And one of the reasons of that resolution was this; That in all writs to remove any Plea out of the County Court into the Common Pleas, the King calls the County-Court, the Court of the Sheriff; and if the Sheriff do not by force of such writs certify the Record, then shall issue out process of contempt against him and if the Record be imbeziled, the Sheriff shall answer for it: And therefore it will be full of danger and damage to Sheriffs, if others sh●ll be appointed to keep the Entry and Rolls of the County-Court, and yet the Sheriff to be liable to answer for them, as immediate Officer to the Court: for, Nemo punitur, etc. And therefore the Sheriff ought to appoint Clerks under him of the County-Court; for which he shall at his peril answer, etc. Co. l. 12. 5. b. 3. in Sanders Case. 4 In foster's & Miles Case, p. 28. Eliz. in Com. Banco, Rot. 820. Waste. it was said, that if Lessée for years devise his term to another, and makes his executors, and dies, and then the executors make waste, and after assent to the Devisée; In this Case, albeit between the executors and the Devisée that hath relation, and the Devisée is in by the Devisor; yet an action of waste shall be maintainable against the executors in the t●nuit: So likewise if the Grantée of a Term upon Condition make waste, and after the Grantor enter for the Condition broken, the action of waste shall be maintainable against the Grantée in the tenuit, etc. 30 E. 3. 16. accord. Co. l. 11. 42. b. 3. in Godfrey's Case. 5 At a Léet the Homage was jointly fined six pounds; Joynt-fine in Leet. because they would not present according to their duty, etc. And it was resolved, that the Fine so imposed upon the jurors jointly was not legally imposed; because, the refusal of any of them being several and personal, and the refusal of one not the refusal of another; the Fine aught to have been assessed upon them severally, and not jointly; for, if some of them did refuse, and the rest were ready to present, etc. those that refused were only to be fined. And therefore the Case put Prisot in 35. H. 6. Examination 17. that if one of the Enquest escape, after that they are sworn; so that they cannot give their verdict, although the rest did not assent thereunto, yet all should be fined, was utterly denied to be law; for Nemo debet puniri pro alieno delicto, whereunto he was neither party, privy, assenting, nor consenting; because than it might be said, Rutillius fecit, Aemilius plectitur: And it was said, that that Case was either ill reported, or ill printed. Waste. 6 If a stranger make waste of his own wrong after the writ of Estrepement delivered unto the tenant, and against the tenants will; F. N. B. 61 h. In that Case the tenant shall not be punished for that waste. Joint-amerciament in Court. Baron. Co. Pl. etc. 7 In a Court Baron, F. N. B. 75. g, h i, k. if two be amercied outrageously for one and the same trespass, they shall not join in a writ de moderata miserecordia, for they ought to be severally amercied, albeit the trespass was jointly committed; So it is also in a Plaint sued by two, if they be nonsuited; for the amerciament ought to be several, and they shall not join in a moderata miserecordia, because the one ought not to be charged with the offence of the other: And therefore the course in the Common Pleas is, when divers Defendants are amercied, to make the Estreats of the amerciaments several: Likewise, if divers Demandants are amercied in a Plea real for their Nonsuit, they set the Estreats severally upon them: And in these Cases, in the Common Pleas, the course is, for the Clerk of the Warrants to deliver those Estreats to the Clerks of Assize, and they to the Coroners, who are to affeire them, and then to redeliver them to the Clerks of the Assize, and they to the Clerk of the Warrants, who makes the Estreats, and then one of the justices of the Bench, together with the Clerk of the Warrants, goes with the Roll of the Estreats into the Exchequer, and there puts them in before the Barons of that Court, from whence they issue to the Sheriff of every respective County to be levied for the King's use, and the Officer in the Exchequer, that serves them, and so prepared them for every several County, is called the Clerk of the Estreates. 〈◊〉 audita que●●l●. Nonsuit no prejudice. 8 In an Audita querela brought by two, Co. Inst. p. 1. 139. a. 4. concerning the personalty, the Nonsuit of the one is not the Nonsuit of the other, because it goeth by way of discharge and fréeing of themselves: And therefore the default of the one shall not hurt the other. ●●●as●avit. 9 In Debt against two Executors, Dier. 210. 23. 3 ●liz. one appears and confesseth the Action, the other makes default, and judgement to recover de bonis Testatoris, in both their lands; to which purpose a Fieri facias issues out to the Sheriff, who returns riens; but that he who made default, had wasted before the receipt of the writ, whereupon a Scire facias issued out against him only that had wasted the goods, and he making default, upon Scire feci returned; Execution was awarded of his proper goods only, and not of his Companions. 〈◊〉 to ac●● su●●eties. 10 In a writ de Plegiis acquietandis, Dier. 157. 12. 9 Eliz. the Plaintiff counts that he was bound with the Defendant as his surety, and at his request to a stranger by Bill Obligatory, and that at the day assigned the Creditor was not paid by the Defendant, whereupon at the Creditors Suit the Plaintiff was arrested, and imprisoned, etc. And the Defendant cognovit Actionem, whereupon judgement was given, quòd acquiete● the Plaintiff versus the Creditor of the sum and damages assessed by the Court, etc. Vide F. N. B. 137. c. ●avishment. 11 The Statute of West. 2. 35. Hob. 93. 7 Jac. Rot. 759 More & Hussey (against ravishment of Wards) hath two aspects in it, one civil, another criminal; for it provides, that the Executor shall answer for the value, sed non quoad poenam prisonae, for Nemo pro alieno facto est puniendus: It is so likewise for husband and wife: For albeit the wife be only guilty, yet the husband shall answer the damages, but shall not be subject to abjuration, or immediate Imprisonment, which is to be perpetual. Howbeit, to the mediate Imprisonment, viz. upon a writ of Execution for the damages and the value of the Marriage, he shall be liable, as in other trespasses, where the wife only is guilty of the fact. 88 The Law favoureth things done in another's Right. Co. Inst. p. 1. 52. a. 2. 1 Few or no persons are disabled in Law to be private Attorneys to deliver seisin; for Monks, Infants, Femes covert, Attorney to deliver seisin, Persons disabled. persons attainted, outlawed, excommunicated, Villains, Aliens, etc. may be Attorneys: So a Feme may be an Attorney to deliver seisin to her husband, and the husband to the wife, and he in the remainder to the Lessée for life: And the reason hereof is, for that the Attorney doth nothing in his own right, but in the right of another. Co. ib. 52. a. 3. 2 If Lessée for life make a deed of Feoffment, Attorney to deliver seisin. and a Letter of Attorney to the Lessor to make Livery, and the Lessor maketh Livery accordingly, notwithstanding such making of Livery, he shall enter for the forfeiture; because he doth it in another's right, and the Lessée for life had Fréehold, whereof to make Livery: It is otherwise of Lessée for years, because (in that Case) the Fréehold being in the Lessor, and not in the Lessée, the Lessor cannot do it as Attorney to the Lessée, etc. Co. ib. a. 4. 3 If the Lessor make a deed of Feoffment, Lessee for years. Attorney to deliver seisin. and a Letter of Attorney to the Lessée for years to make Livery, and he doth it accordingly; this shall not drown or extinguish his Term, because he did it as a Minister to another, and in another's right: And that is accounted (in judgement of Law) the act of the Feoffor, and not of the Lessée; neither yet doth the Feoffée claim any thing from the Lessée, etc. Co. ib. 4 If the tenant devise, that the Lord shall sell the Land, Devise. and dieth; and the Lord selleth it accordingly; yet the Seignory doth still remain; because the Lord selleth the Land in another's right, etc. Co. ib. 88 b. 4. 5 A Guardian in soccage shall not forfeit his Interest by Outlawry, or attainder of Felony or Treason; Guardian is Soccage. because he hath nothing to his own use, but only to the use, and in the right of the heir, whose Guardian he is. Co. ib. 112. a. 4. 10 H 7. 20. 6 If (after the Statute of 1 R. 3. cap. 1. Sale by Fe●● to Baron. and before the Statute of Uses in 27 H. 8. cap. 10.) Cestuy que use had devised, that his Wife should fallen his Land, and had made her Executrix, and died, she had taken another husband: In that Case, she might have sold the Land to her husband; for she doth it in altar droit, and her husband would have been in by the Devisor, etc. Co. ib. 113. a. 3 7 If a man devise, that his Executors shall sell his Land: Devise of a Reversion t● be sold by executor. In this Case, the Executors have no Estate or Interest in the Land, but only a bare and naked power; yet this Feoffment amounteth to an alienation to vest the Land in the Feoffée: for they do it in altar droit; And the Feoffée shall be in by the Devisor: So likewise if a man deviseth that a Reversion or other thing that lieth in grant, shall be sold by his Executors, they may sell the same without Deed; for the Vendée shall be in by the Devisor, and not by the Executors, Causa qua suprà. Co. ib. 117. a. 2 & 124. a. 4, etc. 8 If a man be Lessée of a Villain for life, for years, or at will, Villain. & the Villain purchaseth the lands in fee, if the Lessée entereth into the lands, he shall hold the Lands as a perquisite to him and his heirs for ever; For the Law respecteth the quality and not the quantity of his Estate: But if a Bishop hath a Villain in right of his Bishopric, and he purchaseth Lands, and the Bishop entereth, the Bishop shall have his perquisite to him and his Successors and not to him and his heirs; Bishop. for it came into his hands as in another's right: So if Executors have a Villain for years, Executors. and the Villain purchaseth Lands in fee, and the Executors enter, they shall have a fée-simple, but it shall be assets in their hands: For they have it in right of the Testator, etc. Villain. Executor. Lord, Debt. Trespass. 9 A Villain may (as Executor) have an Action of debt against his Lord, because it is not to recover a debt to his own use, Lit. §. 191, 192 Co. ibid. 124. Finch 27. but to the use of the Testator: neither yet shall the Lord take out of the possession of such Villain, (who is Executor) the goods of the deceased, because he is possessed of them in another's right: And if the Lord do take them the Villain shall maintain an Action of Trespass against him, and therein recover damages against him to the use of the Testator, etc. for they shall be assets in his hands, etc. Outlawry no ●is-ability. 10 If an Executor or Administrator sueth an Action, Co. ibid. 128 a. 3 Finch 27 out-lawry in the Plaintiff shall not dis-able him, because the suit is in altar droit, viz. In the right of the Testator and not in his own right: And for the same a Mayor and Cominalty shall have no Action, though the Mayor be outlawed, etc. So it is also of one excommunicated. abbot, etc. ●lien. 11 An Abbot, Prior, or Prioress Alien, shall have Actions real, Co. ibid. a. 4. & b. 1. personal,, or mixed for any thing concerning the possessions or goods of his Monastery here in England, although he be an Alien borne out of the King's allegiance; because he bringeth it not in his own right, but in the right of his Monastery, and not in his natural, but in his politic capacity. Monk etc. professed in religion. 12 A Monk or any other professed in Religion within the Realm shall have an action in some Case, as if he be made an Executor, Co. ibid. 13●● b. 3. or if he be an Administrator, he shall maintain an Action, not in his own right, but in the right of the dead: So if a Monk be made a Bishop, or a Parson, or a Vicar, he shall have an Action concerning his Bishopric, Parsonage, or Vicarage, & sic de similibus: Likewise an Abbot, or Prior, or any other Sovereign of an house of Religion, albeit they be professed 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 concerns their house; For, they do it in altar droit, and otherwise their house might be prejudiced, and other men also of their lawful actions: And this is the ancient Law of England, as appears by the Mirror (c. 2. §. 14.) in these words Des biens des gents de Religion, appent l'action all Chiese en fon nosme par luy & son Covent: Also if a Monk, etc. be wounded, beaten, imprisoned, etc. the Abbot and the Monk shall (in that Case) join 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 acquitted his Sovereign and he shall join 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 Nun sanctimonialis, mutatis mutandis. ●an may his own ●●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 own Executors, etc. ●●●●ons, and ●●ance. 14 Regularly, Co. ib. 139. a. 4 in personal actions there shall not be summons and severance, for the nonsuit of one is the nonsuit of both, etc. Nevertheless, 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 own possession: There is the like Law also in account, as Executors, by the receipt of their own hands, etc. 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 altar droit: but (in that Case) a release without payment is void, etc. 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. etc. 17 If Land be given to two Abbots and to two Successors, Grant to t●● Abbots. Tenant in Common. they shall not take by survivor, but are ab initio Tenants in Common; for albeit the words be joint, yet in regard of their several capacities, whereby they hold it in several altar droits, the Law doth adjudge them to be severally seized: So it is also of a secular body politic 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 always of capacity to take; yet seeing they take this purchase in their politic capacity, as Bishops, they are presently Tenants in Common; because they are seized in several rights, etc. The like Law is of two Parsons, and their Successors, or of any other such like Ecclesiastical body Politic, or Incorporate, etc. 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 heirs, 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 Layman, to have and hold to the Parson and his Successors, and to the Layman and his heirs: So also of a Bishop, etc. C. ibid. a. 4. 19 If Land be given to John Bishop of Norwich, A man Te●●● in Conditor with himself and his Successors, and to John Over-all Doctor of Divinity and his heirs, being one and the same Person: In this Case, he is Tenant in Common with himself. Co. ibidem. 20 If Land be given to the King and to a subject to have and to hold to them and to their heirs, The King 〈◊〉 a subject T●nant in Common. yet they are Tenants in Common and not joint-tenants; for the King is not seized in his natural capacity, but in his Royal and politic capacity, in jure Coronae, which cannot stand in jointure with the seisin of the subject in his natural capacity: So likewise, if there be two joint-tenants, and the Crown descend to one of them, the jointure is thereby severed, and they are become Tenants in Common, etc. Co. ibid. 215. b. 4. 21 If there had been Lord and Tenant, Guardian Entry. Reentry. and the Tenant had let the Land for life rendering Rend with clause of reentry, etc. In this Case (at the Common Law) neither the assignée in deed (as the alienée) or the assignée in Law (as the Lord by escheat) could take advantage of the reentry; Howbeit (at the Common Law) Guardian in Chivalry or in soccage might in the right of the heir take benefit of a Condition by entry or reentry, etc. Grant 〈◊〉 ●●shop or 〈◊〉 with Co●● on not to 〈◊〉 goods. Co. ibid. 224. a. 3. 22 If a man make a feoffment in fee 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, alien: because it was intended a Mortmain, viz. that it should for ever continue in that sea or house: for that they had it in altar droit, for religious and good uses, as was pretended, etc. Feme Execu●●ix. Baron release. 23 If a Feme creditor take the debtor to Husband, Co. ibid. 264. b. 4. M. 30 & 31 El. & Co. l. 8. 136. a that is a release in Law of the debt: but if a Feme executrix take the debtor to husband, that is no release in Law: because she hath the debt in another's right, and that would be a wrong to the dead, and in Law work a devastavit, which an Act in Law shall never work, etc. In Sir John nedham's Case. Plene admini●●●ravit. 24 Upon Plene administravit pleaded by an Executor, Co. ibid. 283. a. 2 Et issint riens inter manis, if it be proved, that he hath goods in his hands, which were the Testators, he may give in evidence that he hath paid to that vain of his own money, and ne●● not plead it specially: because what he did in that case, was in another's right. A term drow●ed. 25 A master of an Hospital, ●sing a sole corporation, Co. ibid. 338. b. 3 by consent of his Brethren, makes a lease for years of part of the possessions of the Hospital, and afterwards the Lessée for years is made Master: In this case, the term is drowned for a man cannot have a term for years in his own right, and a freehold in altar droit to consist together (as if a man Lessée for years take a Feme Lessor to Wife, etc.) But a man may have a frée-hold in his own right, A term not drowned. and a term in altar droit: And therefore if a man Lessor take a Feme Lessée to Wife, the term is not drowned, but he is possessed of the term in her right during the coverture: So if the Lessor made the Lessée his Executor the term is not drowned: Causa qua supra: Howbeit in the case first put, if it had been a corporation aggregate of many, the making of the Lessée master had not extinguished the term, no more than if the Lessée had been made one of the Brethren of the Hospital: because he then had the frée-hold in altar droit together with others, etc. ●arson. ●●ar. 26 A Parson of Vicar of a Church because he is seized in right of his Church, Co. ibid. 341 a. 3 for the benefit of the Church and of his Successor is in some cases esteemed in law to have a fée-simple qualified, but to do any thing to the prejudice of his Successor, in many Cases, the Law adjudgeth him to have in effect but an Estate for life; ●heir aliena●●●o dis●●tinuance. Causae Ecclesiae publicis causis acquiparantur, and summa ratio est, quae & Religione facit, Litt. §. 643. and Ecclesia fungiter vice minoris. Meliorem facere potest Conditionem suam, deteri●● rem nequaquam; etc. His alienation of the Glebe makes no discontinuance, etc. ●eme Execut●●ix. chattels. ●eals. 27 If the Wife be possessed of Chattels real in altar droit, Co. ibid. 351. a. 4. as Executrix or Administratrix, or as Guardian in Soocage, etc. and the intermarrieth, the Law maketh no gift of them to the Husband, although he surviveth her: In the same manner if a Woman grant a term to her own use, and then taketh Husband and dieth, the Husband surviving shall not have his trust: but the Executors or Administrators of the Wife, for it consisteth in privity: And so it was resolved by the justices, P. 32 Eliz. in Cancel. in Withams' Case: H. 38. Eliz. in Cancel. in Waterhouses Case, etc. personal ●ods. ●ron, ●●e. 28 If a Feme sole be possessed of Chattels personal in her own right, Co. ibid. 35● b. 1 and she taketh Baron: In that Case, that marriage is an absolute gift (in Law) of all such Chattels, whether the Husband survive the Wife or no; But of personal goods in altar droit, as Executrix, or Administratrix, etc. the marriage is no gift of them to the Husband, although he survive his Wife. And as to personal goods (in Case of Baron and Feme) there is a diversity worthy of observation, between a property in personal goods (as is aforesaid,) and a bare possession: for if personal goods be bailed to a Feme, or if she find goods, o● if goods come to her hands as Executrix to a bailiff, and she taketh an Husband, this bare possession is not given to the Husband, but the action of detinue must be brought against the Husband and Wife: because the Possession which she hath, is in altar droit, etc. Co. ibid. 370. a. 4. 29 It is to be observed, Parson. Warranty. No bar 〈◊〉 Juris utrus, or Assize. that in all Cases which Littleton putteth in the chapter of Warranty, concerning lineal and collateral Warranty, the heir is still mentioned to be bound by them, be never making once mention of the Successor: from whence it may be inferred, that the Successor claiming in another right, shall not be bound by the Warranty of any natural Ancestor: And therefore in a Juris utrum brought by a Parson of a Church, the collateral Warranty of his Ancestor is no bar, because he demandeth he Land in the right of his Church in his politic capacity, and the warranty descendeth on him in his natural capacity; And albeit some have holden, that if a Parson bring an Assize, that a collateral Warranty of his Ancestor shall bind him: because the Assize is brought of his own possession and seisin, and he shall recover the mean profits to his own use: yet seeing he is seized of the Frée-hold, whereof the Assize is brought, in Jure Ecclesiae, which is in another right then the Warranty, it seemeth to be no bar in the Assize: And of this opinion my Lord Cook seems to be: because he produceth it last, according to his own Rule, etc. The like Law is of a Bishop, , Deane, master of an Hospital, and the like, of their sole poss●ssions; and of a Apprehend, Vicar, etc. Co. l. 4. 11. b. 3. in Bevils' Case. 30 If there be Lord and Tenant by fealty and two shillings Rend, Land and Tenant, Suit of Co● Abbot. and the Lord by encroachment, (viz. by the voluntary payment of the Tenant) happens seisin of more Rent: then he ought to have, the Law doth so greatly favour seisins and possessions, that neither the Tenant nor his heir shall avoid the seisin, so had by encroachment, in Avowry: Nevertheless, if an Abbot hold by fealty and Rent, and the Lord encroach suit by seisin of the Abbot, etc. This seisin shall not prejudice his Successor, but he shall discharge it: for there is not the same reason of the Predecessor to the Successor that there is to Ancestor to the heir, etc. As it is agreed in 4 E. 2. Avowry 204. Co. l. 8. 133. a. 1 in Turner's Case. 31 For as much as an Executor or Administrator hath not the goods of the dead to his own use, but in altar droit, to the use of the dead, Executor. Administrate ought to execute his O● lawfully, &c he ought to execute his Office, and to administer the goods of the dead lawfully, truly, and diligently: lawfully in paying all duties, debts, and legacies, in such precedency and order, as they ought to be paid by the Law: truly, viz. to convert none of them to his own use, neither yet by any practice or devise to bar or hinder any creditor of his due debt, but truly to execute his Office according to the trust reposed in him; diligently, Quia negligentia semper habet infortunium comitem, etc. Co. lib. 8. 135. b. 3. in Sir John nedham's Case. 32 The Bishop who is an Executor appointed by the Law, Ordinary 〈◊〉 not dispo●e● the Goods 〈◊〉 for the good 〈◊〉 the dead. Executor ●rante ●lia●tate. is not permitted by the Law to make a release of debt or gift of goods: For he hath a special property in the goods of the dead for the benefit of the dead, and nothing to his own use; and it appears in 9 El. Dier 253. that the Ordinary hath not power to give authority to another to sell the goods of the dead; because he hath not any such authority himself; And the Statute of West. 2. is, Bona deveniunt ad manus Ordinarii disponenda, viz. for the good of the dead: And he is not much unlike (as to that purpose) an Administrator durante minore aetate, who hath special power committed unto him to dispose of the goods of the dead, and nothing in prejudice of the Executor, as it is holden in Princes in the 5 Rep. fol. 29. So likewise the Lord of a Copyhold Manor, who takes a surrender to the use of another, hath only power to grant if according to the use of the surrender, and not to the use of any stranger, as it is holden in the 4. Rep. fol. 28. in Westwickes' Case. ●dministrati● to the Ob●go●. 33 If the Obligée make the Obligor his Executor, Co. ib. 132 a. 1. in Sir John nedham's Case this is a release (in Law) of the debt; because that is the Act of the Obligée himself, but if a Commission of Administration be granted by the Archbishop to the Obligor, that shall not extinguish the debt: because than he hath the debt in another's right, and for the good of the dead, etc. ●arrien, resentment. 34 If a man present to an Advowson, F. N. B. 31. l. and after lets it for term of years, and after the Church is void, and the Tenant for year's presents, etc. And after the incumbent dies, and Lessor presents, and is disturbed: In this Case, it seems he shall not have an Assize de darrien presentment: because the Tenant for year's presents in his own right: but if a Guardian present in right of the heir, and after the incumbent die; In that Case, the heir shall present, and if he be disturbed, he shall have an Assize de darrein presentment: because the Guardian did it in altar droit, ●uare Impedit viz. in the right of the heir, etc. This seems to be the opinion of Fitz. Howbeit it is resolved in the 5. Co. l. 5. 97. b. in the Count of North. Case. Report fol. 97. in the Countess of Northumberlands Case, that the presentation of the Grantée of the prochiene avoidance is sufficient title in a Quare Impedit for the Grantor and his heirs: because he doth it in the right and title of the Grantor; So it is also of Lessee for years, life, Tenant in Dower, Courtesy, Guardian, Tenant by Statute, etc. And with this agrees divers opinions in our Books, viz. 7 L. 4. 20. 22 E. 4. 9 b. 16 H. 7. 18. a. 9 H. 7. 23. Br. Quare Impedit, 122. 13 El. Dier 300. 35 In debt brought by two Executors the one is summoned and severed, and afterwards he, that was severed, dies, Co. l. 10. 134. a. 3. in Read & Redmans' Case and the Defendant pleads this in abatement; In this Case, the writ shall not abate; because either of them Act in an others right. 89 The Law disfavoureth other persons, as Villeins, Bondmen, Outlaws, Exleges, men in Exile, Aliens, and especially Aliens, that are enemies. ●hallenge to ● Poll. 1 It is principal Challenge to the Pol, Co. Inst. p. 1. 156. b. 4. that he is a Villain or Bondman: Also upon the trial in a writ of right by battle, the Champion must be a Freeman and no Villain or Bondman; And this is propter defectum. ●sure by the ●rd. 2 A Villain can hold nothing (either Land or Goods) in his own right; for, Quicquid acquiritur servo acquiritur Domino, etc. Co. ib. 117. a. 3. ●●gatus ba● caput L●pi●. 3 In the Reign of King Elfred, Co. ib. 128. b. 3. and until a good while after the Conquest, Out-lawry was esteemed in Law a grievous punishment; so that none was in those times outlawed, save only for felony, the punishment whereof was death; And therefore in ancient time (as appears by divers old Books, and Records) An outlawed man was said to have Caput Lupinum; because he may be put to death by any man, as a Wolf that hateful beast might: Fleta l. 1. c. 27. Bract. lib. 5. fol. 421. Britt. 20. b. Mirroir cap. 2. sect. default punishm. Utlagatus & Waviata capita habent Lupina, quae ab omnibus impurè poterant amputari; meritò enim sine lege debent perire, qui secundum legem vivere recusant: And another saith, Utlage pur felony seigne lien pour Loup, & est criable Walfeshead, pur ceo que Loup est beasts hay to touts gents, & de ceo en avant list a ascun de le occire ou foer del Loup, doubt custom soloit este de porter les testes all Chief lien deal County, or de la Franchise, & sol oit tou avoir d'un Mark del County pur chescun teste de utlage & de Loup. And this agreeth with the Law before the Conquest, Utlagatus Lupinum gerit caput, quod Anglicè, Wolfeshead, dicitur: Et haec est lex communis & generalis de omnibus utlegatis: 2. Ass. Pl. 3. 2 E. 3. tit. Corone 148. But in the beginning of the Reign of E. 3. it was resolved by the judges, for avoiding of inhumanity and of effusion of Christian blood, That it should not be lawful for any man, save the Sheriff only (having lawful warrant therefore) to put to death any man outlawed, although it were for felony, upon pain to suffer the like punishment, as if he had killed any other man: Note, that about Bractons' time process of out-lawry was given in actions, that were Quare vi & armis, and since that by sundry Statutes in divers other Actions, viz. in Account, debt, detinue, annuity, Covenant, Action upon the Statute of 5 R. 2. Action upon the Case, etc. Co. ibid. 201. b. 2 4 Villeinage is such an exception in any plea brought by the Villain against the Lord, that it shall make the writ abate, Dis-ability persons. so that he shall not have a resummons or Re-attachment, as in Case of the Excommunication etc. Co. ibid. 158. a. 1. 5 If a man be outlawed in Trespass, debt, No Juror. or any other Action he is thereby disabled to serve of a jury; for that is a principal Challenge to the Poll, viz. propter delictum; because he is Exlex; and therefore is not legalis homo. Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea (viz. by authority of Parliament, Exiled. Abjured. Dead. The Feme may sue. or in Case of abjuration upon an Ordinary proceeding of Law) is in the nature of a dead man in Law: And therefore in such Case his Wife may sue or be sued without him, as in Case when a man enters in Religion and is professed a Monk, etc. Thus it was in the Case of the Wife of Sir Robert Belknap, 2 H. 4. 7. a. one of the justices of the Court of Common Pleas; for, during his banishment: being yet alive, she brought a writ in her own name, whereupon one said, Ecce modò mirum, quòd foemina fert breve Regis, Non nominando virum conjunctim robore Legis. So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers, and after that H. 4. brought a writ of Ward against Sibyl B. during the exile of her Husband: The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland, being the year before abjured the Realm for felony, etc. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time (which some call a Relegation) that is no civil death:) but abjuration (in 8 E. 2. Coron. 425.) is called a divorce between the Husband and the Wife: And therefore in that Case the Wife may sue and be sued, etc. Co. ib. 2. a. 4. & Co. l. 7. 17. a. 2. in calvin's Case. & 25. a. 4. Calv. Case. 7 If an Alien, Christian, or Infidel purchases houses, lands, Aliens purchase is the Kings. tenements, or hereditaments to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fée-simple, but not to hold; for upon an Office found, the King shall have them by his prerogative, of whomsoever the land is holden and in that Case the Lord shall lose his Seignory: So it is also if he purchase land and die: for in that likewise the Law casteth the fréehold and inheritance upon the King. If an Alien purchase any Estate of frée-hold in lands, etc. upon Office found the King shall have them. If an Alien be made denizen and purchase lands, and die without issue, the Lord of the fee shall have the escheat, and not the King. If an Alien purchase a lease for years, upon Office found the King shall have it, unless it be of an house for habitation, to the end he may use Merchandise and Commerce; Howbeit such an house also if he return home and leave or die, the King shall have it, and not his Executors, etc. ●ne born out 〈◊〉 the King's ●geance. 8 A man seized of land in fee hath issue an Alien, Co. ib. 8. a. 1. that is borne out of the King's Ligeance, he cannot be heir propter defectum subjectionis, albeit he is borne within lawful marriage: And if he be made Denizen by the King's letters patents, yet cannot he inherit to his father or any other: But it is otherwise if he be naturalised by Act of Parliament: for he is not then accounted in law Alienigena, but Indigena. ●ue not in●●ritable. 9 When an Alien is made Denizen, the issue, Co. ib. & Co. l. 7. 7. a. 4. in calvin's Cas●. & 36 H. 8. denizen Br. 9 that he hath afterwards shall be heir to him, but no issue that he had before: So likewise if an Alien cometh into England, and hath issue two Sons, these two Sons are Indigenae, subjects borne, because they are borne within the Realm: and yet if one of them purchase lands in Fee, and dieth without issue, his Brother shall not be his heir for there was never any Inheritable blood between the Father and them: and where the Sons by no possibility can be heirs to the Father, the one of them shall not be heir to another: Co. ibid. 129. a. 3. It is otherwise of naturalisation by Act of Parliament: for if the Father he naturalised by Parliament, the Issue had before etc. shall Inherit: So if an Issue of an Englishman be borne beyond Sea, and the Issue be naturalised by Parliament, he shall Inherit his Father's Land: but so he shall not, although made Denizen; because no Alien naturalised by Act of Parliament is to all intents and purposes, as a natural borne subject; but so is not a Denizen. Dower. ●enant by Courtesy. 10 If a man be seized of an Estate of frée-hold and inheritance in lands, etc. and take an Alien to Wife, and dieth, Co. ib. 31. b. 4. & Co. l. 7. 25. a. 4. Calv. Case. she shall not be endowed neither shall the Baron be Tenant by the courtesy: Howbeit it is otherwise in the King's Case, etc. And Edmond the Brother of E. 1. married the Queen of Navarre and died: And it was resolved by all the judges, that she should be endowed of the third part of all the lands, whereof her husband was seized fee. ●is-ability of ●ing. 11 It is a good plea in dis-ability of the person, Litt. §. 189. Co. ib. 129. b. 1. & Co. l. 7. 16. a. 4. in Calv. Case. & Co. ib. 17. a. 3. Calv. Case. that the Demandant or Plaintiff is an Alien ye, and this exception holds good in all Actions both real and personal against an Alien enemy, but not absolutely against other Aliens: for the Law doth distinguish between an Alien, that is a subject to one, who is an enemy to the King, and one that is subject to one, who is in league with the King: And true it is, that an Alien Enemy shall maintain neither Real nor Personal Action, Donec terrae fuerint communes, viz. till both Nations be in peace: But an Alien, that is in league, shall maintain personal Actions; For, such an Alien may trade and traffic, buy and sell: And then of necessity he must be of ability to have personal Actions: but he cannot maintain either real or mixed actions: So also an Alien, that is condemned in an information, shall have a writ of Error to relieve himself, Et sic de similibus. ●●eading. 12 If an Alien that is no Alien Enemy, Co. ibid. b. 2. & in Calv. Case, ubi suprà. commence a suit the Tenant or Defendant may plead in dis-ability, and aught at last to demand judgement, Si il sera respondue: But if an Alien Enemy bring a suit, he shall conclude to the Action by saying, Judgement si action. Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll, Juror. that the juror is an Alien born, and that is propter defectum Patriae, or rather ligeanciae, as Littleton hath it, or Subjectionis, as Bracton. Co. l. 7. 6. a. 4 in calvin's Case. 14 It is to be observed, that it is, nec Coelum, nec Solum, Ligeance makes a Subject born. neither the Climate nor the Soil; but ligeantia & obedientia, that make a man to be a Subject born; for if enemies should come into this Kingdom, and possess a Town or Fort, and have issue there, that issue is no Subject to the King of England, though he be born upon his Soil, and under his, both Climate and Meridian; because he was not born under the ligeance of a Subject, nor under the protection of the King. Co. ib. 15 If an Alien of a Country in league with the King come into this Kingdom, and here commit Treason, An Alien in league shall be indicted: It is otherwise of an alien Enemy, who shall be punished by Martial Law. etc. he shall be indicted for it, and proceeded against, according to the municipal Law of the land, and the indictment shall begin and end as other indictments do; viz. the beginning shall be, contra Dominum Regem, etc. and it shall also end thus, Contra ligeantiae suae debitum, etc. Only in the middle these words shall be omitted, naturalem Dominum suum, etc. as it was resolved in Hill. 36. Eliz. in the Case of Stephano Ferrara de Gama, and Emanuel Ludovico Tinoco, two Portugals born, who coming into England under the safe Conduct of Queen Elizabeth, and living here under her protection, joined with Doctor Lopez, in treason against her Majesty: But if an alien enemy come to invade this Land, and be taken in war, he cannot be indicted of treason for it; because the indictment cannot conclude, Contra ligeantiae suae debitum; for he never was in the King's protection, nor ever ought any manner of ligeance unto him, but malice and enmity; and therefore in that Case such an Alien shall be put to death by Martial law: And so it was in 15 H. 7. in the Case of Perkin Warbeck, who being an Alien born in Flanders, feigned himself one of the sons of E. 4. and invaded this Kingdom, with intent to take upon him the Royal Dignity: but being taken in war, it was resolved by the justices, that he could not be punished by the Common Law; but before the Constable and Marshal, according to Martial Law, and so he was, according to that Law, adjudged to be hanged, drawn, and quartered; and was in that manner executed accordingly. Co. ibid. 17. a. 16 Every Alien is either a friend that is in league, An alien friend and enemy. etc. or an enemy that is in open war, etc. Every alien enemy is either so pro tempore, a temporary enemy for a time, or perpetuus, perpetual: or specialiter permissus, permitted in a special manner: An alien friend (so long as he so continues to be) may acquire by gift or purchase Lands, etc. but cannot hold them, he may also have Leases and Goods for Trade and Commerce sake, maintain personal actions, etc. as is abovesaid: But if such an Alien become an Enemy, (as all Aliens friends may) then is he utterly dis-abled to maintain any action, or get any thing within this Realm: but a perpetual enemy (though there be no Wars by fire and sword between them) cannot maintain any Action, or get any thing within this Realm; such as are all Infidels, which are (in law) esteemed perpetui inimici; because the Law presuming that they will not be converted (that being remota potentia) between them (as with Devils, whose Subjects they are) and the Christian, there is perpetual hostility, and can be no peace: For, as the Apostle saith, 2 Cor. 6.15. Quae autem concordia Christo cum Beliali, aut quae portio fideli cum infideli? And the Law saith, Judaeo Christianum nullum serviat mancipium: Nefas enim est, quem Christus redemit Blasphemum Christi in servitutis vinculis detinere, Register 282. Infideles sunt Christi, & Christianorum inimici; And herewith agreeth the Book in 12 H. 8. fol. 4. where it is holden, that a Pagan cannot have or maintain any action at all: And upon this ground there is a diversity between the Conquest of a Kingdom of a Christian King, and the Conquest of the Kingdom of an Infidel: For if a King come to a Christian Kingdom by Conquest, seeing that he hath vitae & necis potestatem; he may at his pleasure alter and change the Laws of that Kingdom; but until he doth make an alteration of them, the ancient Laws thereof shall remain; Howbeit, if a Christian King should conquer a Kingdom of an Infidel, and bring them under his subjection; there ipso facto, the Laws of the Infidel are abrogated: for that they be not only against Christianity, but against the Law of God and Nature, contained in the Decalogue: And in that Case, until certain Laws be established amongst them, the King by himself, or such judges as he shall appoint, shall judge them and their Causes, according to natural equity, in such sort as Kings in ancient time did within their Kingdoms, before any certain municipal Laws were given: But if a King hath a Kingdom by title of Descent; there, seeing by the Laws of that Kingdom he doth inherit the Kingdom, he cannot change these Laws himself, without consent of Parliament, etc. As for an Alien Enemy, that is, inimicus permissus, he is an Enemy that comes into the Realm by the Kings Conduct, etc. Vide 7. 4. The Defendant pleaded an Alien. 17 In an Action brought by a Subject against an Alien, Co. ibid. 25. a. 4. in calvin's Case. the Subject shall plead, that the Defendant is an Alien born for the benefit of the King: to the end, that the King upon Office found may seize that, whereof the Alien is seized or possessed, and also that the tenant may yield the same to the King, and not to the Alien, because the King hath best right thereunto. Flea against an Alien. 18 In an Action real against an Alien born, Dier. 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born, otherwise in Actions personal: but against an Alien Enemy it is a good plea in both. Abjured persons. 19 A person abjured is dis-abled to sue any Action; Co. Inst. 1. 128 a. 4. for that he is extra Legem; and yet he cannot be properly said to be Outlawed. 90 As concerning the ages of Infants, the Law ordereth them in this manner; Seven, for the Lord to have aid for the marriage of his eldest daughter of that age. Nine, Litt. §. 36. for a woman to deserve her Dower. Twelve for a man to take the Oath of Allegiance in a Turn or Leet; and also to bind a woman in matter of Marriage. Fourteen, the age of discretion; and therefore that a competent age to bind the man in matter of Marriage, for a Ward in Soccage to choose his Guardian, and for a woman to be out of Ward to the Lord by Knight-service. Fifteen, for the Lord to have Aid to make his eldest Son (of that a●e) a Knight. Seventeen, for an Infant Executor to be out of the tuition of Administrators. Eighteen, for an Infant to have power to make a Will. One and twenty, their full age to make good any Act they do, and for a man to be out of Ward to the Lord by Knight-service. Co. Inst. p. 1. 33. a. 3. 1 A wife (whether she be so de facto, Nine years old to have dower. or de jure) if she be of the age of nine years at the time of the death of her husband, shall be endowed of what age soever her husband be, viz. although he be but four years old, etc. And she must be so old (at least) to have Dower; Quia junior non potest dotem promereri, neque virum sustinere; hec obstabit mulieri petenti minor aetas viri, wherein it is to be observed, that albeit Consensus non concubitus facit Matrimonium, and that a woman cannot consent before twelve, nor a man before fourteen, yet this inchoate and unperfect marriage (from which either of the parties at the age of consent may dis-agree) after the death of the husband shall give Dower to the wife; and therefore it is to be accounted in Law after the death of the husband, legitimum matrimonium, a lawful marriage quoad dotem: And (in that Case) the Bishop upon an Issue joined in a writ of Dower, Co. ib. a. 4. Quòd nunquam fuerunt copulati legitimo matrimonio, aught to certify, that they were coupled in lawful marriage, albeit the man were under fourteen, and the wife above nine, and under twelve. Co. ibid. 2 If a man taketh a wife of the age of seven years, The wife of 〈◊〉 yea. endowed after alienation. and after alien his Land, and after the alienation the wife attaineth to the age of nine years; and after the husband dieth: In this Case, the wife shall be endowed; for albeit she was not absolutely Dowable at the time of the marriage, yet she was conditionally Dowable, viz. if she attained to the age of nine years, before the death of the husband; for so Littleton saith §. 36. So that she pass the age of 9 years at the death of her husband; because by his death the possibility of Dower is consummate: So likewise if the Son endow his wife at her age of seven years ex assensu patris, if she before the death of her husband attain to the age of nine years, the Dower is good, etc. Co. ib. 78. b. 3. Britt. 168. b 3 The reason wherefore the Law gave the Marriage of the heir-female to the Lord, if she were within the age of fourtéen, Marriage o● heir female under 14. and that she should not marry herself, appears in Antiquity, viz. Pur ceo que les heirs females de nostre terre ne se mariassent a nos enemies, & donc il nous convica droit lour homage prendre, si elles se pussent marier a lour volunte, etc. This is a special age for an heir female to be out of Ward, if she attain to it in the life-time of her Ancestor; for at that age she may have a husband able to do Knight-service, etc. Ages assigned to the male. 4 A man (by the law) for several purposes hath divers ages assigned unto him, Co. ib. 78. b. 3 Fitz. 82 b. viz. twelve years to take the Oath of Allegiance in the Turn or Léet; fourtéen, to consent to Marriage; fourtéen, for the heir in Soccage to choose his Guardian; Co. ib. 78. b 2. and fourtéen is also accounted his age of discretion; fifteen, for the Lord to have aid pur fair fife Chivaler; under 21 to be in Ward to the Lord by Knight-service; Co. l. 6. 70. b. 4 in the Lord Darcies Case, & Co. l. 9 72. b. 3. in Doctor Husseys' case. under fourtéen, to be in Ward to Guardian in Soccage; fourtéen, to be out of Ward of Guardian in Soccage; and 21 to be out of Ward to Guardian in Chivalry, and likewise to alien his lands, goods, and chattels: Also a woman hath seven Ages for several purposes appointed to her by law; To the female as seven years for the Lord to have aid, pur file marier; nine to deserve Dower; twelve to consent to Marriage; until fourtéen to be in Ward; fourtéen to be out of Ward, if she attained thereunto in the life of her Ancestor; sixtéen for to tender her Marriage, if she were under fourtéen at the death of her Ancestor, which was granted by the Statute of West. 1. cap. 2●.) and 21 years to alienate her Lands, Goods, and Chattels, Fitz. 82 b. & 149 l. An Infants Will. 5 An Infant, when he shall have attained the age of eighteen years, Co. ib. 89. b. 2. may make his Testament, and constitute Executors for his Goods and Chattels. Unequal partition. 6 If Perceners of full age of lands in Fée-simple make an equal partition, she that hath the least part is bound for ever, Co. ib. 170. a. 3 Litt. §. 255 as well as in case of an unequal exchange; And if the unequal partition be of lands in tail, she that hath the worst part is bound for her life, but her issue shall avoid it, etc. No power to grant before 〈◊〉. Bailiff. Receiver, Inquest, Wager of law 7 The Law hath provided for the safety of a man & woman's Estate, Co. ib. 171. b. 3 & Litt. §. 239. that before their age of twenty one yeors they cannot bind themselves by any Deed, or alien any lands, goods, or chattels, before which age a man or woman is called an Infant; Likewise if before that age he be made a Bailiff or receiver to another, he is not chargeable in account; neither yet can he (under that age) be put upon an Inquest, etc. nor make his law of non-summons, nor in an action of Debt, according to the Maxim, Minor jurare non potest; yet the husband and wife of full age for the debt of the wife before the Coverture, shall make their law; And also an Infant, when he is of the age of twelve years shall take the Oath of Allegiance to the King in the Turn or Léet; and this was (as Bracton saith) secundum leges sancti Edvardi, But (indeed) such was the Law in the time of King Arthur, etc. Baron and Feme Infants. 8 If husband and wife be both within age, Co. ib. 337. a. 3 and they by deed indented join in a Feoffment, reserving a rent, the husband dieth, the wife may enter, or have a Dum fuit infra aetatem: But if she were of full age, she shall not have a Dum fuit infra aetatem for the nonage of her husband; albeit they be but one person in law. Infant execut. 9 An Administration durante minore aetate at the age of seventéen years of the Infant, Co. l. 5. 29. b. Prince's case. executor ceaseth, before which age he cannot assent to a Legacy, etc. Howbeit if Feme be such an Executrix, and she before seventeen take Baron of full age, the Administration also in that Case ceaseth; because then the Baron is able to administer, as executor, etc. ●ge of the ●●eir female. 10 At the Common Law the full age of the heir female was fourtéen, as appears in 35 H. 6. 52. and Litt. 22. Co. l. 6. 70. b. 4. in the Lord Darcies case. and if she were of the age of fourtéen at the death of the Ancestor, she could not be in ward; and if within that age, she was to have livery at that age, etc. but now by the Statute of West. 1. cap. 22. if she were under 14 at the death of her Ancestor, she shall be in ward till sixtéen, for the Lord to tender marriage; and upon refusal to have the benefit of those two years, but not to have any forfeiture of Marriage, etc. Co. ib. & l. 9 72 b. 3. in Doctor Husseys' case. 11 The Statute of Merton cap. 6. Anno 20. H. 3. Merton. cannot extend to the heir female; because it saith, 14 & ultra, and ultra terminum aetatis suae de 21, etc. which words must be understood of the heir male, and not of the heir female; because twelve is the age limited for the heir female to give consent to marriage: but fourtéen for the heir male; and therefore that Statute gives a forfeiture in case of refusal of Marriage upon tender to the heir male, etc. Co. Inst. p. 1. 78. b. 3. 12 By the Civil Law the full age of a man or woman to alien, Age by the Civil Law. demise, let, contract, etc. is five and twenty years, for then the Romans accounted men to have plenam maturitatem, and the Lombard's at eighteen years. 91 In things, the Law respecteth every thing, according to Worthiness. 1 Littleton saith, §. 2. If a man be seized of Lands in Fée-simple, The most worthiest of blood shall inherit. and die without issue, Co. Inst. p. 1. 10. b 2. Son prochein Cosein collateral del entire sank, etc. his next Collateral Cousin of the whole Blood, etc. shall have it, as heir unto him; whereupon my Lord Cook puts this Case; One hath issue two Sons, A. and B. and dieth: B. hath two Sons, C. and D. and dieth, A. purchaseth Lands in Fée-simple, and dieth without issue; In this Case, D. is his next Cousin, and yet shall not inherit, but the issue of C. because albeit D. be his next Cousin, jure propinquitatis, yet the issue of C. shall inherit, being the more worthy, viz. his next Cousin, Jure repraesentationis: And Littleton there meaneth of the right of representation: for legally, in course of Descents, he is the next of Blood inheritable, because the most worthy: In such sort, that all that Line of C. be they never so remote, shall inherit before D. or his Line: And therefore Littleton saith well, de quel pluis long degree que il soit, etc. And yet in the Case abovesaid, if a Lease for life were made to A, the remainder to his next of Blood in fee: In that Case, D. shall take the remainder, because he is next of Blood, and capable to take by purchase, though he be not legally next to take as heir by Descent: And D. takes the purchase by the special limitation of the party, but the Law casts the Descent upon the issue of C. as the more worthy, Finch, p. 116. Litt. §. 4. & 5. & Co. ib. 14. a. 1 etc. (Vide Finch, page 116.) So likewise, the Blood of the Father's side is more worthy than that of the Mothers; the male than the female; the eldest Son than the younger, etc. And therefore those shall inherit before these, and the female on the Father's side, before the male or female on the Mothers, etc. Quod priùs est, dignius est, & qui prior est, tempore potior est jure: Si quis plures filios habuerit, jus proprietatis primò descendit ad primogenitum, eò quòd inventus est primò in rerum natura. Co. ib. 53. a. 3. 2 If the Tenant cut down or destroy any Fruit-trées growing in the Garden or Orchard, it is Waste; Trees in Orchard waste. but if such Trees grow upon any of the ground, which the Tenant holdeth out of the Garden or Orchard, it is no Waste. Co. ib. 240 a. 2 3 A dying-seised and a descent, A Descent. Escheat. and not a dying-seised and an Escheat, doth take away the entry of the Disseisée, because the descent is the worthier title, etc. 4 It is holden, that if there be Bastard eygne and mulier puisat, Co. ibid. 244. a. 3. and the Mulier be within age at the time of the dying seized of the Bastard, Bastard. Mulier. Descent. that neverthhlesse the Mulier shall be barred: because the Issue of the Bastard is in judgement of Law become lawful heirs, and the Law doth prefer legitimation, before the privilege of Infancy. Laches in an Infant. 5 It is regularly true, that Laches shall not prejudice an Infant, Co. ibid. 246. a. 1. nevertheless Laches shall be adjudged in him, if he present not to a Church within six months; For, the Law respecteth more the privilege of the Church (that the cure be served) then the privilege of Infancy. Homage and Fealty the worthiest services. 6 Amongst the services due to be performed by the Tenant to his Lord, homage and fealty are of greatest esteem in the Law, Co. l. 4. 8. b. 2. in Bevils' case. viz. Homage as the most honourable and the most humble service of reverence (as Littleton saith.) And Fealty, the most sacred, being performed by an oath; And therefore the Law makes more account of them, then of other inferior services: for the seisin of them is seisin of all other services whatsoever, and no distress for them of any goods or chattels (of what value soever) shall in judgement of Law be deemed excessive: And albeit the Lord distrain for them oftentimes, so that the Tenant cannot manure his land, yet the Tenant shall not therefore have an Assize de sovent distress, as he shall have for Rent and other profits: Vide 28 Ass. Pl. 50. 11 H. 4. 2. 42 E. 3. 26. Br. distress 80. Title of King and Subject. 7 When the King's title, Co. l. 4. 55 a. 4. The Saddler's Case. and the title of a subject concur in commencement, the King's title shall be preferred, as Weston holds Pl. Co. 263. b. The King's title by Judicial Record and conveyance of Record. 8 In all Cases at the Common Law, Co. l. 4. 59 b. 3. in the Saddler's Case. when the King's Title accrued unto him by a judicial Record; (as Gascoigne saith, 9 H. 4. 4.) by judgement of Record, there albeit, the King had granted all his Estate over, yet the party grieved who is put unto his petition, and was to have a scire facias against the Patentée, as in Case of Attainder, Recovery, etc. (44 E. 3. 22. 10 H. 6. 15. 21 H. 7. 2. 3 M. 139. 7 H. 4. 21.) But where the King was only entitled by conveyance of Record, as if the disseisor had conveyed the land to the King by fine, deed enroled, or other matter of Record, there albeit the party was put to his petition against the King, yet if the King had granted the land over, the disseisée or he, that right had, might enter, or have his Action against the Patentée: for, a judicial Record is always preferred before a conveyance of Record by assent, etc. The Common law preferred before the Sta●●●e Law. 9 A. By deed indented barganies and sells a reversion of land to B. and his hieres, and before attornement of the Tenant, Co. l. 4. 71. a. 1 in Hinds case or enrolment of the deed (according to the Statute of 27 H. 8. cap. 16.) levies a fine thereof to B. and his heirs, and after the deed is enrolled within 6 months; In this Case, the Conusee shall be in by the fine, and not by the Indenture enroled; For, when the Fée-simple passes by the fine to the Conusée and his heirs, the enrolment of the deed indented afterwards cannot divest and turn the Estate out of the Conusée, which was absolutely established in him by the fine: because then, whereas he was in before in le per, he shall be now in le post: Also, when the Common Law and Statute Law concur, the Common Law shall be preferred, etc. 10 When land is given to any express superstitious use, Co. l. 4. 111. b. a adam's and Lambert's case. prohibited by the Statute of 1 E. 6. 〈◊〉 good use preferred be●re an im●●●ed. superstitious ●●e incertain. cap. 14. without limitation of any certainty for the finding of it, there all is given to the King by the said Act: but when a good use is limited, and besides a solary in certain for a Priest and towards the finding of him other things, as Books, Bread, Wine, Vestments, &c, are tacitè employed and requisite, which are uncertain, there the King shall not have all by reason of the employed incertainty; because a good use expressed shall be preferred before any thing implied and incident to a superstitious use, etc. Co l. 5. 28. b. in Harrisons Case. 11 In debt against an Administrator, who pleads, Judgement paiable before other debt, & obligation before a Statute to perform covenants. that the Intestate was bound in a Statute staple, Oustre que il mad biens, etc. the Plaintiff replies, that there were Indentures of defeasance for the performance of covenants, which are performed huc usque, the Defendant demurs; And in this Case judgement was given for the Plaintiff; for, an Obligation shall be paid before a Statute to perform covenants, which per-adventure will never be broken, but are things in contingency and futuro, and shall never bar any present debt upon an Obligation or other specially: And it was adjudged in B. R. Per totam Curiam H. 42. Co. l. 6. 45. b. 2. in higgon's Case. El. that a debt recovered in the King's Court by judgement shall be paid before a bond in nature of a Statute staple or Merchant: because the judgement is a matter of a higher and more worthy nature then private Records portable in pockets: also it shall be preferred before a recognizance acknowledged in any Court by assent, which may also be privately done; And a judgement so given in the King's Court upon ordinary and judicial proceeding, which remain in the custody of a sworn officer, are Records, which are preferred in Law before such Statutes; Et non refert, whether the judgement or recognizance or Statute be first, for be the judgement first or last it shall be first satisfied, etc. And so it was holden per totam Curiam in Co. Ba. in Pemberton and Bartams Case, Pl. 32 El. Rot. 235 Which see in the end of the Saddler's Case in the 4. Rep. Dier 80. 53. Co. l. 5. 86. b. 3. Blumfeilds' Case. 12 There are good diversities betwixt an execution not valuable (as of the body of the Defendant) and an execution, valuable, as of lands, etc. An Execution valuable or without satisfaction. As if two men are bound jointly and severally in an obligation, and the one is sued, condemned and taken in execution, and after the other is also sued, condemned, and taken in execution, and then the first escapes, and the other brings his Audita querela; In that case, he shall be barred to bring that writ, until the Plaintiff be satisfied; So likewise if the Defendant in debt die in execution, yet the Plaintiff may have a new execution by elegit or fieri facias: but if the Plaintiff have once execution of the lands of the defendant, and after the lands are evicted, there before the Statute of 32 H. 8. cap. 5. he shall not have any new execution; for, the execution of the lands was valuable, and accounted in Law for a satisfaction, and to (avoid infiniteness) he shall have but one valuable satisfaction, or one execution with satisfaction at the Common Law; etc. So likewise, if a Villain be delivered to one in execution, upon recovery in value, and after the Villain dies without Issue, yet the Defendant sh●ll never have any new execution, because his first execution was valuable, and by the Law a man shall have but one execution valuable, etc. F. N. B. 33. m. & 34. v. 13 If two Sisters have an Advowson, which happens to be void, Copercen●● shall pres●● by turns. the eldest Sister shall have the first presentment, and so the Baron of the eldest Sister (if he be Tenant by the courtesy of the Advowson) shall have the first presentment, and the Tenant in Dower shall have but the third, etc. And if there be more Sisters than two, they shall present by turn according to their several ages, viz. the eldest first, the second next, the third next, etc. Co. Inst. p. 1. 185. b. 3. 14 Two Femes jointenant of a lease for years, In jointure a tenure t●● Baron sha● not have 〈◊〉 one of them taketh a husband and dieth, In this Case, the moiety of the term shall go to the survivor, and not to the husband: for, although all chattels real are given to the Husband, if he survive: yet the survivor between the jointenants is the elder (and therefore the more worthy) title, and after the marriage the Feme continued sole possessed: for; if the husband had died, and the Feme survived, the Feme should have had it, and not the Executors of the husband: but otherwise it is of personal goods. ●●ardian in ●●cage. 15 If there be three Brethren, & the youngest holdeth land in soccage, Co. ib. 88 a. 3. and hath Issue and dieth, his Issue within the age of 14 years: In this Case, both the Uncles are in equal degree, and yet the eldest shall be Guardian: because in equal degree the Law preferreth him as the more worthy. 16 At the Common Law if Cestuy que use and his Feoffées join in a feoffment grant or demise generally, Co. l. 2. 35. b. 4 in Sir Rowland Heywards Case. this shall be by construction of Law the feoffement grant or demise of the feoffées, who were owners of the land, and passed the Estate by the Common Law, not by Cestuy que use, who had nothing but a trust and confidence, and derived only his authority by the Statute of 1 R. 3. as it is agreed in 21 H. 7. and the Common Law in such Cases shall be by its own construction preferred before the power of Cestuy que use, given only by Statute. 17 Vide M. 44. ex 12. remove all 〈◊〉 a Record. 18 If a Record of the C. B. be removed into the K. B. for error, Dier 32. 6. 28. & 29 H. 8. or the like, the C. B. cannot write to the K. B. to send it, because the K. B. is an higher Court than the C. B. but the Record ought to be first certified into the Chancery by Certiorare, and then to be sent from the Chancery into the C. B. by a mittimus: Howbeit, if it were an inferior Court, the C.B. may writ to it for any Record, etc. 19 If a man be entitled to have a writ of escheat, F. N. B. Br. 144. oh and he afterwards accept the Homage or fealty of the Tenant, he shall not after such acceptance have a writ of escheat; Howbeit (in such Case) after the acceptance of Rent he may have a writ of escheat: because Homage and Fealty are solemn and more worthy services then rend; and therefore the Lord doth respect them more, than it doth that. Vide infrà Max. 117. Pl. 50. ●ourts. 20 If a Statute makes a thing an offence, Dier 23. 6. 27. 7 Eliz. which was not so at the Common Law, and inflict a penalty for it to be recovered in any of the Courts of Record, such offence or penalty is not determinable in any other Court, save only in the four usual Courts at Westm. Howbeit, where no Court is limited, the King shall have his prerogative in any Court. 92 The Law respecteth life and liberty most, and the Person above his possessions. ●e Lords 〈◊〉 station. 1 If a Villain (as Executor in mother's right, etc. Litt. §. 192. Co. Inst. p. 1. 124. b. 2. & 126 a. 4. ) brings an action against his Lord, if the Lord in his plea make not protestation, that he is his Villain, etc. the Villain, shall be thereby enfranchised, albeit the Issue be found for the Lord; And this is in favorem libertatis. ●al of Vil●age. 2 If a Villain sue an action of Trespass or other action against his Lord in one County, and the Lord saith, Litt. §. 193. Co. ibidem b. 4 that he ought not to be answered, because he is his Villain regardant to his manor in another County, and the Plaintiff saith, that he is free and no Villain, this shall be tried in the County where the Plaintiff had conceived his Action, and not in the other County, where the Lord saith he is Villain; And this is in favorem libertatis, for, impius & crudelis indicundus est, qui libertatis non favet: Angliae jura in omni casu libertati dant favorem, saith, Fortescue cap. 42. Co. ib. 137. b. 2 3 If a Villain be once manuntised, Once manumitted for t●● manumitted. albeit he afterwards becomes ingrateful to the Lord in the highest degree yet the manumission remains good; for the Common Law giveth this in favorem libertatis, wherein it differeth from the Civil Law; for, libertinum ingratum leges Civiles in pristinam redigunt servitutem, sed leges Angliae semel manumissum semper liberum indicant, Finch, 29. gratum & ingratum. Litt. §. 205. Co. ib. 137. b. 4 4 If the Lord make to the Villain an Obligation, Power of bringing to ●ctions, &c, an enfranchisment. or grant unto him an annuity, or a lease for years, etc. the Villain is thereby enfranchised: for when the Lord enabled the Villain to have an Action against him as for debt annuity, etc. or giveth the Villain a certain and fixed Estate in lands, etc. as a Lease for years, etc. this amounteth to an Enfranchisement, not only during the years, but for ever: And albeit the lease be made to the Villain without deed, yet it is an Enfranchisement for ever, etc. Co. ib. 139. a. 3 & Fitz. N. B. 78. f. i 5 In a writ de nativo habendo, Nonsuit p●emptory, 〈◊〉 nat. hab. 〈◊〉 so in a lib. p● non-suite after appearance is peremptory; for thereby the Villain is enfranchised: And so it is if two be Plaintiffs in nativo habendo, if one be non-suite, that is the nonsuit of both and no summons and severance doth lie in that Case, although it is a Real Action: And this is in favorem libertatis; for, in a libertate probanda nonsuit after appearance is not peremptory, neither is the nonsuit of one, the nonsuit of both. Co. ib. a. 3. 6 Nonsuit in an appeal of murder, rape, robbery, In an appe● nonsuit peremptory. etc. after appearance is peremptory, and this is in favorem vitae; for, if the Defendant be acquitted; and take out process upon the Statute of Westm. 2. cap. 12. against the Appellant and Abettors, or if he purchase his original writ, for that cause he may be nonsuit, etc. Co. ib. 137. b. 3. 7 The Law and the Wisdom of our Ancients have always had so much respect to liberty, Solemnity in manumission. that in ancient time manumissions used to be made with a great deal of Ceremony and solemnity, as appears in Libro Rubro cap. 78. where it is said: Qui servum suum liberat, in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus & palàm faciat, & liberas ei vias, & portas conscribit apertas, & lanceam & gladium, vel quae liberorum arma in manibus ei ponat, etc. Co. ibid. 139. a. 4. Littleton §. 209 8 The Law doth tender much the liberty and freedom of the subject in general; But especially of a Commialty, A Custom 〈◊〉 have a fine s● marrying, t● Daughter, void. as if a Lord of a Manor will prescribe, that there is a Custom within his Manor that every Tenant, that marrieth his Daughter to any man without the Lords licence, shall pay a fine to the Lord: this is a void Custom to bind a Freeman: for every Freeman may marry his Daughter to whom he and the pleaseth: And therefore to claim such a fine by a general Custom within a Manor, is against the freedom of a Freeman: that is not bound thereunto by particular term, tenure etc. Howbeit such a Custom will hold amongst Villeins, or amongst Fréemen, that hold in Villeinage or base tenure, etc. Co. ib. 156. b. 1 9 At the Common Law, upon an indictment or appeal of Treason, Peremptory. Challenge. or Felony the Prisoner might (in favorem vitae) challenge peremptorily, viz. 35. which was under the number of three juries; But by the Statute of 22 H. 8. cap. 14. the number was reduced to 20. in petty Treason, Murder, and Felony, and in Case of high Treason, and Misprision of high Treason, it was taken away by the Statute of 33 H. 8. cap. 23. and afterwards by the Statute of 1 & 2 Ph. & M. cap. 10. the Common Law was revived; So that now for any Treason the Prisoner shall have his challenge to the number of thirty five, as before. And so it was resolved by the justices, upon conference between them in the Case of Sir Walter Raleigh, and George Brooks. Co. ibid. 157 b. 4 And albeit the Offender be not arraigned upon the Crime itself, but the issue is joined upon a collateral point, yet shall the party have such challenges, as aforesaid: As if a man be outlawed for Treason or Felony at the King's suit, and the party for avoiding thereof allegeth Imprisonment or the like, at the time of the Out-lawry: In this Case, although the Issue be joined upon a collateral point, yet shall the party (in favorem vitae) have such challenges, as if he had been arraigned upon the offence itself; because this also (by a mean) concerneth his life. And it is to be observed, that this kind of challenge is called peremptory, because the party may challenge peremptorily upon his own dislike, without showing any cause at all: Howbeit, if the Defendant challengeth for cause, he must show the cause presently, and then also albeit the juror be tried indifferent, yet may the party afterwards challenge him peremptorily: And all these privileges concerning Challenges are granted to the Defendant in favorem vitae, etc. ●n criminal Cases, no pri●y verdict. 10 By the Law of England, Co. ibid. 158 a. 2. a jury after their evidence given upon the issue, aught to be kept together in some convenient place without meat or drink, fire or candle (which some Books call imprisonment) and they are to have no speech with any, unless it be the Bailiff, and with him only after they are agreed: When they are so agreed, they may in Causes between party and party (if the Court be risen) give a privy Verdict before any of the judges of the Court, and then they may eat and drink, and the next morning in open Court they may either affirm, or alter their privy Verdict, and that which is given in Court shall stand. But in criminal Causes, which concern life and member, the jury can give no privy Verdict, but must always give it in open Court, and can●●t be discharged by the Court, or any other, until they have given up their Verdict accordingly, etc. Life & liberty respected more ●●n Infancy. 11 Regularly no Laches shall be adjudged in an Infant, Co. ibid. 227. b. 2. yet if an Infant hath a Villain, that is fled into ancient Demesne, and he claim him not within a year and a day, that Non-claim of the Villain shall take away the seizure of the Infant, and this is in favorem libertatis: So if an Infant bring not an appeal of the death of his Ancestor within a year and a day, he is barred of his appeal for ever; and this is in favorem vitae, for the Law respects more liberty and life then the privilege of infancy. ●eare of maung continu●al claim. 12 Doubt or fear that concerns the safety of the person of a man, Co. ib. 246. a. 2 as Battery, Maheim, Imprisonment, Death, etc. is sufficient cause to excuse him from going upon the land to make his Claim, so that he approach as near the land as he dare for such doubt or fear; but fear of having his houses burnt, or of the taking away or spoiling of his goods, is no sufficient cause to excuse him; because he may recover the same, or damages to the value thereof, without any corporal hurt: And therefore in such Case he shall go upon the Land to make his claim, etc. Talis enim debet esse metus, qui cadere potest in virum constantem, & qui in se continet mortis periculum, & corporis cruciatum: Et nemo tenetur se infortuniis & periculis exponere. 〈◊〉 Felony, Out-lawry may be rever●ed by plea. 13 If a man be outlawed, Litt. § 419. Co. ib. 259. b. 2 there is two manner of ways to reverse it, viz. by Plea, or by writ of Error, by plea, for when the Defendant cometh in upon the Capias utlagatum, etc. he may by Plea reverse the same for matters apparent, as in respect of a Supersedeas, omission of process, variance, and other matter apparent in the Record, so he do it the same term, as some hold: But for any matters in fact, as Death, Imprisonment, Service of the King, etc. he is driven to his writ of Error; Nevertheless, in Case of felony, he may plead these matters of fact also, and that is in favorem vitae, etc. Co. ibid. 274 b. 2 Finch 29. 14 An express manumission of a Villain cannot be upon a Condition subsequent; For, once free in that Case and ever free: A Villain free ever. And this in favorem libertatis: It is other wise of a Condition precedent in the same Case, etc. Co. ibid. 283 2. 3. 15 The life of a man is so precious in the eye of the Law, Life prec●●● in the eye of the Law. that it will not suffer (by way of plea) to justify in the kill or death of a man; And therefore in that Case he shall be received (as it were by way of excuse) to give the special matter in evidence, as to say, that it was se defendendo, or in defence of his house in the night against Thiefs, and Robbers, or the like. Co. l. 3. 11. b. 4. in Sir Will. Herbert's case. 16 The liberty of a man is of such high esteem in the consideration of Law, that he could not (at the Common Law) he imprisoned, At the Common Law to capias for 〈◊〉 etc. unless he were guilty of committing some force; for the Law, being the preserver of the Common peace of the Land, abhors all force, as one of her capital Enemies; and therefore as concerning such as commit force, the Common Law subjects their bodies to imprisonment, as to one of the highest Executions of Law, whereby they lose their liberty, until they have made agreement with the party, and fine to the King; for which cause it is a Rule in Law, that in all Actions Quare vi & armis, a Capias lies, and where a Capias lies in process, there after judgement a Capias ad satisfaciendum lies, and there also the King shall have a Capias pro fine: And with this agrees 8 H. 6. 9 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books: But (at the Common Law) if a common Person had sued a recognizance, or judgement for debt or damages, he could not have the body of the Defendant nor his lands (unless in some special case) in execution; but was only (in such case) to have execution, either of his goods and chattels by fieri facias, or of his grain or other present profits (which increased upon the land) by levati facias; both which writs were to be sued within the year after the judgement, or recognizance acknowledged, and if he had neither the one of the other within the year the Plaintiff or Conusée was then put to his writ of debt, etc. And then by the Statute of Westm. 2. cap. 45. a scire facias was given, and by cap. 18. cum debitum fuerit recuperatum, etc. an Elegit of the moiety of the land, which was the first Act, that subjected land to the execution of a judgement; or recognizance, and with this agrees F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus, 27 E. 3. cap. 9 and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands, which the Conusor had the day of the conusance, shall be extended, in whose hands soever they come, etc. Also by the Statute of Malbridge cap. 23. and of West. 2. cap. 11. A capias was given in account (for at the Common Law process in account was distress infinite) and after by the Statute of 25 E. 3. 17. the like process was given in the debt, as in account before which two last recited Statutes the body of the Defendant was not liable to the execution in account or debt etc. neither yet was the land liable in debt as aforesaid, save in the King's case, and in the case of an heir in by descent, and chargeable by the Obligation of his Ancestor, etc. Co. l. 4. 40. 2. 3. Darleys' Case. 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty, and he was found guilty of homicide, Life shall 〈◊〉 be twice 〈◊〉 in jeopardy for the same offence. and had his Clergy: and after he was indicted of murder, and thereupon arraigned at the Queen's suit and he pleaded the former condition in the appeal at the suit of the party: And it adjudged a good bar: because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence; The like is agreed in Brooks Case, H. 28 El. and P. 33 El. in Vaux his Case, which see Co. l. 4. 45. a. N●● compos ●●tis shall not lose his ●ife for felony 〈◊〉 murder. 18 Every Act, that a man de non sanae memoriae doth, Co. ibid. 124. in Beverleys' Case. either concerns his life, his lands, or his goods; also every Act, that he doth, is either done in pais or in a Court of Record; All Acts, which he doth in a Court of Record concerning his lands and goods, shall bind himself and all other persons for ever; Also all Acts, which he doth concerning his lands and goods in pais, in some cases shall bind himself only during his life, and in some case shall bind for ever, etc. But as for his life the Law of England is, that he shall not lose that albeit he kill a man, and thereby make himself subject to be indicted for felony or murder, etc. The death of a ●an grievously punished by the Law. 19 The Law surpriseth the life of a man, Co. ibid. 2. 4. in Beverleys' Case. that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it; for the malefactor in that case shall 1. Lose his life; 2. Lose it after an ignominious and odious manner, viz. by hanging, for he shall be hanged betwixt heaven and earth; as unworthy of both; 3. He shall lose his blood, both in respect of his ancestry (for he is esteemed as a Terrae-silius without any Ancestor) and also in respect of his posterity, for his blood is corrupt, and he leaveth behind him neither heir nor posterity; 4. He loseth his lands, 5. His goods, And in such case also the King shall have Annum, diem, & vastuna, to the intent that his Wife and his Children should be cast out, his houses demolished, his trees eradicated and stocked up, his meadows broken up and ploughed, and all that he hath for his comfort, delight, and sustenance, wasted and destroyed; because he hath in such a felonious manner offended against the Law, and all this is, ut poena ad paucos, metus ad omnes perveniat, etc. Upon an Ar●●st, the cause 〈◊〉 be shewed. 20 The Law so provideth for the preservation of a man's liberty, Co. l. 6. 54. 2. 4. in the Countess of Rutland's Case. that no general arrest is deemed legal without showing the particular cause wherefore he is arrested; And therefore the Sheriff or any other by his authority which makes an arrest of the person of another, ought upon the arrest to show at whose suit out of what Court, for what cause he doth it, and when the process is returnable to the intent that, if it be upon an execution, he may pay the money, and so free his body from imprisonment: and if it be upon a mesne process, may either agree with the party, or put in bail according to the Law, and so make his appearance accordingly, etc. ●he Coll. of ●ys. cannot ●●mmit. 21 An Act of Parliament, Co. lib. 8. 120. a. 3. Doctor bonham's Case. that gives power of imprisonment ought to be strictly interpreted, to preserve (as much as may be) the liberty of the subject: So the Act of 14 H. 8. cap. 5. which gave power to the Precedent and Censors of the College of Physicians in London to imprison, was so strictly and liberally to be understood, that the Gaoler was not thereby bound to receive such as they should commit unto him; because there was no clause in that Statute to give him power so to do; ●●●tures that ●●●tabridge ●●eny to be strictly inter●●cted. And therefore was the Statute of 1 Mar. cap. 9 made, which commands the Gaoler to receive them upon a penalty, etc. And yet the receipt of the Gaoler (in that case) seems to be a necessary incident to the power given them to imprison; but in regard it concerned the liberty of the subject, and they had not the authority of any Court to commit any; the Gaoler could not receive such as they should commit without an express provision by Act of Parliament for that purpose, etc. Co. lib. 5. 64. Clerk's Case. Et Co. l. 8. 127. b. 1. in the city of London's Case. ●o constitu●n, upon pe●●lty of im●isonment. 22 A Mayor and Cominalty, etc. may make by Laws and Constitutions for the good ordering of their Corporation, etc. and may inflict a reasonable pecuniary penalty for the due observing thereof to be levied by distress, or recovered by Action of debt, etc. But they cannot inflict penalty of imprisonment: for such a Constitution or Ordinance, which trencheth upon the liberty of the subject, is not favoured in Law, and besides it is expressly against the letter of Magna Carta c. 29. Nullus liber homo imprisonetur, etc. Co. l. 8. 60. 2. 3. in Beechers Case. 23 In an Appeal of Death, Robbery, Imprisonne● for malicious fact, that concerns life. or any other Appeal of Felony or of Maihem, If the Plaintiff be barred, or nonsuit, or if the Writ abate by his own default, he shall be fined and imprisoned, 8 H. 4. 17. 20. for the malice is more venomous; which concerns life and member. F. N. B. 68 c. 24 In a Homine replegiando if the Sheriff return, A Capias in Withernam 〈◊〉 relieve a prisoner. that the Defendant hath eloigned the body of the Plaintiff, so that he cannot make deliverance, etc. Then the Plaintiff shall have a Capias in Withernam to take the body of the Defendant, and shall detain him, etc. until, etc. be he Peer of the Realm or other common Person: And if the Sheriff return non est inventus, upon that Capias in Withernam of the Body, then shall the Plaintiff have a Capias in Withernam of the goods of the Defendant, etc. And this is in favorem libertatis. F.N.B. 78 c. d. 25 If a man sue special Writ de Nativo habendo against two, But two Villeins sued, etc. more may s●●, etc. the two may join in a Writ De libertate probanda notwithstanding those several Writs: And a man shall not join above two Villeins in a Writ De nativo habendo: But more may join in a libertate probanda; And that is in favorem libertatis. F.N.B. ibid. f. 26 In a Writ De nativo habendo if the Plaintiff after appearance departs in dispute of the Court, Enfranchisment upon contempt or Retraxit. or saith he will fetch his Counsel, and after being demanded makes default; In these Cases the Villain shall be Enfranchised for ever: So also shall he be upon a Retraxit, when the Plaintiff saith he will pursue his Writ no farther, causa qua suprà etc. F.N.B. ibid. g. 27 If a Freeman marry a Neife, she shall be free for ever, A Nicle free by marriage's a Freeman. albeit the Baron die and she survive, And this (as Fitz notes out of Britton) is in favorem libertatis, for a Free Woman shall not be a Villain by taking a Villain to Husband. F. N. B. 99 d. 28 If a man sue a Writ of Monstravit against a Bailiff upon the Statute of Malbridge cap. 23. No monster's if the accountant hath lands. with purpose that the Sheriff should attach his Body to bring him to account, when as he hath sufficient Lands in another County, by which he may be made to answer by Writ of Account: In that Case, the Defendant shall have a Writ of deceit against the Plaintiff that sues the Monstravit; for so long as he hath lands, his body in that case ought not to be attached. Finch 29. 29 If a Man for Fear, Confession ● a Felon not taken. or in Simplicity will Confess himself guilty of a Felony, yet the judge must not Record that Confession, but suffer him to plead not guilty, And that is in favorem vitae. Co. Inst. p. 1. 33. b. 1. 30 A Feme, if she be married, is either a Wife De facto, A Feme De ●●re shall one● bring an appeal. or De Jure; De facto, until both of them have attained the years of Consent (viz. 24 for the Man, and 12 for the Woman) De Jure, when at those ages, they have not disassented: Now, albeit a Wife De facto only, who is nine years old at her husband's death (though he be but four years old, when he dies) shall be endowed: yet (as some hold) such a Wife De facto shall not have an appeal of the death of her Husband, but only she that is a Wife De Jure, and that is in favorem vitae. Wardship. Marriage. 31 Wardship hath been always (especially of late times) accounted a kind of slavery, Co. ibid. 79. b Litt § 105. Brit. 169. Glanvil, lib. 7. cap. 12. and therefore it was always in the old Books a Maxim in Law, quod dominus non maritabit minorem in custodia sua nisi semel, and Glamil saith, Si semel legitimè nupti fuerint, etc. postmodum non tenebuntur sub custodia Dominorum esse. And therefore if the Guardian marry his ward under the age of 14 years, and at that age he disassent as he may, he shall marry him no more, being thereby freed as to the wardship of his body: So it is also, where the Lord marries him to a woman, and the marriage is after dissolved by reason of a precontract; It is otherwise where the ravisher marries him within age, and he disassent at 14, for in such Case, the Lord shall have the marriage of him. Vide Pl. ibid. Clergy. 32 Clergy was allowed to the accessary to the stealing of Horses and Mares, because the Statutes of 1 E. 6. 12. and 2, 3 E. 6. 33. Dier. 99 a. ●9. 1 Mar. shall be taken strictly in favorem vitae, and are therefore to be only understood of Principals, which they expressly mention, and not of Accessaries, per Cur. Clergy. 33 Albeit it be entered upon Record at one Sessions, quod non legit, Dier. 205. b. 3, 4 ●l. and the prisoner is for some cause reprieved, yet he may read at the next Sessions, and shall have his Clergy, in favorem vitae, Vide 36 H. 6. that a Prisoner shall have his Clergy under the Gallows. Life & goods. 44 If two men tilt before the King, Hob. 134. Weaver and Ward. or two Masters of Defence be playing their Prizes, and one of them happen to kill the other, this is not Felony, because not done animo felonico, and besides, if it should be questioned as an Offence, the life of the Offender (which the Law much tenders) would be brought into jeopardy; there is the same Law also of a Lunatic, that kills a man: Howbeit in Trespass, which intends only to give damages, according to hurt and loss, it is not so: And therefore if a Lunatic hurt a man, he shall be answerable in Trespass: So likewise, if in training for exercise in re militari, one Soldier happen to hurt another, he shall be answerable in Trespass, because it extends no farther than to his goods to sati●●e damages; yet if the accident were inevitable, he shall be excused, etc. 93 Things in the Realty more than those in the Personalty. In waste, the place wasted ● more respect than the damages. 1 It hath been a question, Co. Inst. p. 1. 355. a. 4, etc. Note, that it is holden per Curiam 9 H. 5. 15. that the personalty is the principal, Ideo quare. Vide Co. l. 2. 68 b. 1. in Tookers' case. whether upon a Recovery had by default in an Action of Waste against tenant in Dower, or by the Courtesy, a Quod ei deforceat lieth upon the Statute of West. 2. cap. 4. And some hold, that it doth not, in regard the damages (as they say) are the principal, and not the place wasted, because the damages were recoverable upon that action against such Tenants at the Common Law, and the place wasted was afterwards given by the Statute of Gloucester, as a penalty: so as the nature of the Action (say they) remaineth still to be personal, for that the damages are the principal, etc. But in that Case, others are of opinion, and say, that albeit in that Action the damages may be the more ancient recompense, yet the place wasted (being in the realty) must needs be the more principal: And therefore upon a Recovery by default in such an action, a Quod ei deforceat lieth as well as in any other, etc. And this last seems to be my Lord Cooks opinion, because put last, according to his own Rule, in his Comment upon Littleton. ● Lain real ●nd personal. 2 There is a diversity between a Lien real and a Lain personal; Co. ib. 386. b. 3 & 11. E. 3. det. 7. for a Lain real, as a warranty, doth ever descend to the heir at the Common Law; but the Lain personal doth bind the special heirs, as all the heirs in Gavelkind, the heir on the part of the mother, etc. when such an heir being charged by the Obligation or other act of the Ancestor is in by descent, etc. So if two men make a Feoffment in Fee with warranty, and the one die, the Feoffée cannot vouch the survivor only, but the heir of him that is dead also: Howbeit it is otherwise, where two do jointly bind themselves in an Obligation; for if one die, the survivor only shall be charged, etc. Release of one joint-tenant no Bar. 3 In personal actions, the one joint-tenant may release all; Co. l. 2. 68 24 in Tookers ca per Popham. but if the personalty be mixed with the realty, it is otherwise; as in an Assize by two, the release of all actions personal by the one, is no bar against the other; for albeit an Assize is an action mixed in the realty and personalty, yet omne majus trahit ad se minus, as it is adjudged 30 H. 6. Bar 59 Also a joint-tenant shall not prejudice his Companion, as to any matter of Inheritance of Franktenant, but as to the profit of the Franktenant, the one may prejudice the other: for there is a privity and trust betwixt them; and therefore if one of them take all the profits of the Land, or all the Rent, the other hath no remedy, etc. Things in the Realty may be entailed, not those in the Personalty. 4 By force of the Statute of West. 2. cap. 1. Co. Inst. p. 1. 19 b. 4. (which createth estates tail) under this word, tenementa, not only all corporate Inheritances (which are or may be holden) may be entailed, but also all Inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisable within the same, though they lie not in Tenure; as Rents, Estovers, Commons, or other profits whatsoever granted out of land; or Uses, Offices, Dignities, etc. which concern lands or certain places; All these (I say) may be entailed within that Statute; because they savour of the Realty: But if the Grant be of an Inheritance mere personal, or to be exercised about Chattels, and is not issuing out of land, nor concerning any land, or some certain place; such Inheritances cannot be entailed, because they savour nothing of the Realty: For example, in 7 Ass. Pl. 12. and 7 E. 6. 1. the Office of the fourth part of the Sergeant of the Common Pleas is liberum tenementum, and therefore may be entailed: In 18 E. 3. 27. the Office of the keeping of the Church of our Lady of Lincoln was entailed, and a Formedon brought thereupon by the issue entail. In 5 E. 4 3. and 10 E. 4. 14. The Office of Marshal of England was entailed. In 11 E. 4. 1. the Office of one of the Chamberlains of the Exchequer entailed. In 1 H. 7. 28. the Office of a Fostership entailed: In 4 H. 7. 10. and 9 E. 4. 56 b. Charters entailed. In 19 H. 8. 3, An Use entailed. In 1 H. 5. 1. The nomination to a Benefice entailed, etc. Co. l. 7. 33. 34 Nevil● Ca●●. & 28 H. c. the Lord Vesce●● Case. Also the name of Dignity may be entailed within that Statute, as Dukes, Marquesses, Earls, Viscount's and Barons, because they are named of some County, Manor, Town, or place: In 14 Ass. Pl. 2. if the issue in tail in a Formedon in a Descender be barred by false Verdict, his release is no bar to his issue, albeit the action is at the Common Law: The like Law is of a writ of Error, 3 Eliz. Dier. 188. If a gift in tail be made with warranty, the Donée releases the warranty, this shall not bind the issue in tail; for to all these Cases and the like the said Statute doth extend: But if I grant to a man, and to the heirs of his body to be Keeper of my Hounds, or Master of my Horse, or to be my Falconer or the like, with a fee therefore; yet these cannot be entailed within the said Statute: for that they be not issuing out of Tenements, nor annexed to, nor exercisable within, or concerning Lands or Tenements of Fréehold or Inheritance, but concerning Chattels, and savour nothing of the realty: So it is likewise, if I, by my Deed, for me and my Heirs, grant an Annuity to a man and the Heirs of his body, because this only chargeth my Person, and concerneth no Land, nor laboureth of the Realty. Baron, Feme, Chattels real and personal. 5 If a Feme sole be possessed of an Estate for years, Co. Inst. p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant, Statute Staple, or Elegit, or of a wardship, or other chattels real, and taketh Baron, the Baron is thereof possessed in her right only. And albeit during the Coverture he may dispose of such an Estate by Grant, Demise, etc. or upon Out-lawry, Attainder, etc. may forfeit it, or may subject it to be sold by the Sheriff upon an execution for his Debt, and in Case he survive the Feme, shall then have a clear interest in it; yet he cannot dispose of such an Estate by Will, and if she survive him, (no disposition or forfeiture being thereof made, as aforesaid) she shall have it, and not his executors or administrators; because these Estates and Interests savour of the realty: and therefore the Feme being thereof once possessed, her interest cannot be by the Inter-marriage so easily removed, as if they were Chattels personal: There is the same Law also of Chattels real, which being of a mixed nature (viz. partly in possession, and partly in action) happen during the Coverture; As if the husband be seized of a rent-service, charge, or sack, in the right of his wife, the rent becomes due, during the Coverture, the wife dieth, the husband shall have the arrearages; but if the wife survive the husband, she shall have them, and not the executors of the husband: So it is also of an Advowson, if the Church become void, during the Coverture, he may have a Quare Impedit in his own name, as some hold; but his wife shall have it, if she survive him, and the husband, if he survive her, Et sic de similibus. But as concerning Chattels personal, the inter-marriage is an absolute gift of such goods, which she hath in possession, and in her own right, whether the husband survive the wife or no, so that he may at his pleasure dispose of them, either by act execute in his life, or by will; and albeit he make no such disposition of them, and die living the wife, yet his Executors or Administrators shall have them and not the wife, etc. Howbeit if they be in action, as Debts by Obligation, etc. the husband shall not have them, unless recovered during the Coverture; neither yet shall he have such goods, as the wife hath in altar droit, as Executrix or Administratrix, &c, Vide R. 55. ex. 129. tenants in ●●mmon. chattels. 6 If one Tenant in Common of Chattels take any Chattels real, Co. ib. 200. a. z (which are not of an entire nature) from his companion, the other may have his remedy to recover them by Action; but if one of them take all the personal goods from the other, he hath no remedy by Action or otherwise, save only to take them again by Catchpole Law: And so it is also of entire Chattels real, as a Ship, Horse, Hawk, or the like: but that is in respect of the Entireness and inseverablenesse of their nature, etc. for which see R. 70. ex 25. freehold or inheritance 〈◊〉 reassumed ●e collateral ●●sfaction. 7 It is said in our Books, that Accord with satisfaction is a good plea in personal actions, where damages only are to be recovered, Co. l. 4. 1. a. 4 in Vernons case. but not in real Actions; For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompense; As if A. disseise B. (tenant for life, or in Fee) of the Manor of Dale, & after A. gives the Manor of Sale to B. and his Heirs, in full satisfaction of all his rights and actions, which he hath in or for the Manor of Dale, and B. accepts thereof: Nevertheless B. may enter into the Manor of Dale, or recover it in any real action; it is otherwise of things in the personalty. Dier. 2. 8. 6 H. 8. 8 In real Actions to plead, Alien. Actions. that the Plaintiff is an Alien is a good bar, because an Alien can have no land within the Realm, but such a Plea in personal Actions is no bar; because an Alien may bring personal Actions, unless he be an Alien Enemy. Co. l. 6. 7. a. in Ferrer Case. 9 Betwixt real and personal Actions there is a diversity: Bar in personal actions bind not so in real. for in personal Actions, as in Debt, Account, etc. the bar is perpetual; because (in such Cases) a man shall not have an Action of a higher nature: But in a real Action, if the Demandant be barred by judgement upon Verdict, Demurrer, Confession, etc. yet he may have an Action of a higher nature, and shall try the same right again, because it concerns his Franktenement and Inheritance: So if a man be barred in Assize of Novel disseisin, yet upon showing a descent, or other special matter, he may have an Assize of Mortdancestor, Aiel, Besaiel, etc. Vide infrà 1. 78, 14. Litt. §. 146. Co. Inst. p. 1. 103. a. 2. 10 An Abbot, Prior, Bishop, Successor of an Abbot, etc. bou●d. or other sole Corporation cannot dis-claim or divest any thing of Fee, which is vested in their houses, or other spiritual Corporations, to the prejudice of the Successor: Howbeit, if an Abbot or Bishop, etc. acknowledge the Action in a writ of Annuity, or in an action of Debt upon an Obligation, Statute or Recognisance; this shall bind the Successor, so as he shall not prevent execution thereupon, albeit they were granted and made without the consent of the Covent, Chapter, etc. because these things being in the personalty, the recovery thereof cannot be falsified in an higher action, Et res judicata pro veritate accipitur, Vide suprà, M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants, Pleas real and personal. if one tenant plead in bar to parcel, or which extendeth only to him that pleadeth it, and the other pleads a Plea, which goeth to the whole (viz. to both the tenants) and which (indeed) would make an end of the business, if it were tried, yet those several Pleas shall have several trials; as if a praecipe be brought by one as heir to his father against two, and one of them pleads a Plea, which extendeth but to himself, and the other pleads a Plea, which extends to both, (as Bastardy in the Demandant) and it is found for him, yet the other issue shall be tried, and he shall not take advantage of the others Plea: But in a Plea personal against divers Defendants, it is otherwise, for in such an action if one Defendant pleads that, which extendeth only to himself, and the other pleads a Plea which goeth to the whole, viz. to both Defendants; this last Plea shall be first tried; and if that be found for the Defendant that pleaded it, it shall discharge both, for in a personal Action a Discharge of one is a Discharge of both: For example. If one of the Defendants in Trespass plead a Release to himself (which in Law extends to both) and the other pleads not guilty (which extends but to himself) the Plea which goeth to the whole, and dischargeth both, shall be first tried, for if that be found, it maketh an end of all, and the other shall take advantage of it. 94 Freehold and Inheritance more than it doth Chattels. Co. Inst. p. 1. 3. a. 2. 1 The Parishioners or Inhabitants, or probi homines de Dale, Parisho●●● purchase. or the Churchwardens, etc. are not capable to purchase Lands, unless it were in ancient time when such Grants were allowed; But Goods and Chattels they may purchase, etc. Signories suspended. 2 If an Estate of Fréehold in Signories, Rents, Commons, Co. ib. 29. b. 2. or the like, be suspended, a man shall not be tenant by the Courtesy; but if the suspension be but for years, he shall be tenant by the Courtesy: As if there be Feme, Seignioresse, and Tenant, and the Tenant makes a Lease for life of the Tenancy to the Seignioresse, who taketh an husband, and hath issue, the wife dieth, he shall not be tenant by the Courtesy; Howbeit if the Lease had been made only for years, then should he have been tenant by the Courtesy, etc. An Estate for life and years. 3 In the eye of the Law any estate for life, Co. ibid. 46. a. 1 & Co. l. 8. 70. b. 4. in Whitlocks Case. being (as Littleton saith) an Estate of Fréehold against the tenant, whereof a Praecipe quod reddat doth lie, is an higher and greater estate than a Lease for years, though it be for a thousand years or more (which is a Chattel; and if so long, never without suspicion of fraud.) And they have been always the less valuable, for that (at the Common Law) they were subject unto, and under the power of the Tenant of the Fréehold, etc. Claim by the Lord of the Villeins goods 4 Claim by the Lord (inter vicines, etc.) of the Villeins goods, Co. ib. 118. b. 4 and Lit. §. 177 shall not only vest the goods, which the Villain than hath, but also which he after that shall acquire and get: Howbeit it is otherwise, if an Estate of Frée-hold, or Inheritance in lands, for there such a general Entry or Claim extends only to such lands as the Villain hath at that time, and not to any other, which he shall purchase afterwards. Rend 5 If a man grant a Rent out of Black-Acre to one and to his heirs, Co. ib. 147. b. 1 & Co. l. 7. 24 a. b. 3. in Butts ca and also grant to him that he may distrain for it in the same Acre for the term of his life, this is a Rent-charge for his life, and a Rent-seck afterwards; diversis temporibus; but if the Distress be only limited for certain years in the same land: In that Case it remains a Rent-seck entirely; for that the Fée and the Fréehold is seck in such Case, etc. joint-tenants Partition. 6 At the Common Law (before the Statutes of 31 H. 8. cap. 1. Litt. § 290. Co. ibid. 187. a. 1. and 32 H. 8. cap. 32.) joint-tenants by consent might have made partition, and if they had been possessed of a Lease for years, they might have done it by Parol, but if they had been seized in an Estate of Inheritance, or for life, they could not have made partition without Deed. Words conditional to make a Lease void. 7 If a man maketh a Feoffment in fee, or Lease for life, Co. ib. 204. ●. 4 ad faciendum, or faciendo, or ea intention, or ad effectum, or ad propositum, etc. that the Feoffée or Lessée shall do, or shall not do such an Act, none of these words make the state in the land conditional; for (in the Case of a common person, and not of a will) they are in judgement of Law no words of Condition, and so it was resolved, H. 18 Eliz. in Com. Banco: Howbeit for the avoiding of a Lease for years, no such precise words of condition are required, as in Lease of Fréehold or Inheritance; for, if a man by Deed make a Lease of a Manor for years in which there is a clause. (And the said Lessée shall continually dwell upon the Capital Message of the said Manor, upon pain of forfeiture of the said Term) these words amount to a Condition: So it is also if such a Clause be in such a Lease, Quod non licebit to the Lessée, dare, vendere, vel concedere Statum, & sub poena forisfacturae, this amounts to make the Lease for years defeasible: And so it was also adjudged, H. 40. Eliz. Rot. 1610. inter Brown & Ayel. And the reason of the Court was, because a Lease for years was but a Contract, which may begin by word, and by word may be dissolved. Litt. §. 365. Co. ib. 225. 8 A man in any Action real, personal, or mixed, cannot plead, Pleading of a Condition. that an Estate of Fréehold or Inheritance was made upon condition, without vouching a Record thereof, or showing a writing under seal, that proves the same; but a man may plead a condition, that concerns Chattels either real or personal, without showing forth any writing purporting the same, etc. Littlet. § 388. Co. ib. 239. ib. 2 9 If a Disseisor make a Lease for years, Descent a tolle entry and die seized of the Reversion, this descent shall take away the entry of the Disseisée; because he died seized of the Fee and Franktenement: like Law it is, if the Land be extended upon a Statute, judgement, or Recognizance: and so it is likewise in case of a Remainder: Howbeit, if he had made a Lease for life, either for his own, or for another's life, and then had died seized of the Reversion, this descent shall not take away the Entry of the Disseisée; for albeit he had the Fee, yet he had not the Franktenement; and the Law doth ever give great respect to the Estate of Fréehold, though it be but for term of life: And therefore there is the same Law also, where the Disseisor makes an Estate in tail, mutatis mutandis. Lit. § 525, 526 Co. ib. 299. b. 4 10 If I let Land to a Feme sole for life, who takes Baron, Joint confirmation to Baron and Feme and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives: In this Case, the Baron holds not jointly with the Feme, but only in her right, during her life, and shall have it for life, if he survive her: But if I let to a Feme sole Land for term of years, who takes Baron, and I confirm the Estate of the Baron and Feme to have and to hold for their lives: In this Case, they have a joint Estate in the Franktenement of the land; because the Feme had not Franktenement before, but only a Chattel, whereof the Baron hath such a possession in her right, as was capable of a confirmation, or a release; and the confirmation in this Case to the husband and wife for their lives, maketh them joint-tenants for life; because this Chattel of the Feme covert may be drowned; So note a diversity between a Lease for life, and a lease for years, made to a Feme covert; for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her, as the term for years may, whereof her husband may make disposition at his pleasure. Co. ib. 275. b. 4. 11 If Lessée for years be ousted, and he in the Reversion disseised, Release to the Disseisor. and the Lessée release to the Disseisor, the Disseisée may enter; for the term for years is extinct and determined: But otherwise it is in case of a Lessée for life; for (in that Case) the Disseisor hath a Fréehold, whereupon the release of tenant for life may inure; but the Disseisor hath no term for years, whereupon the release of the Lessée for years may inure. Co. ib. 378. ●. 4 12 A man letteth lands for life, upon Condition to have Fee, A Lease for years not capable of a warranty. and warranteth the land in forma praedicta, afterwards the Lessée performeth the Condition, whereby the Lessée hath Fee: In this Case, the warranty shall extend and increase, according to the State; for a warranty being a Covenant real executory may extend to an Estate in futuro, having an Estate whereupon it may work in the beginning: but if a man grant a Seignory for years, upon condition to have fee, with a warranty in forma praedicta, and after the Condition is performed, this shall not extend to the fee, because the first Estate was but for years, which was not capable of a warranty: And so it is, if a man make a lease for years, the remainder in Fee, and warrant the land in forma praedicta, he in the remainder cannot take benefit of the warranty; because he is not party to the Deed, and immediately he cannot take, if he were party to the Deed; because he is named after the habendum, and the Estate for years is not capable of a warranty, etc. Waste. 13 A Lease for life, the remainder for years, Finch 29. the remainder over in Fee, an action of waste lieth for him in the remainder in Fee against the Lessée for life: sor the mean Estate for years is not regarded: Otherwise it were, if the mean Estate for years were an Estate for life, etc. joint-tenants may prejudice one another. 14 One joint-tenant cannot prejudice his Companion, Co. l. 2. 68 a. 3. in Tookers ca as to any matter, that concerns the Inheritance or Franktenement; But as to the profits of the Franktenement they may prejudice one another, etc. per Popham. Right of Action. 15 There is a diversity between Inheritance and Chattels; Co. l 3. 3. a. 1 in the marquis of Winchester's Case. for the right of action concerning Inheritances is not forfeited by Attainder, etc. but Obligations; Statutes, Recognizances, etc. and such other things in action are forfeited by Attainder or Outlawry. Real and personal actions. 16 The Law hath provided greater safety and remedy for matters of Franktenement and Inheritance, then for Debts and Chattels; Co. l. 6. 7. a. 1 in Ferrer Case. for there once barred, and ever barred; for in personal actions, as in Debt, Account, etc. the bar is perpetual; because the Plaintiff (in that Case) cannot have an Action of an higher nature, but his only remedy (in such Case) is by Error or Attaint: Howbeit if the Demandant be barred in a real Action by judgement upon Verdict, Demurrer, Confession, etc. yet he may have an Action of higher nature, and try the same right again, because it concerns the Franktenement and Inheritance; as if one be barred in an Assize de novel disseisin, yet he may have, upon showing a descent, or other special matter, an Assize of Mortdancestor, Aiel, Besaiel, Entry sur disseisin, to his Ancestor, etc. So if a man be barred in a Formedon in descender, he may have a Formedon in reverter or remainder, for that is an Action of an higher nature; because in it the Fée-simple is to be recovered according to the opinion in Robinson's Case in the 5. Report, fol. 33. ●ands not chargeable in locution. 17 At the Common Law before the Statute of West. 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil Herbert's case. (which gave an Elegit against the moiety of the Debtors Lands) upon a Recognisance or judgement sued, lands were not chargeable in execution, but only Goods and Chattels, or else grain or other present profit increasing upon the land, viz. Goods and Chattels by Fieri facias and such present profit by Levari facias, etc. (Vide suprà, Ru. 92. ex. 16.) Howbeit in the King's Case, by reason of his Prerogative, and in Case of an Heir, in by Descent, and chargeable by the act of his Ancestor, etc. (because otherwise (in such Case) the Creditor was without remedy, etc.) lands were chargeable in execution, etc. 〈◊〉 by a ter●●r not good. 18 A man deviseth a rent for life out of a Manor, Co, l. 6. 58 b. 4 in Bredimans' Case. and deviseth the Manor for years, the termor enters, and pays the rent, after the term, the Devisée brings an Assize for the rent against the Terretenant: And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assize, but the seisin ought to have been given by the hands of the Terretenant, viz. of one the tenant of the Franktenement, etc. (Vide suprà, Ru. 86. ex. 21.) It had been otherwise, if the termor for years had been Lessée for life; for then the seisin had been given by the hands of the Terretenant, viz. of one that had Franktenement, as may be collected out of Bredimans' Case, ubi in margin, viz. fol. 58. b. ●●rantee of a ●●version: ●●dition. 19 If a man make a Lease for years, upon condition, Co. l. 8. 95. b. 3 in Matt. manning's Case. & Co. l. 10. 48. b. 3 in Lampets ca that if the Lessée doth not such an act, that the Lease shall be void, and after the Lessor grants the Reversion over, the condition is broken, the Grantée shall take advantage of that Condition by the Common Law; for the lease is thereby absolutely void: But if a lease for life had been made upon such Condition, the grantée shall not take benefit of the breach of the Condition: because a franktenant (whereof a praecipe lies) cannot so easily cease, but it is voidable by entry after the Condition broken, which cannot by the Common Law be transferred to a stranger, etc. and with this agrees 11 H. 7. 17. & Br. Conduit 245. 2. Mar. per Bromley Rule 27. Co. l. 9 135. a 1 in Ascoughs Case. 20 If the Lord grant his Seignory for years, Seignory. Attornment. Lessee for 〈◊〉 for years. the remainder to the Tenant peravaile for life, in this Case the Seignory is suspended: because the Tenant for life hath the franktenement of the Seignory, and he is Tenant to every praecipe of the Seignory: as in the Case of Littleton l. 2. cap. Attornment, fol. 128. If land be let to a man for term of years, the remainder to another for term of life, and after the Lessor grants over the reversion, and he in the remainder for life attornes, this is a good attornment, and shall bind the Lessée for years without any attornment made by him: For, he was Tenant of the franktenement: and at the Common Law the termor for years was subject and under the power of the Tenant of the franktenement: for he shall not falsify a recovery at the Common Law against the Tenant of of the franktenement, because he hath but a Chattel, etc. Co. lib. 10. 48. b. 3. in Lampets' Case. 21 If Lessée for 1000 years be ousted by the Lessor, Frank-te●●● cannot dr●●● in a Chattel. and he maketh a lease for 2 years to another: In this Case, the Lessée for 1000 years may release to the Lessée for 2 years: but if the Lessor disseise his Lessée for life, and make a lease for 1000 years, yet the Lessée for life cannot release to that Lessée for years: because a franktenement is too high to be drowned in a Chattel. Co. lib. 10. 87. a. 4. in Leonard Loveis Case. 22 If a term be devised to one and to the heirs males of his body, A term shall go to the E●ecutors. his heir shall not have it, but his Executors; for the term, which is but a Chattel, cannot be entailed, and such a devisée may alien the term to whom he pleaseth: and so it was adjudged, Tr. 28 Eliz. in B. R. in Peacock's Case, and 21 Eliz. resolved by Anderson and Walmesly, being referred unto them out of the Chancery between Higgins, and Milles. See also Dier 7. 28 H. 8. Pl. 8. F. N. B. 34. f. 23 If a Man make a devise of lands or Tenements, Court▪ Christia●. the devisée shall not sue for them in the Ecclesiastical Court, and if he do, the other party shall have a prohibition: Otherwise it is of personal goods, and also of Chattels real, as a term of years, a ward, etc. for, for such, the devisée may sue in that Court, etc. Co. l. 3. 26. a. 3. etc. in Butler & Baker's Case. 24 An Estate of Inheritance or frée-hold cannot be put out of a man by any verbal wayver, disclaimer or disagréement in pais, Disclaim in pais of inter● in goods, 〈◊〉 so of french or otherwise then in Court of Record: but a man may disclaim or disagree to Interest in Chattels in pais and no such disagréement in a Court of Record is (in that Case) necessary: For example, If Lands be given to Baron and Feme in tail or in see, the Baron dies, the Feme (in this Case) cannot divest the franktenement out of her, by saying, she dis-agrées to the grant, or that she will have nothing to do with the land, So if the Baron aliens his land, and takes again an Estate to him and his wife in tail, the Baron dies, the Lord of whom the land is holden by Knight-service, supposing that the Baron died solely seized, by parol assigns dower to the Feme, which she accepts: yet this refusal of the Inheritance, and acceptance of the Dower in pais shall not divest the franktenement out of her: Likewise, if a Charter of feoffment be made to four, and seisin delivered to three in the name of all, and after the seisin delivered the fourth coming and seeing the deed, dis-agrées to it and saith he will have nothing to do with the land; yet it was adjudged in 13 R. 2. Title Jointenance, that this disagréement by parol in pais could not divest the franktenement out of him, And Thorpe in 53 E. 3. Tit. Disclaimer, saith, that in such Case the tenancy remains in all, until disagréement in Court of Record: But if A. make an Obligation to B. and deliver it to C. to the use of B. this is the deed of A. presently; Howbeit if C. offer it to B. there B. may refuse it in pais, and by such refusal the Obligation shall be his force: There is the same Law of a gift of goods and Chattels, if the deed be delivered to the use of the Donée, the goods and Chattels are immediately in the Donée before notice or agreement: but the Donée may make refusal of such gift in pais, and thereby the property and Interest shall be divested, and such disagréement is not necessary to be made in a Court of Record, as in Case of a frée-hold, etc. Condition to be void. 25 There is a diversity between a Condition annexed to a frée-hold and a Condition annexed to a lease for years; Co. Inst. p. 1. 214. b. 3. for if a man make a gift in tail or a lease for life upon Condition, that if the Donée or lessée goeth not to Rome before such a day, the gift or lease shall cease or be void, the grantée of the Reversion shall never take advantage of this Condition: because the Estate cannot cease before an entry: but if the lease had been but for years, there the grantée should have taken advantage of the like Condition: because the lease for years ipso facto by the breach of the Condition without entry was void: for a lease for years may begin without Ceremony, and also may end without Ceremony: And of a void thing a stranger may take benefit, but not of a voidable Estate without entry. Rend issuing 〈◊〉 of fee and lease hold. 26 A man seized of Black-acre in fee, Co. 7. 23. a. Butts Case. and possessed of White-acre for years, grants a Rend charge for life with clause of distress in both: In this Case, the Rent issues only out of Black-acre: for out of White-acre in regard of the meanness of the Interest thereof, a franktenement cannot issue: neither shall it be put in view, and acceptance of the Lease of White-acre by grantée of the Rent shall not suspend the Rent, etc. Diversity betwixt lease & safe-hold. 27 If a man make a Lease for years upon Condition, Co. l. 8. 95. b. 3. Matthew manning's Case. that if he do not such an Act the Lease shall be void, and afterwards he grants the reversion over, the condition is broken, the grantée shall take benefit of this Condition by the Common Law, for the lease is thereby absolutely void: but if the lease had been for life with such Condition, the grantée shall not take benefit of the breach of the Condition: for a Franktenement (up on with a praecipe lies) cannot so easily determine, but is voidable by entry after the Condition broken, which cannot be by the Common Law transferred to a stranger. 〈◊〉- tenants. ●●nants in Common. 28 If Lands be given to John Bishop of Norwich and his Successors, and to John Overall Doctor of Divinity and his heirs, Co. I●st. p. 1. 190. 4. being one and the same person, he is Tenant in Common with himself; but it is otherwise of Chattels real or personal; for if a Lease for years be made or a ward granted to an Abbot and a secular man, or to a Bishop and a secular man, or if goods be given to them, they are joint-tenants thereof, and not tenants in common; for they take them in their natural, and not in their politic capacity. 〈◊〉 of a r●●●●sion, for 〈◊〉 good ●●houe Atonement. 29 Grant of a Reversion of frée-hold is not good without attornment but if a man make a lease for years rendering Rend, Dier 26. 167. 28 H. 8. and afterwards makes a Lease of the same land to another to commence during the first term, this is a good grant of the reversion, and he shall have the Rent (it being but a Chattel: which is granted in reversion) without attornment. 95 Matter of Record more than other transactions. Co. Inst. p. 1. 161. a. 3. 1 There is a diversity between a warrant of Record, A warrant & a bare authority. and a warrant; or an authority in Law, for if a capias be awarded to the Sheriff to arrest a man for felony, albeit the party be innocent yet cannot he make rescous; but if the Sheriff will by the authority, which the Law giveth him arrest a man for felony, which is not guilty, he may rescue himself. Littl. §. 406. C. ibid. 247. b. 4. Dier 232. 9 2 If a man de non sane memoriae or an Infant make a feoffment or other conveyance of his land in pais, the heir of the non sane memoriae, Conveyance by fine, etc. and the Infant himself or his heir may enter and but the feoffée, etc. Otherwise it is, if the conveyance be by fine, or by other assurance of record, etc. unless the Infant reverse it before full age because of inspection. Co. ibid. 251. b. 2. & 4. 3 A particular Estate of any thing, that is in grant, Conveyance by fine, men than that by grant. cannot be forfeited by any grant in fee by deed, as if Tenant for life or years of an Advowson: Rent, Common, or of a Reversion or remainder of Land, by deed grant the same in fee, this is no forfeiture of his Estate; because it passeth by deed, and nothing is divested, neither yet doth any thing thereby pass, albeit the deed of such things be enroled, and so made a matter of record; yet neither then worketh if any forfeiture, because the deed is the original, etc. But a grain of such things by fine, (albeit no reversion or remainder is thereby divested) worketh a forfeiture, because that is matter of Record, ab origine, etc. Co. ibid. 252. a. 1. 4 An attornment of Record to a stranger by Tenant for life or years worketh a forfeiture: So doth not an attornment in pais. Attornment forfeiture. Co. ibid. 258. a. 2. & lib. 9 106. a. in the Lord Anal●ys Case. 5 If an Infant or any man of full age have any right of entry into any lands, Entry by a stranger sufficient for the diseisee, etc. any stranger in the name and to the use of the Infant or man of full age may enter into the Lands, and this (regularly) shall vest the Lands in them without any commandment precedent or agreement subsequent: But if a disseisor levy a fine with proclamation according to the Statute of 4 H. 7. cap. 24. a stranger without a commandment precedent, or an agreement subsequent within the five years cannot enter in the name of the Disseisée to avoid the fine: Howbeit an Assent subsequent within the five years is sufficient; Omnis enim ratio habitio retrotrahitur & mandato aequiparatur: And this resolution is grounded upon the construction of the said Statute, and the force of a fine, being a matter of Record, etc. Co. ibid. 309. a. 4. & 314. a. 3. & Litt. §. 579. & Co. l. 2. 67. b. 4. in Tookers' Case. 6 Before the Stature of uses (27 H. 8. cap. 10.) upon a grant in pais of a Seignory, Rent, reversion, or remainder, Grant in p●●● not good without attornment, otherwise of a fine. if either the grantor or the grantée had died before attornment, such grant had been remediless and void, etc. but if the grant had been by fine, then albeit the Conusor or Conusée had died, yet the grant had been good; or for, by fine levied the state did pass to the Conusée and his heirs, and the attornment to the Conusée or his heirs at any time, to make privity to distrain, had been sufficient: But now by force of that Statute the grant of such things (by fine, or bargain and sale by deed indented and enroled) is good (yea even to distrain also) without attornment. Vide R. 55. e. 69. Co. Inst. p. 1. 320. a. 3. 7 If Tenant for life hath a privilege, Claim of ●●●vilege by ●●●nant for 〈◊〉 etc. not to be impeacheable of waist, or any other privilege, and upon grant of the reversion by deed he attornes without saving his privilege, yet loseth he thereby no privilege, for there can be no conclusion or bar by such attornment in pais; And so it is also of an attornment in Law; as if the Lessor disseise the Lessée for life and make a feoffment in fee, and the Lessée re-enter, this is an attornment in Law which shall not prejudice him of any privilege; Likewise if the Lessor levy a fine of the reversion, and the Conusée die without heir, whereby the reversion escheateth to the Lord: In this Case the Law doth supply an attornment, and therefore the Lessée shall lose no privilege, etc. But in a Quid Juris clamat brought by the Conusée of a fine, if the Tenant for life claimeth not his privilege, but attornes generally, his priveiledge is lost; because that is upon record, and the writ supposeth him to be but a bare tenant for life; and therefore by his general attornment according to the writ he is barred for ever to claim any privilege, but a bare Estate for life, etc. Attornment. 8 If a reversion be granted for life, the remainder in fee, by deed, Co. l. 2. 67. b. 4. in Tookers Ca and the grantée for life dies, attornment to him in remainder is void, for it is not according to the grant; otherwise it is, if the grant were by fine, etc. Vide supra 6. & R. 55. e. 69. Waiver in Court of Re●●●d. 9 At the Common Law, Co. l. 3. 26. a. 3. in Butler and Baker's Case. if lands be given to Baron and Feme in tail, or in fee, and the Baron die; in this Case, albeit the Feme before her entry, reciting her Estate, saith by parol in pais, that she assents and agrees to the said Estate, or words to that effect, yet afterwards she may waive that Estate in a Court of Record: So in M. 34 E. 1. Tittle Advowry 232. it was adjudged, that if a man take a distress for one thing, yet when he comes into a Court of Record, he may make Avowry for what thing he pleaseth: Also in 13 R. 2. Joint-tenancy, A Charter of feoffment was made to four, and seisin was delivered to three in name of all, and the fourth coming and viewing the deed, dis-agrées, and saith by parol, he will have nothing to do with the Land; and it was adjudged, that this disagreement by parol in pais shall not divest the franktenement out of him: And Thorpe in 35 E. 3. Tittle Disclaimer, saith, that in such Case the tenancy remains still, until his disagréement thereunto in a Court of Record, and therefore in such a Court he may disagree and not otherwise, etc. 〈◊〉 compos ●●●is. 10 The Law so much tendereth the debility and weakness of a non compos mentis, that in many Cases the Acts, which he doth in pais, Co. l. 4. 124. a. 2. in Beverleys' Case. shall be avoided, etc. but matters of Record done by him shall not be avoided: as if he levy a fine, suffer a recovery, acknowledge a Statute or recognizance, etc. such things as these shall not be avoided by any averment of non sanae memoriae, either by his heirs or executors, etc. ●oods of one 〈◊〉 lawed sa●ed by a par●● upon Re●●d. 11 If a man be outlawed for felony, Co. l. 5 111. a. 2. Foxleyes' Case. albeit he was in prison or beyond Sea, etc. renders himself upon the exigent, and upon his trial is found not guilty: yet he shall forfeit all his goods and chattels, and shall not have restitution, etc. for Knivet in 43 E. 3. 17. saith, that the party shall not have restitution of his goods, although the writ of exigent erronice emanavit, so long as the award of exigent (which is there called a judgement) stands in force: because the foresaid averments of imprisonment, or being beyond Sea, etc. are but matters in fuit. But (as it is said in the same Book) if such an outlawed person have a charter of pardon of an older date then that of the Exigent, the goods are saved, for that the cause of saving them appears upon Record, etc. ● Court of ●●cord only ●●wer to im●●●son. 12 In some Action the Defendant shall be fined in one Court, Co. l. 8. 60. b. z. in Beechers Case. & Co. lib. 8. 41. a. 3. in Griesleys Case. & lib. 8. 120. a. 1. in Doctor bonham's Case. and only amercied in another Court, and yet the offence shall be one and the same: As in a writ of Reception, if it be brought in the Common Pleas, and judgement there given, the Defendant shall be fined and imprisoned; but if the writ be Vicontiel, and before the Sheriff in the County the Defendant is convict, the judgement shall not be, quod capiatur, etc. but in such Case he shall be only amercied: And albeit the writ, viz. the Reception is of Record, yet in as much as the judges in the Court, viz. the Suitors, are not judges of Record, nor the Court a Court of Record, they cannot impose a fine or commit any to prison, Quia nulla Curia, qui Recordum non habet, potest imponere finem, neque aliquem mandare carceri, quia ista spectant tantummodo ad Curias de Recordo, etc. Co. Inst. p. 1. 233. b. 4. 13 If a Lease for life be made to a Feme covert or an Infant, Infant. Feme covert. Forfeiture. Mortmain. Recovery. Wast. and they by Charter of Feoffment Alien in Fee, the breach of this Condition in Law is no absolute forfeiture of her Estate: So it is also of a Condition in Law given by Statute, which giveth an entry only, As if an Infant, or Feme covert with their husband, Alien by Charter of feoffment in Mortmain, this is no bar to the Infant or Feme covert: But if a recovery be had against an Infant or Feme covert in an Action of waist, there they are bound and barred for ever: because that is matter of record unto which the Law gives high respect: and therefore it is to be observed, that a condition in law by force of a Statute, which giveth a recovery, is in some Case more strong, than a Condition in Law without a recovery: For if Lessée for life make a lease for years, and after enter into the land, and make waist, and the Lessor recover in an Action of waist, he shall avoid the lease made before the waist done: But if the Lessée for life make a lease for years, and after enter upon him, and make a feoffment in fee, this forfeiture shall not avoid the lease for years, etc. Co. ib. 356. 24 14 If a man sue a false and feigned Action against Tenant for life, Recovery. Discontinuance. and recover the land against him by default, so that he may have against the recoveror a Quod ei deforceat, according to the Statute of West. 2. cap. 4. In this case, albeit the Action be false and feigned, yet is a Recovery (being a matter of Record) so much respected in Law, that it worketh a discontinuance: so that the Lessor cannot have an Action of waist neither against the one nor the other: for by the recovery the privity between the Lessor and Lessée is destroyed, and between the Lessor and the recoverer there never was, nor can be any privity: and by the recovery all the reversion is divested out of the Lessor and vested in the recoveror: But if Tenant for life make a feoffment in fee upon Condition, and waist is done, and after the Lessée reenters for the Condition broken: in this Case the Lessor shall have an Action of waist, And so if a Bishop make a lease for life or years, and the Bishop die, and the Lessée, the See being void, doth waste, the Successor shall have an Action of waist: So if the Lessée be disseised, and waist is done, and the Lessée reenters, an Action of waist shall be maintained against the Lessée, and so in like Cases: And yet in none of these Cases, the Plaintiff in the Action of waist had any thing in the reversion at the time of the waist made: Howbeit in these Cases the privity utterly still remains: but in the other by force of the recovery it is for the present utterly destroyed, etc. Vide Statute 14 Eliz. cap. 8. concerning this matter. Litt. §. 695. Co. ib. 364. a. 4. 15 The Disseisor lets the Land to the Disseisée for years, D●sclaime. Remitter. who enters and disclaims (by parol in pais) to have any thing, but the lease for years in the Land; yet is the Disseisée in his Remitter notwithstanding such disclaimer in pais: But if he disclaim in Court of Record, that he hath not any Estate, save only such Estate for years, such disclaimer in Court of Record shall conclude him: And so observe a diversity between a claim or disclaim in pais of an Estate, and a claim or disclaim of Record: for a claim or disclaim in pais shall not hinder a remitter: But a claim or disclaim of Record shall; because this worketh a Conclusion, so doth not that, etc. Infants, Acts upon record not avoidable. 16 There is a diversity to be observed between matters of Record done or suffered by an Infant, and matters in fait; Co. ib. 380. b. 2. for matters in fait he shall avoid either within age, or at full age; but matters of Record, as Statutes Merchant and of the Staple, Recognisaances acknowledged by him, and a Fine levied by him, or a Recovery against him by default in a real action, (saving in Dower) must be avoided by him, viz. Statutes, etc. by Audita querela, and the Fine and Recovery by writ of Error, during his minority, and the like: And the reason thereof is, because they are judicial acts, and taken by a Court or a judge, etc. Partition in Chancery of an Advowson. 17 If Coperceners make partition in Chancery, F N B 36 c: or in the Common Pleas to present by turn, and after a stranger usurps in their several turns; yet after, when their turns happen, each of them may have a Scire facias upon that partition against the stranger, when her turn falls, to show wherefore he presents, notwithstanding such usurpation made; but it is otherwise (as it seems) where the partition is not of Record; for than they are put to their writ of right, by reason of such usurpation. Bar to a writ of Eschear. 18 Some do hold, that if there be Lord and Tenant, Co. Inst. p. 1. 268. a. 4. and the Tenant be disseised, and the Disseisée die without heir, the Lord accepts rend by the hands of the Disseisor, this is no bar to him; but if he avow for the rent in a Court of Record, this shall bar the Lord of his writ of Escheat. Not named, yet good. 19 If a Grant be made to, Co. ib. 3. 2. 3. or a Lease be made by a Dean and Chapter, Mayor and Communality, or the like; it is good without naming the Dean or Mayor, etc. by their names; but in pleading the proper name of the Dean, Mayor, etc. must be showed, because it is matter of Record, and aught to be certain. Partition. 20 If there be two Coperceners, Dier. 52. 20. 33 H. 8 and one of them make a Lease for years of her part; and afterwards the other brings a writ de partitione facienda against the Lessor, and partition is thereupon made: In this Case, albeit the part allotted to the Lessor be less than the part of the other, yet the Termor is without remedy: But if the partition were without writ, it seems to be otherwise. Ancient De●esne. 21 Ancient Demesne shall be extended by Elegit, Co. l. 5. 105. a. 4. in Aldens ca because in such Case no judgement is given to recover the possession of the land in a Court of Record, but only execution made by the Sheriff in pais; Howbeit in an Assize brought by tenant by Elegit, ancient Demesne is a good Plea, (as it is held in 22 Ass. Pl. 45.) because there the Plaintiff shall recover the possession of the land by judgement upon Record. Certificate recorded. 22 The Certificate of the Messenger (sent by Queen Mary to the Palatinate in Germany to call Mr. Bartue and his wife, Dier. 177. 31. 2 El. the Duchess of Suffolk home) and the abuses there offered him by their servants being recorded in Chancery, and afterwards sent by Mittimus into the Exchequer, could not be traversed, for that it was a Record, and could not be tried by any Visne of the Realm, it is otherwise of matter of fact done in the Country, etc. 96 Conveyances by Livery, or which pass Estates of the Land, more than those that pass by Grant, or only pass things belonging to, or issuing out of the Land. Things in ●●●nt. 1 Livery of seisin is of greater consideration in Law, Co. Inst. p. 1. 251. b. 2. than a bare Condeyance by Grant; For, a particular Estate of any thing that lies in Grant cannot be forfeited by any Grant thereof made in Fee; Lit. §. 609, 610 611. Co. ib. 330. b. 2. Life. No forfeit●●● As if tenant for life or years of an Advowson, Rent, Common, or of a Reversion or Remainder of land, by Deed grant the same in Fee, this is no forfeiture of their Estates, because it passeth only by Deed, Conveyant by livery a forfeiture. and nothing is divested, neither yet doth any thing thereby pass, but what may lawful pass: But if tenant for life of land enfeoff another of the land in Fee by livery without Deed, that is a forfeiture of his Estate, in regard of the solemnity of the livery, whereby the Reversion or Remainder is divested: So likewise if the Tenant for life or years of land, the Reversion or Remainder being in the King, make a Feoffment in Fee by livery, etc. Albeit (in that Case) no Reversion or Remainder is divested out of the King, nevertheless that also is a forfeiture of his Estate, in respect of the solemnity by livery tending to the King's disherisin, etc. Litt. § 598, 599 600. and Co. ibid. 328 a. 3 Co. l. 3. 84. a, etc. in the case of F●nes, and 85. b. 4, etc. 2 If tenant in tail be disseised, A Release no Discontinuance. and he then releafeth by his Deed to the Disseisor and his heirs all his right that makes no discontinuance, because nothing can pass by such a release, but that which may lawfully pass without prejudice to any other: But otherwise it is; if he make a Feoffment in Fee of the land, in respect of the livery of Seisin; because it is the most solemn and common Assurance in the Country, and to be maintained for the common good and quiet of the Realm: And upon the Feoffment the Fréehold, (which is so much esteemed in Law) doth pass by open livery to the Feoffée; but by the release a bare right only. 3 Vide suprà M. 94. Pl. 25. M. ●o. Pl. 8. Dier. 51. b. 17 33 H. 8. 4 Tenant in tail before the Statute of 27 H. 8. Lease good against Issue i● tail. of Uses makes a Feoffment in Fee to the use of himself and his heir●, and after he and his Feoffées make a lease for years rendering rend, and after the Statute is made, the tenant in tail dies seized and his issue aliens the land by fine before any entry made upon the Termor, or any receipt of the rent, and the alienée accepts he rend: In this Case the Alienée shall never avoid the lease, whether he accepted the rent or no; for the lease was not merely void by the death of the tenant in tail, without actual entry made by the issue; but it had been otherwise of a rent granted out of the land by the Tenant in tail and his Feoffées: So likewise in Littleton's Case of a Feoffment by tenant in tail to his eldest son within age, and when he comes to full age, he make a Leasts for years, and after the father dies, so as the son is remitted, yet h● shall not avoid his lease, as he might have done a rent issuing out of the land. Co. Inst. p. 1. 332. a. 4. 5 If there be tenant for life, the remainder in tail, Discontinuance. and he in the remainder grants it to another in fee by Deed, and the tenant for life attorns, this is no discondinuance of the remainder in tail; so it is likewise of a Rent-charge, Advowson in gross, Common in gross, or the like; for the Rule is, that a Grant by Deed of such things as do lie in Grant, and not in livery of Seisin, do work no discontinuance. Co. ib. 332. b. 1 6 If tenant in tail of a rent, service, etc. Discontinuance. or of a Reversion or Remainder in tail, etc. grant the same in Fee with warranty, and he oweth Assets in Fee simple, and dieth: This is neither bar nor discontinuance to the issue entail, but he may distrain for the rent, or service, or enter into the land after the decease of the tenant for life: But if the issue bringeth a Formedon in descender, and admit himself out of possession, than he shall be barred by the warranty and Assets: It is otherwise, 〈◊〉 tenant in tail in possession maketh a Feoffment with livery of Seisin, for that worketh a discontinuance: And yet if tenant in tail of a rent disseise the tenant of the land, and make a Feoffment in Fee with warranty, and dieth, This is no discontinuance of the rent, but the issue may distrain for the same: And albeit the warranty ex●●●● to the rent, yet (by the Rule of Littleton §. 618.) it lieth not in discontinuance: And where the thing doth lie in livery, as lands and tenements, yet if to the Conveyance of the Fréehold and Inheritance no livery of Seisin is requisite, it worketh no discontinuance; as if tenant in tail exchange lands, etc. or if the King being tenant in tail grant by his Letters Patents the lands in Fee, there is no discontinuance wrought: Also it is regularly true of a thing that lieth in grant, that although it be granted by fine, yet it worketh no discontinuance: Howbeit it tenant in tail make a lease for years of lands, and after levy a Fine, this is a discontinuance: for a Fine is a Feoffment of Record, and in such Case the Fréehold passeth: But if tenant in tail maketh a lease for his own life, and after levy a Fine, this is no discontinuance, because the Reversion, expectant upon a State of Fréehold, which lieth only in grant, passeth thereby. 97 A matter in the right, more than a matter in possession. Fore-judger ●f Mesne. 1 If the tenant be disseised, and the Disseisor in a writ of Mesne, Co. Inst. p. 1. 100 b. 1. fore-judge the Mesne, this shall not bind the Disseisée: And so if the Mesne be disseised, and a fore-judgment is had against the Disseisor, this doth not bind the Disseisée, for the words of the Statute of West. 2. cap. 9 are, Quando tenens sine praejudicio alterius quam medii attornare se potest capitali Domino, etc. ●●scription. dystome. 2 A title once gained by prescription or custom, Co. ib. 114. b. 2 cannot be lost by interruption of the possession for ten or twenty years; but by interruption in the right it may be lost, as if a man have had a rent or Common by prescription, unity of possession of as high and perdurable estate is an interruption in the right. ● Writ of ●●sne. 3 In a writ of Mesne the Plaintiff made his title by prescription, Co. ibid. that the Defendant and his Ancestors had acquitted the Plaintiff and his Ancestors, and the Terretenant time out of mind, etc. the Defendant took Issue that the Defendant and his Ancestors had not acquitted the Plaintiff and his Ancestors, and the Terretenant; and the jury gave a special Verdict, that the Grandfather of the Plaintiff was enfeoffed by one Agnes, and that Agnes and her Ancestors was acquitted by the Ancestors of the Defendant time out of mind before that time, since which time no acquital had been; and it was adjudged and afterwards affirmed in a writ of Error, that the Plaintiff should recover his acquital; for that there was once a title by prescription vested, which cannot be taken away by a wrongful cesser to acquit of late time: And albeit the Verdict had found against the letter of the Issue, yet for that the substance of the Issue was found, viz. a sufficient title by prescription, it was adjudged both in Banco, M. 4● & 44. El. in a Prohibition betwixt Nowell and ●icks in B. R. and afterwards in a writ of Error in B. R. ●●las deci●●di. for the Plaintiff. So a modus decimandi was alleged by prescription time out of mind for tithes of lambs, and thereupon issue joined, and the jury found, that before 20 years then last passed, there was such a prescription, and that for these 20 years he had paid tithe-lamb in specie, and it was objected first, that the Issue was found against the Plaintiff, for that the prescription was general for all the time of prescription, and 20 years did fail thereof. Secondly, that the party by payment of tithes in specie had waved the prescription or custom: But it was adjudged for the Plaintiff in the prohibition: for albeit the modus decimandi had not been paid by the space of 20 years, yet the prescription being found, the substance of the Issue is found for the Plaintiff: Common. And if a man hath a Common by prescription, and taketh a Lease of the land for 20 years, whereby the Common is suspended, after the years ended he may claim the Common generally by prescription; for that the suspension was but to the possession, and not to the right, and the Inheritance of the Common did always remain: And when a Prescription or Custom doth make a title of Inheritance, the party cannot alter or wave the same in pais. Litt. §. 430. Co. ib. 257. a 2 4 The Disseisée after claim (lawfully made) shall have an Action of Trespass against the Disseisor, Claim Trespass Disseisee Disseisor. notwithstanding his continuance of possession and occupation, and shall recover damages and costs for the first entry before any regress, and after regress of the Disseisor he shall have an Action of Trespass with a Continuando, and recover as well for all the mean occupation, as for the first entry. Lit. § 486, 487. Co. ib 283. b. 2. 5 If the Disseisée enter upon the heir of the Disseisor (which entry is a disseisin, The mere r●g● preferred before the possession. etc.) and the heir bring an Assize or writ of Entry in the nature of an Assize, he shall recover; but if the heir bring a writ of right against the Disseisée, he shall be barred, because in the writ of right the charge of the grand Assize upon their oath is upon the mere right, and not upon the possession, etc. And albeit (in that Case) the heir in an Assize or writ of Entry, etc. may regain the possession from the Disseisée, yet shall the Disseisée still retain his ancient right, and thereupon may again recover the possession of the land from the heir in a writ of Entry in the per. for the disseisin made unto him by the ancestor of the heir, Co. ib. 266. a. 2, etc. or otherwise may recover it in a writ of right, etc. And therefore there is a diversity worthy observation, when the possession shall draw the right of the land to it, and when not: for, when the possession is first, and then a right cometh thereunto, the entry of him that hath right to the possession, shall gain also the right, which followeth the possession, and the right of possession (in that Case) draweth the right unto it; but when the right is first, and then the possession cometh to the right, albeit the possession be defeated (as in the Case aforesaid it is by the heir of the Disseisor) yet the right still remaineth: So if a woman that hath right of Dower disseise the heir, and he recover the land against her, yet shall he leave the right of Dower in her: Likewise if the heir of the Disseisor be disseised, and the Disseisor enfeoff the heir apparent of the Disseisée being of full age, and then the Disseisée dieth, and the naked right descends to him, and the heir of the Disseisor recovers the land against him, yet doth he leave the naked right in the heir of the Disseisée, that being originally in him, in respect of the privity of Descent: Also if the heir of the Disseisor be disseised, and the Disseisée release to the Disseisor upon condition, if the condition be broken, it shall revest the naked right, etc. And so the Disseisée had entered upon the heir of the Dissesor, and made a Feoffment in Fee upon condition, if he entered for the condition broken, and the heir of the disseisor entered upon him, the naked right should be left in the Disseisée: But (in these two last Cases) if the heir of the Disseisor had entered before the Condition broken, than the right of the Disseisée had been g●ne for ever; because in the first Case the possession of the disseisor was first, and then came the right unto it by the release of the disseisée, an● in the other Case, the possession and right happened both in one and the same instant; and (in that Case) the possession shall relate first: And i● both Cases until the breach of the Condition, the disseisée had ousted himself of his whole Estate. In like manner, A. disseiseth the he●r of the disseisor, and the disseisée releaseth to A. Now hath A. the mere right to the land; and therefore if the heir of the disseisor enter into the land, and regain the possession, that shall draw with it the mere right to the land, and shall not regain the possession only, and leave the mere right in A. but by the recontinuance of the possession, the mere right is therewith vested in the heir of the disseisor; because the possession was in A: before the acquisition of the mere right, etc. trespass. villain. 6 In an Action of Trespass against Tenant for life, 14 H. 7. 5. Keble. Finch 30. who pleads villeinage in the Plaintiff and the Plaintiff is found frank & no villain; yet he in the reversion is not estopped by this verdict: for the thing itself whereupon the reversion dependeth, is not in demand, and the Plaintiff shall recover only damages: Neither can he in the Reversion have a writ of Error or attaint upon it: Otherwise it is in à nativo habendo, for there the right of Villeinage cometh in question, and he in the Reversion may have an error or attaint. 98 Yet it favoureth Possession, where the right is equal. Hap the ●ardship. 1 If a man purchaseth at one time several lands, Finch 30. holden of several Lords by Knight-service, and dieth; the Lord that first can hap the wardship of his heir, shall have it. Guardian in soccage. 2 Husband and Wife purchase soccage land to them and the heirs of their body, and have issue within fourtéen years of age die: 8 El. 296. Finch 30. In this Case, if the Grandmother of the part of the Mother of the Issue do first seize the body, she shall have the wardship, and not the Grandfather of the part of the Father of the Issue. Guardian in soccage. 3 If lands holden in soccage be given to a man and the heirs of his body, and he dieth his heir within the age of 14 years, Co. Inst. p. 1. 88 a. 4. Pl. Co. Carels Case. the next Cousin of the part of the Father (albeit he be the worthier) shall not be preferred before the next Cousin of the part of the Mother, but such of them as first seizeth the heir shall have his custody. Guardian in ●occage. 4 If a man be seized of lands holden in soccage of the part of his Father, and of other lands holden in soccage of the part of his mother, Co. ibidem. and dieth, his Issue being within the age of 14 years: In this Case, such of the next of kin of either side, as first happeth the body of the heir, shall have him; Howbeit the next of the blood of the part of the Father shall enter into the lands of the part of the mother, and the next of kin of the part of the Mother, shall enter into the lands of the part of the Father, etc. Tenants in Common. Chattels Personal. 5 Tenants in Common of Personal goods have an equal right in them; Howbeit the one may take them all from the other, Co. ibid. 200 a. 2. and shall have them to his own use, if he can hold them: but the other, if he can regain them by Catchpole Law, he shall have them: And so it is also of real Chattels, that are entire: but not of other Chattels real that are severable, etc. Rend by incoachment. 6 If there be Lord and Tenant by fealty and 2 s. Rent, Co. l. 4. 11. b. 2 in Bevils' Case and the Lord by encroachment (viz. by the voluntary payment of the Tenant) happeneth seisin of more Rent, than he ought to have; In this Case, the Law is so great a favourer of seisins and possessions; that the Tenant shall not avoid this seisin had by encroachment in avowry unless it be in some special Cases, which see ubi suprà. 99 The Law respecteth matters of profit, and Interest, largely; Of pleasure, skill, ease, trust authority, and limitation, strictly. Co. Inst. p. 1. 46, b. 2. 1 Albeit to divers purposes a Lessée for years is not Tenant before entry, as a release made to him is not good to increase his Estate, Interest terminate. before entry, neither yet can the Lessor, before entry, grant away the reversion by the name of the reversion; nevertheless, he before entry hath an Interest, inter esse termini,, grantable to another: So that although the Lessor die before the Lessée enters, yet the Lessée may enter into the lands: So also if the Lessée die before he entered, yet his Executors or Administrators may enter; because he presently by the lease hath an Interest in him; And therefore if the lease be made to two, and one die before entry, his Interest shall survive, etc. Co. ibid. 49. b. 2. 181. b. 2. & Co. l. 5. 94. b. 4. in Barwiks' Case. 2 If there be two joint attorneys to receive livery for another, Two joint attorneys. Two joint Lessees. and livery of seisin is made to one of them, in the name of both this is clearly void: because they had but a mere and bare authority, and they both do in Law make but one attorney, unless the warrant be jointly and severally: But if a lease for years without deed be made to A. and B. the remainder to C. in fee, and livery is made to A. in the absence of B. in the name of both, it seemeth (in this Case) the livery is good to vest the remainder; because the Lessée for years, that took the livery hath an Interest, etc. Co. ibid. 52. a. 4. etc. 3 There is a diversity between an authority coupled with an Interest, and a bare authority: For example, Difference between a bare authority, and an authority coupled with an interest. There was a custom in a Manor for the Lord to grant copyhold lands always in fée-simple, and never for any lesser Estate, and the Lord did grant to one by copy for life, the remainder to another and the heirs of his body: And it was adjudged (H. 36. Eliz. Rot. 492. inter Sharton & Barns in an ejectione firm in B. R.) that the grant and remainder ever was good; because the Lord having authority by Custom, and an Interest withal might grant any lesser Estate: for in this Case, the Custom that enableth him to the greater, enableth him to the lesser, Omne majus continet in se minus, etc. So also if one as Procurator or attorney to another present to his own Benefice, he thereby puts himself out of possession; because of his Interest coupled with his authority, and for that the presentée cometh in by the Institution and Induction of the Ordinary; If the Lord or a Grantée of a Rent-charge had been also Cestuy que use of the land, and after the Stat. of R. 3. and before the Stat. of 27 H. 8. Cestuy que use had made a feoffment in fee of the land, albeit (in this Case) the land passeth from the feoffées, and his feoffment is warranted by the power given to him by the Statute, yet the Seignory or Rent-charge is extinct by his feoffment, for that he had not a bare authority as an Attorney hath, but also an interest coupled therewith: But he that hath but a bare authority to do a thing is so fare from doing more than which he is expressly authorised to do, that if he strictly pursue not his authority, the Law adjudged that which he doth to be absolutely void: As if a man be disseised of Black-acre and White-acre, and a warrant of attorney is made to enter into both, and to make livery; there, if the attorney enter into Black-acre only and makes livery secundum formam cartae, In this Case the livery of seisin is void: because he doth less than his warrant; for, the Estate in White-acre cannot be divested without an entry: So likewise, albeit the warrant be general, viz. to deliver seisin; yet the attorney cannot deliver seisin within the view: for his warrant is intendable in Law of an Actual and express livery, and not of a livery in Law; and so it was resolved in Yarhams Case, P. 3. El. in Co. Banco. In like manner, albeit the warrant of Attorney be indefinite, without limitation of any time, yet the Law prescribeth a time, which the attorney is bound to observe, viz. in the life time of the Feoffor and Feoffée; for, if either of them die before Livery made, that is a countermand of the Letter of attorney, and also the Deed itself is become of none effect, because in that case nothing doth pass before Livery of seisin; for, if the Feoffor dieth, the land descends to the heir, and if the Feoffée dieth Livery cannot be made to his heir, because than he should take by purchase, whereas heirs were named by way of limitation: And herewith agreeth Bracton, Item, Oportet, quòd donationem sequatur rei traditio, etiam in vita donatoris & donatorii, etc. ●ailment of Ca●el. 4 If I bail unto a man my sheep to compass his land, or my oxen, Co. ib. 57 a. 4. to air his land, and he kill any of them, I may have an action of trespass, or an action of trespass upon the case against him, notwithstanding such bailment; because when the Bailée having but a bare use of them, taketh upon him, as an owner, to kill them, he loseth the benefit of the use of them, which was limited with this caution, viz. that he should not misuse them, etc. Gage of goods 5 If goods be delivered to one, as a gage or pledge, Co. ib. 89. a. 4. and they be stolen, he shall be discharged; because he hath a property in them, and therefore aught to keep them not otherwise than his own: but if he that gauged them, tendered the money before the stealing, and the other refused to deliver them, then for this default in him he shall be charged; for, after such tender he kept them upon trust as Bailée, and therefore was to look safely to them at his peril. ●and devised 〈◊〉 be sold. 6 If a man seized of Lands deviseth, that his executors shall sell it, Co. ib 112. b. 3. 113. a. 2. 181. b. 2 and he maketh two executors and dieth; In this case, if one of the executors before sale thereof die, or refuse, at the Common Law before the Statute of 21 H. 8. cap. 4. the land could not have been sold by the surviving executor; because the power given them by the will, being but a bare authority, it ought strictly to be observed, Dier 177, 32. 2 El. and they ought both to join in the sale: but if a man deviseth lands to his executors to be sold, and he maketh two executors, and the one dieth, yet the survivor may sell the land; because they had not a bare trust only, but also a trust coupled with an interest, and therefore as the state, so also the trust shall survive, etc. ●der upon mortgage. 7 Upon a Mortgage, if a stranger, that hath no interest in the land, Co. ib. 206. b. 4. Littl. § 334. will of his own head take authority to tender the moneys, etc. the Feoffée is not bound to receive them: but if the Mortgager die, his heir within the age of 14 years, and the land being holden in soccage, the next of the kin, to whom the Land cannot descend, being his Guardian in soccage, may tender in the name of the heir; because he hath an interest as Guardian in soccage: Also if the heir be within the age of 21 years, and the land is holden by Knight; service, the Lord, of whom the land is holden, may make the tender for his interest, which he shall have, when the Condition is performed; for these in respect of their interest, are not accounted strangers, etc. ●ditions in 〈◊〉 upon trust, 8 If an Office of Parkership be granted or descend, Co. ib. 233. b: 4 to an infant or Feme covert, and the conditions in Law annexed to that Office (which require skill and confidence,) be not observed and fulfilled, the Office is lost for ever; because (as Littleton saith §. 379.) that implicit condition of skill, etc. is as strange as an express condition, but if a lease for life be made to a feme covert, or an infant, and they by Charter, of feoffment alien in fee, the breach of this condition in law, that is without skill, etc. is no absolute forfeiture of that estate: So it is likewise of a condition in law given by Statute, which giveth an entry only; As if an Infant, or feme covert with her husband aliens by Charter of feoffment in Mortmain, this is no bar to the Infant or feme covert; because these conditions endeavour to defeat an Interest only, but the other an Interest mixed with a trust and confidence. Co. ib. 258. a. 4. 9 If a man makes a letter of attorney to deliver seisin to I. S. upon condition, and the Attorney delivereth it absolute, this is void; Livery of s●●sin. And so (some hold) if the warrant be absolute, and he delivereth seisin upon condition, the livery is void; because he ought to pursue his Warrant, etc. Co. ib. 265. b. 1. 10 If a man by his last Will devise, Power of Revocation. that his executors shall sell his land, and dieth; If the Executors release all their right and title in the land to the heir, this is void; for that they have neither right nor title to the land, but only a bare authority, which is not within the case a release of a right; And so it is, if Cesty que use had devised, that his feoffées should have sold his land, Albeit they had made a feoffment over, yet might they sell the use; for their authority in that case is not given away by the livery; because in these cases the power or authority extendeth only to the use of a stranger, and nothing for the benefit of him that makes such release or feoffment: It is otherwise where the power or authority doth also respect the benefit of the releasor, as in the case of the usual powers of revocation, when the feoffor, hath power to alter, change, determine, or revoke the uses, being intended for his benefit; for in that case he may release, and where the estates before were defeasible, he may by his release make them absolute, and seclude himself from any alteration, or revocation, as it was resolved in Albanies case in the 1 Rep. 112, 113. Co. l. 1. 112, 113. in Albanies' Case. Co. ib. 310. 2. 3. Littl. §. 552. 11 Attornment is a kind of power, which the tenant, &c, Attornme●t hath to make perfect the grant of a reversion, remainder, rent, etc. And therefore it ought to be always strictly and exactly directed according to the grant: As if the Lord first grant his services in fee to one, and afterwards to another for life, and the tenant first attorns to the last grantée; In that case, he cannot after attorn to the first grantée to make the fée-simple pass, for that would not be according to the grant; but in that case the Attornment to the first is countermanded: And so it is if a reversion expectant upon an estate for life be granted to another in fee, and after the Grantor before Attornment confirms the estate of the Lessée, in tail, the Attornment to the Grantée for the Fée-simple is void: In the same manner, if a Reversion upon an Estate for years be granted in fee, and the Lessor confirm the estate of the Lessée, for life, he cannot afterwards attorn, etc. Co. ib. 365. b. 3. 12 Warranties are favoured in Law, Warranty, Estopples. because they are matter of interest, whereby a man's estate is the better assured; It is otherwise of Estopels; because they are matter of limitation, whereby an Estate is barred. Co. l. 9 75. b. 3. in Combs Case. 13 If man hath a naked authority coupled with a confidence, Executors, Cestuy qu● as Executors have to sell land, they cannot do it by Attorney; but if a man hath authority, as absolute Owner of the Land, there he may do it by Attorney, as Cesty que use might after the Statute of 1 R. 3. and before the Statute of 27 H. 8. For Cesty que use had absolute authority to dispose of the Land at his pleasure, without any confidence reposed in him, as appears in 11 Eliz. Dyer 283. and there also a judgement in 25 H. 8. is cited, which agrees with it, against the opinion of some justices in 9 H. 7. fol. 24. So likewise a Copiholder, Copyhold Power to make Le● who hath not a bare authority only to surrender, but likewise a customary estate of Inheritance coupled with such an authority, may surrender by Attorney. Also there is a diversity between a general absolute power and authority, as Owner of the Land, as aforesaid, and a particular power or authority (by him that hath but a particular interest) to make Leases for lives or years; And thereforr if A be tenant for life, the remainder in tail, etc. And A. hath power to make Leases for 21 years, rendering the ancient rent, etc. he cannot make a lease by a letter of Attorney by force of his power; because he hath but a particular power, which is personal to himself alone, as it was resolved in the Lady Gresham's Case, 24 Eliz. per Wray and Anderson, than justices of Assize in Suffolk. ●wer to make ●ases not in ●eir own ●me. 14 When any hath authority as Attorney to do an Act, Co. ib. 79. b 4. he ought to do it in the name of him, that gives him such authority; for he appoints the Attorney to be in his place, and to represent his person; and therefore the Attorney cannot do it in his own name, nor as his proper act, but in the name, and as the act of him, but gives him the Authority; And what he doth otherwise is void: So if Attorneys have power by writing to make leases by Indenture for years, etc. they cannot make the Indentures in their own name, but in the name of him, that gave them warrant, etc. 〈◊〉 Office of marshalsea. 15 The office of Marshal of the Marshalsea cannot be granted for years; because it is an Office of great trust annexed to the person, Co. l. 9 96. b 4. in Sir George Reynols' Case. and concerns the administration of justice, and the life of the Law, which is to keep such as are in Execution in salva & arcta custodia, to the end they might the sooner pay their debts, etc. And this trust is individual and personal, so that it shall not be extended to Executors or Administrators; for the Law will not repose confidence in matters concerning the administration of justice in persons unknown. 〈◊〉 an Office ● survivor. 16 If an Office of trust be granted to two pro termino vitae suarum (without more) by the death of one of them he grant shall be void; Co. l. 11. 3. b. 4. in Auditors Curls Case. for it being an Office of trust no survivor can be thereof: In like manner, there can be no survivor in the Office of the two Auditors of the Court of Wards; for the Statute of 32 H. which erects that Court, provides, that there shall be two persons, etc. who shall have a judicial voice; and therefore (in that case) the King cannot appoint only one; because it is a matter of trust committed to two, and the subject by that Act hath an Interest in it, & securiùs expediuntur negotia commissa pluribus: Howbeit the King may constitute one at one time & another at another time by several Patents; And albeit he may so do, yet he, that is first constituted, hath no judicial voice, before the other be also constituted; for it is provided by the Statute, that two persons, etc. shall be one Officer: And therefore (in the same case) although they be constituted by one and the same Patent with these words, conjunctim & divisim, & alterius eorum diutius viventis; yet that shall serve for no other purpose, then that the survivor shall be one of the persons, to whom another may be added to make up that one Office, etc. state. 17 A licence to hunt in my Park or Walk in my Orchard extends but to himself, not to his servants, or other in his company; for, 13 H. 7. 13. Finch 31. it is but a thing of pleasure; otherwise it is of a licence to hunt, kill, and carry away the Dear; for that is a matter of profit. ●y. 18 Way granted to Church over any land, 12 H. 7. 25. b. Finch ibid. extends not to any other but himself; for it is but an Easement. ●rnment. 19 A Reversion granted to two joint-tenants, 11 H. 7. 12. b. Finch ibid. and the tenant attorns to one, it is a void Attornment. 20 If the Sheriff behead one, that should be hanged, it is felony. 5 H. 6. 58. b. 4. Finch ibid. 4 E. 6. 68 b. Finch ibid. 21 The King licenceth one to alien the third part of his Land, Licence. and he alieneth all, it is a void alienation for all. Finch ibid. 22 A Lease is made to A. and B. for their lives, A. dyeth, Joyntenants' limitation. B. shall have all during his life, for it is an Interest: But if a Lease be made to I.S. during the life of A. and B. there (if one of them die) the Estate is utterly determined; for that is a limitation. Co. l 1. 173. b. 4. Digges Case. 23 A. covenants to stand seized to the use of himself for life, Revocation and Limitations strictly taken. the Remainder to B. in tail, etc. which power to revoke and limit new Uses, by Deed indented to be enrolled in Chancery; A. afterwards revokes and limits by Deed indented, and then levies a Fine, and after that the Indenture of Revocation, etc. is enrolled in Chancery: Here, by levying the Fine before inrolment he hath extinguished his power of Revocation, etc. So also it had been, if he had made Feoffment of the Land; for, power of Revocation, and limitation of Uses are to be punctually observed, because strictly taken in Law; And therefore also (in the same case) these words, Indented to be enrolled, are to be understood, Indented and Enrolled. Co. ib. 174. b. 2. 24 A. covenants with B. that in consideration B. will marry his Daughter, Limitations exitnct. he and his heirs will stand seized to the use of B. and his heirs, B. enters, and disseiseth A, and makes Feoffment in Fee, A. reenters, and after B. marries his Daughter; yet here, the Use doth not vest in B, because he hath extinguished the limitation of the Use to him by his Feoffment. Dier 56. 18. 35 H. 8. 25 If a man be bound in an Obligation with condition to pay 10 l. to the Obligor at a day to come, Obligation, Limitation payment, and the Obligee delivers him an Horse, or any other thing in satisfaction of the 10 l. and the Obligee accepts it, the condition is performed, for the Obligée may dispense with his own duty by that means, but if the condition be, that a stranger to the condition shall pay it, or that the Obligor shall pay it to a stranger to the Obligation, in such cases, the Conditions ought to be strictly performed, according to their several limitations, otherwise the Obligations are forfeit, for in such case, an horse, or other thing in satisfaction of the sum will not suffice, because such limitations must be strictly observed. Dier 56, 20, etc. 35 H. 8. 26 In Debt upon an Obligation to perform Covenants of an Indenture, Obligation. Covenants. etc. the Defendant pleads a Release of all Covenants in the same Indenture, made five years after the date of the said Indenture, and this was held no good plea in bar 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, until his heir shall be at full age to pay Debts, etc. 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 been 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, Arbitrame● called Kelstorling, and for all other actions and suits concerning the same, Ita quòd Arbitrium, etc. before a certain day; The Arbitrators award, that the Defendant shall have brakes during his life in the Waste of the Town of Kelstorn, rendering 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 only out of the land. 3 They have not in their award named Kelstorling, and although they might intent 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, etc. but only a Collateral certain Fee, there the Grantor may discharge him of his service; as to be a Bailiff, Receiver, Surveyor, Auditor, or the like, the exercise whereof is only Labour and Charge to him; Howbeit, though he do discharge, yet he must have his Fee, etc. But where the Grantée, besides his certain Fee, hath also profits, and avails 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 Fee, the Grantor cannot discharge him of his Service, and attendance; because he hath other profits, and fees 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 Keeper of a Park; because (in that case also) he hath not only his Fee certain, but profits and avails 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 Fee, and taketh husband, this is a Countermand of the Attornment. Power of Arbitration 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. etc. the Rule, Arbitrament, etc. 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 account, or I make one my Factor, or if I submit myself to an arbitrement; albeit these are made by express words irrevocable, or although I grant or bind myself, that all these shall stand irrevocably, nevertheless, 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 judgement 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 myself to stand to his award, and that if it were without Obligation, it would be otherwise; Nevertheless, 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 agrees 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 speak with me: Licence. Authority Countermandable. Presentment Oblige not. Goods bailed over to be delivered to J. S. or to bestow in Alms, 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 and present a new; for a kind of Interest passeth out of me: So if I deliver an Obligation as a sorowle into a stranger's 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. etc. 33 H. 8. 5 A man delivers a sum of money to another to the use and behoof 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 free will and pleasure, and delivers the thing in Ovell hand to keep to the use of a stranger, before that condition be performed, the bailment (which is but a mere authority) is revocable; So if 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 certain land, and in recompense thereof I give him this money, and withal 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 free gift, but as a satisfaction and interest, etc. 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 Suffolk deceased, provided, Licence not revocable. if he should entertain any fugitives of England, that then it should cease) was not countermandable until he did entertain fugitives, because till then he had the licence in nature of an Interest, being (indeed) granted unto him for a certain time, viz. until the proviso were broken. 7 Hob. 1●. Sir Dan. Norton against Simmes, the under-shrivewick revocable. 101 Matter of substance more than matter of circumstance. Co. Inst. p. 1. 114. b. 2. 1 In a writ of Mesne the Plaintiff saith, Writ of Mesne Prescription. that the Defendant and his Ancestors had acquitted him and his Ancestors, etc. and upon a special Verdict the jury found, that the Plaintiffs Grandfather 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: M●dus decimandi. So if a modus decimandi be alleged by prescription, and the jury finds a continuance of the prescription till 20 years and after 20 years a payment in specie: In this Case, albeit the jury finds not the prescription, as it is alleged, viz. for the whole time; yet for as much as the substance of the Issue is found, viz. the prescription, that shall not be prejudiced by such cesser for 20 years, which is but a circumstance, etc. 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 seek by surplusage, and after the Tenant doth redisseise 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 remains still, though the quality be altered. Tenant after issue, etc. So if Tenant in special tail recover in Assize, Co. ibidem. and after becometh Tenant in tail after possibility, etc. and then is redisseised, he shall have a re-disseisin upon the same Statute; for albeit the state of inheritance be altered yet the same free hold remaineth. Challenge. 3 If there be a Challenge for Cozenage, Co. ib. 157. a. 4 he that taketh the Challenge must show how the juror is Cousin: But yet if the Cozenage, which is the effect and substance, be found, it suffereth; for the Law preferreth that, which is material, before that, which is formal. mortgage. 4 Upon 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 paid at a day before it grow due, or at another place, than which is limited in the deed 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, etc. be performed; There is the same Law of an Obligation, etc. Condition to ●●lean estate ●o the Wife, without impeachment of ●ast. 5 If a feoffment 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 tail, the remainder to the heirs of the Feoffor: and the Feoffor dies before the feoffment: In this Case, (Littleton saith §. 352.) that the Feoffée aught to make an Estate for life to the Wife without impeachment of waist, etc. And yet if the Wife shall accept of any Estate for life without this clause, without impeachment of waist, it is good: because the Estate for life is the substance of the grant, and the privilege to be without impeachement of waist is a collateral circumstance, and only for the benefit of the Wife, and the omission of it only for the benefit of the heir: 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, seeing that the limitation is, during the life of the Wife, etc. Obligation made beyond Sea. 6 An Obligation made beyond the Seas may be sued here in England, in what place the Plaintiff will: Co. ib. 261. b. 4 As if it bear date at Bordeaux in France, it may be alleged to be made in quodam loco vocat Bordeaux 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 only circumstance, and not of the substance of the bond, etc. ●●do & for●● words of ●orme, not of ●●●stance. 7 These words, modo & forma, prout, etc. 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 fee; 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 tail, 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 always true, when the Issue taken goeth to the point of the writ or Action: for than modo & forma are but words of form: But otherwise it is, when a collateral point in pleading is traversed, as if a feoffment be alleged by two, and this is traversed modo & forma, and it is found the feoffment of one, there modo & forma, is material: So if a feoffment be pleaded by deed, and it is traversed, absque hoc quod feoffavit modo & forma, upon this collateral Issue modo & forma are so essential, that the jury cannot find a feoffment without deed. 8 Lord and Tenant by fealty only, and the Lord distrains the Tenant for Rent, Litt. §. 484. Modo & forma. Lord and T●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, etc. 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 alleged; But the matter of the Issue being found, viz, that the Tenant holds of him, that sufficeth to abate the writ, albeit the Lord distrain 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 jury may find the Defendant guilty of manslaughter without malice prepensed; because the kill of B. is the matter and malice prepensed is but a Circumstance. Co. ib. a. 2. 10 In Assize of darrien presentment, Darrien presentment. if the Plaintiff allege the avoidance of the Church by privation, and the jury find the voidance by death, the Plaintiff shall have judgement: for the manner of the voidance is not the title of the Plaintiff, but the voidance is the matter, etc. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assize 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 down any trees etc. And binds himself in a bond of 40 pounds for performance of covenants, the Lessée cuts down ten trees, Breach of covenant. the Lessor bringeth an Action of debt upon the bond, and assigneth a breach that the Lessée hath cut down 20 trees, whereupon Issue is joined, and the jury finds, that the Lessée cut down ten; yet judgement shall be given for the Plaintiff; For sufficient matter of the Issue is found for the Plaintiff. Litt. §. 485. Co. ibid. 282. a. 4. etc. 13 In a writ of Trespass for battery or for goods carried away, In actions transitory the place must not be traversed. if the Defendant plead not guilty in the manner, as the Plaintiff supposeth, and it is found, that the Defendant is guilty in another town, or at another day, than the Plaintiff supposeth, yet he shall recover: For in Actions brought for things transitory, the wrong being done in one town, the Plaintiff may not only allege it in another town, but also in another County, and the jurors upon not guilty pleaded are bound to find for the Plaintiff: Neither can the assault, battery, taking of goods, etc. alleged in another County, be traversed without special cause of justification, which extendeth to some certain place, as if a Constable of a Town 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 town, whereof he is Constable: So it is also in an Action for taking of goods: for, in that Case also, if the Defendant justify for damage pheasant 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 alleged in any other town (as in the Cases before alleged, and the like) then albeit the Action be brought in a foreign County, yet he must allege 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 Plaintiff assaulted him in the County of Middelsex, etc. 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 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, saving in London, and traversed the speaking of the words in London; the Plaintiff in his replication denied the concord, whereupon the Defendant demurred, and judgement was given for the Plaintiff; for, the Court said, that if the concord in that Case should not be traversed, it would follow, that by a new and subtle invention of pleading, an ancient principle in Law (that for transitory causes of Action the Plaintiff might allege the same in what place or County he would) should be subverted, which ought not to be suffered: And therefore the judges of both Courts allowed a traverse upon a traverse in that Case, etc. 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, than the place where the Act was done, which is but circumstance, etc. substance certainly alleged, con●yance not. 14 That which is alleged by way of conveyance or inducement to the substance of the matter, need not to be so certainly alleged, Co. ib. 303. a. 4. as that which is the substance itself: And where a matter of Record is the foundation or ground of the suit of the Plaintiff, or of the substance of the plea, there it ought to be certainly and truly alleged otherwise it is, where it is but conveyance; because that is but circumstance, etc. ●ea insuffici●●. 15 When a Count, bar, replication, Co. l. 8. 133. b. 1. Turner's Case. etc. is defective in respect of omission of some circumstance, as time, place, etc. 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. ●●cient pleading. 16 In the Reigns of E. 2. E. 1. and upwards, Co. ib. 303. b. a & Co-l. 7 25. a in Butts Case. Co. ib. 304. a. 4. the plead were nothing curious, but plain and sensible, ever having Chief respect to matter and substance and not to forms of words, and were often helped by a quaesitum est, and then the questions moved by the Court, and the answers by the parties were also entered into the roll, etc. ●●●ding. 17 Albeit a plea as to the form be gross and ignorant, Co. l. 1. 42. a. 4. b. 3. & 52. b. yet if good in substance, it shall be adjudged sufficient. In Alton woods Case. ●ate of a ●eed. 18 If a deed bear date after the delivery, Co. l. 2. 4. b. Goddares ca and after the decease of the party to whom it is delivered, yet is it sufficient: as if an obligation bear date the 4 of April 24 El. and the Obligor delivers it as his deed 30 July 23 El. and the Obligée dies before the date, yet this obligation is good; for albeit the Obligée in pleading cannot allege the delivery before the date (as it is adjudged in 12 H. 6. 1.) because he is stopped to take averment against any thing expressed in the deed, yet the jurors, who are sworn ad veritatem diendam shall not be stopped in that Case: And the reason hereof is, because the date of a deed is not of the substance of the deed; for if it want date, or have an impossible date (as the 30 day of February) yet the deed is good; there being only three things of the essence and substance of a deed, viz. the writing in paper or parchment, sealing, and delivery: And if it have these three, although it wants, in cujus rei testimonium sigillum suum apposuit, yet the deed is sufficient; for the delivery is as necessary to the essence of the deed, as the putting of the seal unto it, and yet it is not necessary to express in the Deed, that it was delivered, etc. And from hence it may be observed, that if a man bring an Action of debt, and count, that the Defendant 4. Apr. 24. etc. made an Obligation bearing date the same day and years, and the defendant pleads non est factum, and it is found that the deed was delivered at another day, before or after the day that the Plaintiff hath counted, that yet the judgement shall be given for the Plaintiff, in as much as the date is not material, and the Defendant cannot be twice charged, etc. Co. l. 2. 76. a. 4 in the Lord Cromwel's Ca. Co. l. 5. p. 2. 26 b. 2. the E. of Rutland's case accords. 19 If it be agreed by Indenture, Variance in circumstance betwixt fine indenture t● prejudice. that a fine shall be levied of certain Lands by the name of a certain number of Acres to divers persons, and that they shall grant and render the Land again in Fée-simple, which shall be to certain uses: The fine is levied of the Land, but there is some variance in the number of Acres comprised in the fine, or the fine is levied to one of the parties only, who grants and renders the Land: So that there is variance between the Covenant and fine in number and person; Nevertheless (in this Case) the fine shall be averred to be to the use of the Indentures: For the original bargain and agreement of the parties was declared by writing, and albeit there be some little variance found in quantity, person, time, or such other circumstances, between the fine and the Indenture; yet the Law (which in common conveyance hath great respect and regard to the Intent of the parties, and to the substance and effect of their original bargain and agreement) will permit averment to agree the fine and the indenture, notwithstanding those little circumstances of number, person, time, and the like, when the party avers, that there was not any new consideration, or new agreement betwixt the party but that the fine was levied according to the indenture, and to the uses and intents contained in the same: and (indeed it is consonant to justice & equity, and principally in common assurances of lands betwixt party & party, that every little variance in circumstance should not subvert all the substance of the agreement of the parties in their indenturs to the dis-herison of one of them: & therefore it was adjudged in Taverners case about the 42 of El. that if A. hath 10 acres in Dale, & B. hath as many in the same town, and A. levy a fine to B. of 20 acres, and B. grants and renders 20 acres to A. in fee, yet A. shall not have the 10 acres of B. unless there was a special agreement between them to that effect; or otherwise the Conusée should be said to render more than he receives, and the difference in the number of acres is but a circumstance, etc. Co. l. 4. 41. b. 3 in Heydons ca 20 Exception was taken to an Indictment upon the death of a man because these words (in pace Dei & Domini Regis) were omitted; Indictment. and albeit in Indictment those words are usually inserted, yet the exception was not allowed: because such words are not words of substance, but only inserted by way of Amplification to aggravate the heinousness of the crime, etc. Co. l. 4. 87. a. 1. in Luttrels ca 21 Where a man prescribes for a course of water to a Fulling-mill, Prescription a water co●● Estovers, Rooms, Window, & ● whereas indeed anciently it was a fulling-mill, & of late time was pulled down, and a Grist-mill exect in stead thereof: yet if that water course be turned by a stranger; In an Action upon the Case, etc. he may well prescribe for the course of water to his fulling-mill so altered as afore, said: For, the mill is the substance, and the thing to be demanded, and the addition of Grist or Fulling, are but to show the quality or nature of the mill: And therefore in the Register, and also in F.N.B. it appears that if a man will demand a Grift-mill, Fulling-mill, or any other mill, the writ shall be general, de uno molendino, without any addition of Grist or Fulling, and herewith agrees 21 Ass. Pl. 23. of a Plaint in Assize; So likewise if a man have estovers either by grant or by prescription to his house, albeit he altar the rooms, or chambers of the house (as to make that the Hall which was the Parlour, or that the Parlour, which was the Hall, or make the like alteration of the qualities and not of the house itself, and without making new Chimneys, whereby no prejudice may accrue to the owner of the wood) this is no destruction of the prescription; for then many prescriptions would be destroyed: And although he build new Chimneys, or make a new addition to the old house, he shall not thereby lose his prescription; Howbeit he must not employ or spend any of the estovers in the new Chimneys, or in the part newly added; There is the same Law of Conduits and Water-pipes, or the like: So if a man have an ancient Window in his Hall, and after covert the Hall to a Parlour or any other use, yet shall it not be Lawful for the Neighbour at his pleasure to stop it; For he may prescribe to h●ve a light in such a part of his House, etc. ●por●tions ●●red yet the ●dy remains 22 If a Corporation hath Franchises and Privileges, Co. ibid. b. 1. by grant or prescription, and after they are incorporate by another name, as whereas they were Bailiffs and Burgesses before, now they are Mayor and Community; Or Prior and Covent before, and after translated to Deane and Chapter; In these Cases, albeit the qualities and name of their corporation is altered and charged, and principally in the Case of Prior and Covent (for of Regul●●, who are dead persons in Law, they are made Secular) yet the new body shall enjoy all the Franchises, Privileges, and Hereditaments, which the old Corporation or body Politic had, either by grant or by prescription; because albeit the name, etc. is changed, yet the body, which is the substance doth still remain, etc. 〈◊〉 of form ●dable by ● Cl●r●e. 23 If a Count be insufficient in point of form only, Co. l. 35. b. 1. in Playters Case. which the Clerk is able to amend without the information of the Plaintiff, that error may be rectified by the Clerk by force of the Statute of 28 Eliz. cap. 14. It is otherwise if it be deficient in matter of substance; As in Trespass, if the Plaintiff declare, Quare clausum suum fregit, & pisces suos cepit, etc. without showing the number or nature of the fish: In this Case, that omission is matter of substance, and not of form to be remedied by that Statute, etc. ●●ke of the 〈◊〉 in some 〈◊〉 matter of ●nce. 24 In a Writ of Error, upon a recovery in wait, Co. l. 5. 45. a Freeman's Ca for that in reciting the Statute of Gloucester, the writ had destrictionem for destructionem, it was adjudged, that that mistake of the Clerk was matter of substance: because destrictio was a Latin word, which quite altered the sense of the Statute, and therefore could not be helped by any Statute, it had been otherwise, if it had been matter of form only, For at this day if the original writ want form only, or contains false Latin, or varies from the Register in matter of form: In such Case, after verdict, no judgement shall be stayed or reversed: but if it want substance (as in the Case a●ove said) although it be only the mistake of the Clerk, yet it shall not be remedied by any Statute: And therefore in a writ of partition the justices of the Common Pleas inserted this word oftensurus, which was omitted, and in a writ of Ayell they amended this word, Ave, and made it, Avie. 〈◊〉 arreare 〈◊〉 King's 〈◊〉. 25 Where the King hath right of entry for default of payment of a quarter's Rent, and by the office more rend is found arreare, Co. l. 5. 56. b. 1 Knights Case. than what the quarters rend amounts unto, yet that is sufficient for the King, when the Office hath matter and substance; for the sole and substantial point, which proves the breach of the Condition is the nonpayment of the Rent, or any part thereof, and it is not material, when the Rent was arreare: for if any part thereof be arreare, it sufficeth, etc. Co. l. 6. 47. b. 2 in Dowdales' Case. 26 In debt against an Executor the jury finds assets in Regno Hyberniae, and the verdict was adjudged good, Assets found in any pla● albeit the Assets were found not only in a Foreign Country, but in a foreign Kingdom: for, the finding of assets is the substance, and the place where, is but surplusage and circumstance: And therefore if an Executor have goods of the Testator in any part of the world (as if the Testator were a Merchant or the like, that had goods beyond Sea) he shall be charged with them as Assets: For the place is but circumstance, etc. Co. l. 8. 49. a in John Webs Case. Vid. Stat. W. 2. c 24 in 13 E. 1. 27 In ancient time, Writs origin used though the Case ●a● in circumstance. when the Masters and Clarks of the Chancery, were grave wise men, well versed in the Laws of the Land (the first sort of them, making writs in difficult Cases only which were called Brevia Magistralia, and they (by reason of their profound learning) called Masters of the Chancery, the other making Brevia de causa, and therefore called Cursitori●) writs were by them exactly form without fault or error: But now when such learned Clerks fail, the judges in many Cases give allowance to ancient forms of writ, and puts the party to make a special Count: and in such Case, when the writ warrants the Count in substance, they adjudge it sufficient, although there be variance in circumstance: Co. ibid. 48. a. 4 For example, the Original writ of Assisa ultimae praesen●ationis is form in these words, quis advocatus tempore pacis praesentavit ultimam personam, quae mortua est: This form shall h●d, and not be changed, albeit the incumbent resigned, as appears in 18 E. 2. Tit. Assize de darreine praesentm. 20. etc. F. N. B. 53. h. Also the writ of Warr. Cartae is form in these words, Quòd justè, etc. warrantized B. unum mesuagium in D. etc. unde cartam habet, etc. yet if he be bound to warranty by force of an exchange, or by homage ancestrel, the form of the writ shall not be altered, Vide 9 E. 4. 49. 21 H. 6. 8. etc. F. N. B. 134. Co. l. 8. 76. b. 2. in the Lord Staffords Case 28 The Law never requires circumstance, Circumsta● not require● when it 〈◊〉 subvert the substance. when thereby the substance may be subverted: As if the King grant Land to I. S. for life, with Condition that if I. S. pay at the Exchequer such a day xx s. to the King's use, that then he shall have fee, and I. S. pays the xx s. accordingly: Although it be regularly true, that the King by reason of the Majesty of his person) cannot take or departed with any thing, but by matter of Record, (yet in this Case) I. S. shall have fee in the Land, and the fée-simple shall be out of the King immediately upon the payment of the xx s. without petition, monstrance de droit, or any other such circumstances, for if the Estate shall not vest before such circumstance, than it cannot vest presently, and if it vests not presently, it shall never vest: because if the Estate be not enlarged: and therefore (in such Case) the fée-simple (for necessities sake) shall pass out of the King without any such circumstance; for (as is said before) the Law never requires circumstance, when it may subvert the substance: And with this agrees the reason in the Lo. Love●● Case in Pl. Co. and in Isabel Goodcheapes Case in 49 E. 3. 16. Co. l. 8. 161. a. 4. in Blackamoors Case. 29 Pleas in bar, replications, Pleas, etc. ● amended. etc. and regularly matter of substance in them, and especially matters of fact, shall not be amended in an other term, as omission of averment, & hoc paratus est verificare, etc. (for in some Cases as in avowry that is not necessary) but colour, which is of course, and wherein the mistake of the Clerk is found, may be amended, etc. Co. l. 9 67. a. 4. in Mackalley's Case for killing the Sergeant of London. 30 In Mackalley's Case, the Indictment was, An indict● good, although no● pursued in ●●●cumstance. that the Sheriff directed his Warrant to the Sergeant to arrest the Defendant, whereas it appears by the Verdict, that no Warrant at all was made but that by the Custom of London, after plaint entered, the Sergeant might arrest him without warrant or precept, and yet the indictment was adjudged good: for it sufficeth, if the substance of the matter be found without any such precise regard to the circumstance: And therefore, if a man be indicted, that he with a Dagger gave to another a mortal wound, whereof he died, and upon the evidence it is proved, that he gave the wound with a Dagger Rapier, staff, or Bill; in this case, the Offender ought to be found guilty; For the substance of the matter is, that the party indicted gave him a mortal wound, whereof he died, and the circumstance of the manner of the weapon is not material in case of an indictment; yet such circumstance ought not to be omitted, but some weapon ought to be mentioned in the indictment; So if A. B. and C, be indicted for killing of I. S. and that A. struck him, and that the other were present, procuring, abetting, etc. and upon the evidence it appeared that B. struck him, and that A. and B. were present etc. In this case the indictment is not pursued in the circumstance, and yet this is sufficient to maintain the indictment; for the evidence agrees with the effect of the indictment, and so the variance of the circumstances of the indictment is not material: because it shall be adjudged in Law the stroke of each of them, and it is as strongly the act of the other two, as if all three had struck with the Staff, etc. together, and all had killed him, that was slain; And with this agrees Pl. Com. 98. a. So if one be indicted for murdering another upon malice prepense, and he is found guilty of Manslaughter, he shall have judgement upon that verdict; for the kill is the substance, and the malice prepense is the manner of it; and when the matter is found, judgement shall be given thereupon, although the manner be not precisely pursued; and with this also agrees Pl. Com. 101. where it is farther said, that, when the substance of the fact, and the manner of the fact are put in issue together, if the Jurors find the substance, and not the manner; judgement shall be given upon the substance. And this is the reason, that in case of killing a Minister of justice in the execution of his Office, the indictment may be general, viz. that the prisoner felonicè, voluntariè, & ex malicia sua praecogitata etc. percussit, etc. without alleging any special matter; for (in that case) the evidence will well maintain the indictment; because the Law implies malice prepense, etc. Co. l. 9 119. a. 2 in the Lord Southams' Case. So likewise if one be indicted as accessary to two, and he is found accessary to one, yet the verdict is good, etc. trespass for oppression of Common. 31 In trespass upon the case for oppression of Common, Co. l. 9 112. a. 3 in Robert mary's Case. the plaintiff saith, that the Defendant put his Cattle upon the Common, and that they depastured there, from the 1 of May till Michaelmas, the Defendant pleads not guilty, and it was found by special verdict, that the Cattle depastured there, etc. but that the Defendant put them not upon the Common: And (in this case) albeit it was argued by the Defendants Council, that the jury had not found the wrong, whereof the plaintiff complained; because he complained of a Misfeasance, and they had found a Nonfeasance; for the plaintiff counted that the Defendant posuit averia sua, etc. and the jurors found quod non posuit, etc. but that the Cattle did depasture, etc. which might be by escape, which is a Nonfeasance, etc. Howbeit (notwithstanding that allegation) the action was adjudged maintainable enough: For judges in finding of verdicts rather respect substance than circumstance, etc. 〈◊〉 unformal conclusion ●all not pre●●e. 32 In an Attachment upon a Prohibition the plaintiff allegeth unity of possession of the Rectory and land in a Prior and his Predecessors before, and at the dissolution, etc. and then concludes, Co. l. 11. 10. a 4 in Priddle and Nappers Case. ratione cujus, idem nuper Prior, & omnes alii priores, etc. per totum tempus praedictum, etc. habuerunt & tenuerunt, etc. predict terrae exonerat, etc. was not the omnimodis deciminis, etc. whereas (in truth) by the unity of possession the land was not discharged of tithes, but of the payment of tithes, etc. and therefore the conclusion in that p●int was not formal: Nevertheless (in this case) in as much as the prescription itself was well alleged in substance, so that the foundation thereof was good, the mistake of the conclusion and consequent thereupon (which is but a circumstance) shall be no cause of granting a Consultation, etc. Co. l. 11. 78. a. 4 in Magdalen Colledge's Case. 33 When the Grantor is a person able to grant, 18 Eliz. 2. supplies circumstance. and hath power over the land, and the Deed is good and legal, but wants circumstance, as enrolment or the like, such a Deed is made good, and such omission is supplied by the Statute of 18 El. cap. 2. (for confirmation of Patents or Grants made by or to the Queen) because that act makes the conveyance good, according to the true intent and purport thereof, which is the substance, and therefore in such case want of circumstance shall not prejudice, etc. Pl. Co. 65. b. 2. in Dive and Maninghams' Case. 34 When a Record is to be pleaded in bar, Conveyance to an action need not be certainly pleaded. it ought to be entirely and certainly recited; because (in that case) the Record alone is the matter of substance, and the effect of the bar, which ought to be full and perfect; but when the recital of a Record is nothing but conveyance to another matter, and not the effect of the bar, but only an induction to the bar, or conveyance thereunto; it is not necessary that such conveyance or induction should be so certainly pleaded, as the effect itself ought to be. So in Dive and Maninghams' Case in the Commentaries, it is sufficient to begin at the Liberate, and not to recite the whole Record of that suit; because that is sufficient to lead to the matter of the Sheriff's bond, which the Statute makes void; and is upon the matter but méerly circumstance; So likewise, if tenant by Elegit make an avowry in a Replegiare, having let the land to a stranger rendering Rend, etc. he shall not plead the whole Record, 34 H. 6. 48. avowry 26. ●. Monst. de faits 10. 19 H. 6. 29. Deceit, 11. B. Bell 9 whereby he became tenant by Elegit, as it was adjudged in 34 H. 6. 48. because that is but a circumstantial conveyance to the matter of the suit, etc. Also in 19 H. 6. 29. A bill of Deceit was sued against two attorneys of the Co. Pleas for imbezelling, etc. a Writ of Habeas corpora in placito terrae, upon a Formedon betwixt the Plaintiff and another, and judgement was demanded of the bill, because the whole Record was not received in certain; but the bill was awarded good, notwithstanding it did not recite it certainly; because the Record was but circumstance, and a conveyance to the suit of Deceit, etc. Pl. Co. 81. b. 2 Patridges Case. 35 In Debt upon the Statute of 32 H. 8. cap. 9 for granting a lease for years in Lands, whereof the Lessor had a defective title, Stat. 32 H. 8. against defective titles. the Plaintiff counts, that the Defendant had demised the lands for term of years, (indefinitely) without naming in certain for how many years; and exception was taken thereunto, because the number of years was not expressed in certain, etc. But (in that case) it was not conceived necessary to specify the express number of years; because the term was but conveyance to the sum in demand; and then that, which is nothing else but conveyance, ought not to be so certainly showed, as that, which is substance: And therefore in a Decies tantum all the Record shall not be showed in certain, but only such part thereof, which conveys the party to his action: but if a Writ judicial issue out of a Record, in that case the Record ought to be certainly recited; because the Record is the effect and substance, and not conveyance only, as in the other case, etc. For there, the showing of the beginning and end of the term is to no other purpose, Pl. ib. 85. b. 2. then for the showing of the length and shortness of the time, and that is not there material; because in such case if the Lease were made only for an hour, or for an hundred years, it is all one, as if Lessée for life is charged, that he shall not alien in fee, etc. If he alien only in tail, that is a forfeiture; So (in that case) alien he for a short time, or for a long time, it is all one: Howbeit, if he were to recover according to the value of the Lease, than the beginning and end thereof aught to be showed in certain; And therefore in such case even in a Decies tantum the certainty of the money ought to be showed; for he shall recover ten times the value or quantity thereof, and then to express the value thereof in certain, is of substance, etc. ●dictment for ●●rder found manslaughter, ●oo●. 36 If a man be indicted for Murder, Pl. Co. 101 b. 1. Salisburies' Case. and the jury finds him guilty of Manslaughter only, yet the judge may give judgement upon him, viz. that he shall be hanged for the Manslaughter; for the jury may give their verdict at large, and find the whole matter; as if one be arraigned for the death of a man, and pleads not guilty, the jury may find, that he did kill him in his own defence: So in the other case, when the prisoner is arraigned for killing a man upon malice praepense, the substance of the matter is, whether he killed him or no, and the malice praepense is but of the form or circumstance of killing him: And albeit the malice praepense makes the act more odious (and for that cause the offender shall lose divers advantages, which otherwise he should have, as Sanctuary, Clergy, and the like) yet that is (indeed) nothing else but the manner of the fact, and not the substance thereof; for the substance of the fact is the kill of the man, and then when the substance of the fact and the manner of the fact are put in issue together, if the jurors find the substance, and not the manner, yet judgement shall be given for the substance: As if a man arraign an Assize for Disseisin with force, and the Defendant pleads to the general issue, and the jurors find the Disseisin, but not with force, yet the Plaintiff shall have his judgement; for the wrongful expulsion was the substance, and the force was the manner, and then when the substance is found, he shall have judgement thereupon, and shall be acquit of the force, etc. ●he King is ●solutely ●g before coronation, 〈◊〉. 37 The King of England immediately after the Predecessors demise of the Crown is absolutely King without the Ceremony of Coronation, or any other act to be done ex post facto; for, Co. l. 7. 10. b. 4. in calvin's Case. the Law doth respect his title to the Crown, by birth, right, and descent, and not the circumstance of Coronation, which is (indeed) a Royal ornament, and solemnisation of the Royal descent; but no part of the title: Howbeit in 1 Jac. before his Coronation Watson and Clerk (seminary Priests) and others were of opinion, that the King was no complete and absolute King before his Coronation, but that Coronation did add a confirmation and perfection to the descent; And therefore (observe their damnable and damned consequent) that they by strength and power might before his Coronation take him and his Royal issue into their possession, keep him prisoner, remove his Counsellors, and constitute others in their places; and that these acts and others of like nature could be no treason before he were crowned: but it was resolved by all the judges of England, that presently by the descent his Majesty was completely and absolutely King, without any essential Ceremony, or act to be done ex post facto, and that Coronation was but a Royal ornament, and outward solemnisation of the descent, as is aforesaid, and as it appears evidently by infinite precedents and Book cases, which see in the Book at large, etc. Co. l. 8. 133 a. 4 in Tawners' Case. 38 In an action of Debt brought against an Executor, Pleading. he pleads two recoveries against him in a Court of a Corporation, (being a Court of Record) which amount to the whole in hand, but showeth not in his Court, that the Corporation hath jurisdiction to hold Court, either by prescription, or by patent; And it also appears 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 bar 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, etc. that may be made good by the bar, but when the Count, Bar, Replication, or, etc. want substance, this cannot be made good by the plea of either party. Co. l. 5 72. a. 1. in St. john's Case. 39 A Dag is as well prohibited to be carried about one, Dag the same with Handgun. as an Handgun by the Statute of 33 H. 8. 6. albeit a Dag is not named in that Statute, nor was then invented; because a Dag differs not from a Handgun in substance, but hath only some small alteration in form and quality. Co. l. 8. 120. b 3 in Doctor bonham's Case. 40 When the Count or Declaration wants time, place, Pleading. or other circumstance, it may be good by the bar, and the bar by the replication, etc. as appears by 18 E. 4. 16. b. but when the Count wants substance, the bar cannot make it good, and so it is also of the bar, replication, etc. 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 gre●● Ad quam quidem solutionem bene & fideliter solvend. obligo me per praesentes, datum, etc. 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 King's free Chapel of St. George the Martyr within his Castle of Windsor; and in the Reign of P. and M. they made a Lease of certain lands by this name, The Dean and Canons of the King and Queens Free Chapel of S. George within the Castle of Windsor: And in this case three variances were observed, 1 Because it was named the King and Queen's Free Chapel, whereas it should have been only named the Kings. 2 It ought to have been S. George the Martyr, whereas Martyr was omitted; 3 It was said within the Castle, whereas it should have been within the King's Castle. In this case, the first only was adjudged a material exception, and of substance, but the other two only 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 Eccles● etc. 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 Queen: 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 Eton College was erected by H. 6. per nomen praepositi & Collegii Regalis Collegii beatae Mariae de Eton, etc. A void Leas● And in the time of E 6. a Lease was made per nomen Praepositi & sociorum Collegii Regalis de Eton, omitting Collegium and Beatae Mariae, and adjudged naught, etc. appeal. ●le●. 45 The Lessée of a Parson brings an ejectione firmae, the Defendant pleads, that the Parson was deprived, the Plaintiff saith, Dier. 240. 46. 7 El. that the Parson hath appealed to the Archbishop of Canterbury in Curia praerogativa sua de Arcubus: and because the Words of the Statute of 24 H. 8. 12. are, that the appeal shall be to the Archbishop of the Province, or, etc. without limiting any Court in certain, the Defendant demurred in Law: And it was held by the justices, 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 surplusage should not prejudice the Plaintiff. ●●nomer. 46 The Dean and and Chapter of Carlisle being incorporate by the name of the Dean and Chapter Ecclesiae Cathedralis Sanctae & individuae Trinitatis Carlisle, 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 three, 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 avows the taking as a Commoner in April 11 Jac. the Plaintiff in bar saith, that one Williams was seized of an house and land, etc. whereunto he had Common, etc. and demised the same unto him the 30 day of March in the same 11 year; to hold from the Feast of the Annunciation next before for a year. The Avowant traverseth the lease modo & forma, whereupon issue is taken, and the jury said, that Williams made a lease to the Plaintiff, on the 25 day of March for one year from thence next ensuing: And albeit this was not the same lease, that the Plaintiff pleaded (for this gins on the day, and the other not so soon) nor was to take his limitation, but from the day exlcuded, yet the Court gave judgement for the Plaintiff: for the substance of the issue was, whether or not the Plaintiff 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, etc. 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 de●ce must be 〈◊〉. 1 In all Actions real, personal, or mixed, Co. Inst. p. 1. 127. b: 3. albeit the Tenant or Defendant appeareth, and pleads a sufficient bar, yet if he makes not in his plea a lawful defence, (as in personal actions to say, & praedictus C. D. defendit vim & injuriam quando, etc. & damna & quicquid quod ipse defendere deber, etc.) judgement shall be given against him. ●j●ration. 2 Albeit in 8 E. 2. Abjuration (indefinitely) is called a divorce between the Husband and Wife; yet every abjuration is not so; Co. ib. 133. 23 for such abjuration as amounts to a divorce ought to be either by authority of Parliament, or upon ordinary proceeding in Law, as in the Case of Tho. of Weyland in 19 E. 1. Nevertheless (in that Case) proceeding in Parliament or at Law are but in the nature of circumstance. etc. Co. ib. 137. b. 3 3 By the wisdom of our Ancients a great deal of solemnity was used in the manumission of Villains, Manumission of Villain, to the end the memory thereof might take the deeper impression in the minds of the Assistants, for which this was the old Rule, Qui servum suum liberat, in Ecclesia, vel Mercato, vel Comitatu, vel Hundredo coram testibus & palam faciat, & liberas ei vias, & portas conscribat apertes, & Lanceam & Gladium, vel quae liberorum arma, in manibus ei ponat, etc. Co. ib. 143. b. 1 & 229. a. 3. & Co. l. 5. 20. b. Styles Case. 4 A deed cannot be a deed indented, A deed Indented. unless it be actually indented: For, albeit the words of the deed be, Haec indentura, etc. yet if it be not indented indeed, it is no indenture: but if the deed be indented, albeit the words of the deed be not, Haec indentura, etc. yet it is an indenture, etc. Co. ib. 152. a. 4 & Co. l. 5. 112. b. 1. in Mallories Case. 5 If a Lease for life be made, Attornment necessary. reserving a Rent upon Condition, etc. And the Lessor levies a fine of the reversion to a stranger; In this Case, albeit the Conusée is Grantée or Assignée of the Reversion, and so seems to have power given him of taking advantage of the Condition by force of the Statute of 32 H. 8. cap. 34. Nevertheless without Attornment he shall not take advantage of the Condition: For, the makers of that Statute intended to have all necessary Ceremonies and incidents observed, otherwise it might be mischievous to the Lessée, etc. Co. ibid. 216. Litt. § 349. 6 If Land be Granted to a man for two years upon Condition, Livery. that if he pay to the Grantor within the said two years 40 marks, that thou he shall have Fee: But the Grantor gives him no Livery: In this Case, albeit he pay the 40 Marks within the two years, yet he shall not have Fée: Because there wanted the Ceremony of Livery: It had been otherwise if Livery had been made unto him, etc. Co. ib. 218. a. 3 7 Regularly when any man will take advantage of a Condition, if he may enter the must enter, and when he cannot enter, ● inheritance ● cannot be ● vested with● entry or thi● he must make a claim: And the reason is for that a frée-hold and inheritance, shall not cease without entry or claim; As if a man Grant an Advowson to a man and his heirs upon Condition, that if the Grantor, etc. pay 20 li. on such a day, etc. the State of the Grantée shall cease, and be utterly void: The Grantor payeth the money, yet the State is not revested in the Grantor before a claim, and that claim must be made at the Church: And so it is likewise of a Reversion or remainder, of a Rent, Common, or the like: For there also must be a claim before the State be revested in the Grantor by force of the Condition, and that claim must be made upon the Land: A fortiori in Case of a feoffment, which passeth by Livery of seisin, there must be a reentry by force of the Condition before the State be void. Co. ibid. 8 A man bargaineth and selleth Land by deed indented and enroled with proviso, that if the bargain pay, Idem. etc. that then the state shall cease and be void, he payth the money, the State is not revested in the Bargainer before reentry: And so it is if a bargain and sale be made of a Reversion, Remainder, Advowson, Rent, Common, &c, So it is likewise if Lands be devised to a man and to his heirs upon Condition, that if the devisée pay not 20 pounds at such a day, that his Estate shall cease and be void, the money is not paid, the State shall not be dested in the heir before an entry: And so it is also of a Reversion, Remainder, Advowson, Rent, Common, or the like. 9 All Deeds and Writings ought to be made in Parchment, Co. ib. 229. a. 3. or Paper; Writings must ●e in parchment or paper. For if a writing be made upon a piece of wood, or upon a piece of a linen, or in the bark of a tree, or on a stone, or the like, etc. and the same be sealed and delivered, yet it is no deed; for a deed must be written in Parchment or Paper; Because a writing upon such materials is least subject to alteration and corruption. 〈◊〉, S●●t. 32 〈…〉. 10 It is agreed in 28 H. 8. fol. 28. that where the Statute of the 27 H. 8. c. 10. of Uses provides, Co. lib. 5. 112. b. 3. in Mallories Case. that the actual possession shall be adjudged according to the use, etc. yet all circumstances, (required by the Common Law) are to observed, viz. actual entry de facto. ●o freehold without live●y, or etc. 11 Tenant in tail of an House entering into it, saith thus; Brother, Co. lib. 6. 26: Sharpes Case. I here demise unto you my house as long as I live, paying 20 li. per annum to me, & you finding me board, horse, etc. this amounts not to a demise for life: Because there wants livery, or some Act, which the Law adjudged livery, or at least apt words, which amount thereunto; For delivery of a Charter is an Act: but the Law doth not adjudge that livery, because it hath another effect, viz. to make the Charter his deed, as it hath been adjudged, but delivery of a turf, twig, or any thing else, which comes from the land, or of the ring of the door is good livery: So if he saith enter and enjoy it, etc. that is good, although out of the land, if within view; for, that is a delivery of the land itself: 27 Ass. 61. after delivery of the deed upon the land, to say, have and enjoy the land according to the deed, this is good livery: so 41 E. 3. 17. after delivery, etc. upon the land he saith, enter, God give you joy, this is good. 37 H. 8. Feofments Br. ●o new lease ●exe entry. 12 Upon a lease for years by Indenture the Lessée covenants and grants, Dier 6. 28 H. 8. 1. etc. that if he his Executors or assigns alien that it shall be lawful for the Lessor to re-enter; and after makes his Wife his Executrix and dies, the Feme takes a new Baron; who aliens, and the lessor makes a new lease before entry: In this Case the new lease is not good, being made before entry, for albeit entry be but in the nature of a ceremony or circumstance, yet in such Case and others of like kind it is necessary for the Lessor to make his entry before he can be capable of making a new Lease. ●ornment. 13 If a Villain purchase a reversion, Co. Inst. p. 1. 119. b. 2 Lit. §. 179. his Lord may not claim it before attornment be made by the Tenant of the land to the Villain, for if he make his claim after the grant and before attornment, such claim is void, yet attornment is (upon the matter) but a bare ceremony. ●i●e poenae 14 A nomine poenae is not recoverable without an actual demand of the Rent, for the nonpayment whereof it became forfeited. Hob. 133. Howel and Samback. 103 Things executed and done more, then executory, and to do. Vide 40. 51. ●ery in 〈◊〉 without ●y void. 1 A livery in view (otherwise called a livery in Law) is good to convey the Estate to the feoffée, etc. if he make entry, Co. Inst. p. 1. 48, b. 3 and so the Estate be executed during his life and the life of the feoffor, but if either of them die before entry, the livery is void. ●ange not ●●ed void. 2 In exchange of Land the parties have no fré-hold in them in deed or Law, before they execute the same by entry: Co. ib. 15. b. 2. and therefore if one of them die before the exchange be executed by entry, the exchange is void: for the heir cannot enter and take it as a purchasor; because he was named only to take by way of limitation of estate in course of descent. Co. ib. 51. b. 4 3 If a man let lands to another for term of years, Interest in a Lease for yea●●● good without entry, etc. albeit the Lessor die before the Lessée enter, yet he may well enter into the same lands after the Lessors death, because (in case of a Lease for years) the estate is executed, (and the interest of the term doth pass, and vest in the Lessée) before entry; And therefore the death of the Lessor cannot divest that, which was vested before. Co. ib. 52. b. 4. 4 If the Lessor by his Deed licence, Licence to alien good after the Lessors death. the Lessée for life or years (who is restrained by Condition not to alien without licence) to alien, and the Lessor dieth before the Lessée doth alien, yet is his death no countermand of his licence, but that he may alien; for, the licence exempteth the Lessée out of the penalty of the Condition, and it was executed on the part of the Lessor, as much as might be: And so it was resolved M. 3. Jac. in Com. Ba. So likewise if the King licence to alien in Mortmain and dieth, the licence remaineth good, notwithstanding the King's death, etc. Co. Inst. p. 1. 76. b. 3. 5 If one levy a Fine executory (as sur grant and render) to a man and his heirs, and he, to whom the land is granted and rendered, Upon a fine executory no Wardship. dieth before execution, and his heir being within age entereth; In this case, he shall not be in Ward, For, his ancestor at the time of his death was not tenant to the Lord: because the Fine wos not executed, etc. Co. ib. 128. b. 1. 6 Upon plea in disability of the person by reason of Out-lawry, Out-lawry 〈◊〉 perfect, bef●●● the return of the Exigent. before the Defendant can disable the Plaintiff, the Out-lawry must be perfectly executed, and appear upon Record; for, the judgement after the Quinto exactus given by the Coroners in the County Court, is not sufficient; but the Writ of Exigent must be returned; because before the Return of that Writ it is not perfectly executed, nor doth appear upon Record, etc. Co. ib. 130. a. 4 7 A man in execution in salva custodia shall not be delivered by a protection; for then the suit is executed, and the Law hath her end, etc. After exec●●●an no protection. Writs of execution admit no protection Co. ib. 131. a. 3 8 In judicial Writs, which are in nature of actions, where the party hath day to appear and plead, (and therefore yet somewhat to do) a protection doth lie, as in Writs of Scire facias upon Recoveries, Fines, judgements, etc. Albeit, by the Statute of W. 2. cap. 45. essoignes and other delays are ousted in Writs of Scire facias, yet a protection doth lie in the same;) so it is in a Quid juris clamat, and the like: But in Writs of execution, as Habere facias seisinam, Elegit, execution upon a Statute, Capias ad satisfaciendum, fieri facias, and the like, no protection can be cast for the Defendant, for then the suit is ended; Neither hath the Defendant than any farther day in Court, and the protection extendeth only ad placita & quaerelas, and must be allowed by the Court, which cannot be but upon a day of appearance, Co. ib. 139. a. 2. 9 In a Quare Impedit, if the Plaintiff be nonsuit after appearance, In a Qua●e I●pedit nonsuit or discontin. a good barr● the Defendant shall make a title, and have a Writ to the Bishop: And this is peremptory to the Plaintiff, and a good bar in another Quare Impedit; And the reason is, for that the Defendant had by judgement of the Court a Writ to the Bishop, which is a judicial Writ, and in the nature of an execution: And therefore the Incumbent that cometh in by that Writ shall never be removed, which is a flat bar as to that presentation; And of this opinion is Littleton in our Books: And the same Law and for the same reason it is, in case of a discontinuance. Co. ib. 139: a. 3 10 In an Attaint, if the Plaintiff after appearance be nonsuit, In Attain● nonsuit peremptory. it is peremptory; but if the process in the attaint be only discontinued, the Plaintiff may have another Writ of Attaint; because upon the nonsuit there is a judgement given, but not upon the discontinuance, etc. Account. Nonsuit. 11 After an award to account, the Plaintiff may be nonsuit, Co. ib. 139 b. 2 because that is only an interlocutory award of the Court, and no final judgement. Recognisance, etc. executory, not binding, executed, con●●●. 12 If there be two joint-tenants of an estate in Fée-simple, Co. ib. 184 b. 2. and one of them acknowledgeth a Recognisance, or a Statute, or suffereth a judgement in an action of Debt, etc. and dieth before execution had, it shall not be executed afterwards; but if execution be sued in the life of the Conusor, it shall bind the Survivor: So, if a Villain purchase lands, and bind himself in a Recognisance, etc. if the Lord enter before execution, the Lord shall avoid it; But where execution thereof is had before seizure, the Lord shall be bound thereby, etc. Diversity of the grant of an Annuity, and of a feoffment. 13 If a man grant an Annuity pro una acra terrae, or pro decimis, etc. Co. ib. 204: a. 2 or pro concilio, or quod pasturet concilium, and the Lord is evicted, the tithes disturbed, or the Council refused; In these cases the Annnuity ceaseth, because this word pro showeth the cause of the Grant, and therefore amounteth to a Condition, and then (according to the Rule) cessante causa cessat effectus: But if A. pro consilio impenso, etc. make a feoffment or a Lease for life of an acre, or pro una acra terrae, albeit he denyeth Council, or that the acre be evicted, yet A. shall not re-enter, because in this case there ought to be legal words of condition or qualification; for, the cause or consideration shall not avoid the State of the Feoffée; And the reason of this diversity is, for that the state of the land is executed, and the annuity is only executory. Condition annexed to an estate in lands, and of a Recognisance, or Obligation, diversity. 14 There is a diversity between a Condition annexed to a state in Lands or Tenements upon a Feoffment, Gift in tail, Co. ib. 206. a. 3. etc. and a Condition of an Obligation, Recognisance, or such like; for if a Condition annexed to Lands be possible at the making of the Condition, and become impossible by the Act of God, yet the estate of the Feoffée, etc. shall not be avoided: As if a man maketh a Feoffment in Fee upon Condition, that the Feoffor shall within one year go to Paris, etc. and presently after the Feoffor dieth, so as it is made impossible by the Act of God, that the Condition should be performed; yet (in that case) the estate of the Feoffée is become absolute; for though the Condition be consequent to the state, yet there is a precedency before the reentry, viz. the performance of the Condition, and the state of the Land is executed and settled in the Feoffée, and cannot be redeemed back again, but by matter subsequent, viz. the performance of the Condition: So it is also, where the Condition is, that the Feoffor shall appear in such a Court the next Term, and before the day the Feoffor dieth, for (in that case also) the estate of the Feoffée is absolute, etc. But if a man be bound by Recognisance or Bond with Condition, that he shall appear the next Term in such a Court, and before the day the Conusor or Obligor dieth, the Recognisance or Obligation is saved, because the Bond or Recognisance is a thing in Action, and executory, whereof no advantage can be taken, Co. ib. 206. b. 3. until there be a default in the Obligator, etc. In like manner, if a man make a Feoffment upon Condition, that the Feoffée shall kill I. S. In that case, albeit the performance of the Condition be malum in se, and therefore the Condition itself merely void, yet the estate is absolute, because executed, and settled, etc. But if a man make a Bond upon Condition, that he shall kill I.S. the Condition being unlawful, as before, and the Bond a thing only in action and executory, they are both void, etc. 〈◊〉 estate once ●id, remedi●e. 15 Where an Estate or Lease is ipso facto void by a Condition or Limitation, no acceptance of the Rent after, Co. Inst. p. 1. 215. a. 1. can make it to have a continuance: Otherwise it is of an Estate or Lease only voidable by entry. Co. ib. 226. a. 1. 16 R. brought an Ejectione firmae against E. for ejecting him out of land, An estate executed need not plead a Deed. which he held for years of the demise of C, E. pleads that B. gave the land to P. and K. his wife in tail, who had issue E. the Defendant, and after the Donées enfeoffed C. upon condition to demise the land to R. for years, the remainder to P. and K, etc. C. did demise the land to R. but kept the reversion; wherefore K. the wife after her husband's decease entered upon R, etc. for the Condition broken, and died, after whose decease the Land descended to E. now Defendant; Judgement si Action: Here, exception was taken to this plea, because E. maintained his entry by force of a Condition broken, and shown forth no Deed; But the plea was ruled to be good, because the thing was executed, and therefore he had no Deed to show forth any Deed: for (indeed) he being issue in tail was remitted. Co. ib. 236. b. 4. 17 There is a diversity between inheritances executed, Estates executed and executory diversity. and inheritances executory, as lands executed by Livery, &c. cannot by indenture of defeasance be defeated afterwards, and so if a Disseisée release to a Disseisor, it cannot be defeated by Indentures of defeasance made afterwards, etc. Littl. § 620, 621, 622. Co. ib. 333, 334 18 If Tenant in tail grant the Land to A. for life, The like. and afterwards grants the Reversion to B. in Fee, and afterwards A. dies, and B. enters, and then the tenant in tail dies; In this case, the entry of the issue in tail is taken away; because the Reversion of B. is executed; So it is also where the Tenant in tail grants the Land for years, and afterwards grants away the Reversion to another, for in that case also both the Fee and Franktenement are discontinued, and the Reversion is executed in the Grantée: It is otherwise, where the tenant for life survives the tenant in tail; for than is not the Reversion executed in the life of the tenant in tail, and then is not the issue in tail put to his Formedon, but may lawfully enter, etc. Co. l. 1. 155. b. 2 The Rector of Cheddingtons' Case. 19 There is a diversity between a Covenant or Agreement, An estate certain, uncertain, dive●s●●y. which is perfect and certain, albeit it shall take effect in possession upon some future matter precedent; And a Co●enant or Agreement imperfect and uncertain, which is to be reduced to certainty, by matter ex post facto; For, in the one case the estate is bound presently, in the other case not; As 3 Mar. Brook Feoffments, all uses 59 It is covenanted betwixt A. and B, that the Son of A. shall marry the Daughter of B, for which B. gives to A. 100 l. and A. covenants with B, that if the marriage take not effect, that A. and his heirs will stand seized of 150 acres in D. to the use of B. and his heirs, until A. his heirs, etc. pay to B. 100 l. after B. hath issue under age and dies, the marriage takes not effect; In this case, the estate is executed in the heir of B. and shall have relation to the making of the Indenture, etc. But if the Grantée of a Reversion die, no attornment can be done to his heir; So it is also where the Devisée dies before the Devisor, etc. Pl. Co. Brets and Rigdens' case, 345. Vide Shelleys case, where the Indenture bond the land, albeit execution was not taken out till after his death; for the estate was executed by the Indenture and Recovery before execution, which shall have a retro-spect to the Indenture; And 11 H. 7. 12. Where the heir shall have execution upon a fine: But if the Feoffor or Feoffée die before entry, feoffment by livery within view shall not take effect: So also, in the Rector of Cheddingtons' Case, Co. l. 1. 155, 156, by the death of Tho. the term is not certain, nor can vest in his executors. Co. l. 3. 86. a. 1. The Case of Fines. 20 If the Bishop or Baron make a Lease for life, Bishop. Baron. and after grant the Reversion in Fee, and the Lessée for life die in the life of the Bishop, or of the Baron, this is a Discontinuance: It is otherwise, if the Lessée for life survive the Bishop or Baron. A thing executed unalterable. 21 H. recovers 75 l. in B. R. and assigns it by Deed enrolled to Queen El. in satisfaction of a due Debt, as Collector of the Fifteen, Co. l. 5. p. 2. 9●. Hoes Case. provided, if the Lord Treasurer and Barons of the Exchequer, or any two of them disallow the assignment, etc. and revoke it by writing under their hands, that then the assignment shall he void; after the Defendant brings Error, and the judgement is affirmed, and 5 l. Costs given: after by Writ of Prerogative the Land of the Defendant was extended, and Goods seized to the value of the Debt; And afterwards three Barons revoke the assignment after the death of the Plaintiff, because the Plaintiff had satisfied the Debt, and his executor sues a Scire facias for the 75 l. and 5 l. Costs. But it was adjudged, that after execution had by the Queen, which was the effect of the assignment, the Revocation came too late; for he that hath power of Revocation cannot revoke a thing lawfully executed; So a Letter of Attorney cannot be revoked after it is executed, Vide 7 H. 6. 42. and 7 H. 4. 2. The Debtée is outlawed, the Debtor pays to the King, the Out-lawry is reversed; In this case, the Debtor shall recover against the Debtée: So if the Goods of an outlawed person be sold, etc. he shall have restitution of the Goods; Co. l. 8. 96. b 4. in manning's Case. but upon a Fieri facias, etc. only the value, Vide 3. E. 3. 51. Recompense in value once lawfully executed, shall not be devested; albeit the title of the Demandant be afterwards disaffirmed, and evicted. Remainder executed. 22 If a remainder be once executed, Co: l. 8. 88 a. 1. in Buckmeres Case. in a Writ of Formedon in the Descender he shall never speak of that remainder, but the general Writ of Formedon in the Descender shall serve in that case, and he shall count of an immediate Gift; for a Formedon in remainder he cannot have, after the remainder is once executed: But if a Lease for life be made, the remainder in tail to A. the remainder in tail to B. if A. die without issue in the life of the Tenant for life, and B. put to his Formedon in the remainder, in his Formedon he ought to make mention of the remainder to A. albeit it was determined and spent; for, the Demandant in the Formedon in remainder ought to make mention of all the precedent remainders in tail, because in that case the remainder was never executed by way of descent. 〈◊〉 London suit ●opt before ●●dgment. 23 The Mayor of London may alter the course of justice in a cause hanging before the Sheriffs, viz. to send for the parties, Co. l. 8. 1●6. a 3 in the Case of the City of London. and to stop the suit also, if he find the Plaintiff already satisfied; but so he cannot do after judgement, and this he may do by a custom there. Judgement executed irrevocable. 24 There is a diversity betwixt a thing Collateral executory, Co. l. 8 142. a. 1 Doctor Druries' Case. and executed, for when an erroneous judgement is given, and after the judgement is reversed by Writ of Error, Collateral acts executory are barred thereby, as if a man hath judgement in a Quare impedit, and hath a Writ to the Bishop, and the Bishop refuse, here the Plaintiff upon this Collateral matter of refusal, may have a Quare non admisit; but if the Defendant reverse the judgement in a Writ of Error, and after the Plaintiff in the Quare impedit brings a Quare non admisit, the Defendant may plead no such Record: Vide 26 E. 3. 75. per Willy and Hill. So if A. in execution at the suit of B. upon erroneous judgement, and after escapes, and after the judgement is reversed by Error, the action upon the escape is gone; for he may plead no such Record, because without a Record the action is not maintainable but in that case if the Plaintiff bring an action of Debt against the Sheriff or Gaoler upon the escape, and hath judgement and execution, and after the first judgement is reversed; yet this judgement upon that Collateral matter being executed shall remain in force; 7 H. 6. 42. a. Notwithstanding such reversal of the first judgement. The Conusée of a Statute Staple in Detinue thereof upon Garnishment, recovers by erroneous judgement against the Garnishée, and hath the Statute delivered unto him, 4 H. 7. 11. the Garnishée brings a Writ of Error, and the Conusée sues execution upon the Statute and hath it; Here, albeit the Garnishée reverse the judgement, yet this execution shall not be avoided thereby, because the Statute is already executed: Likewise, if a man recover by erroneous judgement, and present to a Benefice, or enter into the perquisite of a Villain, and after the judgement is reversed by Error, yet, because these Collateral acts are executed, they shall not be afterwards devested. Co. l. 11. 40. a. 3 in Metcalfes' Cases. 25 Upon an interloqutory award of a Court, Error lieth not till after judgement. which is not definitive, a Writ of Error lieth not, such as are these, quod computer, that the shall take an Assize, in Waste to inquire of the Wastes, in trespass to inquire of damages; In partitione facienda, quod partitio fiat; In admeasurement: quod admensuratio fiet, that a man shall be ousted of aid, and the like: upon which the Defendant shall not bring a Writ of Error; but after judgement in these cases he may. Co. l 10. 47. b. 3 in Lampets' Case. 26 A. Lessée for 500 years deviseth to B. for life, and after his decease the remainder to C. and the heirs of his body, this executory devise the remainder to C. and the heirs of this body, this executory devise may be released to B. but cannot be granted to a stranger, it is otherwise of an interest executed. Fit 2. N. B. 83. b 27 If the Lord levy aid to marry his Daughter, Aide for marring, etc. and do afterward marry her, she shall not have an action against the executors of the father for that money: it is otherwise, if she were not married in his life time; So it is also of the son not made Knight, etc. F. N. B. 120. f: & 121. c: 28 If a man take a feme, who is indebted to an alien, Baron not chargeable without reco- and the feme dies before that Debt is recovered by action, in that case the Baron is not chargeable; It is otherwise, if it were recovered, living the feme, etc. Pl. Co. 52. a. 1. Wimb. & Talb. Case. 29 An heir in tail, that hath a Reversion, An estate executed, and executory, div. or remainder really executed in him, shall not need to plead specially how he is heir; it is otherwise where it is to be executed: So if Administrators bring an action of Trespass for Goods taken out of their own possession, they shall not show the Letters of Administration: Otherwise it is for Goods taken in the life of the Intestate, for there the possession of the Goods were never executed in them, but to be executed: Also, if a Lease be made for life, the remainder in tail, and he in the remainder is seized, after the death of the Tenant for life, his issue shall have a Formedon, and shall declare upon the immediate Gift, neither yet shall show the Deed; otherwise it is if that estate were to be executed. Pl. Co. 51. a. 3. Wimb. & Talb. Case. 9 H. 6. 23. Pl. Co. 56. b. 5. contra. 30 A man deviseth land to one for life, An estate vested shall remain. the remainder to the right heirs male of the Devisor, and to the heirs of his body begotten, the Tenant for life dies, and the next heir of the Devisor being a feme enters, and after had a son; And there it was holden by the best opinion, that the some shall not out the feme, because the son born after shall not take away the land before vested in the feme, as heir, for default of such person then in rerum natura, to take the devise. Co. Inst. p. 1. 117. a. 3. 31 If lands be given to Villain and to the heirs of his body, Villain and alien tenants in tail. and the Lord enters, and after enfranchiseth the Donée, and then the Donée hath issue, yet that issue shall never have remedy either by Formedon or entry, to recover the Land, for that it was executed in the Lord before the enfranchisment of the Donée, and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retain such a gift, etc. So it is also, if lands be given to an Alien, and to the heirs of his body, upon office found the land is seized for the King, afterwards the King makes the Alien a Denizen, who hath issue and dieth, in this Case also the King shall detain the land against the Issue, etc. ● f●eri facias, acuted shall ●d. 32 Sale by the Sheriff upon a fieri facias shall stand, Co. l. 8. 76. b. 4. Matthew Manuings Case. albeit the judgement afterwards reversed, and the Plaintiff in it restored to the value. Dier 363. 24. 〈◊〉 original 〈◊〉 judicial ●ll abate, or 〈◊〉 abate. 33 There is a diversity betwixt writs real original, Co. l. 10. 134 in Read and Redmans Ca which are as things executory, & writs real judicial, which Issue from the judgement, being in the nature of a thing executed: And therefore if 2 coperceners bring a real Action, and the one is summoned and severed, and after dies having issue or no Issue, in this Case the writ shall abate: so likewise, if 2 jointenants bring an Assize or other original real Action, and the one is summoned and severed and dies, the writ shall abate, albeit the thing in demand servive: But if two coperceners bring a scire facias, which is a judicial writ upon a five levied, etc. and the one copercener is summoned and severed & then dies without Issue, such judicial writ shall not abate: And so it is also of two joint-tenants. Howbeit if the copercener that dies, hath issue, it shall abate, because the right descends. ●●●ter ●c●●ed. 34 If lands be given to a man and the heirs females of his body, Co. Inst. p. 1. 357. a. 2 and he maketh a feoffment in fee, and take bacl an Estate to him and his heirs, and dieth, having Issue a Daughter, leaving his wife grossement ensuit with a Son and dieth, the Daughter is remitted, and albeit the Son be afterwards borne, he shall not divest the remitter; because it was executed. ●e feme re●ed after ●ontinu●e. 35 If the Baron discontinue the land of the Feme and go beyond Sea, Litt. §: 677. Co. Inst. p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life, and gives her seisin, and after the Baron returns and dis-agrées to the lease and livery of siesin made to the Feme: yet in this Case she is remitted to her ancient Estate, because by the lease for life and livery the remitter was executed in the Feme, and the Estate for life to the Feme, which wrought, the remitter, is vanished and whole defeated: And therefore disagréement of the husband can divest the Estate gained by the lease, which by the remitter was actually devested before. 〈◊〉 plenarty, ●●re indu●●n. 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. (by the word possessor) to plead in bar before induction: for by that his possession is executed, and then he is possessor, and not before. ●e●ants in ●●mon of 〈◊〉 Advowson. 37 Three Tenants in common 〈◊〉 an advowson make composition, Dier 19 a. 194 28 H. 8. that each of them shall present by term, if each of them hath once presented by his turn by virtue of the composition, in a Qu. Imp. brought after amongst them, it is not necessary to show the composition, because it was executed: it is otherwise in Case it were not executed: And such composition cannot be without writing, it is otherwise of coperceners, for such composition may be by parol amongst them, because they are privies and as one heir, and are compellable to make partition. ●s●uy que use ●render in 〈◊〉. 38 Cestuy que use after the Statute of 1 R. 3. 1. the 1 of May, Dier 57 b. 2. 35 H. 8 makes a lease to one for 20 years to begin at Midsummer next, the feoffées the second of May at the Request of Cestuy que use make a lease of the same Land to the same Lessée for 34 years to begin also at Midsummer; In this Case, the acceptance of the last lease is not a surrender of the first, but rather a confirmation of the 20 years and a new Lease for the 14 years; for albeit the Lessée had such an Interest, which he might grant or forfeit, yet in regard the Lessée having not possession, his Estate was only to begin and executory, and not already begun and executed, such acceptance could not be a surrender in Law, and the rather, for that the feoffees had a lawful and ordinary authority in the Land to make a lease in such Case. Dier 67. b. 20. 3 E. 6. 39 For the debt of a Common person upon a Statute after the Inquisition and before the Liberate, Statute. Staple. the same Land may be extended for the King's debt; but it seems to be otherwise after the Liberate to the Common person, for than it is rested in him in nature of a frée-hold; Tamen quaere. Dier 82. b. 72 7 E. 6. 40 In London upon the attachment of a Debt in a third persons hand, albeit the Plaintiff have judgement against the third person, Attachment 〈◊〉 a debt in L●●don. yet before execution served, the Plaintiff may resort to have judgement and Execution against the Defendant, being his principal Debtor: It is otherwise, if the judgement against the third person had been executed. Dier 98. b. 57 1 Mar. 41 A Fieri facias (returnable Quind. Pasc.) was directed to the Shetiffe of Middlesex who returns, Execution. quòd cepit bona & catalla to the value of part of the debt, & quòd remanent in custodia sua pro defectu emptorum, Error. & quòd ante return. hujus brevis, breve de non molestando fuit direct. quòd de ulteriore executione supersedeat, which writ he also returned annexed to the fieri facias; Now this writ de non molestando was awarded in Banco by reason of a writ of Error there brought by the Defendant, but the Record was not yet removed, because the return of the writ of Error was Craft. Ascent. and not before: In this Case, the Question was whether or no the writ de venditioni exponend. should be awarded, because the writ of execution was not served, nor the property of the goods altered, notwithstanding the seizure, yet at last the writ de venditioni exponend. was awarded by and Browne, notwithstanding the supersedeas, because (as it seems) the writ of Error, upon which the supersedeas was founded, was but executory, being not then returnable. Dier 205. 7. 3, 4 El. 42 The Conusor of a Statute hath a Rent-charge, Extent. and before extent purchaseth parcel of the Land; In this Case, the Rent is gone, and shall not be in Execution: But it seems to be otherwise if the purchase hath been after the extent of the Rent executed. Dier 220. 50. 5 El. 43 A fine was acknowledged by Baron and Feme of the Land of the Feme in the Vacation after Hillary Term by ded. potest. the Feme being then but 19 years of age; Fine. the writ of Covenant bare teste in Jan. returnable Craft. Pur. and the ded. potest. bare teste three days after the original, and the Queen's silver was entered upon Hillary Term four days before the death of the Feme, viz. die Venetis in Septinaria Pasch. But yet the fine was not engrossed until Wednesday after; whereupon the heir of the Feme in Easter Term prays, that the fine should not be delivered to the party, nor recorded, yet it was, notwithstanding the undue practices of the Baron, because after the entry of the Queen's silver before the death of the Feme, and the engrossing of the fine before Easter Term, the fine was perfectly executed. 104 Possibility of things. ●sibility if arriage. 1 If Lands be given to a man and a woman un-married, Co. Inst. p. 1. 20. b. 4. and to the heirs of their two bodies, for the apparent possibility of inter-marying they have an Estate tail in them presently; So it it also where lands are given to the Husband of A. and the Wife of B. and to the heirs of their bodies: for they have also a present Estate tail in them, in respect of the possibility: Also if a Feme sole do enfeoff a married man causa mairimonii prolocuti, it is good for the possibility, etc. ●s●bility of ●er. 2 If there be Baron and Feme, Co. ib. 33 a. 3. and the Feme is above the age of 9 years, and under the age of 12 (that being the age of consenting to marriage) and the Baron (of what age so ever) die before the Feme attain the age of 12; yet shall she be endowed, in respect of the possibility of consenting at that age, which (indeed) is the consummation of the marriage: So if a man take a Wife of the age of 7 years, and after alien the Land, and after the alienation the wife attaineth to the age of 9 years, and after the husband dieth: yet here also the wife shall be endowed, for the possibility of being dowable, if she attained the age of 9 years before the death of the husband: for by his death the possibility of Dower is consummate, etc. tenants in ●tiall tail ● years' old. 3 If a man gives land to a man and his Wife and to the heirs of their two bodies, Co. ib. 28. a. 2. and they live till each of them is an hundred years old and have no Issue, yet do they continue still Tenants in tail: for that the Law in that Case will not see in them an impossibility of having Children, although they be never so old: It is otherwise, where Land is given to a man and a woman in special tail, and woman dies without Issue, for there the Law seethe an apparent impossibility that the man should have inheritable Issue by another woman, etc. 〈◊〉 ex as●s● by any 〈◊〉 a constant ●it appa●● not good. 4 The youngest son and heir apparent cannot endow his wife ex assensu patris,, Co. ib. 35. b. 2. of lands whereof the Father is seized in fee of the nature of Borough English, in respect of the possibility that the Father may have another Son; for then the husband is not heir apparent: For the same reason it is that Dower ex assensu fratris or consanguinei is not good: because albeit he is heir apparent at that time, yet for the common possibility that the Brother or Cousin may have Issue, and every Issue that he shall so have will exclude the husband from being heir apparent, he is no such heir apparent as the Law intendeth, for the Law intendeth a constant and perpetual appearance, etc. ●ant by the ●resie ●gh the 〈◊〉 be at●ted. 5 If a man takes a wife seized of lands or tenements in fee and hath Issue, and afterwards the wife is attainted of felony, Co. ib. 40. a. 1. so as the Issue cannot inherit to her, yet he shall be Tenant by the courtesy, in respect of the Issue which he had before the felony, and which by possibility might then have inherited: But if the wife had been attainted of felony before Issue had, albeit he hath Issue afterwards, he shall not be Tenant by the courtesy: Because than there was no possibility at all, that such Issue should inherit after her. ●ant in ●er, though ●e be a ●ing im●bility of ●ng Issue. 6 Dower is given to the Feme for the possibility, that the Issue, Co. ib. 40. a. 3. which she may have by the Baron, may inherit his land, albeit she be barren and have no Issue by the Baron; And although the Feme be 100 years old, and the husband at his death only 4 or 7 years old, yet shall the Feme be endowed: For, the Law can not judge that impossible, which may fall within the bounds of nature to be possible, it being certain that women in ancient time have had Children at such an age, as no women doth now attain unto; and my Lord Coke saith, that he knew a woman above 60 years old to have a Child, ideò non definitur in Jure, etc. Co. ib. 47. a. 1 7 A Rent cannot be reserved by a Common person upon an Estate for life of any incorporal inheritance, as Advowsons', Commons, Rend reserv●● upon a reversion or rendering good. Offices, Corody, Multure of a mill, Tithes, Fairs, Markets, Liberties, Privileges, Franchises, and the like; because the Lessor cannot have resort or recourse to distrain for the Rend arreare, and if it be upon a lease for years, yet he shall not distrain for it, but have only an Action of debt for it upon the contract: Howbeit a reversion or a remainder of Lands or Tenements may be granted reserving a Rent, for the apparent possibility that it may come in possession, etc. Co. ib. 58. b. 3. 8 Albeit a Copyhold Tenement, that escheates, Copyhold the Lords ●●maines still demisible. is kept for many years together in the Lords hands, yet it still retains the quality of being demisible, in respect of the possibility that the Lord may again admit some man unto it, etc. Co. Inst. p. 1. 80. a. 1. 9 If the Ancestor marrieth his heir apparent within the age of consent, and dyeth, the Infant being still within the age of consent, An infant married before years of consent. the Lord may take the Infant (if he will) into his possession, and if the Infant be detained from him, he shall recover him in a writ of ravishment of ward, and thereupon have the Infant delivered unto him; And this is in respect of the possibility that the Infant may disagree to the marriage; Howbeit if at the years of consent he agree to the marriage: neither the King nor the Lord shall have the marriage, for than it is a marriage ab initio, and there need no other marriage. Co. ib. 244. a. 2 10 If the Husband hath an apparent possibility of procreation, Issue, the h●●band inte● Maria. as under eight years, or under the age of procreation, the Issue, which his Wife hath, is a Bastard, albeit he was then within the four seas, that is, within the jurisdiction of the King of England; but when the parties are both of full lawful age: if the Husband be within the four seas, as aforesaid, when the wife hath Issue, albeit he never came near her, yet is the Child Legitimate, for the possibility that they might meet together: For, (in that Case) Filiatio non potest probari, etc. So it is also if the Issue be borne within a month or a day after marriage, for (in such Case) the Law will not judge of any impossibility, etc. Co. ib. 316. a. 4 & Co. l. 10. 44. a. 2. Jennings Case. 11 A. seized of Land in Fee grants it in tail to B. and afterwards grants the Reversion to C. in Fee by Fine, in this Case, Tenant in t●●● not compelable to attonce the Tenant in tail is not compellable to attorne, in respect of the possibility that this Estate (being an Estate of Inheritance) may continue for ever, etc. Litt. §. 707. Co. ib. 371. 6. 12 If a man hath Issue two Sons and is disseised, Lineal & collateral warranty. and the eldest Son release to the Disseisor by deed with Warranty and die without Issue, and afterwards the Father dies, this is a lineal Warranty to the younger Son, for the possibility that the younger Son, might have convyed his tittle to the Land through the eldest Son, in Case the eldest Son had survived the Father: Otherwise it is, where the younger Son deceaseth and dies without Issue: for the eldest Son can by no possibility convey his title to the Land from the Father through the younger Son, etc. Litt. §. 708 Co. ib. 372. a. 13 If Tenant in tail hath issue three Sons, Lineal & c●lateral warranty of Tenant in tail and discontinue the tail in Fee, and the second Son releaseth by his deed with Warranty to the Discontinuee, and after the Tenant in tail dies, and the second Son dies without Issue; here the eldest Son is barred to have any recovery by writ of Formedon; because the Warranty of the second Brother is collateral to him for the impossibility that he may convey any Estate to him through the second Brother: but if the eldest Son die without Issue, then may the youngest Son have a Formedon, in respect of the possibility that the youngest Son might have conveyed the descent of the land to him through the second Brother, etc. The heir shall have writthings. 14 If a man make a Feoffment with warranty and die, Co. l 11. b 4 in the Lo. Buckhursts Case. the heir of the Feoffor shall have all the writings, which the Feoffor himself might detain, albeit the heir hath nothing by descent, for the possibility of the descent afterwards. Grant of a remainder to the heirs of I. S. good. 15 If a Lease be made for life the remainder to the right heirs of I. S. (the same I.S. being then in rerum natura) it is good, Co. l. 2. 51. b. 1. Sir Hugh Cholmeleys Case. for the common possibility, that I. S. may die during the life of the Tenant for life. Co. Inst. p. 1. 378. a. 3. The Law considereth a child in ventre s●●●re. 16 Albeit Filius in utero matris is part viscerum matris (vide 3. Ass. Pl. 2. 22 Ass. Pl. 94. 22 E. 3. Tit. Corone 180. Stanford fol. 21. Co. l. 7. 8. b. 4. the Earl of Bedford's Ca ) yet the Law in many Cases hath consideration of him in respect of the apparent expectation and possibility of his birth for which see the opinion of Sanders and Browne in Stowells Case, for the avoiding of a fine; Pl. Co. fol. vide temps E. 1. Tit. Guard 153. & 31 E. 1. Tit. brief 873. for the Guard of such an infant; vide 38 E. 3. 7. & 41 E. 3. & 11 E. 3. Tit. voucher, that he shall be vouched in ventresa mere 3 El. Dier 186. An adulterer counsels the Feme to murder the Infant, when it should be borne, who doth it accordingly, in this Case the adulterer is accessary, yet at the time of the counsel given the Infant was in ventre sa mere, etc. Feoffment of Cestuy que use good. 17 If Cestuy que use after the Stat. of 1 R. 3. and before the Statute of 27 H. 8. had disseised the Disseisor of his feoffées; Co. l. 10. 49. in Lampets' Case. here the use is suspended, and depends in possibility to be revived by the entry of the feoffées. and yet if he make feoffment in Fee, that is good and shall bind, in respect that the Law hath consideration of that possibility of the use. A possibility ●ay have a ●eing and be forfeited. 18 H. possessed of an house for 31 years deviseth the profits thereof to I. durante viduitate, and after deviseth the term to R. and dies, Co. l. 10. 52. a. 3. in Lampets' Case. viz. Tr. 28 El. Rot. 1674. Harrington & Rudyards' Case. I. by the assent of the Executor enters and purchaseth the house in Fee of L. who covenants with I. that the house shall be free from all former bargains, etc. And in an Action of Debt upon an Obligation for the breach of covenants, the defendant pleads covenants performed, the Plaintiff assigns for breach the devise to I. and afterwards to R. and that after I. entering into that covenant I. had married O. upon whom R. entered, and thereupon the Plaintiff demurs: And the great Question in the Case was, whether (R. at the time of the making of the covenant having only a possibility) the covenant did extend unto it, or no: And it was resolved, that the covenant did extend to that possibility, and that the possibility had being for that purpose, and might be forfeited. 19 Vide infra M. 105. in all. ●ands may be ●tailed ●●gh given ● persons un●aried. 20 If tenements be given to a man and to a woman, Co. Inst. p. 1. 25. b: 4. which is not his wife; and to the heirs male of their two bodies, they have an Estate tail, albeit they be not married at that time, and so it is if lands be given to a man which hath a Wife, and to a woman which hath a husband, and to the heirs of their two bodies, they have presently an Estate tail, for the possibility that they may marry, etc. hearsay. 21 Such thing as one hath by credible hearsay (by the example of Litt. ●. 720) are not be neglected, but are worthy of observation, Co. ib. 377. b. 4 for the apparent possibility, that they may be true. 105 And therefore nothing to be void, which by possibility may be good. 1 Vide supra R. 104. e. 1. Co. Inst. p. 1. 25. b. 4. Co. l 50. b. in Lampets' Case. 2 If Lands be given to two husbands and their wives, Lands entailed to more than two good. and to the heirs of their bodies begotten, this is not a void Grant for the uncertainty, but they shall take a joint estate for life, and several inheritances, viz. the one husband and his wife the one moiety, and the other husband and wife the other moiety; So if lands be given to a man and two women, and the heirs of their bodies begotten, they have a joint estate for life, and every of them several inheritance; because they cannot have one issue of their bodies, neither shall there be by any construction a possibility upon a possibility, viz. that he shall marry the one first and then the other; So it is also when land is given to two men and one woman, and to the heirs of their bodies begotten, etc. Co. ib. 45. b. 3. 3 Regularly in every Lease for years the term must have a certain beginning, and a certain end; for so Bracton saith, A Lease for years good, though uncertain when it shall begin. Terminus Annorum certus esse debet & determinatus; And Littleton also hath these words, Pur terme de certaine ans; Nevertheless, although before the time it should take effect in possession or interest it do depend upon an incertainty, viz. upon a possibile contingent before it begin in possession or interest, or upon a limitation or condition subsequent; yet is it not void for that uncerrainty; as if A. seized of lands in fee grant to B. that when B. pays to A. xx shillings, that from thenceforth he shall have and occupy the land for 21 years, and after B. pays the twenty shillings, this is a good Lease for 21 years, from thenceforth, notwithstanding that uncertainty; because it was at first possible the twenty shillings should be paid, and that being paid, the Lease had from thenceforth a certain beginning, and therefore was not void but good ab initio, etc. So if A. leaseth his land to B. for so many years as B. hath in the Manor of Dale, and B. hath then a term in the Manor of Dale for 10 years, this is a good Lease by A. to B. of the land of A. for 10 years; for albeit there appear no certainty of years in the Lease, yet because by reference to a certainty it may be made certain it sufficeth. If the Parson of D. make a Lease of his Glebe for so many years as he shall be Parson there, this cannot be made certain by any-meanes, for nothing is more uncertain than the time of death, Terminus vitae est incertus, & licet nihil certius sit morte, nihil tamen incertus est hora mortis: but if he make a Lease for three years, and so from three years to three years, so long as he shall be Parson, this is a good lease for 6 years; for it is possible he may so long continue Parson there, and then it is good for so long, viz. first, for three years, and then for three years more; but for the residue it is uncertain; If a man maketh a Lease to I. S. for so many years as I. N. shall name, this is not void for the uncertainty; for when I. N. hath named the years, then is it a good Lease for so many years,; A man maketh a Lease for 21 years, if I. S. shall so long live; Here, albeit the end of his Lease depends upon an uncertainty, viz. upon the time of the death of I. S. which is uncertain, yet because it is possible at last to know the certain time of his death, and (by consequent) the determination of the Lease thereupon, the Lease is good ab initio; Notwithstanding that uncertainty, etc. Videl. 6. fol. 34, 35. in the Bishop of Bath and Wells Case. Gant to one i● time of va●ation good. 4 In the time of vacation a Grant made to a Covent is void, Littl. § 443. Co. Inst. p. 1. 264 a. 1. because the body Politic, which is capable, is not complete, but wanteth an head; yet if during the vacatlou, a Lease for life, or a Gift in tail be made, the remainder to the Abbot and his Successors, this remainder is good, because it is possible there may be an Abbot before the particular estate be determined: There is the like Law of a Mayor and Commonalty, etc. Attornment good though ●ncertaine. 5 If A. grant the Reversion of black acre, or white acre, Co. ib. 310. b. 2 and the Lessée attorn to the Grant; Here, nothing passeth at the time of the Attornment, and that also is only good in execution, and by the subsequent election of the Grantée; yet is not this a void Grant, nor the Attornment fruitless, because upon the Grantées election they may both be made good, etc. A remainder ●ay r●st in a person uncertain. 6 It is regularly true, that every remainder, Littl. §. 721. Co. ib. 378. a. 2. 3, 4. which commenceth by a Deed, aught to vest in him, to whom it is limited, when livery of seisin is made to him, that hath the particular estate; And yet if the person that is to take the Remainder be not in rerum natura, as if a Lease for life be made, the remainder to the right heirs of I. S. (I. S. being then alive) it sufficeth, that the inheritance passeth presently out of the Lessor, but cannot vest in the heir of I. S. For that (living his father) he is not in rerum natura, for non est haeres viventis, nevertheless, the remainder is good for the possibility that I. S. may die during the life of the Lessée: So if a man make a Lease for life to A. B. and C. and if B. survive C. then the remainder to B. and his heirs: here, albeit the remainder is not at the time of the Livery certainly in B. nevertheless the remainder is good for the possibility that C. may die before B. it being but a common possibility, that one may die before another. ●idem. 7. If Lands be devised to I. S. for life, Co. l. 1. 24. b. 4. in Porter's Case. upon condition that I. S. shall by the advice of Learned Counsel, settle the same Lands within convenient time for certain Uses, which (indeed) are prohibited by the Statute of 23 H. 8. cap. 10. Albeit such Uses are by that Act prohibited, yet if that Condition be not performed, I. S. forfeits his estate because they might have been settled by the advice of Learned Counsel, and by purchasing an Incorporation and a licence to settle Lands thereupon, etc. He may rest in person ●●certain. 8 If I covenant with I. S. that in consideration of fatherly affection, and for the advancement of my blood, Co. ibid. l. 1. 176. b. 4. Mildmayes Case. I will stand seized to the use of such of my sons, or such of my kindred as I. S. shall nominate; In this Case upon the nomination the use shall be raised: For the consideration is certain, and the person by matter ex post facto may be made certain. A possibility 〈◊〉 void, ●ough not as●●rable. 9 A man possessed of a term for divers years, Co. ibid. L. 4. 66. b 1. in Fulwoods' Case. deviseth the profits thereof to one for life, and after his decease to another for the residue of the years, and dies, the first Devisée enters by assent of the executor, and after he in the remainder during the life of the first Devisée assigns it to another, and after the first Devisee dies: Here, albeit during the life of the first Devisée, the second Devisée had no estate, that he could assign over (for the Devise to the first Devisee was (upon the matter) of all the term if he should so long live;) nevertheless the second Devise is not void for the possibility, that the second Devisée might over-live the first; Howbeit, that possibility he could not assign over, etc. ●educement of a Lease to certainty. 10 Every lease for years ought to have a certain commencement, Co. ibid. L. 6. 35. b. 4. The Bishops of Baths Case. but that is to be understood, when it is to take effect in interest or possession: For, if I grant to you, that if you pay unto me 20 l. at Michaelmas next, that then you shall have my Manor of D. for 21 years; here, it is uncertain, whether, that Lease shall ever have commencement or no; for (indeed) until the payment of the money it is no Lease; yet is it a good Lease in respect of the possibility that the money may be paid, for than it will have a certain commencement: So also the continuance of a Lease for years ought to be certain, yet if a man lease the Manor of D. to I. S. for so many years as I. N. hath in the Manor of S. and I. N. hath 10 years in S. I. S. shall have so many in D: So if a Lease be made to another during the minority of I. D. and he is ten years old, that is a good Lease for 11 years, if I. D. so long live; for these two last Leases are by reference reduceable to a certainty: In like manner, if a man make a Lease from St. Michaelmas for so many years as I. S. shall name, and I. S. names a certain term (in the life of the lessor,) this is a good lease for the possibility of rendering to a certainty, by matter ex post facto, viz. by the nomination, etc. Co. l 10. 50. b. 2 in Lampets ca 15 H. 7. 10. Pl. Co. 55. a. Colu. and Biv. Case. 11 If land be given to a married man and a married woman, Possibility of Marriage. and the heirs of their two bodies begotten, this is a good estate tail; for of necessity death will come, and it is a common possibility, that one may die before another, that then the Marriage may ensue, etc. 106 Id certum est, quod certum reddi potest. Co. Inst. p. 1. 96. a. 2. 1 If a man hold of his Lord by shéering all his Sheep in his Manor of D, when the Lord keeps sometimes a greater number, Service uncertain in one respect, certain in another. sometimes a less: Here, the service being referred to the number, is uncertain, and if so, than the tenant not distrainable for it (for it is a Maxim, that no distress can be taken for a service that is not certain) but the service being referred to the Manor, is certain, and so is the tenant distrainable for that uncertainty, because by that relation it becomes certain. Co. l. 8. 95. b. 4. in Math. manning's Case, & Lampets' Case. Co. l 10. 47. a. 4 2 If lessée for years deviseth his lease to A. for life, Term uncertain, made certain. albeit it is uncertain how many years A. shall hold it, yet is not the Devise void for such uncertainty: because when A. dies it becomes certain how many years A. was to hold it, and then also it may be certainly known how many, how many years the party, that is to have the subsequent interest therein, ought also to hold it. Co. l. 9 30. b. 4 The Abbot of Stata M●rcellaes Case. 3 When a Charter hath only a general reference to other Charters, which are upon Record, it is as much in law, Record implieth certainty. as if they had been all particularly recited, because they may be certainly known by the Record. Co. l. 47. a. 1. The ●arl of Shrewsbu●ies Case. 4 Qu. Eliz. grants to the Earl of Shrewsbury, Grants uncertain, made certain. Senesch Dominiorum sive Maneriorum suorum de Mansfield Bolsover, & Harfley, and no County is mentioned, where they lie; yet is not the grant for this uncertainty void; because albeit the Queen might have divers Manors in the same or other Counties of the same Name, yet because by some of the Clauses of the Patent, or by other circumstances, it might be understood what Stewardships she meant to grant, the letters patents were adjudged good, notwithstanding such uncertainty: If the King by his letters patents grant to another all the Manors and Advowsons', which were Priors of A. being a Prior Alien, or which were I. S. who was attaint, etc. such Grants are good, albeit the County is not named, because upon inquiry they may be certainly known, as it is adjudged 32 H. 6. 20, 21. So if the King grant to the Abbot and his Successors, that the Monks during the vacations shall have all the Temporalties of the Abbey, this is a good Grant, notwithstanding the uncertainty of not naming the County or Counties where they lie, as it was adjudged 39 E. 3. 21. & F. N. B. 33. T. So likewise in 23 E. 3. 21. b. The King grants unto the Queen all the possessions of a Barony (escheated) until Jo. of Gaunt might be able to govern himself, and it was adjudged good, etc. For in all such cases, if it may be discovered by any Clause of the Patent, by any circumstance, (as the Tenants Name, in whose possession it was, or the like,) by the Particular, or otherwise, what it is, that the King intended to grant, it sufficeth; And if such Patentée be impleaded, and the Plaintiff by reason of such uncertainty plead non concessit, and demanding Oyer of the Letters Patents demurs thereupon, it shall be adjudged against the Plaintiff; For it is matter in fact, what Manors, etc. pass, and for p●oof thereof such Clauses and circumstances, as aforesaid, shall be given in evidence, etc. 〈◊〉 Hospital ●●rtaine, ●●ugh not ●●lt. 5 A piece of Ground or Soil, whereupon an Hospital, Co. l. 1e 32. a. 1 The Case of Suttons Hospital. etc. is intended to be built, may in the Letters Patents of Incorporation be called an Hospital; albeit there be no building at that time founded thereupon, and that uncertainty shall not prejudice such a grant; because of the possibility, that it may be built thereupon, & by that means may be made certain. sureties pass ●●ogh uncertain. 6 If the King grant lands, Co. l. 10. 65. a. 3 Whistelers Cas●. which have come to his hands before, and grant over to the Grantée, tales libertates, privilegia, jurisdictiones, etc. as he that was last seized of the Lands had; here, albeit the King knew not the certainty of the Liberties and Privileges, yet the grant is good, and the grantée may require the Liberties and Privileges, that the other had before; because that uncertainty may be reduced to certainty by inquiry, or other circumstance. Vide the Case de Strata Mercella, Co. l. 9 24. & 18 El. Dier. 351. ●idie uncertain, made ●●rtaine by ●●●stance. 7 In Fogasses Case, Pl. 6. 2. 4. & 12 3. & 17. a. 3. albeit the quantity of the Woad was not known, when the Agreement was made with the Collector, and so (by consequent neither the subsidy, what money should be paid for it; yet because the Subsidy might afterwards be known by circumstance (viz. by weighing, whereupon the King might be entitled to an action for it) the agreement was adjudged good, and the Statute performed. If one demise all his Acres in D. to I. S. for years, rendering for every acre 12 d. the Lease is good, because the certainty of the Rent may be known by a Survey of the Acres, whereby the Lessor may be entitled to an action of Debt for the Rent, if it be arrear. If one give two acres to another, Habendum the one for life, and the other in Fee; it is uncertain which of them he hath for life, and which in Fee; but if afterwards the Grantée make feoffment of one of them, he shall be said to have Fee in that ab initio. So if one let black-acre, and white-acre to another for life, the remainder of one of them in Fee; here, it is uncertain, in which of them he hath fee: but if afterwards he licence the Tenant for life to fell Trees in white-acre, it shall be adjudged, that he had the remainder of that Acre ab initio. In Wheelers Case, 14 H. 8. H. 14. H. 8. 17. Br. Condition 67. The Grant of a term upon condition, that the Grantée shall obtain the favour of the Lessor, and shall pay so much as I. S. shall arbitrate, was good, when the condition was fulfilled: and the second Grant was adjudged void: And there it is holden fol. 21. that if one make a Lease for so many years as I. S. shall name, here this is uncertain at the beginning; but if afterwards I. S. name 20 years, it shall be good for 20 years from the beginning. P. 17 E. 4. 1. So also in 17 E. 4. in trespass for grain taken away, there the plaintff and defendant had bargained, that the defendant should go to the place where it grew, & see it, & if he liked it upon view, he should take it, paying the plaintiff 40 d. for every acre: this was there holden a good contract notwithstanding the uncertainty of the quantity of the Grain, and of the sum he should pay for it, because upon the Circumstance of measuring it, the certainty might appear: And so there, albeit this were a Conditional agreement and uncertain, yet it was held good justification, if he had presently paid for it, T. 9 H. 6. 27. Fitzh. Grants 7. Br. Patents 4. when he carried it away. In 9 H. 6. the King grants to the Duchess of York, quondam Insulam, etc. cum omnibus exitibus amerciamentis & proficuis omnium gentium residen, etc. de & infra Insulam praedict. in quibuscunque curiis nostris emergentibus, and there this grant is holden good, for albeit the King knew not at first what issues or amerciaments would be forfeited; yet because when they were forfeited, H 5. E. 4. fo. ultimo, and Br. Patent. 60. they might be certainly known, the Grant was adjudged good. So likewise in 5 E. 4. The King grants to Garter the Office of King of Heralds, cum feodis, & proficuis de antiquo, etc. here, in this Grant there was no certainty of the Fees and profits belonging to that Office, yet was the Grant adjudged good, because by inquiry they might be reduced to a certainty. Also in 30 H. 6. The King grants all such Lands, M. 30. H. 6. per Choke. as came to him by Attainder, etc. This Grant contained no certainty, yet it was held good, because it might be reduced to a certainty: So if the King will pardon all Riots; here, nothing is named in certain, yet is the pardon good. It is holden in 21 H. 6. that, P. 21 H. 6. 43. Fitz. Grants. 40. Br. Grants 123. and Contract 13. Perck. 17. c. if a Parson will grant all his tithe Wool of the next year, it is a good Grant, yet the quantity of the Wool is uncertain at the time of the Grant: So it is also, where one grants to another all the perquisites of his Court. If a man grant two acres (as before) the Habendum, the one for life, the other in fee, in this case, if the Tenant lose both these acres by default, he may have a Quod ei deforceat for the one, and a Writ of Right for the other, and by that means the certainty of the Grant is determined. If one grant a Rent-charge, Lit. cap. Rents fo. 40. & Fitz. N. B. 152. a. the Grantée may avow, or have a Writ of Annuity, and whether of these he will have is maintainable; and this Grant which was in that respect uncertain at first, is by that means reduced to a certainty, and good. So if one grant to another 20 s. or a Robe; M. 9 E. 4. 36. in Debt, and Abr. by Fitz. Der. ●9. Br. 12. Perck. 17. here, it is uncertain which he shall have, yet it being reducible to a certainty, by the Will of the Grantor, the Grant is good. If I have two Horses in my Stable, viz. a black and a white, and I give unto I. S. one of these Horses, this is uncertain; yet it is a good Grant; because by the Election of I. S. it may be made certain. Dier 91. a. 11. 1 Mar. 8 If I give unto you so many of my Horses, Uncertain certain b● gains. as may well be spared, this is void for the uncertainty; But if I give you one of my Horses, albeit this is also uncertain; yet because you may make it certain by your Election, the Gift is good: So if I promise to give for your Land so much as it is reasonably worth, this is void for the uncertainty; But if the judgement thereof be referred to a third person, who doth adjudge it; by that means it is made good, etc. 107 Res non per se invicem, sed per pecuniam estimantur, & non pecunia per Res. Diversity of a Condition. 1 There is a diversity, Co. Inst. p. 1. 221. b. 2. when the Condition is for the payment of money, and when for the delivery of a Horse, Robe, Ring, or the like: for where it is for payment of money, there if the Feoffée or Obligée accept an Horse, etc. in satisfaction, this is good: but if the Condition be for the delivery of a Horse, Robe, etc. or, etc. There, albeit the Obligée or Feoffée accept money, or any other thing for the Horse, etc. it is no performance of the Condition. A diversity of Conditions, when to do a Collateral act, and when to pay money. 2 In Peytoes' Case, in the 9 Report, there is a difference taken, Co. l. 9 79. a. 2. betwixt a Condition in a Deed to a Collateral act, as to be bound in a Statute to make a Feoffment to render a true Account, and the like; For there accord with Execution for money, or other thing, is not satisfaction to save the Forfeiture of the Condition; Dier 1. 4 H. 8. & 56. 18. 35. 7 H. 8. for the Contract being made by writing to do such a Collateral act, cannot (in such case) be altered without writing, according to Rule 27. And thus it is holden in 12 H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 2, etc. But when the Condition in the Deed (by the original Contract of the parties) is to pay money, there, by agreement of the parties any other thing may be given in satisfaction of the money: For, as the Philosopher saith, Nummus est mensura rerum commutandarum, which agrees with the Rule above; And in this sense it is true, quòd pecuniae obediunt omnia. But so it is not of other things: And it matters not, whether the money mentioned in the Condition be a Collateral sum, or parcel of the Obligation, or not: for if a man be bound by Obligation in 200 Quarters of Wheat, upon Condition to pay 20 l. the Obligor may by agreement betwixt them give unto him a Horse, Gold-ring, etc. in satisfaction of the money, albeit (in that case) the money be Collateral to the Obligation: And therefore if a man enfeoff another by Deed upon Condition, that the Feoffor shall pay a certain sum of money, etc. the Feoffor may (by agreement betwixt them,) give the Feoffée a Horse, Gold-ring, or the like, in satisfaction, and yet the money (in this case) is Collateral, having regard to the land: for if tender be made, and refusal, he shall never be compellable to pay the money; and therefore it is mere Collateral, Quia reprobata pecunia (in hoc casu) liberat solventem; And with this agrees Littl. fol. 79, in the Chapter of Conditions. So also if a man be bound by Obligation in 100 Quarters of Wheat upon Condition to pay 50 Quarters, he cannot give money or any other thing in satisfaction thereof, because the original Contract was not for money: So as when money is to be paid, any other thing may be paid in satisfaction; but so it is not of any other things; for than neither money, nor any other thing can be given in lieu thereof. 108 It favoureth mutual Recompense. Fee-simple without the ●ord Heirs. 1 Upon partition between Coparceners of Lands in Fée-simple, Co. Inst. p. 1. 9 b. 4. & 169. b. 4. Litt. §. 252. if the one (for owelty of partition) grant a Rent to the other generally, the Grantée shall have a Fée-simple in the Rent, without the word Heirs, because the Grantor hath a Fée-simple, in consideraon whereof he granted the Rent, Ipsae etenim leges cupiunt, ut jure regantur. Ibid. 13. a. 1. 2 If the heir of the part of the Mother of land, The heir of the Voucher shall sue execution. whereunto a Warranty is annexed, is impleaded and vouch, and judgement is given against him, and for him to recover in value; and dieth before Execution, the heir of the part of the Mother shall sue Execution to have in value against the Vouchée; for the effect ought to pursue the Cause, and the recompense shall ensue the loss. Co. Inst. p. 1. 21. b. 1. 3 If lands be given by these words, The word Frankmarriage create inheritance. (in Frankmarriage) according to the Rules of Law, then do these words create an estate of inheritance in special tail; For the consideration of Marriage is (in that case) more favoured in Law then any other consideration, in respect of the mutual recompense. Ibid. 47. b. 3. 4 The Lessor for years must be seized of the Lands demised at the time of the Lease made, The Lessor must be seized. for in every Contract there must be quid pro quo, because contractus est quasi actus contra actum; And therefore if the Lessor hath nothing in the Land, the Lessée hath not quid pro quo, nor any thing, for which he should pay the rent: And in that case he may also plead that the Lessor non demisit, and give in evidence the other matter. Ibid. 78. a. 2. 5 If the Father enfeoff his eldest Son, Purchase b●●● fide a voideth Wardship. or any of his younger Sons, or others for the making of his Wife a jointure, advancement of his Daughters, payment of his Debt of the like, and die, his heir within age, the heir shall be in Ward for his body, and a third part of the land, by construction of the Statutes of 32 & 34 of H. 8. but if his eldest Son or any of his younger Sons purchase Lands of the Father, which are holden by Knight-service, bona fide for a reasonable value, the heir shall neither be in Ward, nor pay Primer seisin, Leonard Loveys Case, Co. l. 10. 83. Ibid. 89. a. 4. 6 If a Guardian or a Bailiff receive the conts and profits of the Lands, and be rob without their default or negligence, A Carrier shal● answer Good rob. they shall be allowed them upon their Account; but it is otherwise of a Carried; H. Woodliefe & Curties. for he hath his Hi●e, and thereby implicitly undertaketh the safe Delivery of the Goods delivered unto him, and therefore shall answer the Value thereof, if he be rob of them. Ibid. 99 b. 4. Pl. 306. b. Sheringtons Case. 33 H. 6. 6. 39 H. 6. 29, 7 The Mesne ought to acquit men of Religion, Tenant in Frankalme● ought to be acquit. which hold of him in Frankalindigne, of all Services to the Lord paramount; for it is their duty to make prayers for their Founder, and his heirs, and in consideration of those prayers the Founder, etc. is bound to pay to the Chief Lord, all Rents and Services issuing out of that Land. 14 E. 3. Mesne 7. Ibid. 101. a. 2. 18 H. 6. 2. b. per Newton. 9 H. 3. Voucher 277. 8 If the Lord grant the Services of his Tenant by Homage Ancestrel, Homage Ancestrel, mixtures a Warranty in lan● the Tenant shall not be compelled in a per quae servitia to attorn, unless the Conusée will grant in Court to warrant the Land unto him; and if the Tenant vouch by force of this Warranty in Law, it is a good Counter Plea, that the Tenant or any one of his Ancestors, recessit de servitio suo, & fecit servitium suum A. B. sine aliqua coactione de sua propria voluntate. Ibid 102. a. 1. 9 If at a Sequatur sub suo particulo, No Warra● Cartae, or voucher after a recovery in value. both Tenant and Vouchée make default, and the Demandant hath judgement against the Tenant, and after brings a Scire facias to have Execution, the Tenant may have a Warrantia Cartae, or if he were impleaded by a stranger, he may vouch again; but if he had judgement to recover in value, he shall never have a Warrantia Cartae, or vouch again; for by this judgement to recover, in value, he hath benefit of the Warranty. Ibid. 102. a. 3. 10 The Lord that hath received Homage of his Tenant, being vouched, is thereby barred to disclaim. ●●ed eye for an 〈◊〉, etc. 11 By the Ancient Law of England, Ibid. 127. a. 3. if the Defendant in an appeal of Mayhem had been found guilty: the judgement against the Defendant had been, that he should lose the like member, that the Plaintiff had lost by his means as an hand for hand, an eye for an eye, etc. 40 Ass. 9 Mirror cap. 4. v. 5. Sect. 18. Britton cap. 25. fol. 144; 145. Fleta lib. 1. cap. 38. The issue entail not bar●ed without recompense. 12 In Littleton's Case, Ibid. 173. a. 1. §. 260. where the eldest Sister hath the entailed Lands, and the youngest the fée-simple Lands, if the youngest daughter alien part of the Land in fée-simple and dieth, so as a full recompense for the Land entailed descends not to her Issue, her Issue may wave the taking of any profits of the fee simple lands, and enter into the Land entailed: for the Issue in tail shall never be barred without a full recompense. Part of the ●●me no satisfaction. 13 Where the Condition is for the payment of 20 l. the Obligor or Feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole; because it is apparent, Ibid. 212. b. 4 Co. l. 5. 17. Pinnels Case. that a lesser sum of money cannot be a satisfaction for a greater. In Estate in●ile charged without fine or ●●covery. 14 It is commonly held, Ibid. 143. b. 1 that Tenant in tail cannot alien or charge the Land in tailed without fine or recovery: yet if a Disseisor make a gift in tail, and the Donée in consideration of a release by the Disseisée of all his right to the Donée, granteth a Rent-charge to the Disseisée and his heirs, proportionable to the value of his right, this shall bind the Issue in tail; albeit the Estate tail continue: And this is in respect of the natural recompense. ● Benefice charged with●●● the Pa●● 15 If there be Parson, Patron, and Ordinary, Ibid. 343. b. 4. and the Parson by the Ordinance and assent of the Ordinary grant an Annuity to another, having quid pro quo in consideration thereof, this shall bind the Successor of the Parson; without consent of the Patron. ●nnanty my be annexed to incorporal ●●●ngs. 16 Regularly a Warranty is only annexable to fréeholds or inheritances corporeal, yet to preserve mutual recompense, Ibid. 366. a. 4 it may also be annexed to frée-h●lds and inheritances incorporeal, which lie in grant as advowsons, and to Rents, Commons, Estovers, and the like, which Issue out of Lands or Tenements: And not only to such inheritances in esse, but also to Rents, Commons, Estovers, etc. newly created: As a man (some say) may grant a Rent, etc. out of the land for life, in tail, or in fee, with Warranty: for albeit there can be no title precedent to the Rent, yet there may be a title precedent to the Land, out of which it issueth, before the grant of the Rent, which Rent may be avoided by the recovery of the Land, in which Case the grantée may help himself by a warrantia cartae, upon the special matter, and so a Warranty in Law may extend to a Rent, etc. newly created, as in Case of a Rent granted upon exchange, or for owelty of Partition. warranty & ●es bind the ●eg. 17 King H. 3. gave a manor to Edmond Earl of Cornewal, Ibid. ●70. b. 1 Pl. 134. and 553, 554. and to the heirs of his body; saving the possibility of Reverter, and died, The earl before the Statute of W. 2. de donis, etc. by deed gave the said Manor to another in fee with Warranty in exchange for another Manor, and after the said Statute (in the 28 of E. 1.) dieth without Issue, leaving assets in fée-simple, which warranty and assets descended upon E. 1. as Cousin and heir of the said Earl, viz. Son & heir of H. 3. brother of Rich. E. of Cornewal, father of the E. Edmund: And it was adjudged, that the King as heir to the Earl Edmund was by the Warranty and assets barred of the possibility of Reverter, which he had expectant upon the said gift, albeit the Warranty and assets descended upon the natural body of E. 1. as heir to a subject, and E. 1. claimed the said Manor as in his Reverter, in Jure Coronae, in the capacity of his body Politic, in which right he was seized before the Gift. Ibid. 372. b. 4 Co. lib. 2. 16. Wiseman's Ca 18 If Prince Henry Son of H. 7. had made a Gift in tail, An entail remainder in the King cannot be barred● the Remainder to H. 7. in Fee, which Remainder by the death of H. 7. had descended to H. 8. so as he had the Remainder by descent, yet might Tenant in tail bar the Estate tail by a common Recovery, notwithstanding the Statute of 34 H. 8. 20. But if H. 7. in consideration of money, or of assurance of Land, or for other consideration by way of Provision, had procured Prince H. by deed indented and enroled, to have made a Gift in tail to one of his Servants and subjects for recompense of service or other consideration, the Remainder to H. 7. in Fee, and all this appear upon Record; This is a good provision within the said Statute, and the Tenant in tail cannot by a common recovery bar the Estate tail. Ibid. 384. b. 2 19 In a formedon in descender, it is a good plea to say, Warranty 〈◊〉 assets a good plea against the Issue in tail. that the Ancestor of the demandant exchanged the land with the Tenant for other lands taken in exchange, which descended to the demandant, whereunto he hath entered and agreed; or if the demandant hath not so entered and agreed then may the Tenant plead the Warranty in law, and other assets descended; for in such Cases, there ought to be quid pro quo. Ibid. 390. a. 4. 20 Tenant in tail maketh a feoffment in Fee with warranty, Remitter suspended by warranty an● assets. and disseiseth the discontinuée, and dieth seized, leaving assets to his Issue; some hold, that in respect of this suspended warranty and assets, the issue in tail shall not be remitted: but that the discontinuée shall recover against the Issue in tail, and he take advantage of his Warranty, if any he hath: And after in a Formedon brought by the Issue, the discontinuée shall bar him, in respect of the Warranty and Assets, and so (by such mutual recompense) every man's right is saved. Ibid. 23. 2. 21 If one make a feoffment in Fee without valuable consideration to divers particular uses, Use remains in the Feoffor. so much of the use as he disposeth not is in him, as his ancient use in point of Reverter: It is otherwise if he make such a feoffment for money or other valuable consideration. Co. l. 1. 24. 2. 3 Porter's Case. 22 If a feoffment be made to superstitious and unlawful uses, A consideration makes th● feoffees seise● to their own use. the Statute of 23 H. 8. 10. makes the uses void, but the feoffment remains good, and the feoffées shall stand seized to the use of the feoffor and his heirs; but if in that Case the Feoffor shall reserve 1 d. Rent, or receive from the Feoffées 1 d. consideration upon the feoffment, the Feoffées shall be seized to the use of themselves and their heirs. Co. ib. 106. a 4. 23 In Shelleys Case, albeit the Recoverée died before execution, Recovery i● value. yet the judgement being to recover in value, the Issue is thereby barred, because he is thereby to have recompense. Cited in the Rector of Chedingtons' Case. Co. l. 1. 154. a. 2 24 The Lord Paget, An use must have good consideration being seized of the Manor of A. B. etc. covenants with I. S. and others that in consideration of the discharge of his funerals, and payment of his debts and legacies out of the profits of his land, and for the advancement of his Son and others of his blood, he and his heirs would stand seized of the said Manors to the use of the said I. S. etc. for the life of the said Lord Paget, and after his death to the use of Ch. P. and others for the term of 24 years, and after the expiration or end of that term, then to the use of Sir William Paget his Son in tail with divers remainders over, and after the Lord Paget was attainted of treason; In this Case it was adjudged, that the term to Ch. P. etc. was void, because there wanted good consideration, in as much as Ch. P. etc. were strangers to the consideration aforesaid: But if he had made them executors, so that they might have been chargeable towards the payment of his debts, and so made privy to the consideration, than had such consideration been good, and the Estate made to them had also been good. ● general ●●sideration 〈◊〉 good. 25 An use cannot be raised by any covenant or Proviso, C. l. 1. 176. a. 1. Mildmays Case. or by bargain and sale upon a general consideration, and therefore if a man by deed intended and enrolled according to the Statute, for divers good considerations bargain and sell his land to another and his heirs, nihil inde operatur, for no use shall be raised upon such general consideration, because it appears not to the Court that the Bargainer had quid per quo; but if a good consideration can be averred, that shall suffice to raise an use, albeit no particular consideration be mentioned in the deed. Vide plus ibid. ● valuable desideration ●ust raise an 〈◊〉. 26 Tenant in tail, Remainder in fee, Co. l. 2. 15. a. 3 Wiseman's Ca. he in Remainder by deed indented and enrolled, in consideration that his Lands shall continue in his name and blood, and for divers other good considerations, covenants to stand feised to the use of himself and the heirs males of his body, and for default of such Issue to the use of Queen El. and her Successors, and after Tenant in tail in possession suffers a Common Recovery with voucher: In this Case, no use was raised to the Queen by the Indenture, for the words, for other good considerations, are too general to raise an use, without special averment that some good consideration was given; And that the land shall continue in his name and blood is no consideration to raise an use to the Queen: for there wants quid per quo, etc. And contractus dicitur quasi Actus contra Actum. The estate tail ●●ved until 1 ●●ersal of the erroneous ro●●very. 27 L. and M. joint-tenants for life, the Remainder to L. in tail, Co. l. 3. 3. 2. 3. The Marq. of winchester's ca Remainder to M. L. suffers a recovery erroneously and dies without Issue, and N. also dies; Here, albeit the recovery is erroneous (and by consequent not void but voidable by writ of error) yet so long as it continues in force, N. hath not right in the moiety of the Remainder in respect of the intended recompense: So also if Tenant in tail suffer a common recovery erroneously, and after disseise the recover or and die, his Issue shall not be remitted; for so long as the recovery remains in force the Estate tail is barred, by reason of the recompense by recovery in value. Recovery in ●he a bar 〈◊〉 the Issue. 28 Baron and Feme are joint-tenants for life, Co. l. 6. a. 2. Cuppledikes Case. Co. l. 6. 32. a. 2 Sir Will. Fite-Williams Case the Remainder to the husband in tail, the husband suffers a recovery as vouchée, this harres the Remainder, albeit the Feme joins not; for here was a lawful Tenant to the praecipe, and the husband coming in as vouchée comes in in privity of the Estate, and the recompense goes to the Issue in tail, but if the Femes inheritance had been joint with the Baron, it might be doubled whether the Issue bade been barred, yet then (it seems) he had been barred for the moiety, in respect of the recovery in value of the moiety. Vide 55. 90. Contribution. 29 If a man he seized of two Acres, Co. l. 3. 12. b. 4. Sir William Herbert's Case. the one of the nature of Borough-English, and binds himself in a Statute or recognizance, or if judgement in debt be given against him, and he die having Issue two daughters, who make partition: In this Case if the one be only charged, she shall have contribution and recompense against the other; for as one purchasor shall have contribution against the rest, Co. l. 3. 18. a. 4. Twines Case. & ib. 83 a. 4. and also against the heir, so one of these two heirs shall have it against the other, because they are in aequali Jure. Nature no good consideration within the Statute of ● 3 El. 5. 30 The words in the proviso of 13 El. 5. (concerning fraudulent conveyances) upon good consideration, & bona fide, shall not be understood, of Nature or Blood, but of some consideration of money, or other thing of value: for if one being indebted to 5 several persons, to each party in 20 l. in consideration of natural affection gives all his goods to his Son or Cousin, in this Case, in as much as the Creditors shall lose their Debts, etc. which are things of value, the intention of the Act was, that the consideration in such Case should be valuable; for equity requires, that such a Gift, which defeats others, shall be of as high and good consideration as the things, that are so defeated by it. Co. l. 4. 1. b. 2. Vernons Case. 31 If a man before the Statute of 27 H. 8. 10. Jointure made before marriage no bar of dower. in consideration of a Marriage after to be had with A. had made an Estate of certain lands to her for life, in full satisfaction of all the dower, which after marriage might accrue to her in any of his lands, and after they had intermarried, this had not been any bar of her dower at the Common Law, because she had not any title of Dower at the time of the acceptance of the satisfaction, but that accrued afterwards. Co. lib. 4. 121. a. 4. Bastard's Case. 32 In every Exchange rightly made this word Excambium imports in itself (tacitè) a condition and also a warranty, Exchange implies a warranty. the one to give a reentry, and the other a voucher and recompense, and all in respect of the reciprocal consideration, the one land being given in exchange for the other: but this is a special warranty; for upon the voucher (by force thereof) he shall not recover other land in value, but that only, which was so given by him in exchange, because in as much as the mutual Consideration is the Clause of the Warranty, therefore it shall only extend to the land reciprocally given, and not to any other land. Co. l. 5. 87. a. 2. Blumfields ca 33 Two are bound in an Obligation jointly and severally, The Obliger dying in pr●son satisfies not the debt. one is sued and in execution, so is the other; the first escaps, the other brings an Audita querela; here the Audita querela lies not; for the Action against the Sheriff upon the escape is not satisfaction of the Debt, because he may he worth nothing, and if both had been sued by one writ, and several praecipies, the entry shall be, that there be one execution, viz. with satisfaction; for they shall both be in execution: If the Conusor of a Statute Staple or Merchant escape, his lands and goods may be extended, so it is also if he dies in prison; for execution of the body is not satisfaction: for there is a difference betwixt execution, which is valuable, and which is not; valuable execution (by the Common Law) cannot be had twice, as in eviction of lands executed, it is otherwise of invaluable satisfaction: Also no new can be, where execution was final before, but there may be where execution was quousque as in the Case above. Co. l. 5. 94. á. 1. Barwicks' Ca 34 E. 6. demises for 21 years, Void consideration make the lease void. Queen El. leases the reversion for 21 years to B. who makes several leases in futuro, and 23 El. upon consideration of surrender the Queen grants to the said B. for 21 years, and 26 El. upon consideration of the surrender of the letters Patents of 23 El. she grants to him for three lives from the day of the making: Here, the demise for three lives is void, being made upon consideration of the surrender of the letters Patents of 23 El. which were void, they being upon consideration of the whole Estate, which was not performed, part being leased out to divers before. Co. l. 7. 17. a. 1 The Case of Swans. 2 R. 3. 15, 16. 35 The Custom in Com. Bucks is, A signet for the nest▪ that if Swans breed upon any man's ground there the owner of the ground may take the third Signet in them of the ground where they did so breed; and it was adjudged a good Custom and reasonable, because there is quid per quo. The Lord Stranges' Case in 2 R. 3. 15, and 16. cited in the Case of Swans. Co. 10. 37. b. 2 in Mary Porting●ons Case. 36 judgement given against Tenant in tail with voucher and recompense in value shall bind the Estate tail, Taile dock by recovery i● value. notwithstanding the Statute de donis, 13 E. 1. and by such recovery in value the Tenant in tail shall have a formedon of the land so recovered in value, as it was holden 15 E. 3. Brief 324 vide plus in the Book at large: And there is observed, that albeit the docking of an Estate tail was never thought of by the Sages of the Law until 12 E. 4. yet long before that time the opinion of the judges was that it might be so barred in respect of the recompense of recovery in value. Infant spellable ●●●urn. 37 In a per quae servicia against an Infant, Co. l. 9 85. a. ● who hath the Tenancy by descent he shall not have his age but is compellable to attourn; because at first the Lord departs with the Land in consideration that the Tenant shall hold of him, and shall do him services, and pay unto him a yearly Rent: For the Tenant is called in Law Tenant peravaile, because the Law presumes, that he hath benefit and avail above the services that he doth and the Rent that that he pays to the Lord; And therefore it is against Reason, that when the heir hath the Tenancy peravaile by descent, that he shall not pay the yearly Rent, etc. which was reserved upon the creation of the tenancy: And therefore Attornment by an Infant is good, which was the principal Case there resolved, he being compellable to attourn in a per quae servicia (as before is said) upon the reason aforesaid. 〈◊〉 by far● not guar●●. 38 A Guardian shall not be punished for Waste done by a Stranger, but the former shall, F. N. B. 60. g. because (as is supposed) he receives profit out of the farm, and may therefore have an action of Trespass against the stranger. 〈◊〉 of Mes●●h ●●gh ser● done. 39 Albeit the Mesne have paid the services to the Lord Paramont, Ibidem 138. b. yet if the Tenant be afterwards distrained for the services, he shall have a writ of Mesne against the Mesne for it, but whether he shall recover damages, quaere; yet it seems he shall have damages, because the Mesne shall have damages against the Lord Paramount, if he will put his cattle into the pound for the Tenant, and sue Replevin: And yet nient distrain in his default, is a good plea in a writ of Mesne. ●●y A●●l Parson razors. 40 A writ of Annuity is maintainable against the Parson upon his Predecessors grant by assent of Patron and Ordinary, Ib. 152. g. & 1. and likewise upon an Ordinance made by the Ordinary without the Patron, if he have quid pro quo; So it is also by the Parson against the Vicar upon the Ordinaries Ordinance; if he have quid pro quo. Trespass ●●cord not ●ervise of ●●rament. 41 When a trespass is done an Action conceived for it, Pl. 6. a. 1 F●gassaes Case. a concord executory pleaded is no bar thereof; For there being a wrong done and not denied, it must be answered with recompense, and then the Concord Executory is not any recompense de facto, nether is there any Action given thereupon to compel the party to make recompense, and so he is without recompense, and destitute of means to recover any: But upon an Arbitrament where the sum is awarded in recompense to be paid at a day to come, that is a good bar, because he may have an Act of debt is for at the day limited, and so the Trespass is converted into another thing by the Arbitrators, who are judges thereof, and so it is answered with Action, which countervails satisfaction in deed. ●compence ●●lue. 42 In a Praecipe the Tenant voucheth, Co. Inst. p. 1. 393. a. 2. and at the sequatur sub suo periculo, the Tenant and the vouchée make default, whereupon the Demandant hath judgement against the Tenant; And afterwards the Demandant brings a scire facias against the Tenant to have execution, in this Case the Tenant may have a Warrantia Cartae; And if in that Case a Stranger had brought a praecipe against the Tenant he might have vouched again, for by the judgement given against the Tenant the Warranty lost not his force: But in such Case if the Tenant had judgement to recover in value against the vouchée, he shall never vouch again by reason of that Warranty, because he hath had recompense by taking advantage of the Warranty. 43 If an Executor redeem goods pawned by the Testator to the value of the goods, Dier 2. 3. 6 H. 8. he may retain those goods, Executor redeems a pawn. and they shall not be assets in his hands; for a man ought to be recompensed for that which he hath lawfully disbursed, As a Disseisor who pays Rend chargeable upon the Land shall have it recouped in damages: Likewise if the Executor pay with his own money the debt of the Testator, he may retain so many of the goods, as amount to the sum or sums so disbursed by him, and they shall not be assets in his hands. Dier 35. 28. 29 H. 8. 44 A man recovers in a Writ of entry in the Post against Tenant in tail upon a voucher and recovery in value against the Common vouchee, and before execution sued the Tenant in tail dies, Recovery in value. and his Issue enters; In this Case, the recoveror may well enter upon the Issue, for the Issue cannot falsify this recovery, because of the recovery over in value. P. Fitzherbert & Baldwin, sed Shelley è contrà. Dier 90. b. 8. 1 Mar. 45 If I Bargain and fell all my Trees in such a Close: Quid pro q● an no mention is made of a sum of money for the consideration, or if it be not said, for a competent of money; in this Case, nothing passeth, because there is not Quid pro quo, which ought to be in every contract. 46 The servant of A. was arrested in London upon Trespass, Assumpsit. and two, Dier 272. 31. 10 El. who knew his Master bailed him, afterwards A. promised them for their friendship to save them harmless from the damages and costs, etc. In this Case, if they be afterwards charged, an Action upon the Case lieth not, because there was no consideration, for the bailing was on their own heads, and was executed before the Assumpsit; But if the Master had requested it before, and assumed after ut supra, it seems to be otherwise: As in considerarion that you have married my Daughter at my request, I will give you, etc. This is a good consideration, because the marriage ensued my request. Hob. 6. 4. 18. & 88 47 Vide Hob. 4. Lané & Malorie in Assumpsit, Assumps●● the consideration was the delivery of two Statutes Staple to the Defendant: Also Hob. 18. Woolastons Case, in Assumpsit, the consideration was a longer day: And 88 Nichols & Raynored, the consideration was a promise for promisse, which must be at the same time, otherwise they are nuda pacta: Likewise 88 Brinsley and Partridge, the consideration a former debt promised upon account. Hob. 118. Shelton. 48 Every Rate or modus decimand. Tithe. by prescription is a discharge of the natural title. 109 De minimis non curat Lex. Co. l. 5. 56. b. 3. Knight's Case. 1 In Office by commission under the Exchequer seal is enough to entitle the King to a Chattel. Chequer seal. Co. l. 6. 42. a. 2 S. Anth. Mildmays Case. 2 The Law favours Estates tail in possession but gives no regard to Remainders or Reversions expectant upon an Estate in tail, Rev. or R● upon an th● tail not ●luable. for it is adjudged in Caples Case in the 1 Report, that if Tenant in tail suffer a Common Recovery, that shall not only bar the Estate tail, and the Remainder or Reversion, but also a Rent, which he in Remainder or Reversion hath granted; So likewise was it adjudged in 12 El. betwixt Terling and Trafford in the King's Bench, that a Reversion or Remainder expectant upon an Estate tail shall not be assets to the heir in debt upon an obligation made by his Father: Also Hil. 14 El. it was resolved by all the justices of C. Pl. in Copwoods' Case, that if there be tenant in tail, the remainder to the right heirs of I.S. and Tenant in tail suffer a common recovery, I.S. being then in life, this shall bar the remainder, albeit it were in abeyance and consideration of Law, which the Law usually favours: but de minimis non curat lex. ●●se for years ●●eeble ●●te. 3 If Lessée for years pay a Rent seck, Co. l. 6. 57 a. 4 Bredimans' Ca. it is not seisin required in an Assize, against the Tenant of the Franktenement in respect of the meanness and imbecility of his Estate; For at the Common Law he could prejudice nor draw into question the Estate of the Franktenement, nor before the Statute of Gloucester could be received, albeit a recovery were had against the Tenant of the Franktenement by agreement; neither could he falsify a recovery before the Statute of 21 H. 8. and all this by reason of the feebleness of his Estate. 〈◊〉 attaint. 4 In Trespass the Defendant pleads Villeinage in the Plaintiff and he was found free and had 2 s. damages given him, F. N. B. 107. l In this Case the Defendant shall not have an attaint for the finding of the Plaintiff Free, because the damages are so small. ●dition in 〈◊〉 broken 〈◊〉. 5 There is a condition in Law annexed to the keep-ship of a Park, Litt. §. 378. Co. Inst. p. 1. 233. a. 4. viz. that if he do not well and lawfully keep the Park, it shall be lawful for the Grantor and his heirs to enter: But this must be understood with a distinction; For if the keeper doth not attend on the Park one, two, or, etc. days this is no forfeiture of his Office, but if in his default any Dear be killed, whereby a damage comes to the Lord, that is a forfeiture; For non-user of itself without some special damages is no forfeiture of private Offices, but non-user of public offices, which concern the administration of justice or the Common Wealth, is of itself a cause of forfeiture. ●●covery not ●lable by 〈◊〉 out●●y other●●. 6 If a Recovery be had against a man in a praecipe by default, when he is out of the Realm, Co. ib. 260. b. 3 he shall not (as it seems) avoid it by writ of Error, for so a man might be infinitely delayed of his Frée-hold and Inheritance, whereof the Law hath so great regard: But out-lawry in a personal Action shall be avoided in that Case, quia de minimis non curat Lex, and otherwise he should be without remedy: whereas in the other Case the Tenant may resort to his writ of higher nature, or a quod ei deforceat for his remedy. ●●●sion up●● Estate 〈◊〉 of no va●●● Law. 7 If Lands be given to a man in tail, Co. ib. 172. b. 3 who hath as much Land in Fée-simple, and he die leading Issue two Daughters, who make partition, so as the Land in Fée-simple happens to the youngest Daughter: Here, if the youngest Daughter Alien the Fée-simple Land and die, her heir shall enter for a pur part upon the entailed Lands: And so it is also if the youngest Daughter had granted her part to another in tail: For the Reversion expectant upon an Estate tail is of no account in Law, because it may be cut off by tenant in tail. ●●covery 〈◊〉 or de●ging of ●●●a●y. 8 If a man be seized of Lands in Fee and hath Issue two Daughters and make a Gift in tail to one of them and die seized of the Reversion in Fee, which descends to both Sisters, Co. Inst. p. 1. 174. b. 1. and the Donée or her Issue is impleaded, she shall not pray in aid of the other Copercener either to recover per rata, or to deraigne the Warranty paramount, for that the Reversion is not of any esteem in Law, and the other Sister is a Stranger to the Estate Taile, whereof partition neither was nor could be made. Hob. 214. 9 The Earl of Somerset had obtained a grant of the licence of wines for years, and took it in the name of Sir John Daccombe, Wine. Licence. in trust for him; Now the Question was, whether or no, by the Earl's attainder of felony the lease was forfeited; And by the opinion of all the judges it was forfeited, and afterwards it was so resolved also in the Exchequer; viz. in Cases of Chattels real and personal, and things in Action of that sort. 110 In Actions the Law yields favour, when for the doing of them there is, 1 Necessity. Co. Inst. p. 1. 48. b. 3. 1 If a man maketh a Charter of feoffment, Livery in view. and delivers seisin within the view, the feoffée dares not enter for fear of death, but claims the same, this shall vest the frée-hold and inheritance in him: Albeit by the livery no Estate passed to him neither in deed nor in Law, and this is by reason of the necessity; So as such a claim shall sorve, as well to vest a new Estate and right in the feoffée, as in the Common Case to revest an ancient Estate, and right in the disseisée, etc. And so note, that (for necessities sake) a livery in Law shall be perfected and executed by an entry in Law. Lit. § 179 Co. ib. 119. a. 3 2 If a man let land to another for life, saving the Reversion, A reversion vested by claim only As also an ●vowson. and a Villain purchase the Reversion of the Lessor; In this Case the Lord of the Villain may presently come to the land and claim it at the Lord of the Villain, and by this claim the Reversion is forthwith in him, for he cannot enter upon the Tenant for life, and if he stay till after his d●ath, than he may perhaps come too late, for the Villain may have granted ●t to another; So it is also where a Villain purchaseth an Advowson: for if the Lord claim it at the Church, it shall be thereby vested in him; Litt. §. 180. Co. ib. b. because if he should stay until the incumbent die, and then present his Clerk, the Villain might grant it away before, and so the Lord should be outed of his presentment. Co. ib. 13. a. 1. 3 In a writ of right of Dower brought in the Court of the heir, Protections not allowable a protection is allowable, because the proceed there may be speedy, the Court being kept every three weeks; but in a writ of Dower unde nihil habet, no protection is allowable, because the Demandant hath nothing to live on: So also in a Quare Impedit, or assize of darreine presentment a protection lieth not for the eminent danger of the laps, nor yet in a Quare non admisit, because it is grounded upon the Quare Impedit. Co. ib. 42 a. 3 & Co. l. 7. 7. a. in 1 Milbornes' Case, also 12 E. 3 dist. 170. & 11 H. 7. 5. 4 For a Rent or service the Lord cannot distrain in the night, Distress in the night. but in the day time only, and so it is also of a Rent-charge; but for damage fesant one may distrain in the night, otherwise it may be the beasts will be gone before he can take them: And with this accords 10 E. 3. 21. See Mackallies Case Co. l. 9 66. a. 2. Vide infra R. 128. E. 2. Co. Inst. p. 1. 172. a. 2 5 The full age of an Infant to make all his Acts good is 21 years, An infant bound in 〈◊〉 Cases. yet an Infant may bind himself to pay for his necessary meat, drink, app●●●, necessary physic, and such other necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterwards, but if he bind himself in an Obligation or other writing with a penalty of the payment of any of these, that Obligation shall not bind him: Also other things of necessity shall bind him, as a presentation to a benefice, for otherwise the last would incur against him. ●●ne upon ●●ndition resisted but not as it was at the time of the gran●. 6 Regularly it is true, that he who entereth for a Condition broken shall be seized in his first Estate, or of that Estate, Co. ib. 202. a. 4 which he had at the time of the Estate made upon Condition; yet if Cestuy que use after the Statute of R. 3. and before the Statute of 27 H. 8. had made a feoffment in fee upon condition, and after had entered for the condition broken; In this Case, he had but an use, when the feoffment was made, but now he shall be seized of the whole Estate of the land, And this is for necessity, because by the feoffment in fee of Cestuy que use, the whole Estate and right was devestes out of the feoffées, and therefore of necessity the feoffor must gain the whole Estate by his entry for the condition broken. Claim may be made where entry is not lawful. 7 In some Cases (for necessities sake) a continual claim may be made by him that hath right, and yet cannot enter; Co. ib. 150. b. 2 As if Tenant for years, Tenant by Statute Staple, Marchant, or Elegit be outed, and he in the Reversion disseised, the Lessor or he in the Reversion may enter to the intent to make his claim, and yet his entry, as to take any profits, is not lawful during the term: And in the same manner the Lessor or he in the Reversion in that Case may enter to avoid a collateral warranty, or the Lessor in that Case may recover in an Assize; and so (as some have holden) may the Lessor enter, to avoid a descent or a warranty. Claim may be where entry not lawful or peril●●s 8 If the Disseisée make continual claim, Co. ib. b. 3. and the Disseisor die seized within the year, his heir within age, and by office the King is entitled to the wardship, albeit that entry of the Disseisée be not lawful, yet (for necessities sake) he may make continual claim to avoid a descent: So also where entry is lawful, Litt. §. 419. but for fear the Disseisée dare not enter, in this Case claim as near to the house and lands as he dare go amounts to an entry and shall vest the possession and seisin of the tenements in him, as well as if he had entered indeed; Litt. §. 434. So it doth also if (in such Case) it be done only by his servant or Bailiff, in Case the disseisée himself le languisant or a Release, so that he cannot claim the tenements himself. Where wager of Law. 9 In an Action of debt by a Gaoler against the prisoner for his victuals, the defendant shall not wage his Law; Co. ib. 295. a. 4 for he cannot refuse the prisoner, and ought not to suffer him to die for default of sustenance, otherwise it is for taking a man at large. Where wager of Law. 10 In an Action of debt brought by an Attorney for his fees, Co. ibidem. the Defendant shall not wage his Law, because he is compellable to be his Attorney: And so if a servant be retained according to the Statute of Labourers, in an Action of debt for his salary, his Master shall not wage his Law, because he was compellable to serve, otherwise it is, if he be not retained according to the Statute. A rent in two Counties in●●e. 11 If a man be seized of two Acres of land in two several Counties, Co. ib. 153. b. 4 and maketh a lease of life of both of them reserving two shillings Rend, in this Case, albeit several liveries must be made at several times, yet it is but one entire Rent in respect of the necessity of the Case, and he shall distrain in one County for the whole, and make one avowry for the whole. A condition good by necessity. 12 B. seized of a Manor with an Advowson appendent, Co. l. 2. 77. b. 1 The Lord Cromwel's Ca. by indenture bargains and sells it to A. and covenants to suffer a Common Recovery to the use of A. in fee, rendering to B. 42 l. per annum, and also to levy a fine to A. and that A. shall render by the said fine the said Rent; provided that A. shall grant the Advowson to B. for life, The recovery is had, B. and A. levy the fine to P. who render the Manor with the Advowson to A. and the Rent to B. proclamations pass, A. dies before the grant of the Advowson, the Church becomes void in the life of B., E. enters as heir of A, and B. enters for the Condition broken; In this Case it was objected, that the conusance of B. had extinguished the Condition, but one reason amongst the rest against that was this, that the render of the Rent could not have been made to him; And albeit a Fine be of so high a nature, that it will not permit a naked Averrement against the purport and conusance thereof, yet when the Law requires one for necessity or conformity to join with another in a Fine, it permits him also to show the truth of the matter to avoid prejudice and conclusion. Vide ibid. plus upon the same ground. Co. l. 3. 73. b. 1 Westbies' Case. 13 If the Sheriff hath in his custody divers persons in Execution, The Sheriff is to take notice at his peril, who are in execution. and die, and afterwards a new Sheriff is made, it behoves the new Sheriff to take notice at his peril of all the Executions, which are against any person, that he finds in the Gaol, and this is for necessity; for there is none to make delivery of them, or to give him notice, who are in Execution, and who not: And it is no mischief to the Sheriff, if he keep them safe, until he hath perfect knowledge of all the Executions; But if he may with impurity suffer suffer such as are in Execution to escape, great inconvenience would ensue thereupon. Co. l. 5. 40. a. 4. & b. 3. Dormers' Case. 14 Albeit (regularly) a Writ of Entry in the Post, A Writ of Entry upon an Advowson, &c cannot be of an Advowson, as appears by the Statute of W. 2. cap. 5. 4 E. 3. 162. & 14 H. 4. 33. Nor of a Common of Pasture, as also appears 4 E. 3. 146. & 27 H. 8. 12. yet for a Common Recovery (being a common assurance, and by consent of parties) to cut off an entail, the Law (for necessities sake) permits it; for otherwise there could be no assurance of an Advowson, Common in Grosse, etc. to bar remainders or reversions expectant upon an estate tail. Co. l. 5. 109. b. 4. Foxleys' case. 15 If a Felon be arrested for felony and as be is in conveying to the Gaol, he flies from them that convey him, No felony to kill one in pursuit. and in the pursuit they cannot re-take him without killing him, and so they do kill him: If the whole matter and also the flight be presented before the Cor●ner, or any other having authority to inquire of Felonies, albeit the party was so killed, yet he shall forfeit all his Goods and Chattels, because they were urged to do it by necessity: And with this agrees 3 E. 3. Coron. 287, 312, & 328. And there it appears that it is not Felony in those that pursue him. So 3 E. 3. Forf. 25, if an true man kill a thief, that would rob him (if the thief go not back) the true man shall forfeit nothing for the same reason. Co. l. 6. 21. b. Butler and Goodals Case. 16 Albeit by the Statute of the 21 H. 8. Exceptions out of the Stat. of Nonresidence. of nonresidence the Parson ought to dwell upon his Rectory, viz. in the Parsonage House, and not in any other House, though it be within the Parish; (for the Statute intends not only serving of the Cure, or for Hospitality, but also for the maintenance of the Houses and habitation of the Parson, not only for himself, but likewise for his Successors, that they may also maintain Hospitality there,) yet lawful imprisonment without Covin, or if there be no Parsonage House to live in, are good excuses, of nonresidence; and it was held in the Exchequer, Tr. 39 El. that sickness without fraud is also a good excuse, viz. where the patiented removes for advice in Physic bona fide, for better air, and for the recovery of his health; for these cases are exceptions out of the Statute by construction of Law. Co. l. ●. 47. a. 1. Dowdales' case. 17 In Debt against Executors, A Place certain being pleaded for necessity, restrains not Jurors verdict. the Defendant pleads fully administered, the Plaintiff replies, that he had Assets in Exeter, and the jury finds Assets in Ireland, and it was adjudged for the Plaintiff; For when the place is material, as when it is parcel of the issue, there the jurors cannot find the point in issue in any other place; for by special pleading the point in issue is restrained to a certain place; But when the place is only named for necessity and conformity, and is also parcel of the issue, there the jurors may find Assets in any other County or place, than where they were alleged in the Replication: So also in 10 El. 271. Dyer, in Debt against the heir, he pleads riens per descent generally, in this case the Plaintiff cannot reply in so general a manner, for then no trial could be made thereof, but in such case for conformity and necessity of a trial, he ought to name a certain place, as he did (in that case) viz. in a Parish and Ward in London, and upon evidence given by the Plaintiff the jury found Assets in Cornewal, and it was adjudged good; for the Law is, that the Plaintiff shall have in Execution all the Lands that the heir hath; And therefore (in such case) a certain place is named for necessity, yet the jurors may find all that, which by the Law shall be chargeable in such case, in what Town or County soever it be. 〈◊〉 of rent ●y the Feoffor ●●od. 18 In Bredimans' Case in the 6 Rep. it was said, Co. l. 6. 58. a. 1. Bredimans' case that if there be Lord and Tenant, and the Tenant make Feoffment in Fee, here before notice and tender of the Arrearages the Feoffor may give Seisin of a Rent, because he is Tenant as to the Avowry, 8 H. 6. 18. for in such case if the Lord avow upon the Feoffée, before tender of the arrearages, he shall lose them, as it is agreed in 7 E. 3. and 7. H. 4, etc. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor, for that reason at the Common Law such Seisin by the Feoffor (necessitas causa) was good. 〈◊〉 Quare Im●●● against ●e King or 〈◊〉. 19 Regularly, Co. l. 7 26. b. 3. Hall's Case. a Quare Impedit brought against the Bishop and Incumbent, without naming the Patron, abates; yet if the King presents to a Benefice, and his Clerk is admitted, instituted, etc. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent, for it lies not against the King: So it was▪ also of the Pope, if he had usurped, 12 H. 8. 12. 4 H. 7. 15, etc. ●n Vicar ge●●●al shall not ●●●fie, but in 〈◊〉 of neces●● 20 Albeit, Co. l. 8. 69. a. 1 Trollops Case. (regularly) the Vicar general cannot certify excommunication, yet he shall certify it, when the Bishop is in remotis aagendis, viz. beyond Sea in the King's Service, but the Court must be acquainted therewith by matter of Record, viz. by Writ out of the Chancery to direct them, and not by the surmise of the party, and then for necessity (which is always the Law of time, for necessitas est lex temporis) the Certificate of the Vicar General shall be allowed because no other can then do it; for he only ought to certificate, to whom the Court may write to absolve the party, as the Bishop, or the Chancellor of the Universities. Fee-simple ●●th out of 〈◊〉 ●ing by ●●●essary with●● Office, etc. 21 Reversion in the Queen upon an estate tail, she grants it to T. in tail, upon Condition, that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case. at the receipt of the Exchequer, he shall have the said Reversion in Fee, the Condition is performed, the tenant in tail levies a Fine, and his issue is barred; And in this case the principal point was, whether by the Condition performed, the Reversion passed to T. And it was held, that presently upon payment of the 20 s. by operation of Law the Fee was davested out of the Queen, and vested in T. And this by necessity, for if it should not vest at the time of the Condition performed, it would never vest; And therefore, if in this Case either Office, Petition, Monstrance de droit, or other thing should be requisite, that would make the Queen's Grant void, and would dis-able the Queen to make such a Grant; And with this agrees the Lord Lovels Case in the Commentaries; for there it is said, when the Condition is performed, the Fée-simple shall be immediately out of the King, without Petition, Monstrance de droit, or other circumstance, for if he must tarry such circumstances, then can it not vest presently, and (by consequent) shall never vest; because if the estate be not enlarged at the time of the enlargement appointed, then shall it never be enlarged; And therefore in such Cases for necessity the Fée-simple passeth out of the Queen without any such circumstances: with this also agrees Isabel Goodcheaps Case, (49 E. 3.) who being seized in Fee of an House in London, holden of the King; deviseth it to Richard Goodcheap, and the heirs of his body, and for want of such issue to be sold by her Executors, and she makes W. D. W. W. and I. de T. her Executors, and dies without heir, Rich. Goodch. dies without issue, whereby the House escheates to the King, and after one of the Executors dies, W. W. refuseth, and W. D. sells the House, and here the question was whether or no the Sale by one Executor was good, but it was agreed by all, that if the Sale were good, it shall divest the House out of the King, and the cause thereof is by necessity of Law; for if the Sale did not divest the House at the time of such sale, then could there be no Sale at all, and the Executors, who had but a power, could not have any petition, Monstrance de droit, or other remedy. Co. l. 8. 143. a. 2. Doctor Druries' Case. 22 There is a diversity betwixt mean acts done in Execution of justice, which are compulsive, and acts, which are voluntary; A diversity betwixt acts compulsive, and voluntar acts. And therefore if erroneous judgement be given in Debt, and the Sheriff by force of a Fieri facias, sell the Defendants term, and after the judgement is reversed by a Writ of Error, yet the term shall not be restored, but only the sum, etc. But if a Capias utlagatum be awarded, whereby the Sheriff is commanded to take the body, ut bona & catalla, quae per inquisitionem invenerit in manus nostras capias, & de vero valour, etc. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the outlawed person, and sells them, and after the Out-lawry is reversed, in this case the party shall be restored to his Goods and Chattels, because the Sheriff was not commanded, nor compelled by the King's Writ to sell them. Co. l. 9 49. a. 4. The Earl of Shrewsburies' Case. 23 King James grants to the Earl of Shrewsbury the Stewardship of the Manors of M. and B. An Earl may make a Deputy. but in the Patent power of making a Deputy was omitted; nevertheless it was adjudged, that he might make one; for if such an Office descend to an Infant, Idiot, or man of non sane memoriae; they by necessity ought to exercise it by Deputy; So an Earl for the necessity, that the Law intends of his attendance upon the King and the Commonwealth, this Stewardship of a base Court shall be exercised by Deputy. Co. l. 9 66. a. 1. Mackallies ca 24 An arrest in the night is lawful, An arrest in the night la●ful. as well at the suit of a Subject, as of the King, for the Officer ought to arrest him, when he can find him, otherwise he may perhaps never arrest him, for Qui malè agit odit lucem, and if the Officer do not then do it, the Plaintiff may have an Action upon the Case against him and recover his loss in damages; Therefore by necessity an arrest in the night is lawful. Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus, An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day; but Ministerial acts may in some Cases be lawfully executed upon that day (as an arrest) for otherwise perhaps they might never be executed, and Christ permits Works of Necessity to be done upon that day, bonum est benefacere in Sabbato. Executors may sell lands in their own names. 26 If Attorneys have power by writing to make Leases by Indenture for years, etc. Co. l. 9 77. a. 2 in Combs Ca They cannot make Indentures in their own Names, but in the Name of him that gives them warrant: But if a man by his will in writing devise, that his Executors shall sell his Land and die, in that Case the Executors in their own Names may sell the Land for necessity, because he that gave them authority by his will (which took no effect until after his death) is dead; And yet in such Case the Devisée is by the Divisor. Graine bonum ●eriturum. 27 If a man enter into bond conditioned to pay the lesser sum at a day to come, if he tender it at the day, Co. l. 9 79. a. 4 Peystets Case. he may after plead that tender, and shall say, uncore priest: But if a man be bound by Obligation in 100 quarters of Grain to pay 50 quarters: here, if the Obligor tender them at the day, and the other refuse, he shall plead it, without saying uncore priest, because the Grain is bonum periturum, which cannot be kept any time, and would be chargeable for the Obligée to keep. Grant ●f an ●●●ce by a schop good, ●●d not with● the stat. of 〈◊〉 28 The Bishops grant of an Ancient and necessary Office is (by construction) exempted out of the general restraint of the Statute of 1 El. for as Bracton saith fol. 247. Illud quod aliàs licitum non est, Co. l. 19 61. a. 3 The Bishop of Sarmas Case. necessitas facit licitum, & necessitas inducit privilegium, quod Jure privatur? And if Bishops should not have power to grant such Offices of service and necessity for the life of the Grantées, but that their Estates should depend upon uncertainties, as upon Death, Translation, etc. of the Bishop, than persons of best abilities would never serve them in such Offices, or (at least) would not discharge them with alacrity. ●●eed not ●●●ed pro●●d by wit●●es. 29 Regularly deeds pleaded in Court shall be produced in Court, Co. l. 10. 92. b. 3 Doctor Leyfeilds' Case for it were dangerous to suffer them to be proved by Witnesses or by a Copy, because the razings, enterlivings, and other imperfections cannot thereby appear to the Court, nor upon what Condition, limitation, or power of revocation they were made, whereby Truth, justice, and the true reason of the Law might be subverted; Nevertheless in great and notorious extremities, as by casualty of fire, where all the evidences in his house have been burnt, if that appear to the judges, they may in favour of him, that hath received such great loss by the sire, suffer him upon the general Issue to prove the deed in evidence to the jury by witnesses, lest affliction should be added to affliction, and if the jury find it, although it were not showed in evidence, this is good enough, as appears in 28 Ass. P. 3. 〈◊〉 repair Banks re●●ed against ●●al floods. 30 If a man by proscription is bound to repair a Bank or Wall against water-floods (either salt or fresh) and by his default the water breaks in, he shall repair it at his own charge, Co. l. 10: 139. a. 3. Knightleys Case. and the rest of the parties interessed therein may recover their damages against him in an Action upon the Case: But if (in such Case) he maintain the Wall or Bank at the usual height in good repair, and by a sudden an un-usual increase of waters the Walls or Banks are thrown down or the waters overflows the Banks; In such Case the Commissioners of Sewers (by the Statute of 23 H. 8. 5.) are to tax all persons, that have there any Lands, Common of Pasture or profit of fishing, or may other, that may suffer any loss or dis-advantage thereby, according to the several quantities of their Lands, etc. ●int fine ● good, ex●● in some ●ses. 31 A joint fine imposed upon two Capital privileges in a Léet, Co. l. 11. 43. b. 3 Godfrey's Ca because they refused to present with certainty they had paid the Léet, was adjudged void, because it was jointly and not severally set; yet in some Cases a Fine or Amerciament shall be imposed upon divers persons jointly, sometimes upon a Town, as for the escape of a Murderer, otherways upon an Hundred, as for a Robbery, and sometimes upon a whole County, etc. and this for necessity, by reason of the uncertain knowledge of the persons offending, and the infinity of the number. Pl. 9 b. Fogassaes Case. & ib. 13. b. 2. 32 Effusion of Blood and the kill of men are prohibited by the Common Law, yet every man in his own defence, A tempest excuseth on uncertain agreement with the Custom. and as a Champion in trial in a Writ of weigh, and the like, may kill others, and here the one is for the salvation of his life in his defence, and the other for the necessity of trial: So likewise by the Common Custom of the Realm Inholders are chargeable with the goods of their Guests being lost or imbeziled out of their houses, yet if their houses be broken by the King's Enemies, and so the goods taken from them, they shall not be chargeable therewith: For in reason such violence cannot be resisted, and therefore it shall infringe the violence of the Custom: Pl. ibid. 19 b. So in Fogassaes Case in the Commentaries, when by reason of the tempest part of the Woad was cast into the Sea, and thereby the quantity remaining could by no means be discovered before it was landed and weighed, the uncertain agreement made with the Customer before the landing thereof was adjudged good, 1 E. 6. cap. 13. and so the rigour of the tempest did excuse the rigour of the Statute. Pl. 13. b. 3. in Fogassaes Ca 33 If a Felon break Prison, Breaking of Prison and ●●●verance of Jurors lawful by necessity. it is Felony by the Statute of De frangentibus prisonam, yet if the Prison be fired, and they that are within break the Prison to save their lives, this shall be excused by the necessity of the change: So in 14 H. 7. fol. 29. Bract. Verdict, 19 Stamford cap. 7. fol. 15. The jurors, who were sworn upon an Issue for fear of a great tempest forsake the house where they were, and dispersed themselves, and it was there held, that they should not be amercied for it; but their Verdict afterwards was held good for the necessity of the occasion, whereas otherwise they should have been ●rievou●●y amercied. Pl. 18. b. 2. in Fogassaes Ca 34 In 22 Book of Ass. Pl. 56. Lawful to beat a mad man. where a man was enraged and of non ●●n●e memoriae, and did great hurt, whereupon a man together with his parents took him, bound him, and beat him with scourges, and it was there holden, that they might justify for the avoidance of the great h●rt that he might do being of non sanae memoriae: and yet doth the Law of Nature and Law of the Realm prohibits generally the beating of any, but this special Case for the prevention of a greater mischief hath an exemption, and a special privilege. Pl. ibid. b. 4. 35 In a praecipe quod reddat the Tenant shall excuse his default by the increase of Waters, and yet every default is abhorced in Law, Necessity ●●cused a default. because it is a contempt of the Court, but for that he could not without peril of death appear, the necessity of the accident in such Case shall excuse him. 1 Kings 21. Math. 12. Pl. ib. 19: a. 1. 36 The Law of God prohibited the eating of Proposition Bread, Proposition Bread, an● Eats of 〈◊〉 may be 〈◊〉 yet it was adjudged (by CHRIST himself) to be lawful for David to eat it in a time of necessity to prevent famine; So also upon the like occasion was it lawful for Christ's Apostles to pull the Ears of other men's Corn, and to eat them: And in our Law an Obligation per d●●●s or minas shall be avoided, because it is done by compulsion. Pl. 37. b. 4. Plaits Case. 37 If the Sheriff of Middlesex suffer an in-voluntary escape of a prisoner, and making fresh suit after him, takes him in Surrey, Pursuit up●● an escape, ● of a di●●● where he is not Sheriff, yet he may justify the taking of him there; So ●●so if one come to distrain for Rent-service, and the Tenant seeing him coming drives away his Cattle from off the land, yet there the Lord may pursue them within view and retake them in whatsoever land they are, albeit they are out of his Authority: For the pursuit and the possession after shall be adjudged as a possession with continuance, when it is for Rent-service: But it is otherwise for damage fesant, and so the diversity is held 16 E. 4. fol. 10. yet H. 6. R. 2. abr. per Fitz. Rescous 11. it is held also justifiable for damage pheasant; and all this is allowed for the necessity of the occasion, and in favour of right and justice. ●●it patent ●ed in the 〈◊〉 Court. 38 If a man hold as of a Seignory in gross, F. N. B. 3. c which hath not a Manor, where the Lord may keep any Court, in such Case the Tenant may sue Brief de droit patent in the King's Court, and the Lord shall not have any Action against him for it, nor by any means annul his Action, because he hath not any Court to hold plea thereof; And therefore he is compelled by necessity to sue immediately in the King's Court. 〈◊〉 of right 〈◊〉 Dower su●● in the ●B. 39 If the Baron give part of his Manor in tail to hold of him and die, F.N.B. 8. a. b the Feme shall sue her writ of right of Dower in the Court of the Heir of the Baron against the Donée in tail, and the writ shall be directed to the Heir: But if the Baron make a Gift in tail, of all the Land he hath and die, here the Heir of the Baron cannot keep any Court, because he hath but a Seignory in gross; and therefore in such Case it seems reasonable, that she shall have her writ of right of Dower against the Donée in tail, directed to the Sheriff and returnable in the Common Place, and there shall be this Clause in the Writ, Quia B. Capitalis Dominus feodi illius nobis inde remisit Curiam suam. So it is also if the Baron lease all his Land for life, there also the Feme shall sue such a Writ against the Tenant for life, returnable in the Common Place, because the Heir of the Baron in that Case also can kéeps no Court, having but a Seignory in gross: And in these Cases and the like the Lord shall not sue a prohibition to the justices of that Court, that they should not proceed in such pleas; for that the Feme in such Cases is forced by necessity to do it. 40 If an Infant or Feme covert present not within 6 months, Fitz. ib. 34. c▪ the Bishop shall present by laps, for there is a necessity the Church should be served. 41 Where waist is made by the King's enemies, or by tempest, Fitz. ib. 59 l. the Tenant shall not be punished for it. 42 Ubi aliud suader necessitas, cessat humanae constitutionis, cessat & voluntas Nomothetae. Erasm. in Coll. Conu. Proph. 43 A Dedimus Potestatem was granted to receive an Attorney for the Defendant in a Quid Juris clamat, Dier 135. pl: 15 3, 4. P. M. albeit no former Precedent could be found for it, and this was allowed per Curiam, by reason of the weakness of the Defendant, who could not appear in person without manifest danger of life. ●●●ing a 〈◊〉 it Sea. 44 Hob. 13. Bridgmans' Case, Hob. 13. per Hobart concerning the Masters impawning of another man's Ship at Sea for necessity of fact, or other provision. ●●●er by a ●●tick. 45 An Action of Trover and Conversion may be brought in a Lunatics own name, Ho. 215. Cocks and Darson. for grain sown upon his Copyhold land and carried away by a stranger, and that for necessity, because it can be brought in no man's name else. 111. 2 Conveniency. Co. l. 9 49. a. b. The Earl of Shrewsburies' Case. Vide Max. 184 cap. 5. 1 If a Parkship be granted to an Earl, Dignity respected for conveniency. without words to make a Deputy, yet he may keep it by his servants; for the Law doth allow divers acts for convenience in respect of the Dignity of the person, as if Licence be given to a Duke to hunt in a Park, the Law for conveniency given him such attendante, as are requisite to the Digntiy of his Estate, Vide, 12 H. 7. 25. & 13 H. 7. 10. So when a Bishop is riding forth, or upon the way, it is not convenient for his Estate and Degree to be then enforced to examine the Ability of a Clerk, but he ought to attend his convenient leisure. 14 H. 7. 21. 15 H. 7. 7. & 8. Co. ibid. and Mirror of Justices, cap. 1. §. 2. 2 At the first institution of this Monarchy an Earl was Praefectus, The li●e. or Propositus Comitatus; for so the Saxon word Shire-reeve imports; The Romans called him Satropas', from the Persians, viz. Praefectus Provinciae,; And the Sheriff at this day (called Vicecomes, quasi vicem generis seu vicariis Comitis,) hath the whole authority for the Administration and Execution of justice, that the Earl had, and if the King do now by his Letters Patents commit unto the Sheriff custodium Comitatus, without express words to make a Deputy, yet he (who comes in the place of the Earl,) may make a Sub-vice-comes, viz. a Deputy, who was in times past Seneschallus Vicecomitis, and by West. 2. cap. 39 Sub-vice-comes, and by 11 H. 7. cap. 15. Shire-Clerk. Co. ib. in the E. of Shrewsburies' Case. 3 If before the Statute of Quia Emptores terrarum, 18 E. 1. The like. the King or any other had given Lands to hold of him in Knights-service, viz. so attend the King 40 days in his Host sufficiently armed, etc. in this Case the Law had such regard to the Honour of Knighthood, (which is the lowest Degree of Dignity,) that he might find an able person to go with the King in his Wars, Vide. 7 E. 3. 29. and this was for conveniency, etc. Co. ib. the principal ●ase. 4 Qu. Eliz. by Patent granted to the Earl of Shrewsbury, Seneschal Dominiorum sive Maneriorum de Mansfield, Bolsover, & Hotsley, A Pear Steward, may ma●● a Deputy. without giving him power therein to make a Deputy, yet he might make a Deputy; because it was not convenient that the Earl should keep such base Courts himself. Pl. 9 b. 18. b. 5 The Statute of Marlebridge, A Distress may be brought into another County. prohibits that none shall bring a Distress out of one County into another, yet it is held per totam. Curiam, M. 1. H. 6. Pl. 9 fo. 3. (abridged by Fitz. Tit. Distress, 1.) that where a Manor extends into two Counties, the Lord may distrain in one County, and bring the Distress into the other County where the Manor is, and this is to avoid the mischief and inconvenience, that would ensue, if the Lord should be restrained from bringing the Distress to his Manor. But see the contrary adjudged in 30. E. 3. 5. Co. Inst. p. 1. 210. b. 1. 6 If the Condition of a Bond or Feoffment be to pay, or to deliver Money, no place being appointed, where it should be paid, in such Case, the Obligor or Feoffor is bound (at the day of payment) to find out the Obligée or Feoffée to make payment or tender thereof, if he be in England, but if the Bond or Feoffment be to deliver 20 Quarters of Wheat, or 20 Loads of Timber, or the like; In such Case, the Obligor or Feoffor is not bound to carry the same about, or to seek the Obligée or Feoffée; but in such Case the Obligor or Feoffor must go to the Obligée or Feoffée before the day of payment, and know where he will appoint to receive it, and there it must be delivered; and this the Law directs for the convenience: So if rent be issuing out of Land, it ought to be tendered upon the Land; But Homage or any other special corporal Service, must be done to the person of the Lord, and the Tenant ought (by the Law of convenience) to seek him, to whom the Service is to be done, in any place within England: In like manner if a man be bound to pay 20 l. at any time during his life, at a certain place; the Obligor cannot tender the Money at the place, when he will, for then the Obligée should be bound to perpetual attendance, and therefore the Obligor (in respect of the uncertainty of the time, and for convenience sake,) must give the Obligée notice, that on such a day at the place limited, he will pay the Money, and then the Obligée must attend there to receive it: for if the Obligor then and there tender the Money, he shall thereby save the penalty of the Bond for ever: There is the same Law; if a man makes a feoffment in fee upon Condition, that if the feoffor at any time during his life pay the feoffée 20 l. at such a place certain, that then. etc. In this Case also the feoffor must give notice to the feoffée, when he will pay it: but in both these last Cases, if the Obligor or feoffor at any time meet the Obligee or feoffée at the place he may tender the Money: Likewise if A. be bound to B. with Condition, that C. shall enfeoff D. on such a day, here C. is bound to seek D. to give him notice, when he will do it. Homage. 7 No man of Religion (Regular or Secular, Co. Inst. p. 1. 65. b. 3. ) when he doth Homage shall say, I become your man, for that were inconvenient, because he hath professed himself the man of God; yet shall he do Homage, and say, I do unto you Homage, and will be unto you Faithful and Loyal, etc. And this Homage of Ecclesiastical persons in the old Books and Records of the Law is called Fealty, for that it wanteth these Words, I become your man, yet in judgement of Law it is Homage, because he saith, I do to you Homage, etc. There is the same Law also of a feme sole, for it is not fit that the should say to her Lord, I become your woman, but shall say, I do you Homage, etc. Argumentum ab inconvenienti plurimum valet in lege: Non solum quod licet, sed quid est conveniens, est considerandum; Nihil, quod est inconveniens, est licitum. ●●●ment. 8 Attornment is appointed by Law to avoid inconveniences. See Co. Inst. part 1. 309. a. 3. & Max. 121. cap. 3. 112. 3 Conformity. ●●dowment ●●●ium. 1 In ancient time when a man did endow his Wife ad ostium Ecclesiae, Co. Inst. p. 1. 34. b. 1. he did there openly declare the quantity and certainty of the Land, whereof she was so to be endowed; for the Law (for Conformity sake) doth delight to have that and like acts to be openly and solemnly done. ●ower of rent ●●all be deli●●ed by the 〈◊〉. ff. 2 If a woman bring a Writ of Dower of six pounds' Rent-charge, Co. ib. 34. b. 3. and she hath judgement to recover the third part, Albeit it be certain that she shall have 40 s. yet she cannot distrain for the 40 s. before the Sheriff do deliver the same to her; For here, because she demands nothing in certain, but only a third part of the Rent, she shall not distrain for it before Execution sued, and thereupon a third part thereof delivered unto her in certain by the Sheriff; It is otherwise of Land Rent, or other things demanded in certain, for in such cases the Demandant after judgement may enter and distrain before Seisin delivered by the Sheriff upon a Writ of Habere facias seisinam: Also when the Wife of a Tenant in Common demands a third part of a moiety, yet after judgement she cannot enter, until the Sheriff deliver her the third part, albeit such delivery of the Sheriff shall reduce it to no more certainty, than it had before, and all this is for conformities sake, that the proceeding may be orderly. Co. ib. 53. b. 3. 3 None shall have an Action of Waste, joinder in Waste. unless he have the immediate Estate of Inheritance, yet sometimes another shall join with him for conformity, as if a Reversion be granted to two, and the Heirs of one, they two shall join in an Action of Waste; So likewise shall the surviving Co-parcener, and the Tenant by the Courtesy join: Also if there be two joint-tenants, and to the Heirs of one of them, and they make a Lease for life, they shall join in an Action of Waste for the same reason. Co. l. 2. 77. b. 1. The Lord Cromwel's case. 4 B. seized of a Manor with an Advowson Appendent by Indenture bargains and sells the Manor to A. and covenants to suffer a Recovery, and levy a Fine to A. in Fee, joinder in a Fine. and that the said A. shall render by the Fine to B. 42 l. per annum Rent; provided that A. shall grant the Advowson to B. for life, and if he die before any avoidance, than one turn to his Executors, and it was farther Covenanted that all Assurances to be made should be to the said Uses: The Recovery is had, B. and A. lovie a Fine to P. who renders the Manor, with the Advowson to A. in Fee, and the Rent to B. Proclamations pass; A. dies before the Grant of the Advowson, the Church becomes void in the life of B. E. enters as Heir to A. B. enters, and without any request for the Advowson, bargains and sells to the Lord Cromwell, for whom it is adjudged: And in this Case it was resolved, that albeit the Fine was not acknowledged by B. to A. to a stranger was adjudged a good performance of the Covenant, because B. and A. joined in the Fine for conformity, to the end (by that means) A. might take the Manor, and B. the Rent, but B. had the Manor again, because the Condition was not performed. Ibid. 5 Albeit a Fine is of so high a nature, joinder is Fine. that the Law doth not suffer any bare Averrement against the purport, and Conusance of a Fine, yet when the Law requires one for conformity to join with another in a Fine, it suffers him to show the truth of the matter, for the avoiding of prejudice and conclusion: So in 30 and 31 El. in a Writ of Error to reverse a Fine levied by Baron and Feme, for the Nonage of the feme, the Baron and feme had Restitution presently and the Conusée could not detain the Land during the Coverture, because all the Estate passed from the feme, and the Baron only joined for conformity Vide Pl. ibid. Co. l. 6. 47. a. 1. Dowdales' ca 6 In Debt against Executors, Assets found b● any County. the Defendant pleads plene administravit, the Plaintiff replies that he hath Assets in E. and the jury finds Assets in Ireland, and the Plaintiff recovers; For when the place is material, as when it is parcel of the issue, there the jurors cannot find the point in issue in any other place, because in such case, by special pleading the point in issue is restrained to a certain place: For there is a diversity, when the place is named only for conformity and necessity, and when it is parcel of the issue, as in the Case of 10 El. Dyer 271. In Debt against the Heir, he pleads riens per descent generally, in this Case the Plaintiff cannot reply in such a general manner, for then there could be no trial of it, but in such Case for conformity and necessity of a Trial, he ought to name a certain place, as he did there in a Parish and Ward in London, nevertheless there the jurors might find Assets in any other County of England, etc. 113. 4 Colour. ●o descent to 〈◊〉 away en●y. 1 If a man seized of Land hath issue two Sons, and die seized, Littl. §. 396. Co. Inst. p. 1. 242. 2. and the youngest enter by abatement, and hath issue and dies thereof seized, and the Tenements descend to his issue, and the issue enter: This is no descent to take away entry, because they both claiming by one Title, and from the same Ancestor, the youngest had colour to enter as heir: So it is also if there be two Sisters, Litl. §. 398. Co. ibid. 243. a. 4. and the eldest enter, etc. and albeit in either of the said Cases there be never so many descents cast, yet may the Heirs, the elder Brother or younger Sister enter, causa qua supra. Howbeit, if there be Bastard eigne, Littl. §. 399. Co. ibid. 243. b. 4. and Co. 244. a. 3. and mulier puisne, if the Bastard enter, and is peaceably seized all his life, and die, and his issue enter, the Mulier shall not enter; for he hath more colour to keep it as eldest Son, then in the aforesaid Cases; And therefore the Mulier in such Case, is left without remedy; and hath lost the Land for ever, whereas the other are left in their Action: And it is holden, that albeit the heir be under age at the time of the descent cast, yet that shall not help it, for the Law prefers Legitimation before Infancy; because there being no Claim all his life-time, the Law implies Legitimation; And when the Descent is cast, Justum non est aliquem post mortem facere bastardum, qui toto tempore vitae suae, pro Legitimo habebatur. See more in the first Part of the Institutes, fol. 242, 243, 244. & Littl. §. 400. ●o trespass ●gainst the 〈◊〉. 2 If there be Lord and Tenant by fealty only, Littl §. 484. Co. ib. 28. l. b. 4. and the Lord distrains the Tenant for Rent, whereupon the Tenant brings an Action of Trespass against the Lord, who justifies for fealty and Rent, and the jury finds, that he holds by fealty only; yet the Writ shall a●ate, because he held of him by fealty, and the matter in issue is, whether he holds of him or no, and it being found he did, the Lord had sufficient colour to distrain him, and therefore in that case the Action shall abate. ●im slaugh●● found for ●●der. 3 If A. be appealed or indicted of Murder, Co. ib. 282. a. 1 viz. that he of Malice praepense killed I, A. pleadeth not guilty modo & forma, yet the jury may find him guilty of Manslaughter without Malice praepense, for if in truth it was but Manslaughter, they had colour enough to find it so. Inclaiming 〈◊〉 House. 4 If too be in all House together, the one claiming by one Title, Littl. §. 701. Co. ib. 368. a. 2. and the other by another, the Law adjudged him in possession, who hath right to the House for Duo non possunt in solido unam rem possidere; yet if a man hath issue two Daughreas, Bastard eigne, and Mulier puisne, and die seized, and they both enter generally, the Sole Possession shall not be adjudged only in the Mulier, because they both claim by one and the same Title, and the Bastard hath as well colour to claim it as the Mulier. ●●ard shall ●●●ch. 5 If the Bastard eigne enter, and take the profits, Co. ib. 376. b. 3. he only shall be vouched, and not both the Bastard and Mulier, for there is colour enough to vouch him alone, he being heir in appearance, and he is not bound to dis-able himself. ●●ministrati●●●oid, and ●●able. 6 If an Ordinary of a Diocese commits Administration of Goods, Co. l. 5. 29. b. 4. in Princes. Case. Were and Jefferies Case. when they are bona notabilia, such Administration is merely void: but Administration committed by the Metropolitan, when the defunct had not bona notabilia, is only voidable; because he hath jurisdiction in all the Dioceses within the Province, and therefore hath sufficient colour to do it. Co. l. 6. 65. a. 3. in Sir Moil Finches Case. 7 In 41 E. 3. 19 Rich. Tompson had Issue by Joan (before marriage) one Agnes, and after he marries Joan, and makes feoffment in fee, A Bastard takes by y● chase. and retakes the Estate to himself for life, remanere inde Agnetae filiae praedict. Rich. & Johanne: and it was agreed that this was a good remainder, without any averment, that she was known to be their Daughter: for albeit by the Common Law she was not their Daughter, yet in as much as she had colour by the Ecclesiastical law (which saith, subsequens matrimonium tollit peccatum procedens) this colour is sufficient in Case of a conveyance to make the remainder good, and so note the diversity betwixt descent and purchase, etc. Co. l. 8. 101. per tout in Sir R. Lechfords Case. The better opinion per Coke. 8 If there be Bastard eigne and Mulier puisne, Mulier beyond sea, etc. and the Father die seized, the Mulier being beyond Sea, within age, in Prison or of non sanae memoriae, and the Bastard enter and continue in peaceable possession of the Lands, and hath Issue and dies, and the lands descend to his Issue, here the right of the Mulier is for ever bound: because he hath colour of legitimation by the Law of Holy Church, and the Common Law respects legitimation, before the abovesaid Imperfections. Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea. 9 If a Sheriff holding his Torn after Michaelmas month takes there an Indictment of Robbery, it is utterly void, Things done by warrant & contra. being coram non judice: But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke, Earl, or, etc. which by the Law lieth not against them, and that appears in the writ itself, here if the Sheriff arrest them upon the Capias, albeit the writ be against Law, yet because that Court hath jurisdiction of the cause, the Sheriff hath colour to do it, and shall be excused; and herewith accords Dier 60. b. 38 H. 8. So also if a justice of Peace make a warrant to arrest one for Felony, who is not indicted, albeit the justice err in granting the warrant, yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment, because the justice is judge of the Cause. Plow. 83. b. 1. in Strange and Crokers' Case. 10 In 9 H. 6. it is said, that if I grant to B. Maintenance. that if my Tenant for life die during my life, that then B. shall have the Land for 10 years: Here, if my Tenant be impleaded, B. may lawfully maintain, in respect of the Colour of title he hath to the Land. Co. Inst. p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée, Bastard. Mulier. because it is the Disseisors own Act, and not the Act of God, as death is: yet if there be Bastard eigne and Mulier puisne, and the Bastard before claim enter into Religion, it is said such a descent shall toll the entry of the Mulier, by reason of the colour of title that the Bastard had to the land, and such an heir shall also have his age. 114 It prizeth the Acts of God and of the Law more than those, that are done by the party. Co. Inst. p. 1. 18. a. 4. 1 Fée-simple being (as Littleton saith) the largest Estate of inheritance that is, Two Fee-simples. one Fée-simple cannot depend upon another by the grant of the party, as if Lands be given to A. so long as B. hath heirs of his body, the Remainder over in Fee, here the Remainder is void; yet in several persons by Act in Law a reversion may be in Fée-simple in one, and a Fée-simple determinable in another by matter ex post facto, as if a Gift in tail be made to a Villain, and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fee, but if the Lord enfeoff the Donor, now both Fée-simples are united, and he hath but one Fée-simple in him. ●●ires female ●ill not take. 2 When a man giveth lands to another man and the heirs female of his body & dieth having issue a son & a daughter 〈◊〉 daughter shall inherit for the will of the donor (the Stat. working 〈◊〉 it, Co. ib. 24. b. 3 & 25. b. 3. & 26. b. 4. which is upon the matter an act in law) shall be observed, but in case of a purchase it is otherwise; for if A. have issue a son & a daughter, & a lease for life is made, the remainder to the heirs females of the body of A. A. dieth, the heir female can take nothing, because she is not heir, for she must be both heir & heir female, which she is not, because the brother is heir, and therefore the will of the giver cannot be observed, because here is no gift, and therefore the Statute cannot work thereupon, so it is, if a man hath a son and a daughter and dieth, & lands are given to the daughter and the heirs female of the body of her father, the daughter shall take nothing but an Estate for life, because there is no such person, she being not heir, but where a gift is made to a man, and to the heirs female of his body, there the Donée, being the first taker, is capable by purchase, and the heir female by descent, secundam formam doni. ●●tes may 〈◊〉 altered. 3 Regularly Estates cannot be altered from one to another, Litt. §. 33. Co. ib. 28. a. unless all that have interest join in the alteration thereof; but by the Act of God estates may be changed without any act done by the parties, that are interessed: as if lands be given to a man and the heirs that he shall engender of the body of his wife: here the wife hath nothing, and the man is Tenant in special tail: & therefore in this Case if the Feme die without issue on her body begotten by the Baron, the estate in special tail, is (by the act of God) charged into tenancy in tail after possibility of issue extinct. ●●ging of ●●tes. 4 If a feoffment in fee be made to the use of a man and his wife for the term of their lives, and after to the use of their next issue male in tail, Co. ib. 28. a. 3. and after to the use of the Baron and Feme and the heirs of their two bodies, having no issue at that time: in this Case the Baron and Feme are Tenants in special tail executed, and after they have a son they are become Tenants for life, the remainder to the son in tail, the remainder to them in special tail: and here, albeit (living the son) they are but bare Tenants for life, yet if the Baron die having no other issue, and then the son die without issue, the Feme shall be restored to the privileges belonging to tenant in tail after possibility of issue extinct, as appears in Lewes Bowles Case, Co. l. 11. fol. 80. for (as there is said) the Estate of the Feme (in such Case) is created by the act of God, and not by the limitation of the party, ex dispositione legis, and not ex provisione hominis: but if land be given to Baron and Feme, and the heirs of their two bodies, and after they are divorced causa praecontractus, consanguinitatis or affinitatis; their Estate of inheritance is turned to a joint Estate for life, and albeit they had once an inheritance in them, yet for that the Estate is altered by their own Act, and not by the Act of God, after the death of either of them without issue, the other shall not be Tenant in tail after possibility of issue extinct. 〈◊〉 not ended. 5 If a man take an alien to wife, and after the husband alien the land, Co. ib. 33. a. 4. and then she is made denizen, the husband dieth, she shall not be endowed, it is otherwise, if she be naturalised by act of Parliament. ●il death. 6 The Feme shall not not be endowed after the Civil death of the Baron, (entering into Religion, etc.) being the act of the party, Co. ib. 33. b. 2. but after the natural death, which is the Act of God. ●t-tenant agnes do●● 7 If two or more he joint-tenants of lands, Co. ib. 34. b. 4. one of them may assign dower to the wife of a third part in certainty, and this shall bind his companions; because they were compellable to do the same by law: but if one of them assign a rent out of the land to the wife, this shall not bind his companions, because he was not compellable by the law thereunto. 8 There is a diversity between particular Estates made by the Terretenant, Co. ib. 57 b. 3. and pa●●●cular Estates created by Act in Law: Trespass before entry, contrà. For if Tenant pour autre 〈◊〉 continueth in possession after the decease of Cesty que vie, or Tenant for years holdeth over his term, the Lessor cannot have an Action of Trespass before entry: but if a Guardian after the full age of the heir continueth in possession, he is no Tenant at sufferance, but an Abator, and against him an Assize of Mortancestor, doth lie before entry. Co. ib. 59 b 4. Armstrong's Case certified into the Chancery by Popham, and others. 39 Eliz. 9 Of fines due to the Lord, by the Copiholder, Copyhold. Fines. some by the change or alteration of the Lord, and some by the change or alteration of the Tenant, the change of the Lord ought to be by Act of God, otherwise no fine can be due, but by the change of the Tenant, either by the Act of God, or of the party, a fine may be due: For if the Lord do allege a Custom within his Manor to have a fine of every of his Copiholders' of the said Manor at the alteration or change of the Lord of the Manor, be it by alienation, demise, death, or otherwise, this is a Custom against the Law, as to the alteration or change of the Lord by the act of the party; for by that means the Copiholders' may be oppressed by multitude of fines, by the Act of the Lord, but when the change groweth by the Act of God, there the Custom is good, as by the death of the Lord: but upon the Change or alteration of the Tenant, a fine is due to the Lord. Escuage. Co. ib. 72. b. 1. 10 If the Tenant goeth with the King in performance of his Knight-service and dieth in Exercitu, in the Host or Army, he is excused by Law, and no escuage shall in that Case be demanded. Homage. Ancestral. Co. ib. 102. a. 4 11 In Case of Homage Ancestral (which is a special warranty in Law) by the authority of Littl. the lands generally, that the Lord hath at the time of the voucher, shall be liable to the execution in value, whether he hath them by descent, or purchase: but in Case of an express warranty, the heir shall be only charged for such lands as he hath by descent from the same Ancestor, who created the warranty; and so note, what privilege this express warranty (created by operation of Law) hath more than the express warranty: for, firmior & potentior est operatio Legis, quam dispositio hominis. Co. ib. 127. a. 1 in Beechers Case. Co. l. 8. 60. b. 12 If a writ do a abate by the Act of the Demandant or Plaintiff, Amerciate or for matter of form, the Demandant or Plaintiff shall be amercied; but if abate by the Act of God, as by the death of one, where there is two, or the like, there shall be no amerciament. Co. ib. 148. a. 3 Wards Case cited in Co. l. 2. fol. 32. in Heywards Ca 13 When a rent-charge is extinguished by the grantées purchase of part of the land, the grantée shall never have a writ of annuity, Rent-cha● extinguishe● no Annuity because it was by the grant a rent-charge, and he hath discharged the land of it by his own Act, viz. by purchase of part; but if the rent-charge be determined by the Act of God, or of the law, yet the grantée may have a writ of annuity; as if Tenant for another man's life by his deed grant a rent-charge to one for 21 years, Cesty que vie dieth, the rent-charge is determined, and yet the grantée may have during the years a writ of annuity for the Arrearages incurred after the death of cesty que vie, because the rent-charge did determine by the Act of God and by course of law, Actus legis nulli facit injuriam: The like law is, if the land, out of which the rent-charge is granted be recovered by an Eigne title, and thereby the rent-charge is voided, yet the grantée shall have a writ of annuity, for that the rent-charge is avoided by the course of law. Co. ib: 148. b. 1 Litt. § 222. in Aschoughs ca vide infrà 48. 14 Littleton saith, that a Rent-service may be extinct for part, Rent-ser● suspended contrà. and apportioned for the rest, but it cannot be suspended in part by the Act of the party, and in esse for the other part; for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent, if the Tenant make a Gift in tail, or a lease for life or years; of partel thereof to the Lord, in this Case the Rent shall not be apportioned for any part, but the Rent shall be suspended for the whole: So it is also if the Lessor enter upon the Lessée for life or years into part, and thereof disseise or put out the Lessée, here the Rent is suspended in the whole, and shall not be apportioned for any part, and where outs Books speak of an apportionment in Case where the Lessor enters upon the Lessée in part, they are to be understood, where the Lessor enters lawfully, as upon a surrender, forfeiture, or the like, where the Rent is lawfully extinct in part: yet by act in Law a Rent-service may be suspended in part, and in esse for part, as when the Guardian in Chivalry entereth into the land of his ward within age, now is the Seignory suspended, but in this Case if the wife of the Tenant be endowed of a third part of the tenancy, she shall pay to the Lord a third part of the tent: so it is also where the Tenant gives a part of the tenancy to the father of the Lord in tail, the father dieth, and this descends to the Lord, in this Case also by Act in Law the Seignory is suspended in part, and in esse for part; And the same Law is of a Rent-charge, which also cannot be apportioned but by Act in Law, for if a man hath a rent-charge to him and his heirs issuing out of lands, and he purchase part thereof, Litt. § 222, & 224. in this Case the whole rent is extinct; but if a man hath a Rent-charge and his father purchase part of the land, out of which it issues, in fee, and die, and that parcel descends to the son, that hath the rent-charge, in that Case the rent-charge shall be apportioned according to the value of the land, 〈◊〉 charge 〈◊〉. because the part of land purchased by the father comes not to the son by his own Act, but by descent and course of Law: Co. ib. 149. b. 4 So also if the Tenant give the father of the grantée part of the land in tail, and this descends to the grantée, the rent shall be apportioned: and so by act in Law a rent-charge may be suspended for one part, and in esse for another: or vice versa, if the father us grantée of a rent, and the son purchase part of the land charged, and the father dieth, after whose death the rent descends to the son, here also the rent shall be apportioned, causa quà suprà. rent-charge ●pationed. 15 If the father within age purchase part of the Land charged, Co. ib. 150. a. 2 and alieneth within age and dieth, the son recovereth in a writ of dum flrit infra aetatem, or entereth, in this Case the Act of Law is mixed with the Act of the party, and yet the rent shall be apportioned, for after the recovery or entry the son hath the land by descent: so it is also where the son recovereth part of the land upon an alienation by his father, dum non fuit compos mentis, for the cause aforesaid. 〈◊〉 16 A man seized of lands in fee takes wife, Co. ibid. and makes a feoffment in fee, the feoffée grants a rent-charge of 10 l. out of the Land to the Feoffor and his wife, and to the heltes of the husband, the husband dieth, the wife recovereth the moiety for her dower by the custom, the Rent-charge shall be apportioned, and she shall distrain for five pound, which is the moiety of the rent: and here albeit her own act doth concur with the Art in Law, yet shall the Rent be apportioned. ●d, 〈…〉 Tenant. 17 If there be Lord Mesne and Tenant, Litt. §. 231. Co. ib. 152. and the Tenant holds of the Mesne by 5 s. rent, and Mesne holds over of the Lord by 12 d. rent, here the Mesne hath 4 s. rend in surplusage; Now in this Case if the Lord purchase the tenancy, The Mesne shall have the 4 s. yearly as rend seek, and yet he shall distrain for it: Litt. §. 232. Co. ib. 153. a. 1 vide infrà, 40. for seeing the fealty is extinct, the Law reserves the distress to the Rent, and the distress in such Case shall by act in Law us preserved, Quia quando let aliquid a licui concedit concedere videtur & id, sicut quo res ipsa esse non potest. And therefore if a man make a lease for life, reserving a rent, and bind himself in a Statute, whereupon the Rent is extended and delivered to the Conusée; here, the Conusée shall distrain for the Rent, because he cometh to it by course of law: but if a rent-service be made, a rent-seck by the grant of the lord, the grantée shall not distrain for it; for that the distress in that case remains with the fealty: So likewise if there be Lord, Mesne, and Tenant, and the mesnalty is a Manor having divers fréeholders', and the Lord purchase one of the Tenancies, and there is a Rent by surplusage, this rent, although it be changed into another nature, is parcel of the Manor: yet by purchase of part of the land, the whole Rent is extinct, albeit the Law did preserve it. Co. ib. 163. b. 4 18 There is a diversity between a descent, Descent and purchase. which is an Act of the Law, and a purchase which is an Act of the party; for if a man be seized of lands in Fee having Issue two Daughters, and one of the Daughters is attainted of felony, the Father dieth, both Daughters being alive, the one moiety shall descend to the one daughter, and the other moiety shall escheat: But if a man make a Lease for life, the remainder to the right heirs of A. being dead, who left issue two Daughters, whereof the one is attainted of felony: In this Case some have said, that the remainder is not good for the moiety, but void for the whole: because both the Daughters should have been (as Littleton saith) but one heir. Co. ib. 164. b. 3 19 A Rent-charge is entire and against Common right; Rent-charge dividable. and yet it may be divided between coperceners, and by Act in law the Tenant of the land is subject to several distresses, and in that Case also partition may be made before seisin of the Rent. Co. ib. 165. a. 4 20 If there be two Coperceners of lands with warranty, Coperceners and they make partition, in this case the warranty shall remain, because they are compellable by law to make partition: it is otherwise of jointenants for they were not by the Common law compellable to make partition. Co. Ib. 166. b. 3 21 When partition is made betwixt Coperceners, Partition by Copercener● the eldest sister hath the choice, and this is called Enitia part of Eigne, or Eldest, but this privilege is personal to her alone, and shall not descend to her heir (for then the next sister hath it) because this partition is made personally by the Act of the parties, but where the law doth give the eldest any privilege without her Act there that privilege shall descend: As if there be divers coperceners of an advowson and they cannot agree to present, the law doth give the first presentation to the eldest, and this privilege shall descend to her issue, nay, her assign shall have it, and so shall her husband that is Tenant by the courtesy have it also. 22 A partition between jointenants is not good without deed, Partition b● parol & 〈◊〉 although it be of lands, or other things, which may pass without deed, & albeit they be now compellable to make partition by the Stat. of 31 H. 8. ●0. & 31 H. 8. 32. because they must pursue one of those Acts (as their case is) by writ de partitione facienda, Co. ib. 169. a. 1 and a partition between jointenants without writ remains at the common law as it was before those Statutes, which could not be done by parol, and therefore such partition is merely by Act of the parties: So it is also and for the same reason of tenants in common: Dier 29. a. 194. 28 H. 8. But between Coperceners' partition may be made by parol without deed, and that not only of lands and other things, that may pass by livery without deed, but likewise of things that do lie in grant, as rents, Commons, Advowsons', and the like, that cannot pass by grant without deed, and that whether they be in one and the same County, or in several Counties: because in such partitions the act of the parties cooperateth with the act of law: so likewise if two teannts in common make partition by parol & execute the same in severalty by livery, this is good and sufficient in Law, because here also the act of the party worketh together with the Livery, which is an Act of Law: And therefore where Books say, that joint-tenants made partition without Deed, it must be intended of Tenants in Common, and executed by Livery: But the chiefest Reason why Perceners have this Privilege above joint-tenants or Tenants in Common is, because they come to their Estates by Descent, which is an Act in Law, but these by Purchase, which is an Act of the parties: And the Reason why joint-tenants cannot make Partition by Parol, with Livery, as Tenants in Common may, is because betwixt Tenants in Common, there is only privity in possession, but betwixt joint-tenants, there is as well privity in Estate, as privity in possession, and therefore they cannot convey their Estates one to another, without Deed, as Tenants in Common may, who have several Estates, and claim under several Titles. Rend, etc. may pass without Deed. 23 An Exchange of Lands in the same County may be without Deed, Co. ib. 169. a. 3 Littl. §. 251. but a Rent granted for Egalty of the same Exchange cannot be without Deed; yet if two Messages descend to two Coperceners the one worth 20 s. per annum, and the other worth 10 s. the assignment of 5 s. per annum, to be paid to the Copercener, that hath the Message of 10 s. per annum, and her Heirs, is good by Parol without Deed: And the Reason of this is, because Coperceners are in by Descent, which is an Act of Law, but the Exchange is the Act of the parties: So it is also of Common of Estovers, a Corodie, Common of Pasture, etc. or of a Way granted by one Copercener to the other; All which (and the like,) albeit they lie in Grant, yet may they upon the Partition be granted without Deed, causa qua suprà. One Copartner married. 24 If there be three Coperceners, Co. ib. 169. b. 3. and one of them be married, and for Egalty of partition the Husband and Wife grant a Rent to the other two, out of the part of the Feme Covert, this partition (albeit it be not by Fine) being equal, shall charge the part of the Feme Covert for ever, causa qua, etc. ●●tition by ●●ons, and 〈◊〉, and In●●●s. 25 If two Coperceners of Lands take Barons, Co. ib. 171. a. 2 Litt. §. 256, 257. and they and their Barons make Partition, if the Partition was un-equal, at the time it was made, after the Baron's death it may be reform, and it shall not bind the Copercener that was wronged, but if then the Partition was equal, (albeit it was not by Fine, it shall bind them for ever; because the Partition is made as well by Act of Law, as by that of the parties, the Barons and Femes being compellable by Law to make Partition: And therefore if after such Partition made, the Land become un-equal, by any matter subsequent, as by surrounding, ill Husbandry, or the like, yet the Partition remains good: So likewise in Case of an Infant, Co. ib. 171. a. 4 Littl §. 258. if the Partition be equal at the time of the Allotment, it shall bind him for ever, because he is compellable by Law to make Partition, and he shall not have his age in a partitione facienda; And though the Partion be un-equal, and the Infant hath the Lesser part, yet is not the Partition void, but voidable by his entry; for if he take the whole profits of the un-equal part for his full age, the Partition is made good for ever; And therefore Littleton (Sect. 258.) giveth him a Caveat, that in that Case he take not the whole profits of his un-equal part, neither shall a unequal part in the Chancery bind an Infant: but a Partition made by the Writ of Partitione facienda, by the Sheriff upon the Oath of 12 men, and judgement thereupon given, shall bind the Infant, though his part be unequal, Co. ib. 172. a. 2. for this is by Act of Law: And generally whatsoever an Infant is bound to do by Law, the same shall bind him, albeit he doth it without suit of Law: as if an Infant be Executor, here, upon payment of any Debt due to the Testator, he may make an acquittance, but in that Case a Release without payment (before his age of 21 years,) is void. Littl. 5. 260. Co. ib. 173. a. 3. 26 Partition amongst Coperceners maketh no Discontinuance; Partition makes no discontinuance. for if Lands be given to a man in tail, who hath as much Land in Fée-simple, and he hath issue two Daughteas and dies, and the Daughters make partition, so as all the Fée-simple Lands are allotted to the youngest Sister, and the entailed Lands to the Eldest, in this Case, after the Death of the youngest Sister, her issue (after the alienation of Fée-simple Lands by her Mother) may enter into the entailed Lands, and hold them in property with her Aunt, because the issue had 〈◊〉 recompense for the moiety of the entailed Land, and such Partition made no Discontinuance; because (in that Case) it passed not by Livery of Seisin, which is an act in Law, but the Partition is in truth less than a Grant, for that it maketh no degree, but each Copercener is in by descent from the Common Ancestor. Littl. §. 263. Co. ib. 174. b. 3 27 If there be three or four Perceners, who make Partition, The Parceners part evicted. and the part of one of them is evicted by lawful entry, in this Case she shall hold the other Lands with her other Sisters, and so it is also between the surviving Perceners; and the Heirs of the other, or with the Heirs of Perceners, all being dead: It is otherwise of joint-tenants, that make Partition by Deed, for that is by act of the parties, Littl. §. 290. Co. ib. 187 a. 3. and then the Warranty is destroyed: but if joint-tenants make Partition by Writ upon the Statutes of 31 or 32 of H. 8. the Warranty continues, because that is by Act, and in Course of Law: but Perceners and their Heirs coming in by Act of Law, viz. by Descent have the same Privilege above joint-tenants after Partition, as aforesaw. Co. ib. 81. b. 2. 28 There is a Diversity between Authorities created by the parties for private Caus●●, and Authority created by Law, Authorities 〈◊〉 do a thing. for Execution of justice; As if a man make a Letter of Attorney to two, to do an Act, if one of them die, the Survivor shall not do it, but if a Venire Facias, be awarded to four Coroners to impanel and return a jury and one of them die, yet the other shall execute and return the same: So if a Charter of Feoffment be made, and a Letter of Attorney to four or three jointly and severally to deliver Seisin, two of them cannot make Livery, because it is neither by them four or three jointly, nor by any of them severally; but if the Sheriff upon a Capias directed to him, make a Warrant to four or three jointly or severally to arrest the Defendant, two of them may arrest him, because it is for the Execution of justice. Co. ib. 192. a. 2 Littl. §. ●02. 29 If there be two Coperceners in Fee, Partition of Parceners, an● Joyntenants. and the one makes a Lease for life, this is no severance of the Copercenery, for no withstanding that Lease, the Lord shall make one Avowry upon them both: but if there be two joint-tenants, and one of them makes a Lease for life, this is a severance of the jointure, and several Avowries shall be made upon them; And here the Reason is, because Coperceners come in by Descent, but joint-tenants by purchase the first ●●ing the Act of Law, and the other the Act of the Party. Co. ib. 215. a. 1. 30 At the Common Law before the Statute of 32 H. 8. 34. Condition's i● Deed, and 〈◊〉 Law. the Grantée of a Reversion after an Estate for life or years could not take advantage of a Condition in Deed, as if Land were let for life or years rendering Rend upon Condition that if the Rent were not paid at the day, the Lessor and his Heirs might re-enter, here if the Grantée of the Reversion could not (before that Statute) take advantage of Entry upon the breach of that Condition for the nonpayment of the Rent at the day limited by the Lease: Littl. § 384. Co. ib. 236. b. 3. But before that Statute and since, the Grantée of a Reversion may take advantage of a Condition in Law; As if a man make a Lease for life; there is a Condition in Law annexed unto it, that if the Lessée doth make a greater Estate, etc. that then the Lessor may enter; & if this and the like Conditions in Law, which do give an Entry to the Lessor, the Lessor himself and his Heirs shall not only take benefit of it, but also his Assignée, and the Lord by Escheat, every one for the Condition in law broken in their own time. Condition apportioned. 31 Since the making of the said Statute of 32 H. Co. ib. 215. a. 3 the Grantée of part of the Reversion shall not take advantage of the Condition, as if a Lease be made of three acres, reserving a Rent upon Condition, etc. and the Reversion is granted of two acres, the Rent shall be apportioned by the act of the Parties, but the Condition is destroyed, for that it is entire, and against Common Right: Dumpors case. Co. l. 4. 120. a. 4. But by act in law a Condition may be apportioned, as if a lease for years be made of two acres, one in the Nature of Borough English, and the other at the Common Law, and the lessor having issue two Sons, dieth, each of them shall enter for the Condition broken; for the Reversion, Rent, and Common, are divided by act in Law: In the King Case also the Condition in such Case shall not be destroyed, but shall still remain in the King. ● Condition ●●possible by 〈◊〉 act of God. 32 If Feoffment be made upon Condition, Co ib. 219. a. 1. Littl. § 352. that the Feoffée shall give the land to the Feoffor and his Wife, to have and hold to them and the heirs of their two Bodies, the Remainder to the right heirs. In this Case if the Feoffée die before any Feoffment made, then is the Condition broken, because he made not the Estates, etc. within the time prescribes by the law; for when no time is limited for the doing of it, than the Feoffée at his peril may perform the Condition during his life (although there be no request made) or else the Feoffor or his heirs may enter; but if the feoffment be made upon Condition, that the Feoffée before the Feast of S. Michael, next coming shall give the Land to the Feoffor and his Wife in tail, ut supra, and before the day the Feoffée dieth, the State of the Heir of the Feoffée shall be absolute, because a certain time is limited by the mutual agreement of the parties, within which time the Condition becometh impossible by the Act of God: And therefore it is necessary in such Case when a day is limited, to add to the Condition, that the Feoffée or his Heirs shall perform the Condition. The Mortga●●● dies be●●t the day. 33 If a man mortgage his Land to another, Co. ib. 219. b. 3 upon Condition that if the Mortgageor, and I. S. pay 20 s. at such day to the Mortgagée, that then he shall re-enter; Here, if the Mortgageor being in full life, will not pay the Money, but refuse to pay it, and I. S. alone tenders it, the Mortgage may refuse it: But if the Mortgageor die before the day, and I. S. pays the Money to the Mortgagée, this is a good performance of the Condition, and yet the Letter of the Condition is not performed; but because the Mortgageor dies by the Act of God, that shall not dis-able I. S. to pay the Money; So also it I S. had died before the day, the Mortgageor might have paid it. ●●ewing of a ●eed to prove ● Condition. 34 Regularly, a man by Plea shall not defeat an Estate of Franktenement, by force of a Condition, Littl. § 365. Co. ib. 225. b. 4. unless he produce the proof of the Condition in writing, etc. yet if a Guardian in Chivalry in the Right of the heir enter for a Condition broken, he shall plead the State upon Condition without showing of any Deed, because his Interest is created by the Law: So it is also of a Tenant by Statute Merchant or Staple, or Tenant by Elegit: Likewise Tenant in Dower shall plead a Condition, etc. without showing of the Deed, and the Reason of these Cases and the like is, for that the Lord doth create these Estates, and they come not in by him, that was to enter for the Condition broken, so as they might provide for the showing of the Deed, but they come into the Land by Authority of Law, and therefore the Law will allow them to plead the Condition witheut showing of it, yet the Lord by Escheat (albeit his Estate be also created by Law) shall not plead a Condition to defeat a Frée-hold without showing of it, but this is because it is conceived the Deed belongs to him; neither yet shall a Tenant by the Courtesy plead a Condition made by his Wife, In Doctor Leyfields Case, in fine. Co. l. 10. 94. b. and a reentry for a Condition broken, without showing the Deed; for albeit his Estate is also created by Law, yet because the Law presumes that he had the Possession of the Deeds and Evidences belonging to his Wife, it will not allow him that Privilege. Vide infra Ru. 56. Co. ib. 264. b. 4. 35 There is a diversity between a Realease in Deed, A Release in Deed, and in Law. and a Release in law; for if the Heir of the Disseisor make a lease for life, and the Disseisée release his Right to the lessée for his life, his Right is gone for ever: but if the Dissesée doth disseise the Heir of the Disseisor, and make him a lease for life, by this Release in law the Right is released, but during the life of the lessee: for a Release in law shall be expounded more favourably, (according to the intent and meaning of the parties) than a Release in Deed, which is the act of the party, and shall be taken most strongly against himself. Co. ib. 266. a. 2, etc. 36 Rights are distinguished by three kinds, Jus proprietatis, Rights distinguished. Jus possessionis, and Jus proprietatis & possessionis, alias, Jus duplicatum, or droit, droit: For example, if a man be disseised of an acre of land, the Dissisée hath Jus proprietatis, the Disseisor Jus possessionis, and if the Dissiesée release to the Disseisor than hath he Jus proprietatis & possessionis: Now regularly it holdeth true, Right extinct, & contra. that when a naked right to land is released to one that hath Jus possessionis, and another by a mean Title recover the land from him, the Right of Possession shall draw the naked Right with it, and shall not leave a Right in him, to whom the Release is made; So the Heir of the Disseisor being in by Descent, A. doth disseise him, and the Disseisée releaseth to A. now hath the mere Right of the land; but if the Heir of the Disseisor enter into the land, and regain the Possession, that shall draw with it A the mere Right to the land, and shall not regain the Possession only, and leave the mere Right in A. but by the continuance of the Possession, the mere Right is therewith vested in the Heir of the Disseisor; And the Reason of this is, because the Right is conveyed by Release, which is the act of Party: but when the mere Right is subsequent, and transferred by act in law; there albeit the Possession be recontinued, yet that shall not draw the naked Right with it; but shall leave it in him: As if the, Heir of the Disseisor be disseised, and the Dissesor enfeoff the Heir apparent of the Disseisée being of full age, & then the Disseisée dieth, & the naked right descends to his Heir, and the Heir of the Disseisor recovers the land against him, yet doth he leave the naked right in the heir of the Disseisée; So if the Discontinuée of Tenant in Tail enfeoff the issue in Tail of full age, and Tenant in Tail die, and then the Discontinuée recovers the Land against him, yet he leaveth the naked right in the issue. ●●e of 〈◊〉 37 If the heir of the Disseisor be disseised, Co. ib. 266. a and the disseisée release to the Disseisor upon Condition, if the Condition be broken, it shall revest the naked right: So likewise if the Disseisée had entered upon the heir of the Disseisor, and made a feoffment in fee upon Condition, if he entered for the Condition broken, and the heir of the Disseisor entered upon him, the naked right should be left in the Disseisée: but in these Cases, if the heir of the Disseisor had entered before the Condition broken, than the right of the Disseisée had been gone of ever, because the right (in these cases) was conveyed by release and feoffment, which are Acts of the party, it had been otherwise, if they had been transferred by Acts of Law, as in the Cases put before in the example last aforegoing. ●●●se of ●dition. 38 There is a diversity between a Right, which is favoured in law; Co. ib. 274. b. 1. Litt. § 467. and a Condition created by the party, which is odious in Law, for that it defeateth Estates, and therefore a right may be released upon Condition, and if the Condition be broken, the Right shall revest: but if a Condition be released upon Condition, the release is good, but the Condition void. release of a●●●s, 39 In a mixed Action a release of all Actions real is a good bar, Co. ib. 285. a. 2. Litt. §. 492. and so is a release of all Actions personal; for a man by his own act cannot alter the nature of his action; and therefore if the Lessée for life or Lessée for years do waste, now is an Action of waist given to the Lessor, wherein he shall recover two things, viz. the place wasted, and triple damages: and in this Case, if the Lessor release all Actions Real, he shall not have an action of waste in the personalty only; Also if he release all Actions Personal, he shall not have an action of waste in the realty only: and so it is also, where the Lessée doth waste, and after surrendreth to the Lessor his Estate, and the Lessor accept thereof, here also the Lessor shall not have an action of waist: howbeit, by act in Law the nature of the action may be changed, as if a man make lease pur term d'auter vie, and the Lessée doth waste, and then Cestuy que vie dieth, In this Case an action of waste shall lie for damages only, because the other is determined by act in Law: So likewise if an action of waist be brought against Tenant pur altar vie, and hanging the writ Cestuy que vie dieth, the writ shall not abate but the Plaintiff shall recover damages only, because if Cestuy que vie had died before any action brought, the Lessor might have had an action of waste for the damages, as aforesaid. ●t-secke. 40 Grant of a Rent-secke without attornment, is not good: Co. ib. 209. b. 3 for the grantée cannot distrain for it without attornment, or seisin otherwise, because it is conveyed by the single act of the parties: But if there be Lord, Mesne and Tenant, and the Mesne grant over his mesnalty by deed, the Lord releaseth to the Tenant, whereby the mesnalty is extinct by act in Law, in this Case, if there be a Rent by surplusage, it is now changed into a Rent-secke, and albeit there be no express attornment for it, as a Rent-secke, and that the quality of that part of the Rent is altered from a rent-service to a rent-secke: yet because it is altered by act in Law, the attornment to the grant of the mesnalty is a good attornment for that Rent-secke by surplusage. Vid. sup. 17. ●●e. 41 If an house fall by tempest, or other act of God, Co. l. 4. 63. 2. 4 Herlakendons Case. the lessee for life or years hath special Interest to take the great Timber, to build the house again, if he will, for his habitation: but if the lessée pull down the house, the lessor may take the great Timber, as a thing, which was parcel of his Inheritance, and in which the interest of the lessée is determined (as in Case of trees and for the same reason) and yet he may have an action of waste, and recover triple damages. Co. lib. 5. 5. in the Lord Mortwyes Ca 42 If Tenant in tail be restrained by Statute to demise his Estate otherwise then by reserving thereupon verum & antiquum redditum, Demise by Tenant in tail. and the Estate being a Manor consisting of Frée-rents, Copi-rents, and Lease-rents, he demiseth the whole Manor reserving a rent amounting to the sum of all those rents, whereas the demesnes only were formerly demised rendering rent: or if his Estate were two Farms anciently let, viz. one at 20 l. per an. and the other of 10 l. per an. and he demiseth them both together by one Indenture, reserving 30 l. per an. In these and the like Cases, such demises will only hold farm during the life of the Tenant in tail, and after his death his issue shall avoid them: for here the true and ancient rent is not reserved, and being thus altered by the act of the party, they shall not bind the issue in tail: But if there be two Coperceners seized of land in tail, which was formerly let at 10 l. per an. one of them may demise her part or moiety at 5 l. per an. and it shall bind her issue; so likewise if a Manor hath been always demised at 10 l. per an. and after a tenancy, escheats, yet it may be still demised at 10 l. per an. and yet it may be said, that now the 10 l. per an. is not verus & antiquus redditus, for no rent was ever yet reserved out of the land escheated: But these two last Cases differ from the former, in as much as Coperceners, and the Lord by escheat are in by act of Law and of God, which shall not prejudice any: But if the Lord had purchased the tenancy, it had been otherwise, for than he had been in by his own Act, and not by Act of Law. Co. lib. 5. 22. Laughters ca 43 When the Condition of an Obligation consists of two parts in the disjunctive, and both are possible at the time of the Obligation made, Condition disjunctive. and after one of them becomes impossible by the Act of God, the obligor is not bound to perform either part: So if A. be bound to B. upon Condition, that if A. marry I. and together which I. do sell the land of I. if then A. do purchase to I. and her heirs so much land, as the money received for the other land sold amounts unto, or else shall leave her worth so much at his death, that then, etc. In this Case, albeit A. marry I. and they join in the sale of her land, yet if A. survive I. it is made impossible by the Act of God to perform the first part of the disjunctive condition, viz. to convey land unto her, and therefore he is also discharged of the last part also. Co. l. 5. 85. Sir Henry Knivets' Case. 44 Tenant for life lets for years, the Tenant sows the land, Land sove● and before the grain is ripe Tenant for life dies, here the interest of the grain is in the Lessée for years, who may lawfully enter and take it, when it is ripe: for the Tenant for lives dieth is by act of God, which shall prejudice none: So if there be Tenant for life remainder in Fee, the Tenant for life demiseth for years, the Tenant for years is outed, and the Tenant for life disseised, the Disseisor lets for years, the dissors Tenant sows the land, Tenant for life dies before the grain is ripe, he in the remainder enters, the Lessee of the disseisor enters upon him, he in remainder brings an Action of Trespass: In this Case, he in remainder may justify his entry, but hath no right in the grain: also the disseisors lessée may justify the taking of the grain, because of his possession, but the mere right of the grain is in the lessée of the Tenant for life, and he shall recover in Trespass against the disseisors lessée damages for the grain. C. l. 6. 1, & 2. in Brivertons Ca See more of this learning in Talbots Case Co. l. 8. 105. & in Leyfields Case, Co. l. 16. 107, & 108. 45 If one holdeth land of his Lord by the yearly service of a Spur, Horse, or the like, and the Lord purchase parcel of the tenancy, Entire serum such entire services are gone, because such service cannot be servered or apportioned, and he hath discharged p●rt thereof by his own Act: So it is also when the original Act is the Act of the Party, mixed with an Act of Law, as by recovery in a Cessavit of parcel of the tenancy all the entire services are gone; But if parcel descend to the Lord, where the tenure is by a spur, horse, or the like, there it is otherwise; because that comes to him singly by Act in Law: Howbeit, when such service is to be performed by Coperceners, where (by the Statute of Malbridge c. 9) one is to do the service, and the rest are to contribute (the same Law being also of their vendées by equity) there if any part come to the Lord either by Act of the party or of Law, yet the whole service is gone, for there contribution fails, and the Law will rather suffer things against the principles of the Lord, than a man shall be without remedy, according to Rule 144. ●verance of Manor. 46 If there be grant and render by fine of the demesnes of a Manor, here albeit this be done in an instant, Co. l. 6. 64. a. in Sir Moyle Finches Case. so as there was no transmutation of any possession, yet the demesnes being once by Act of the party absolutely severed in the fée-simple from the services of the Manor, the Manor is destroyed for ever: So likewise if a man hath a Manor and he grants part of the demesnes and part of the services to another he shall not have a Manor, for a man by his own Act cannot create a Manor at this day: But if there be two Coperceners of a Manor, and upon partition the demesnes are allotted to one, and the services to another, here albeit in this Case there is an absolute severance, yet if one of them die without issue, and the demesnes descend to her, that hath the services, the Manor is again revived; because upon the partition they were in by Act in Law, and the demesnes and services were again revicted by the Act in Law: So also if upon the partition an advowson appendent be allotted to one, and the Manor, unto which it is appendent, be allotted to the other, and after one of them dies without issue, whereby the Law unites them again, in this Case, the advowson which was once severed, shall be again appendent to the Manor: Also if two Coperceners have a Manor, and upon the partition each hath parcel of the demesnes, and parcel of the services: here, because each of them is in by Act of Law, each of them hath a Manor. In Office not ●●●isable for ● year's. 47 The Office of Marshal of the King's Bench cannot be granted for term of years, Co. l. 9 97. a. in Sir Geo. Requols Case. because being then a Chattel and an Office of trust, by the death of the Lessée it may happen to fall into the hands of such persons as are not fit to be trusted with that place: but yet, by Act of Law, a term (which is but a Chattel) may be in such an Office, as appears in 5 E. 4. 3. for the Duke of Norfolk had an Estate-taile in an Office holden of the King in Capite, and dies, his heir within age and it was found by Office: In this Case the King had a Chattel in that Office, viz. during the minority, and in that Case if the King die, it shall descend to the next King, and shall not go to his Executors or Administrators, for an Act in Law shall not introduce any inconvenience: And the King having such an Office during the minority, it seems he cannot grant it for life, or years, or during the minority, because that may prove inconvenient for the reasons above alleged, but at will he may grant it, for that is no certain Estate. A Seignory, etc. suspended. 48 By the Act of the party (whether right or wrong) all a Seignory, etc. may be suspended: Co. lib. 9 135. a. 3. in Ascoughs Case▪ And therefore if the Lord or Lessor disseise or out the Tenant or Lessée of any part, all is suspended: also if a Commoner take a Lease of any part of the land, in which, etc. all the Common is suspended: But by Act of Law a Seignory may be suspended in part and in esse for the other part: So if a Lord seize the Wardship of the Land of his Tenant by Knight-service, now is the Seignory suspended, but if the guardian endow the Feme of the Tenant of a third part of the Tenancy, now is the third part of the Seignory revived, and the Tenant in dower shall be attendant upon the guardian for the third part of the services, because Tenant in dower is in by Act of Law: and for the same reason, if a man seized of lands in fee takes Feme, and enfeoffs another, the feoffée grants a rent-charge to the Baron and Feme and too the heirs of the Baron, the Baron dies, the Feme is endowed of a third part of the land out of which the rent issuing, in this Case the third part of the rent, which the Feme hath for life, is extinct, and two parts of the rent remains to her, issuing out of the other two parts of the land: for although it be a rent-charge, which regularly cannot be apportioned, yet by Act in Law it shall be apportioned: so likewise if the Guardian in Knight-service seize the land of one coheir within age, the other being of full age, there the Seignory is suspended for a moiety, and in esse for the other moiety: And if there be two Coperceners of a Seignory, and the one disseise the land Tenant, or comes to the land by defeasable title, the other may distrain her for her moiety of the Seignory: because these also come in by Act of Law. Co. l. 10. 94. b. 3. Doctor Leyfeilds' Case. 49 When the Interest of a thing is gained by Act of the party, Showing forth of a deed. in defence of the title thereof the party interessed must produce to the Court the Deed, by which he claims: So in Trespass, the Defendant pleads the Queen's grant of the Rectory of O. to A. but shows not the Letters Patents, this is error, because this Estate being gained by the Act of the party, ●e might in time have provided for his defence: but when a particular Estate or interest is created by Law, the party interessed shall not be forced to show forth the Deed: So guardian in Chivalry, or Tenant in dower may plead a release without showing it: There is the same Law also of Tenant by Statute, Merchant, Staple, Elegit, etc. because they also come to the possession by execution of Law, and against the will of the terretenant, who hath the deed, for Judici●m redditur in invitum. Co. l. 10. 104. b. 3. in Alfridus Deubawdes Case. 50 A Tales ought not to be granted after a full jury appears and is sworn, and yet if a jury be charged, A Tales granted. and after and before Verdict given in Court one of them is taken away by death which is the Act of God, in that Case a Tales shall be awarded, and no new venire facias, and with this accords 12 H. 4. 10. so likewise if any of the jurors impanelled die before they appear, and that appears by the Sheriff's return, the Panel shall not abate, (but if need be) a Tales shall be awarded, Vide 20 E. 4. 11. F. N. B. 31. m. 51 If a man usurp upon an Infant and present, Usurpation upon an Infant. which Infant hath an Advowson by descent, and after the Incumbent die, the Infant shall present, and if he be disturbed, he shall have an Assize de darreine presentment: But if the Infant purchase the Advowson, and present, and after the Church is void, and a stranger presents and usurps upon the Infant, and after the Incumbent dies, in this Case the Infant shall not have an Ass●● of darreine presentment, but shall be put to his writ of right: because in the first Case he is in by Act in Law, viz. descent, but in the last Case by act of the party. F. N. B. 34. s. 52 If a Feme purchase an Advowson, and takes Baron, A Feme hath an Advowson. and the Church is void, and a stranger presents, and the Baron suffers this usurpation; here by this usurpation the Feme shall be out of possession after the six months past, and shall be put to her writ of right of Advowson, if she had presented before; but if she had not presented before, she is without recovery: howbeit, the Law is otherwise, where the Feme hath the Advowson by descent or by course of inheritance, which is an Act in Law. G●ant good without ac●●eament. 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant, before the Tenant hath attorned; Fitz. N. B. 60. I but if a Reversion escheat to the Lord, he shall have a Writ of Waste against the Tenant without any Attornment: Or if the Lord of a Villain claim a Reversion, that the Villain hath, here also the Lord shall have a Writ of Waste against the Tenant, if he make Waste, without Attornment: So also if the King grant a Reversion by his Letters Patents, the Grantée shall have a Writ of Waste without Attornment, because the Grantée being in by matter of Record, he is conceived in by act of Law: in like manner, if (before or since the Statute of Wills,) a man deviseth a Reversion to one in Fee, the Devisée shall have a Writ of Waste against the Tenant without Attornment: for before the said Statute he was in by Custom, and since the Statute by force of the same Statute, which are acts in Law. A writ of ●esne. 54 If Tenant for life be distrained by the Lord Paramount for Services, Fitz. N. B. 136. g. a Writ of Mesne doth not lie for him against him in remainder or reversion, but against the Mesne, yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner, because she comes to her Estate by Act of Law. 55 In real Writs original, if one be summoned and severed, Co. l. 10. 134. b 2. in Read & Redmans' Case. and afterwards dies (which is the Act of God) this shall abate the Writ: but the taking of Baron or Entry into the Land, by the party, that is so summoned and severed, shall not abate the Writ, because these are acts of the party, and the Writ by such acts (where there is no summons or severance) becomes only abatable. Guardian may ●ead without ●ewing a Deed. 56 A man cannot plead in any action, Littl. §. 365. Co. Inst. p. 1. 225. b. 4. that the Estate was made in Fee, Fée-taile, or for life upon Condition, without vouching a record thereof, or showing a Writing under Seal, proving the same Condition: but if a Guardian in Chivalry in the right of the Heir entereth for a Condition broken, he shall plead the Estate upon Condition, without showing of any Deed; because his Interest is created by the Law; And so it is also of a Tenant by Statute Merchant, or Staple, or by Elegit. Howbeit the Lord by Escheat, Co. ib. 226. a. 1 although his Estate be created by Law, shall not plead a Condition to deseat a Frée-hold, without showing a Deed, because the Deed doth belong unto him. Vide supra Ru. 34. 〈◊〉. ●iry. 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for years is always grounded upon a privity, and if the privity fail, Dyer 4. b. 3. 24 H. 8. the action also fails, and so it is adjudged in 18 H. 6. that if a man make a Lease for years, rendering rend, albeit the Lessee never enters, or occupies the land, yet the Action of Debt lies for the privity: But in 9 H. 6. a man makes a lease for years rendering rend, & the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent, because he was not privy, but a stranger to the first Lease: Howbeit, when the Law makes a privity it is otherwise, as if a Lease be made to one for years rendering rend, and the Lessée makes his Executor, and dies, an action of Debt lies against the Executor for the rent, because he is made privy by the Law. ●portion. ●ct of rent. 59 At the Common Law there could be no apportionment of rent, Dyer ib ●●. by the act of the party, but only by act of Law, for if the Tenant before the Statute of Quia Emptores terrarum, Anno 18. E. 2. had made a Feoffment in Fee of part of the Tenancy, the Lord might distrain in that part, for all the rent, but at the Common Law if a man had made a Lease for years of two acres of Land (the one in Borough English, and the other in Gavelkind,) and had issue two Sons and died; In this Case, this rent should be apportioned, because this rent descended to them by Course of Law. So if Lessée for years make a Feoffment of parcel of the Land leased, and the Lessée enter for the Forfeiture into that parcel; In this Case also the rent shall be apportioned, because this Title of Entry is given to the Lessor by the Law. Dyer 246. 68 8 Eliz. 60 After the Teste of a Writ of Covenant, Fine of Feme Sole. and the Dedimus potestatem, and the Conusance of a Fine taken of a Feme Sole, and before the day in Bank, to record and engross the Concord, the Feme takes Baron, yet it shall be recorded and engrossed at the Fine of the feme sole; for she had done all that in her lay to do; And such a fine shall bind the feme and her Heirs, and also the Baron, as it seems, for the marriage of the feme was her own Act: It had been otherwise if in that mean time she had died, being the Act of God, for then the Writ of Covenant had abated. 115 Utique fortior, est dispositio Legis, quam hominis. Co. Inst. p. 1 310. a. 1. & ●87 b. 2. 1 If a reversion be granted to a man and a woman, Attornment 〈◊〉 Baron and Feme. they are to have moities in law, but if they intermarrie, and then attornment is had, they shall have no moities (and yet by the purport of the Grant they are to have moities,) because it is by Act in Law. Vide Pl. Co. 483. a. 1. Co. ib. 310. a. 2. 2 If a reversion be granted for life, the remainder in tail, Attornment 〈◊〉 the particular tenant and remainders. the remainder in fee, attornment to the Grantee for life shall enure to them in the remainders to vest the remainders in them; And in this Case, albeit the Tenant upon the Attornment should say, I do attorn to the Grantée for life, but that it shall not benefit any of them in remainder, after his death, yet he Attornment is good to them all; for having attorned to the Tenant for life, the law (which he cannot control) doth rest also all the remainders, according to the purport of the Grant. Co. ib. 321. a. 4 Littl. 5. 585. 3 Regularly, Grant of a Signiory good without Attornment. the Grant of a Seignory is not good without Attornment, yet if there be Lord, Mesne, and Tenant, and the Mesne grant by fine the Services of his Tenant to another in fee, and after the Grantée die without Heir, so as the mesnalty comes to the Lord paramount, by way of Escheat, and after the Services of the Mesnalty are in arrear; In this Case, the Lord paramount may distrain the Tenant, albeit he never attorned; For the Seignory being by Act in law, (by the Escheat) drowned in the Mesnalty; the Lord shall have as much benefit of the Mesnalty escheated, as he had of the Seignory drowned, and the rather for that the law casteth it upon him, and he hath no remedy to compel the Tenant to attorn. Littl. §. 584. Co. ib. 321. b. also in Marlories Case. Co. l. 5113. a. 4. 4 If the reversion of a Tenant for life be granted by fine to another in fee, and the Grantée (before attornment) die without Heir, Grant of a Reversion without Attornment. so as thereby the reversion escheates to the Lord; if afterwards the Tenant make waste, the Lord shall have a Writ of waste against him, albeit he never attorned; And yet where men claims by force of a Grant made by Fine, viz. as Heir, or as Assignée, etc. there he shall not distrain or avow, ●or have an action of waste, without Attornment; And the reason of the former Case is, because the Lord is in by Escheat, which is a mere Act in Law: Howbeit, so it is also, when it is partly by Act in Law, and partly by the Act of the party, as if the Conusée of a Statute Merchant extendeth a Seignory or rent, he shall distrain without any Attornment, because he is in by force of the Statute: So also if a man make a Lease for life or years, and after levy a fine to A. to the use of B. and his Heirs, B, shall distrain and have an action of waste, albeit the Conusée never had any Attornment, because the reversion is vested in him by force of the Statute, and he hath no remedy to compel the Lessée to attorn. There is the same Law also of a Bargain and Sale by Deed indented and enrolled, for in that Case also the Bargainée is in by force of the Statute. A Surrender in Law. 5 A Surrender in Law is in some Cases of greater force, Co. ib. 338. a. 2. in Sir Moil Finches Case. Co. l. 6. 96. b. 3. And in the Churchwardens Case of S. Saviour. Co. l. 10. 67. b. Co. ib. 354. b. 3. Litt. §. 673. than a Surrender in Deed; As if a man make a Lease for years to begin at Michaelmas next, this future interest cannot be surrendered, because there is no reversion, wherein it may be drowned; but by a Surrender in Law it may be drowned; As if the Lessée before Michaelmas take a new Lease for years, either to begin presently, or at Michaelmas, this is a Surrender in Law of the former Lease: Fortior & aequior est dispositio legis, quàm hominis. Divesting an Estate out of the King. 6 A Gift in Tail is made to B. the remainder to C. in Fee, B. discontinueth and taketh back an Estate in Tail, the remainder in Fee to the King by Deed enrolled, Tenant in Tail dieth; In this Case, his issue is remitted, and (consequently) the remainder: And the difference is betwixt an act in Law (for that may divest an Estate out of the King,) and a tortuous Act or Entry, or a false or feigned Recovery against Tenant for life or in tail, which shall never divest any Estate, Remainder, or Reversion out of the King: But a Recovery by good Title against Tenant for life, or in Tail, where the Remainder is to the King by defeasible title, shall divest the Remainder out of the King, and restore and remit the right owners. Grant of a presentation. 7 If a man seized of an Advowson in fee by his Deed granteth the next presentation to A. and before the Church becometh void, Co. ib. 378. b. 4. by another Deed grants the next presentation of the same Church to B. In this Case, the second Grant is void; for A. had the same granted to him before, and the Grantée shall not have the second avoidance by Construction, viz. to have the next avoidance after it, which the Grantor might lawfully grant; For the Grant of the next avoidance cannot import the second presentation: But if a man seized of an Advowson in fee take wife; now by act in Law is the wife entitled to the third presentation, if the husband die before; In this Case if the husband grant the third presentation to another, and then the husband die, the heir shall present twice, and the wife shall have the third presentation, and then the Grantée the fourth; for the fourth presentation shall in this Case be taken to be the third, which he might lawfully grant: And so note a diversity between a Title by Act in Law, and by act of the party, for the act in law shall work no prejudice to the grantée. Warranty express, and in law. 8 An express Warranty shall never bind the heirs of him, Co. ib. 384. b. 3. that maketh the Warranty, unless they be named: For example (Littleton saith) Ego & haeredes mei, but in Case of warranties in law in many Cases the heirs shall be bound to Warranty, albeit they be not named, as Tenant in Dower (who hath a Warranty in Law) being impleaded, shall vouch and recover in value a third part of the two parts, whereof she is dowable, etc. Idem by will. 9 It is a Maxim in Law, Co. ib. 386. a 1. Littl. §. 734. that the heir shall never be bound to any express warranty, but where the Ancestor was bound by the same warranty: And therefore if Tenant in tail alien his Land to his brother in fee, and hath issue, and die, and after his brother devise the same land to another in fee, and bind him and his heirs to warranty, etc. and die without issue, this warranty shall not bar the issue entail, because this warranty did not descend to the issue in tail, in regard the uncle of the issue himself was not bound to the warranty in his life time, nor chargeable with it, for that the Devise takes not effect until after his death: Also if a man make a Feoffment in fee, and bind his heirs to Warranty, this is void by the Warrant of this Maxim, as to the heir, because the Ancestor himself was not bound: In like manner, if a man bind his heirs to pay a sum of money, this is void; And vice versa, if a man bind himself to warranty, and bind not his heirs, they are not bound; Ego & haeredes mei warrantizantibinius: And Fleta saith, Nota, quod haeres non tenetur in Anglia ad debita antecessoris reddenda, nisi per antecessorem ad hoc fuerit obligatus, praeterquam debita Regis tantum; A Fortiori, in Case of warranty, which is in the realty: Howbeit, the warranty in Law may bind the heir, although it never bound the ancestor, and this also may be created by a last will and testament; As if a man devise lands to another for life, or in tail reserving a rent, the Devisée for life or in tail shall take advantage of this warranty in Law, albeit the antestor was not bound, and such a Devise shall also bind his heirs to warranty, albeit they are not named. Co. l. 1. 83. b. Corbets Case. 10 If a man covenant to stand seized to the use of himself for life, An Estate to cease to one, and to be in another, repugnant. the remainder to A. in tail, the remainder to B. in tail, etc. Provided, that if any of the remainders in tail shall resolve to alien, that then the Estate of him so resolving should cease, as if he were naturally dead, and that it should then go to him in the next remainder; here this Proviso is void and against Law for the repugnancy; for by the words or act of the party an Estate cannot be limited to cease, as to one, Ibid. 86. b. 4. & 87 a. 4. per Walmesley. and from thenceforth to be in another: For if a man make a Lease for life, upon condition, that if he do not pay 20 l. such a day, that another shall have the Land, this future limitation is void, also if a man make a feoffment in Fee of Land to the use of A. and his heirs every Monday, and to the use of B. and his heirs every Tuesday, and to the use of C. and his heirs every Wednesday, these limitations are void, and we find no such fractions of Estates in the Law; And if Coperceners agree to present by Turn, this is a partition as to the Possession, yet nevertheless they shall in a writ of Right; So also partition, that one of them shall have the land from Easter to Lammas, and the other from Lammas to Easter, in severalty, this is good, as to the possession and taking of the profits, but it is no severance of the Estate of Inheritance: Howbeit, an act of Parliament or the Common Law may make an Estate void as to one, and good as to another, but a man by his words, and the breath of his mouth cannot do it: As if Land be given to Baron and feme, and the heirs of their two bodies, and the Baron levy a fine with Proclamations, and hath issue and dies, now this fine by force of the Statute of 32 H. 8. 36. shall bar the issue in tail; but shall not bind the feme, and so in respect of one it is a good bar, and in respect of another no b●rre: Also in a Praecipe, if one be vouched, here as to the Demandant the Vouchée is Tenant, and a Release to him by the Demandant is good, but as to a stranger he is not Tenant; and therefore a Release to him by a stranger is void; in like manner if one hath a Term for years as Executor, and surrender it, here, in one respect the Term is extinct, but in another it is Assets: So that an act of Parliament or the Law may do that in such Cases, which a man by his words cannot do. Co. l. 4. 1. b. 3. in Vernons Case. 11 No collateral satisfaction or recompense made to the Feme, Dower assigned. (either before or after marriage) in lieu of her Dower was any bar of her dower at the common law before the Stat. of 27 H. 8. 10. albeit after the death of her husband she entered thereinto and accepted thereof in recompense of her dower, because by the marriage she being entitled to a fréehold for life, that title shall not afterwards be barred by any collateral satisfaction: Howbeit, dower ad ostium Ecclesiae, or ex assensu patris shall conclude her of her dower, if she enter into the land so assigned after the death of her husband: for the law doth allow these, being made in such form, as the law requires those kinds of dower to be made: It is otherwise, where the dower is made by the Act of party, as aforesaid: The principal Case there. And therefore if B. enfeoffs to the use of himself for life, remainder of his wife for life, upon condition to perform his last will and for her jointure, albeit after the death of her husband she accepts thereof, yet she is not bound by it. ●●●nt-tenants petition. 12 If two joint-tenants (since the Stat. of 31 H. 8. 1. Co. l. 6. 12. b. Morrices Case. which gives them a writ of partitione facienda) do make a partition by deed with consent, albeit they are now compellable by that Statute to make partition, yet because they do not pursue the Stat. to make partition by the writ, such partition remains at the common law, and so (by consequent) the warranty originally annexed to their Estate is gone, but if they make partition by writ provided by the Stat. (to which every one being party none can have any wrong by the operation thereof) the warranty shall remain notwithstanding such partition in severalty: because the first is by the act of the parties, but the other is operation of the Statute which is an act in law, so also if there be two joint-tenants with warranty, and the one disseise the other, and the disseisée brings an Assize: here albeit the Plaintiff pray recovery in severalty, yet he shall recover generally, and in this Case also the warranty shall be preserved, because he recovers by course of Law, and with this agrees 28 lib. Ass. Pl. 35. and Sir Edw. Coke also ubi suprà: albeit there be some Books, that he shall have judgement to hold in severalty, as 10 E. 3. 40. & 10. Ass. Pl. 17. T●e Showing 〈◊〉 a Deed, & ●●●a. 13 When a deed is requisite to be had ex institutione juris, C. l. 6. 38. b. 2. Bellamy's Ca it ought to be showed in Court, although it concern a thing collateral, 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 deed: 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 deed of Attornment ought to he shown, for in such Case the deed is requisite ex constitutione Legis: but when a deed is only 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 assign it over but by deed, and not by parol: in this Case ex provisione hominis the assignment ought to be by deed, yet because, ex constitutione legis, the deed is not necessary for the assignée, he may plead the assignment without showing the deed. ●●render. warranty. ●●●●ment. 14 Fortior & aequior est dispositio legis quàm hominis, Co. l. 6. 69. b. 3 in Sir M●ile Finches Case. and therefore he that hath a future interest cannot surrender it by any express surrender but by taking of a new lease (which is an Act and amount to a surrender in law) it may be surrendered and determined, as it is held in 35 H. 6. etc. vide suprà cap. 5. So if the father be enfeoffed in Fee, and the Feoffor warrant the land to him and his heirs, here the assignée shall not vouch, but if the father enfeoff his son and heir apparent with warranty and die, in this Case the heir (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. than the Act of the party can be: So also if A. Lessée for 50 years demiseth to B. for 10 years and then the reversioner levies a fine to B. and his heirs, who enfeoffs D. who outs B. and B. reenters upon D. here, the entry of B. is a good attornment in Law and stronger than an express attornment. Co. l. 8. 82. a. 3 in Vivyors ca 15 Albeit a man be bound in an Obligation to stand to, abide, etc. Authorities revocable. an Atbitrament, yet he may contermand it; For a man cannot by his own 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 assign Auditors to take an account, or if I make one my Factor or submit to an Arbitrament, albeit these are made by express words irrevocable, or if I bind my sel●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 judgement of Law, and make that irrevocable, which of its own nature is revocable. Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwark their Case. 16 The Churchwardens of St. Saviour in Southwark having a Lease of the Rectory almost expired, contracted, Surrenders 〈◊〉 Law. that the Churchwardens 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 fees there, but did not take care that the Letters Patents were ●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 express surrender without deed in writing under their seal, 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 years rendering Rend, if the Prior by deed expressly release the rent, and die, the Successor shall recover the arrearages, 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. 1●. 80. b. 4 in Lewes Bowles Case. 17 The Estate of a Tenant in Tail after possibility, Tenant is tail after possibility, ● etc. aught to be a Roman 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 Tail upon Condition, that if he do such an Act, that he shall then have it but for life, he is not Tenant in Tail after possibility, etc. for this is ex provisione, hominis, and not ex dispositione Legis, but it ought to be the remain 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 tail recover in an Assize, and after one of them die without issue, and afterwards he that survives (who is Tenant in tail after possibility) is redisseised, he shall have re-disseisin for the francktenement, which he had before: for it is parcel of the Estate tail. Vid. sup. Case 4. Co. l. 8. 152 a. 2 Edw. Althams' Case. 18 If the Disseisée release all Actions to the heir of the disseisor, thereby his right is gone in judgement of Law, Release of right. for when a man hath not any other mean to come by his Land, but only by way of Action, if he release all Actions, by such release his right is Inclusive in judgement of Law gone, because by his own Act he hath barred himself of all means and remedies to recover or attain thereunto: but if the heir of the Disseisor● make a Lease for life, the remainder in fee, 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, than his express words; as if the Lord disseise his Tenant, and make a lease for life, this release in law shall not intend farther then for the life of the lessée: for true it is, Fortior & potentior est dispositio Legis, quàm hominis, and it is as true, Fortior & aequior est dispositio Legis, quàm hominis. ●nt-tenants tenants in Common. Coperceners, presentation advowson. 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common, F.N. B. 34. v. in Case one of them present alone against his companion, that so presents: but if two Coperceners cannot agree in presenting, the eldest sister shall have the first presentation, and so shall also he have, that hath her Estate and if either of them be disturbed by the other Copercener, either of them shall have a Quare Impedit against the other sister, And Coperceners, and those, who have their Estates shall present as Coperceners ought to do, viz. the eldest first, and then the second, & after her the third, and so the rest in order according to their ages: and the diversity between joint-tenants or tenants in common, and Coperceners ariseth from this ground, because they are in by grant, which is the act of the party, but these are originally in by act in law. . 20 If an Abbot make waste in the Lands, which he hath in ward, F.N.B. 60. m. and dies, the Successor shall not be charged therewith, because his death is the Act of God: it is otherwise, if he be deposed, for then the Successor shall be chargeable with it, because that is the Act of the party. ●●d, Mesne, 〈◊〉 Tenant. ●rnment. 21 If there be Lord, Mesne, and Tenant, Co. Inst. p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fee, here if the services of the Mesne be arreare, the grantée shall not distrain the Tenant before attornment: Howbeit if the grantée die without heir, whereby the mesnalty escheats to the Lord Paramount: in that Case, if the services of the Mesnalty be arreare, the Lord Paramount may distrain the Tenant without attornment: because the grantée came to the mesnalty by the act of the party, but the Lord Paramount comes to it by Act in Law. 〈◊〉 entry in 〈◊〉 more ad●tageous, 〈◊〉 an entry 〈◊〉 Deed. 22 An actual entry into land is merely the Act of the party, Co. ib. 253. b. 4 and therefore is called an entry in deed, and albeit a claim be also an Act of the party, yet it is also mixed with force of Law, and therefore it is called an Entry in Law, and is not only as forcible, as an Entry in Deed, but because it is as well an Act of Law as of the party, it giveth the party a greater privilege, than an Entry in Deed doth; for a continual claim of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage, but never for his disadvantage: and therefore if the Disseisée bring an Assize, and hanging the Assize he make continual claim, this shall not abate the Assize, but he shall recover damages from the beginning, but it is otherwise of an Entry in Deed. ●●nce in 〈◊〉 23 Upon a Lease for years by indenture, Dier 6. 28 H. 8. 1. etc. the Lessée covenants and grants, that if he his Executors or Assigns alien, it shall be lawful for the Lessor to re-enter, and after he makes his Wife Executrix and dies, the Feme takes a new husband, who aliens: In this Case some hold there is no breach of the Condition, because the Baron is in by the Law and not Assignée of the Lessee, as it is of Tenant by the Courtesy, or Lord of a Villain: but others hold the contrary, ideo quaere. Dier 45. 3. 31 H. 8. 24 A lease is made for term of years, Devise of a Lease. upon Condition that if the Lessée during his life assign the term to any other without the Assent of the Lessor, that then the Lessor may re-enter, and the Lessée devised his term by his will to another without Assent, etc. And (by Brook and Hales) this is a forfeiture, because the Devisée shall be said to be in by the assignment, that the Divisor made during his life, but if the Executors had enjoyed the term, that had been no forfeiture, because in that Case the Law makes the assignment. Tamen quaere. Co. Inst. p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by deed, Attornment and before attornment the Alien is made denizen, and then the attornment is made: In this Case the King upon office found shall have the land; for as to the Estate between the parties it passeth by deed ab initio, it is otherwise, where land is granted to a m●n and a woman, and they intermarie, and then attornment is had, for which Vide suprà Pl. 1. Dier 60. 22, 23 36 H. 8. 26 There is a diversity, Seizure of a villain. where the body of a man in execution is set at liberty by authority of Law, and when without authority, as by the voluntary escape in a Sheriff, or the like; For the Law saves all rights: as in Case of a Villain, to whom the King's presence is a Sanctuary, where the Lord cannot seize him, howbeit afterwards out of his presence he may, because the Law gives the Villain that privilege pro tempore, but if the Lord himself enfranchise him by manumission (in deed or in Law) for one hour, he is free for ever in favorem libertatis, because that is the Act of the Lord himself: So if a man be taken in execution and be suffered to escape by the Sheriff, this is an absolute discharge of the debt, and the Plaintiff is to have his remedy against the Sheriff by action of debt: Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriff upon an execution, and be afterwards freed by the privilege, which the law gives him, that is no discharge of the debt, but that when he ceaseth to be a Member, he may be arrested again upon the same judgement, etc. Dier 68 24. in Kidwelleys Case. 4, 5 E. 6. 27 Where demand of Rent is to be made by the law (as when no place is assigned for the payment thereof, Demand of Rent. the law itself is the place) there it is not sufficient for the party to come to the land ad petendum redditum, but he ought to bring witnesses with him, and in their presence ought to make an express demand of the Rent upon the land (as to say, here I am and do demand such a Rent, or the like) albeit none be there present to pay the Rent: But when the Rent is by the agreement of the parties payable out of the land, the Lessor is not bound to demand it, but the lessée is to tender it at his peril. Dier 140. Pl. 39 3, 4 P. M. 28 A thing or action personal being once suspended (though it be but for an hour) is extinct and gone for ever, A personal thing exi● by husband when it is by the act and consent of the party himself, who hath interest in it: But when it is by the Act of Law, it is otherwise, as the Case is in 6 E. 4. where a man condemned in redisseisin was imprisoned for out-lawry of felony, and after pardoned, here, the execution of the body was, for the time that he was the King's prisoner, suspended, but after pardon it was revived. 116. It reputeth that a man will deal for their own best advantage. ●●●nesse. 1 Upon this ground it is, Co. Inst. p. 1. 6. b. 4. that a party cannot be Witness in his own Cause, for the Law presumeth he will speak for his own most advantage; And therefore neither shall the party to an usurious Contract be admitted to be a Witness against the Usurer, for in effect he should be Testis in propria causa, In Smith's Case 8 Jac. and should avoid his own Bonds and Assurances, and discharge himself of the Money borrowed, and albeit he commonly raise up an informer to exhibit the Information, yet in rei veritate he is the party: And herewith in effect agreeth Britton, Brit. 134. that he that challengeth a right in the thing in demand, cannot be a Witness, for that he is a party in interest, and will advantage himself as much as he can. infant exchange. 2 If an Infant exchange Lands, Co. ib. 51. b. 3. and after his full age occupy the Lands taken in exchange, the exchange is become perfect, for the exchange at first was not void, because it amounted to a Livery, and also in respect of the recompense,) but voidable. Tenant at sufferance▪ 3 A Writ of Entry ad terminum qui praeteriit, Co. ib. 57 b. 3. lieth against the Tenant at sufferance, that holdeth over his term; but this is rather by admission of the Demandant than for any estate of Frée-hold, that is in him; for in judgement of Law he hath but a bare Possession; So if Tenant pur term de auter vie continue in Possession after the decease of Cesty que vie, or Tenant for years holdeth over his term, in this Case the Lessor cannot have an action of Trespass before Entry; but he may have a Writ of Entry, if he will thereby admit himself to have a Frée-hold; And the Law suffers him so to do, because the Law presumes that he will not so admit himself without some hope of advantage, that may redound to himself thereby. ●●●cage. 〈◊〉. ●eliefe. 4 A Tenant holdeth of his Lord certain Lands in Soccage to pay yearly a pair of gilt Spurs or five shillings in Money at the Feast of Easter, in this Case, the Rent is uncertain, Co. ib. 90. b. 4. and the Tenant may pay which of them he will at that Feast, and may also pay which of them he will for Relief, but if he pay it not when he ought, Co. ib. 91. a. 4. then may the Lord also distrain for which he will: And therefore in such Case if the heir be not presently (that is, as presently and as conveniently as he may, all due circumstances considered,) after the death of his Ancestor, ready upon the Land to pay Relief, the Lord may distrain for which of them he will, and if the Tenant tendered either of them according to the Law, and none for the Lord was there ready to receive it, yet the Lord may distrain for that which was tendered, at his pleasure. For in all such Cases the law supposeth, that a man will deal for his own best advantage. 〈◊〉- charge. ●●●ity. 5 Upon a Reservation of a Rent upon a Feoffment in fee by Deed intented, the Feoffor shall not have a Writ of Annuity, Co. ib. 144. ●. 2 because the the words of Reservation, as reddeudo solvendo, faciendo, tenendo, reservando, etc. are the words of the Feoffor, and not of the Feoffée; yet if afterwards the Feoffée accept of the Estate, he is thereby bound, and is subject to a Writ of Annuity. Challenges. 6 Upon this ground also it is, that all just Challenges, Co. ib. 156. a. & 157, etc. both to the Array, and to the Polls, are allowed in Law; for which see the quotation in the margin. Frank-marriage. hodgepodge. 7 Where Lands are are given in Frankmarriage, Co. ib. 776. a. 4 etc. Littl. §. 269 and other lands descend to the other Sister in Fée-simple, if the Donées will not do the first act, viz. put their Land in Hodgepodge, the Law presumes they are satisfied, and therefore (in such Case) allows them no part of the Fée-simple Land descended by Writ of partition or otherwise, because non tenent insimula & per indiviso. Co. ib. 202. b. 2. 8 If Tenant in tail makes a Feoffment in fee upon Condition, Descent. Entry. Remitter. and dieth, and the issue in tail within age doth enter for the Condition broken; in this Case, he shall be first in, as Tenant in Fée-simple, as heir to his father, and (consequently) shall be instantly remitted: but if the heir be of full age, he shall not be remitted, because he might have had his Formedon against the feoffée, and the Entry for the Condition is his own Act. Co. ib. 208. b. 4. 9 When an Obligation or Feoffment in Fee is made upon Condition, that the feoffor, feoffée, obligor, Feoffment. Obligation. Condition. Act. or a stranger shall do a Sole Act or Labour, as to go to Rome, Jerusalem, etc. In such or the like Cases, the feoffor, feoffée, obligor, or stranger have time during their lives to do it, and cannot be hastened by request; for in such Cases the Law gives them credit, that they will take the most convenient time for the doing thereof. Co. ib: 288. b. 3. 10 If in a personal action the Defendant be Quinto exactus, Utlawry. Forfeiture, & ● upon the Exigent, and maketh default, the judgement is Ideo utlagetur, per Judicium Coronatorum, or (in London) per Judicium Recordatoris; And then upon the Return of the Exigent he is outlawed: Howbeit, in this Case the Plaintiff recovers nothing, but the King taketh the whole benefit thereof, which is the forfeiture of all his Goods; for the Law intends, that the Defendant will rather appear and answer the Plaintiff, &c, than to forfeit all his Goods and Chattels, Debts, and Duties to the King, by his default and contumacy. Co. ib. 303. b. 1. 11 The Plea of every man shall be construed strongly against him that pleadeth it, Plea. for every man is presumed to make the best of his own Case. Co. l. 2. 35. b. 3. in Sir Rowland Heywards Case. 12 Upon this ground also it is, Election. that when two things are offered to be taken, it is in the Election of him that hath interest or power in them, to take which of them he pleaseth; So if A. seized of a Manor, part in Demesne, part in Service, demiseth, bargains, and sells the Manor to W. here it is in the Election of W. to take it either by Demise at the Common Law, or by Bargain and Sale according to the Statute. Co. l. 3. 24. b. 2. in Walkers Case. 13 It was said, that if the Lessée assign over his term, Lessee. Assignment. Rent. Avowry. the Lessor may charge the Lessée or his Assignee at his Election, but if the Lessor accept the Rent of the Assignée, he hath determined his Election, and shall not have an action against the Lessée afterwards for Rent due after the Assignment, no more than if the Lord once accept the Rent of the feoffée, he shall avow upon the feoffor. Co. l. 3. 26. b. in Butler & Barkers Case. 14 Upon this Rule likewise it is, that the Law doth allow Agreement, or disagreement to an interest offered to the party, Lord. Tenant. Agreement. Disagreement. that is to have it; So if there be Lord and Tenant, and the Tenant by Deed enfeoff the Lord and a stranger, & make livery to the stranger in name of both, in this case, if the Lord only by Parol disagree to the Estate, it is nothing worth; for a Franktenement shall not be so lightly devested by naked Parol in pais: but on the other side, if the Lord enter into the Land generally, and take the profits, this act shall amount to an Agreement to the Feoffment; Howbeit if he enter into the Land, and distrain for his Seignory, this act shall amount to a Disagreement of the Feoffment, and shall divest the Franktenement out of him, and with this accords 10 E. 4. 12. by all the Justices. 〈◊〉 and 〈◊〉. ●●●ement. ●●greemen●. 15 If Lands be given to Baron and Feme in tail, Ibid. b. 3. and after the Statute of 32 H. 8. 36. the Baron alien the Land to the use of himself and his heirs, and after devise it to his Wife for life and dies, here the Feme inter-claiming by parol the Estate for life, this is a good disagreement to the Estate of inheritance, and a good Agreement to the Estate for life, and with this accords 18 El. 351. b. Dyer, for the Law gives her power to take which of them she will. ●●rlon re●●d. 16 If A. make an Obligation to B. and deliver it to C. to the use of B. this is the Deed of A. presently; but when C. offers it to B, Ibid. b. 4. here B. may refuse it in pais, and thereby the Obligation shall lose his force; and with this accords, H. 1. El. Rot. 442. in Tawes Case, reported by Serjeant Benlowes, and by Dyer 167. But in this Case it seems upon an action brought for it he cannot plead non est factum, because it was once his Deed: Gift of ●ods refuse●. There is the same Law also of a Gift of Goods and Chattels; if the Deed be delivered to the use of the Donée, the Goods and Chattlels are in the Donée presently before notice or agreement, but the Donée may make refusal in pais, and thereby the property and interest shall be devested, and such disagreement need not be in any Court of Record. ●●covery. compence. 17 A Common Recovery is not restrained by the Statute de donis but it shall bar the issue in tail because of the intended recompense, Co. l. 3. 60. a. 4. in Lincoln College Case. wherewith the Tenant in tail seems to be content, the Law thereupon presuming, that so to suffer the Recovery tends rather to his benefit then prejudice. ●●●●ture. ●●●s. 18 B. enfeoffs another to the use of himself for life, Co. l. 4. 3. a. 1. in Vernous Case. the remainder to his Wife for life for her jointure, upon Condition to perform his Will, and then dies, the Wife enters and agrees to it, and after brings her Writ of Dower, but her acceptance bars her Writ of Dower; for albeit her Dower was an absolute Estate for life, and this a Conditional Estate, yet it being an Estate for life, and she accepting thereof, the Law presumes she esteemed it a greater advantage, than to take her Dower, it being in her power after the death of her Husband to take or waive it; So if a man make a Feoffment in fee to the use of himself for life, and after to the use of his Wife, durante viduitate sua for her jointure, if after the death of her husband she accept thereof, it shall bar her of her Dower. 〈◊〉. ●●●ance. 19 Before the Statute of 21 H. 8. 13. if one had a Benefice with Cure, and accepted another Benefice with Cure, Co. l. 4. 75. b. 2. in Holland's Case. the first Benefice was void: Howbeit, this was not an avoidance by the Common Law, but by the constitution of the Pope, of which avoidance the Patron might take notice, if he would, and might present if he would without any Deprivation, etc. 〈…〉 at will. 20 Feme Tenant for life makes a Lease at will rendering Rend, Co. l. 5. 10. a. Hensteads case. and after takes Baron, and she and her Baron brings an action of Debt for the arrearages after the marriage; In this Case, the Will is not determined by the inter-marriage; for albeit the feme by taking Baron, hath submitted herself to his Will, as her Head, yet because it may be prejudicial to the Baron to have the Lea●e determine, (for then he might lose the Rent due at the very next Rent-day after the marriage) and it cannot prejudice the feme at all to have it continue, and it being in the power of the Baron to make it continue or determine, the Law adjudgeth it to continue. 〈◊〉 ●●●chant. ●●ple. 〈…〉 shown. 21 Tenant by Statute Merchant or Staple, etc. shall not be forced to show a Deed in Court for the maintenance of their Estate, Co. l. 5. 75. a. 2. in Wymarks' Case. for they come to the Possession of the Land by Process of Law against the will of him, that hath the Deed; but it is otherwise of a Lease for life, or years, etc. because he comes in by the Lessor, and might have taken a Covenant or other security, for his peaceable enjoying of the Land to him demised. Co. l. 7. 8. a. The Earl of Bedford's Case. 22 Tenant in tail leaseth for years and dies; here, Infant. the King or other Guardian may avoid it: but if after his full age he accepts of the rent, the Lease is confirmed to re-continue during the term. Co. l. 8. 98. a. 4. in Baspoles' Case. 23 In Arbitrament, when all matters in Controversy are referred to an Arbitrator to end; Arbitrament Award. here albeit there are divers matters of in difference betwixt the parties, yet if one only be made known to the Arbitrator, he may make an award of that alone; for the Arbitrator is in the place of the judge, and his Office is to determine secundum allegata & probata, and the duty is to acquaint him with their grievances, and with all the Causes of their differences, which if they or either of them omit to do, the Law presumes it is for their own advantage to conceal them; And therefore such Concealment shall not annul the award, that is made, albeit it be made only of part. Co. l. 8. 120: b. 3. in Doctor bonham's Case. 24 It is presumed, that every one will make the best of his own Case; And therefore in any suit or action, Pleading. when the Plaintiff makes Replication, Surrender, etc. whereby it appears that upon the whole Record the Plaintiff hath no cause of Action, he shall never have judgement, albeit the Bar, rejoinder, etc. be insufficient in Matter, for the Court ought to judge upon the whole Record, and will suppose, that the Plaintiff hath managed his own Cause, as well as he can: Co. l. 8 133. a. 4. in Turner's Case. So in an Action of Debt brought against an Executor, he pleads two Recoveries against him in a Court of Record, which amount to the whole in his hand, but showeth not, that the Corporation had jurisdiction to hold Court, either by Prescription, or by Patent; And it did also appear by the Count 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 of Debt upon a single Contract; And in this Case, albeit the Defendant in his Bar acknowledged, that the Debt was by Obligation, yet that shall not make the Count good, which the Law presumes the Plaintiff hath made as full as he could. Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture, Pleading. the Defendant pleads performance of all the Covenants generally, and it appears to the Court that divers of them are in the Negative or Disjunctive, and so the Plea being in the general Affirmative is insufficient, yet if the Plaintiff reply and show a breach of one of the Covenants, which by his own showing is not any breach, upon which the Defendant demurs; In this Case, judgement shall be given against the Plaintiff, because (upon the whole Record) it appears, that the Plaintiff had no Cause of Action, and it will be always intended, that every one will make the best of his own Cause. Co. l. 8. 135. a. in Sir John nedham's Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himself by the Archbishop of Canterbury, Administration. because the Intestate had bona notabilia, the Plaintiff replies, that that Administration was repealed; In this Case, because the Defendant did not show in his bar, that the Intestate had bona notabilia in certain; It shall be intended; that he had not bona notabilia in divers Dioceses, yet the Administration committed by the B. of C. is not (in this case) void, but only voidable. ●●ving a 〈◊〉. 27 It is not expected that Tenant by Statute or Elegit, etc. should a deed of the land, because they come to the possession thereof by execution of Law, and against the will of the terretenant; Co. lib. ●●4 b. 4. in Doctor Leyfeilds' Case. but Tenant by the courtesy ought to show a release made to his wife, for the law presumes he hath both that and her in his power. 〈◊〉 Pa●●●●●. ●●gestion. 28 The suggestion of the party being inserted in Letters Patents raiseth always suspicion, Co. l. 10. 110. a. 2. etc. in Legates Case. because the Law presumes it is inserted to work him some advantage: So if the King by his Letters Patents grant White-acre, and Black-acre to I. S. with this clause, quae quidem praemissa, etc. à nobis concelata & detenta fuerunt, etc. This in judgement of Law is the suggestion of the Patentée, and shall make the grant void: So in 19 E. 3. tit. Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis, and in truth the Advowson was held mediately of the King; here, the licence was held void, for (the Book saith) the suggestion was false: vide plus ibid. ●●son. 〈◊〉 Christian. 29 If a Parson or Vicar hath a pension out of another Church, F. N B. 51. B. and the pension is withdrawn, or another parson takes or claims it; in this case the Parson or Vicar, that aught to have, may sue for it in the Court Christian, and he shall not be stopped by a prohibition, but shall have consultation: Also upon the prescription he may have a writ of Annuity for it, at his Election; but if he once bring a writ of Annuity for it, he shall never after sue for it in the Court Christian. 〈◊〉. ●●change. 30 If the Baron exchange land, and after die, F. N. B. 149. n. if the Feme hath dower of the land taken in exchange, she shall not have dower also of the land given in exchange. rent-charge. ●●●y. 31 Upon grant of an Annuity out of land for years, for life, F.N.B. 152. a. or in fee, which clause of distress, the grantée hath his Election (if it be behind) whether he will distrain, or bring his writ of Annuity for it; Howbeit if once he do either, he is for ever after concluded for doing the other: for the Law supposeth he will make choice of that, which tends to his best advantage. The time is ●im, that 〈◊〉 benefit. 32 Where a man is to have benefit upon an act, Pl. 16. a. 4. in Fogassaes ca which is first to be done by himself, and no time is limited, when it shall be done, the Law saith that he may do it at his pleasure, as if a man make a feoffment upon Condition, that if he pay the Mortgagée 20 l. that then he shall re-enter, here in as much as no day of payment is limited, the Mortgager may pay it when he pleaseth, for he is to have the benefit, viz. the land again: So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case, because no time is limited for the taking of his daughter to wife, he may take her when he will: So in Fogassaes Case in the Commentaries, in as much as the payment of the subsidy was to be made unto the Collector upon the weighing of the woad, and a time is limited for the weighing, the Law refers the time thereof to the will of the Collector. advantages ●●lected ●●●covin. 33 In Wimbish and Tabbois Case in the Commentaries one argument to prove covin in the Feme there, was, Pl. 55. b. 2. in Vimbish and Talbois Case. because he did not in answering that suit take such advantages, as the Law allows in such Cases as vieu, essoine, and the like, but immediately appears, and suffers the Demandant to recover by nihil dicit: For the Law presumes (unless there be covin, or other neglect or restraint which cannot be avoided) that the party interessed will take all advantages, that the Law allows, to make good his own cause, which advantages are the birthright of the subject, as Lands or other Inheritance, and when they are waved or neglected, the Law implies covin, or some other miscarriage. Co. Inst. p. 1. 46. a. 4. 34 The King grants lands to A. in tail, Tenant in ●a● Lease. Primer seis● to hold by Knight-service A. makes a lease to B. for 31 years, reserving rend, A. dies, his son and heir of full age, and all this if found by Office; now here, as to the King this lease is not of force, for he shall have his primer seisin, as of land in possession: but after livery the Lessée may enter, and then if the issue in tail accept the Rent, the leaf shall bind him, for the King's primer seisin shall not take away the Election of the issue in tail: because it may be the Rent was better than the land, and so the Law will presume, that his acceptance tended to his advantage, and therefore he shall be bound thereby: Co. ib. 46. b. 1. and Pl. 437. a In like manner Tenant in tail makes lease a for 40 years, reserving a Rent, to begin 10 years after, Feoffment. Tenant in tail dies, the issue enters and enfeoffs A. the ten years expire, the lessée enters: now in this Case also, if A. accept the Rent, the lease is good, for he shall have the same Election, that the issue in tail had, either to make it good or to avoid it; But because the lessée accepts the Rent, the Law presumes it was for his advantage so to do, and therefore thereupon adjudged the lease still good, notwithstanding such entry of the heir before it commenced. Litt. §. 559. 35 If there be Lord and Tenant, and the Tenant take Feme, Acceptance good attornment. and after the Lord grants the services to the Feme and her heirs, and the Baron accept the Deed: In this Case, after the death of the Baron, the Feme and her heirs shall have the services, for the acceptance of the deed by the Baron is good attornment; albeit the services are in suspense during the coverture: Litt. §. 573. So likewise if a man let land to another for term of life, and after confirms by his deed the Estate of the Tenant for life, the remainder to another in fee, and the Tenant for life, accepts the deed, this is a good attornment in law to make the Estate in remainder good. Co. l. 3. 86. b. 2. in the Case of Fines. 36 Every fine levied shall be intended to be levied with proclamations according to the Statutes in that behalf provided, Fines. because that is most beneficial for the Conusée. Dier 244. 59 8 Eliz. 37 There were four Defendants in an Assize or plaint of three Messages, Assize. three of them severally undertake the Tenancy of the several Messages, and plead several bars, and to the residue Nul tort, the fourth takes upon the entire tenancy of all, without that, etc. and pleads also bar at large: In this Case, the Plaintiff at his peril is to choose his Tenant, because the law presumes, that he will do it for his best advantage. 117 And therefore the Law believeth against the party whatsoever is to his prejudice. Co. Inst. p: 1. 52. a. 4. 1 If one as Procurator or Attorney to another present to his own benefice, he puts himself out of possession, Present. Benefice. because it is his own act, and the presentée comes in by the institution an induction of the Ordinary. Co. ib. 55. b. 3. 2 If Lessée at will or for life sow the land, Tenant for life or will, & Grant. Sowet. and the lessor determines his Will, or dies, before the grain is ripe, yet the lessée shall have it; because in either of the said Cases; the end of the term is uncertain, either upon the Will or death of the lessor, which cannot come within the lessées power to prevent: but if lessée for years, who may know the end of the term, sow the land she shall not have the grain; Litt. §. 68 Co. ib. 56. a. 4. because his term is certain: And therefore the Law will attribute the sowing of the land to his own folly: So if lessée at will sow the ground with Corn, etc. and after he himself determines his will and refuseth to occupy the ground: In that Case, the lessor shall have the grain: for otherwise the lessor should lose his Rent, and the lessée hath determined it by his own act: In like manner, if a woman, that holdeth land durante viduitate, low the ground, and taketh husband, the lessor shall have the emblements, because the determination of her Estate grew by her own act: So likewise, where the Estate of the lessée being uncertain is defeasible by a right paramount, or if the lease determine by the act of the lessée, as by forfeiture, condition, etc. there he that hath the right paramount, or that entereth for any forfeiture, etc. shall have the Corn, causa qua supra. ● and Te●●●dship ●ease. 3 If there be Lord and Tenant by Knight-service, Co. ib. 83. b. ● and the Tenant dieth his heir being within age, the Lord waiveth his wardship (as he may) and taketh himself to his Seignory: In this Case the Lord shall not have relief at his full age, because he might have had the wardship of the body and land, if he had not neglected his time. 〈◊〉 emptor. 4 By the Civil law every man is bound to warrant the King, Co. ib. 102. a. ● that he selleth or conveyeth, albeit there be no express warranty: but the Common Law bindeth him not unless there be a warranty in deed or in Law, for the Common Law believeth against the party things done to his prejudice, and therefore in such Case, Caveat Emptor. ●●nage by ●●ssion. 5 If a man being brought into a Court of Record by course of Law will there acknowledge himself to be a Villain (albeit he was not a Villain before) he shall be for ever after a Villain in gross: Littl. §. 185. Co. Inst. p. 1. 122. b. 2. and therefore if a praecipe be brought against one he may confess himself Villain to a stranger, and that he holds the land in Villeinage of him, and this is good and shall bind him; and if (in that Case) the Demandant reply, that the Tenant the day of his writ purchased was a Freeman, and thereupon issue is taken, and he is tried to be free, yet he shall remain Villain to the stranger in respect of his confession: So likewise in a writ of ●ativo habendo, if the Plaintiff (as he ought) offereth in his Count to prove the Villeinage by the Cousins and kindred of the Defendant, and thereupon produceth the Uncles of the Defendant, who upon examination confesses themselves to be Villeins to the Demandant, this confession being entered of record doth so bind, that albeit they were free before, yet they and the heirs of their bodies are by this confession bound and Villeins for ever, etc. ●●●chis●●. 6 If the Lord deliver seisin of Lands to his Villain, Litt. §. 206 & 108. Co. ib. 138. a. 4 & b. 3. to hold in fee, fee tail, for life, or for years, or make him any other certain Estate, or if the Lord sue against his Villain a praecipe quod reddat and recover or be nonsuit, or sue against his Villain any other personal action, as debt, account, covenants, trespass, or the like: These are ma●●missions, because (in the first Case) the Lord may enter into the land of his Villain, and (in the other) may imprison his Villain, or take his goods (at his pleasure) without suit: but by such suits the Lord maketh the Villain to be a person able to render the Lord (in the first Case) the land, and (in the other) damages by course of Law: In like manner, if before indictmest the Lord bring an appeal of felony against his Villain, whereupon the Villain is acquit, this is an enfranchisement, because upon the aquittal the shall recover damages against the Lord by the Statute of West. 2. cap. 12. quia multi per malitiam, etc. In sum, wheresoever the Lord giveth to the Villain a just cause of Action, he is enfranchised; and therefore if the Lord kill his Villain, his son and heir shall have an appeal, and thereby the heir shall be enfranchised, because the offence of the Lord gave to the heir a just cause of Action against the Lord. 〈◊〉 in 〈◊〉. 7 If there be two Coperceners, Co. ib. 14●. b. 2 and the one bring a Rationabili pa●●e, or a Nuper obijt against the other, and the defendant claims by purchase, and disclaims in the blood; here, the Plaintiff shall have a Mortdancester against her as a stranger for the whole. Co. ib. 170. b. 4 8 When partition is made by the two Barons in the life time of their Femes Coperceners, although such partition be unequal, Unequal partition. Feme covert. Infant. yet it is not void, but voidable; For if after the decease of the husband, the wife entereth into the unequal part, and agreeth thereunto, this shall bind her and her heirs for ever: There is the same Law of an Infant, when his part is unequal, Co. ib. 171. a. 4 for by his entry at full age the partition is made good for ever. Co. ib. 172. b. 3 & 173, a. 3. & Litt. §. 260, & 261. 9 If a man having Issue two Daughters die seized of Fée-simple lands and also of as much in tail, Copercene● of fee-simple and ent●●● Lands. and the eldest sister takes the entailed land for her proper part, an the youngest sister enters into the Fée-simple lands and having issue aliens them to a stranger, and dies: In this Case, the issue in tail may enter into the entailed lands, and occupy them in Copercenery with her Aunt: for it was the folly of the eldest sister to take the entailed lands for her part. Litt. §. 286. Co. ib. 185. a. 3 10 If there be joint-tenants in fee, Joint-tenant Rent-charge Release. and the one granteth a Rend charge out of his part, and dieth; in this Case, the survivor shall hold the land discharged of the Rent: because he claimeth the land by a title paramount, viz. from the first feoffor, and not by his companion: but here, if after the land is charged with the rent, the other joint-tenant accept of a release from his ompanion, that so charged the land, in such case, he shall hold the land charged with the rent, for now by acceptance of such release he is not in by survivorship, but from his companion. Co. ib. 202. a. 2 11 The demand of a Rent or other sum to take advantage of a reentry or condition broken ought (by the law) to be made (where no other place or time is limited for the payment thereof) upon the Land at the most notorious place there (as at the foredoor gate, Demand of Rent, etc. up●● a reentry▪ Condition & or the like) and at the last part of the day, so as the money may be conveniently numbered before Sun set: yet if upon the day of payment thereof the lessée or feoffée happen to meet the lessor or feoffor upon any part of the Land, (although it be not the most notorious place) or at any time of the last day (although it be not the last part, as aforesaid) in such case if the Lessor or feossor refuse it, In Wades Ca Co. l. 5. 14. b. 2 he shall not take advantage of a reentry or Condition broken, as aforesaid; for by such refusal (being his own Act) he hath barred himself of that advantage. Co. ib. 202. b. 3 12 A. is bound to B. to pay 10 l. to C. A. tenders to C. Payment 〈◊〉 stranger. and he refuseth, in this Case, the bond is forfeit; for it shall be imputed the folly of A. to undertake to pay it to C. of whom he had no power, to compel him to receive it. Co. Inst. p. 1. 209. a. 2 Co. l. 6. 31. a. 2 in Bothies' Ca 13 If a man be bound to A. in an obligation with condition to enfeoff B. (who is a mere stranger) before a day, Obligation with Condition to ense● the obligor doth offer to enfeoff B. and he refuseth, the obligation is for the obligor hath taken upon him to enfeoff him, and his refusal cannot satisfy the condition, because no feoffment is made, but if the feoffment had been (by the condition) to be made to the obligée, or to any other for his benefit or behoof; in such Case, a tender and refusal shall save the bond; because he himself upon the matter is the cause, wherefore the Condition could not be performed, and therefore shall not give himself cause of action so also if A. be bound to B. with Condition, that C. shall enfeoff D. In this Case, if C. tender, and D. refuse, the obligation is saved for the obligor himself undertaketh to do no act, but that a stranger shall enfeoff a stranger, and in such case it shall be intended, that the feoffment should be made for the benefit of the obligée. Litt. §. 340 Co. ib. 210. a. 4 14 If A. make feoffment or be bound to B, with condition to pay 20 l. No place ● payment. at such a day, no place being limited for the payment thereof, here A. is bound to seek B. (if he be in England) to make payment or tender thereof for the law presumes that it was so intended when the feoffor or obligor doth not limit any place in certain for the payment thereof. ●●e thing in 〈◊〉 of another. satisfaction. 15 If feoffment be made upon condition to pay money, Litt. §. 344. Co. ib. 212. b. 4 and the feoffor pay to the feoffée an horse, a cup of silver, a gold-ring, or the like, in full satisfaction of the money, and the other receive if, this good enough, and as strong, as if he had received the sum of money, albeit such horse, ring, or other thing was not of the 20th part of the value of the money: so also not only a thing in possession, but also a thing in action may be taken in satisfaction of the money; for if the obligée or feoffée accept a Statute or a bond in satisfaction of the money, it is a good satisfaction. 〈◊〉 good satisfaction. 16 Where the Condition is for 20 l. Co. Ibidem. the obligor or feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole, because it is apparent, that a lesser sum of money cannot be a satisfaction of a greater, but if the feoffée or obligée do at the day receive part, and thereof make an acquittance under his seal in full satisfaction of the whole, it is sufficient, because the deed amounteth to an acquittance of the whole: So if the obligor or lessor pay a lesser sum, either before the day, or at another place, then is limited by the Condition, and the obligée or feoffée receiveth it, this is a good sstisfaction. A Feme ac●●●●s ●n estate 〈◊〉 life, 17 Where feoffment is made upon Condition to give the land to the feoffor and his wife and the heirs of their two bodies, Litt. §. 352 Co. ib. 219. b. 4 the remainder to the right heirs of the feoffor in fee; In this Case (Littleton saith) if the feoffor die before such Estate made, the feoffée aught to grant the land to the Feme for life without impeachment of waste, the remainder to the heirs of the feoffor in fee, and yet here, if the Feme accept of any Estate for life, without this clause, without impeachment of waist, it is good. Officers. 18 Officers that have no other profit, but a bare collateral fee, Co. ib. 233. a. 4 may be discharged of their Offices and service, but yet they shall have their fee; and where the fee issues out of the profits of the land the grantor cannot discharge them of their service or attendance: but in all Cases, where the Officer relinquisheth his Office, and refuseth to attend, he loseth his Office, fee, profit, and all. Acceptance of ●ent. services. 19 If there be Lord and Tenant, and the Tenant is disseised, Co. ib. 268. a. 4 and the of the disseisée are taken: in this Case (by reason of the privity betwixt the Lord and the disseisée) the disseisée may compel the Lord to avow-upon him; yet here, if the Lord have before accepted the services of the disseisor, the disseisée cannot enforce the Lord to avow upon him: So likewise, where a man have title to have a writ of escheat, if afterwards he accept homage or fealty of the Tenant, ●●●heate: he is barred of his writ of escheat: It is otherwise of acceptance of Rent, (for that may be received by a Bailiff) unless he avow for it in a Court of Record: So likewise if the Lord accept the Rent by the hands of the heir of the disseisor or of his feoffée, because they are in by title, this shall bar him of his escheat: Howbeit concerning Avowries the ancient law is now altered by the Statute of 21 H. 8. 19 which see, etc. ●●●ages lost. 20 If there be Lord and Tenant, Co. ib. 269. b. 3. & Co. l. 3. 65. b. 4. Penuants' Case. and the Rent is behind by divers years, and the Tenant make a feoffment in fee, if the Lord accept the service of Rent of the feoffée due in his time, he shall lose the arrearages due in the time of the feoffor: for after such acceptance he shall not avow upon the feoffor, nor upon the feoffée, for the arrearages incurred in the time of the feoffor. Disseisin of a ●ent. 21 A man cannot be disseised of a rent-service in gross, a rent-charge, Littl. §. 589. Co. ib. 323. b. 3 or a rent-secke by attornment or payment of such a rent to a stranger, but at the Election of him, to whom such Rent is due: for, Nemo redditum alterius invito domino praecipere aut possidere potest: yet if the disseisée bring an Assize against such a pernor, or taker of such Rent, he doth thereby admit himself out of possession thereof; Nevertheless, a descent of a Rent in gross bindeth not the right owner, but that he may distrain, albeit he admitted himself out of possession, and determined his Election, as by bringing an Assize, or the like. Co. Inst. p. 1. 323. b. 4. 22 In Case of such Rents, Release to a stranger of such a rent. if the Tenant give a Stranger any thing in name of Attornment, and then the right owner release to the Stranger, such release is void, because an attornment only can be no disseisin of such a Rent: but if the Tenant of the Land pay the Rent to a Stranger, and then the right owner releaseth to him, this release is good, because he thereby admitted himself to be out of possession. Co. ib. 332. b. 1 22 If Tenant in tail of a Rent-service, etc. or of a reversion, Tenant in 〈◊〉 barred by a Formedon. or remainder in tail, etc. grant the same in fee with warranty, and leaveth assets in Fée-simple, and dieth, this is neither bar nor discontinuance to the issue in tail, but he may distrain for the Rent or service, or enter into the land after the decease of the Tenant for life: but if the issue bring a Formedon in descender, and thereby admit himself out of possession, he shall be then barred by the warranty and assets. Co l. 3. 85. a In the Cases of Fines. Co. ib. 344. a. 1 Hill. 1. Jac. Coram Rege, Rot. 601. inter Faire-childe Plaintiff and Gayer Defendant in trespass. 24 A Church Parochial may be donative & exempt from all ordinary jurisdiction, and the Incumbent may resign to the Patron, A Church, & ● donative made presentable. and not to the Ordinary, neither can the ordinary visit but the Patron, by Commissioners to be appointed by him, and (by Littleton's Rules §. 648.) the Patron and Incumbent may charge the glebe, and although it be donative by a Layman, yet merè Laicus is not capable of it, but an able Clerk infra sacros ordines; for albeit he come in by lay donation, and not by admission or institution, yet his function is spiritual, and if such a Clerk donative be disturbed, the Patron shall have a Quare Impedit of this Church donative, and the writ shall say, Quòd permittat ipsum praesentare ad Ecclesiam▪ etc. and declare the special matter in his declaration: And so it is also of a Prebend, chantry, Chapel, Donative, and the like, and no laps shall incur to the Ordinary, except it be so specially provided in the foundation: Nevertheless▪ if the Patron of such a Church, chantry, Chapel, etc. Donative, doth once present to the Ordinary, and his Clerk is admitted and instituted, it is now become presentable, and never shall be donative after, and then also laps shall incur to the Ordinary, as it shall of other benefices presentable: but a presentation of such a Donative by a Stranger, and admission and institution thereupon, is merely void. Co. ib. 367. a. 3 25 If the Tenant make a lease of the land to the Lord for years, signory extinct. or the Lord be Guardian of the Land, or have it by Statute or Elegit, and then make feoffment in fee thereof to a Stranger: Here, albeit as to the Lessor this is a disseisin, yet hereby the Lord hath extinguished his Seignory. Co. ib. 170 b. 1. 26 Husband and wife Tenants in special tail, Parcener●. of certain land in fee have issue a Daughter, the wife dieth, the husband by a second wife hath issue another Daughter, and dies, both the Daughters enter (where the eldest is only inheritable) and make partition: in this case the eldest daughter is concluded during her life to impeach the partition, or to say that the youngest is not heir. So likewise I. S. seized of lands in fee hath issue two daughters, Rose bastard eigne, and Anne, mulier puisne, who enter and make partition, in this Case, Anne and her heirs are concluded for ever. ●●●dition to ●●le farther ●●ance, by a 〈◊〉 not let●●d. 27 A. is bound with Condition that he and his son shall at any time after make better assurance of land sold to B. B. tenders a writing unto them, the son being not lettered destres time to be advised of it, Co. lib. 2. 3. b. Marsers Case. which being denied, he doth not deliver it; In this Case, albeit a man unlettered is favoured in the Law, so as it is not his Act, if the writing be not read unto him, or rightly expounded, although he deliver it; yet here, because A. undertook that his son should do it, and no certain fine was limited for the doing thereof, the bond in this case is forfeit, for the time for doing of it was peremptory. ●●n not let●ed seals a ●ed. 28 A layman not lettered is not bound to deliver a deed, Co. lib. 2. 9 Thoroughgoods Case. if there be not a person present, that can read or expound the deed to him in such language as he understands, neither is he bound thereby, if it be read or expounded to him in another manner, than the words and matter thereof import, and it concerns the party, that should take it, to see that done, if the party that should deliver it require the same; but if the party, that shall deliver the writing require it not to be done, he shall be bound by the deed, although it be indicted contrary to his meaning. Copyhold strict. 29 The King grants a lease of lands held of him by Copy to A. who assigns to the Copiholder, Co. l. 2. 17. a. 4 Lanes Case. the King grants the reversion in fee to B. the term for years expires: here, the entry of B. is lawful; for by the acceptance of the assignment of the term, the copyhold is determined. 〈◊〉- tenants ●y prejudice 〈◊〉 another. 30 As to the profits of the franktenement one joint-tenant may prejudice another; for there is a privity and trust betwixt them; Co. l. 2. 68 a. 3 per Popham in Tookers' Case. and therefore if one of them take all the profits of the land, or all the Rent, the other hath no remedy; for the Law imputeth it to his folly to join himself in Estate with such a person, as will break his trust: So likewise if there be two Lords and a Tenant of land holden by Knight-service, and the Tenant die his heir within age: here, the Lords have Election either to seize the Ward, or to distrain for the services, and so to waive the Ward, as it is agreed in 1 E. 3. But in this Case if one of them seize the Ward, and the other distrain for the services, he that first seizeth or distrains shall bind the other. ●e●●ent up●● Condition ●●en. 31 If A. enfeoff B. of a Manor with an Advowson appendent upon Condition, that A. shall grant B. the Advowson during his life A. dies before he grants it: In this Case, the Condition is broken: For when the feoffée or grantée upon Condition is to make an Estate to the feoffor or grantor and no time is limited for the doing thereof, regularly it is true, that the feoffée hath time to do it during his life, if the feoffor or grantor do not hasten it by request, for upon request and a day or time limited, when he will have it done, the feoffée or grantée ought to do it accordingly; but if no Request be made, and the feoffée or grantée, who ought to perform the Condition, die, in this Case the Condition is broken: for he hath not performed the Condition within the time prescribed to him by the Law, which was during his life. But this general Rule admits some exceptions, which nevertheless are agreeable to this Maxim, for in this Case of an Advowson A. hath not time during his life, albeit no request be made, but also upon this contingent, viz. if no avoidance fall in the mean time; for if the grantée stay until an avoidance fall, then ipso facto the Condition is broken; for then B. cannot have the whole effect, that by the re-grant he ought to have, because that is, to have all the presentations during his life, & the Advowson is become in another plight, than it was in before: So if A. enfeoff B. the 1 of May upon condition that he shall grant to B. an Annuity or Rent during his life payable yearly at Mich. and La. da. in this Case the feoffée hath not time during his life to make this grant, but aught to do it before Mich. for otherwise he shall not have the Annuity or Rent during his life, and it may be collected upon the Book of 14 E. 3. tit. Debt 138. that in Case of the grant of a rent he shall not have time during his life: Likewise if two not married be enfeoffed upon Condition to reinfeoff the Donor or feoffor, etc. and one of them die: yet the other may perform the Condition; but if he that survives hath a wife, then is the Condition broken: for if he made the re-enfeofment, yet shall his wife be endowed: And in all these Cases and the like the Law imputeth it to the Laches and folly of the grantée, that he will not perform the Condition, while he may, and believeth against him these and the like things done to his own prejudice. Co. l. 3. 65. b. 2. in Penuants' Case. 32 If he, that hath a Rent-service or Rent-secke, acquittance the last Rent. accept the Rent due at the last day, and thereof make an acquittance, all the arrearages due before are thereby discharged, and so it was adjudged betwixt Hopkins and Merton in that Common Place, H. Rot. 950. Vide 10 El. Dier 271. But there the Case is left at large; with this also agrees 11 H. 4. 24. & 1 H. 5, 7, 6. But note, that the bar to the avowry ought to be with conclusion of judgement, Si encounter cest fait d'acquittance il doit fair Avowry, as appears by the Record of 10 El. and he ought not to demand judgement si action. Co. ib. 66. a. 4. 33 If there be Lord and Tenant by Knight-service, A extance shall lose th● ward. and the Tenant enfeoff his son and heir within age by Collusion: In this Case, if the Lord accept the services by the hands of the feoffée, he shall lose the ward; for the Statute of Malbridge cap. 6. making such feoffment by Collusion void and of no effect as to the Lord, if the Lord will affirm the feoffment and waive the benefit of that act by acceptance of the feoffée for his Tenant, he shall thereby purge the collusion, and therefore deserveth to lose the ward. Co. l 4. 1. a. & 2 b. 4. Vernous Case. 34 B. enfeoffs to the use of himself for life, jointure in hue of dower. remainder to his wife for life, with Condition to perform his last will and for her jointure, and dies, the wife enters, agrees to it, and after brings her writ of dower; In this Case, if after the death of the husband the wife accept of that conditional Estate, such acceptance shall bar her from having dower: for albeit dower at the Common Law (in lieu whereof a jointure is granted) be an absolute Estate for life, yet in as much as an Estate for life upon Condition is an Estate for life, it is within the words and intent of the Statute of 27 H. 8. 10. to bar the wife of her dower, if after the death of her husband she accept thereof: So if the husband enfeoff to the use of himself for life, the remainder to the use of his wife durante viduitate for her jointure, this is an Estate to her for life, and cannot determine without her own Act, and therefore a jointure also within the Statute, if after the husband's death she accept thereof. Co. l. 4: 9 b. 2. in Bevils Ca 35 If there be Lord and Tenant by fealty and Rent, Rent-service made Rent-secke. and the Lord grant over the fealty saving the Rent, or if a man make a gift in tail or lease for life rendering Rend, and grant over the reversion, except the Rent, in these Cases, the nature of the Rent, is altered by the parties own Act: and therefore the ancient seisin, when it was Rent-service, will not in such case suffice because by his own act the nature of the Rent is changed, neither can he have for it an Assize as of a Rent-secke, because he was never seized of any such Rent. Co. l. 4. 11. b 2. in Bevils Ca 36 If there be Lord and Tenant by fealty and two shillings Rend, Rend by encroachment. and the Lord by encroachment (viz. by the voluntary payment) of the Tenant) happens seisin of more Rent, than he ought to have, the Tenant shall not (in avowry) avoid such seisin had by accroachment, unless it be in some special Cases, which see ubi suprà. ●●●ges irritable. 37 If A. hath Rent-service or Rent-charge in fee or for life; Co. l. 4. 50. b. 4. in Andrew Ogwels Case. and the Rent is arreare, and after A. grants over the Rent to another, and the Tenant attornes, and after A. dies, his Executors are not within the branch of the Statute of 32 H. 8. 37. which gives power to Executors, etc. to recover Debt due to the Testator at the time of his death, for by the grant over the arrecages were lost, and were not due to the Testator at the time of his death: And therefore when the Testator by his own Act in his life time had dispensed with the arrearages, the said Act gives no remedy to recover them. ●il revolt by ma●e. 38 If a Feme sole make a Will, and after take Baron, Co. l. 4. 61. a. 4. in Forse and Hembling ca this is a revocation thereof; for the making of a Will is but the Inception thereof, and it takes not any effect, until the death of the Devisor: because omne Testamentum morte consummatum est, & voluntas est ambulatoria, usque ad extremum vitae exitum. And therefore it being no perfect Will when she takes Husband, and after marriage her Will being her Husbands and subject to it, by taking Husband she hath wholly revoked the Will formerly made. ●●vise, ●y. ●●●nder. 39 A. deviseth Land to B. till 800 l. be raised for the preferment of his daughters A. dies, C. being heir conceals the Will, Co. l 4. 82. b. 3. Sir Andrew Corbets Case. and enters: In this Case, B. shall have allowance for the time, that the Will was concealed, and that time shall not be accounted parcel of the time for the levying of the money: But if B. had surrendered to C. upon Condition, and had entered for the Condition broken, Co. l. 5. 13. b. 3. in the Countess of Shrewesberies ca that should have been accounted parcel of the time, for that was his own Act. 〈◊〉 40 At the Common Law (before the Statute of Gloucester cap. 5. 6 E. 1.) no remedy lay for waste (either voluntary or permissive) against Lessée for life or years, because the Lessée hath Interest in the Land by the Act of the Lessor, and it was his folly to make such a lease, and not to restrain him (by covenant, condition, or otherwise) from making waste: And for the same reason it is, that at this day Tenant at will shall not be punished for permissive waste: but for voluntary waste, he may according to Littleton fol. 15. 〈◊〉. ●●●der. 41 A. demiseth the Manor of D. to B. for 30 years, Co. lib. 5● 11. Ives Case. except the under wood growing upon it, and after demiseth the underwood to him for 62 years without impeachment of waste, afterwards B. accepts a lease of 30 years of the Manor after the expiration of the first 30 years; In this Case, because the demise of the underwood did not sever it from the Manor (the entire franktenement notwithstanding such demise remaining still in the Lessor) by his acceptance of the last lease for 30 years the former two leases were surrendered, and so (by consequent) if afterwards the Lessée commit waste, he is subject to an Action for it. ●●gation. 42 If a man be bound to make another before such a time such a release, as the judge of the Prerogative Court shall devise and appoint: Co. l. 52. b. 3. Lamb's Case. In this Case, if the Obligor do not only the first Act, but likewise procure the judge to devise and direct the release before the time limited, the bond is forfeit; for in as much as the judge is a stranger to the Condition, and the Condition is for the benefit of the Obligor, and the performance thereof shall have his obligation, he hath undertaken to perform it at his peril. ●●tion. 43 If a man be bound to make to another a sufficient and lawful Estate in certain Land by the advice of I. D. Co. ibidem. If he make an Estate to him according to the advice of I. D. be it sufficient or not, or lawful or not lawful, yet he saves the Obligation: for if it be in sufficient or unlawful, the Obligée may thank himself, to make choice of such a man, as could give no better direction. Fuit dit. Co. l. 5. 33. b. 4. in Reads ca 44 If after the death of a man, Execution 〈◊〉 his own wrong. none takes upon him to be his Executor, or if he died intestate, none takes out letters of administration; In such Case, if a stranger use the goods of the dead, or takes them into his possession, which is the office of an Executor or Administrator, such stranger may be charged as Executor of his own wrong; For the Creditors of the dead person have not in such Case any other, Co. ibid. 34. a. against whom they may bring their actions for the recovery of their debts, or albeit there be an Executor that Administers, yet if the stranger take the goods, and claiming to be Executor pays debts, and receives debts, or pays Legacies, and intermeddle as Executor, in such Case also by such express Administration as Executor, he may be charged as Executor of his own wrong. Vide Dier 166. 10. 1. El. Co. l. 5. ii5. a. 3 in Wades Ca 45 If the Lessor demands Rend of his Lessee according to the Condition of reentry, and the Lessée pay the Rent to the Lessor, Acceptance counterfeit money. and he receives it and put in his purse or pocket, and after upon reviewing thereof at the same time, he finds amongst the money, that he had received some counterfeit pieces, and thereupon refuseth to carry away the money, but reenters for the Condition broken: In such Case, it is said it was adjudged betwixt one Vane and Studley, that the entry was not lawful, for when the Lessor had once received the money, it was at his peril, and after such allowance, he shall not take exception to it. Co. lib. 5. 116. ●. 3. Olands' Case. 46 A Feme Copiholder of certain land, durante viduitate sua, Graine sow● Durante viduitate. according to the Custom of the Manor sows the Land, and before the severance of the grain takes Baron: In this Case the Lord shall have the grain: For albeit at the time of sowing the grain, the Estate of his wife was uncertain, and although her Estate determined by limitation, and not by condition, either in deed (as in Case of reentry) or in Law (as by forfeiture) yet because it determined by the Act of the Lessée herself, the Lord shall have the grain and not the Baron: So if a Feme seized of land (durante viduitate sua) make a lease for years, and the Lessée sow the land, and after the Feme, that made the lease, takes Baron; here, the Lessée shall not have the grain: for albeit his Estate is determined by the Act of a stranger, yet he shall not be (as to the Lessor) in a better Case, than his lessor was, and the law imputes it to his folly to depend upon so fickle a thing as the will of a woman, especially, in point of marriage. Co. ib. a. 4. 47 If Tenant at will sow the land, Tenant at will sow's grain. and after the will is determinned, the Lessée shall have the grain, but if the lessée himself determine the will before the severance of the grain, he shall not have them; because he hath determined his Interest by his own Act: So if Lessor at will be outlawed, whereby the will is determined; In this Case, the King shall have the profits, and the Lessée shall enjoy the grain: but if Lessée at will be outlawed, whereby the will is determined, in such Case the King shall have the grain. Vide 9 H. 6. 20, & 21. & Dier 173. 15. Co. ib. b. 1. 48 If a lease be made to Baron and Feme during the coverture, Graine sow● divorce. and the Baron sow the land, and after they are divorced, causa praecontractus, the Baron shall have the grain and not the Lessor: for albeit the suit is the Act of the party, yet the sentence, which dissolves the marriage, is the judgement of law, Et judicium redditur in invitum, but if a lease be made to one until he make waste, and he sow the grain, Waste. and after make waste, he shall not have the grain. Vide Max. 30. 34. ●●faction of ●●bt by deed 49 In Debt upon an Obligation of 10 l. the Plaintiff pleads, Co. l. 5 117. b. 2 Pinnels Case. that one F. was bound by the same Deed with him, and each of them in the whole, and that the Plaintiff made an acquittance to F. bearing date before the obligation, but delivered after, by which acquittance he acknowledged himself to be paid 20 s. in full satisfaction of the 10 l. and this was adjudged a good bar; for if a man will acknowledge himself to be satisfied by Deed, this is a good bar without receiving any thing. Vide 36 H. 6. Bar 17. 12 R. 2. Bar 243. & 10 H. 7. Yet payment of a less sum in satisfaction of a greater is not good satisfaction, because a lesser sum can by no possibility be satisfaction for a greater. ●●re service, ●●tiplied, ●●●ct. 50 If one hold his land of his Lord by an entire annual service, Co. l. 6. 1. b. 3. in bruerton's Case. as a Spur, Horse, or the like, and after sells parcel thereof to another, in this Case the alienée shall hold by the same entire service, because such entire service cannot be apportioned, and the land is severed by his own Act: So also if in such Case the Lord purchase parcel of the tenancy, such entire services are gone, in like manner as if the Lord had released his Seignory in part of the tenancy; because he hath discharged part of the land by his own Act. ●●rneys accents. 51 When a writ abates by default of the Clerk, Co. l. 6. 10. a. 2 in Spencer's Case. as for false Latin, variance, or want of form, or else by the Sheriff's fault, for want of good summons, in such Cases the Demandant shall have the benefit of a new writ by Journeys accounts; but if the first writ abate by the default of the Demandant himself, as by his mis-infirmation of the name of the Tenant, or of the Town, etc. there the Demandant shall never have a writ by Journeys accounts. Vide Dier 55. 7. 34, & 35 H. 8. 〈◊〉 tenants. ●●land re●●ns charge 52 If there be two joint-tenants in Fee, Co. l. 9 79. a. 2 in the Lord of Abergavenies Case. and one of them grants a Rent-charge in Fee, and after releaseth to the other: In this Case, albeit to some intent he, to whom the release is made, is in by the first Feoffor, and no degree is made betwixt them, yet as to the grantée of the Rent-charge, he is in under the joint-tenant, that releaseth, and he, that survives, shall not avoid it after the death of him, that releaseth, for he that survives by acceptance of the release hath deprived himself of the way and mean to avoid the charge; because Jus accrescendi (the right survivorship) was the sole mean to avoid it, and that right is taken away by the release. 〈◊〉 impedit 〈◊〉. 53 If a Quare Impedit within the six month's abate for false Latin, insufficiency of form, Co. l. 7. 27. b. in Sir Hugh Portmen Ca or mis-naming of the Plaintiff or Defendant (if the Plaintiff confess it) the Defendant shall not have a writ to the Bishop but the Plaintiff may have a new writ of Quare Impedit, for that may be the Clerk's fault; Howbeit, in such Case, if the Plaintiff be nonsuit after appearance, discontinue his suit, or be made Knight, hanging the writ, these are peremptory, and thereupon the writ shall abate, and the Plaintiff shall not have a new writ, because they are done by his own Act: and in such Cases the Defendant shall have a writ to the Bishop, etc. 〈◊〉 obligation perform an ●●rament 〈◊〉. 54 If a man be by bound obligation with Condition to stand to an Arbitrament to be made before Michaelmas, and before Mich. Co. l. 8. 82. b. 4 Vinyors Case he discharges the Arbitrator to meddle with it: in this Case, albeit the obligor may by such discharge retract the power so given to the Arbitrator, so as no Arbitrament may be made, yet the obligation is forfeit and is single without a condition, because the obligor by his own act hath made the Condition of the obligation (which was endorsed for his own benefit, viz. to save him from the penalty of the obligation) impossible to be performed, and (by consequence) the obligation is become single, and without the benefit or aid of any Condition, for that he hath disabled himself to perform it: In like manner, if one be bound in an Obligation with Condition, that the Obligor shall give licence to the Obligée by the space of 7 years to carry wood, etc. In this Case also, albeit he give him licence, yet if he afterwards within the 7 years' countermand it, or discharge the Obligée, the Obligation is forfeit. Co. l. 8. 92. b. 3 in Frances ca 55 If a man be bound in an Obligation to observe the arbitrement of I. S. and I. S. makes the arbitrement. In this Case, The like. if the Obligor neglects to inquire after it to know whether I. S. hath made an arbitrement or no, and for want of such inquiry omits to perform it, the Obligation is forfeit; for the Obligor ought to take notice thereof at his peril, because he hath bound himself to it, and in such Case no notice is requisite to be given unto him, as it is held in 1 H. 7. 5. Ibidem b. 4. 56 If a man be bound upon Condition to account before an Auditor to be assigned by the Obligée, when he shall be required thereunto, Obligation 〈◊〉 perform a● account. and to pay the arrearages found upon such account: In Debt brought upon such an Obligation the Obligor shall at his peril take notice of the arrearages found before the Auditor: for he having bound himself to satisfy them, shall also (without notice) inquire after them to know what they are, because he hath bound himself to it, and if he do not his Obligation for such neglect is forfeit: And so it was adjudged per Curiam in 18 E. 4. 18, & 24. And there Brian, Vavasor, and Catesby, justices agreed it for Law; and said it had been formerly so adjudged in the B. R. Co. l. 8. 136. à 1 in Sir John nedham's Ca 57 A Commission of Administration granted by the Bishop to the Obligor shall not extinguish the Debt, but the Debt shall remain: Obligation released by making the Obligor Exe●cutor, etc. Howbeit if the Obligée make the Obligor his Executor, this is a release in Law of the Debt, because it is the Act of the Obligée himself, and with this accords 8 E. 4. 3. & 21 E 4. 2. b. So likewise, if a Feme obligée take the obligor or one of the obligors to husband, this is a release in Law of the debt, because it is by the Act of the obligée herself, and with this accords 11 H. Co l. 9, 10. a. 3. Dowmans' Ca 7. 4. & 21 H. 7. 29. 58 If a recovery be suffered without consideration or limiting to what uses, it shall enure to the use of the recovery and his heirs; A subsequent Indenture may limit use of a precede● recovery. nevertheless the recoverée may afterwards by a subsequent indenture direct other uses thereof, and that shall enure by way of estopel against the recoverée and his heirs: for, albeit by such a recovery the use is vested in the recoverée, yet such a declaration by a subseqvent indenture, shall divest it, because the covenant thereof is the recoverées own Act. Co. l. 9 18. a. 3. Anne Bedingf●ilds Case. 59 In a writ of Dower the heir of the Baron may plead detainer of the evidences, Dower, deta●●ner of Cha●ters. howbeit if the heir have delivered the charters to the Feme he shall not plead detainment thereof: because the Feme hath them by his own Act. Co. l. 9 39 b. 1 Hensloes Ca 60 The Ordinary or his Deputies or Commissaries may seize the goods of the person deceased without being questioned for the same: An Ordina● sued. yet if they meddled with the goods and paid not Debts, an action lay against them at the Common Law before the Statute of Westm. 2. 19 which (indeed) is nothing else but an affirmance of the Common Law. Co. l. 11. 5. b. 3. in Sir John Heydons Case. 61 In Trespass against two, In Trespass 〈◊〉 the Plai●●● confession th● writ abates▪ if the jurors find one guilty at one time, and the other at another time, there several damages may be taxed: but if the Plaintiff himself confess, that they committed the Trespass severally, there the writ shall abate: and so observe the diverstty betwixt the finding of a jury, and the confession of the party, because this is his own Act, but that the Act of the jurors. F. N. B. 11. c. 62 If there be Lord and Tenant, Distress for more Rent, then is due justifiable. and the Tenant pays the Lord a greater Rent, then is due to him, and that voluntarily without cohersion of distress: here, the Lord having gained seisin of so much Rent, may distrain the Tenant for such surplusage 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 vepes, grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy, as it seems. 〈◊〉 none by ●●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 assign 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 Plaintiff 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 judgement in a writ of error sued by him, he shall not Assign this default in the Count for error, because he hath admitted it for good by his Plea: Tamen quaere. resentment ● an Advow●. 64 A man may have an Assize 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 courtesy suffer an usurpation to the Church, etc. and die, he in reversion, that is heir to the Ancestor, that last presented shall have an Assize 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 three usurpations) and dies; In this Case, at the next avoidance he in the reversion shall not have an Assize of darrein presentment, if he be disturbed to present, because the Lessée was in by his own Act: Howbeit his heir 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 year's presents, and after the Incumbent dies; and the Lessor presents and is disturbed; in this Case it seems the Lessor shall not have an Assize of darrein presentment, causa quà suprà: And the termer for years presented in his own right. ●●●ative. 65 If a man hath a Chapel or chantry Donative, F.N.B. 35. e. and he presents once to the Ordinary his Clerk to that Chapel or chantry; In this Case, he shall never make Collation afterwards, but he ought to present to the Bishop, and if he present not within six months, the Ordinary shall have advantage of the lapss. 〈◊〉 utrum. 66 If a Parson receive Rend 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 ●●charged. 67 If the Recognisor enfeoff a stranger of one parcel of the land charged, and likewise enfeoff 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 own Act. ● warrantia ●●; and ●●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 feoffment 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 Tenant's heir, nor aver the Collusion. F. N. B. 144. 0. 70 If a man be entitled to have a writ of Escheat, Acceptance bars. Escheat. and he accepts the homage of the Tenant; in this Case, he shall not have a writ of Escheat against him afterwards, because he hath accepted him for his Tenant; So also it seems reasonable, if he accept fealty of him, that in such Case also he shall not have a writ of Escheat: Howbeit, it is not so of Rent; because the former are solemn services, which the law respects more than Rent. Vide suprà Max. 91. Pl. 19 Pl. Co. 66. a. 2. in Dive and Maninghams' Case. 71 When a man demurs, he is to do it generally, Pleading an● special demu● 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 straightened the Defendant, that if the obligation were void for any other cause, than 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 fee, per nomen omnium terrarum & tenementorum, quae in manibus le Devisor ad tunc fuerunt, and the heir 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 than held the tenements, and that nothing of the reversion by the general words passeth to the Devisée, and so he demands judgement, etc. And thereupon the Plaintiff also demurred: And there it was held, that in as much as the Defendant had demurred in a point in special, and hath rehearsed the cause of his demurrer, that if there were any other matter in the declaration, whereof the Defendant might have advantage, he could not take any benefit or advantage thereof. Pl. Co. 84 b. 3. in Partridge, and Strange, & Crokers' Case. 72 In a count or declaration, if the Plaintiff recite a Statute, Count aba●● by mis-rec●● which he needs not do (being a general Statute, whereof the justices are bound to take conusance) in such Case, if he mis-recite it (as in the date or otherwise) his count shall abate; for though it was not requisite to recite it, yet he making use thereof by way of recital, he ought to recite it as in truth it is; because than he hath grounded his action upon the Statute by him recited, where it appears to the Court judicially, that there was no such Statute at that time, and so he hath abated his count by his own showing; etc. Co. Inst. p. 1. 207. a. 2. 73 If feoffment be made upon Condition, Tender and refusal. that the feoffor shall pay a certain sum of money at such a day, etc. if tender of the money be made accordingly, and the feoffée refuse to receive it, by this the feoffor and his heirs may enter, etc. And then the feoffée is without remedy to recover the money at the Common Law; because it was his folly, that he would not receive it, when he might: So if an obligation of 100 l. be made with Condition for the payment of 50 l. at a day, etc. and at the day, the obligor tender the money, and the obligée refuse it: In this Case, albeit in an Action of Debt upon the obligation the 50 l. may be received, because it is still a duty and parcel of the obligation, and the obligée hath remedy by Law for the same, according to the Rule; Liberata pecunia non liberat ofterendum; yet if the Defendant plead the tender and refusal (wherein he must also say, uncore priest, and tender the money in Court (if the Plaintiff will not then receive it, but take issue upon the tender, and the same be found against him, he hath lost the money for ever, because he hath made two refusals, when he might have had it. acceptance of ●ent. 74 C. purchaseth a Copyhold of A. to him his wife and their child for their lives, Dier 30. 207. 28 H. 8. A. let's the francktenement of the soil by Deed indented to B. for his life reserving Rend, and livery and seisin is made accordingly: Afterwards A. levies a fine sur conusance de droit come ceo, etc. to C. of the same land, and C. accepts the Rent of B. In this Case it seems, that by the acceptance of the Rent of B. the Copyhold of C. is gone; So if a Disseisor make a lease for life reserving Rend, and after grant the reversion to the Disseisée, and he accept the Rent of the Lessée, he shall never after oust him; Quod fuit concessum per quosdam. privilege. 75 One of the Clerks of the Chancery was sued in the C. B. and process continued till the exigent, Dier 3 3. 18. 28, & 29 H. 8. and the Defendant (who was the Clerk) sues a supersedeas to the Sheriff, quia improvidè, and after he sues a writ of privilege out of the Chancery directed to the justices of the B. reciting the privilege of Chancery and requires the justices to surcease: In this Case, the privilege was dis-allowed and the Clerk put to answer, because the Court was lawfully seized of the plea by the Act of the Defendant himself: for in as much as he sued out the supersedeas quia improvidè, he thereby affirmed the jurisdiction of the Court for that every, supersedeas quia improvidè recites the Defendants appearance in Court by an Attorney, and names him, and therefore it was his own default: But if he had sued such a writ (notwithstanding the exigent) the privilege had been allowed him, and then after the writ of privilege come to the justices, they ought to have sent a special supersedeas to the Sheriff of the Out-lawry, reciting the privilege: And this resolution agreed with Precedents showed in Court. Do●er imper●●… plea. 76 In Dower, the issue was Ne unque seisie que Dower luy puit, Dier 41. 1. 30 H. 8. and a Deed of feoffment made unto the Baron was by the Demandant given in evidence to the inquest, and produced in Court; whereunto it was answered, that before the feoffment the Baron was seized of land to him and his former wife in special tail, and that after he made discontinuance, and retook the Estate in fee by the feoffment aforesaid, and of such Estate died seized, whereby the heir, who is Tenant in tail, is remitted, and therefore the second Feme could not be endowed; in this Case, albeit the matter alleged might have a voided the Dower, if it had been specially pleaded, yet here the issue being only ne unque seisie, etc. the justices were of opinion, that the jury ought to find for the Demandant, etc. se … is. 77 If A. plant Coneys in his own ground, which increase to such a number, that they destroy the land of B. next adjoining; Co. l. 5. 104. b. Boulstones Ca in this case, B. cannot have an action upon the case for the damage he sustains by them; for the property of them remains no longer in A. then they remain within his Warren, and when they come upon the land of B. he may lawfully kill them, because than they are his if he can catch them, and it is his own fault, if he do not take them. 〈◊〉 to be of counsel in a … s own ●●●se. 78 This Maxim teacheth us, Co. Inst. p. 1. 377. b. 4. that it is not safe for any man (be he never so learned) to be of Counsel with himself in his own Case, but to take advice of other learned men, and the rather because the phisautia and self-opinion, which is in man by nature, so obscures his understanding, that he can hardly give a right judgement of things, that concern himself Non prosunt dominis, quae prosunt omnibus arts; and in suo quisque negotio habitior est, quam in aliena: And therefore in the new inventions of justice Richel (an Irishman) in R. 2. time, and of Thirming in H. 4. time, Litt. §. 720. time, there were found many imperfections, and Richel was overthrown in an Action upon the Case by his own showing in 2 H. 4. fol. 11. vide Co. l. 1. 88 a. 2. in Corbets Case. Dier 69. b. 36 5 E. 6. 79 A man enfeoffs two upon Condition, A Condition severable. that the feoffées before a certain day shall make an Estate again to the Feoffor for term of his life, the remainder over in fee to a stranger, one of the feoffées makes an Estate accordingly; in this Case, albeit the Condition was entire, yet it was conceived by many, that it is good for the moiety, because the party to the Condition hath dispensed with the Condition by his acceptance of the Estate. Dier 140. Pl. 43. 3, 4 P. M. 80 If Lessée for years by indenture accept of another lease (though it be but by parol) to begin immediately, A surrender Law. this is a surrender in Law of his first lease, because by his acceptance of the last lease, he admits himself out of possession, and that the Lessor hath lawful power to demise him a new one. Vide Dier 279. 11. Dier 144. 57 etc. 3, 4 P. M. 81 The Statutes of 27 E. 3. 8. and 28 E. 3. 13. of the Staple were made for the benefit and in favorem alienigenarum for trials per medietatem linguae, yet if an Alien be Plaintiff, Trial per 〈◊〉 dietatem li●gua. and omit the advantage of requesting it, whereupon a general venire facias issueth out and is returned, some say, that thereby he hath slipped his time, and that the judges are not bound ex officio to award any such special writ by reason of the said Statute, for it appeareth not unto them by the Record, quòd una pars sit alienigena, and by the Common Law the trial was by all English: Howbeit Treason shall not be tried per medietatem linguae. Dier 158. Pl. 32. 4, 5 P. M. 82 If a Guest come to a Common Inn to lodge there, A Guest rob. and the Host saith, that his house is already full of Guests, and is not willing to admit him, and the Guest saith, that he will make shift amongst the other Guests, and is there rob of his goods; in such Case the host shall not be charged therewith, because he refused him, but the Guest shall bear the loss himself. Vide Dier 266, 9 Dier 164. 57 4, 5 P. M. 83 If a man hath goods to value of 100 l. and is in Debt 20 l. and by his will gives his wife the moiety of all his goods, Goods bequeathed. to be equally divided betwixt her and his Executors, and then he makes Executors and dies; in this Case, if the Executors discharge the Debt to the Creditor by sale or other satisfaction out of the goods themselves, the Feme shall have only the moiety of the residue, viz. 40 l. but if they pay the Debt by their own money, the Feme shall have the moiety of all the goods viz. to the value of 50 l. so as the Executors have assets. Dier 200. 62. 3 Eliz. 84 The King demiseth a Message rendering Rend, Surrender. and afterwards the lessée takes a patent of the office of the keeping of the said house, this seems to be a surrender in law of the lease. Dier 226. 40. 6 Eliz. 85 In an Ejectione firmae against two, Ejectione ●●mae. one appears and pleads the general issue, and process is continued against the other: who also appears, and pleads entry of the Plaintiff into the land since the last continuance, in abatement of the writ, whereupon the Plaintiff demurs; afterwards the issue above was found for the Plaintiff, yet he shall not have judgement; for by the demurrer he hath confessed the entry, which abates his own writ. Dier 261. 28. 9 Eliz. 86 The rasing of a lease in any place (though not material) by the lessée himself makes the lease void. Rasing. Hob. 119. Wood and Budden 87 In Trespass in 8 acres of Pasture in Tollard Royal, Trespass. the Defendant pleads, that W. E. of Salisbury was seized of Cranborne Chase, And so prescribed in liberty of Chase, and that the said Chase did extend itself as well in and through the said 8 acres, as the said Town of Tollard Royal, and justifies the Trespass for use of the chase: The Plaintiff maintains his declaration, and traverseth, that the Chase extends not itself as well to the 8 Acres, as to the whole Town; And this issue being found for the Plaintiff, it was moved in arrest of judgement, that this issue and Verdict were faulty, because if the Chase did extend to the 8 Acres only, it was enough for the Defendant, and therefore the finding of the jury, that it did not extend as well to the whole Town, as to the 8 Acres, did not conclude against the Defendants right in the 8 Acres, which was only in question: But it was answered by the Court, that there was no fault in the issue, much less in the Verdict, which was according to the issue; but the fault was in the Defendants plea, who takes the exception, for he put in his plea more thou he needed, viz. the whole Town, which being to his own dis-advantage, and to the advantage of the Plaintiff, there was no reason for the Plaintiff to demur upon it, but rather to admit as he did, and so to put it in issue: And so judgement was given for the Plaintiff. 118 When several remedies are given, the party, to whom the Law giveth them, hath thereby also election given him to take which he will. ● writ of an●●y or ●l●●se. 1 If a man grant by his deed a Rent-charge to another, Litt. §. 219. Co. Inst. p. 1. 145. a. 1. and the Rent is arrere, the grantée may choose, whether he will sue a writ of Annuity, or distrain for the Rent arrere: but in this Case he shall but choose once; for if he recover in a writ of Annuity, he shall never after distrain, or if the distrain● and avow in Court of Record, he shall never after bring a writ of Annuity; because an avowry in a Court of Record, being in nature of an Action, Co. ib. 145. b. 4. is a determination of his election before any judgement given. Electio semel facta & placitum testatum non patitur regressum. Quod semel placuit in electionibus amplius displicere non potest. action of ●●at or 〈◊〉. So if a Rent-charge be granted to A. and B. and their heirs, Co. ib. 146. a. 1 A. distraineth the Beasts of the grantor: who sueth a replevin, A. avoweth for himself and maketh conusance for B. A. dieth and B. surviveth: Here, B. shall not have a writ of Annuity; for in that Case, the Election and avowry for the Rent of A. bar●eth B. of his election to make it an Annuity, albeit he assented not to the avowry. And here, is a diversity to be observed between the Case abovesaid where the grantée makes it either real or personal at his Election, real, when he distrains, or personal, when he brings his writ of Annuity, and where a man may have Election to have several remedies for a thing that is merely personal or merely real from the beginning: As if a man may have an Action of account or an Action of Debt at his pleasure, and he bringeth an Action of account, and appear to it, and after is nonsuit, yet may he have an Action of debt afterwards, because both actions charge the person: The like Law is of an Assize, and of a writ of entry in nature of an Assize, and the like. ●●der of 〈◊〉. 2 If a feoffment be made of a wood upon Condition to pay a certain Rent, the Demand aught to be made at the Wood-gate, Co. ib. 202. a. 1 or at some high way tending through the Wood, or other most notorious place there: And if one place be as notorious as another, the feoffor hath election to demand it at which he will, and albeit the feoffée be in some other part of the wood ready to pay the Rent, yet that shall not avail him, & sic de similibus. Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be paid to the feoffée, Payment of Mortgage money. and before the day of payment he make his Executors, and die, in this Case the Mortgageor shall pay it to the Executors, albeit they be not named, or if it be limited to be paid to the Mortgagee or his heirs, then, if he die, it ought to be paid to his heir, because named; but if to his heirs or executors, the Mortgageor hath election to pay it to either; So likewise if the Condition be to pay it to the feoffée his heirs or assigns, and the feoffée make feoffment over, it is in the election of the feoffor to pay the money to the first or second feoffée, at his pleasure, and so if the first feoffée die, the feoffor may pay the money either to the heir of the first feoffée, or to the second feoffée at his election; for the Law will not enforce the feoffor to take knowledge of the second feoffment, nor of the validity thereof, whether the same be effectual or not, but at his pleasure. Litt. §. 341. Co. ib. 211. b. 2 4 If feoffment in fee be made reserving Rent, An Assize, o● entry. and for default of payment a reentry; this is a Rent-secke, and in this Case, if the feoffor be once seized of the Rent, which after is denied him, it is at his election whether he will have an Assize of Novel disseisin for the rent arrere, or enter for the Condition broken: but after a recovery in Assize he cannot have recourse to his reentry, because by bringing the Assize he affirms the continuance of the Estate. Litt. §. 454. Co. ib. 268. b. 1. & 312. a. 1. 5 Before the Statute of 21 H. 8. 19 Avowry at la● or by Seat. the disseisée might compel the Lord to avow upon him, but since that Statute if the Lord distrain upon any of the Lands and Tenements holden, etc. he may avow, etc. upon the same Lands, etc. as in Lands, etc. within his fee or Seignory, etc. without naming of any person certain, and without making avowry upon a person certain, and therefore at this day the Lord hath his Election, either to avow according to the Common Law: or by force of the said Statute, as by the word may in the same Statute is imported. Littl. § 478 Co. ib. 278. b. 3 6 If a man be disseised by an Infant, who aliens in fee, Several re●dies by ac● or entry. and the alienée dies seized, and his heir enters, the disseisor being still within age: In this Case, it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem, or a writ of right against the alienée: or otherwise he may make his entry into the land without any suit or recovery: And so it is to be observed, that many times the Law doth give a man several remedies and of several kinds, as in this Case by action and by entry, by action, either by writ of right, or dum fuit infra aetatem. Littl. §. 496, 497, & 478 Co. Inst. p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing, A remedy 〈◊〉 remain a● a release. be it real personal or mixed, albeit he releaseth one of his remedies, yet he may use the other; So where a man may enter into lands, and also have an Action real given him by the Law to recover them; In this Case, if the Demandant release to the Tenant all manner of actions real, yet the Demandants entry is not thereby taken away, because nothing is released but the Action: And so it is also of thnigs personal, as if a man wrongfully takes my goods, albeit I release to him all actions personals, yet I may by Law take my goods out of his possession: In like manner if I have any cause to have a writ of detinue of my goods against another; here, albeit I release unto him all Actions personals, yet I may by Law take my goods out of his custody, because no right of the goods is released, but only the Action. ●lent di● or a● 〈◊〉. 8 If one bold of me by Rent-service, which is a service in gross, Litt. § 588, & 589. and not by reason of my Manor, and another, that hath no right, claims the Rent and receives it of my Tenant by cohersion of distress or otherwise, and disseiseth me by taking the Rent; albeit such a disseisor die so seized in taking the Rent, yet after his death it is at my election, either to distrain for the Rent, or taking him to be a disseisor to have an Assize against the pernor of the profits. ●ine or a● 9 If an Abbot, Bishop, or Husband in the right of his Wife, Co. ib. 3 27. b. 2 seized of a Rent, or any other Inheritance, that lies in grant had aliened, it was in the Election of the Successor or Wife (after the death of her Husband) to claim the Rent, etc. or to bring an Action; for such alienation did not work a discontinuance, and so it is also (by construction) of the Statute of West. 2. cap. 1.) in Case of Tenant in Taile. ●tes waiv● by Feme ●ert. 10 If Lands be given to the Husband and Wife and their heirs, Co. ib. 357. a. ● the Husband makes a feoffment in fee, the feoffée giveth the land to the Husband and Wife, and the heirs of their two bodies, the Husband dieth; In this Case, the wife may elect which of the Estate she will, for both Estates are waivable, and her time of Election and power of waiver accrued unto her first after the decease of her Husband. ●echer of 〈◊〉 heirs. 11 Inderaigning a warranty against heirs in Gavelkind, Co. ib. 376. a. 4 the eldest may be vouched as heir to the warranty, and the other sons also in respect of the Inheritance descended unto them: So likewise the heir at the Common Law, and the heir of the part of the mother may be both vouched: yet in both these Cases the heir at the Common Law may be vouched alone at the election of the Tenant. ●nveyance ●y several 〈◊〉. 12 When a man conveys a thing to another by several words which will admit several acceptions, Co. l. 2. 35. b. 3. & 36. b. 4. Sat Rowland Heywards Case. the interest of the thing granted passes presently, and the grantée, his heirs, or executors may make their election when and in what manner they will take it: And therefore if a man seized of a Manor part in demesne and part in lease demiseth, bargains, and sells it to another for years, the Lessée may make his election, whether he will take it by demise at the Common Law, or by bargain and sale: So also in Sir Roland's Heywards Case in the second Report it was said, if a man give two Acres of land, habendum the one acre in fee and the other in tail, and he alien both, and hath Issue and dies, in this Case, the Issue may bring a Formedon in descender, for which Acre he pleaseth; for the election was not determined by the grantées death because the Estate passed presently by the livery, and the issue takes by descent. ●e heirs E●tion. 13 If a feoffment be made to two, and the heirs of one of them, Co. l. 2. 61. a. 3 Wiscots' Case. and he that hath the fee dies, and after he Tenant for life dies, in this Case, the heir hath election to have a Mortdancester, or a scire facias, or a Formedon in remainder at his pleasure. The Lord's Election. 14 If there be Lord and Tenant by Knight-service, Co. l. 2. 68 a. 4. in Tookers ca and the Tenant die his heir within age, here the Lord hath election either to seize the Ward, or to distrain for the services and waive the Ward, Per Popham. Election of ●hings in ●gant. 15 If Tenant in tail of a Rent, Advowson, Tithes, Common, Co. l. 3. 84. a. 4. in the Case of Fines. or other such things, which lie in grant, grants them by deed in fee and dies, the grant is not absolutely determined by his death; but it is at the Election of the Issue to make the grant voidable or void at his pleasure; for if he bring a Formedon for the Rent, etc. he makes the grant voidable, but if he distrain for the rent, or claim it upon the land, he thereby determines his election and makes it void. Co. l. 4. 81. a. 1 in Nokes Case 16 If a man seized of land in fee lets the same for life rendering Rend and besides binds himself and his heirs to Warranty, Election of Warranty. here the express warranty takes not away the Warranty in Law; for if he in reversion grant over his reversion, and the Lessée attorn, and after is impleaded, it is at his Election whether he he will vouch the grantée by the warranty in Law, or the Lessor by the express warranty. Vide 20 E. 3. Tit. Counterplea de guarantee 7. Co. l. 4. 82. a. 4. in Sir Andrew Corbets Case. 17 If a man deviseth demiseth or limiteth by way of use land to another until 800 l. be raised for the perferment of his daughters, and dies, Election of entry or actions. and the heir, or he in Reversion or Remainder enter upon him, to whom the Land is devised, demised, or limited, as aforesaid, and expulse him; In this Case, it is in the Election of the person so expulsed, either to bring his Action and recover the mean profits, which shall be accounted parcel of the sum, or he may re-enter and hold the Land, until he may levy the whole sum, and the time, in which he was so expulsed, shall not be accounted parcel: There is the same Law in other Cases, viz. of Tenant by Elegit, Statute Merchant, Statute Staple, Guardian, who holds over for the double value; If he in the Reversion, who is to have the Lands, outs them, they have such Election, as aforesaid, either to hold over, or to bring their action. Co. l. 4. 93. a. 4 in Slades Case 18 For money due upon the sale of corn, or the like, Election of actions. it is in the election of the Plaintiff to bring an Action upon the Case, or an Action of Debt, 1 For the greater number of Precedents and judgement in the point. 2 Every contract executory justly implies an Assumpsit. 3 Recovery in an Action upon the Case bars in Debt. 4 It is the more speedy Action, for if the payment be at several days, no debt lies till the last, this lies upon the first breach. 5 It is a form action in the Register, and may lie, where Debt lies, as appears there, Fol. 97, 98, 100, & 103. See Dier 20. 118. 28 H. 8. Gore & Woddeys Case. Co. ib 94. b. 4. in Slades Case 19 When the Register hath two writs for one of the same Case, Election of action. it is at the election of the party to take and use either the one or the other, and it appears by divers Cases in the Register, that an action upon the Case will lie, albeit the Plaintiff may have for the same thing another form Action in the Register: F. N. B. 94. g. & Register 103. b. So if a man hath a Manor within an Honour, and hath a Léet within his Manor for his own Tenants, if he or his Tenants are distrained by the Lord of the Honour to come to the Léet of the Honour, he that is so distrained may have a general writ of Trespass, or a special writ upon his Case; So if an Officer take toll of him, who ought to be quit of toll, he shall have a general writ of Trespass, or an action upon his Case, as appears by Fizt. ibid. If a Prior or other Prelate be riding upon his journey, and one distrains the horse, upon which he rides, when he might distrain other of his goods, in this Case, he may have a general action of Trespass, or an action upon his Case, as appears by the Register fol. 100 & F. N. B. 93. b. So if a Sheriff suffer one in execution upon a Statute Merchant to escape, the Conusée may have an Action of debt, or an action upon the Case, as appears by the Register 98. b. & F. N. B. 93 B. C. So if a man ●ust the Executors of his Lessée for years from their term, they may have a special writ upon their Case, as appears F. N. B. 92. g. Register 97. and yet they may also have an Ejectione firmae, or Trespass: for in all Cases, when the Register hath two writs for one and the same Case, it is at the election of the party to take either the one or the other. 〈◊〉 of 〈◊〉 for 〈◊〉. 20 Where a Prior is the King's debtor, Co. l. 5. p. 1. 16. a. 2. in the K. Ecclesiastical Law. and aught to have tithes of another spiritual person, he may choose either to sue for subtraction of his tithes in the Ecclesiastical Court, or in the Exchequer, and yet the persons and matter also was Ecclesiastical. ition for a ●n a Leet. 21 For offences committed in the Léet itself, Co. l. 8. 41. b. 2 in Grieslies ca as refusing to take the oath of Constable, or the like, the Lord may bring his action of Debt, distrain goods and sell them, or distrain and impound them at his Election. acount to ●ng. 22 If the Treasurer and under-treasurer of the Exchequer give power to one by an un-lawful warrant to receive money of one and more of the Tollers of that Court, Co. l. 11. 90. b 4. and 92. b. 4. Sir Walter Mildmayes ca cited in the E. of Devons Ca. it is in the King's Election to charge the party that receives them, or (in Case he die) his Executors, or otherwise to charge the Treasurer and under-treasurer, that issued out such unlawful warrant. ●n Office ●ward● 23 If a man be ousted of his Steward-ship of a Manor, Co. l. 9 51. a. 1 the Earl of Shrewsburies' Case: so as another executes the place taking the profits thereof, for his restauration thereunto he may either bring an Action of the Case, or otherwise an Assize at his Election. ●ers or o●s in Ga●ed, a Ra● part, ● a Nuper 〈◊〉. 24 If the Ancestor die seized, F.N.B. 9 g. and one of the Sisters enter into all the Lands and deforce the rest: In this Case, the other Sisters may sue a writ de rationabili parte, or a writ of nuper obiit at their Election; So likewise for lands in Gavelkind, if one Brother enter into all the lands, and oust his Brothers, here also (if the Ancestor died seized) the other Brothers may sue a writ de rationabili parte, or a nuper obiit, at their Election. ●ded in A●y, or by ● ●juste 〈◊〉, 25 If there be Lord and Tenant, F.N.B. 10. h. and the Lord incroacheth other services than such as are due to him, as Homage, Escuage, or the like; In this Case, the Tenant may avoid such encroachment in Avowry made by the Lord for such services, because the Tenant may traverse the manner of the Tenure, as to say that he holds of the Lord by fealty and xx s. Rend only, without that, that he holds by Homage, Fealty, and Rent in manner and form as the Avowry is made: Or otherwise he may bring a writ of Ne injustè vexes, if he please, at his Election. ●t of right ●urowson, ●n scire fa●, 26 If a man recover in a writ of Right of Advowson, F.N.B. 36. a. at the next avoidance he may present, and shall have a Quare impedit without assigning any presentment in himself, or his Ancestors, but shall declare upon the Record: or otherwise he may have a scire facias upon such recovery. ●it utrum, ●●aint. 27 If a man recover by an Action tried against a Parson, F.N.B. 48. r. lands and Tenements by verdict, and the Parson pray not in Aid of the Patron, and Ordinary; In this Case, if it was a false Verdict, the Successor may have a Juris utrum; or an attaint at his Election. ●r, or at● 28 If a Parson lose by action tried, or by default, F.N.B. 49. g. his Successor may have a writ of Error, or an attaint at his Election. 〈◊〉 in Court kristian or a 〈◊〉 of annui● 29 If a Parson, Vicar, Master of an Hospital, or the like, F.N.B. 51. b. have a pension out of another Church, which they and their Predecessors have had time out of mind, it is at the Election of such Parson, Vicar, etc. to sue for such pension in the Court Christian, or by writ of annuity at the Common Law, for in that case, if they sue for it in Court Christian, and the other party purchase a prohibition, etc. upon the matter shown they shall have consultation. F.N.B. 82. d. ●sse or ●de auxilio. 30 For Aid ad filium suum militem faciendum vel ad filiam maritandam; the Lord may distrain his Tenant and make avowry, or bring a writ auxilio, at his Election. F. N B. 98. c. 31 If Baron and Feme lose by default the land of the Feme; here, Deceit or in vita. if the Baron die, the Feme may have a writ of defeit, or a Cui in vita, at her Election. F.N.B. 99 g. 32 A writ of deceit may issue out of the Common Pleas or Chancery at the Election of the Plaintiff, A writ of ceit our o● Com. Pl● Chancery as if a man lose by default land in a praecipit quod reddat in the Common Pleas, the Tenant shall have a writ of deceit, (alleging that he was not summoned, or the like) out of the Common Pleas, or out of the Chancery at his Election. F.N.B. 104. f. 33 Where the Recognisor purchaseth a Manor, Audita 〈◊〉 or seis●t. unto which the Recognisée is Villain regardant: In this Case, the Recognisor may have an audita quaerela, or otherwise may enter and seize the Recognisor without any such suit, at his Election. F.N.B. 122. d. 34 A man may sue a writ of debt upon a Statute Merchant, Debt or execution. Statute Staple, or Recognisance; or otherwise, he may sue execution upon those Statutes, at his Election. F.N.B. 155. d. 35 If Tenant in Tail, Dower, by the Courtesy, Deceit or Quod ei d●ceat. or for life lose by default (where they were not summoned, or the like) they may have a writ of deceit, or a Quod ea deforceat, (upon the Statute of W. 2. c. 4.) at their pleasure. Dier 162. 51. 4, 5. P. M: 36 If a man condemned in debt or damages have lands in divers Counties, Elegit. Fieri fa●● the Plaintiff may pray an Elegit in each County for the whole debt or damages, or he may make divisions of his debt, viz. Quoad decem libras, etc. & quoad alias decem libras, etc. & sic deinceps; at his election. Vide M. 17 E. 3. in debt against Executors two writs of fieri facias, were awarded into several Counties for the whole debt: And in waste in 29 H. 6. Rot. 103. the Plaintiff for the triple damages had three writs of Elegit in three several Counties for the whole. Dier 344. 2. 18 Eliz. 37 A man grants a Rent-charge without these words per se & haeredibus, and dies, Annuity. the grantée brings a writ of Annuity against the Heir, and after discontinues his suit and distrains, and i● it was adjudged well done, because the Election to make it an Annuity was determined by the death of the Father. 119 Cujus est divisio, alterius est Electio. Co. Inst. p. 1. 166. b. 2. & Litt. §. 245. 1 Upon partition amongst Coperceners, Election by Copercene● the eldest shall have the Election: for she shall have Civitiam partem, but if she herself make the partition, she loseth her privilege of Election, and shall take last. Hob. 107. the Bishop of Carliles Case. 2 A prescription, that if an inhabitant hath five fleeces of wool, Tithe●. or above, that then the inhabitant after the shearing and binding up of the said five fleeces without fraud or deceit shall truly pay unto the Rector after monition, etc. at the door of the Mansion house of the said inhabitant, etc. the tenth part thereof, without any sight or touch of the nine parts by the Rector, is a void prescription: for it is against common reason, that any man should judge or divide for himself, and then take choice of his own division, against the Rule of Litt. §. 245. for the truth of the tenth depends upon the proportion it holds with the nine parts, & therefore for the parishioner, who is in the nature of an adversary to the Parson in this Case, to set out a part of the tenth, which he only affirms to be just, is to give him méerly power to tithe as he lists, and the prescription were as reasonable as to say plainly, that the parishioners might set out what tithe they please. 120 Nemo prohibetur pluribus desensionibus uti. ●ral Pleas 〈◊〉. 1 Where the Tenant or Demandant may plead a general issue, Co. Inst. p. 1. 304 a. 3. thereupon the general issue pleaded, he may give in evidence as many distinct matters to bar the action or right of the Demandant or Plaintiff, as he can. ●able mat● pleaded. 2 Where a special Verdict contains double or triple matter, Co. ibidem. the Tenant or Defendant may either make choice of one matter, and to plead it to bar the Demandant or Plaintiff, or to plead the general issue, and to take advantage of all, or he may plead to part one of the pleas in bar, and to another part another plea, and the conclusion of his plea shall avoid doubleness. 〈◊〉, as admirator, or ●●or. 3 An Executor brings debt as Administrator, Co. l. 5. 33. a. robinson's Ca and is barred by plea, that he is Executor: In this Case, he may afterwards bring debt as Executor: For he was barred, as to the action of the writ, to have Debt as Administrator, but not to the Action. ●●tion 〈◊〉 satisfa●●. 4 Two men were bound jointly and severally in an Obligation, Co. l. 5. 96. b. Blumfeilds' ca the one was sued, condemned, and taken in Execution, and so (not long after) was the other: And afterwards the first escaping, the other brought an Audita quaerela: but it was not admitted; for albeit the Plaintiff might have had his action against the Sheriff upon the escape, yet until he be satisfied indeed, the other shall not be enlarged, nor have his Audita querela: because the execution upon the first, that escaped, was not valuable, being without satisfaction. 〈◊〉 of acti●●ll not 〈◊〉 recovery ●ise. 5 If one be barred by plea to the writ, Co. lib. 6. 7. a. in Ferre●● Ca he may have the same writ again: if by plea to the Action of the writ, he may have his right Action: If the plea be to the Action, and he be barred by judgement, confession or verdict, in personal Actions it is a bar for ever▪ but in real actions he may have a writ of an higher nature, and shall it is the same right again, because it concerns his Franktene●●ent and Inheritance: So if one be barred in an Assize of Novel disseisin, yet upon showing a descent or other special matter, he may have an Assize of Mortdancester, Aiel, Besaiel, a writ of Entry sur disseisin of his Ancestor, etc. or the like: F.N.B. 5. n. And if he happen to fail in any such real action yet may he have (last of all) his writ of right, in which the whole matter shall be tried and determined again; Howbeit, Recovery or bar in Assize is a bar in every other Assize and in a writ of entry in the nature of an Assize; because they are both of his own possession and of the same nature: So bar in a writ of Aiel, is a hair in a writ of Besaiel, Cozenage, because they are ancestral and of the same nature: yet in a Formedon in descender, albeit the Demandant be barred by verdict or demurrer, yet the issue in tail may have a now formedon in descender; But this is by the construction of W. 2. c. 2. So likewise, if the Ancestor be barred in a writ of Error upon a release, by him made to the Tenant, yet the issue shall have a new writ of Error; For he claims in not only as heir, but per formam doni; And by the Statute he shall not be barred upon a feigned or false plea of his Ancestor, so long as the Right of the entail remains, and with this accords 10 H. 6. 5. and 3 Eliz. 188. Dier Sir Ralph Rowlets Case. ●erse. 6 In Trespass the Defendant makes title, for that A. W. Co. lib. 6. 24. a Reads Case. being seized in fee, leased to him, the Plaintiff makes title by descent, and traverseth the lease, and good; for it may be true, that A. W. was seized, and yet that a descent was cast to the Plaintiff, therefore the lease is most material to be traversed: Howbeit it seems, that either the one, or the other may be traversed. So in Trespass the Defendant pleads, that A. was seized, who enfeoffed B. who enfeoffed C. who enfeoffed D. whose Estate the Defendant hath; here, the Defendant may traverse which of them he please. Co. l. 8. 15. b. 4 in Edw. Althams' Case. 7 Where a man releaseth totum Jus generally, By release of actions Entry remains: all his rights are thereby released, but if the disseisée release to the disseisor omnes actiones, viz. recuperandi sive prosequendi in judicio, thereby his right of entry is not released: for, when a man hath divers means to come to his right, he may release one of them in special, and yet take benefit of the other, and with this accords Litt. fol. 115. b. & 19 Ass. Pl. 3. 19 H. 6. 4. 21 H. 6. 23. 21 H. 7. 23. Co. l. 9 23. b. 1 in the Case of Avowry. 8 Notwithstanding the Statute of 21 H. 8. 19 The Lord 〈◊〉 avow, as b●fore the Stat. the Lord may at this day avow upon a person certain, as upon the utry Tenant according to the Common Law; For the Statute taketh not away the Common Law in that Case, but giveth liberty to the Lord to pursue the one or the other. Co. l. 9 a. 4. in the Case of Avowry. 9 If the Lessée (or if Tenant peravaile in Case of Mesnalty) be present, when the Lord and his Bailiff comes to distrain, Upon distres● rescous, or trespass. if nothing be in arreare, he may well make rescous, and so release himself, as it was resolved in Bevils' Case in Co. lib. 4. fol. 8. and divers other Books (which see in the Case of Avowry, Co. lib. 9 23. a. 4.) Or otherwise, he may have an Action of Trespass against the Lord, or Bailiff. F.N.B. 9 g. 10 Vide sup. Max. 118. R. 24. Parceners. where parceners or heirs in Gavel-kind may have a writ de rationabili parte, or a Nuper obiit, being ousted by one of their Coparceners. See also, suprà, Maxim 118. Rot. 25. F.N.B. 21. c. 11 If a man be vouched, and enter into Warranty and loseth, Vouchee and Tenant by receipt may hav● a writ of Error. he may have a writ of Error, and assign the Errors, which have happened betwixt the Demandant and the Tenant, or betwixt the Demandant and the Vouchée: So likewise he in reversion, who prays to be received for default of the Tenant for life, or for his faint pleading; here, albeit he be received and plead and lose, yet may he have a writ of Error and assign the Errors, that have happened between the Demandant and Tenant, and the Demandant and him, that so prayed to be received. F.N.B. 99 b. 12 In a praecipe quod reddat against Baron and Feme, Baron and Feme may have error. at the Grand Cape the Baron appears in proper person, and the Feme by an Attorney, who hath not sufficient warrant, and thereupon judgement was given upon the default of the Feme against Baron and Feme, etc. yet if they were not duly summoned, they may bring their writ of Error to reverse that judgement. F.N.B. 135. d. 13 A man may have a Warrantia Cartae, Recovery in value. albeit he may vouch in the Action, that is brought against him; and if he recover in the Warrantia Cartae, and afterwards lose in the Action brought against him, in which he hath vouched him, against whom he hath recovered the warranty, then shall he have a writ of habere facias ad valentiam, etc. maintainable within a year after the recovery to recover in value according to his loss. Plow. 96. a. 1. 14 For Heriot-service the Lord may either distrain or seize, Heriot-service. and so he hath two several means to come by it. 121 Consensus tollit Errorem. When by consent no challenge. 1 When in a writ of right the jury, that are to try the mere right, Litt. §. 514. Co. Inst. p. 1. 294 a. 2. are once impanelled by the four Knights with the consent of both parties, none of the 12 so chosen can be challenged, because it is by consent of parties. ●●ebe may be ●●rged. 2 If the Parson of a Church charge the Glebe of his Church by his Deed, Litt. §. 528. Co. ib. 300. a. Litt. § 648, Co. 34 3. a. Co. 301. a. 4. and the Patron (having fée-simple in the Advowson) and the Ordinary confirm that grant, such grant shall stand in force according to the purport thereof; Because done by the joint consent of all the parties, that can claim any interest in the Advowson: So likewise may the Patron and Incumbent of a chantry donative charge the land, upon the same reason: because the whole interest resides in them, and the Ordinary is not to meddle therewith. Attornment. 3 To avoid many inconveniencies, Co. ib. 309. a. 3 Attornment was appointed by the Law, which is nothing else but the consent of the particular Tenant to the reversioners grant: And therefore it is said in the old Books, Si Dominus attornare possit servitiam tenentis contra voluntatem tenentis, tale sequeretur inconveniens, quod possit eum subjugare Capitali inimico suo, & per quod teneretur sacramentum fidelitatis facere ei, qui eum damnificare intenderet. For such consent of the Tenant is conclusive, and binds the Tenant to pay the purchaser the Rent, and to perform all other services due for or in respect of the land. 〈◊〉 facias, 〈◊〉 consent. 4 In a Ejectione firmae upon the issue joined the Plaintiff makes suggestion to the Court, that he, the Sheriff, Co. l. 5. 36. b 4. in Baynehams' Case. Vide Dier 367 Pl. 40. 21, & 22 Eliz. and one of the Coroners were of the liveries of the Earl of Worcester, and therefore that he had caused the Venire facias to be directed to the other Coroner, and the Defendant also confessing the suggestion the venire facias was allowed accordingly: and upon the trial the Verdict passed for the Plaintiff: Howbeit afterwards, the Court was moved to arrest judgement, because the suggestion did not contain principal challenge: sed non allocatur, because the venire facias was awarded ex assensu partium. ●y things ●nsent 〈◊〉. 5 A Common Recovery differs from the judgement and proceeding in other real actions, Co. l. 5. 40. b 2 in Dormers' Case. for this reason (amongst others) because it is had by the mutual consent of the parties, 39 E. 3. 1. The Demandant and Tenant consent, that two of the four in a writ of right shall be Esquires, albeit by the Law they ought to be all Knights, and well; because by consent, 44 E. 3. 3. Trial of Villanage altered from natural trial by consent, 7 H. 6. 7. Pleader of feoffment in fee upon Condition without Deed and reentry, is good, if the other part confess the Condition. 34 E. 3. Title Office de Court, 12. If 12 be sworn and one departs, another of the Panel (by consent) may be sworn, and with the 11 give the Verdict, 11 H. 6. 13. The Court in a Quare Impedit may (by consent) give longer day, then is limited by the Statute of Marlebridge H. 4. The Statutes of 2 E. 3. & 20 E. 3. provide, that neither for the great Seal, nor little Seal, justice shall be delayed, yet when the matter concerns the King only, if he command it, it may be stayed. F. N. Br. 21. b. 27 H. 8. A Tenure may be created at this day by consent of all, notwithstanding the Statute of quia emptores terrarum, 6 E. 6. Dier 78. By special consent of the Parties reentry may be for default of payment of Rent, without demand thereof. 〈◊〉 by con● none. 6 In a writ of Error to reverse a fine, Co. l. 5. 45. b. Gauges Case. the Error assigned was for that the writ of Covenant bare Teste the 24 of April, returnable 15 Paschal, which in truth was 15 of April, and so return before the Teste: And it was resolved that per totam Curiam, that it should be amended: because fines and common recoveries are but common assurances had by the mutual consent of the parties, and therefore such misprisions may be amended; Howbeit in other actions no amendment shall be in such Case: So in 18 El. inter Norreys and Braybrooke. A writ of Error was brought to reverse a recovery in 19 H. 8. and the Teste was a day after the return; nevertheless, because it appeared to be but a mistake of the Clerk, and was in the Case of a Common recovery (which passeth by consent) it was amended. Co. l. 6. 66. b. 4 in Sir Moyle Finches Case. 7 There is a diversity betwixt brevia adversaria, Diversity betwixt brevia adversaria, 〈◊〉 brevia ami●● bilia. vix. brought as adversary to recover the land, etc. And brevia amicabilia, viz. brought by consent and agreement amongst friends; for true it is in brevibus adversariis the process of the Common Pleas shall not pursue the custom or reputation of the Country, as in 6 E. 3. 11. the Demandant in a writ of Entry demands the Manor of C. the Tenant saith, that the tenements put in view are a Message and a Carve of land called, etc. and not a Manor, etc. whereby it appears, that if it were not a Manor in truth, albeit it was so in Common Appellation, the writ should abate; but it was adjudged in Sir Jo. Bruyns case in the beginning of Queen El. Reign, that in Common Recovery (which is had by the consent and agreement of the parties) of acres of land, they shall be accounted according to the accustomable and usual measure of the Country, and not according to the Statute de terris mensurandis made in 33 E. 1. So likewise it is agreed in 47 E. 3. 18. if a man bargain and sell so many acres of wood, that shall be measured according to the use of the County, viz. according to 20 foot to the Pole, and not according to the said Act; for in such Case consuetudo loci est observanda; also if a fine be acknowledged of a Manor, which (in deed) is a Manor in reputation only and not in truth, yet is the five good, because done by consent of parties. F. N. B. 38. t. 8 In a Quare Impedit if the Defendant plead to issue and after make default, Precepartum a writ shall be awarded for the Plaintiff to the Bishop ad admittendum Clericum; but if to the distress returned against the Defendant, he comes, and takes day per praece partium, and then makes default the Plaintiff shall not have a writ to the Bishop, but a new distringas. Dier 33. 13. etc. 28, & 29 H. 8. 9 A lease for years is made rendering Rent, Termors consent, and the lessor makes feoffment of the land, the termor being also upon the land, and without his consent; in this Case the Rent is extinct: but if the feoffment be made by the agreement of the termor, that works no extinguishment of the Rent, or surrender of the term, etc. 122 Volenti non fit injuria. Co. Inst. p. 1. 368. a. 2. Litt. §. 701. Pl. Com. 91. the Parson of Hony Lanes ca 1 If the Tenant in an Assize of an house desire the Plaintiff to dine with him in the house, which the Plaintiff doth accordingly, Dining in a house no entry. but doth not claim the house at that time; this is no entry or possession to cause the Assize to abate; because if he had been a stranger, he had been no trespasser for volenti non fit injuria. Dier 275. 46. 10 El. 2 The Marshal suffers one in execution to go at large by licence of the Chief justice, the Plaintiff also agreeing thereunto; in this case, Prisoner in ecution. after he returns, he is in execution again, so as if he afterwards escape, the Jailor is subject to an action of Debt. Dier 359. 1. 20 El. 3 The Tenant peravaile, who held of a Mesne, Tenure. as of his Manor of D. in soccage, which Manor of D. was held over of the King by Knight-service in capite, purchaseth a release of the Mesualty; in this Case, the Tenant peravaile shall now hold of the King in capite; for volenti non fit injuria. 123 Quilibet potest renunciare juri per se introducto. ●●main. 1 Land may be amortified by Licences granted by the King and all the Lords immediate, and mediate of whom the land is holden; Co. Inst. p. 1. 98. b. 4. & 99 a. 3. & 99 b. 2 For it is a Rule in Law; Alienatio licet prohibeatur, consensu tamen omnium, in quorum favorem prohibitum est, potest fieri, and quilibet potest renuntiare, etc. And the Licence of Lords immediate and mediate in this Case shall Enure to two intents, viz. to a dispensation both of the Statute of Quia emptores terrarum, and also of the Statute of Mortmain. Condition 〈◊〉 restrain ●●ful li●●. 2 If a man make a gift in tail upon Condition, Co. ib. 223. b. 3 that he shall not make a Lease for his own life, or if a man make a lease for life or years upon Condition, that they shall not grant over their Estate or let the land to others: In these Cases and the like, albeit Tenant in tail hath power by the Law to make a lease for his own life, and the Lessee for life or years to grant and let, yet by the Condition, and their own agreement they have restraindd themselves of the liberty which the Law gives them: So likewise if a man make a gift in tail upon Condition that he shall not make a lease for three lives or 21 years according to the Statute of 32 H. 8. In this Case also the Condition is good to restrain the Tenant in tail from making such leases; For, albeit the Statute doth give him power to make such leases, yet that power may be restrained by Condition and his own agreement, because this power is not incident to the Estate, but given to him collaterally by the Act, according to that Rule of Law, Quilibet potest renunciare, etc. ●eires ●●ged. 3 If there be Lord and Tenant, Litt. §. 538. Co. ib. 305. a. 4 which Tenant holds of his Lord by fealty and 20 s. Rent, here, if the Lord by his Deed confirm the Estate of his Tenant, to hold by 12 d. or by a penny, or a half penny; In this Case, the Tenant is discharged of all the other services, and shall render nothing to the Lord, but what is comprised in the same confirmation: For, the Lord by his confirmation to hold by less services hath abridged himself of the power and interest, which was before legally due to him. ●●e all 〈◊〉 all pas●●. 4 By the Common Law if Patron, Ordinary, Litt. §. 648. Co. ib. 343. Note that this law is altered by stat. 13 El. cap. 10. and Incumbent had joined in a grant of the Rectory or Vicarage, they might have charged it, or conveyed it to whom they pleased; because they all together had the whole right in them, viz. the Patron, to present, the Ordinary to admit, institute and induct and the Incumbent, to enjoy the glebe, tithes, and other profits; And all these had liberty to departed with their several rights and interests at their pleasure. ● good right ●●de preten●●▪ 5 If A. be lawful owner of land and in possession, Co. ib. 369. a. 3 and be afterwards disseised; in this Case, A. hath a good lawful right, and yet if A. being out of possession granted away the land, or contracteth for it with another, he hath now made his good right of entry pretenced within the Statute of 32 H. 8. 9 and both the grantor and grantée within the danger thereof: A forciori of a right of Action. Quod nota. ● joint grant ●f a Rent-●●nge. 6 A. enfeoffs B. upon Condition, A. and B. join in the grant of a Rent-charge out of the land to C. the Condition is broken, A. enters; Co. l. i. 146 a. 2 Anne Mayones Case. In this Case, it was objected that this grant enured, as the grant of B. and the confirmation of A. which confirmation could not alter the quality of the Estate: Howbeit, it was resolved and adjudged, that the land was chargeable with the Rent, and one of the reasons alleged for it was, that every fee may be charged one way or other, and when both join in the grant, that have the whole interest in the land, it must needs be charged with the Rent, for if it cannot be done by their joint grant, there is no other way to do it. Co. l. 3. 60. b. 1. in Lincoln College Ca 7 A. and B. f●ynt-tenants for life, An entail docked by 〈◊〉 lease. and to the heirs of the body of A. intermarry, and have issue C. who after the death of A. disseises B. and suffers a Common recovery, and B. releaseth with warranty and dies; In this Case, the Estate tail had been barred, albeit B. had not released with warranty: for it is reasonable, that the entail should be cut off this way, as well as by joining in a fine, or surrender of B. and recovery after against the heir: because they both had power to bar the Estate tail one way or other, having the whole Estate in them subject to be docked. Co. l. 10. 48 b. 4 in Lampets ca F. N. B. 152. g k. 8 Littleton saith, Joinder of d●visees in a grant, etc. of a lease. cap. Discout. fol. 144. that it is a Maxim in the Law, that land in fée-simple may be charged one way or other: So also it is a Maxim in the Law, that every right, title, or interest in praesenti or futuro by the joining of all, that may claim any such Right, Title, or Interest, may be barred or extinct; And therefore at the Common Law if the Donor and Donée had joined in the grant of a rent-charge, and after the Donée had died without issue, and the fee had reverted to the Donor, that he should have held it charged, and yet he had but a possibility at the time of the charge made; Because all those who had any Estate or interest therein in praesenti or in futuro did join in the charge: So likewise (à fortiori) if they had joined in a lease for years, and the Donée had died without issue, the lease had been good against the Donor. In like manner, Lessée for 400 year's devises for life to his executor, The principal Case there. the remainder to M. and dies, M. maries, her husband and she releases to the Executor; In this Case, albeit M. had but a possibility, yet a release by her Husband and her to the Tenant in possession vests the whole interest of the term of 400 years in the Executor; because none other had interest in praesenti or in futuro but those that joined in the release, and both consented to it, the one in releasing and the other in accepting thereof: For if they had joined in an assignment of the term, it had also been good, causa qua supra; And in Case both join in a grant; it is the grant of him, that hath the term, and the release or confirmation of the other. Co. ib. 49. a. 3. Pasc. 4 E. 6. in Co. Ba. 9 If a man make a lease to another for 21 years, Lessor and Lessee join. if the Lessée shall so long live; here, if the Lessor and Lessée join in the grant of a term, by Deed to another and after the Lessée die within the term so granted, the grantée shall enjoy the land during the residue of the term absolutely. Fuit tenus per Montague, Hales, Molineux, & Browne. Co. l. 10. 101. a. 3. in Bewfages Case. 10 In the Statute of 23 H. 6. 10. which enjoins Sheriffs to take bail of prisoners within their guard for appearance upon reasonable surety of sufficient persons, etc. Here these words, Security to the Sheriff. Reasonable surety of sufficient persons, do not so restrain the Sheriff, but that he may (if he please) take surety of one single person; for the Statute leaves it to his discretion to take such security as he thinks fit; because he is to be amercied, if the party appear not at the day in the writ, and therefore it is at his peril, if he take not good security of the party arrested, and he hath liberty to waive that power by taking less security, than the Statute mentioneth: for those words import rather an advice than a command, and Quilibet potest renunciare, etc. Dier 23. b. 148 28 H. 8. Stat. 27 H. 8. 10. 11 A man seized of land in right of his wife makes a feoffment in fee to his own use, and declares his will to be, Upon grant by the Baron o● the Femes lan● (though to her) no remitter. that the feoffées shall stand seized to the use of his wife for life; And then comes the Statute of Uses 27 H. 8. 10. which saith, that Cestuy que use shall be deemed in possession of such an Estate as he had in the use; Here, the Question was whether or no the Feme should be remitted: And (by Shelley) it seems she is remitted, because she comes in not by her own Act, but by an Act in Law, viz. by the Statute, and there is none against whom she may bring her Cui in vita; But Baldwin and Knightly è contra, because she comes in by Act of Parliament, to which every one is party, and the Statute saith, Cestuy que use shall be adjudged in such Estate as he had in the use; for if Tenant in tail make a feoffment in fee to his own use in fee or fee tail, the issue is not remitted, because he had a fée-simple in the use, and the Statute conveys unto him such an Estate as he had in the use. Ideo quaere. ●●sor. ●●see. 12 A Lease is made for years, upon Condition, Dier 334. 3●. 16 Eliz. that the Lessée shall not alien to any person without the Lessors Licence the land nor any part thereof, the Lessor gives him Licence to alien part, the Lessee aliens the residue without Licence; And it was adjudged that the Lessor might enter, notwithstanding the dispensation with the condition in part, and that the condition was entire. ●●re of an ●●raile. 13 Baron and Feme are Tenants in special tail, Dier 351. 24. 18 Eliz. the Baron alone levies a fine to his own use, and deviseth the Land to the Feme for life (the remainder over) rendering Rend, the Baron dies, the Feme, enters, and pays the Rent, and dies; In this Case, the Issue is barred for two causes, 1 By the fine, which hath barred his conveyance to the entail, 2 By the Remitter waived by the mother. 124 Omnis Ratihabitio retró-trahitur, & mandato seu licentiae aequiparatur. ●●gageor & ●rtgagee. 1 If there be Mortageor and Mortgageute; e of Land, Co. Inst. p. 1. 206. b. 4. and at the day of payment of the Money for the redemption of the Land a stranger (of his own head) in the name of the Mortgageor or his heir (but without his consent for privity) tender the money, and the mortgagée accepteth thereof; In this Case, the Mortgageor or his heir agreeing thereunto, it is a good tender and satisfaction, and the Mortgageor or his heir may re-enter into the Land mortgaged immediately after such tender and consent thereunto: for Omnis Ratihabitio, etc. howbeit the mortgager or his heir may disagree thereunto, if he will. ●●tard and ●●lier. Claim with● a five years ●ter fine. 2 In Case of Bastard eigne and Mulier puisne; Co. ib. 245. a. 3 Litt. § 401. regularly none shall enter upon the Bastard to vest the Estate in the Mulier, but the Mulier himself, or some other by his special command; no more than in Case of a fine to avoid it by claim within five years; For there also, a Stranger cannot (of his own head) in the name of him, that right hath, enter within the five years to avoid the fine: Howbeit in both these Cases, 1 If the Mulier agree thereunto before the descent of the Bastard: Or 2 If he that right hath before the five years be past, do assent thereunto, the claim is good, and shall avoid the Estate both of the Bastard and of the Conusée, as it was holden in the Lord Audley's Case, Mich. 38, & 39 Eliz. in B. R. per Curiam: Quia omnis Ratihabitio, etc. Co. l. 9 106. a. 1 in Marg. Podgers Case. and the last Case standeth well with the words of the Statute, So that they pursue their title, etc. by way of Action or entry, etc. and so also is the Book in 31 H. 8. Br. Entry Congreg. 123. ●●ry by a ●●anger. 3 If an Infant make a feoffment in Fee a stranger (of his own head) cannot enter to the use of the Infant, for the Estate is voidable; Co. ib. a. 4. as it was held P. 39 Eliz. in Co. B. per Cur. But where an Infant or a man of full age is disseised, an entry by a stranger (of his own head) is good and vesteth presently the Estate in the Infant or other disseisée: So it is also if Tenant for life make a feoffment in fee, and a stranger enter for a forfeiture in the name of the Reversioner (but without his privity) for in that Case also the Estate shall be thereby vested in the Reversioner. Co. ib. 258. a. 2 4 If an Infant or a man of full age have any right of Entry into any lands, Idem. any stranger in the name and to the use of the Infant or man of full age may enter into the lands, and (regularly) this shall vest the lands in them without any commandment precedent or agreement subsequent: But if a disseisor levy a fine with proclamation according to the Statute, a stranger without a commandment precedent or agreement subsequent within the five years cannot enter in the name of the disseisée to avoid the fine, Co. l. 9 fol. 106. a. in the Lord Awdleys' Case: And that resolution was grounded upon the construction of the Statute of 4 H. 7. 24. Howbeit a assent subsequent within the 5 years is sufficient, as is aforesaid. Co. l. 4. 30. a. 3. 5 The Lord of a Manor may by parol retain one to be Steward of his Manor, and so may he do a Bailiff by parol only; Steward. Bailiff. and such retainer shall serve, until they be discharged; for his permitting of him to be Steward or Bailiff without countermand is a ratification of his Office. Tr. 41. Eliz. inter Harris and Jay in B. R. Pl. Co 8. 6. 4. in Fogassaes' Case. 6 If another man make a disseisin to my use, Assent to disseisin or a Ravishor. and afterwards I agree to it, In this Case, I am a Disseisor ab initio, albeit the agreement thereunto was after the fact done: So if one ravish a woman, and she afterwards assents to the Ravishor, in this Case, this agreement shall have a retrospect to the first Act, and shall be then said to be executed. 125 Nemo tenetur accusare seipsum. Co. Inst. p. 1 158. b. 1. 1 In trial of Challenges, Challenge of a Juror. if the cause of the Challenge touch the dishonour or discredit of the juror, he shall not be examined upon his bath concerning the same: but in all other Cases he shall be examined upon oath, the better thereby to inform the triors. Co. l. 7. 10. a. in Ughtreds Case. 2 Regularly, none shall be compelled to allege that, Conditions precedent 〈◊〉 subsequent. which makes against him, for every one ought to allege that, which makes for him, and is for his advantage: And therefore in all Cases, when an interest or Estate commenceth upon Condition precedent, be the Condition or Act to be performed by the Plaintiff, or Defendant, or any other, and be the Condition in the affirmative or negative, there the Plaintiff ought to show that in his Count, and aver the performance thereof; For in such Case the interest or Estate commenceth in him, by the performance of the Condition, and is not in him, until the Condition be performed: but it is otherwise, when the interest or Estate passeth presently and vests in the grantée, and is to be defeated by matter ex post facto, or Condition subsequent, be the Condition or Act to be performed by the Plaintiff, Defendant, or any other, and be the Condition in the affirmative or negative; For in such Case, the Plaintiff may count generally without showing the performance thereof, and this shall be pleaded by him, that will take advantage of the Condition or matter ex post facto, and not by the Plaintiff; for no man is bound to betray his own cause. Vide plus ibid. Pl. Co. 16. b. 3. in Fogassaes Case. 3 In Fogassaes Case in the Commentaries, Agreement precedent good. there was an agreement with the Customer before the landing of the woad, and if there had been any default in the Defendant afterwards to have made the agreement void ab initio, it ought to have been alleged by the Informer and not by the Defendant, because it made against him: So Hill. 3 H. 7. 11. if a Sheriff take one by force of a capias, he doth well, but if he thereupon return a non est inventus, Sheriff's 〈◊〉 return. he shall be adjudged a trespassor ab initio: And in such Case, in false imprisonment brought against him, it is sufficient for him to allege, that he was Sheriff, and that the capias came to him, and that by force thereof he took and imprisoned the party, and then to demand, judgement si action, and ought not to say, that he returned, non est inventus, because that makes against him, that is, makes him a trespassor ab initio: but the false return ought to be alleged by the Plaintiff, who is to take advantage thereof. ●●ed and ●●in. 4 If the Ecclesiastical Court will enjoin a man to be examined upon oath for the discovery of any covin or fraud concerning himself, Hob. 84. Spendlow. a Prohibition lieth, for albeit the original cause belongs to their Conizance, yet the covin and fraud are criminal, and the avowing of the Act to be done bona fide is punishable both in the Star-chamber, and by the penal Law of fraudulent gifts, and therefore not to be extorted out of himself by his oath. 126 Nec se infortuniis & periculis exponere. 1 In making continual claim, if the adverse party lie in wait in the way with Weapons, or by words menace to beat, mayhem, or kill the party, that would enter; in such Case, the Law allows a claim, made as near the land as he dare approach for fear of death, or other bodily hurt: Howbeit (saith Bracton) Talis debet esse metus, qui cadere potest in virum constantem; & qui in se continet mortis periculum, & corporis cruciatum; Et nemo tenetur se infortuniis & periculis exponere. And therefore every doubt or fear is not sufficient; for it must concern the safety of the person of the man, and not his houses or goods, for the fear of burning his houses, or taking away or spoiling his goods, is not sufficient, because he may recover the same, or damages to the value thereof without any corporal hurt; But if the jury upon a special Verdict do find, that the disseisée did not enter for fear of corporal hurt, this is sufficient, and it shall be intended, that they had evidence to prove the same: Also it seemeth that fear of imprisonment is sufficient; because such a fear sufficeth to avoid a bond, or a Deed; for the Law hath a special regard to the salfety and liberty of a man, and imprisonment is a corporal damage, a restraint of liberty, and a kind of captivity. For the time of doing things it countenanceth more. 127 Things done in time of Peace, than in time of War. ●●●sin in 〈◊〉 of war. 1 If a man be seized of tenements in fee by occupation in time of War and thereof die seized in time of War, Litt. §. 412. Co. Inst. p. 1. 249 a. etc. and the tenements descend to his heir, such descent shall not out any man of his entry, Vide 7. E. 2. Now a time of Peace is, when the Courts of justice be open, and the judges and Ministers of the same may by Law protect men from wrong and violence, and distribute justice to all: on the other side, when by invasion, insurrections, rebellions, or the like, the peaceable course of justice is disturbed and stopped, so as the Courts of justice he (as it were) shut up (nam inter arma silent Leges) than it is said to be a time of War: And the trial thereof is by the records and judges of the Courts of justice: for by them it will appear, whether justice had her equal course of proceeding at that time, or no: And this shall not be tried by jury, but by them, as aforesaid: And therefore albeit during these late troubles the Courts of justice sat duly at Westminster, as in other times of Peace, yet quaere, whether an occupation and descent at that time within the King's Quarters would bar the disseisée, for although they sat, yet had they no power there to execute their judgement. Co. ib. 249. b. 2 & 4. 2 If a man be disseised in time of Peace; The like. and the descent is cast in time of War, this shall not take away the entry of the disseisée: So likewise in real Actions, the Explees, or taking of the profits, are laid tempore pacis; 6 E. 3. 41. Co. l. 2. 93. a. 3 in Binghams' Case. F. N. B. 31. i. for if they were taken tempore belli, they are not accounted off in Law: And as it is in Case of descent, so it is also in Case of presentation; for no usurpation in time of War putteth the right Patron out of possession, albeit the Incumbent come in by institution and induction: And time of war doth not only give privilege to them, that be actually in War, but to all others within the Kingdom; And albeit the admission and induction be in time of Peace yet if the presentment were in time of war, it putteth not the right Patron out of possession. 3 The Law countenanceth more the proceeding against a Felon in time of peace, then in time of War: And therefore if a man commit Felony in time of Peace, he shall by judgement forfeit his lands, three manner of ways, 1 quia suspensus per collum, 2 quia abjura vit regnum, 3 quia utlagatus est; but they, who are hanged by Martial Law, (in favorem belli) forfeit no lands. 128 Things done in the day more than those done in the night. Co. Inst. p. 1. 135. a. 4. Myrrh. l. 5. §. 1. 1 It is not lawful to hold pleas in the night time or before Sun-rise; And therefore the Mirroir saith, No pleas the night. Abusion est que lon tient pleas par Dimenches (v. Sundays) ou par outres jours defenders, or devant le Soleil levy, ou nectanter, etc. Co. ib. 142. a. 3 2 For damage pheasant a man may distrain in the night, No distress● the night. because otherwise, it may be the beasts will be gone, before he can take them, but for a Rent or service the Lord cannot distrain in the night, but it ought to be done in the day time, and so it is also of a Rent-charge. Vide suprà 110. R. 4. Co. l. 7. 6. b. 2. in Milbornes' Case. 3 For Robbery committed in the morning ante lucem, No pursuit the night. the Hundred shall not be charged: And albeit no time be specified in the Statute of Winchester 13 E. 1. yet it shall not extend to Robbery done in the night; because no laches or negligence can be adjudged in the Hundred for default of a good guard in the night: Neither can they in the night make pursuit or inquire after them; for as the Scripture saith, The day is made for man to labour in, and the night to rest. Note that the Statute of 27 El. 13. hath altered this Law. Co. ib. 4. 4 At the Common Law, if one be slain in a Town by day, For an es●● no amerciament. viz. so long as there is full day light, and he that hath slain him escape, the Town, where the Felony was committed, shall be amercied for the escape; And so it is held in 21 E. 3. Tit. Corone 238. Dum quis Felonicè occisus fuit per diem; nisi felo captus fuit, tota Villata illa oneretur; and with this agrees 3 E. 3. But if such a Murder or Homicide be committed in the night, the Town shall not be a amercied by the Common Law, because no laches or neglect can be attributed to them. Vide plus ibid. When things are fit to be straightened to a certain time, it esteemeth, according to the nature of the things. 129 Sometimes a whole day sufficient. ●ods last in 〈◊〉. 1 Where goods are lost in war, Fich. 38. and recovered from the enemy by another of the King's subjects, the owner shall have them again, if he make fresh suit before the Sunset, otherwise not. 130 Sometimes a whole year. ●● protection ●●re a year. 1 No protection either profecturae or moraturae shall endure longer, Co. Inst. p. 1. 130. b. 3. & 254. b. 4. than a year and a day next after the Teste or date of it; and so it is also of an Essoine de service le Roy: If a protection bear date 7 die Januarii, and have allowance pro uno anno, the re-summons, re-attachment, or re-garnishment may be sued 8 Januarii the next year: howbeit Britton (fol. 280, 282, & 283.) treating of an Estoine beyond the Grecian-sea in a Pilgrimage, etc. saith thus, Ascun gent ne quident se purchasent nous letters de protection patents durable a 1 an. ou 2, ou 3 ans, & Jalumeyus font attorneys generals ausi par nous letters patents: Et ceux font bien & sagement; car nul grand Seignior ne Chevaler de nostre Realme ne droit prender chimin sans nostre congee, car issuit poet le Realm remainder disgarnae de fort gente. ●●re and a ●y in many ●●es. 2 The Law in many Cases hath limited a year and a day to be a legal and convenient time for many purposes; Co. ib. 254. b. 3 Co. l. 5. 107. b. 4. Sir Henry Constables Case. & Co. l. 8. 100 a. F.N.B. 79. a. As at the Common Law upon a fine or final judgement, and execution in a writ of right, the party grieved had a year and a day to make his claim; So the Wife or heir hath a year and a day to bring an appeal of death: If a Villain remained a year and a day in ancient demesne, he was privileged: If a man be wounded, poisoned, or, etc. and dieth thereof within the year and the day, it is felony: By the ancient Law if the Feoffée of a disseisor had continued a year and a day, the entry of the disseisée for his negligence had been taken away: After judgement given in a real Action, the Plaintiff within the year and the day may have a Habere facias seisinam, and in an Action of Debt, etc. a Capias, fieri facias, or a levari facias. And in many other Cases: But this time of a year and a day in Case of continual claim is since altered by the Statute of 32 H. 8. 33. ●ecke. 3 By the Statute of West. 1. cap. 4. it is provided, that if a man, Co. l. 5. 107. b. 3 in Sir Henry Const. Case. Dog, or Cat escape alive out of the ship, nothing, which was therein, shall be adjudged wreck; but that the things shall be kept safe by the view of the Sheriff, Coroner, or other Bailiff of the King, etc. So as if any come in and prove, that they are his Lords, or perished in his custody, they shall be rendered unto him without delay; and this is but a declaration of the Common Law; for Bracton (who wrote before this Statute, viz. Tempore H. 3.) delivers the same in substance; and if the right owner die, his Executors or Administrators may make the like proof wihtin the same time: So it is also of Flotfan, Jetsan, and Lagan: And if any living creature come a shore, or the goods may be known by the mark or cocket, if seizeth. Co. ib. b. 4. 4 In many Cases concerning time, Estray des. the Law esteems a year and a day a convenient time, as in Case of an Estray, if the owner (proclamations being made) do not claim it within a year and a day, it is forfeit; the like time is also given in Case of descent after entry or claim: but in Case of wreck, the year and day shall be accounted from the taking or seizure of the goods as wreck; for albeit the property is in Law vested in the Owner before seizure, yet until he seize and take them into his actual possession, it is not known, who claims the wreck; nor to whom the Owner shall resort to make his claim, and to manifest his proofs: And if the Owner bring his Action for them within the year and day, it sufficeth, albeit the Verdict be not given for the recovery of them, until afterwards. F. N. B. 121. p. 5 If a man be imprisoned upon a Capias pro fine at the King's suit within a year after the judgement passed against him at the suit of the party, Copias pro 〈◊〉 and the Gaoler suffer him to escape the party shall have an Action of Debt against the Gaoler for his damages recovered by the judgement, although he was not imprisoned at his suit, but if he be taken after the year, the party is put to his scire facias, etc. Vide infrà 189. 41. 131 Sometimes the last part of the last day. Co Inst. p. 1. 202. a. 2. Co l. 5. 114 b. 2 in Wades case. Co. Inst. p. 1. 206. b. 3. 1 The time of demand of a Rent is such a convenient time before the Sun setting of the last day of payment, The time of demand and payment of Rent. as that the money may be numbered and received: Howbeit if the tender be made to him that is to receive it, upon any part of the Land, at any time of the last day of payment, and he refuseth, the Condition is saved for that time; for by the express reservation the money is to be paid on the day indefinitely, and convenient time before the last instant, is the uttermost time appointed by Law, to the intent that then both parties should meet together; the one to demand and receive, and the other to pay it, so as the one should not prevent the other. Vide Dier 130. b. 70. & 222. 22. Co. Inst. 202. & Pl. a. 3. Comm. 70. b. 1. in Kedwellies' Case, against Brand. 2 If the reservation of the Rent be (as Littl. putteth the Case §. 325.) at certain Feasts, The like. with Condition that if it happen the Rent to be behind by the space of a week after any day of payment, etc. In this Case, the Feoffor needeth not demand it on the Feast day, but the uttermost time for demand is a convenient time (as aforesaid) before the last day of the week, unless before that the Feoffée meet the Feoffor upon the land and tender the Rent, as is aforesaid. Co. ibid. 3 If Rend be granted payable at a certain day, The like. and if it be behind and demanded, that the grantée shall distrain for it: In this Case, the grantée need not demand it at the day, but if he demand it at any time after, he shall distrain for it; For the grantée hath election in this Case to demand it when he will, to enable him to distrain. The like. 4 If Rent be granted payable upon Michaelmas day or within 20 days after; it seems the grantée must demand it a convenient time before Sunsetting both upon Michaelmas day, and the last of the 20 days; for in this Case, it seems to be in the election of the grantor to tender and pay it upon Michaelmas day, or the twentieth day at his pleasure. Tamen quaere. Pl. Co. 70. b. in Kedwellies' Case against Brand. 5 If Rent be reserved to be paid upon Michaelmas day, The like. and if it happen to be behind forty days after, that then the Lessor may re-enter; In this Case, the Lessor must demand it a convenient time before Sunset upon the fortieth day, to give advantage of reentry: Howbeit if the Rent be limited to be paid at another place assigned and not upon the land (as Rent reserved out of Dale to be payable at Sale) in such Case the Lessor may take advantage of reentry without demand, and the Lessée is then bound to tender it at his peril: but when no place is limited, the land is the place, because it is principal Debtor. Vide 52. 10. ●●e like. 6 If Rent be reserved to be paid at the Feasts of Michaelmas and the Annunciation, Dier 142. 50. 3, 4 P. M. or within a month after the said Feasts by equal portions, and if it happen the Rent to be behind after any of the said Feasts and days by the space of 8 weeks, that then, etc. In this Case, it seemed to Sanders Chief justice, Whiddon, and others, that the 8 weeks should be accounted from the 28 day after the Feast, because that makes for the benefit of the Lessée and against the Lessor, who grants, and the 28 day is a day of payment at the Election of the Lessée, as well as the first Feast and day: Tamen quaere, because no Feast and day certain is mentioned before, but the Feast day; and the month is not any day, nor comprehends any day in certain, etc. Copyhold. 7 In Case of forfeiture of a Copyhold upon nonpayment either of Rent or Fine, there must be a demand thereof, Ho. 135. Denny and Leman. at the time it grew due, or some time after, of the person of the Tenant. 132 When no time is limited, the Law appointeth the most convenient, and in some Cases, the immediate time. ●●e con●●●ent, and ●●ng life. 1 If a Feoffment be made upon Condition, Litt. §. 337. Co. Inst. p. 1 208. a. 3. etc. that if the Feoffor pay a certain sum of money to the Feoffée, that then it shall be lawful for the Feoffor and his heirs to enter; in this Case, if the Feoffor die before the payment made, tender by the heir is void; because it was limited to be paid by the Feoffor himself, viz. during his life, for seeing no time is limited, the Law doth appoint the time, and that is, during the life of the Feoffor; wherein divers diversities are worthy the observation; As first, between the said Case of the Condition of a feoffment in Fee, for the payment of money, where no time is limited: And the Condition of a bond for the payment of a sum of money where no time is limited; For in such a Condition of a bond the money is to be paid presently, viz. in convenient time: And yet in Case of a Condition of a bond there is a diversity between a Condition of an obligation, Co. l. 6. 30. b. 4. in Bothies' Ca Co. l. 2. 79, 80, 81. in the Lo. Cromwel's ca which concerns the doing of a transitory Act without limitation of any time, as payment of money, delivery Charters, or the like; for there the Condition is to be performed presently, that is, in convenient time, and whereby the Condition of the Obligation the Act that is to be done to the Obligée is of his own nature local; For there the Obligor (no time being limited) hath time during his life to perform it as to make a feoffment, etc. in Case where the Obligée doth not hasten the same by request. Again, where the Condition of the Obligation is local, there is also a diversity, when the concurrence of the Obligor and Obligée is requisite, (as in the Case of a feoffment, etc.) and when the Obligor may perform it in the absence of the Obligée, as to acknowledge satisfaction in the Court of the upper-bench; for here albeit the knowledge of satisfaction is local, yet because he may do it in the absence of the Obligée, he must do it in convenient time and hath no time during his life. Co. ib. 208. b. 3 Co. l. 6 30. b. 4 in Bothies' ca The Lo. Cromwel's Case. Co. ib. 218. b 4 2 There is a diversity between a Condition of an Obligation, The like. and a Condition upon a feoffment, where the Act, that is Local, is to be done to a stranger, and where to the Obligée or Feoffor himself; as if one make a feoffment in Fee upon Condition, that the Feoffée shall enfeoff a stranger, and no time limited; In this Case, the Feoffée shall not have time during his life to make the feoffment; for than he should take the profits in the mean time to his own use, which the stranger ought to have; and therefore in such Case, he ought to make the feoffment as soon as conveniently he may: And so it is also of the Condition of an Obligation: But if the Condition be, that the Feoffée shall reinfeoff the Feoffor, there the Feoffée hath time during his life for the privity of the Condition between them, unless he be hastened by request; and so it is likewise of an Obligation. Co. ib. 208. b. 4 also in Bothies' Ca in the Lo. Cromwel's Ca 3 There is also a diversity, The like. when the Obligor or Feoffor is to enfeoff a Stranger, and when a Stranger is to enfeoff the Feoffée or Obligée: As if A. enfeoff B. of Black-acre, with Condition, that if C. enfeoff B. of White-acre, A. shall re-enter; in this Case C. hath time during his life to enfeoff B. if B. doth not hasten it by request; and so it is also of an Obligation. Co. ib. 208. b 4 also in Bothies' Case. 4 In some Cases, albeit the Condition be collateral, The like. and is to be performed to the Obligée, and no time limited for the doing thereof, yet in respect of the nature of the thing, the Obligée shall not have time during his life to perform it: As if the Condition of an Obligation be, to grant an Annuity or yearly Rent, to the Obligor during his life, payable yearly at the Feast of Easter, this Annuity or yearly Rent must be granted before Easter, or else the obligée shall not have it yearly at that Feast during his life, & sic de similibus, and so it was resolved by the judges of the Common Pleas in Andrew's his Case, which see in Dier 14 Eliz. 311. Co. ibidem. Co. l. 6. in Bothies' Case, sol. 30. b. 4. 5 When the Obligor, Feoffor, or Feoffée is to do a sole Act or labour, The like. as to go to Rome. Jerusalem, etc. In such and the like Cases, the Obligor, Feoffor, or Feoffée hath time during his life to perform it, and cannot be hastened by request: And so it is also if a stranger to the obligation or feoffment were to do such an Act, he also hath time to do it at any time during his life. Co. ib. 218. b. 4 Litt. §. 352. 6 If a feoffment be made upon Condition, The like. that the Feoffée shall convey the land to the Feoffor and his Wife, to have and hold to them and the heirs of their two bodies, and for want of such issue to the right heirs of the Feoffor: here, no time being limited, the Feoffée by the Law hath time during his life, unless he be hastened by the Request of the Feoffor or the heirs of his body; And if the Feoffor die before such re-conveyance, the Feoffée (as Littleton saith) ought to make a conveyance thereof as near to the intent of the Condition, as may be, viz. to the Feme for life without impeachment of Waste, the Remainder to the heirs of his body on the Feme engendered, and for default of such issue to the right heirs of the Feoffor: And yet in this Case also (albeit the Feme be a stranger) the Feoffée hath time during his life to make the re-conveyance, Co. ib. 219. a. 4 & l. 2. 79. etc. in the Lord Cromwel's Ca. and is not bound to make it in convenient time, as in some other Cases he shall, when a stranger is to take the Estate: because the Feoffor, who was privy to the Condition was to take jointly with the Feme: So it is likewise, where the Condition is to enfeoff the Feoffor and a stranger, for then also the Feoffée hath time during his life, unless he be hastened by request: Otherwise it is (as hath been said) where the Condition is to enfeoff a stranger or strangers only. 〈◊〉 like. 7 If a Feoffment in Fee be upon Condition, Co. ib. 219. b 2 & l. 2. ubi sup. that the Feoffée shall make a gift in tail to the Feoffor: the Remainder to a stranger in Fee; there the Feoffée hath time during his life, as is aforesaid; because the Feoffor who is party and privy to the Condition, is to take the first Estate: But if the Condition were to make a gift in tail to a stranger. the Remainder to the Feoffor in Fee; In this Case, the Feoffée aught to do it in convenient time; For that the stranger is not privy to the Condition, and he ought to have the profits presently, ●light. 8 The Statute of Winchester 13 E. 1. ordains, Co. l. 7. 6. a. 4. in Ashpoles Case. that upon a Robbery committed in the day time, the Hundred shall satisfy the damage to the party Robbed, and the time here intended is not betwixt Sun and Sun, but betwixt twilight and twilight. ●● present ● 9 In the Statute of Westm. 2. cap. 12. De servientibus, Balivis, Co. l. 8. 119. b. 4. in Doctor bonham's Ca etc. qui ad computum reddendum tenentur, etc. cum Dominus hujusmodi servientium dederit eis auditores compoti, & contingat ipsos esse in arreragiis super compotum suum, etc. arrestentur corpora eorum, & per testimonium auditorum ejusdem compoti mittantur & liberentur proximae Gaolae Domini Regis in partibus illis, etc. In this Case, albeit no time be limited, when the accountant shall be imprisoned, yet it ought to be done presently, as it is held in 27 H. 6. 8. And the reason thereof is rendered in Fogassaes' Case in Pl. Com. 17. viz. that the generalty of the time shall be restrained to the present for the benefit of him, upom whom the pain shall be inflicted, and with this also agrees Pl. Com. in straddlings Case 206. b. ●● demand 10 A man granted a Rent out of certain land pro consilio impenso & impendendo, Co. Inst. p. 1. 144. a. 1. to have and hold to him and to his Assigns for term of his life payable at four Feasts in the year, and for default of payment upon demand, it should be lawful for him to distrain; the grantée granted the Rent over: The Assignee after one of the days demanded the Rent, and distrained, and the distress was adjudged lawful; Co. ib. 153. a. 4 For (in this Case) he needed not to make a demand at any of the days, as in the Case of reentry, but he might demand it when he pleased; because it was only to entitle him to his remedy for his mere duty: For it is not necessary, that the grantée of a Rent-charge, or seek should demand it at the very time, when it becometh due, but at any time after it is sufficient: because this is not like a demand of a Rent upon a Condition, in as much as that is penal and overthroweth the whole Estate, and therefore (in such Case) the time of demand must be certain, to the end the Lessée, Donée, or Feoffée, may be there to pay the Rent; But the demand of a Rent-secke or Rent-charge is only a formal mean to recover that, which is due, and therefore (in that Case) it may be demanded after it is behind at any time, whether the Tenant be present or no, because remedies for right are ever favourably extended. Vide Ho. 207, 208. 〈◊〉 of pay●●. 11 As to the payment of Rent issuing out of land, Co. l. 10. 127. b. 3. in Cluns' Case. there are 4 times of payment, The 1 voluntary and not satisfactory, and yet good to some special purpose; The 2 voluntary, and in Case satisfactory and in Case not; The 3 legal and satisfactory absolutely, and not coercive, And the 4 legal, satisfactory, and coercive: As to the 1 Lessée, etc. pay his Rent before the day, this is voluntary, and not satisfactory, but if it be paid in name of seisin or Rent, although it shall not enure by way of satisfaction, yet it shall give sufficient seisin to an Assize or other remedy for the Rent. For the 2 if the Rent be payable at Easter, in that Case, if the Tenant pay the rent in the morning, and the lessor die two hours before noon of the same day, this payment was voluntary, and yet is good satisfaction against the heir, but not against the King, 44 E. 3. 3. As to the third the legal time is a convenient time before the last instant of the day, and is the most extreme time, and is satisfactory and not coercive, for until the end of the day no remedy by Law is given, 21 H. 6. 40. As to the fourth, that is when the Rent being due and arreare is recovered by order of Law, and this is satisfactory, but coercive withal, concerning all which several times the Poet saith, Judicis officium est, ut res, ita tempora rerum Quaerere, quaesito tempore, tutus eris. 12 Vide 183. 1. Dier 354. 32. 19 El. 13 A. levies a Fine to B. to the uses in a certain indenture mentioned, wherein there is a proviso, Notice of p●ment. that if A. pay or tender 20 l. during his life to B. at the Font-stone of the Church of Sarum, that it shall be to the use of A. in Fee; In this Case, because no day is limited, the tender will not be to purpose, unless A. give notice to B. when he will pay it, to the end B. or his Assignée may be there to receive it. 133 The third offence is esteemed most heinous. 2 E. 4. 1. 1 The third writ not returned by the Sheriff is a contempt, Sheriff's return. where an attachment lieth. Finch. fol. 10. b. 134 The place also aught to be convenient. Litt. §. 180. Co. Inst. p. 1. 120. a. 1. 1 If a Villain purchase an Advowson full of an Incumbent, At the Chu● the Lord may immediately come to the Church and claim the Advowson; and by this claim, it vests presently in him; because if he should stay till an avoidance, the Villain might alien the Advowson, and so out the Lord of his presentment: And in this Case, albeit the Advowson is a thing incorporeal and not visible, yet because the principal duty of the presentée of the Patron is to be done in the Church, the claim of the Villains Lord must be made there, and by that claim the Inheritance of the Advowson shall be vested in the Lord; For every claim or demand to divest any Estate or Interest must be made in the place, which is most apt for that purpose. Co. ib. 153. a. 4 & b. 3. & 201. b. 4. Litt. §. 341. 2 When Rent is issuing out of Land, and no place limited, Upon the land. at which it shall be paid, the land is the debtor, and the Rent must be demanded upon the land: howbeit, if there be house and land, a demand upon the land is sufficient, unless it be for a Condition broken, for than it ought to be at the house. Co. ib. 201. b. 1 3 If the King maketh a lease for years rendering a Rent payable at his receipt at Westminster: The like. and after the King granteth the reversion to another and his heirs: In this Case, the grantée shall demand the Rent upon the land, and not at the King's receipt at Westminster. For as the Law without express words doth appoint the Lessée in the King's Case to pay it at the King's receipt, so in Case of a subject, the Law appoints the demand to be on the land. Co ibidem. 15 El. Dier 329 4 If there be a house upon the land, Fore-door. the Rent must be demanded at the house, and that, not at the backdoor, but at the foredoor thereof, because the demand must be ever made at the most notorious place, and it is not material, whether any person be there or no: and albeit the Feoffée or Lessée be in the hall or other part of the house, yet the Feoffor or Lessor need come no farther, then to the foredoor: for that is the place appointed by Law, although it be open. ● Wood 5 If a Feoffment be made of a Wood only, Co. ib. 202. a. 1. and Dyer ibid. the demand must be made at the gate of the Wood, or at some high way leading through the Wood, or other most notorious place; And if one place be as notorious as another, the Feoffor hath election to demand it, at which he will; And albeit the Feoffée be in some other part of the Wood ready to pay the rent, yet that shall not avail him; Et sic de similibus. ●void de●and. 6 If the Feoffor demand the rent on the ground at a place which is not most notorious, as at the back Door of a House, etc. Co. Inst. p. 1. 202. a. 1. And in pleading the Feoffor allege a demand of the rent generally at the House, the Feoffée may traverse the demand, and upon the Evidence it shall be found for him,; for that such a demand is void, and (indeed) no demand at all. 〈◊〉 another ●lace. 7 If rend be reserved to be paid at any place from the land, Co. Ibid. yet it being in Law a rent, the Feoffor or Lessor must demand it at the place appointed and agreed upon by the parties, observing the former Rule, concerning the most notorious place. ●t any place. 8 When the Feoffée or Lessée are absent, Co. ibid. a. 28 than the most notorious place is to be observed, as hath been said before: But if the Feoffée cometh to the Feoffor at any place upon any part of the ground at the day of payment, and offer his rent; Albeit they be not at the most notorious place, nor at the last instant of the day, yet the Feoffor is bound to receive it; or else he shall not take any advantage of any Demand of the Rent for that Day. ●aim of a Remainder. 9 Claim of a Remainder by force of a Condition ought to be upon the Land, Co. l. 2. 54. a. 2 and a Claim thereof made out of the Land is not sufficient: So if a Villain purchase a Reversion, the Claim of the Lord ought to be upon the Land. See Littl. fol. 40. and the Book in 15 Ass. Pl. 12. is good Law, that a Distress upon the Land after the Condition broken, amounts to a Claim of the Seignory, unto which it was annexed. ●xre actions ● to be ●aght. 10 A. recovers 20 l. against B. Co. l. 7. 1. Bulwers' Case. Vide Ho. 195. Hall & Winkfield. in the Common Pleas by Action laid in Norfolk, and dies; C. in the Name of A. (upon the judgement before Execution) outlaws B. in London, and afterwards takes him upon a Capias Utlagatum in Norfolk, and imprisons him there two Months: Hereupon B. brings his Action of the Case against C. in Norfolk, and counts, that to outlaw him Maliciosè & de captiuè machinatus est: And the doubt in this Case was, whether or no, the Action of the Case were rightly laid in Norfolk, or should have rather been laid in London, where the Out-lawry was had, which caused the imprisonment, and a forfeiture of all the Goods of B. But it was resolved, that it was well laid in Norfolk; because the first Action was brought there, and there also was the visible tort, viz. the Imprisonment: For, it is a Maxim in Law, Quod ibi semper debet fieri triatrem, ubi Juratores meliorem possunt habere facti notitiam. When matter in one County dependeth upon matter in another County, the Plaintiff hath Election to bring his Action, in which of the two he pleaseth, (except the Plaintiff upon the general issue pleaded, may be prejudiced in his trial) as if two conspire in one County to indict another in another County; and do it, an Action may be brought in either; Howbeit, if any other but the Conspirators indict him, it shall be brought, where the Conspiracy was. If Manasse be mad in Essex, whereby my Tenants reside in London. I shall have my Action in Essex, and not in London, for I have nothing in London. If an action be founded upon two things material and traversable in two several Counties, an Action may be brought in either of them. An Annuity granted in one County to be paid in another, the action shall be brought, where the Grant was. He that is rob may have an Appeal of Felony for it in every County, where the Goods; but an Appeal of Robbery will lie only, where the fact was done, a Lease for years made in one County, of Land in another, Debt shall be brought, where the Lease was made, and waste also where the Land lieth. Every Action which concerns the life of a man, shall be brought, where the offence was committed. Every issue which ariseth upon an action, in which Land shall be recovered, shall be brought where the Land lieth, as in right of Ward of Land or Body, intrusion of Ward, forfeiture of Marriage, valour maritagii, and Quare Impedit: But Ravishment of Ward, where the Ravishment was, and a Quare non admisit, where the refusal was. Before the Statute of 7 R. 2. cap. 10. An Action for Land in divers Counties, or for Common in one County appendent to Land in another, was brought by several Writs n both Counties; but since that Statute by on Writ in Confinio Comitatum; A per que servitia shall be brought, where the note of the fine was levied. Dier 46. 8. 31 H. 8. 11 At the Common Law if a man had been wounded in one County, and had died in another, The Venire where. the Venire to try the Issue should have been out of both Counties, (except in London and Middlesex, because such a jury there could not join,) and in such case the Issue was only tryable in the K. B. but this Law is altered by 2 & 3 E. 6. 24. Dyer 38, 50. 29 H. 8. 12 An appeal was brought against two accessaries for abetting in London to a Robbery committed in the County of Wilts, Appeal, whe● brought. and the appeal was brought in the County of Wilts, but by the better opinion it seems it ought to have been brought in London, where the Abetment was, because the jury there might have best notice thereof: but this is now also settled by 2 & 3 E. 6. 24. Dyer 51. b. 18. 33 H. 8. 13 If a man makes a Lease for years, rendering rend, Demand of rent. and if the rent be behind by the space of a Month after the day of payment, that then the term shall cease; In this case if the rent is reserved to be paid at some place out of the Land, upon failer of payment or due tender of the rent at that place, the Lessor may enter without making any Demand upon the Land; but if the rent were payable upon the Land, or no place named, where it should be paid, upon such failer, the Lessor cannot enter without demanding the rent upon the Land, because the rent is payable there of right. Co. l. 5. 83. b. in the Case of Market overt. 14 If Plate be stolen and sold openly in a Scrivener's Shop upon the Market day, (for every day in London is Market day, Market over● except Sunday,) such Sale shall not alter the property, but the party shall have restitution; for a Scrivener's Shop is not a Market overt for Plate, because none will look there for any such thing, Et sic de similibus, etc. but if the Sale had been openly in a Goldsmith's Shop in London, so as every one that should stand or pass by the Shop, might have seen it, such sale shall alter the property; Howbeit, if such Sale be in a Goldsmith's Shop, behind a curtain, hanging, cupboard, in a Warehouse, or some other part of the House; So as passengers cannot observe it, such Sale shall not alter the property; for such places are no Market overt; And observe, that the reason of this case extends to all the Markets overts in England. Vide Max. 186, 32. & 191, 3. Dyer 270. 25. 10 Eliz. 15 In Debt upon an Obligation to perform Covenants brought in London, the Issue was, Place of tria● whether or no the Defendant was verus possessor of certain Lands in the County of Bedford, at the time of the Indenture; and it was the opinion of the Court that the most apt place for that trial was in Com. Bedford, and not in London. Vide Dyer 305, 58. Trial in Ire●●nd. 16 If a Peer of Ireland commit Treason in Ireland, Dyer 360. b. 20 Eliz. he cannot be tried in England, by the Statutes of 26 H. 8. 13. 35 H. 8. 2. 5, 6 E. 6. 11. for he is not a Subject of England, but of Ireland, and the trial in Ireland, is by Parliament, and not per Pares. ●ender of ●ent. 17 If a Rent be reserved upon a Lease, Hob. 8. Baker's Case. and the Lessee bound by Obligation to pay it; In this Case, the Lessée is bound to pay it without demand; Howbeit, he is not bound to seek the Lessor, but to tender it only upon the Land; for he hath bound himself to pay it, but still as a Rent, and at the place which the Law assigns. ●●bt for Ar●arages. 18 In Debt brought by an Executor for Arrearages of a Rent-charge, due in the life of the Testator, Hob. 37. Pines Case. the action ought to be brought in the County where the Land lieth, out of which it issueth. 19 Vide Hob. 78. Don Diego, etc. concerning Causes triable in the Admiralty, etc. 79. Palmer against Pope. Maxims of Reason taken out of Morality. 135 The Law favoureth Charity. ●●nder by any 〈◊〉 an Idiot. 1 Upon a Mortgage, if the Mortgageor die, Co. Inst. p. 1. 206. b. 4. his heirs within age of 14 years, (where the Land is holden in Soccage,) the Guardian in Soccage: or within age of 21 years, (the Land being holden by Knight-service,) the Lord ought to tender the Money for the redemption of the Land: but if the heir be an Idiot, of what age soever, any man may make the tender for him, in respect of his absolute Disability; for the Law in this, and like Cases, is grounded upon Charity. capitals. 2 Albeit upon the foundation of any lay Hospital, or after, Co. ib. 342. a. 2 it was ordained, that one or more Priests should be there maintained to celebrate Service to the Poor, and to pray for the Soul of the Founder, and all Christian Souls, or the like, and that the Poor there should make like Orisons; yet such Hospital is not within any of the Statutes of 27, 31, 32, & 37 H. 8. or of 1 E. 6. for the makers of those Statutes never intended to overthrow works of Charity, but to take away the abuse, and such Hospitals being Lay, and not Religious, and for the most part founded or ordained in that manner. ●ensuit in ●aint per●ptory. 3 In an Attaint, if the Plaintfff after appearance be nonsuit, Co. ib. 139. a. 3. it is peremptory, and the reason is for the faith and credit; that the Law (in Charity) gives to the verdict, and for the terrible and fearful judgement, that should be given against the first jury, if they should be convicted; And therefore upon such nonsuit the Plaintiff shall be imprisoned, and his sureties amercied. C●ritable 〈◊〉. 4 Good and Charitable Uses are not taken away by the Statute of 23 H. 8. 10. albeit the words of the Statute are general, viz. Co. l. 1. 24 a. 2. in Porters ca all like uses: but the intention of the Makers of that Statute was only to take away Superstitious Uses, and not Good and Charitable Uses. 〈◊〉 Services 5 Regularly where entire Services are reserved, Co. l. 6. 1. b 4. in bruerton's Case. if the Lord purchase part of the Land, the whole Service is extinct; Howbeit, when such entire Service; are reserved for works o● Devotion, Piety, or Charity, as to marry a poor Virgin yearly, (which Tenure you shall find in 24 H. 8. Br. Tenors 53.) or to find a Preacher, or Ornaments for such a Church (as you have it in 35 H. 6. 6.) in such cases, albeit the Lord purchase part, yet the entire service shall remain. Co. l. 10. 28. a. 4. in the Case of Suttons Hospital. 6 The King's Licence by Charter to found an Hospital, chantry, Future Corp● etc. are sufficient to make them Corporations capable of endowments, though they be not yet built, or prepared for such purposes or employments: because the King's Charters for Erection of Pious and Charitable Works are to be taken in the most benign and beneficial sense. Co. l. 10. 92. b. 4. in Leyfields Case. 7 Regularly, A Deed not showed, good a copy or proof of a Deed shall not be given in evidence to a jury, but the Deed itself ought to be produced; yet if a man hath by casualty had all his Writings burned, so as he cannot possibly produce it, if that be proved to the judges, they may in favour of him, that hath sustained so great Loss, suffer him upon the general issue to prove the Deed by witnesses in evidence to the jury; lest they should add affliction to affliction: And if the jury find it, albeit it were not showed in evidence, yet is it good enough, as appears 28. Ass. p. 3. And this in charity to him, that hath suffered such loss. Vide 28 H. 8. Dyer 29. b. Pl. 199. Ho. 136. Floods Case. 8 A Devise of Lands to a College is good, Devise. notwithstanding the Statutes of Mortmain, because within the Statute of 43 Eliz. of Charitable Uses, under these words limited and appointed: See there also the next Case, a Devise for the repair of an High way; where albeit the Devise be void, yet the Statute of 43, by reason of the said words (limited and appointed) doth reach it. Collisons Case. 136 De mortuis nil nisi bonum. Littl. §. 399. Co. Inst. p. 1. 244. a 3. Co. l. 8. 101: a. 3. in Sir Rich. Lechfords case. 1 If there Bastard eigne and Mulier puisne, Bastard eigne and Mulier puisne. and the Bastard have issue, and die seized of the Land without claim of the Mulier, in this case the Mulier is barred for ever, albeit the Mulier were under age at the time of the descent cast, whereas the descent (in their cases) only puts him that right hath to his action, and doth not bar him for ever: And one of the reasons hereof seems to be, because after the Bastard's death, he shall not be branded by the name of Bastard, to the prejudice of him and his issue after him: For, Justum non est aliquem post mortem facere bastardum, qui toto tempore vitae suae pro legitimo habebatur: And therefore if there be Bastard eigne, and a Daughter Mulier puisne, and she be covert at the time of the Descent, yet is she barred; Also if the Bastard die not, but enter into Religion, by which a Descent is cast, that shall also bar the Mulier for ever: Likewise descent of Services, Rents, Reversions upon an Estate tail, or for life, etc. which bar not the entry of those, that right have, shall bar the Mulier for ever: So if the Bastard die, and his issue endow the Bastard's wife, the Mulier cannot enter upon the widow, but is barred causa qua suprà. Co. l. 7. 43. in Kennes Case. 2 A Sentence of Divorce may be repealed after the death of the parties, Divorce. but after their death there can be no Sentence of Divorce given to declare the marriage void; for that were to traduce the Dead, and to bastardise the issue to the shame of the deceased. Co l. 8. 101. b. 4. in Sir Rich. Lechfords case. 3 If a Bastard eigne enter, and die seized, Bastardy. his wife being with child of a Son, and after the Son is borne, he shall inherit the Land; for in as much as the Father died in possession, without interruption, the Mulier shall not allege against the issue Bastardy in his Father after his death. 137 And therefore, it hateth malice and oppression. ●●rious ap●●l. 1 The Common Law abhor malice in seeking the blood of another without cause: And therefore if A. hath the Goods of B. Co. l. 5. 110. a. in Foxleys ca by bailement or trover, and B. brings an appeal of Robbery against A. for taking them feloniously, and it is found, that they were the Goods of the Plaintiff and that the Defendant came by them lawfully; In this Case, the Plaintiff shall forfeit those goods to the King for his false and malicious appeal, as it is adjudged in 3 E. 3. Title Corone, 367. ●prisonment. 2 It seems reasonable, that one, Fitz. 116. 0. who is in Prison upon a recognizance, shall have a writ of conspiracy upon the Statute called Articuli super cartas, 28 E. 1. 10. against the Recognisée, if he find him not Bread and water in Prison. 3 Albeit a man in Prison by process of Law ought to be kept in salva & arcta custodia, and by the Law ought not to go out; Co. Inst. p. 1. 260. a. 3. though it be with a Keeper, and with the leave or sufferance of the Gaoler; But yet imprisonment must be, custodia and not poena: for, Carcer ad homines custodiendos, non ad puniendos dari debet. ●●●se of 〈◊〉. 4 To prevent and avoid oppression, injure, and injustice, Co. ib. 266. a. 1 the Law prohibits, that a Right, or Chose in Action should be granted or transferred to a stranger: And therefore saith the Mirror (cap. 2. §. 17.) Nul charter, nul vend, ne nul done vault pro penaltment, si le Donor nest seisie all temps de contracts de deux droits, viz. Del droit de possession, Et del droit de property: Howbeit such a right or thing in Action may be released, because that quiets and confirms the present possession and property, and causeth no disturbance, or injustice, but rather prevents them. 138 It favoureth Virtue. 139 Hates Vice. ●●●ition ●●nful void. 1 A Remainder may enure upon Condition to marry my Daughter, or any other lawful Condition precedent; Pl. Co. 34. b. 4. But if the Condition be to kill a man, or to do any other unlawful Act, the Remainder shall not be good, for the Condition being unlawful, it shall not be of force to gain any thing in our Law. ●●rd. 2 A man makes a Lease for life to B, Co. Inst. p. 1. 3. 1. Remainder to the eldest Issue male of B. and to the heirs males of his body, B. hath Issue a Bastard-sonne, he shall not take the Remainder; for, qui ex damnato coitu nascuntur inter liberos non reputentur: So it is also if a man make a Lease for life to B. the Remainder to the eldest Issue male of B. to be begotten of the body of Jane S. whether the same Issue be legitimate or illegitimate, B. hath Issue a Bastard on the body of Jane S. this Son or Issue shall not take the Remainder, causa qua suprà; And it seemeth also, if after the birth of the Issue B. had married Jane. S. so as thereby the Issue becomes Bastard eigne, and had a possibility to inherit, yet shall he not take the Remainder by the word Issue. ●pement. 3 If the Wife Elope from her Husband, that is, Co. ib. 32. a. 4. if the Wife leave her Husband, and goeth away and tarrieth with an Adulterer, she shall lose her dower, until her husband willingly without coercion Ecclesiastical be reconciled to her, and permit her to cohabit with him, all which is comprehended shortly in these two verses: Sponte virum mulior fugiens; & adultera facta, Dote sua careat, nisi sponsi sponte retracta. And if she goeth willingly with or to the Avowterer, this a departure and a tarrying, albeit she remaineth not continually with the Avowterer, or tarrieth with him against her will, or he turn her away; also if she cohabit with her Husband by the Censures of the Church: In all these Cases she loseth her Dower; See more of this matter in the exposition upon the Statute of West. 2. 34. 13. E. 1. Vide Co. Inst. part. 2. Co. ib. 123. a. 4. 4 Some hold, that the Bastard of a Niefe shall be a Villain, Bastard. and others hold, that if a Villain hath a Bastard by a Woman, and after marrieth the Woman, that this Bastard is a Villain, but the Law is contrary in both Cases; For, Vice is so odious in Law, that albeit a Bastard be a reputed Son, yet is he not such a Son, in consideration whereof an use may be raised, because in judgement of Law he is nullius filius: And for the same reason, where the Statute of 32 H. 8. of Wills speaketh of Children, Bastard-childrens are not within that Statute, neither is the Bastard of a Woman a Child within that Statute, where the mother conveys lands unto him. It was found by Verdict, that Henry the Son of Beatrix, which was the Wife of Robert Radwel deceased was borne per undecim dies post ultimum tempus legitimum mulieribus constitutum, and thereupon it was and judged, quod dictus Henricus dici non debet filius praedicti Roberti secundum Legem & Consuetudinem Angliae constitutam, that being nine months, according to that of Esdras, Vide & interroga pregnantem, si quando impleverit novem menses suos, adhuc poterit matrix ejus retinere partum in semetipsa? & dixi non potest, Domine; Howbeit the Prince of Conde (father of the Prince now living, and in Rebellion against the King of France this present year 1652) was borne 14 months after the death of his father, and it was adjudged possible by the unanimous opinion of the Physicians of Montpeller, by reason of the excessive grief, which the Lady was conceived to take at the death of her husband. Co. ib. 123. b. Litt. §. 189, 290. 5 Regularly a Villain cannot sue an Action against his Lord, Appeal of the Lord for death or Rap● by the Ville●● yet sin and vice are so odious in the eye of the Law, that he may have against his Lord an Action of appeal of the death of his father or other Ancestor, whose heir he is: And if in such an appeal of death it be found for the Plaintiff, the Villain is enfranchised for ever: Hinc enim est, Fleta l. 1. ●. 5. quod eo ipso sunt hujusmodi Domini servos suos amissuri, cum de injuriis fuerint convicti. And there is no diversity herein, whether he be a Villain regardant or in gross, although some have held otherwise. Likewise, if a Nife be ravished by her Lord, she may have an appeal of Rape against him: For by the general purview of the Statutes of Westm. 1. 13. West. 2. 35. 6 R. 2. 6. 11 H. 4. 13, & 1 E. 4. 1. that give the appeal of Rape, the Niefe shall have an appeal of Rape against her Lord: And it seemeth by the ancient Authors of the Law, that this so heinous an offence was severely punished by loss of eyes and privy members: However of old time it was felony, which you may see at large in the second part of the Institutes upon West. 1. 13. see also more of Rape in the third part of the Institutes, cap. Rape. Co. ib. 2●6. b 2 6 Obligations or other transactions, Unlawful ac● with enjoin men to do any Act, which is malum in se, are invalid and not in Law: As if a man be bound, upon Condition, that he shall kill J. S. the bond is void: So if a man make a feoffment, upon Condition, that the Feoffée shall kill I. S. the Estate is absolute and the Condition void: so as he, who intends any unlawful Act, is still by the Law crossed in the design, or purpose, he aims at. Dier 28. a 16. 31 H. 8. 7 Vice is so odious in the eye of the Law, Blood corrupt. that it will not suffer any to inherit, who derives his title through blood tainted with any Capital offence: As if a man hath issue two Sons, and the eldest in the life of the Father is attainted for felony, and dies living the Father, and after the Father dies seized of the land in Fee, this land shall descend to the younger Son, as heir to his Father, if the eldest Son hath no issue living, but if he hath issue in life, who by the Law should inherit the Land, if it were not for the Attainder, and albeit he hath committed no offence, yet the land shall not descend to him nor yet to the younger Brother, but shall escheat to the Lord of the Fee. 140 Interest Reipublicae, ne maleficia remaneant impunita. defeit in●● no good 〈◊〉. 1 Where an Indictment is found insufficient, Co. l. 4. 45. a. 1 in Vaux his Case. the offender may be indicted again; for in such Case Autre fois acquit, or convict is no good plea; because that plea is allowed upon that Maxim of the Common Law, viz. that the life of a man shall not be put in jeopardy twice for one and the same offence; Howbeit this is intended upon a lawful acquital or Condition, for otherwise his life was never put in jeopardy: but when the Indictment or other proceeding against him are insufficient, he may be re-indicted: For the Law doth abhor, that great offences should pass un-punished, according to these ancient Maxims of the Law and State, Maleficia non debent remanere impunita, & impunitus continuum affectum tribuit delinquendo, & minatur innocentes, qui parcit nocentibus. Howbeit if upon an insufficient Indictment of felony a man hath had judgement, quod suspendatur & collum, and so is attainted, which is the judgement and end, that the Law hath appointed for felony, in this Case, he shall not be again indicted and arraigned, until that judgement be reversed by Error. 〈◊〉 it goods 〈◊〉. 2 The Reason why bona waviata, (viz. Co l. 5. 109. a. 4 in Fauxleys' Case. such shelme goods as a fellow in flying waives, or leaves behind him) are forfeit to the King, and that the owner shall in such Case lose his property in them, is, because of the negligence and default in the owner; for that he made not fresh suit to apprehend the fellow; for, Interest Reipublicae, ne maleficia remaneant impunita, & impunitas semper ad deteriora invitat: And therefore the Law hath imposed this penalty upon the owner, that if the fellow by his industry, and fresh suit be not taken, by such default he shall lose all his goods which the fellow so leaves behind him. ●●●es taken intend●●. 3 In many Cases Penal Statutes shall be taken by intendment, Co. l. 11. 44. b. in Alexander Pollers Case. and not according to the express words thereof, especially, when it is to remedy a mischief, in advancement of justice, and for the suppressim of Crimes and heinous offences, of which see many examples in the book at large quoted in the margin. option. 4 In a writ of Reception, F. N. B. 72. h. where after Replevin the party distrains again for that same thing, the Sheriff is commanded to apprehend the party so offending, and so to chastise him by amerciament, quod castigatio illa in casu consimili timorem aliis praebeat delinquendi. 〈◊〉 brea●●. 5 A man was put into the Stocks upon suspicion of Felony, Dier 99 a. 60. 1 Max. and another comes, who lets him go at large, this is felony at the Common Law de frangend. prison. albeit the party, that escaped, be not indicted for felony. ●●lt. ●●●der. 6 In Banco Reg. in the Case of one Tripcony the jury to the Nisi prius gave the Plaintiff but 40 l. damages for the cutting of his right hand, Dier 105. a 4. 1, 2 P.M. and they were increased by the justices to 100 l. because this was matter apparent to the Court, and the offence and trespass therein was carried about with the person; howbeit, in the Case of Sir John Bonham against the Lo. Sturton for slander, where the damages were 500 Marks the justices said they could not lessen them. Dyer 211. 33. 4 Eliz. 7 By the better opinion, albeit the Statutes of 27 H. 8. 4. & 28. H. 8. 15. Admiral. be penal, and ordain, that Commissions to hear and determine piracies shall be awarded to the Admiral and others to be named by the Chancellor, yet the Lord Keeper (being no Chancellor) may grant such Commissions, and that for the necessity to punish such offences. 141 It favoureth Justice and right. Co. Inst. p. 1. 33. a. 1. 1 In a writ of Dower brought against the heir tout temps priest is a good plea (before demand) to bar the woman of the mean values and damages, because the heir holdeth by title, Plea in dow● and doth no wrong till a demand be made; It is otherwise in a writ of Aid, Cozenage, etc. where the land and damages are to be recovered; for there such a plea is not good: because in that Case the Tenant of the land hath no title, but holdeth the land by wrong. Co. ib. 103. a. 4 & b. 1. 2 If there be Lord and Tenant by Homage Ancestrel, Homage ancestrel conti●nued. and the Tenant alien the land in Fee, although it be but upon a Condition, which is performed at the day, yet is the tenure gone for ever, because the privity and Estate being once discontinued, it is for ever after extinct: But if the land be recovered against the Tenant upon a faint title, and the Tenant recover the same again in an Action of an higher nature, there the Homage Ancestrel remains, for the right (which is favoureth in Law) was a sufficient means for the continuance thereof: so it is also, if he had reversed it in a writ of Error. Co. Inst. p. 1. 143. a. 4. 3 Before the Statute of quia emptores terrarum if a man had made a feoffment in Fee rendering Rend, he might have distrained for the Rent arreare of Common Right, and in Case he had made no reservation of Rent or service, yet the Feoffée should then have held of the Feoffor by such services as the feoffor held over of the Lord paramount; So as albeit the Feoffor were negligent and made no provision or reservation of Rent or service, yet the Law itself so much regarded Equity and justice, that it created a tenure, where the party was careless and reserved none. Co. ib. 253. a. 4 4 Remedies for rights are always favourably extended: Rights favourably extended. and therefore the grantée of a Rent-charge and Rent-secke may demand them after they are behind at any time, whether the Tenant be present or no, and it is not necessary, that the grantée should demand them at the very time when they become due: It is otherwise of a Rent upon a Condition, because that is penal and overthroweth the whole Estate, and therefore the time of demand (in that Case) must be certain, to the end the Lessée, Donée, or Feoffee may be there to pay the Rent for the redemption of the Estate. Litt. §. 307. Co. ib. 194. b. 3 Litt. §. 308. 5 If a man be disseised, Release to one joint-tenant. and the Disseisor make feoffment to two men in Fee, and the Disseisée releaseth by his deed to one of the feoffées; in this Case, it shall enure to both the Feoffees, because they have a Rightful Estate by Law, and come not in by wrong done to any: So likewise if the Disseisor make a lease to one for life, the remainder to another in Fee, and the Disseisée release to the Tenant for life, this shall enure to him in remainder, and the Estate of the Disseisée is thereby quite extinct, causa qua suprà. Co. ib. 125. b. 3 6 The Statutes of 3, & 4 E. 6. cap. 4. and 13 El. cap. 6. Constat & i●speximus. which ordain Constats and Inspeximus of letters Patents are to be favourably construed for advancement of the remedy and right of the subject. ●●gment acceding to 〈◊〉. 7 Estopels, Co. ib. 227. a. 4 which bind the Interest of the Land (as the taking of a lease of a man's own land by deed indented, and the like) being specially found by the jury, the Court ought to judge according to the special matter; for albeit Estoples regularly must be pleaded and relied upon by an apt conclusion, and the jury is sworn ad veritatem dicendam, yet when they find veritatem facti, they pursue well their oath, and the Court ought to judge according to Law and right: So also may the jury find a warranty being given in evidence, though it be not pleaded, because it bindeth the right, except it be in a writ of Right, when the Miso is joined upon the mere right. ●. 33 H. 8. 〈◊〉. 8 Albeit the Statute of 32 H. 8. 33. Co. ib. 238. a. 3 (which gives entry to the Disseisée, or his heirs, if the Disseisor were not in peaceable possession five years before the descent cast) be a penal Statute, yet it is taken favourably for the advancement of the ancient right; For whether the disseisin be with force or without force, it is within the Statute: and albeit the Statute speaketh of him, that at the time of the descent had title of Entry, etc. or his heirs; yet the Successors of bodies Politic or Corporal (so you hold yourself to a disseisin) are within the remedy of this Statute: but an Abator, Intrudor, or the Feoffée or Disseisor are not within the Statute, nor he in reversion, or remainder, that had not right of Entry at the time of the descent cast. ●ery descent ●●i not toll ●●y. 9 Albeit the Law giveth much favour to descents, Litt. §. 394. Co. ib. 241. b. 2 yet when the title of a descent commenceth by wrong, for the advancement of the ancient right, the Law toeth a descent to strict terms: and therefore when a descent is cast, if immediately after, there be not a person capable of it which may take it, such descent cannot toll the entry of him, that right hath, but his Entry is congeable. As if a Feme be seized of land in Fee, wherein I have title of Entry, and the Feme takes Baron, and they have issue, and after the Feme dies seized, and after the Baron dies, and the issue enters, etc. In this Case, I may enter upon the possession of the issue, because the issue comes not to the tenement immediately by descent after the death of his mother, but by the death of his father; For here was but a descent of a reversion at the time of the dying seized, so as the Fee and franktenement together did not immediately after the decease of the Feme descend to the heir; and if a dying seized taketh not away the Entry of him, that right hath, at the time of the descent, it shall not do it by any matter ex post facto: So if a Disseisor die without heir, his Wife priviment enseint with an issue, and after the issue is borne, who entereth into the land; In this Case, he hath the land by descent, and yet thereby the Entry of the Disseisée shall not be taken away, because (as Littleton saith) the issue cometh not to the lands immediately by descent after the decease of his father: Likewise, if a Disseisor make a gift in tail, the remainder in Fee, and the Donée dieth without issue, leaving his Wife priviment enseint with a son, and he in the remainder enter, and after the son is borne, who entereth into land, this descent shall not take away the entry of the Disseisée, causa qua suprà. ●cent tols 〈◊〉 t●try. 10 B. Tenant in tail enfeoffeth A. in Fee, Co. Inst. p. 1. 246. a. 2. A. hath issue within age and dieth, B. abateth and dieth seized, the issue of A. being still within age, this descent shall bind the infant for the issue in tail is remitted: And the Law doth more respect an ancient right in this Case, than the privilege of an Infant, that had but a defeasible Estate. ●cent upon ●ession, no 〈◊〉. 11 No glorious pretext of an Act (who though it be of Religion) shall work a wrong to a stranger, that hath right, Co. ib. 248. b. 3 to bar him of his entry; but it must be done by the Act of God, viz. by death: and therefore if the Disseisor have issue and enter into Religion, such a descent shall not bar by the disseisée of his entry, but he may well enter, notwithstanding any such profession, or pretext of Religion. Litt. §. 417. Co. ib. 252. a. 4 12 If a man hath cause of entry into divers lands in several Towns in the same County, if he enter in any parcel thereof in the name of all, Entry how be done. by such entry he shall obtain a good possession and seisin of all; The like also may be said of Livery of seisin: and this is in favour of right and justice. Litt. §. 472. Co. ib. 275. b. 4 13 If a man diseised by two, and he releaseth to one of them, he, Release to Disseisors. to whom the release is made, shall hold out his Companion, and by such release shall gain the sole possession and Estate in the land: but if a Disseisor enfeoff two in Fee, and the Disseisée release to one of them, this shall enure to them both; because these come in by feoffment, but those by wrong. Co. ib. 278. a. 3. 14 If two Disseisors be, and they enfeoff another, Release to Disseisors. and take back an Estate for life or in Fee; here, albeit they remain Disseisors to the Disseisée, as to have an Assize against them, yet if the Disseisee release to one of them, the releasée shall hold out his Companion, because their Estate in the land is by feoffment: Again, if there be two Disseisors, and they be disseised, and release to their Disseisor, and then the Disseisée release one or both of them, yet the second Disseisor shall re-enter, for they shall not hold the land against their own release: If their be too Femes joint Disseisors, and the one taketh husband, and the Disseisée release to the other, she is solely seized, and shall hold out the husband and wife, because she claims by a just title, viz. by the release, but they came in by wrong. Co. ib. 279. b. 1 Litt. §. 478 15 Dormit aliquando vis moritur nunquam; Right can● die. for of such an high estimation is right in the eye of the Law, that the Law preserveth it from death and destruction; trodden down it may be, but never trodden out; for where it is said, that a release of right doth in some Cases enure by way of extinguishment; It is to be understood (as Littleton doth §. 478) in respect of him, that makes the release, or in respect that by construction of Law it enureth not alone to him, to whom it is made, but to others also, who be strangers to the release, which is a quality of an inheritance extinguished: As if there be Lord and Tenant, and the Tenant make a lease for life the remainder in fee, if the Lord release to the Tenant for life, the Rent is wholly extinguished, and he in remainder shall take benefit thereof; So when the heir of a Disseisor is disseised, and the Disseisor make a lease for life, the remainder in fee, if the first disseisée release to the Tenant for life, this is said to enure by way of extinguishment, for that it shall enure to him in remainder, who is a stranger to the lelease, and yet in truth the right is not extinct, but doth follow the possession, viz. the Tenant for life hath it during his time, and he in remainder to him and his heirs, and the right of the inheritance is in him in the remainder; for a right to land cannot die, or be extinct in deed; and therefore if after the death of Tenant for life, the heir of the Disseisor bring a writ of Right against him in the remainder, and he join the Mice upon the mere right, it shall be found for him, because in judgement of Law he hath by the said release the right of the first Disseisée. Co. ib. 315. a. 1 16 Remedies to come to rights or duties are always taken favourably: Remitters ●●voured in 〈◊〉 and therefore there is a diversity between money given by way of Attornment, and where it is given as parcel of a Rent by way of seisin of the Rent: for albeit the Rent be not due before the day, yet a payment of parcel of the Rent before hand is an Actual seisin of the Rent to have an Assize; and so it is also, if he give an Ox, an Horse, a Sheep, a Knife, or any other valuable thing in name of seisin of the Rent before hand, this is good, whereas money or any other thing given in name of attornment is only a seisin in Law, which the grantée hath before actual seisin: So as a payment of part of the Rent in name of seisin is more beneficial for the Grantée, being both an actual seisin and an attornment in Law also; and yet being given before the day on which the Rent is due, it shall not be abated out of the Rent, in such sort that, as to give seisin of the Rent; it is taken as part of the Rent, but as to the payment of the Rent, it is accounted as no part of the Rent; and such prevarications the Law permits, when a right is concerned. ●●emiters favoured in law. 17 If Tenant in tail discontinue, and hath issue a Daughter, Litt. §. 671. Co. Inst. p. 1. 353. b. 4. and die, and the Daughter being of full age takes Baron, and the discontinuée releaseth to the Baron and Feme for their lives, this is a Remitter to the Feme, and the Feme shall be in by force of the entail; because Remitters to ancient Rights are much favoured in Law: It is otherwise of a descent, for if a woman be disseised, and being of full age taketh husband, and then the Disseisor dieth seized, this descent shall bind the wife, albeit she was covert, when the descent was cast; because she being of full age, when she took Baron, did not claim her Interest in the land. 〈◊〉. West. 2. 〈◊〉. 4. 18 There hath been a Question in our Books upon these words of the Statute of West. 2. cap. 4. (by default.) as for example, whether a recovery being had by default in an Action of waste against Tenant in Dower or by the Courtesy, a Quod ei deforceat lieth by the said Statute; but (doubtless) it doth: for albeit the Defendant may give in evidence, if he knoweth it, yet when he makes default the Law presumeth he knoweth not of it, and it may be, that he in truth knew not of it; and therefore it is reason, that seeing the Statute, which is a beneficial Statute, hath given it him that he be admitted to his Quod ei deforceat, in which writ the truth and right shall be tried: Ind so it is also of a Recovery by default in an Assize, albeit the Recognitors of the Assize give a Verdict, a Quod ei deforceat lieth; and all this, as to this point was resolved in P. 33 El. Rot. 1125. And so the doubt in 41 E. 3. 8. is well resolved: if Tenant for life make default after default, and he in reversion is received and pleads to issue, and it is found by Verdict for the Demandant, the default and Verdict are causes of the judgement, and yet the Tenant shall have a Quod ei deforceat, in favour of Right and justice, especially when the Statute intends him as much. 〈◊〉 like. 19 If the Baron discontinue the land of the Feme, Littl. §. 677. Co. ib. 356. b. 4 and the discontinuée demise the same land to the Feme for term of her life, and deliver seisin accordingly; In this Case, it seems whether the Baron agree or disagree to the livery, it is a Remitter to the Feme, it is otherwise if she had been sole: but one of the reasons why in that Case she is remitted is, for that the Law having once restored her ancient and better right will not suffer the disagreement of the husband to divest it out of her, and so to revive the discontinuance, and revest the wrongful Estate in the discontinuée; because Remitters tending to the advancement of ancient rights are very much favoured in Law: so likewise, if lands be given to a man and the heirs females of his body, and he maketh a feoffment in Fee, and taketh back an Estate to him and his heirs, and dieth having issue a Daughter, and leaving his wife Grossement enseint with a Son, in this Case also, the Daughter is remitted, and albeit the Son be afterwards borne; he shall not revest the Remitter. Litt. §. 678. Co. ib. 357. a. 3 20 If the Baron discontinue the land of the Feme, The like. and the discontinuée is disseised, and after the disseisor demiseth the land to the Baron & Feme for term of their lives, this is a Remitter to the Feme; for Remitters that restore ancient right are so much favoured in Law, that the Estate made by the disseisor (who cometh to the land by wrong and upon whom the entry of the discontinuée is lawful) doth remit the wife, and devesteth all out of the discontinue, albeit he hath a warranty of the land. Litt. §. 693. Co. ib. 363. b. 1 21 When the entry of a man of full age is congeable, Right of entry if he take an Estate of the land for life, in tail, or in fee, he is thereby remitted, unless it be by Indenture, matter of record, or otherwise, whereby he may be concluded or estopt: It is otherwise where he hath but right of action, for in that Case by taking such an Estate she shall not be remitted, and so observe a diversity betwixt right of action and right of entry, when his entry is lawful. Co. l. 3. 86. a. 4. in the cases of Fines. justice. Windams Ca 22 Where alienation was made in mortmain, 17 E. 3. 7. El. 20. Tenant not compellable to attorne. A fine is levied of land holden in ancient demesne, 31 E. 3. Tit. Ancient demesne, 16. an infant levied a fine, 36 H. 6. 24. Pl. 19 A fine levied of the reversion of land holden in Capite without licence, 45 E. 3. 6. or where Tenant in tail of a reversion or remainder (before the Statutes of fines, 4 H. 7. & 32 H. 8.) had levied a fine thereof; in all these cases and the like, the Tenant was not compellable to attorn, because the Estate that passed by the fine was not lawful, but either prohibited by the Common Law, or by some Statute, and for the most part were voidable. Co. l. 4. 26. a. 4. in the Copyhold cases, in Melwiches' Case. 23 The Lessée of a Copiholder, An Ejectione firmae granted to a Copiholder. for a year may maintain an Ejectione firmae, for in as much as his term is warranted by the Law by force of the general Custom of the Realm, it is reason, that, if he be ejected, he should have an Ejectione firmae, for that it is a speedy course for a Copiholder to gain the possession of the land against a stranger; being no more, than what right requires to be yielded unto him for the recovery of his Estate. Co. l. 5. 28. a. in the cases of Executors, in Middleton's Case. 24 An Executor before probat may release an Action, Release by Executor before probat good. albeit before probat he cannot bring an Action, because of the right of Action that is in him at the Common Law, it is otherwise of an Administrator, for if A. release, and after take administration, this shall not bar him, for the right of Action was not in him at the time of the release made, Vide 18 H. 6. 43. b. Greysbrockes Case, Plowd. 277, 278. 21 E. 4. 24. To Executors prove the will, and the third refuseth, yet he may afterwards release, for the ancient right, that remains in him, Litt. fol. 117. If one be bound to pay a sum at the day to come, before the day he cannot bring an Action of debt, yet a release of all actions before the day bars him, because of the present right and duty that he then had in him. Co. l. 6. 1. b. in bruerton's ca 25 If a man hold land by the service of aiding the Sheriff, Tenure for Justice not extinct. or to be High-Constable of England, which are for the advancement of justice (for the determination of divers cases belong to the Court of the Constable and Marshal, and the Sheriff is a Minister of justice) or if the tenure be, ad custodiendum Recorda Domini Regis, as the Abbot of St. Barthelm. in Smithfield held (as appears in the Records of the Tower in 7 R. 2. membr. 15. in Dorss.) in these and the like cases, if the Lord purchase parcel of the tenancy, yet the whole service remains, quia ista concernunt administrationem Justitiae. Co. l. 6. 62. a. 3. in Catesbies' Case. 26 In Catesbies' Case in the 5 Rep. the single point in question was, A year for laps. whether the six months of laps to give the Bishop power to collate should be accounted by 28 days for each month, or by the half year, and one of the reasons there alleged for the account by the half year was this: when a computation in such case is ambiguous; it is always requisite to determine it for the relief & remedy of him, that right hath, viz. of the Patron, and for the preservation of his right to allow him the longest time of the two, to the end he may not lose his right. 〈◊〉 ●5. H. 8. 6 27 Upon the Stat. of 35 H. 8. 6. to return a Tales, Co. l. 10. 103. b. 2 in Alfrid Denbawds ca albeit the title thereof is usually decem Tales, yet the Sheriff (although there be but one) juror appear or all be challenged but one) may at first return 11 to that one, because it is for the spéeding of trials, and that Statute being ordained for the furtherance and advancement of expedition in justice shall have a benign and favourable interpretation. ●●ssisee 〈◊〉. 28 If a man be disseised of a Manor, F.N.B. 33. q. to which an Advowson is appendent, and the Advowson happen to be void, the disseisée may present, and have a Quare Impedit, albeit he hath not entered into the Manor, by reason of the ancient right that is in him. ●●ers. crowson. 29 If a man traverse an Office found of a Manor, F.N.B. 34. p. to which an Advowson is appendent, and upon the traverse the King demiseth the Manor to him without making any mention of the Advowson, and after the Church is void, here, he that tenders the traverse shall have the presentment, if the traverse be found for him. ●●●ntment de Bishop. 30 If a man recover an Advowson, and the six months are past, F.N.B. 38. f yet if the Church be void, the Patron may pray a writ to the Bishop, and shall have it, and if the Church be void, when the writ comes to the Bishop, the Bishop is bound to admit his Clerk; and it seems also reason, if the Patron after the six month's 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 justices to prorogue the Assize, F.N.B. 153. h. because the defendant is in his service, etc. yet the justices ought to proceed, and not to cease for that writ, because it is for the advancement of justice and to do right. ●●e Judges 〈◊〉 to give ●●●eous ●●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 Judgement si action, whereas he ought to have pleaded non est factum (Dive the Sheriff having taken a bond of a man in execution to secure himself, which was void by the express words of the Statute of 23 H. 6. 10.) notwithstanding such default in right pleading, the judges finding the Sheriff to have no just cause of action (because that Statute made the bond clearly void) gave judgement against Dive the Plaintiff. So H. 7. E. 4. 31. Fitz. Title judgement, 50. where an action of trespass was brought against T●lly and Woddy for five boxes with writings taken, etc. Tilly pleads not guilty, and Woddy makes title to him by a gift, and the Plaintiff 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 Plaintiff: And here albeit the Issue was found against Tilly, yet by the clear opinion of the Court the Plaintiff shall not have judgement against him, for it was found betwixt the Plaintiff and Woddy; that the Plaintiff had no title, and therefore the judges (ex officio) ought to give judgement against him, vide plus ibid. ●●●ter to 〈◊〉 and 〈◊〉. 33 If land be given to Baron and Feme in special tail, Co. Inst. p. 1. 354. a. 3. and after the husband alien the land in fee, and take bacl an Estate to him and his wife for their lives; in this Case, the husband against his own alienation (if he had taken the estate to himself alone) could not have been remitted; but when the estate is made to the husband and wife, albeit they be but one person in law and no moities between them, yet for that the wife cannot be remitted in this case, unless 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 judgement 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 merely by wrong; A release to usurpation. howbeit if two men do usurp by a wrongful 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 merely by wrong, but their Clerk is in by admission and institution, which are judicial 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 confirm 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 years, the disseisor may confirm parcel of those years, but than it must be by apt words; for he must not confirm 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, etc. 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 agreement of C. to the disseisin, because otherwise it should make him a wrongdoer: 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 Under-sheriff Covenant with the High Sheriff, 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 justice. 142 That, which is not tortuous in itself, cannot be tortuous to any. Co. lib. 11. 98. b. 1. in Edw. Seymers Case. 1 If there be Tenant in tail, Remainder in tail, Remainder not devested the Reversion in in Fee to the Tenant in tail, the Tenant in tail bargains and sells the land and levies a Fine to the bargainée, who enfeoffs I. S. in this Case, by the feoffment 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 tail without issue, and when he made the feoffment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate tail in remainder did pass and did not divest the remainder: for the feoffment, which is not tortuous in itself, cannot be tortuous to another. 143. Interest Reipublicae, ne Curia Domini Regis deficeret in Justicia exhibenda. A Letter of Attorney, a P●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 die, the survivor shall not do it; but if a Venire facias be awarded to four Coroners to impannel and return a jury, and one of them die, yet the other shall execute and return the same, because this last is for the execution of justice. Tenants is common shall join 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 Assizes for them, because of their several titles; but if the Rent be an entire thing, which cannot be severed or divided, as an Hawk, Horse, or the like, in such case they shall join in the Assize, for otherwise they should be without remedy; and thus they must do, Ne Curia Dom. regis, etc. And Lex non debet deficere conquerentibus in justicia exhibenda; besides, if they should not join, they should have damnum & injuriam, and yet should have no remedy by Law, which would be inconvenient, for the Law will that in every case where a man is wronged and endamaged, that he shall have remedy: Aliquid conceditur ne injuria remanent impunita, quod alias non concederetur: Vide plus ibidem. A Villain. 3. A man cannot be properly said to be dispossessed of a Villain, Co. ibid. 307. a. 1. either in gross, or regardant (unless he be dispossessed of the M. too) for otherwise the Law would have given a remedy against the wrong doer, as the Law doth in case of a Ward, because the Lord may seize his Villain whersoever he finds him. T●e Lessee of a Copyholder ●●y have an Ejectment. 4. The Lessee of a Copiholder for a year may maintain an Ejectione firm, for in as much as hi● term is warranted by the Law, Co. l. 4. 26. a. 4. in Melwitches case. by force of the general custom of the Realm, it is reason, that if he be ejected he should have an Ejectione firm, for otherwise he should be without remedy: And Interest reipublicae, ne Curia, etc. 〈◊〉. West. 2. ● 28. 5. The Statute of Westm 2. ca 28 provides, Quod quotiescunque de cetero exercerit in Cancelleria, Co. l. 7. 4. a. 2. in Bulwers case. quoth in uno casu reperitur breve, & in consimili casu, cadente sub eodem jure, & simili indigente remedio, non reperitur: concordent Clerici in Cancelleria in brevi faciendo, etc. vel ad proprium Parliamentum de consensu Jurisperitorum fiat breve. And then concludes with this Maxim in Law, Quod Curia Domini Regis non debet deficere conquerentibus in justicia perquirenda. Upon which Statute and ground divers things are admitted, in consimili casu. Vide plus ibidem. No error be●●re full Judgement. 6. The Defendant in account, after judgement to account, Co. l. 11. 36. a. 4. Medcalfes' case. and before judgement final brings Error, but it was not allowed; so in an action brought against two, one pleads to the issue, and the other confesseth it, and thereupon judgement passeth against him, yet he shall not have Error till the plea be determined against the other: Vide plus ibidem. And the reason of these and the like cases is, because if the Record should be removed before the whole matter be determined, there would be a Failer of Right; for the judges of the King's Bench cannot proceed upon a matter which is not yet determined. return of the sheriff. 7. If a Sheriff return upon a Replevin (alias or pluries) that he hath sent to the Bailiff of the Franchise, who hath made him no return, F. N. B. 68 f. g. or that he will not make deliverance of the Cattle, in such case a Non omittas shall issue forth (alias & pluries) to cause the Sheriff to enter the Liberty, and to make return; or if the Bailiff make no return, or will not make deliverance, it seems that by the Statute of West. 1. ca 27. upon such returns the Sheriff may (without Writ) enter the Liberty and make deliverance of the Cattles, in like manner as the Sheriff may do by the Statute of Marlebridge ca 21. where a plea De vetit. Nau. is in the County by plaint before the Sheriff, and the Sheriff sends to the Bailiff of the Liberty to make deliverance, and he doth nothing, in this case also the Sheriff may (without Writ) enter the Liberty and do it. Likewise if the Sheriff upon a Pluries return, that the Defendant hath conveyed the Cattles into another County, or that he hath commanded the Bailiff of the Franchise, who returns that the Cattles are eloined into divers Liberties, so that he cannot have the view of the cattles to make deliverance, or that the Defendant hath eloyned the Cattles into divers places unknown, or that the Defendant hath imparked them in the Rectory of the Church of O. that he cannot make deliverance, etc. Upon these returns of the Sheriff the Plaintiff shall have a Writ of Withernam, to take so many of the Defendants Cattles, and detain them in Pound, until the Defendant produce the Plaintiffs: And all this is, Ne Curia Domini Regis, etc. Pl. Co. 36. a. 3. in Plaits case. 8. The Statute of 1 R 2. 12. The Extent o● 1. R. 2. c. 12▪ which gives an action of debt against the Warden of the Fleet for suffering a Prisoner (being in upon judgement) to go at large without Writ, is extended by equity to all other Keepers of Prisons, although it be a penal Statute; and that is for the better execution of justice, and that the Creditors debts may be the sooner discharged. Co. Inst. pars 1. 294. 4. 9 If there be not four Knights in the County for the electing of the twelve chosen for the trial of the mere right in a Writ of Right, when the Miso is joined upon the mere Right, Writ of right. the next to them in the County shall be taken, Ne Curia Regis, etc. Co. l 7. 4. a. 4 in Bulwers case. 10. If there be Lord and Tenant, Two Writs, one Count. and the Tenancy extends into two Counties; in this case, if the rents and services are arreare, the Lord shall have several Writs of the Customs and Services, for each County a Writ, and shall have them returneable at one day in the Bench; but he shall have but one Count upon them as his case is, Quia aliter Curia Domini Regis deficeret conquirentibus in justitia proquirenda. F. N. B. 26. h. 11. Upon a Rescous returned by the Sheriff, Rescous. and thereupon an Attachment awarded, against the party, in this case he shall not appear by Attorney but in person, and shall immediately upon his appearance be committed to the Fleet, Nam expedit reipublice, etc. Litt. S. 438. Co. Inst. pars 1. 260. a. 3. 12. Alb it the Law in divers respects favoureth a Prisoner, P●oc●edings against a Prisoner. so as a Recovery then had against him by default, shall be reversed by Error, a descent then cast against him shall not annoy him; yet it will not privilege him from suits, or Outlawries: for if the Tenant or Defendant be in Prison, he shall upon motion, by order of the Court, be brought to the Bar, and either answer according to Law, or else, the same being recorded, the Law shall proceed against him, and he shall take no advantage of his imprisonment. Dyer 1. 5. etc. p. 4 H. 8. 13. A Writ of error was brought by the feoffee of the Conusor of a Statute, Error brought by a stranger. because the Conusee had sued execution two years before the day of payment; albeit the Feoffee was a stranger to the Record, 18 E. 3. So also in 32 E. 3. A Scire facias was brought by the Gr●●●e of the reversion against him that had execution of the Land by reason of a Statute Merchant, and to obtain the Scire facias alleged, that the Conusee had received his duty, etc. And yet the grantee was neither party and privy: likewise if a Parson hath an annuity and recover, and after the Church is appropriate to a religious House, the Sover●igne of the House, though he be not party, shall have a Scire facias: so it is also (as is said) of two Benefices united. Vide Rule 145. 〈◊〉. 14. If a jury in a Leet refuse to make presentment, Dyer. 211 31. 4. Eliz. the Steward may assess a Fine upon each of them for contempt and concealment, and if the Homage in a Court Baron refuse to do it, if they be Copy-holders', it is a forfeiture. 15. If the Sheriff return Rescous, the party shall have Trovers, by the word Convincatur, in West. 2. ca 40. 〈◊〉. 16. One Cobham being indicted of Piracy, stood mute, Dyer 241. 49. 7. Eliz. for he answered not directly, and therefore had judgement of Pain for't & dure, by the Statutes of 27 H. 8. 4. and 28 H. 8. 15. Howbeit, he might have had his Clergy, if he had demanded it, by the Statute of 1 E. 6. 12. where Piracy is not mentioned. 144. It favoureth Common Right. … ment of ●●wer. 1. Dower being a thing due of Common right, Co. Inst. pars 1. 35. a. 3. it may be assigned without Livery of seisin or writing, and before the Guardian in Chivalry enter, the Heir within age may assign Dower, causa qua supra. ●●●mon right ●●mmon ●●w. 2. Where the Tenant holds his land of his Lord by fealty and certain rent, or by homage, fealty, and certain rent, Litt. S. 213. or by other services and certain rent, and the rent is arreare at a day when it ought to be paid, in this case the Lord may distrain for the rent of common right, so if a man demise land to another by Deed or without Deed, Co. ibid. 142. a. 4. for life or years, rendering rend, if it be arreare, etc. the Lessor may distrain for it of common right, albeit there be no clause of distress comprised in the Deed, or otherwise: And when it is said, That a man may do a thing of common right, it is as much as to say, that he may do it by the common Law: And the common Law is called Common right, because it is the best and most common birthright that the Subject hath for the safeguard and defence, not only of goods, lands, and revenues, but of his Wife and Children, his body, fame, and life also: And when it is said, that a man may distrain, or do, or have any thing of common right, it is as much as if it were said, he may do or have it by the common Law, without any reservation or provision of the party. It is worth observation, that the common Law of England is sometimes called Right, sometimes common Right, sometimes Communis justicia: The French also call their municipal Law, Droit, which in their vulgar tongue signifies Right. In the great Charter the common law is called Right, Rectum: Nulli vendemus, nulli negalibus, aut differemus Justiciam vel rectum. In West. 2. ca 1. it is called Common Droit: In primes voet le Roy & command, que le pais de saincte Eglise, & de la terre soit bien garde & maintain en touts points, & que Common droit soit fait a touts, anxibien aux povres, come aux riches sans regard de nullus: which agreeth with the ancient law of King Edgar, Porro autem has populo, quas servet, proponimus leges, primum publici Juris beneficio quisquam fruitur idque ex aequo & bono, sive is dives sive inops fuerit, jus Redditur. And Fleta saith, Item quod pax Eccles●ae & terrae inviolabiliter observetur, & quod communis Justicia singulis pariter exhibeatur. Also all the Comissions and Charters for execution of justice, are, Facturi quod ad justiciam pertinet secundum Legem & consuetudinem Angliae: So as in truth justice is the Daughter of the law or common right, for the law bringeth her forth; and in this sense being largely taken, as well the Statutes and Customs of the Realm, as that which is properly the common law, is included within Common Right. Co. Inst. pars 1. 147. b. 4. Litt. S. 212. 3. If a man hath a Rend charge to him and his heirs issuing out of certain land, if he purchase parcel thereof to him and his heirs, Rent-cha● extinct by purchase of parcel. all the Rent-charge is extinct, and the annuity also, and one of the reasons thereof is, because the grant of a Rent-charge out of Land is against Common right. Co. ibid. 215. a. 3. 4. By the Common Law no Grantee or Assignee of a Reversion could take advantage of a reentry by force of a Condition, A Grantee part of a Reversion shal● nor take advantage of 〈◊〉 Condition. because it was against Common right: but this is now altered by the Statute of 32 H. 8. ca 34. Yet at this day since the Statute, a Grantee of part of the Reversion shall not take advantage of a Condition no more than he could before that Statute: As if the Lease be of three acres, reserving a rent upon Condition, and the reversion is granted of two acres; in this case, albeit the rent shall be apportioned by the act of the parties, yet is the Condition destroyed, for that it is entire, and also against common right, and therefore shall not be taken by Equity or implication upon the words of the Statute, being without the express words thereof. Co. ibid. 225. b. 2. 5. There is a difference between a rent and a reentry, A Reentry cannot be without Dee● for upon a gift in tail or a Lease for life, a rent may be reserved without Deed, because it is natural and agreeable to Law, that rent should be reserved out of Land: but a Condition with a reentry cannot be reserved in these cases without Deed, because that is collateral, unnatural, and against Common right. Co. 4. 37. b. 3. Vide Co. l. 8. 79. in Wyatt Wields case. 6. There is difference between Common appendent and Common appurtenant, for Common appendent may be apportioned, Common appendent ma● be apportioned, not common appu●nant. because it is of Common right, and therefore (in that case) if the Commoner purchase parcel of the land, in which, etc. yet the Common shall be apportioned, as if the Lord purchase parcel of the tenancy, the rent (being not entire) shall be apportioned; so if A. hath Common appendent in twenty acres of land, & enfeoff B. of parcel thereof, this Common shall be apportioned, and B. shall have Common pro rata, and if he be invested shall make a special prescription for his Common. It is otherwise of Common appurtenant, which is against common right; for by purchase of part of the land, in which, etc. the whole common is extinct. Co. l. 6. 58. a 4, Bredimans' case. Co. ibid. 58. b. 3. 7. Lessee for years pays a rent seck, Seisin of Re●seck by the Lessee for years not good. this is not such a seisin as is required in an Assize against the tenant of the frank tenement, and one of the reasons alleged for this resolution is, because a rent seck is against common right, and therefore shall not be favoured in Law, but the seisin ought to be given by the tenant of the frank tenement or seisin ought to be made or given by all the ter-tenants that have interest in the land, out of which, etc. because they are against common right, and therefore not favoured in Law. Co. l. 8. 105. b. 3. in John Talbots case. 8. In most cases where the Lord purchaseth part of the tenancy (especially if the tenant hold by an Entire service) the whole service is extinct, Homage and fealty remai● howbeit although the Lord purchase parcel of the tenancy, Homage and Fealty shall remain for the residue, because they are due of common right. Co. l. 8. 118. a. 2. in Doctor. bonham's case. 9 When an Act of Parliament is against common right and reason, Acts against common rig● void. or repugnant, or impossible to be performed, the common Law doth control it, and adjudgeth such an Act void: And therefore in 8 E. 3. 30. Thomas Tregors case, upon the Statute of Westm. 2. c. 38. and Artic. super Car. cap. 9 Herle saith, Some Statutes are made against Law and right, which those that made them, perceiving, would not put them in execution. The Statute of Westm. 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenentem, & super eos, quibus alienatum fuerit hujusmodi tenementum. And yet where in 33 E. 3. tit. Cessavit 42. there were two Coparceners Lords and Tenant by fealty and certain rent, the one Coparcener had issue and dies, the other and the Niece could not join in a Cessavit, because the heir could not have a Cessavit for the Lessee in the time of her Ancestor (F. N. B. 209. f. and with this accords Ploughed. Com. 110.) and the reason hereof is, because in Cessavit the tenant before judgement may render the arrearages and damages, etc. and retain his Land, and this he cannot do when the heir brings Cessavit for the Lessee in the time of his Ancestor, for the arrearages occurred in the life of his Ancestor belong not to him; and thereupon, because the said Act was against common right and reason, the common Law (as to that point) adjudged it void. Vide plus ibidem. Tithes due of common right. 10. Quota pars, viz. decima pars (which we call dimes or tithes) is an Ecclesiastical Inheritance, collateral to the estate of the Land, Co. l. 11. 13. a. 3. in Bridle and Nappers' case. which cannot be either extinct or suspended by unity of possession, because they are due of common right: And therefore if a Prior, having a Parsonage impropriate, had enfeoffed a Layman of part of the Glebe, yet he should have had tithes against his own feoffment, as it is held in 42 E. 3. 13. a. Vide Hob. 107. The Bishop of Carliles case. Certainty in a Leet. 11. The Lord of a Leet cannot justify to distrain for the certainty of the Leet, because it is collateral and against common right, Co. l. 11. 44. 2. & 45. 2. in Rich. Godfrey's case. and for the private profit of the Lord of the Leet, which the Lord cannot have without prescription, and therefore as he ought to prescribe in the principal, so ought he to prescribe in the distress: Howbeit although for an amerciament in a Court Baron the Lord cannot distrain without prescription (Vide 44 E. 3. 13.) yet for a Fine and all amerciaments in a Court Leet, distress is incident of common right: And therefore if the certainty be not duly paid, the Deciver or Capital pledge, that collects it, may first be amerced, and then distrained for his negligence. Tenant at wil 12. If Lessor upon a lease at will reserve an annual rent, Litt. S. 72. Co. Inst. pars 1. 57 b. he may distrain for the rent arreare, or have an action of debt for it at his election; because power of distress is (in that case) given him of common right, and so is also the action. ●galty de partition. 13. Where Coparceners make partition by Parol, Litt. S. 252. Co. ibid. 169. b. and for egalty of partition one of them is to have a rent out of the land; in this case she may distrain for the rend arreare of common right. Assize. 14. In an Assize of Novel disseisin for Land, Dyer, 84. a. 81 7. E. 6. or (since the Statute of 32 H. 8. 7.) for Tithes, the tertenant need not be named in the Count, but only the disseisor: It is otherwise in an Assize of Rent-charge or seck, because they are things against common right. 145. And therefore it suffereth things against principles of Law, rather than the party should be without remedy. A special case of an entail. 1. John de Mandevile by his Wife Roberge had issue Robert and Mawde, Michael de Morvile gave certain Lands to Roberge, Co. Inst. pars 1. 26. b. 2. and to the heirs of John Mandevile her late Husband on her body begotten, and it was adjudged that Roberge had an estate but for life, and the fee-tail vested in Robert (heirs of the body of his Father being a good name of purchase) and that when he died without issue, Mawde the Daughter was tenant in tail as heir of the body of her Father, per formam doni, and the Formedon, which she brought supposed, Quod post mortem prefatae Robergiae, & Roberti filii & heredis ipsius Johannis Mandevile, & heredis ipsius Johannis de prefata Robergia per prefatum Johannem procreate, prefatae matildae filiae predict Johannis de prefato de Robergia per prefatum Johannem procreatae sorori & heredi predicti Roberti descendere debet performam donationis predictae. And yet in truth the land did not descend unto her from Robert, but because she could have no other Writ, it was adjudged to be good: In which case it is to be observed, that albeit Robert being heir, took an estate by purchase, and the Daughter was no heir of his body at the time of the gift, yet she recovered the land per formam doni, by the name of Heir of the body of her Father, which (indeed) her brother was, and was also capable at the time of the gift, whereas when the gift was made, she took nothing but in expectance, when she should become heir per forman doni: And yet the law permits her to have a Writ in form aforesaid, lest otherwise she should have been without remedy. Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for relief or for escuage due unto him, because he hath other remedy to recover the same, viz. Remedy for relief, etc. by distress: Howbeit his Executors or Administrators shall have an action of debt for them, because they are now become as showers fall'n from the stock, and they have no other remedy. Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the term of half a year or a quarter of a year, etc. in this case, if the lessee make waste, For waste. the lessor shall have against him a Writ of waste, and the Writ shall say, Quod tenet ad terminum annorum, but he shall have a special Declaration upon the truth of the matter, and the Count shall not abate the Writ; and the reason is, because he can have no other Writ, whereby the wrong done him may be remedied: And therefore albeit the Statute of Gloucester ca Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or years (which lay not against them at the common Law) speaketh of one that holdeth for term of years, in the Plural number, nevertheless (although it be a penal Law, whereby triple damages and the place wasted shall be recovered) yet a tenant for half a year being within the same mischief, shall be within the same remedy, though it be without the letter of the Law, causa qua supra. Co. Inst. pars 1. 56. a. 1. 4. If Lessee for years be disturbed of his way, An action for a public nuisance. for remedy thereof he shall have his special action upon the case, but if it be a common way (to avoid multiplicity of suits) it ought to be presented and reform in the Leet or Turn, and no particular person shall bring any action for it, unless he suffer particular damage by the nuisance (as if he and his Horse fall into a ditch so made in the common way, or the like) which happeneth not to others: Howbeit in the King's Bench in a case betwixt Westbury and powel it was adjudged, that where the Inhabitants of Southwark had by custom a watering place for their Cattles, which was stopped up by powel, in that case any Inhabitant there might have an action, because otherwise they should be without remedy, for that such a nuisance is not presentable in the Leet or Turn. Co. ibid. 111. a. 4. 5. In Cities and Burrows, where Tenements were devisable, Ex gravi querela granted to Devisees of Lands. if the heir of the devisor had entered, and had held out the devisee, albeit the devisee might have entered (as Lit. saith, S. 167.) Yet, besides, the Law ordained a Writ for him called Ex gravi querela, and this Writ without any particular usage was incident to the custom to devise; because otherwise, if a descent had been cast before the devisee had entered, the devisee had been without remedy, there being no other way provided for him to recover his land. Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory, rent, or other profit out of land, Claim of a Reversion, etc. by the Lord of a Villain. or a reversion after an estate for years, life, in tail, by Statute Merchant, Statute Staple, or Elegit, and attornement is made unto him according to the grant; in such cases, the Lord may come upon the land and claim the reversion, and in so doing shall not be adjudged a trespasser, for he hath no other means to come by the reversion, because if he should stay until the reversion should fall, the Villain might alien it to another before his entry, and so prevent him of his just title thereunto: Also upon grant of an Advowson to a Villain, claim must be made immediately at the Church, though it be then full of an Incumbent, Lit: S. 180. for if he stay till an avoidance, he may be prevented, as aforesaid, Vide infr. 35. Outlawry no plea in Error to reverse it. 7. Regularly an outlawed person cannot sue, and if he do, Co: ib. 128. a. 4. it is a good plea in disability of his person, to say, that he is outlawed: yet in a Writ of Error to reverse an Outlawry, Outlawry in that suit, or at any stranger's suit shall not disable the Plaintiff, because if he in that action should be disabled, and were outlawed at several men's suits, he should never reverse any of them. Aliens may have actions personal. 8. Albeit Aliens (though in annuity) are excluded from many privileges that Subjects borne enjoy, Co. ib. 129. b. 1. yet such a Alien may maintain personal actions, for an Alien may trade and traffic, buy and sell, and therefore of necessity he must be of ability to have personal actions, and an Alien that is condemned in an Information shall have a Writ of Error to relieve himself, Et sic de similibus, for otherwise they should be without remedy. A Monk can● sue, etc. 9 If a Monk or other spiritual person professed, were beaten, wounded, Co: ib. 132. b. 3. or imprisoned, he is prohibited to sue (as Lit. saith, S. 200.) because he is a dead person in Law: but here the Law gives a remedy, for in that case the Abbot and Monk shall join in an Action against the wrong doer, and if the Writ be Ad damnum ipsius Priores, the Writ is good, or if it be Ad damnum ipsorum, it is good also: yet in this case the Abbot or Pryor (in his person) was not wronged. Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery, and afterwards was lawfully acquitted, his Sovereign and he should have joined in a Writ of Conspiracy, and the like: There is the same Law also of a Nun, Sanctimonialis, mutatis mutandis: And if the Law did not provide such a course, they might have been injured and left without remedy. ● Feme Co●●● may sue ● be sued. 10. A Feme Covert is disabled to sue without her Husband, Co: ib. 132. b 4. 2 H: 4. s. 7. a. and yet we read that (in som● cases) a Wife hath had ability to sue and to be sued without her Husband: for the Wife of Sir Rob. Belknap (one of the justices of the Court of Common Pleas) who was banished beyond Sea, did sue a Writ in her own name, without her Husband, he being alive, whereof one said: Ecce modo mirum, quod foemine fert breve Regis Non nominando virum conjunctim robore Legis. Also E. 3. brought a Quare Impedit against the Lady Maltravers, Co: ib. 10 E. 3. 53. and she pleaded, that she was Covert of Baron, whereunto it was replied for the King, that her husband, the Lord Maltravers was put in exile for a certain cause, & she was ruled to answer. Vide more examples hereof in Coke, ubi supra, where this difference is put, that if the Husband be condemned to perpetual banishment, his wife in his absence, and in her own name, shall sue and be sued; but if it be but Relegation for a time, it seems to be otherwise: And all this, lest the parties that have cause of Action, should remain without remedy; for when he is condemned to perpetual banishment, he is as a Monk professed, dead in Law: There is the same Law also of perpetual abjuration. 〈◊〉 person ●ll be charg●● with an an●ity, though charged by ●●●oes. 11. If a man grant a Rent-charge out of his Land, Co: ib. 146. b. 1. Co. L. 7 39 b. 2. in Lillingstons' case. with Proviso that the Grantee shall not charge his person: in such case (regularly) the Land shall be only charged, and his person free: And yet in some case where there is such a Proviso in the Grant, that the person of the Grantor shall not be charged, nevertheless the person of the Grantor shall be charged: As if a man grant a rend charge out of certain Lands to another for life, with such a Proviso, the rent is behind, the grantee dyeth, in this case the Executors of the Grantee shall have an action of debt against the Grantor, and charge his person for the arrearages due in the life of the Grantee, because the Executors have no other remedy against the Grantor for the arrearages. Vide infr. 32. Litt. 252. Co. 169. b. 4. 12. Where in Dower or upon Partition betwixt parcenors, Egalty of partition. a rent is granted to supply the thirds, or for egalty of partition; in such case, the Law doth give a Distress, lest the Grantee should be without remedy, having in lieu thereof departed with a valuable recompense in Land. Co. ibid. 197. a. 4. 13. For twenty shillings rend, Tenants in common shall join in Assize. or a pound of Pepper payable yearly, two tenants in common aught to have several Assizes, because they have them by severable titles; as one tenant in common may have an Assize of the moiety of twenty shillings, or of the moiety of a pound of Pepper (de medietate unius librae piperis, but not of ten shillings, or de dimidio librae piperis.) And for that these things are in themselves severable: Howbeit, for an Hawk, Horse, or the like, which are entire, albeit they be tenants in common, yet shall they join in an Assize, because, otherwise, they should be without remedy; for, one of them cannot make his plaint in Assize of the moiety of a; Hawk, Horse, etc. that were against the order of nature, which the Law will not suffer: and if they should not join, they should have Damnum & injuriam, and yet should have no remedy by Law, which would be inconvenient: for the Law will, that in every case, where a man is wronged and endamaged, that he shall have remedy, Aliquid conceditur, ne injuria remaneret impunita, quod alias non concederetur: so also shall they join in a Quare impedit, in a Writ of right ward, or ravishment of ward for the body, for the same reason. Co. ibid. 198. a. 3. Co. l. 10. 134. b. 3. in Read and Redmans' case. 14. If there be two Tenants in common of an Advowson, The survivor shall recover. and a stranger usurps, so as the right is turned to an action, and they bring a Writ of Quare impedit, which concerns the realty, the six month's pass, and the one dyeth: In this case the Writ shall not abate, but the survivor shall recover, for otherwise there would be no remedy to redress this wrong, and so it is also of Coparceners. Litt. S. 365. Co. ibid. 226. a. 3. 15. It is regularly true, A Condition need not be showed forth. that a man shall not plead or take advantage of a Condition, without showing forth the proof thereof in writing: And yet, if land be mortgaged upon condition, and the Mortgagee letteth the Lands for years, reserving a rent, the condition is performed, the mortgagor reenters: In an action of debt brought for the rent, the Lessee shall plead the condition and the reentry, without showing forth any Deed: so in an Assize the tenant pleads a Feoffment of the Ancestor unto him, etc. the Plaintiff saith, The Feoffment was upon condition, and that the condition was broken, and pleads a reentry, and that the tenant entered and took away the Chest, in which the Deed was, and yet detaineth the same, the Plaintiff shall not in this case be enforced to show the Deed: Also if a woman give Lands to a man and his heirs by Deed or without generally, she may in pleading aver the same to be Causa matrimonij prelocati, albeit she hath nothing in writing to prove the same: And the reason of these cases and the like is, lest the parties that should prove the conditions should (upon failer thereof) be utterly left without remedy. Litt. S. 391. Co. ibid. 240. a. 3. 16. If the Feoffee of Land in fee upon condition die seized, Right and title a diversity. this descent (if the condition be broken) shall not take away the entry of the Feoffor or his heirs: but if the Feoffee upon condition be disseised, and the disseisor die, whereby a descent is cast, this shall take away the entry of the Feoffee, because he hath a right to the land, and therefore his entry may be taken away, for that he may recover his right by action: But the Feoffor, that hath but a Condition, his title of entry cannot be taken away by any descent, because he hath no remedy by action to recover the land, and therefore if a descent should take away his entry, it should bar him for ever: And the Law (in this case) is all one, whether the descent were before the condition broken or after: Also he that hath a title to enter upon a Mortmain shall not be barred by a descent, because than he should be without all remedy: So it is also where a Woman hath a title to enter, Causa matrimonii prelocuti, no descent shall take away her entry, because she hath but a title, and no remedy by action. If a man be seized of lands in Fee, and in writing deviseth the same to another in Fee, and dyeth, and the Heir before any entry made by the Divisee, entereth and dyeth seized, this descent shall not take away the entry of the Devisee; for if the descent (which is an act in Law) should take away his entry, the Law should bar him of his right, and leave him utterly without remedy: So it is also of him that entereth for consent to a ravishment, and was so resolved in the case of Martin Trot, 32 Eliz. in Communi Banco, and accordingly was the Opinion of the Court of Common Pleas, Pasch. 1. Jac. To this may be added as a like Case, The Kings Patentee before he enter, etc. by all which you may observe a diversity betwixt a right, for which the Law giveth a remedy by action, and a Title, for the which the Law giveth no remedy, but by entry only. ●●●tinuall ●●me. 17. Regularly, Continual claim cannot be lawfully made, Co. ibid. 250. b. 1. Litt. S. 414. but where he that makes the claim hath present right or title to enter, and yet in some cases (where a man is left without other remedy) a Continual claim may be made by him, that hath right and cannot enter: As if Tenant for years, Statute Merchants, Staple, or Elegit, be outed, and he in the reversion disseised, the Lessor or he in reversion may enter to the intent to make his claim, and yet his entry, as to take any profits, is not lawful during the term: So likewise the Lessor or Reversioner may in such case enter to avoid a collateral Warranty, or the Lessor in that case may recover in an Assize: And so (as some have holden) may a Lessor enter in case of a Lease for life, to the intent to avoid a Descent or Warranty. If the Disseisee make Continual claim, and the Disseisor die seized within the year, his Heir within age, and by Office the King is entitled to Wardship; in this case, albeit the entry of the Disseisee be not lawful, yet may he make Continual claim to avoid a Descent. ●●●nuall ●●●e. 18. When a man for fear of death, Co. Inst. pars 1. 2 53. b. 4. Litt. S. 419. or some corporal hurt dare not make an actual entry into land, he may approach as near thereunto, as he dare for such fear, and claim the Land, and this claim, which is an entry in Law, doth vest the possession and seisin in him (for his advantage, but not for any thing which may tend to his disadvantage) as if he had made an actual entry into the Land; because otherwise he should be left without remedy. ●●lawry 〈◊〉 beyond 〈◊〉 reversable. 19 If a Recovery be had against a man in a Praecipe by default, Co. ibid. 260. b. 3. when he was extra quatuor maria, it shall not be reversed by a Writ of Error for that cause, for that he is not left without remedy, but may have his action of an higher nature, or a Quod ei deforceat: Howbeit, if a man be outlawed in a personal action, being then extra quatuor maria, he may reverse it by a Writ of Error, for otherwise he should be without remedy, and (besides) de Minimis non curat Lex. 20. Where a man cannot have advantage of the special matter by way of pleading, Co. ibid. 283. a. 3. What not pleaded given in evidence. he shall be permitted to take advantage thereof in the Evidence: for otherwise he should be left without remedy: For example, the Rule of Law is, that a man cannot justify in the kill or death of a man, and therefore in that case he shall be received to give the special matter in Evidence, as that it was Se defendendo, or in defence of his House in the night against Thiefs or Robbers, or the like. Co. ibid. 312. b. 1. 21. If a Seignory be granted to one for life, the remainder to another in fee, Attornment, Acquittal. the attornement of the Tenant to the Tenant for life is an attornement to the remainder also: Howbeit, if acquittal ought to be made or other privilege had: in such case, albeit attornement be made to the Tenant for life, and he acknowledge the acquittal, etc. Yet after his decease he in remainder shall not distrain, until he acknowledge the Acquittal also, notwithstanding the Attornement of the Tenant for life, for otherwise the Tenant should be without remedy. Co. ibid. 347. a. 1. 22. By the policy of the Law, Abbot capable to sue and be sued. The Abbot (termed the sovereign) albeit (indeed) he be but a Monk or secular person dead in Law, yet hath he capacity and ability to sue and be sued, to enfeoff, give, demise, and Lease to others, and to purchase and take from others; for otherwise they who right have, should not have their lawful remedy, nor the House remedy against any other, that did them wrong. Co. ibid. 354. a. 3. 23. Regularly, Baron remitted against his own alienation. a man cannot be remitted against his own alienation, yet if there be Baron and Feme in special tail, and the Baron alien the Land to another in fee, and take an estate bacl to him and his Wife for their lives: in this case, the Baron is remitted against his own alienation, as well as the Feme: for the Feme cannot be remitted without the Baron be remitted also, and rather than the Feme should not by Remitter have remedy and her ancient right restored to her, the Baron shall be also remitted against his own Grant: Litt. S. 673. And therefore (in that case) if there were any remainders in tail upon the special tail, and last of all a reversion or remainder in fee above them, upon taking bacl of the estate for lives by the Baron, all those in remainder or reversion are also remitted. Co. ibid. 376. a. 3. etc. 24. By the Rule of Law, One that is not heir at Law, may be vouched to warranty. a Warranty made by the Father descends upon his heir at the common Law, and he only is to be vouched to maintain the same; yet in some cases lest the Voucher should be without remedy, they that are not Heir at Law may be vouched: As if a man enfeoffeth another of an acre of land with warranty, and hath issue two Sons, and dyeth seized of another acre of land of the nature of Burrow English, the Feoffee is impleaded; here, albeit the Warranty descendeth only upon the eldest Son, yet may he vouch them both, the one as heir to the Warranty, and the other as heir to the land: For if he should vouch the eldest Son only, then should he not have the fruit of his Warranty, Viz. a recovery in value, and the youngest Son only he cannot vouch, because he is not heir at the common Law, upon whom the Warranty descendeth: So it is also of heirs in Gavelkind, the eldest may be vouched as heir to the Warranty, and the other Sons in respect of the Inheritance descended unto them: In like sort the heir at the common law, and the heir of the part of the Mother shall be vouched: Howbeit the heir at Law may be vouched alone in both these cases, at the election of the Tenant, & sic de similibus: In the same manner if a man die seized of certain lands in fee, having issue a Son and a Daughter by one venture, and a Son by another, the eldest Son entereth and dyeth, and the land descends to the Sister; in this case, the Warranty descendeth on the Son, and he may be vouched as heir, and the Sister, as heir of the land: In which and the other case of Burrow English, the Son and heir at Law, having nothing by descent, the whole loss of the Recovery lieth upon the heirs of the Land, albeit they be no heirs to the Warranty. Warrants. 25. If a man do warrant Land to another without this word (Heirs) his heirs shall not vouch; and, regularly, Co. Inst. pars 1. 384. b. 4. if he warrant Land to a man and his heirs, without naming Assigns, his assignee shall not vouch: Howbeit, if the Father be enfeoffed with Warranty to him and his heirs, and the Father enfeoffeth his eldest Son with warranty and dyeth: In this case, albeit the Warranty between the Father and the Son is by act in Law extinct, yet the Law giveth to the Son advantage of the Warranty made to the Father, because (otherwise) he should be without remedy, occasioned by an act of Law, which can do no wrong. 26. It is against a Rule in Law, Co. ibid. 390. a. 1. that a man should vouch himself (Vide R. 54. Ex. 14.) And yet if a man be enfeoffed with warranty to him and his heirs of green acre, warranty. and is also seized in fee of black acre in Burrow English, and having two Sons, enfeoffeth his eldest Son of green acre; in this case, if the eldest Son be impleaded, he shall vouch himself, and his younger Brother (being heir in Burrow English) for otherwise the eldest Son should be without remedy; because the act in Law (Viz. The descent) hath determined the Warranty between the Father and the eldest Son. warranty by ●●fe and husband's, etc. 27. Baron and Feme being one person in Law, Co. ibid. 290. a. 3. 1. & 103. b. 9 Dyer 2. p & Mar. & 315. b. 1. 15. Eliz. it is against the Rule of Law, that they should vouch one another, neither shall a Warranty be made use of, while it is in suspense: And yet if a man enfeoffeth a woman with Warranty, and they intermarry, and are impleaded, and upon default of the Husband the Feme is received; in this case, the Feme shall vouch her Husband, etc. notwithstanding the Warranty was put in suspense by the intermarriage: So likewise on the other side, if a woman enfeoff a man with Warranty, and they intermarry, and are impleaded; in this case, the Husband shall vouch himself and his Wife by force of the said Warranty: Albeit it be against another Rule of Law (Viz. 54. before cited) that a man should do an act to himself: And all this least the Husband or Wife, in their several cases, should be without remedy. Warranty. C●parcener. 28. Regularly, Co. ibid. 174. a. 4. the Feoffee of one Coparcener shall not have aid of the other Coparcener to deraigne a Warranty paramount: And yet if there be two Coparceners, and they make partition, and the one of them enfeoffs her Son and heir apparent and dyeth, and the Son is impleaded: In this case, albeit he be in by the Feoffment of his Mother, yet shall he pray in aid of the other Coparcener to have the Warranty: And the reason of the granting of this aid isfor that the warranty between the Mother and the Son is by Law annulled, and therefore lest the Son should be prejudiced by Law (which can do no wrong) and so be left without remedy, the Law giveth him (albeit he is in by Feoffment) to pray in aid of the other coparcener to deraigne the warranty paramount. Co. l. 3. 12. a. 3. in Sir Wil Harberts' case. 29. Debt against the Heir. In Debt against the heir upon an obligation made by the Ancestor, the creditor could not (at the common Law) have had execution against any part of the Land, whereof the debtor was seized, in the life of the debtor himself; but after his decease he might have had all the land descended upon the heir in execution, until he should be satisfied the debt, because the common law giving action of debt against the heir, if the debtor should not have had execution of the Land against the heir, he should not have had any fruit of his action, and so should have been left without remedy: for the goods and chattels of the debtor did belong to his Executors or Administrators, so as if land should not have been liable to a debt of a common person at the common Law, the creditor had been without remedy: and yet the common phrase is, Lands pay no debts. Co. l. 4. 30. b. 3. in Shaw and Thompson's case. 30. Dower. Copyhold. In a Court Baron the damages to be recovered ought not to exceed forty shillings, yet in a Copyhold Manor where the custom is that a Feme shall be endowed, if she recover Dower with damages in the Lord's Court, albeit those damages exceed forty shillings, yet are they recoverable in the same Court, for otherwise she should be without remedy, because they are not recoverable by the common Law, but only in the Court of the Lord by Levari facias. Co. l. 5. 88 a. 3. in Garnors' case. 31. At the common Law, No capias in debt at the C. Law. if a man had judgement in an action of debt, and after judgement outlawed the Defendant: in this case the Plaintiff was not at the end of his suit, as to any process to be further sued by himself, for he could not have a Scire facias, nor any other process upon the judgement, but was put to his new Original, as it is agreed in 13 H. 4. 1. a. 21 E. 3. 55. and 20 E. 3. Nonability 8. And albeit before the Statute of 25 E. 3. ca Capias did not lie in debt, nor the body of the Defendant before that Statute was subject to execution for debt; yet in these cases if the Defendant be taken by Capias ut lagatum at the King's suit (not Laches being in the Plaintiff in continuance of his process) he shall be in execution for the Plaintiff, if he will: for albeit the property of all the Defendants goods and profits of his Lands are by the Outlawry vested in the King, yet rather than the Plaintiff should be without remedy, he shall hold him in execution for his debt, and for that reason he shall (in such case) participate of the benefit as well as the King. Co. l. 6. 41. b. 1. in Sir Anthony Mildmays case. & Co. l. 7. 39 b. in Lillingstons' case. 32. If a man by Deed grant a rent to another for his life, Rend sued for by Executors. provided that he shall not charge his person; in this case, if the rent be arreare, and the grantee die, his Executors shall charge the person of the grantor in an action of debt, for otherwise they should be without remedy. Vide supra 11. Co. l. 8. 57 b. 2. in Bredimans' case. 33. Regularly, a Praecipe lieth not against a Termor, Writ of Dower against Guardian. because he cannot tender seisin: Howbeit, against a Guardian in Chivalry, who is upon the matter but a Termor, being but possessed of a Chattel (viz. the Wardship) a Writ of Dower lieth, because otherwise the tenant in Dower should be without remedy, for (in such case) no Writ of Dower lieth against the Heir, as it is adjudged in 9 H. 6. 6. Trevils' Case. Co. l 6. 65. b. 1. in S r M●●le Finches case. 34. Misnosmer. If William Abbot of Worcester purchase a Writ by the name of Thomas Abbot of Worcester, the Writ shall abate, because he may purchase a new one: Howbeit, if he with the consent of the Covent, grant to the Burgesses of Worcester common of pasture out of certain lands by the name of Thomas Abbot of Worcester, when his name is William, the grant is good, because there is certainty enough to make certain the name of the Grantor, viz. Abbot of W. (Nihil facit error nominis cum constat de persona.) And, otherwise, the Grantees should be without remedy, for they cannot have a new Grant. Avowry and waist without attornment, etc. 35. If a man be seized of a Manor, part whereof in Lease for life, Co. l. 6 68 a. 1. in Sir Moyle Finches case. and part in Lease for years, and he levies a Fine to A. to the use of B. in tail, with divers remainders over: In this case B. shall avow for the rent, and have an action of Waste without any attornement: for, when a reversion is settled in any in judgement of Law, and he hath not any possible means to compel the Tenant to attorne, and no Laches or default is in him, in such case he shall avow and have an action of Waste without attornement, for the Rule is, Quod remedio destituitur, ipsa re valet si culpa absit. So in 20 E. 3. Contra formam Collatine because the founder cannot have the Writ of Contra formam Collationis of an Advowson, he shall present without any suit, because otherwise he should be without remedy Likewise in 7 E. 3. and 3 H. 7. A man shall be Tenant by the Courtesy, of a rent or Advowson, albeit the woman die before the day incur, or the avoidance fall: Also the Lord in Mortmain or of a Villain claims a reversion, by such claim the Law vests the reversion in him, and he shall avow and bring an action of Waste without attornement, because he hath no means to compel the Tenant to attorne: There is the same law of Letters Patents, and of a demise of a reversion, as appears in 34 H. 6. for in all these cases, abest culpa, and the party should be (otherwise) left without remedy, Vide supra 6. A Quare Imped● shall not abate for the death of the Patron. 36. If a Quare impedit be brought against the Patron and Incumbent, and the Patron die, hanging the Writ, Co. l. 7. 26. b. 2. in the cases of Quare Impedits. Vide Co. l. 10. 134. b. 4. in Read and Redmans' case. the death of the Patron shall not abate the Writ, as it is adjudged in 9 H. 6. 31. For here are two mischiefs, the one if the Writ shall abate the disturbance shall be left unpunished, and albeit the Writ be well commenced, yet the Plaintiff shall be without remedy, for there will want a disturber: and the other mischief is, if the Writ do not abate, but the Piaintiffe proceeds to judgement and Execution, the true Patron shall be out of possession: And therefore in as much as in the one case, if the right Patron be put out of possession, he hath remedy by a Writ of right to recontinue the Advowson and in the other case, if the Writ shall abate, the Plaintiff shall be without remedy, which (of the two) is the greater mischief, for this cause the Writ shall stand and shall not be abated: with which accords 7 H. 4. 20 b. 13 H. 8. 13. 9 H. 6. 57 For the same reason it is, that a Quare impedit brought by Coparceners or joint-tenants shall not abate by the death of one of them, or brought by Baron and Feme shall not abate by the death of the Feme: because, otherwise, the Plaintiff (if the six months are passed) shall be without remedy, as the Books are in F. N. B. 35. b. 38 E. 3. 43. 37 H. 6. 11. 7 H. 4. 19 14 H. 4. 12. 9 H. 6. 30. 57 1 H. 5. 13. 17 E. 3. 11. 7 E. 3. 304. Co. l. 7. 30. a. 4. in cases of the discontinuance of Process. Discontinuance of suits by demise of the ●ing. 37 At the common Law (regularly) by demise of the King all suits were discontinued, for remedy whereof the Statute of 1 E. 6 7. was ordained, yet since that Statute if an Original were not returned before the death of the King, it was lost, for the words of that Statute are, Depending in any Court: Howbeit (at the Common Law before that Statute) in an Appeal of death, if the Writ were delivered to the Sheriff within the year, and before the return thereof, or that the Sheriff doth any thing in it, the King dies, and the year is expired before the day of the return: In this case the common Law gave remedy to the Plaintiff, viz. a Certiorari out of the Chancery returnable in the King's Bench, and thereupon the Plaintiff had re-attachment, although it came not in by the return of the Sheriff, but by the Certiorari: And the reason is, for the necessity of the matter, for (otherwise) the Plaintiff, who lawfully purchased his Writ within the year without any default in him, shall lose his appeal, the year being past: And therefore in as much as by act in Law the Writ is discontinued, the Law gives a mean to revive it, to the end the party should not be without remedy: So if a man purchase a Formedon against the Parnor of the profits within a year after the title accrued, if before the return of the Writ, etc. the King demiseth his Crown, the Writ shall be removed into the Common Bench by Certiorari, and thereupon he shall have a Resummons for the mischief, etc. for otherwise he should be left without remedy, as is holden in 10 E. 4. 13. b. and 14. a. Co. l. 7. 39 b. 2. in Lillingstons' case. 38. If a man grant a rent-charge for life out of his land, Arreare of rent sued by Executors. with Proviso not to charge his person, and the rent is arreare, and the Grantor infeoff A. and the rent is arreare in his time, and after A. enfeoffs B. and the rent is also arreare in his time, and after the Grantee dies, his Executors shall have an action of debt against any of them for the rend 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 seems incongruous and against reason, The Tertenant may have an Assize for his own Land. that the tertenant who is already seized of the land, should have a Writ of Novel disseisin concerning the same Land: And yet in some cases (rather than he should be left without remedy) he shall have it: As if the Lord, etc. distrain his tenant so often, that he cannot manure his Land, in this case the tertenant may have an Assize, and the Writ shall be general, but he shall make a special Plaint, that the Lord, etc. Sovent fois distrains, etc. And the judgement shall not be, Quod querens recuperabit seisinam tenementorum praedictorum, for the Plaintiff himself is seized of the Land, but the judgement shall be, that he shall have and hold the Land, absque multiplici districtione, etc. So likewise, in casu quo quis poscit alterius separale, The tertenant shall have an Assize by the common Law: And the Statute of West. 2. ca 25. that gives an Assize 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 Assize for fishing in his several Piscary, or for Turbary, Common, etc. and the Writ shall be general, as appears by that Statute, but the Plaintiff in his plaint ought to show that the Defendant claiming common of pasture in his several, with his Cattles disturbs him, etc. And the judgement shall not be, that he shall recover the seisin of the tenements, etc. 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 judgement doth not pursue the Writ, which (regularly) it should, for than it should adjudge him the Land itself, which is needless, because he hath it already: Howbeit lest he should be without remedy, it gives him the Writ, by which Land is usually recovered. Co. l. 10. 127. b. 3. in Clubs case. 40. If the Lessee pay his rent voluntarily before the day, Part of the rend seisin. albeit this payment be voluntary, yet is it not satisfactory, as to satisfy 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 Assize 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 Seignory in gross, for which the Lord (for want of suitors) can keep no Court; in this case, the Tenant may sue in the King's Court without licence of the Lord, because, otherwise, he should be without remedy, and the Lord shall not have ●n action against the Tenant for so doing, nor any means to annul the Tenant's action; and in the end of the Writ th●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 parcel of his Manor in tail, to hold of him, and die, the Feme shall sue her Writ of right of Dower in the Court of the Heir of the Baron against the Donee in tail, and the Writ shall be directed to the heir; 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 heir of the Baron cannot have any Court, because he hath but a Seignory in gross; 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 term of life to a stranger, and die, 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 term of life in the Common Bench, because the Reversioner hath not any Court: And albeit this clause, viz. Quia B. Capitalis Dominus, etc. be put in the Writ; yet because the Lord hath one by a signory in gross, and hath not any demesne land to hold a Court, and albeit the Lord never remitted his Court, nor that there is any matter apparent, 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 justices there, is good, and they shall proceed thereupon, if the Lord hath not any Court to hold plea upon that matter: And it seems, 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, than he might sue a Writ of Prohibition to the justices of the Co. Ba. that they should not proceed upon that Plea: but otherwise not. A Quare Impe●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 chantry donative to the King or a Bishop, or the like, a Quare Impedit lieth, 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 allege a presentment in himself, or in his Ancestor, or in some other person, by whom he claims the Advowson: yet if a man by the King's licence make a Parish Church, or other chantry, which shall be presentable, etc. if he be disturbed to present thereunto, he shall have a Quare Impedit, without alleging any presentment in any person, & shall count upon the special matter: so likewise if one recover an Advowson by Writ of right against another, when the Church is void, he shall present, and if he be disturbed, he shall have a Quare Impedit, & allege presentment in him, against whom he recovered it, without alleging any other presentment: And a man shall have a Quare Impedit, and allege a presentment by his procurator, and it shall be good without alleging any presentment by himself, etc. for (otherwise) in these cases and the like he should be without remedy: So if an Abbot had been Parson imparsonee time out of mind, etc. And after the Abbey were dissolved, etc. In this case he of whom the Advowson was holden, shall present, and if he were disturbed, he might have had a Quare Impedit without alleging any presentment in the Count, but therein shall show the special matter F. N. B. 69. h. 45. One would think it a vain act for a man to procure a Replivin, A Replivin for cattles not detained. when his cattles are already come home of their own accord, or when he hath them again safe in his own possession: yet if the Lord take the cattles of his Tenant tortiously, and after the cattles come home again to the Tenant: in this case, albeit the Tenant is already possessed of them, yet shall he have a Replivin against the Lord for his cattles taken, and shall recover his damages for the tortuous taking of them: because (otherwise) he should be without remedy, for he cannot have an action of Trespass against his Lord for such unjust taking of his cattles F. N. B. 74. f. 46. In a Replivin it were somewhat preposterous, Withernam granted to the Defendant. that the Defendant should have Withernam against the Plaintiff, yet if the Defendant hath return awarded him, and he sues the Writ de Returno habendo, and the Sheriff return upon the Pluries, Quod averria elongata sunt, etc. In this case, the Defendant shall have a Scire facias against the pledges, etc. according to the Statute of West. 2. And if they have nothing, etc. then shall he have Withernam against the Plaintiff for the beasts of the Plaintiff: because (otherwise) he should be without remedy. F. N. B. 97. c. 47. A man cannot be properly said to recover Land from another, A Writ of Deceit. who never entered into the Land, nor ever had the actual possession thereof: And yet in a Precipe quod reddat, if the Sheriff return the Tenant summoned, where he was not summoned, whereby the Tenant upon the grand Cape returned loseth the Land by default, in this case the Tenant shall have a Writ of Deceit both against him that recovered, and also against the Sheriff for his false return, and by such Writ of Deceit the Tenant shall be restored to his Land again: And this Writ may be so brought by the Tenant after judgement, and before any Entry in possession made by the Demandant: For if the Tenant should not have this Writ before the Demandant enter, it may be the Demandant will not enter until the Summoners in the Precipe quod reddat, and the Summoners, Veyors, and Pernors in the grand Cape are all dead: And so should the Tenant be left without remedy to recover the Land: for, after the decease of all the Summoners, Veyors, and Pernors, he cannot have such a Writ, because, whether he were summoned or no, is to be tried by their examination, etc. F. N. B. 114. b. Vide Sup. 31. 48. Next to life, Merchant stranger. the person and estate of a man are much favoured in Law (Vide Max. 92.) so as at the common Law a Capias lay not but in case of Trespass, vi & armis, Felony, etc. yet if an English Merchant hath his goods taken away from him beyond Sea by a Merchant stranger, and there he prosecutes the Law to have justice done him and restitution, and cannot have it, and this matter is testified to the King in his Chancery by credible witnesses: upon such bare testimony (part in audita altera) if such Merchant stranger come afterwards into England with goods, both body and goods shall be arrested and detained, until the party grieved be satisfied all his damages, by Writ out of the Chancery, to be directed to the Officers or Merchants strangers of the place where he is, or hath goods: for (otherwise) the English Merchant should be without remedy: And such Writs may issue to the several Ports, where the Merchant stranger hath any goods, to each of them one, &c, F.N.B. 120 d. 49. Action of debt by the Ordinary. At this day the Ordinary shall not have an Action of Debt against the Creditor of the intestate, because that Action is now given to the Administrator by the Statute of 31 E. 3. 11. and the Ordinary may commit the Administration of the goods and credits, when he pleaseth: but before that Statute Fitzharbert seems to be of opinion, that he might, because it is requisite, some person should have that power: for (otherwise) the intestates debts could never have been recovered. 50. If the Lessor let the term by Deed pol, and afterwards out the Lessee, Writ of covenant against the Lessor. F. N. B. 145. b. the Lessee shall have a Writ of Covenant against the Lessor upon the Deed Pol, albeit he have no Indenture of it: But if a stranger which hath no right, out the Lessee, he shall not have a Writ of Covenant against the Lessor, because he hath remedy by action against the stranger: Howbeit if the stranger enter by eigne title upon the Lessee he shall have a Writ of Covenant against the Lessor, because (in such case) he hath no other remedy. Action against the Gaoler upon an escape. 51. If one be in Prison upon execution for debt, and makes an escape, Pl. Co. 36. a. 3. in Plaits case. in this case the Debtor is discharged of the debt, so as the Creditor can never renew his execution to take him again: And therefore in as much as after the escape the Plaintiff is without remedy against the Defendant in the first suit, the Common law, which is common Reason, provides that the Plaintiff should have an action of debt against the Gaoler, in whose default the execution of the Plaintiff was discharged; for (otherwise) the Common Law should be defective in that point, which must not be: And therefore will rather permit the Plaintiff to recover against the Gaoler, then that he should be left without remedy, albeit there never was any contract betwixt them. Land revested without entry a claim. 52. Regularly, when any man will take advantage of a Condition, Co. Inst. pars 1. 218. a. 3. Litt. S. 350. if he may enter, he must enter, and when he cannot enter he must make a claim: for that a Freehold and Inheritance shall not cease without entry or claim: And yet if Land be granted to a man for term of five years, upon condition, that if he pay the Grantor within the first two years forty pounds, that then he shall have fee, or otherwise but for the term of five years, and livery of seisin is made unto him by force of the Grant: In this case, if the Grantee pay not unto the Grantor forty pounds within the first two years, then immediately after the first two years the Fee and Franktenement shall be adjudged in the Grantor without entry, because the Grantor cannot presently after the two years enter upon the Grantee, Co. ibid. 21 a. 4. for that the Grantee hath yet a term of three years in the Land, and in as much as he cannot enter, he shall not be driven to make any claim to the Reversion: For seeing by construction of Law, the Freehold and Inheritance (if the Condition had been performed) was to pass Maintenant out of the Lessor, by the like construction the Freehold and Inheritance by the default of the Lessee shall be revested in the Lessor without entry or claim: There is the same Law of a Grant by Devise, Lease and Release, Bargain and Sale by Deed indented and enrolled, etc. or whether it be of an Advowson, Reversion, Remainder, Rent, Condition, or any other thing that lies in Grant. Feme recovered without Baron. 53. The Husband is the Wife's head, Co. ibid. 352. b. 4. Litt. S. 668. and regularly she can do nothing without him; and yet in an action of Waste if the Baron make default to the great Distress, the Feme (upon prayer) shall be received and shall show the whole matter, and how she is in her Remitter, and shall bar the Lessor of his Action: And albeit this privilege be given the Feme by Westm. 2. cap. 3. yet ancient Authors, who wrote before that Statute, do speak of such a kind of receipt at the Common Law; for otherwise the Feme would be without remedy. Judgement upon a dead ●an. 54. It seems irregular, Co. ibid. 390. b. 4. that judgement should be given upon a man already dead: And yet in 8 Ed. 3. Judgement 225. the Defendant in an appeal of death did wage Battle and was slain in the Field, yet judgement was afterwards given that he should be hanged, and the justices said, such judgement was necessary; because otherwise the Lord could not have a Writ of Escheat, and so would be without remedy. Co ibid. 393. a. 4. 55. Regularly, Two Recoveries upon one warranty. there cannot be two recoveries in value upon one warranty, and yet in some special cases rather than a man shall be without remedy, there shall be two such recoveries; for if a disseisor give lands to the Husband and Wife and to the heirs of the Husband, the Husband alieneth in fee with warranty and dyeth, the Wife bringeth a Cui in vita, the Tenant voucheth and recovereth in value, if after the death of the Wife, the Disseisee bring a Praecipe against the Alienee, he shall vouch and recover in value again. Co. l. 8. 61. a. 3. in Beechers case. 56. In all actions real and personal, No amerciament against the Plaintiff. if part be found for the Demandant or Plaintiff, and part against him, or all or part against the one Tenant or Defendant, and nothing or but part against the other, the demandant or Plaintiff shall be amerced: Howbeit, in Trespass of Battery against Baron and Feme, supposing the battery to be done by them both, and the Feme is only found guilty, etc. and the Baron acquit, yet (in this case) the Plaintiff shall not be amerced, because the Plaintiff (in such case) can have no other Writ, and therefore he shall be excused, Vide Max. 149. 41. 57 Vide 143. 15. Dyer, 8. a. 28. H. 8. Pl. 11. & 16. 58. In a Writ of Ward, the Writ supposeth that B. held the land, etc. Variance inter writ and count, no error. and the Count declareth that B. was but Cestuy que use, so as the Feoffees held the land, and not B. Here, this variance is no Error, because the Statute of 4 H. 7. which gives the wardship of Cestuy que use appoints no special Writ for it, and therefore the general Writ and special Count sufficeth; for otherwise the Lord should be without remedy, which the Law will not permit: So in a Warrantia Cartae, the words of the Writ are Unde cartam habet, and yet the Count may be upon warranty for Homage Ancestrel. Dyer 56. 17. 35 H. 8. 59 A Writ of Right (Quia Dominus remisit Curia, Feme Covert. etc.) was brought by Baron and Feme, the Feme being under age, the Feme appears by Procheine amie, who was admitted by the Court, and upon the Tenant's voucher and default of the Vouchees she had judgement final, etc. without her Husbands appearing in the action. Vide supra 10. Dyer 206. 11. 3, 4. Eliz. 60. A man makes a Lease for years to begin at a day to come, Waste. and before the day the reversion is granted over divers times, afterwards the Termor enters and makes waste, and the fourth Assignee bring waste, and counts of the assignment and tenure of each of them, to whom the Land came after the Lease, albeit there was no tenure before the commencement of the Lease, and it was held good, and so it is also in the Register. Hob. 3. Pincombes case. 61. Albeit (regularly) a warranty ought only to be annexed to a freehold, and not to any lower estate, Warranty is a covenant. yet when the breach or impeaching is not of a Freehold, but of a chattel, Viz. of a Lease for years, for which there can neither be Voucher, Rebutter, nor Warrantia Cartae, an action of Covenant may be grounded upon such a Warranty: As if A. demiseth the Monnor of D. to B. for one and thirty years, and afterwards grants it to C. in possession for life, with warranty against him and his Ancestors, C. may bring an action of Covenant upon that Warranty, and shall recover damages thereupon. See the Book at large. Hob. 48. Coxes case. 62. Lands in Ancient demesne, where the possession is stirred, Ancient demesne. cannot be recovered but within their own Franchise or jurisdiction, and this is regularly true; yet actions at the Common Law, upon which no remedy can be had in ancient demesne, do lie in the King's Court, though they stir the possession, as in a Quare impedit, 7 H. 6. 35. because they cannot write to the Bishop: And the reason is, because the Common Law being as ancient as their privilege is, will not endure that by pretence of Privileges there should be a Failer of Original Right, as that case is: Howbeit, of new rights or remedies brought in by Statutes (which are not presumed to intent their prejudice) it is otherwise. 146. It hateth Wrong. Disparagement of the heir punished. 1. Co. Inst. pars 1. 80. b. 2. The Law doth hate and abhor the odious and corrupt dealing of any man, and never lets it go unpunished: And therefore in case of a Ward, where he is disparaged by his Guardian, the Law doth so abhor the odious dealing of the Guardian, to whom the custody of the Heir is committed, and his horrible profanation of honourable Marriage, the only ligament of men's Inheritances, that albeit ●he Heir at the age of fourteen may descent to it, and so dissolve it by such his disagreement, yet the Law inflicted upon the Guardian for his attempt, the loss of the wardship from such disagreement, according to the Statute of Merton, cap. 6. being but an affirmance of the Common Law. No breaking of Enclosures for rent. 2. If a Lord of a Manor, or, etc. Co. ibid. 161. a. 3. come to his Tenant's land to distrain for rent arreare, and he finds the doors or gates shut, so that he cannot take the Tenant's goods or cattles without breaking open the doors, gates, or other enclosures: In this case, albeit the Law gives him power to distrain, it doth not licence him to break open any doors, gates, or other enclosures to distrain, for by so doing he becomes a wrong doer: Howbeit, if he were before actually seized of the rent, if they be shut on purpose to prevent him to distrain, it amounts to a disseisin of the rent. A Disseisor ●ay be no Tenant of the Land. 3. If divers persons disseise another to the use of one of them, Co. ibid. 280. b. 3. or of another that assents; in this case, albeit he only, to whose use the disseisin is made is the sole Tenant of the land, yet the Law doth so abhor wrong, that the Coadjutors, Councillors, Commanders, etc. thereunto, are all Disseisors; and therefore albeit the Tenant (whether he be a Disseisor or no) die, yet an Assize lieth against the Coadjutor, Councillor, Commander, etc. 50 E. 3, 2. The Demandant and others in a Praecipe did disseise the Tenant to the use of the others, and the Writ did not abate, for the Demandant was a Disseisor, though not Tenant of the land, but only a Coadjutor, and therefore an Assize lieth against him, in respect of the wrong done by him, as aforesaid. A man disseiseth Tenant for life to the use of him in the reversion, and after the Reversioner agreeth to the disseisin: In this case it is said, That the Reversioner is a Disseisor in fee, because by the disseisin made by the stranger, the reversion was devested, which (say they) cannot be reversed by the agreement of the Reversioner, for that makes him a wrong doer, and therefore no relation of an estate by wrong can help him. Release to one Disseisor. 4. A man seized of Lands is disseised by two, Litt. S. 306. Co. ibid. 194. a. 3. Litt. S. 472. & S. 522. and releaseth all his right to one of the Disseisors: in this case, the Releasee shall hold out his companion, because the two Disseisors being in by wrong and against the Law, when one of them hath a lawful interest by the release of the Disseisee, the wrong vanisheth and is utterly extinct, for the Releasee being seized per my & per tout, is thereby capable of the whole estate: It is so also of two joint Abators or Intruders, which come in merely by wrong; for by operation of Law, presently upon the delivery of the Release, the whole Freehold and Inheritance is vested in the Releasee, and all the estate that the other Disseisor, Abator, or Intruder hath who hath devested; because right and wrong cannot consist together, but the wrongful estate giveth place to the rightful. Vide 141. 13. Co. ibid. 239. a. 1. 5. No estate gained by wrong makes a degree, An estate by wrong in degree. whereupon to ground a Writ of Entry in the per & cui, but it ought to be upon a lawful descent or alienation; And therefore an Abatement, intrusion, or disseisin upon disseisin make no degree. Co. ibid. 245. a. 4. 6. If an Infant make a Feoffment in fee, By entry of a stranger an estate gained by wrong devested. a stranger (of his own head) cannot enter to the use of the Infant, for the estate is upon lawful conveyance, though voidable, but where an Infant or a man of full age is disseised, an Entry by a stranger of his own head is good, and vesteth presently the estate in the Infant or other disseisee: So if Tenant for life make Feoffment in fee, albeit that be a lawful Conveyance, yet because such a Feoffment is a wrong to the Reversioner, by the Entry of a stranger (of his own head) for a Forfeiture in the name of the Reversioner, the estate shall be immediately vested in the Reversioner. Co. ibid. 257. b. 1. 7. In a Writ of forcible Entry upon the Statute 8 H. 6. 9 Triple costs by the Stat. of 8 H. 6. cap. 9 Albeit the Statute gives only triple damages to the party grieved; yet he shall also have triple costs allowed him, if he recover: for although the Statute be penal, and (in that respect) should be favourably expounded, yet in as much as it is a wrong of a high nature, triple costs are also interpreted to be given by it. Co. ibid. 278. b. 2. 8. If an Alien be a Disseisor, and obtain Letters of denization, Aliens feoffment not good. and then the Disseisee releaseth to him: in this case, the King shall not have the Land: for the release hath altered the estate, and it is as it were a new lawful purchase: It is otherwise if the Alien had been the Feoffee of a Disseisor, for in such case, he claims under one, that gained the estate by wrong. Litt. S. 697. Co. ibid. 365. a. Co. ibid. 366. b. 2. Litt. S. 698. Co. ibid. 366. b. & 367. a. 9 Before the Statute of Gloucester cap. 3. 6 E. 1. Warranty commencing by disseisin, abatement, or intrusion, no bar. All legal warranties both lineal and collateral were a bar to the heir: but at the common Law (before that Statute) warranties, that did commence by disseisin, were never any bar to the heir, because they did commence by tort. viz. by disseisin: For (regularly) the Conveyance, whereunto such warranty is annexed, doth work a disseisin: As if the Father or other Ancestor be Tenant of the Sons or Heirs Land for years, at will, by Elegit, Statute-merchant, or Statute-staple, and the Father or other Ancestor makes a Feoffment in fee of the Land to a stranger with warranty, this warranty shall not bar the Heir, unless he have other Lands, that may be assets, by descent from the same Father or other Ancestor respectively, in all which cases the disseisin is immediately to the heir: Howbeit in some cases, albeit the disseisin be not done immediately to the heir, yet the warranty shall not bar him: As if the Father be Tenant for life, the Remainder to the Son in fee, the Father by covin and consent maketh a Lease for years, to the end that the Lessee shall make a Feoffment in fee, to whom the Father shall release with warranty, and all is executed accordingly, the Father dyeth, this warranty shall not bind, albeit the disseisin was not done immediately to the Son, for the Feoffment of the Lessee is a disseisin to the Father, who is particaps criminis: So it is, if one brother make a gift in tail to another, and the Uncle disseise the Donee, & enfeoffeth another with warranty, the Uncle dyeth, and the warranty descendeth upon the Donor, and the Donee dyeth without issue: here, albeit the disseisin was done to the Donee, and not to the Donor, yet the warranty shall not bind him. The Father, the Son, and a third person, are joint-tenants in fee, the Father maketh a Feoffment in fee of the whole with warranty & dyeth, the Son dyeth, the 3. person shall not only avoid the Feoffment for his own part, but also for the part of the son, & he shall take advantage that the warranty commenced by disseisin, though the disseisin be done to another. If a man commit a disseisin to the intent to make a Feoffment in fee with warranty, albeit he make the Feoffment many years after the disseisin, yet because the warranty was done to that intent and purpose, the Law shall adjudge upon the whole matter, and by the intent couple the disseisin and warranty together: And all this, because such disseisins commence by wrong: So it is also of a warranty that commenceth by abatement or intrusion (that is when the abatement or intrusion is made of intent to make a Feoffment in fee with warranty) for neither shall that bind the right heir no more than a warranty that commenceth by disseisin, because they do also commence by wrong: Likewise, if the Tenant dyeth without heir, and the Ancestor of the Lord enter before the entry of the Lord, and make a Feoffment in fee with warranty, and dyeth, this Warranty shall not bind the Lord, because it commenceth also by wrong, being in the nature of an Abatement, Et sic de similibus. An unlawful Fine not suffered to pass. 10. This exception in the Statute of Gloucester cap. 3. 6 E. 1. Litt. S. 729. 730, 731. Co ibid. Co. ibid. 383. a. 3. (whereof no Fine is levied in the King's Court) are to be understood lawfully levied; And therefore if the Baron will levy a Fine of the Femes Land without the Feme, the judges (being conusant thereof) ought not to take it; because it worketh a wrong to the Feme, and if it be with warranty to the heir also: Neither (indeed) ought the judges to take a Fine, which worketh a wrong to a third person. D●●●ni pro te●pore, difference. 11. Domini pro tempore of a Copyhold Manor, Co. ibid. 58. b. 1. Co. l. 4. 24. p. 29. Eliz. inter Rouse and Arteis. who are in by lawful title, though it be only for years, by Statute Merchant, Staple, or Elegit, at will, for wardship in Chivalry, etc. may hold Courts, make admittances, and grant voluntary Copies of ancient Copyhold lands, which come into their hands, and such voluntary grants by Copy made by such particular Tenants, as aforesaid, shall bind him that hath the Freehold and Inheritance, because all these be lawful Lords pro tempore: Also Disseisors, Abators, Intrudors, Tenants at sufferance, etc. of such Manors, who come in by tort, and hold by defeasible titles, may hold Courts, and make admittances of ancient Copyhold-lands which shall stand good against them that right have: because these are lawful acts, and they are compellable to do them: But voluntary Grants by Copy made by Disseisors, Abators, Intrudors, Tenants at sufferance, or others, that have defeasible titles, shall not bind the Disseisee, or others, that right have, because they come in by tort, as aforesaid. Livery of part not good. 12. If Feoffment be made of a Message, cum pertinentijs, Co. l. 2. 32. a. 1. in Beltisworths' case. the Lessor de parts with nothing thereby but only that which is parcel of the house, viz. the buildings, curtilage, and garden: Howbeit the keeping of the possession of a house, or any parcel of the thing demised against tortuous entry and expulsion by the Lessor, is not only possession of all, that may pass by the name of Message, or of such parcel, but of all the lands, etc. which are demised therewith by one entire demise in the same County: And therefore, if a Lease for years be made of an house, a close, and divers other Lands, and the Lessor makes Livery of the Close, in the name of the whole in Lease, the Lessee being then in the house, and no body for him in the close: In this case, the Livery is void, for the possession of the house by the Lessee at the time of the Livery made is possession also of all the Lands, etc. contained in the demise: because it is to preserve the first right and interest of the Lessee against force, and the tortuous entry of the Lessor: It is so also, albeit the Lessee had then demised that close by will: but otherwise, if he had demised it for years; for that had made a severance of it from the rest of the Message and Lands demised, Election lost by wrong doing. 13. If one enfeoff another of two acres, Co. l. 2. 37. a. 4. in Sir Rowland Heywa●ds case. to have and hold the one for life, and the other in tail: In this case, the Feoffee hath election to choose, which he shall have for life, and which in tail: Howbeit, if before his election he makes Feoffment in fee of both the acres: In such case, the Feoffor shall enter into which of the acres he pleaseth for the Forfeiture, for the Feoffee by his own act and the wrong done to the Feoffor hath lost his election. Co. l. 2. 55. b. 4. in Bucklers case. 14. Tenant for life, leases for years, and then grants to A. Estopell to plead parts finis nihil habuerunt. for life from a day to come, the Lessee for years' atturnes after the day, the term expires, and A. enters and leases at will, the Lessee for life levies a Fine Come ceo, etc. to the Tenant at will, and then the Remainder enters for the Forfeiture: In this case, the Fine levied to the Tenant at will is a Forfeiture, and the Remainder may thereupon well enter upon the Tenant at will, and thereby charge the disseisin; And here, albeit neither the Tenant for life, nor the Tenant at will have any thing in the Land (for the interest of the Tenant for life is passed away to A. and the title of the Tenant at will, is of little or no consideration in Law, and also vanisheth, because derived from A. who had no interest, because granted in futuro, and therefore void) yet both of them are estopt to say, Quod partes finis nihil habuerunt; And of such estoppels, which are by matter of Record, and trench to the wrong and disherision of those in Remainder or Reversion, they shall take advantage, albeit they are not parties thereunto; as of an Aid prior of a stranger, or by acceptance of a Fine Sur conusans de droit come ceo, etc. albeit the Reversioner or Remainder be not party to the Record, yet he is privy in estate to take advantage of a Forfeiture by any matter of Record done to his disherison. Co. l. 5. 13. b. in the Countess of Shrewsburies' case. Dyer, 122. b. 15. Tenant at will is not chargeable with permissive waste, Tenant at will chargeable with voluntary waste. as negligently suffering the house to be burnt, or the like: but if Tenant at will commit voluntary waste, viz. in destroying the houses, felling the wood, or the like, in such case a general Action of Trespass lieth against him (Vide Litt. fol. 15.) for when Tenant at will takes upon him to do unlawful Acts, and such as none may do but the owner of the Land, they amount to a determination of the will, and of his possession, and the Lessor (in such case) shall have a general Action of Trespass without any Entry: 15. E. 4. 26. So if the Bailee of goods, as a horse, etc. kill them, the Bailor shall have a general Action of Trespass, for by the kill the privity is determined: And (in some cases) when confidence is put in the party, if any wrong be done, an Action upon the Case may also lie for negligence, albeit the Defendant come to the Possession by the Act of the Plaintiff, as where a man delivers a Horse to another to be safely kept, 12 E. 4. 13. and the Defendant equum illum tam negligenter custodirit, quid ob defectum bonae custodiae Interijt, here an Action upon the case will lie: So it is also against a Shepherd, that keeps any Sheep so negligently, that some of them are thereby drowned, or otherwise destroyed. Co. l. 5. 14. b. 2. in the cases of Ecclesiastical persons. 16. Regularly, the King shall not be bound by an Act of Parliament, Statutes to present fraud, bind the King. unless he be therein particularly named, and yet all Statutes, which are made to suppress wrong, and to take away fraud shall bind the King, albeit he be not named in them by express words, for Religion, Justice, and Truth are the sure supporters of the Diadems of Kings: And therefore it is agreed in 35 H. 6. 60. that the King shall be bound by the Statute of West. 2. cap. 5. which makes provision against tortuous usurpations, although the King be not named in the Act: So in the Lord Barkleys' case (reported by Master Plowden) if a gift in tail be made to the King, he shall not alien to defraud him in the Reversion or his Issues, but is bound by the Statute of West. 2. de donis conditionalibus. Co. l. 5. 27. b. 2. in russel's case. 17. An Infant Executor brings an Action of Trover and Conversion for a Chest with divers sums of money and Iuels in it, A release of an Infant Executor. the Defendant pleads a release of the Plaintiff: In this case, albeit a release by him upon payment of money, or delivery of a Legacy, and all Acts in pursuance of his office of Executor are strong and good, yet a release (in this case) is adjudged not valid to bind him; because first, it would amount to a devastavit, and then the infant should be chargeable to answer it of his own goods: and secondly, it would be a wrong, which an infant by his release can never do. Restraint by condition, if there be a tort. 18. If a man make a gift in tail, Co. l. 6. 41. b. 1. in Sir Anthony Mildmays cases. Co. Inst. pars 1. 223. b. 4. upon condition that he shall not alien, this condition to some intent is good, and to other some void; for if he make a Feoffment in fee, or any other estate, whereby the Reversion is discontinued tortiously, the Donor shall enter for the condition broken; for every act, that is prohibited by Law, or maketh a tort, a man may prohibit by condition (Vide 10 H. 7. 11.) Howbeit if in such case the Donee suffer a common Recovery, the condition cannot by the Law extend to it, because that is lawful, whereas the other is tortuous and against Law: So if Feoffment be made to Baron and Feme in fee, upon condition, that they shall not alien: in this case, they are not thereby restrained to alien by levying a Fine both of them together, because that is lawful and incident to their estate; but they cannot alien by Deed, because that is tortuous and against Law: likewise, if a man enfeoff an Infant in fee, upon condition, that he shall not alien, this shall not restrain him to alien at his full age, for that were repugnant to the liberty, that the Law gives in case of Fee-simple (according to Litt. fo. 84. a.) Howbeit such a condition shall restrain him from aliening during his nonage, for that is tortuous and against Law, and thereupon the Feoffor shall enter, etc. Co. l 6. 70. a. 1. in Sir Moyle Finches case. Right cannot incorporate with wrong. 19 There is such an extreme enmity betwixt an estate gained by wrong, and the ancient right, that the right cannot possibly incorporate itself with an estate gained by wrong, but it will rather suffer extinguishment, then pass with it: And therefore if the Donee be disseised, and the Donor disseise the Disseisor, and make Feoffment in fee, and the Donee make regress, the Donor shall not have the Reversion but the Disseisor; for there is a diversity betwixt an estate and a right, as where the Reversioner disseiseth the Donee or Lessee for life, and then makes Feoffment in fee, upon regress of the Donee or Lessee, the Reversion is left in the Feoffee, and this is by force of the Feoffment, but where the Donee or Lessee is disseised, here the Reversioner hath but a right, which he cannot transfer to another; and therefore when he disseiseth the Disseisor and makes Feoffment, this passeth the estate, which he gained by Disseisin, and extinguisheth his ancient right, which he could not transfer to another, and then the first Disseisor hath the first possession, and a better right then the Feoffee of the Reversioner, because he comes in under him, who disseised the first Disseisor, and hereby the ancient right is extinct: for the Reversioner cannot have it, because that would be repugnant to his own grant, neither can the Feoffee have it, because a right cannot be transferred, and the Law will not (in this case) suffer the Disseisor to have it, because right and wrong cannot cohabit together, and therefore it shall rather extinguish: So likewise if the Disseisee disseise the heir of the Disseisor, here he gains the estate by wrong, viz. by Disseisin, having the ancient right; in this case, if he make Feoffment in fee to another, he thereby passeth away the estate which he gained by Disseisin, and extinguisheth his ancient right, so that the heir, when he reenters, shall retain the Land as well against the Feoffor as against the Feoffee. A Disseisor ●●e only wrongdoer. 20. If a Disseisor make Feoffment in fee, Co. l. 11. 51. a. 4. in Rich. Lifords' case. and the Feoffee cuts down Trees, Grasse, grain, growing upon the ground, etc. if the Disseisee re-enter, he shall not have an Action of trespass vi & armis against the Feoffee, that came in by title; so it is also if he had made a gift in tail or a lease for life or years of the Land, because they come in by title, but in such case the Disseisee shall recover all the mean profits against the Disseisor, as the Disseisee (in such cases) should have recovered damages against the Disseisor in an Assize at the common Law before the Statute of Gloucester cap. 1. There is the same Law also, if the Disseisor be disseised, an Action of Trespass doth not lie against the second Disseisor, for he may come in by title, and if he should be charged, he might then be doubly charged, viz. both by the Disseisee and also by the first Disseisor; and this fiction of Law, that the Franktenement hath always continued in the Disseisee (which ought to be the ground of the Action of Trespass) shall not have relation to make him, that comes in by title, or upon a second Disseisin to be a wrongdoer, against whom an Action of Trespass may be brought: Howbeit, if one disseise me, and during the Disseisin he cuts down the Trees, Grass, grain, etc. and after I re-enter; in this case, I shall have an Action of Trespass vi & armis against him for the Trees, Grass, Graine, etc. for after my regress the Law (by fiction) as to the Disseisor and his Servants supposeth that the Franktenement hath always continued in me, and he only (by construction of Law) shall be adjudged the wrongdoer, which fiction cannot extend to him that comes in by title, or upon a second Disseisin, etc. Co. l. 11. 72. b. 4. in Magdalen College case. 21. The Statute of West. 2. cap. 5. The King bound. The law preserves right. Quod quotiescunque aliquis jus non habens tempore hujusmodi custodiarum, etc. presentaverit, etc. which was made to suppress wrong, shall bind the King: And therefore it is well said in 24 E. 3. 41. That the Law is reason and equity to do right to all, and to preserve men from wrong and mischief, for the Law will never make construction against Law, Equity and Right. Pl. Co. 64. b. 3. ●in Dive and Maninghams' case. 22. Albeit the Statute of 23 H. 6. 10. Obligation made to defend one for a wrong void. (which prohibits Sheriffs to take security of persons taken in execution, to the end to let them go at large) had not been made, yet a Bond had been void at the Common Law: For such a Prisoner by the Common Law is not main parnable, and then the letting of him go at large by Mainprize is a wrong, and a thing done against the Law, and (by consequent) the Obligation is made to aid the Sheriff for a wrong done by him, in which case (even by the order and course of the Common Law) the Obligation is void: So if an Obligation be made to save one harmless for killing such a man, or to commit such a Trespass, etc. in such cases, the Obligation is void by the Common Law: And therefore if the Plaintiff in a Replegiare hath a Withernam out of the Common Pleas, by force whereof one of the Sheriff's Bailiffs takes four beasts in the name of Withernam, and after delivers them again to the Defendant, and the Defendant is bound to save the Bailiff harmless for the fource beasts, who afterwards being damnified, brings his Action of debt upon the Obligation: In this case (as it held by the better opinion in M. 2. H. 4. fol. 9 Fitz. Obligation 13. and Br. 20.) the Obligation is void, for the Writ of Withernam is, Capias in Withernam, etc. et ea detineas quousque, etc. so as the Sheriff ought to have kept the Cattles, and not to have delivered them to the party, for that was a wrong, and therefore the Obligation made to defend him for that wrong is void. 147. So as none shall take benefit or advantage of their own wrong. Litt. S. 19 Co. Inst. pars 1. 23. a. 3. 1. Upon a gift in tail the Rule of Law is, Tenure by Knight-service. that the Donees and their issues shall do to the Donor and his heirs such services, as the Donor doth to his Lord Paramont: And yet if a man seized in right of his wife of Land holden by Knight-service in tail, that Land generally, the Donee shall not hold of him by Knight service; because his wife held the land, and he had nothing but in her right, and (in that case) the Baron having gained a new Reversion by wrong shall not take advantage of his own wrong, but such a Donee shall only hold by Fealty, which is incident to all tenors. Rent-charge apportioned. 2. Regularly, a whole Rent-charge is extinct by the purchase, Co. ibid. 148. b. 4. or otherwise gaining of the Possession of part of the Land, out of which it is issuing: And yet in some cases a Rent-charge shall not be wholly extinct, where the Grantee claimeth from and under the Grantor: As if B. maketh a Lease for life of one Acre to A. and A. is seized of another Acre in fee, A. granteth a Rent-charge to B. out of both the Acres, and doth waste in the Acre which he holdeth for life, B. recovereth in waste: In this case, the whole Rent is not extinct, but shall be apportioned, and yet B. claimeth the one Acre under A. and the reason hereof is, for that no man shall take advantage of his own wrong, Nullus commodum capere potest de injuria sua propria: for seeing the waste was committed by the act, and wrong of the Lessee, he shall not take advantage thereof to extinguish the whole Rent: And the whole Rent cannot issue only out of the other Acre, because the Lessor hath the one Acre under the estate of the Lessee, and therefore in such case it shall be apportioned: So it is also if A. had made a Feoffment in fee, and B. had entered for the Forfeiture, in that case also the Rent shall be apportioned, and not wholly extinct: causa qua supra. Re-disseisin against the feoffee. 3. A re-disseisin doth lie against the Redisseisor, Co. ibid. 154. b. 2. but likewise against his Feoffee: for, otherwise the Redisseisor might prevent the Plaintiff of his Re-disseisin, and so take advantage of his own wrong. Challenge to the Array. 4. If the Plaintiff or Defendant have an Action of debt against the Sheriff, this is a good cause of challenge to the Array, Co. ibid. 159. a. 2. but albeit the Sheriff hath an Action of Debt against either party, this is no good cause of challenge: for, the failer of paying a debt to the Sheriff is a wrong, and against Law, and if either party might challenge for such cause, he should take advantage of his own wrong. Cattles dis●ained out of 〈◊〉 fee, 5. If the Lord come to distrain Cattles, Co. ibid. 161. a. 2. Co. L. 9 22. a. 3 in the cases of Avowry. 44 E. 3. 20. per Thorpe. which he seethe then within his fee, and the Tenant or any other (in his behalf) to prevent the Lord to distrain, drive the Cattles out of the Lords fee into some other place, yet may the Lord freshly follow, and distrain the Cattles, and the Tenant cannot make rescous, albeit the place, in which the Distress is taken, is out of his fee: for if by such a shift the Tenant might prevent the Lord of his Distress, he should take advantage of his own wrong And therefore in such case in judgement of Law the Distress is taken within his fee, and so shall the Writ of Rescous suppose, in case the Cattles be rescued: but it is otherwise of cattles to be distrained for Damage-feasant, for they must be Damage-feasant at the time of the Distress. Condition ab●●●re, Bond not valid. 6. If a man make a Feoffment in fee upon Condition, Co. ibid. 206. b. 2. that the Feoffee shall re-enfeoff him before such a day, and before that day the Feoffor disseise the Feoffee, and hold him out by force until the day be passed: In this case, the estate of the Feoffee is absolute, for the Feoffor is the cause wherefore the condition cannot be performed, and therefore shall never take advantage for the non-performance thereof: So it is also if A. be bound to B. that J. S. shall marry J. G. before such a day, and before the day B. marry with J. he shall never take advantage of the Bond, for that he himself is the mean, that the Condition could not be performed. Obligation 〈◊〉. 7. If a man be bound to A. in an Obligation to enfeoff B. (who is a mere stranger) before a day, Co. ibid. 209. a. 2. the Obligor doth offer to enfeoff B. and he refuseth: In this case, the Obligation is forfeit, for the Obligor hath taken upon him to enfeoff him, and his refusal cannot satisfy the Condition: but if the Feoffment had been by the condition to be made to the Obligee, or to any other for his benefit or behoof, a tender and refusal shall save the Bond, because he himself (upon the matter) is the cause, wherefore the Condition could not be performed, and therefore shall not take advantage thereof to give himself cause of Action thereby. Co. Inst pars 1. 210. b. 3. Litt. S. 340. 8. If Feoffment be made upon Condition to pay the Feoffee twenty pounds upon a certain day: In this case, Tender excused. the Feoffor is bound to find out the Feoffee, and to make tender thereof unto him if he be in England: but if he be out of the Land, he is not bound to seek him, nor to go out of the Realm unto him: Neither shall the Feoffee take advantage of his own absence, but the Feoffor shall enter into the Land, as if he had duly tendered it according to the Condition, because the Feoffee himself was the cause, that the Feoffor could not make due tender at the day limited for the payment thereof. Litt. S. 355, 356. Co. ibid. 220. b. 4. ● 9 If Feoffment be made upon condition to enfeoff another, Disability. or to make a gift in tail to another, etc. And the Feoffee before the performance of the Condition enfeoffs a stranger, or makes a Lease for term of life: In this case, his Feoffee or Lessee shall not have the Land, for than he should take advantage of his own wrong, but the Feoffor and his Heirs may enter, because the Feoffee hath disabled himself to perform the Condition: So it is also if he had made but a Lease for years, for the estate ought to be in the same plight at the time of the re-enfeoffment, that it was in at the time, when he took the estate. Litt. S. 383. Co. ibid. 236. a. 4. 10. If Lands be devised to be sold by his Executor; in this case, Laches. the Executor is bound by the Law to sell them as soon as he can; for (otherwise) he shall take advantage of his own Laches. Co. ibid. 238. b. 2. 11. If there be Grandfather, Father, and Son, and the Son disseiseth one, and enfeoffeth the Grandfather, who dyeth seized, Grandfather, Father, and Son. and the Land descendeth to the Father; Now is the Entry of the Disseissee taken away; but if the Father die seized and the Land descend to the Son; In this case, is the Entry of the Disseisee revived, and he may enter upon the Son, who shall take no advantage of the descent, because he did the wrong unto the Disseisee: And the Law were the same, if the Land had not descended to the Son, but the Son had been in by purchase, as by Feoffment in fee, in tail, or for life, from his Father, yet may the Disseissee enter upon him, for he shall in no kind take advantage of his own wrong. Litt. S. 395. Co. ibid. 242. a. 1. 12. If a Disseisor enfeoff his Father in fee, The like. and the Father die seized, whereby the Land descends to the Disseisor, as his Son and Heir, etc. In this case, the Disseisee may well enter upon the Disseisor, notwithstanding the descent, because he being particeps criminis, shall take no advantage of his own wrong; for albeit a descent be cast, and the Entry of the Disseisee taken away, yet if the Disseisor cometh to the Land again, either by descent or purchase of any estate of , the Disseisee may enter upon him or have his Assize against him, as if no descent or mean conveyance had been, causa qua supra. Co. ibid. 247. a. 3. in Beverleys' case. Co. l. 4. 125. a. 3. 13. The heir of one, that is non compos mentis, (as an Idiot, A Drunkard. Lunatic, etc.) shall after his Ancestors death avoid a descent: but neither a drunkard himself nor his heir shall avoid it: for, albeit some are of such a beastly humour to be (in a manner) always in that condition, yet neither he nor his heir shall thereby avoid a descent cast: because than his drunkenness would be an advantage to him or his heir, which ought not to be, but doth aggravate his offence, he being indeed to be reputed rather Voluntarius Daemon, then non compos mentis. Profession makes no descent. 14. Profession in Religion shall not make a descent to take away Entry; because it is the Disseisors own act, Litt. S. 410. Co. ibid. 248. b. 4. whereof neither he nor his heir shall take advantage: So if a man be Tenant or Defendant in a real or personal Action, and hanging the Suit, the Tenant or Defendant entereth into Religion, by this the Writ shall not abate; Causa qua supra, there is the same Law of a Resignation, etc. but not of a Deposition or Deprivation, because he is expelled by judgement, and yet his offence, etc. was the cause thereof: Sed in presumptione legis, Judicium semper redditur indivisum. Baron and Feme waste. 15. If Land be given to a Feme sole for life, Litt S. 525. Co. ibid. 299. b. 3. and after she take Baron, and the Reversioner confirms the estate of the Baron and Feme to hold for their two lives; here the Baron hath an estate for life in the Land by way of Remainder (as Littleton terms it, S. 525.) or (as others call it) by way of Reversion; but however it enures to him by way of increase or enlargement of estate, or otherwise, he is seized of an estate for life in the Land: And yet in this case, if the Husband commit waste, an Action of waste shall lie against Husband and Wife, notwithstanding the mean Remainder, because the Husband himself committeth the waste and doth the wrong, and therefore shall not excuse himself for his committing of waste, in respect he himself hath the Remainder, no more than if a man leaseth to A. during the life of B. the Remainder to him during the life of C. if he commit waste, an Action of waste shall lie against him. Forfeiture. 16. A. Tenant for life, the Remainder to B. for life, Co. ibid. 302. b. 3. the Remainder in tail, the Remainder to the right heirs of B. A. and B. join in a Feoffment by Deed; here, albeit it may be said, that this is the Feoffment of A. and the confirmation of B. and consequently he in the Remainder in tail cannot enter for the forfeiture during the life of B. yet because B. joined in the Feoffment, which was tortuous to him in the Remainder in tail, and is particeps criminis, they have both forfeited their estates, and he in the Remainder in tail shall enter for the forfeiture. Covin with a Diseisor, on ●●mitter. 17. If the Baron discontinue the Land of the Feme, Litt. S. 678. Co. ibid. 357. b. 2. and the Discontinuee is disseised, and after the Disseisor lets the Land to the Baron and Feme for life: in this case the Feme is remitted, albeit the Baron were (in this case) of covin with the Disseisor, but if the Baron and Feme were of Covin, that the Disseisin should be done, in that case the Feme is not remitted, for she shall not any way take advantage of her own wrong: So if Tenant in tail and his issue disseise the Discontinuee to the use of the Father, and the Father dyeth, and the Land descendeth to the issue: In this case, the issue is not remitted against the Discontinuee, in respect he was privy and party to the wrong whereof therefore he shall not take any advantage, but in respect of all other he is remitted and shall deraigne the first warranty. Covin. 18. A. and B. joint-tenants are entitled to a real Action against the Heir of the Disseisor, A. causeth the heir to be disseised, Co. Inst. pars 1. 357. b. 3. against whom A. and B. recover and sue execution: In this case, B. is remitted, for that he was not party to the Covin, and shall hold in common with A. but A. is not remitted, because he was of Covin, and shall not take advantage of his own wrong. Condition broken by demise. 19 A. deviseth Land to his Wife, Co. l. 1. 25. b. 3. Porter's case. upon Condition that she convey them in convenient time to certain persons in trust for the maintenance of a Free-school: the Testator dies, and his Wife demised the Land to a stranger for years: in this case the Condition is broken, and the next Heir shall enter, because by the demise she hath disabled herself to convey them according to the Condition, viz. in the same plight she had them, and therefore shall not take advantage of her own wrong. Co. l. 3. 29. b. 4. in Butler & Baker's case. 14 H. 4. 38. 1 H 5. Tit. Grants, 43. 20. If Donee in tail make a Feoffment in fee, in this case, Donee still Tenant after discontinuance. the Donee hath neither Jus in rei veritate, nor Jus ad rem: for by his own act he hath departed with all the estate that was in him; and yet after this the Donee may extinguish or diminish his rent by release or confirmation made to him by the Donor, because (as to the Donor) the Donee shall still remain Tenant, and of necessity for the rend the Donor shall avow upon the Donee, for he cannot avow upon the Discontinuee: because then by his own showing the Reversion, to which the rent is incident, should be de●ested out of him by the Feoffment, and by consequent he could not then maintain his Avowry for the rent: and therefore of necessity he shall avow upon the Donee, notwithstanding he hath devested himself of all his estate, for it is no reason, that the Feoffment, which is the Donees own act, and by which wrong is done, should avail the Donee to bar the Donor of his rent; for then the Donee, that made the discontinuance, should take advantage of his own wrong. Co. l. 3. 44. b. 2. in Baytons' case. Co. l. 3. 52. a. 4. in Rigewayes' case. 21. If one in execution escape of his own wrong & be retaken, Escape of Prisoners. he shall not have an Audita Querela to discharge himself of his Imprisonment: because he shall not take advantage of his own wrong, and in such case, it is lawful for the Gaoler to re-take him, in what place soever he finds him: And albeit the Prisoner in the pursuit be out of view (at the turn of a corner or the like) yet the Sheriff or Gaoloer may re-take him, and although it be in places without their jurisdiction: but the Plaintiff may bring an Action against the Sheriff before he can re take him, and he shall be answerable for an escape, albeit the Sheriff re-take him afterwards: Howbeit, the Sheriff may then justify to retain the Prisoner, until he save him harmless from the Plaintiffs Action, or may bring an Action of Trespass upon the case against him for the damages he shall suffer by the Plaintiffs Action: Also after the escape, if the Capias ad satisfaciendum be not returned and filled, it may be renewed against the Prisoner. Co. l. 3. 64. a. 4. Pennants' case. 22. A man leases his Land, Acceptance of rent, no confirmation. upon condition that the Lessee shall not assign any part thereof, the condition is broken, and the Lessor before notice of the assignment accepts the rent due after such assignment: In this case, the condition being collateral, the breaking thereof may be so secretly contrived, that it is not possible for the Lessor to come to the knowledge thereof, and therefore notice in this case is material and issuable: for (otherwise) the Lessee should take advantage of his own fraud: It is otherwise, if a Lease be made with condition of reentry upon nonpayment of the rent, for in such case both parties may take notice thereof by the Indenture, and therefore by acceptance of the rent afterwards, the Lessor dispenseth with the Condition, and confirms the Lease. Co. l 3. 76. b. 2. Fermors case. 23. A. possessed of divers parcels of Land within the Manor of S. for years, at will, and by copy, and also of others there in fee, Fine, no bar● to the Lord. demiseth the whole to B. for life, and thereupon levies a Fine to B. etc. of so many acres as amount to the whole Land, continues possession, and pays the rents to the Lord: In this case, albeit five years pass, yet the Lord is not barred: for it is unreasonable to give the Lessee benefit (in this case) of the Lessors non-claime, when the tort and covin of the Lessee is the cause of his non-claime, for a man shall not take advantage of his own covin or wrong. Co. l. 4. 82. a. 4. Sir Anthony Corbe●s case. 24. A. deviseth his Land to B. till eight hundred pounds be raised for the preferment of his Daughters, and dies, Devise to raise money. C. his heir conceals the Will, enters, and dies: In this case B. shall have allowance for the time, that the Will was concealed, and shall hold the Land so much the longer, according to the time that the Will was so concealed, until the eight hundred pounds may be raised, for it is against reason, that the heir should enter upon the Land so much the sooner, because his concealment of the will was a wrong, and then he should take advantage of his own wrong. Waste in a Colemine. 25. A. demiseth a Close to B. wherein there is a Colemine un-opened, Co. l. 5. 12. b. 3. in Sanders case. B. opens the Mine and assigns his term to C. except all Mines, C. digs Coles out of the Mine, and A. brings an Action of waste against C. in this A. shall recover locum vastarum, and the exception shall not excuse it, for the opening of the Mine by B. was a tort, and (that being committed) if B. should excuse or avoid it by the exception, he should thereby take advantage of his own wrong. 26. If A. grants to B. one hundred cords of wood to be cut down and taken by the assignment of A. If A. in convenient time after request by B. do not assign them, B. may take them himself without any assignment, Co. l. 24. b. 4. in Sir Thomas Palmers case. for the Grantor (in such case) by his own act or default shall not derogate from his grant, nor take advantage by such his neglect of non-assignment; there is the same Law of Estovers, etc. to be assigned by the Bailiff of a Manor, etc. Executor, de son tort. 27. An Executor of his own wrong shall not retain goods in his own hands to satisfy his proper debt, Co. l. 5. 30. b. 3. in Coulters' case. for than he should take advantage of his own wrong, which the Law will not permit. Age not allowed. 28. Regularly, in all real actions at the Common Law, Co. l. 6. 4. b. 3. in Markals case. if the Tenant be within age, and in by descent, he shall have his age: Howbeit, if the Action be founded upon his own wrong, as in Cessavit, upon his cesser: in such case, he shall not have his age: For than he should take advantage of his own wrong. After Judgement the bond not valid. 29. A. hath judgement in an Action of debt upon an Obligation, Co. l. 6 45. b. 2. in Higgens case. the Defendant brings a Writ of Error, and hanging the Writ of Error, the Plaintiff brings a new Action of debt upon the same Obligation: but it was adjudged he could not; for, until the judgement be reversed by Error, the Obligation remains quashed, and if there be Error in the proceeding, that is the Plaintiffs fault, and he shall not take advantage of his own tort or default. Release to a joint-tenant. 30. A. and B. are joint-tenants for life, Co. l. 6. 78. b. The Lord of Abergavenies case. and judgement is had against A. in debt, who releaseth to B. and B. dies: In this case, albeit the term is expired, so as the Reversioner may enter, yet the Land shall stand charged with the judgement during the life of A. for (otherwise) A. should take advantage of his own Act, and thereby avoid the debt and judgement of the Creditor, who is a stranger to the release. Action upon the case. 31. A. recovers against B. in the Common Pleas, and dies, Co. l. 7. 4. b. 2. in Bulwers case. C. upon the judgement in the name of H. outlaws B. in the Hustings of London, die lunae proximum post festum Simonis & Judae, and thereupon P. is taken by a Capias Utlagatum in Norfolk, and there imprisoned, whereupon B. brings an Action upon the case against C. Quia maliciose & deceptive machinatus est, etc. And in this case it was objected, that the Capias Utlagatum was erroneous, because the Outlawry was therein recited to be proximum ante festum, etc. but that exception was not allowed, because the error in the Writ, which the Defendant C. had tortiously pursued, shall give no advantage to himself: but in as much as B. the Plaintiff was imprisoned and molested thereby, he had thereupon good cause of Action. The heir not estopt. 32. Where Lands were conveyed to Baron and Feme, Co. l. 8. 53. b. 3. in Sims his case. 18. E. 3. fo. 9 and to the heirs of the Baron, and the Baron gives them in tail, the Baron dies, the Feme recovers the Land against the Donee by a writ of Cui in vita, supposing that she had the Land to her and her heirs in fee, the Feme after the Recovery enfeoffs another and dies, the Donee in tail dies without issue, the issue of Baron and Feme brings a Formedon in Reverter against the Feoffee of the Feme; And (in this case) albeit the issue was heir to the Feme, and thereby estopt by the Recovery in the Cui in vita to say, that the Feme had a less estate than Fee-simple, yet the issue, who claimed the Reversion of the Land as heir to the Baron, shall not be bound by that Estoppel made by the Feme, although he was heir to her also; for then the Feme who had but an estate for life, might by her own act have barred the heir, that right had, and claimed as heir to his Father. C. l. 8. 76. a. 2. in the Lord Staffords case. 33. If a man make a Lease for years, upon Condition, Outer by Lessor. that if the Lessor out him within the Term, that he shall have fee, and the Lessor doth out him accordingly; in this case, albeit the interest of the term is by such ouster turned to a right, yet the Lessee in such case shall have fee: for that such ouster is the act and tort of the Lessor himself, whereof he shall take no advantage. Co. l. 8. 133. a. 4. Turner's case. 34. In debt against an Executor, Executor de lays, etc. he pleads a Recovery against him in such a Court, which amounts to the whole in his hands: the Plaintiff replies, that the recoverer hath accepted composition, and that the Defendant delays to accept a release, with purpose to defraud the Plaintiff: In this case, the deferring to accept the release is a tort, and against the duty of an Executor, and therefore cannot help him, for if any prejudice happen to him thereby, it is by his own tort and default, and therefore he shall not take any benefit thereby. Co. l. 9 68 b. 4. in Mackallies case. 35. Upon an arrest, Resistance by Prisoner. if the party arrested submit himself peaceably thereunto, and gives the Sergeants or Bailiffs convenient leisure to acquaint him with their business, they oughtupon demand to show him their warrant, and to let him know the occasion thereof, as it was adjudged in the Countess of Rutland's case, in the 6. Rep. fo. 55. But if he make resistance, and obey not their warrant, they are not bound to show it, nor, etc. and if then any of them be killed, it is murder: for the Prisoner shall not in such case take advantage of his own wrong. Co. l. 10. 134. b. 2. in Read and Redmans' case. 36. In real Writs original, Summons and severance. if he that is summoned and severed dies (which is the act of God) the Writ shall abate, but taking of Baron or entering into the Land by him that is summoned and severed (or where there is no summons and severance) shall not abate the Writ, but only make it abateable, because these are the parties own acts, whereof they shall not take advantage. Co. l. 11. 81. b. 1 in Lewes Bowles case. 37. If a Tenant for life or years fell Timber Trees, Waste. or pull down the Houses, the Lessor shall have the Timber, for the Lessee cannot have them by his demise, but as things annexed to the soil: And therefore it is absurd in reason, that when by his own act and wrong he hath severed them from the Land, he should gain a greater property in them, than he had by the demise. F. N. B. 59 k. 37. The Tenant may fallen Trees to repair the Houses: Waste. but if the Houses be fallen into decay by his default, if then he fell Trees to repair them, it is waste, for he shall not usurp the power of felling Trees to amend the Houses, when the cause why they wanted repairing was by his own neglect. Pl. Co. 16. b. 4. in Fogassaes' case. 38. In Fogassaes' case in the Commentaries, Not weighing Woad. the not weighing of the Woad is referred to the Collector: And therefore the Collector shall not by his neglect take advantage in the King's behalf of the not weighing thereof, and by that means cause Fogassa to forfeit the same. Dyer 30. 205. 28 H. 8. & Dyer 42. 9 etc. 30 H. 8. 39 The Condition of an Obligation was this, Obligation to enjoy peaceably. That the Obligor should surrender certain Copyhold-land, and also that he should suffer the Obligee and his heirs peaceably to enjoy the Land without the interruption of any: The Defendant pleads performance, and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certain time, and that afterwards the Lord for rent arreare in the Plaintiffs time entered according to the custom for the forfeiture, Judgement fraction, and this was held a good Plea, because the reason why the Plaintiff did not enjoy the Land was caused by his own act, which in this case shall not work to his advantage: So if the Obligee had been Tenant at the Common Law, and had ceased, the Obligation had been saved, for that it was the act of the Plaintiff himself. 148. And therefore the Law of itself prejudiceth none. Distress. 1. Any goods may be distrained for damage-feasant, Co. Inst. par● 1. 47. a. 4 by reason of the necessity (See Max. 110. Ex. 4.) and such Distress may also be made in the night time, for the same reason (Vide M. 128. E. 2.) Howbeit for rent, nothing can be distrained in the night time, or which cannot be rendered in as good plight, as it was in at the time of the Distress taken, as sheaves or shocks of Corn, or the like, cannot be distrained for rent, because when a Distress is made for rend it is in the custody of the Law, and repliviable, and during the time it so remains, the Law will not suffer the owner thereof to suffer prejudice by the detainer, and (in such case) there is no such necessity, but that the Distress may be made in a seasonable time, and of convenient goods: Howbeit Wagons or Carts loaden with grain (Horses and all) may be distrained for rent, because they may be restored in the same condition they were in, when they were taken: And yet Beasts belonging to the Plough (averria carucae) shall not be distrained, nor any Utensils or Instruments of a man's Trade or Profession, as the Axe of the Carpenter, the Books of a Scholar, etc. while other Beasts or Goods (which Bracton calls animalia, or catalla otiosa) may be distrained, for that were un-charitable and an injury to the public, whereof the Law (if possibly it may be otherwise) will not be guilty. Vide plus ubi supra. Waste against Guardian. 2. If the Guardian doth waste, Co. ibid. 54. a. 2. and the heir within age brings an Action of waste, the Guardian shall lose the Wardship, but if the heir bring an Action of waste at his full age, he shall then recover triple damages, for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship, in lieu thereof it gives him triple damages, because (otherwise) the Guardian might do him an injury, and make him no recompense for it, for then the Guardian cannot lose the Wardship. An Infant pays relief. 3. Littleton saith, Litt. S. 112. Co. ibid. 83. b. 4. That the heir of a Tenant by Knight-service ought not to pay relief until his age of twenty one years, yet in some case the Heir shall pay relief, when he was within that age at the time of the death of his Ancestor: As if a man holdeth Lands of the King by Knight-service in Capite, and of a common person other Lands by Knight-service, and dyeth, his heir being within age; here, the King hath the Wardship both of body and Lands by his Prerogative, until the full age of the heir, and therefore (in this case) the Heir (though he be within age) shall immediately pay relief to the other Lord: for as the Law giveth away the Wardship to the King by reason of his Prerogative, so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved, viz. his relief. The Lord shall not have the body. 4. A man seized of Land holden by Knight-service hath issue a Daughter, who takes Baron, and hath issue a Son, Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dies and also the Mother; in this case, the Son shall not be in ward for his body living his Father, but yet the Lord shall have the Wardship of the Land until the full age of the Son; for albeit (in this case) the Law doth give the custody of the body to the Father and barreth the Lord thereof, yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof: So it is also if the Father marry his heir within age and dyeth, in this case also the Lord shall have the Wardship of the Land. Co. ibid. 88 b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service, this is in respect of his paternal natural custody, Father Guardian in socage accountable. and therefore in such case he shall not be answerable for his marriage or custody of his Lands; but where the Father is Guardian by reason of a tenure in Socage, he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands, which he should not be, if he had the custody of his eldest son (in this case) as his Father in respect of nature; And because the Law doth appoint him to be Guardian in Socage, it compels him also to be accountable: for the act of Law doth never any man wrong. Co. ibid. 134. b. 2. Anic. super carta, cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas, In real actions fifteen day's return. in all Summons and Attachments in Plea of Land were contained the term of fifteen days, and it appeareth not only by that Statute, but likewise by the ancient Authors of the Law, who wrote before that Statute, that this was the ancient common Law: And the reason of giving so many days in real Actions, was (the Recovery being so dangerous) that the Tenant might the better provide himself both of answers and proofs. Co. ibid. 132. b. 2. 7. If I be disseised, and my Brother release with Warranty, Descent upon Profession. and is afterwards professed in Religion, and thereby the Warranty descend upon me: In this case, albeit the Law binds me by the Warranty, yet (I being his heir) the Law gives me by descent such Inheritance as my Brother had at the time of his Profession. Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum, Profession dischargeth wardship. yet (in such case) it is always absque injuria, as if a Ward enter into Religion and be professed, hereby the Lord loseth the Wardship of the Land, which may be said damnum: for by such Profession the Ward is civiliter mortuus, a dead man in the Law, and cannot hold any Inheritance, neither can the Guardian continue the Wardship of the land, because by the civil death of the Ward, the Inheritance is descended to another, but this damnum is absque injuria, for by such Profession the land descends to another, who is either to be in Ward, or to pay relief: And therefore (in such case) the law giveth the Guardian no remedy, neither by any form Writ, nor by Action upon the case. Co. Inst. pars 1. 138. a. 3. 9 If Tenant for another man's life by his Deed grant a Rend charge to one for twenty one years, Cesty que vie dyeth, A annuity good, the land evicted. hereby the Rent-charge is determined, and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie, because the Rend charge did determine by the act of God and the course of law, Actus Legis nemini facit injuriam: So it is also, if land, out of which a Rent-charge is granted, be recovered by an eyent title, and thereby the Rent-charge is avoyed, yet the Grantee shall have a Writ of Annuity, because the Rent-charge is avoided by the course of law, and so it was holden in Wards case, cited in Co. l. 2. fo. 36. in Heywards case, against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land, Common sans number not apportioned. and ten of these Acres descend to A. the common sans number is entire and uncertain, and cannot be apportioned, but shall remain, but if it had been a Common certain (as for ten Beasts) in that case the Common ●●●dition shall be apportioned; And so it is also of common of Estovers, Turbary, Piscary, etc. And it is to be observed, that in none of these cases, or the like, the descent, which is an act in Law, shall work any wrong to the Tertenant; for (nevertheless) he shall have thereby that which belongeth to him, for the Act in Law shall never work any wrong. The like. 11. Of Common or Corody certain (as for ten beasts, Co. ibid. 164. b. 4. so many Dishes in certain, etc.) partition amongst Coparceners or Apportionment may be made; for this can work no wrong to the Tertenant: But if a man have reasonable Estovers (as House-boot, Hay-boot, &c) Appendent to his , they are so entire that they shall not be divided amongst Coparceners; So likewise if a Corody uncertain be granted to a man and his heirs, and he hath issue divers Daughters, this Corody shall not be divided between them; there is the same Law also of Common sans number: for (in these cases and the like) if Estovers, Common, Piscary, or Corody uncertain should be partable amongst Sisters, such partition would work a wrong to the Tertenant, Co. ibid. 165. a. 1. who should be oppressed and overcharged thereby, which the Law will not suffer: But in such cases one of the Coparceners hath it, and the rest are satisfied otherwise, or if there be nothing but such entire Inheritances, that will not admit severance, than they are to have the profit thereof by turns, etc. vide pl. ibid. Warranty continues after partition. 12. If two hold jointly certain Lands with warranty, Co. ibid. 165. a. 4. and make partition, in this case the Warranty is gone; because they are not compellable by the Common Law to make partition: but if Coparceners hold Land with Warranty, and make partition, yet shall the Warranty still remain, for they are compellable by the Common Law to make partition, and therefore the Law preserves their Warranty. The estate preserved by construction of Law. 13. If Tenant for life make a Lease generally, Co. ibid. 183. a. 4. this shall be taken (by construction of Law) to be an estate for his own life, that made the Lease; for if it should be a Lease for the life of the Lessee, it would work a wrong to him in the Reversion: So it is likewise, if Tenant in tail make a Lease generally, the Law shall contrive this to be such a Lease as he may lawfully make, and that is for term of his own life, for if it should be for the life of the Lessee, it would be a Discontinuance, and (consequenty) the estate which should pass by construction of Law should work a wrong, which the Law will not permit; because, Legis Constructio nunquam facit injuriam. Descent tells Entry. 14. In case of a Descent cast, Co. ibid. 237. b. 4. there is a Diversity betwixt corporal Inheritances, as Houses, Land, etc. which do lie in Livery, and Inheritances incorporal, as Advowsons', Rents, Commons, etc. which lie in Grant, for a Descent cast of these shall not put the Disseisee to his Action, but he may claim them notwithstanding such Descent: Howbeit a Descent cast of the other puts the Disseisee to his Action: because Houses serve for the habitation of men, and Land to be manured for their sustenance, and therefore an heir shall not after a Descent of them be molested or disturbed in them by Entry. Continual claim. 15. If a man for fear of Battery, mayhem, or death, Co. ibid. 254. a 4. Litt. S. 421. dare not go to the Land to make his Entry, the Law (to prevent danger) givee him leave (in such case) to go as near the Land as he dare, although he be not within the view thereof. Feme Obligee and Execution. 16. If a Feme Obligee take the Obligor to Husband, Co. ibid. 264. b. 4. this is a release in Law, the like Law is if there be two Femes obliques, and the one take the Obligor to Husband, this is also a release in Law of the whole debt: But if a Feme Executrix take the Debtor to Husband, this is no release in Law; for that should be a wrong to the dead, and in Law work a Devastavit, which an act in Law shall never work; And so it was adjudged in the King's Bench, M. 30, & 31 Eliz. Co. Inst. pars 1. 269. b. 3. 17. If there be Lord and Tenant, Lord and Tenant. Lord, Mesne and Tenant. and the rent is behind by divers years, and the Tenant make a Feoffment in fee, if the Lord accept the service or rend of the Feoffee due in his time, he shall lose the arrearages due in the time of the Feoffor; for after such acceptance he shall not avow upon the Feoffor, nor upon the Feoffee for the arrearages incurred in the time of the Feoffor: But in that case if the Feoffor dye, albeit the Lord accept the rent or service by the hand of the Feoffee due in his time, he shall not lose the arrearages; for now the Law compelleth him to avow upon the Feoffee, and that which the Law compelleth him unto shall no way prejudice him: So if there be Lord, Mesne, and Tenant, and the rend due by the Mesne is behind, and after the Tenant fore-judge the Mesne, and the Lord receive the services of the Mesne, which issue out of the Tenancy, he shall not be barred of the arrearages, which issued out of the Mesnalty; so likewise if the rent be behind and the Tenant die, the acceptance of the services by the hand of the heir shall not bar him of the arrearages, causa qua supra; for in all these cases, albeit the persons be altered, yet the Lord doth accept the services of him, who only ought to do them, which being caused by act in Law, it will not suffer him to be prejudiced thereby. Co. ibid. 285. a 3. 18. If Tenant, pur anter vie, bring an Assize, and Cestuy que vie dyeth, Assize. Waste, Ejectione fi●me. hanging the Writ, here albeit the Writ were well commenced, yet the Writ shall abate because no Assize can be maintainable for damages only: but where an Action is begun, and part of the Action determineth by Act in Law, and yet the like Action for the residue is given, there the Writ shall not abate but proceed; As if an Action of Waste be brought against Tenant per anter vie, and hanging the Writ Cestuy que vie dyeth, the Writ shall not abate, but the Plaintiff shall recover damages, because if Cestuy que vie had died before any Action brought, the Lessor might had had an Action of Waste for the damages, and the Act in Law shall not prejudice him: So in an Ejectione firm, if the term incur, hanging the Action, yet shall the Action proceed for damages, because an Ejectione lieth after the term for damages, which he shall recover, notwithstanding the term be by Law determined. If a Conspiracy be brought against two, Co. ibid. a. 4. and one of them die, hanging the Writ, nevertheless it shall proceed. Co. ibid. 309. a. 3. 19 Albeit a man may by the Law grant away a Seignory, Rent, Atturnment. Reversion, Remainder, etc. yet such Grant shall not be good without Attornement; that is, the consent of the present Tenant of the land, for which the old Books render this reason, Si dominus attonnare possit servitium tenentis contra voluntatem tenentis, tale sequaretur inconveniens, quod possit eum subjugare capitali immico suo, & per quod teneretur sacramentum fidelitatis facere ei, qui ei damnificare intenderet. Co. ibid. 327. a. 2. 20. When Tenant in tail makes Feoffment, or, Entry taken away. etc. the Entry of the Donor, who hath the Reversion, and also of him in Remainder is taken away, and they are put to their Action, viz. A Formedon in Reverter for the one, and in Remainder for the other; And the reason, why these alienations in these several cases do make a discontinuance, and put him in Reversion or Remainder that right had to his Action, and take away his Entry is, to the end that every man's right may be preserved, viz. to the Demandant his ancient right, & to the Feoffee or Purchasor the benefit of his Warranty, which course is founded upon great reason and equity, for the benefit of Warranty would be prevented and avoyed if the Entry of him that right had were lawful, hereby also the danger that many times happeneth by taking of Possessions is warily prevented by Law. ●rant of the next avoidance. 21. If a man seized of an Advowson in fee by his Deed granteth the next presentation to A. and before the Church becometh void, Co ibid. 378. b. 4. by another Deed grants the next presentation of the same Church to B. the second Grant is void; for A. had the same granted to him before, and the Grantee shall not have the second avoidance by construction, to have the next avoidance, which the Grantor might lawfully grant; because the Grant of the next avoidance doth not import the second presentation: but if a man seized of an Advowson in fee, take wife, now by act in Law is the wife entitled to the third Presentation, if the Husband die before her; And in this case, if the Husband grant the third Presentation to another and die, the heir shall present twice, the Wife shall have the third Presentation, and the Grantee the fourth; for in this case it shall be taken the third Presentation, which he might lawfully grant: And so note a diversity between a title by act in Law, and by act of the party, for the act in Law shall work no prejudice to the Grantee. Warranty. 22. If a man doth warrant Land to another without this word (Heirs) his heirs shall not vouch; Co. ibid. 384. b. 4. And (regularly) if he warrant Land to a man and his heirs without naming assigns, his Assignee shall not vouch: but if the Father be enfeoffed with warranty to him and his heirs, the Father enfeoffeth his eldest son with warranty and dyeth, the Law giveth to the son advantage of the warranty made to his Father; because by act in Law the warranty betwixt the Father and the son is extinct, which act in Law shall not prejudice him. Assignment of Dower. 23. An Assignment of Dower by a Disseisor, Abator, Intrudor, Co. ibid. 35. a. 3. etc. if there be no covin, is good, unless where it is prejudicial to the Disseisee, etc. As if the Husband enfeoff the younger son with warranty and dyeth, the eldest disseiseth the younger son, and endowes the widow; In this case, the younger son shall avoid this Assignment, for otherwise he shall lose his warranty: But a Disseisor, Abator, Intrudor, &c. cannot assign a rent out of the Land to her for her Dower, to bind the Disseisee, &c, 24. Vide 33. 5. Disagreement ●●st be in presence. 25. The Law gives favour to an agreement, Co. l. 2. 69. a. 1. in Tookers' case. which tends to the advantage of the party, for that may be done in his absence, as well as in his presence; but so it is not of a disagreement, for that aught to be done in his presence, because the Law conceives the party interessed may use persuasions to the other party; and so induce him to agree; so Attornement is good, though the Grantee be absent. Wardship. 26. If there be Tenant for life, Co. l 2. 93. b. 2. in Binghams' case. the Remainder in fee of Land holden by Knight-service, and the Lord grants his Seignory for life, and after he in the Remainder in fee dies, his heir within age, and after the Grantee for life of the Seignory dies, and then the Tenant for life dies, he in Reversion of the Seignory shall have the Ward: So likewise, if he in the Remainder die, his heir within age, ut supra, and after the Lord die, and then the Tenant for life dies, the heir of the Lord in this case shall have the Ward; for the act in Law shall not prejudice any, and his Execut●r cannot have it, because it was not a Chattel vested in the Testator. Co. l. 3. 65. b. 3. in Penants' case. Acceptance of ●ent. Bar, & ●●tra. 27. If a man having Rent-service or Rent-charge, accept the Rent due at the last day, and thereof make an acquittance, thereby all the arrearages due before are discharged, as it was adjudged in Hopkins and Mortons' case, Hill. Rot. 950. in C. B. Vide 10. Eliz. 271. Dyer, but if a man make a Lease for life rendering Rend, or if there be Lord and Tenant by Fealty and Rent, and the Rent is arreare by 2. years, and after the Lessor or Lord disseise the Tertenant, and then the Tenant recovers in an Assize, and the rent which incurred, is recouped in damages, yet the Lord or Lessor shall recover in Assize the arrearages incurred before the Disseisin, and the bar of the last years rend shall not be a bar of the former arrearages. Ibid. b. 4. 28. If there be Lord and Tenant, and the Rent is arreare, Idem. and the Tenant makes Feoffment in fee; In this case, if the Lord accept the Rent or service of the Feoffee, he shall lose the arrearages in the time of the Feffor, albeit he made him no acquittance; for after such acceptance he shall not avow upon the Feoffor at all, nor yet upon the Feoffee, save only for the services, which incurred in his time, as appears in 4 E. 3. 22. 7 E. 3. 8. 7 E. 4. 27. 28 H. 8. Br. Avowry 111. Howbeit, In such case, if the Feoffor dye, although the Lord accept the Rent or Service by the hand of the Feoffee, yet shall he not lose the arrearages; for now the Lord can avow upon none but the Feoffee, and that whereunto the Law compels a man shall never prejudice him: So if there be Lord, Mesne, and Tenant, and the Rent due by the Mesne is arreare, and after the Tenant fore-judges the Mesne, and the Lord receives the Services of the Mesne, which now issue immediately out of the Tenancy, yet shall he not be barred of the arrearages, which issue out of the Mesnalty: likewise, if the Rent be arreare, and the Tenant die, the acceptance of the Services by the hand of the Heir shall not bar him of the arrearages, causa qua supra: For in all these cases, albeit the person be altered, yet the Lord accepts the Rent and Services of him, who only ought by the Law to do them: Vide 4 E. 3. 22. 7 E. 3. 4. 7 E. 4. 27. 9 H. 8. Br. Avowry 111. before cited. Neither shall acceptance of Rent bar a relief, because that is as a blossom fallen from the Tree, and a fruit or improvement of the Services. Co. l. 3. 72. b. 2. in West●ie● case. 29. If a Sheriff die, and before another is made, Escape. one in execution breaks the Goal and goes at large, this is no escape, for when a Sheriff dies, all the Prisoners are in the custody of the Law, until a new Sheriff be made, and albeit they in the interim fled out of the walls of the Goal, yet the Law hath the custody of them, and preserves them in execution without any fresh Suit, in what place soever they be; and therefore they may (in such case) be again taken in execution at any time after: for no escape can happen in prejudice of the party, but when some body may be charged therewith, and the Law deceives none. 30. If since the Statute of 31. H. 8. 1. joint-tenants make partition with consent by Deed, the Warranty annexed to their estate is gone: Co. l. 6. 12. a. Morrices case. Writ of partition. but if they sue a Writ of Partition according to that Act, they may vouch as before, and such partition will not prejudice them, being founded upon a Statute Law, whereunto all persons give consent: So if there be two joint-tenants with Warranty, and the one disseiseth the other, and the Disseisee brings an Assize; In this case, it seems to be the better opinion, that the Disseisee shall not recover in severalty, but generally, neither is the Warranty gone by such Recovery, as it was adjudged in 28 lib. Ass. Pl. 35. because the Recovery is an Act in Law, which prejudiceth none; albeit some Books are against it, as 10 E. 3. 40. & 10. lib. Ass. 17. Co. l. 6. 27. b. 4. Viscount Montague's case. 31. No Fine for alienation. Stat. 27 H. 8. Viscount Montague with licence of the Queen suffers a Recovery to B. and D. to uses, with power of revocation and limitation of other uses, he revoks and limits new uses, in this case, no Fine shall be paid to the Queen for alienation: For when licence is granted to alien to A. and the alienation is to the use of B. here, no Fine is to be paid for the alienation to the use of B. because the use is executed by the Statute of 27 H. 8. which can wrong no man. Co. l. 9 106. b. 2 Margaret Podgers case. 32. P. Copyholder for life, Remainder for life, An act of Parliament do● no wrong. the Lord bargains and sells, and levies a Fine with Proclamations to P. five years pass without any claim by those in Remainder, yet are they not barred: because P. the Bargainee was in by force of the Statute of 27 H. 8. upon a bargain and sale by Deed indented and enrolled, and an act of Parliament can never do wrong. See there also the Lady Gresham's case, where an Act of Parliament excused a Fine for alienation of Land in Capite without licence, upon the same reason. The like. 33. Plow. 59 a. 2. in Wimbish and Talboies case. Where a Feoffment was made to Feoffees to the use of another before the Statute of 27 H. 8. of uses, and then that Statute was made, which transfers the Possession to Cestuy que use: In this case, the gift passes from the Feoffees to Cestuy que use by the Parliament, because the consent of the Feoffees is involved in that Act of Parliament, and it cannot be said, that the Parliament gave it to Cestuy que use: for if it should be said the gift of another then of the Feoffees, than should the Parliament do the Feoffees wrong in taking a thing from them, and making another the Donor thereof, which an Act of Parliament cannot do. See there also the Rector of Edingtons' case, 19 H. 6. 62. Fitz. Grant 10. & Br. 40. & Parl. 88 to the like purpose. Stat. W. 2. c. 39 Ravishment of Gard. 34. A woman covert is not within the Statute of West. 2. cap. 39 Co. l. 9 73. a. 1. in Doctor Husseys' case. Concerning ravishment of Ward, for part of the words are, Si haeredem post annos nubiles maritaverit, & de maritagio satisfacere non potuerit, abjuret regnum, vel habeat prisonam imperpetuum, etc. for a Feme covert being by Law disabled to satisfy, she shall not be by Law punished with banishment or perpetual imprisonment, and the Husband being innocent ought not to be punished, because the punishment is personal, Vide pl. ibid. & infra Max. 156. Fealty. 35. Co. Inst. pars 1. 98. a. 3. Where an Abbot (holding in Frankalmoigne) together with his Covent, aliens the Land to a secular man, he cannot hold as they held, viz. in Frankalmoigne, and (of necessity) he must hold of some body, and by some service, for that the Law will enjoin him to do, to avoid the inconvenience of holding of none: And therefore in regard the Law is (in this case) to create him a new tenure, it shall be the lowest (viz. in Socage) and with the least service that can be done, and nearest to the freedom of the former service. Vide 184. 4. Parol, demur. nonage. 36. Co. l. 9 85. a. 4. in Coney's case. In a Writ of Mesne the Parol shall not demur for the nonage of the Plaintiff, because it is not reason, 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. 149. Vide M. 150. Ex. 9 Especially for things that cannot be imputed to their own folly, or neglect. Tenant by the courtesy. Things that lie in Grant. 1. Tenant by the Courtesy shall have after his Wife's death a Rent, Co. Inst. pars 1. 15. b. 2. & Co. ibid. 29. a. or Advowson, albeit the Rend day was not then come, nor the Church then void, and (by consequent) he not actually seized thereof before his Wife's death, because there was no Laches or default in him nor possibility to get Seisin, and therefore the Law in respect of the issue begotten by him, will give him an estate by the courtesy of England therein, albeit he was not thereof actually seized as aforesaid: It is otherwise, where he hath (in right of his Wife) title of Entry into Lands, and in her life neglects it, for that is imputed to his own laches and folly: Neither shall a man be Tenant by the courtesy of a bare right, title, use, or of a Reversion or Remainder expectant upon an estate of , unless the particular estate be determined or ended during the Coverture. Courtesy. Dower. 2. Co. ibid. 31. a. 3. A man shall not be Tenant by the Courtesy of a Seisin in Law without Entry, but he ought to be actually seized in the life of his Wife: Howbeit, a woman shall be endowed of a Seisin in Law, as where Lands or Tenements descend to the Husband, here before Entry he hath but a Seisin in Law, and yet the Wife shall be endowed thereof, albeit it be not reduced to an actual Possession, for it lieth not in the power of the Wife to bring it into an actual Seisin, as the Husband may do of the Wife's Land, when he is to be Tenant by Courtesy. Co. ibid. 47. b. 1. 3. When Cattles are distrained they are to be put in a pound overt, Distress. or open, within three miles, in the same County, as into a pinfold made for such purposes, or in his own close, or the close of another by his consent; to the end the owner may give his Cattles meat and drink without Trespass to any other, and then if the Cattles miscarry, he that distrains them is excused, for it cannot be imputed to any neglect of his, the Owner (in such case) being bound to sustain them at his peril: but if the Cattles be put into a pound covert or close, as in a house, where the Owner cannot come at them; in such case, they are to be sustained with meat and drink at the peril of him that distrains, and he shall have no recompense for the charge of keeping them, and if any of them miscarry he shall make them good; for in this case it cannot be imputed to the folly or neglect of the Owner, if they be worse or miscarry, because he could not come at them to sustain them. Co. ibid. 53. a. 2. & 3. 4. Waste. It is permissive waste in the Tenant to suffer the house to be uncovered, whereby the Sparrs or Rafters, Planches, or other Timber of the House become rotten: Howbeit, if the House be un-covered, when the Tenant cometh in, it is no waste in the Tenant, to suffer the same to f●ll down; for in such case it cannot be imputed to his neglect but the Owners: So likewise, if a wall be un-covered, when the Tenant comes in, it is no waste, though he suffer it to decay: Also if the house fall down by tempest, or be burnt by lightning, or prostrated by enemies, or the like, without any default in the Tenant, or be ruinous at his coming in and fall down; this is not waste in the Tenant; but he may build the same again with such materials as remain, and with other Timber, which he may take growing upon the ground, for his habitation; but he must not make the house longer than it was. Co. ibid. 53. b. 1. 5. It is waste to suffer a Wall of the Sea to be in decay, Waste. so as by flowing and re-flowing of the Sea, the Meadow or Marsh is surrounded, whereby the same becomes unprofitable; howbeit, if it be surrounded suddenly by the rage and violence of the Sea, occasioned by wind, tempest or the like, without any default of the Tenant, this is no waste punishable, because it cannot be imputed to the Tenants neglect or default in that case: Fl. l. 1. c. 111. According to Fletaes' rule, Fortuna, ignis, & hujusmodi eventus inopinati omnes tenentes excusant. Co. ibid. 55. a. 4. etc. 6. Tenant at will: particular estates. Graine, etc. sown. Tenant at will shall reap the crop which he sowed in peace before his Lessor determined his will, whether it be grain, hemp, flax, or any other annual profit; for it cannot be imputed to his folly, that he knew not his Lessors intention, that he would determine his will before they might be ripe; there is the same Law and reason of Tenant by the courtesy, in Dower, for life, pur anter vie, or any other uncertain estate, viz. when the term will determine; and if such Tenant happen to die, his Executors, etc. shall enjoy the crop: If Tenant by Statute Merchant sow the ground, and then a sudden and casual profit falleth, by which he is satisfied, Co. ibid. b. 3. Co. ibid. b. 4. yet shall he have the embleaments, causa qua supra. And in all these cases, it is not material whether the grain, etc. be not ripe, or dead ripe, ready to be cut; for by the same reason they may be taken, though they be not ripe, they may also be taken when ripe: Albeit Littleton saith, Apres lembleer & devant que les blees saint matures. Co. ibid. 55. b. 4. 7. Where there is Lessor and Lessee at will, Tenant at will, etc. notice requisite. the Lessor may by actual Entry into the ground determine his will in the absence of the Lessee, but by words spoken from the ground the will is not determined, until the Lessee have notice: no more than the discharge of a Factor, Attorney, or such like in their absence is sufficient in Law, until they have notice thereof. ●●aine sown. Term uncertain. 8. If Lessee for years, that knoweth the end of his term, Co. ibid. 56. b. 4. soweth the Land, if the term determine before he can cut them, the Lessor shall have them; because the end of his term was certain, and it was his folly to sow them, when he might know beforehand, that he could not Inn them in due season: Howbeit, where a Lease for years depends upon an un-certainty, as upon death of Tenant for life being made by him, or of a Husband seized in right of his wife, or the like, there it is otherwise. Dying seized, ●ardship. 9 If there be Lord and Tenant, Co. ibid. 76. b. 1. and the Tenant maketh a Feoffment in fee upon Condition, and the Feoffor dyeth, after his death the Condition is broken, the Heir within age entereth for the Condition broken, in this case the heir shall be in Ward, and yet the Tenant died not seized of the Land, neither had he any estate or right in the Land at the time of his death, but only a Condition, and which was broken after his death: Nevertheless, because here is no default in the Lord to bar him of his Wardship, and the Condition restoreth the Tenants the Land in nature of a descent (for, he shall be in by descent) therefore shall the heir, in this case, be in Ward. Vide pl. ibid. Guardian in Socage, rob. Discharged. 10. Co. ibid. 89. a. 3. 4. If a Guardian in Socage having received the rents & profits of the Lands of the Minor, happen to be rob of the same without his default or negligence, he shall be discharged thereof upon his account; so also shall a Bailiff of a Manor, a Receiver, a Factor of a Merchant, or the like: It is otherwise of a Carrier; for he by taking his hire doth thereby implicity undertake the delivery of the goods delivered unto him: So it is likewise, if goods be delivered to a man to be kept or to be safely kept (which is all one in Law) and after those goods are stolen from him, this shall not excuse him; for by the acceptance, he undertook to keep them safely, and therefore he must keep them at his peril: But if the goods be delivered unto him to be kept as he would keep his own, there if they be stolen from him without his default or negligence, he shall be discharged: so if goods be delivered to one as a gage or pledge, and they be stolen, he shall be discharged; because he hath a property in them, and therefore he ought to keep them not otherwise then his own; but if he that gauged them tendered the money before the stealing, and the other refused to deliver them, then for this default in him he shall be charged. The like. 11. If A. leave a Chest locked with B. to be kept, Co. ibid. a. 4. Pasch. 43. El. inter Southcote and Bennet in detinue. and taketh away the key with him, and acquainteth not B. what is in the Chest, and the Chest, together with the goods of B. are stolen away, B. shall not be charged therewith; because A. did not trust B. with them, as this case is, neither were they lost by the default or negligence of A. And in all such cases, what is said of stealing is also to be understood of Shipwreck by Sea, fire by lightning, and other like enevitable accidents. And therefore when a man receives another's goods to keep, it is good to receive them with this caution, To keep them as his own, or at the peril of the Owner. Vouchee. 12. If upon a sequatur sub suo periculo, the Sheriff return, Co. ibid. 101. b. 4. that the Vouchee hath nothing, albeit the Demandant shall have judgement against the Tenant, yet he shall not have judgement to recover in value, because the Vouchee was not warned. Condition, Tender. 13. Co. ibid. 211. a. 2. If a man be bound to pay twenty pounds at any time during his life at a place certain, and the Obligor tenders the money at the place without giving notice to the Obligee, this is no good tender: So it is also where a man makes a Feoffment in fee upon Condition, that if the Feoffor pay twenty pounds to the Feoffee at a place certain at any time during his life, that then, etc. in this case also the tender is not good without notice: for the time (in these cases) being uncertain, it cannot be imputed to the default or negligence of the Obligee or Feoffee, if he be not present at the payment thereof ready to receive it, Vide pl. Co. ibid. 246. a. 4. Litt. S 403. Dyer 143. 57 3, 4. P. M. 14. If a Feme sole be seized of Lands in fee, and is disseised, Baron and Feme. Descent, a last Entry. and then taketh Husband, in this case, the Husband and Wife (as in the right of the Wife) have right to enter, and yet the dying seized of the Disseisor in that case shall take away the Entry of the Wife after the death of her Husband: because it shall be accounted her folly, that when she was sole she did not enter, and also for that she would take such an Husband as would not enter before the Descent cast: But if Baron and Feme have title of Entry into Lands in right of the Wife, and the Tenant die seized, the Entry of the Baron is taken away, but if the Baron die, then may the Feme enter upon the Heir, that is in by Descent: for it shall be accounted Laches in the Baron, and not in the Feme, nor any way turn to the prejudice of her or her Heirs: So if the woman were within age at the time of her taking of Husband, than also the dying seized shall not after the decease of her Husband take away her Entry: because no folly can be accounted in her, for that she was within age, when she took Husband, and after coverture she could not enter without her Husband. It is otherwise where a Condition is to be performed, which see ubi supra. Litt. S. 416. Co. ibid. 251. Co. ibid. 252. a. 3. 15. If there be Tenant for life, Remainder for life, Continual claim, right of Entry. Remainder in fee, and the Tenant for life aliens the Land to another in fee, and he in the Remainder for life makes continual claim before the dying seized of the Alienee, and after the Alience dies seized, and he in Remainder for life also dies before any Entry made by him: In this case, he in the Remainder in fee may enter upon the Heir of the Alienee, by reason of the continual claim made by him in the Remainder for life, because such right as he had to enter shall remain to him in the Remainder after him, in as much as he in the Remainder in fee could not enter upon the Alienee in fee during the life of the Remainder for life, and because he could not make continual claim, for none can make continual claim, but he that hath title of Entry. Litt. S. 438. Co. ibid. 259. b. 3. 16. Excuse of 〈◊〉 appearance. There are divers ways of excusing a man's not appearing in Court, and all allowed by Law, as by Imprisonment, whereof Littleton speaketh, S. 438. also, per inundationem aquarum, tempestatem, pontem fractum, Navigium subtractum per fraudem petentis, minorem aetatem, defensionem summonitionis per legem, mortem Attornati, breve de warrantia diei: Also, si petens essoniatas sit, vel si placitum mittatur sine die: But sickness (as one saith) is no cause of saving a default: because it may be so artificially counterfeited, that it cannot be known. Litt. S. 442. Co. ibid. 262. b. 17. If a man be disseised, An Assize amounts to a claim. and he arraign an Assize against the Disseisor, and the Recognitors of the Assize chant for the Plaintiff, and the justices of Assize will be advised of their judgement, until the next Assize, etc. and in the interim the Disseisor dies seized: In this case, this dying seized shall not toll the Entry of the Disseisee: because the bringing of the Assize amounted to a continual claim, and there was no default or neglect in the Disseisee. Note, that this is a Quere in Litt. but since resolved to be Law. Co. ibid. 283. a. 1. 18. In an Action of Waste, upon the Plea, nul wast fait, Waste. he cannot give in evidence justifiable waste, as to repair the House, or the like: but he ought to plead it specially: Howbeit, if the waste be such as came not by any default or neglect in him, he may upon the Plea, nul wast fait, bring in evidence that the waist was done by tempest, lightning, enemies, or the like, and he shall be thereupon excused, etc. Rent-service. Descent tolls not Entry. 19 If my Tenant which pays me a Rent-service in gross, Litt. S. 589. Co. ibid. 323. b. 3. atturnes and pays it to a stranger, this shall not put me out of Possession of the Rent; no, albeit I bring an Assize against the stranger for the Rent, and thereby admit myself out of Possession, or although the stranger die, and a Descent is cast; for still I may distrain my Tenant for all the rent arreare; because it cannot be imputed to my neglect or folly that the Rent was paid to a stranger. Remitter. 20 If Tenant in tail enfeoff his Son and another of Land in tail by his Deed in fee, Litt. S. 684. Co. ibid. 359. a. 4. and Livery of Seisin is made to the other according to the Deed, and the Son knowing nothing thereof, agrees not to the Feoffment, and after he that takes the Livery of Seisin dies, and the Son doth not occupy the Land nor take the profits thereof, during the life of the Father, and then the Father dies; Here, this is a Remitter to the Son, because the Franktenement is cast upon him by the Survivor, and no default was in him, for that he never agreed to the Feoffment. No damages against the Tenant. 21. If a man be disseised, Litt. S. 685. Co. ibid. 359. b. 2. and the Disseisor makes Feoffment to A. B. and C. and Livery is made to A. and B. but C. was not at the Livery, nor agrees to the Feoffment, nor takes any profit of the Land, and after A. and B. dies, and C. survives them, and the Disseisee brings his Writ Sur disseisin in the per against C. who shows all the matter, how he never agreed to the Feoffment, and so he shall be discharged of the damages, albeit he was Tenant of the Frank tenement of the Land, and that the Statute of Gloucester will, that the Disseisee shall recover damages in a Writ of Entry grounded Sur disseisin against him that is found Tenant; yet here, because C. was in no default, the Disseisee shall not recover damages against him. Release of warranty. 22. If two make a Feoffment in fee, Co. ibid. 393. a. 1. and warrant the Land to the Feoffee and his heirs, and the Feoffee release to one of the Feoffors the warranty, yet he shall vouch the other for the moiety: So likewise if one enfeoff two with warranty, and the one release the warranty, yet the other shall vouch for his moiety, causa patet. Condition, Acceptance. Confirmation. 23. If a Lease be made rendering rend at a certain day, Co. l. 4. 64. a. 4. Pennants' case. with clause of Reentry upon nonpayment thereof, and the rent is behind two years; in this case, if the Lessor accept the last half years rend, all the arrearages are discharged, and by such acceptance the Lease is confirmed; but if the Condition be, that if he alien any part of the Land without the Lessors licence, than it shall be lawful for him to re-enter; In this case, if the Condition be broken, and the Lessor do afterwards accept the rent, this is no confirmation of the Lease; because such assignment may be done so secretly that the Lessor cannot possibly discover it; for in the first case the Lessor may know the time when the Condition ought to be performed, but not in the other: See the like case adjudged in Com. Banco, Mich. 39, & 40 El. which Plea gins Term. Hill. 38 El. Rot. 1302. in Trespass inter March & Curteis. Escape. 24. The Sheriffs of London at the end of their office, Co. l. 3. 71. b. 4. Westbies' case. delivered by Indenture, B. in execution to the new Sheriffs, and whereas he was in execution at the Suit of C. and D D. was only named in the Indenture, B. after such Delivery makes an escape, C. brings an Action of debt against the old Sheriffs upon this escape, and recovers; because here, the default was in the old Sheriffs, for that they did omit the execucution of C. in their Indenture; and therefore albeit B. was within the Walls of the Prison after such Delivery over by Indenture, yet was he not Prisoner to the new Sheriffs, but it was an escape from such Delivery: Nevertheless there was no reason that C. should be without remedy in this case; for that no default or negligence could be imputed to him in that miscarryage. Co l. 3. 78. b. 4. in Fermers case. 25. Fine levied by Covin. A. possessed of divers parcels of Land within the Manor of S. for years, at will, and by copy, and of others in fee there, demiseth the whole to B. for life, and then levies a Fine to him and his heirs of so many Acres as amount to the whole Land, continues Possession, and pays the rents to the Lord, as if no such thing had been done; In this case, albeit five years passed, yet the Lord was not barred, and yet in the Statute of 4 H. 7. the saving is of such right, as first shall grow, remain, etc. And there, the right first accrued to the Lessor after the Fine in the Forfeiture: Nevertheless, the Lord (in this case) shall not be barred, because A. having Lands within the same Manor, and still continuing the Possession and paying the Rents, the Lord could not possibly take notice of the Covin: So if Lessee for life (having Lands in the same Town) levy a Fine, the Statute shall be construed against the words, and the Lessor shall be allowed five years after the death of the Lessee for life, and in that case Non-claime shall not prejudice him; because he was forced to it by the Lessee, whose Conveyance was so close, that he could have no notice, that any Fine was levied of his Land. Co. l. 4. 10. b. 4. in Bevils' case. 26. Rents and Services, Statute 32 H 8. 2. Limitation. The Statute of 32 H. 8. c. 2. for limitation of Rent or Service (to have actual Seisin thereof within forty years, etc.) extends not to such a Rent or Service, as by common possibility cannot happen or become due within sixty years, as if a Seignory consists of Homage and Fealty only, for the Tenant may live above sixty years after they are made: So if the Service be to cover the Lords Hall, or to go with him, when there shall be a War betwixt the King and any of his Enemies; such casual Services as by common possibility cannot happen within sixty years, are not within that Statute; neither is the Lord bound by it, because it is not his default or neglect, that he cannot prove himself seized of the Services within forty years, according to the limitation of that Statute: There is the same Law of a Formedon in descender, for the Tenant in tail may live sixty years after the Discontinuance: So likewise, if the Lord release to the Tenant so long as I. S. hath heir of his body, and sixty years pass, and I. S. die without heir of his body; in this case also, albeit the sixty years' pass, yet the Lord may distrain for them when he pleaseth, because they are not within the purview of the Statute, causa qua supra. Co. l. 4 27. a. 2. in Chifton and Molineux case. 27. Where a Feme, Tenant for life of a Copyhold, takes Baron, Waste by Baron. Copyhold. and the Baron commits Waste against the custom of the Manor and dies, the estate of the Feme is (in this case) forfeited by the act of the Baron, because it was her folly to take such a Husband as would commit Waste: But if a stranger commit the Waste without the consent of the Baron, that is no Forfeiture, because it cannot be then imputed to her folly. Co. l. 4. 50. a. 4. in Andrew Ognels' case. 28. When a thing is due in right and truth, Exposition of that. and becomes remediless by no default in the party, to whom it is so due, but by the Act of God, as by the death of the party, or the like: In such cases, Acts of Parliament, which are made to give remedy in such cases ought to have a favourable construction, which may extend to advance the remedy proportionably to the mischief and defect in Law, Arrearages recoverable by Executors. according to the meaning of the makers thereof. And therefore if a man grants a Rent-charge out of his Land, and after aliens the Land to a stranger, who lets it at will to another, the rent is arreare, and the Grantee dies: In this case, the Executors of the Grantee may distrain for the arrearages by the Statute of 32 H. 8. c. 37. And that the words of that Statute are, That it shall be lawful for the Executor, etc. to distrain for the arrearages, etc. upon the Lands so long (only) as they remain in the Seisin or Possession of the Tenant in Demesne, who ought immediately to have paid the Rent, or of any other claiming by and from him, etc. Here, by the words of this Statute the Executors may only distrain the Grantor or his immediate Grantee (by and from being in the Conjunctive;) Yet in the case above they may distrain the Tenant at will, and the word and shall be taken for or: to the end the Lessee at will may be understood to derive his estate from him, and so to be comprehended within the purview of that Statute, for the reason above alleged. Clergy. Appeal. 29. By the Statute of 3 H. 7. c. 1. Holcrofts case, alleged in Wrote and Wigs case. Co. l. 4. 46. b. An Appeal cannot be brought against the Felon after Clergy had; but (by consequence) before Clergy it may: And yet if a Felon be indicted, and upon his trial confesses the fact, and prays Clergy, and the judges take time, and will be further advised, and then an Appeal is brought; In this case, the act of the Court (to be advised as to the allowance of the Clergy) shall not prejudice the party, especially in case of life: there being no default in him, why he had not his Clergy, when he prayed it. Benefice. Laps. 30. If a Clerk be presented, admitted, and instituted, Co. l. 4 79. b. 3. in Digbies case. to a benefice with cure, above the value of 8 l. and after and before induction to the first he accepts another benefice with cure, and is thereunto inducted; In this case, the first is void by the Statute of 21 H. 8. for the words of the Statute are, If any parson having one benefice with cure, etc. accept and take one other, etc. and he that is instituted to a benefice is said in Law to accept and have a benefice: Howbeit, although by such institution to the second benefice, the first is void by the ecclesiastical Law without any deprivation or sentence declaratory, yet no laps shall (in this case) incur against the Patron without giving notice to him, F. N. B. 35. h. no more than if the Church had become void by resignation or deprivation, and yet the Patron may take notice thereof, if he please, and may present according to the said constitution, but he is not bound to take notice thereof at his peril: It is otherwise, if he had been inducted, for than he is to take notice at his peril, because the avoidance after induction is declared by act of Parliament, whereunto every one is party, per Popham & totam Curiam. Co. l. 5. 13. b. The Countess of Salops case. Waste. Tenant at will. 31. Tenant at will shall not be charged for permissive waste, for it is not in his default, but in the Lessors, he having an uncertain term. Emblements sown. 32. Tenant for life, Remainder in fee, Co. l. 5. 85. a. In Henry Knivets' case. the Tenant for life lets for years, the Lessee for years is ousted, and the Tenant for life disseised, the Disseisor lets for years, and his Lessee sows the Land, the Tenant for life dies, the Remainder in fee enters, the Lessee of the Disseisor carries away the grain, and the Remainder in fee brings an action of Trespass: And in this case it was adjudged, that because the Lessee of Tenant for life could not know the end of his term, he had right to the Land, and (by consequence) to the grain, as things annexed to the Land, and albeit by the death of the Tenant for life his Interest to the Land determined, yet the Land being sown before the death of the Tenant for life, his right to the emblements remains. Execution of the body not valuable. 33. Upon a judgement in debt, Co. l. 5. 86. b. 4. etc. in ●lunfeilds case. after the Plaintiff hath pursued an Elegit, he cannot have a Capias ad satisfaciendum against the body, because he hath made his election, which he cannot waive so long as the Defendant lives, neither yet can he have an Elegit after the party is taken upon a Capias ad satisfaciendum returned served, or after the Defendant is in Prison thereupon: Howbeit, if (in such case) the party die in Prison (which is the Act of God and can do no wrong) the Plaintiff may have recourse to his Elegit, or take some other course, until he be satisfied, for his death is not the Plaintiffs fault: So if there be two bound in an Obligation jointly and severally, and the Plaintiff hath judgement against them both, and casts them both into Prison, out of which one of them escapes, and so the debt as to him is discharged, and the Plaintiff is to have his remedy against the Sheriff: Here, albeit the debt seems to be discharged against the other also (because they were jointly bound, and it was but one entire debt) yet the other remaining in Prison shall not have his Audita querela, but shall there continue until the whole debt and damages be fully satisfied: because corporal Imprisonment is not valuable satisfaction of the debt, and it was not in the Plaintiffs default, that he did escape. Co. l. 5. 10. a in Spencer's case. 34. Upon a Writ brought by Journeys accounts, A Writ by Journeys accounts. Diversity. if the first Writ abated by the default of the Demandant himself, as by his misinformation of the name of the Tenant, or of the Town, etc. in such case, the Demandant shall not have a Writ by Journeys accounts, as the Books are in 48 E. 3. 21. 14 H. 4. 23. 22 H. 6. 62. 13 H. 4. Executors 118. But if the Writ abate by the default of the Clerk, as where it abates for false Latin, or variance, or for default of form, etc. there, the Demandant shall have the benefit of a new Writ by Journeys accounts, because it was the default of the Clerk of the Chancery, and not the default of the Demandant himself, as the Books are agreed in 26 E. 3. Quare Impedit 163. 25 E. 3. 54. 48 E. 3. 5. 14 H. 4. 23. etc. So likewise, when the Writ abates for want of due Summons, for that is the default of the Sheriff, and no default in the Demandant: and therefore in such case also the Demandant shall have a new Writ by Journeys accounts. Co l. 7. 6. b. 3. in Milbornes' case. Vide Max. 57 Ex. 51. 35. For a Robbery done in the morning ante lucem, Hue and cry. the Hundred shall not be charged, because the Robbery was done in the night: And albeit no time be expressed in the Statute of Winchester. 13 E. 1. yet by good exposition it shall not extend to Robbery done in the night: for no Laches or negligence can be attributed to the Hundred for default of well guarding the Country in the night, also in the night they cannot make pursuit after the offenders, or inquiry for them, and then to charge them, when they are deprived of their convenient means, would be hard. Vide 57 50. Co. ibid. 36. At the Common Law, The Town amercied for homicide done there. if one were slain in a Town in the day time, viz. so long as there was full day light, and he that slew him escaped, the Town where the Felony was committed was to be amercied for it, and so it is held in 3 E. 3. Corone 238. Dum quis felonice occisus fuit per diem, nisi felo captus fuit, Tota villata illa oneretur: But if such a murder or homicide were done in the night, the Town shall not be amercied by the Common Law: because, in such case, no Laches or negligence can be imputed to the Inhabitants of the Town: For God hath ordained the day for men to work in, and the night for them to rest in: And therefore the Prophet saith, Posuisti tenebras, & facta est nox, in qua pertranseant bestiae silvae, etc. sub oritur & congregati sunt, exit homo ad opus & operationem & redit vespere: And the Poet saith: Ut jugulent homines surgunt de nocte latrones. Co. l. 5. 27. b. 6. in Sir Hugh Portmans' case. 37. Bar in Quare Impedit, & contra. If the Plaintiff in a Quare Impedit be nonsuited after appearance, that is peremptory, and a good bar in another Quare Impedit, albeit that it be brought within the six months; because in such case the Defendant upon title made shall have a Writ to the Bishop to admit his Clerk, which is a good bar in another Quare Impedit, and with this accords 19 E. 4. 9 22 H. 6. 44, 45. 33 H. 6. 1. 55. 20 E. 4. 14. 21 E. 4. 2. b. etc. F. N. B. 38. b. So if the Plaintiff in a Quare Impedit discontinue his suit, the Defendant upon title made shall have a Writ to the Bishop, and therefore this is also peremptory, and with this accords 31 H. 6. 15. Likewise, if the Plaintiff be made a Knight, hanging the Writ, the Writ shall abate, and the Defendant shall in that case also have a Writ to the Bishop: and (by consequence) that is also peremptory: for, all these are the Acts of the Plaintiff, and he doth them in his own wrong: But if the Writ of Quare Impedit within the six month's abate for false Latin, or insufficiency of the form, that is the default of the Clerk, and shall not be peremptory to the Plaintiff, neither shall the Defendant thereupon have a Writ to the Bishop, but the Plaintiff may in such case have a new Writ, because (in these cases) no default can be imputed to the Plaintiff, and with this agrees 3 H. 6. 3. 31. H. b. 15. F. N. B. 38. b. & h. Vide 34. Ass. Pl. 9 So likewise it is, if the Writ abate for the mis-naming of the Plaintiff or Defendant, if the Plaintiff confess it, the Defendant shall not have a Writ to the Bishop: for this may be also the default of the Clerk in writing it, and with this accords F. N. B. 38. See also 31 H. 6. 15. Goods stolen in an Inn. 38. If a man come to a common Inn, Co. l. 8. 32. a. Caleys case. & deliver his Horse to the Ostler and say nothing to him, whether the Ostler keep him in the Stable, or put him into a Pasture abroad without any order from the Owner to put him out to Pasture: In this case, if the Horse be stolen, the Inn-holder shall make him good: But if the Owner give order to the Ostler to put him abroad into a Pasture, which being done, the Horse is stolen or otherwise lost, in such case the Inn-holder is excused, and shall not answer for him: because by the Writ in the Register, the Inn-holder is not to answer for more than is within his Inn, and all that he is to answer for, albeit the guest hath a key delivered to him, and locks his goods, etc. within his Chamber, Vide the case at large. Amerciament, ●here. 39 In all Writs of Precipe quod reddat, as Writs of right, Co. l. 8. 60. b. 4. in Beechers case. Formedon, Aiel, Entry, etc. Praecipe quod permittat, as to have Estovers, Common, etc. or Precipe quod faciat, as Writs of Customs, Services, etc. if the Demandant be barred, or nonsuited, or his Writ abate for being vicious in matter or form, he shall be amercied: but if there be two Demandants, and the Writ abates by the death of one of them, the other shall not be amercied, 48 E. 3. 23. 46 E 3. Account 40. 5 E. 3. 3. 22 H. 6. 7. 38. E. 3. 31. 7 H. 6. 36. 41 Ass. 14. The like. 40. In all personal Actions, as Debt, Detinue, and the like, Co. l. 8. 61. a. 1. in Beechers case. without force or deceit to the Court, and also in Actions, which comprehend force or deceit to a Court of Record, if the Plaintiff be barred, nonsuited, or the Writ abate for being vicious in matter or form, he shall be only amercied, not fined, but if the Writ abate by the death of one of the Plaintiffs, or if one of the Plaintiffs appear and the other is nonsuited (which in Law in personal Actions is a nonsuit of both) he that survives or appears shall not be amercied, for there was no default in him: but only in him that appeared not: 47 E. 3. 6 43 Ass. 3. 7. H. 6. 36. 38 E. 3. 31. 41 Ass. 14. The like. 41. In all Actions real and personal, Co. l. 8. 61. 3. in Beechers case. if part be found for the Demandant or Plaintiff, and part against him, or all or part against one of the Tenants or Defendants, and nothing or but part against the other, the Demandant or Plaintiff shall be amercied, except no default be found in the Demandant or Plaintiff: And therefore in Trespass of Battery against Baron and Feme, supposing the Battery to be done by both, and the Feme is only found guilty, etc. and the Baron acquit: yet the Plaintiff shall not be amercied, for the Plaintiff cannot have any other Writ in such case, and therefore because no default was found in him, he shall not be amercied in this case. The King's ward dies before homage. 42. The King's Tenant in Capite under age is to remain in Ward, Co. l. 8. 172. a. Hales case. Prerogativa Reg. cap. 3. and the King is to receive the profits of his land until he do his homage, and that cannot be until he have sued out his Livery: And if at his full age he tender his Livery, he is to have three months to perfect it: Howbeit, if after such tender, by the Act of God (viz. death) he is prevented to perfect it, the King shall not receive the profits after such tender: but the next heir shall have them, and after such tender he might in that case sell the Land or any part thereof, and the sale shall be good, notwithstanding the King's hands upon it. Co. l. 9 87. a. 4. in Pinchons' case. 43. It is a Rule in Law, Where wager of Law in the Testator, Executors not chargeable. that where the Testator might have waged his Law, his Executors shall not be charged with that duty, & contra: because that advantage is lost by the act of God (viz. by death) and therefore shall not be imputed to any default of his: So debt lieth not against Executors for the diet of their Testator, because he might (in that case) have waged his Law, and so have freed himself thereof, which advantage being lost by his death (and no fault of his) his Executors, who represent his person, shall not be prejudiced thereby: Howbeit, if a Prisoner in the Tower for treason receive his diet of the Lieutenant, and die, the Lieutenant shall have an Action of debt against his Executors for such diet of the Testator; and the reason is, because (in that case) the Testator could not in his life time have waged his Law, as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case: And the reason why no wager of Law lieth in such case is, because every Gaoler ought to keep his Prisoner, in salva & arcta custodiae, and so must of necessity find him victuals, etc. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19 b. R. G. brings a Writ of debt of ten marks against T.T. and others, Executors of W. W. and counted, The like. that the Testator had retained the Plaintiff to be with him for a year in the art of limming of Books, paying him ten marks per annum; and there Martin held, that the Action of the Executors was not maintainable: And he took a difference betwixt this case of a Limmer, and that of a common Labourer; for a Labourer shall be compelled to labour, and his salary is put in certain by the Statute; and therefore there is no reason that the Servant should lose by the death of his Master (being bound by the Law to serve) which shall not be said to be his default, but the Act of God and the Law; Howbeit, in the case of a Limmer, he was not compelled by the Law to serve; And so when he made the Covenant, it was his own act and folly, and no act in Law; and he might have taken a Specialty: And this is good Law: but the true reason of that difference is, because in the Case of a common Labourer the Testator could not wage his Law, but in that of a Limmer he might, etc. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the marshalsea. 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke, Earl, Erroneous arrests. etc. which by the Law lies not against them, and this appears in the Writ itself: yet if the Sheriff arrest them by force of the Capias, albeit the Writ is against Law, nevertheless the Court having jurisdiction of the cause, the Sheriff shall be excused, because there is no default in him but in the Court, and with this accords 38 H. 8. Dyer 60. b. So it is likewise, if a justice of Peace makes a warrant to arrest one for Felony, who is not indicted, albeit the justice er in the Warrant, yet he that makes the arrest by force of that Warrant, shall not be punished by a Writ of False Imprisonment, because is is not his fault, but the justices, who is judge of the cause: and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigot's case. 46. If the Obligee himself alter the Obligation in any point material or not material by interlining, addition, racing, or the like, An Obligation void or not void by rasure, etc. that shall make the Obligation void: but if a stranger do it without the Obligees privity in a point not material, that shall not avoid the Deed: as if an Obligation be to be made to the Sheriff for appearance, etc. and in the Obligation after the sealing and delivery thereof, these words, Vicecom. Comit. Oxon, are interlined by a stranger without the privity of the Sheriff, yet the Obligation remains good, notwithstanding such interlining by a stranger without the Obligees privity, in regard it was not conceived to be a point material, Benedicto Winchcomb, his name and surname being there inserted before, and being done by a stranger it shall not in that case prejudice the Obligee. Refusal of Clerk. 47. Where the Bishop refuseth the Clerk of the Patron for non-ability or crime, he shall not present by Laps, F. N. B. 35. i. unless he have first given notice to the Patron of the insufficiency of his Clerk, & the Patron neglect to present within the six months; for (in such case) after the six months past, the Patron shall have a Writ to the Bishop, if the Church be void, and the Bishop have not in the mean time collated. 48. If one sell another a piece of Cloth and warrant it to be of a certain length; in this case, if the piece be not of that length, F. N. B. 98. k. a Writ of Deceit lieth against the Vendor, albeit the Warranty be but by Parol. Custom of Woad, uncertain by tempest. 49. In Fogassaes' case in the Comment. Pl. Com. ●. b. 1. in Fogassaes case. the storm at Sea being a thing, that could by no possible means be prevented, and that causing the uncertainty of the quantity of the Woad, and there being no means of knowing the certainty thereof before it should be landed and weighed, and that uncertainty being caused by no folly in the Defendant Fogassa, there was great reason he should be excused, and not made liable to forfeit the Woad, albeit he had not observed the strict words of the Statute in that case. Rent-charge, pro consilio impendendo. 50. If a man hath a Rent-charge granted him, Pro consilio impendendo, Dyer. 2. 2. 6 H. 8. and afterwards he is attainted of Treason and cast into Prison, so as the Grantor cannot have access to him for his counsel, yet he shall have the Rent during his Imprisonment; for he may give counsel as well in Prison as at large, and there is no fault in him, that the Grantor came not at him. A Sheep-biter. 51. If a man hath a Dog that kills Sheep, Dyer 25. b. 163. 28 H. 8. the Master of the Dog being ignorant of the Dog's condition, he shall not be punished for it: It is otherwise if he had notice of the Dog's condition and quality, for than it may be imputed to his own folly and neglect: See also Dyer 29. 195. 28 H. 8. Repair of River-bankes. 52. A Lease was made of a Meadow bordering upon the River of Exe in Devon by Deed indented, Dyer 33 10. 22, & 29 H. 8. and the Lessee covenanted to sustain and repair the Banks of the River, in pain of ten pounds, and afterwards by reason of a sudden flood upon subversion of certain Wears in Devon, the Banks were decayed and perished, etc. and by the opinion of Fitz. and Shelley, the Lessee shall be excused from the Penalty, as if it had been of an House, that had been burnt by lightning or thrown down by tempest, which are the act of God and cannot be resisted: Howbeit, in this case he ought to repair the Banks in convenient time. Act of God. 53. A man makes a Lease for years of Land, and a stock of Sheep, Dyer 56. 15. 35 H. 8. rendering rend, and all the Sheep die: In this case, the rent shall be apportioned, because it was the act of God and no default or neglect of the Lessee. Bond eaten with Mice. 54. In debt upon an Obligation, Dyer 59 a. 12. 36. H 8. if after non est factum pleaded and entered, the Labels by the negligence of the Clerk are eaten off with Mice, it seems this shall not prejudice the Obligee, because it did not happen by his default. Descent, a total Entry. 55. A man being beyond Sea out of the Realm is disseised, Dyer 143. 57 3, 4. P. M. and after he returns into the Realm, and then departs out again, during which time there is a Descent cast: In this case, if it cannot be proved, that he had notice of the Disseisin when he was in the Realm, it seems this Entry is not taken away, for by intendment of Law he could not have notice of the Disseisin, at the time when it was done: So if an Infant be disseised, and at his full age he goes beyond Sea, or takes Baron, or is imprisoned, during which time there is a Descent, his Entry shall be taken away for this Laches after his full age; but if he were within age, when he did such an act, it shall be otherwise. Dyer 241 50 8 El. 56. Undue practice. A Capias ad satisfaciendum returnable Tres Trin. being not served, the Solicitor of the Plaintiff takes it again of the Sheriff, and one of the Prothonotaries Clerks makes the Tres Trin. Tres Mich. and then the Solicitor re-delivers it to the Sheriff unsealed, viz. to the Sheriff of London, who makes Warrant thereupon to a Sergeant, who arrests the Defendant, and afterwards the Writ is sealed; And in this case, albeit the offenders for this undue practice were committed to the Fleet, yet afterwards it appearing upon examination, that the Plaintiff was ignorant of the practice, the Writ was received, and the Defendant committed also to the Fleet in execution. Dyer 260. 24. 9 Eliz. 57 Partition against two, the one confesses the Partition, Partition. and the other pleads to Issue, and in the Record of Nisi prius, the name of the Defendant was omitted by the negligence of the Clerk, being written & praedictus similiter, without more; Also the jury was betwixt the Plaintiff and both the Defendants, whereas one of them was not party to the Issue, which errors being apparent were amended by the direction of the justices of Nisi prius (quod nota) and so the jury taken. Dyer 318. 10. 15. El. 58. The Earl of Kent being reputed but an Esquire, The Earl of Kent. brings a Writ of Entry by the name of Esquire, and the Pannell was returned; now by the Heralds he was then newly declared Earl, and thereupon he challenged the Array, because there was no Knight in the Pannell, but it was not allowed, for that there was no default in the Sheriff, he being commonly reputed an Esquire. 150. Nemo debet rem suam sine facto vel def●ctu suo amittere. Litt. S. 442. Co. Inst. pars 1. 262. b. 1. If a man be disseised and he arraign an Assize against the Disseisor, and the Recognitors of the Assize chant for the Plaintiff, An Assize. and the justices of Assize will be advised of their judgement, until the next Assize, etc. and in the Interim the Disseisor dies seized: In this case, this dying seized shall not toll the Entry of the Disseisee, because the bringing of the Assize amounted to a continual claim, and Nemo debet rem suam sine facto vel defectu suo amittere. Note, that this is a Quaere in Littleton, but is since adjudged for good Law. Vide supra M. 149. Ex. 17. Litt. S. 443. Co. ibid. 263. b. 1. etc. 2. If an Abbot die, and during the vacation, Descent tolls not Entry. a man tortiously enters into part of the Land belonging to the Monastery, and dies thereof seized, and afterwards a new Abbot is elected; this Descent shall not toll the Entry of the new elected Abbot: because, this Entry and Descent was not occasioned by any act or default of or in the new Abbot, the Land being during the vacation in abayance and custody of the Law, and for that by the death of the former Abbot (which is the act of God) there was no person able to make continual claim. This is also a Quaere in Litt. It is so likewise of Dean and Chapter, Mayor and Comonalty, Master and Fellows of a College, or any other Corporation aggregate of many, where such a Descent happens when they want their head, viz. Dean, Mayor, Mastor, etc. for then they are not in a capacity to make claim: Also if an Usurpation to a Church be had in time of Vacation, this shall not prejudice the Successor to put him out of Possession, but that at the next avoidance he shall present. Litt. S. 588, 589. Co. ibid. 323. b. 3. 3. If my Tenant, who pays me a Rent-service in gross, Rend paid to a stranger. atturnes and pays it to a stranger, this shall not put me out of possession of the Rent; albeit the stranger die and a Descent is cast: for still I may distrain my Tenant for all in arreare, and, Nemo redditum alterius invito Domino precipere aut possidere potest. Release of warranty. 4. If one enfeoff two with warranty, Co. ibid. 393. a. 1. and the one release the warranty, yet the other shall vouch for his moiety. A Donative. 5. If the Patron of a Church, Prebend, chantry, Chapel, etc. Co. ibid. 344. a. 2. Donative, doth once present to the Ordinary, and his Clerk is admitted and instituted, it is now become presentable, and shall never be Donative after, and then also Laps shall incur to the Ordinary, as it shall of other Benefices presentable: but a Presentation to such a Donative by a stranger, and admission and institution thereupon, is merely void. Debt. Execution. 6. If the Defendant in debt die in execution, Co. l. 5. 86. b. 4. in Blumfeilds' case. the Plaintiff may have a new execution by Elegit or Fieri facias; because the Plaintiff shall not be prejudiced, nor the Defendant take benefit by the act or tort of the Defendant, in not paying his debt, when no default was in the Plaintiff, he having pursued the due and ordinary course of Law. Lord, Mesne, and Tenant. 7. The King is Lord, A. Mesne, Co. l. 6. 6. a. 1. in Sir Jo. Molyns case. and B. Tenant of the Manor of D. B. commits treason, and after Attainder an Office is found, and the Manor seized into the King's hand, afterwards the King grants the Manor to C. and his heirs, Tenendum de nobis, heredibus & successoribus nostris, & aliis capitalibus dominis feodi illius per servicia vide debita & de jure consueta: These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture, and the tenure of the Mesne is thereby preserved; for, it is against reason and equity, that the Mesne, who did no wrong, should lose his services. Seisin of rent. 8. Where payment of a rent by a Bailiff, or Tenant for life, Co. l. 6. 59 a. 4. in Bredimans' case. for years, or at will, works a special prejudice to the Master or Lessor, it shall not be accounted suffcient Seisin thereof; as if the Lord hath not had Seisin of his rent within sixty years, and the Tenant makes one his Bailiff generally of his Manor; In this case, the Bailiff cannot without express command of his Master, pay this remediless rent to the Lord, or if he do it otherwise, it worketh no Re-seisin thereof, so it is also, if the Tenant for life, for years, or at will pay such a rent without order of the Tenant of the Franktenement. A grant without Attornement. 9 If a man be seized of a Manor, part in Lease for life, Co. l. 6. 68 a. 1. in Sir Moyle Finches case. and other part in Lease for years, and he levy a Fine to A. to the use of B. in tail, with divers Remainders over: In this case, B. shall avow for rent, or have an Action of Waste without Attornement: for when a Reversion is settled in any in judgement of Law, and he hath no possible means to compel the Tenant to atturne, and no Laches or default in him, in such case, he shall avow or have Action of Waste without Attornment: for the Rule is, Quod remedio destituitur, ipsa re valet, si culpa absit. Quare Impedit abate. 10. A Quare Impedit against the Bishop and Incumbent, Co. l. 7. 25. b. 4. in Hall's case. without naming the Patron, shall abate: for otherwise, the Patronage shall be in that case recovered against him who hath nothing in the Patronage: and it is against reason, that he, who is Patron, should be dispossessed and ousted of his Patronage, when he is a stranger and no party to the Writ. No damage without notice. 11. A. by a writing purporting his Will, Co. l. 8. 92 a. 3. in Frances, case. deviseth Land to B. and his Heirs, but afterwards (without the knowledge of B.) enfeoffs C. to the use of B. for life, with divers Remainders over, provided that B. disturb not the Executors of A. from carrying away the goods: A. dies, B disturbs the Executors, the next in Remainder enters upon B. into the Land: In this case, albeit B. had made disturbance against the words of the Proviso, yet he shall not thereby forfeit his term without notice of the Condition; for none shall lose any Estate or Interest, which he lawfully hath, without some act or default in himself; and therefore (in this case) in as much as B. was a stranger to the Feoffment, he shall not lose his estate without notice given him of the Proviso: Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest; which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargain of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for nonpayment of rent reserved upon a Lease upon Demand thereof, Co. l. 5. 113. in Mallories case. without giving notice thereof to the Lessee. The like. 12. Co. l. 8. 92. a. 4. in Fra●ces case. If the estate of the Lord of a Manor cease by Limitation of an use, whereby the use and estate thereof is transferred to another, the demand of the rent of a Copyholder, who denies to pay it to him, causeth no Forfeiture without giving notice to the Copyholder of the alteration of the use and estate: And so it was adjudged Hill. 1. Jac. in Trespass, inter Beconshaw Plaintiff, and Southcote, and others Defendants. So likewise the Bargainee of a Manor by Deed indented and enrolled shall not take advantage of a Forfeiture of a Copyholder for denial of payment of rent without notice to him given of the bargain and sale; for the Law will never compel a man to take notice of acts done amongst strangers, Co. ibid. 93. a. 1. or of any uncertainty upon pain of forfeiting a man's Estate or Interest, but in such cases notice ought to be given to those that are to suffer the loss: It is otherwise when a man binds himself to do a thing, as to perform an Arbitrement, to pay the ovus, which such an Auditor assigned shall charge him withal, or the like; for in such case he takes upon him to do it. Error in a Fine. 13. A Fine was levied of a Manor and other Lands, Co. l. 5. 43. Bohuns case. to the value of twenty Marks per annum, so as the Kings-silver was forty shillings, which was paid, but in entering of it upon the Writ of Covenant, the Manor was omitted, and thereupon Error was brought; but after that, albeit the transcript of the Fine was removed into the Kings B. the judges of the Common Place amended the Record, because it appeared to them, that the Kings-Silver was paid for the Manor: and whereas the Writ of Covenant was, Deed meipso, for Teste meipso, they amended that also, and certified it into the K. B. upon Diminution, and it was allowed; for it was against reason, that the Misprision of the Officer or Clerk should prejudice the Conusee, when it happened not by any default or neglect in him. Vide Dyer 225. 34. Ni●i Prius. 14. At a Nifi prius the jury after departure come again, and said, Dyer. 218. 4. 5 Eliz. that they were all agreed save one, who had eaten and drunk, thereupon they were re-manded at the request of the Plaintiff, and after gave Verdict for him, and this was held good: Howbeit day was given in Bank to assess a Fine upon the said juror, and the Fine was assessed at twenty pounds, but the Plaintiff had judgement. Execution. 15. Dyer 244. 61. 8 Eliz. The Solicitor of the Plaintiff and the Sheriff conspire to arrest one condemned in debt, and after procure a Capias ad satisfaciendum, and the Prisoner being brought into the Court upon the return of the Writ, had the matter examined, and it was found, ut supra; yet because the Plaintiff was not particeps criminis, he remained still in execution, and the Sheriff and Solicitor were amercied, viz. the Sheriff at ten pounds, and the Solicitor at five pounds. 151. It driveth not a man to show, take notice of, or do that which by intendment he knoweth not, or should or cannot do. Men in one County take no notice of things done in another. 1. Because the Inhabitants of one County do not accampany together with men of another County at County Courts, Turns, Leetes, Co. Inst. pars 50. a. 1. and othor Courts, therefore in judgement of Law they shall take no notice of a Livery in another County to pass Lands in their own County. Waste. 2. If waste be done Sparsim (here and there) in Woods, the whole Wood shall be recovered: Co. ibid. 54. a. 4. So likewise in Houses so many whole Rooms shall be recovered, wherein the Waste is done: for it would be impossible, or (at least) inconvenient for the Plaintiff to recover only part of the Wood, or part of the Rooms of the Houses; because (in such case) he could not be able conveniently to make any use of them. Protection cast. 3. Co. ibid. 131. a. 4. A protection may be cast either by a stranger or by the party himself; for, an Infant, Feme covert, Monk, or any other may cast a protection for the Tenant or Defendant; and this difference there is, when a stranger casteth it, and when the Tenant or Defendant casteth it himself; for, the Defendant or Tenant casting it, he must show cause wherefore he ought to take advantage of the protection, but a stranger need not know the cause, save only that the Tenant or Defendant is thereby protected, because it is presumed the stranger may not know the cause. Co. ibid. 157. a. 2. Dy. 231. Challenge. 4. He that challengeth for the Hundred, must show in what Hundred it is, and not drive the other party to show it. Not to show writings. 5. If Land be mortgaged upon Condition, Co. ibid. 226. a. 3. and the Morgagee letteth the Lands for years, reserving a rent, the Condition is performed, the Morgagor reenters, in an Action of Debt brought for the rent, the Lessee shall plead the Condition and Reentry without showing forth any Deed: So in an Assize the Tenant pleads a Feoffment of the Ancestor of the Plaintiff unto him, etc. the Plaintiff saith, That the Feoffment was upon Condition, etc. and that the Condition was broken, and pleads a Reentry, and that the Tenant entered and took away the Chest, in which the Deed was, and yet detaineth the same: In this case, the Plaintiff shall not be enforced to show the Deed. Wager. 6. Wheresoever a man is charged as Executor or Administrator, Co. ibid. 295. a. 4. he shall not wage his Law, for no man shall wage his Law of another man's Deed, because the Law presumes he is not acquainted therewith: It is otherwise of a Successor to an Abbot, for that the House never dies. Acceptance of rent, no confirmation. 7. P. Leases on Condition the Lessee shall not alien any part, Co l. 3. 64. a. 4. in Pennants' case. the Condition is broken, the Lessor before notice accepts the Rent due after: This acceptance is no confirmation of the Lease; because the Assignment may be so secret, that the Lessor cannot know it: It is otherwise, where a Lease is made rendering rend at a certain day with clause of Reentry upon nonpayment of the Rent; in this case, if the Lessor hath advantage of Reentry upon nonpayment of the Rent at the day, acceptance of the Rent after confirms the Lease; because the Lessor in such case might know the day and time of payment of the rent. Certain quantities of water not required. 8. Co. l. 4. 88 b. 4. in Luttrells' case. In an Action upon the case for diverting a stream of water from a Mill, the Plaintiff may allege the diverting of a great quantity of water without showing how much in certain; for it is impossible to show how much water in certain runs by the Mill, and the quantity of water is not material. Co. l. 4. 27. b. 4. in Hubbard and hamond's case. 9 Where a Copyholder pays a certain Fine, Copyhold Fines. he ought to pay it at the Court upon his admittance; but where the Fine is uncertain, the Copyholder is not bound to pay it presently, because he knoweth not what Fine the Lord will assess, & nemo tenetur divinare; And, because he cannot then provide any certain sum, he shall have a convenient time to pay it, in case where the Lord limits no certain time for the payment thereof. Co. l 5. 101. a. 2. in Penrud docks case. 10. Nusance. Quod permi●tat. A. raiseth an house to the nuisance of the curtilage of B. in this case, if A. alien his house, and B. his curtilage, the Feoffee of B. shall not have a Quod permittat against the Feoffee of A. before notice given to the Feoffee of A. to abate the nuisance; because he was a stranger to it, and (by consequence) might be ignorant thereof: Howbeit, B. might have brought it against A. without notice, for that A. was the Actor of the nuisance. Co. l. 5. 113. b. 1. in Mallories case. 11. Notice requisite to take advantage of a Condition. If the Lessor in the absence of the Lessee enter and make Feoffment, and the Lessee re-enter, albeit this amounts to an Attornement in Law, yet without notice given of this Feoffment to the Lessee, the Feoffee shall not make demand of the Rent reserved upon the Lease by Entry for the Condition broken: for, although he may (in that case) distrain or have an Action of Debt for the Rent, or an Action of Waste (because in his Avowry or Count, he may allege the Feoffment whereof the Lessee might then have notice) yet he cannot demand the rent upon the Condition without notice; for than it would not be possible for the Lessee to know to whom he should pay the rent, to save his term, nor to have notice of the Feoffment in such case, before he should have forfeited his term: So if the Lessor bargain and sell the Reversion by Deed indented and enrolled, the Bargainee (albeit here needs no Atturnment) shall never take benefit of a Condition, upon demand of a rent, without giving notice to the Lessee of the bargain and sale: for although the bargain and sale by Deed indented and enrolled be upon Record, yet for as much as it may be enrolled in so many Courts in secret manner, the Law will not force all the Farmers of England, who have Conditional Leases, to make every six months such infinite search, to save their terms, but the Law (in such cases) for the preservation of the Interest and Term of the Lessee compels the Bargainee (who is to take benefit of the Condition) to give notice thereof to the Lessee, who is a mere stranger thereunto. Per Popham, and not denied by the rest of the justices. Co. l. 7. 4. b. 3. in Bulw●rs ca●e. 12. Deceit. Contrivance of the passages in deceit need not to be alleged specially; for it sufficeth (in such cases) to say, maliciose & deceptive machinatus fuit, etc. without alleging particulars; because such passages are so secret and uncertain, that they cannot be known or tried. Co. l 7. 6. a. 3. in Sends case. 13. Robbery. Robbery of an house by day or by night is neither within the letter nor meaning of the Statute of Winchester, 13 E. 1. because when a Robbery is done in an house, it is so secretly done, that the Hundred cannot take notice thereof: It is otherwise of Robbery upon the Highway, for that is openly done, and therefore the Hundred may of themselves take notice thereof. Co. l. 8. 602. 1. in Beechers case. 14. If the Defendant or Tenant plead a false Deed made to him, Denial of a Deed, sine amerciament. or deny his own Deed, and it be found against him, or if relicta verificatione cognovit actionem, he shall be fined for his falsehood, Quia certi debemus esse de proprio facto: but if one deny the Deed of his Ancestor, or plead a Deed made to his Ancestor, and it is found against him, yet he shall not be fined but only amercied, Quia de alieno facto: So if one deny a Recovery or other Record, whereunto he is party, he shall not be fined; for it is not his act but the Act of the Court, and he doth not deny the Record absolutely, but, non habetur tale recordum. The pedigree of the Donee not named. 15. If a man brings a Formedon in Reverter or Remainder, as heir, Co. l. 8. 88 a. 3. in Buckmeres case. Pl. Co. 56 a. 1. omission of an eldest Son, which survived his Father, or the like, in the pedigree on the part of the Donor, or of him in Remainder shall abate the Writ; but on the part of the Donee, albeit the Donee had many issues in the lineal descent inheritable to the estate tail, and which held the Land, the Demandant need not name any of the Issues in the Clause, Et quae post mortem, but he shall say, Et quae post mortem le Donee ad ipsum reverti debet, eo quod le Donee obiit without Issue; because the Demandant is a stranger to the pedigree of the Donee, and therefore (by intendment) knoweth it not. An uncertain Plea good. 16. In debt against an Administratrix, Co. l. 9 110. a. 3. in Meriel Treshams' case. the Defendant pleads one Recognizance of eight hundred pounds, and another of one thousand pounds, the Plaintiff replies, that the eight hundred pounds Recognizance was for the payment of 400 l. which is paid, & that the 1000 l. Recognizance was for the performance of Covenants, which are not broken, yet both kept on foot uncancelled by Covin of the Defendant: In this case, the replication of the Plaintiff is good notwithstanding the uncertainty; for albeit he neither pleads a Defeasance for the payment of the four hundred pounds, nor what Covenants in particular they were, for which the one thousand pounds Recognizance was entered into, yet the replication is good; because the Creditor is a stranger to them, and hath no means by Law to know the particular certainties. A Deed not showed. 17. He that claims a thing or any Right or Interest out of it, Co. l. 10. 93. b. 4. in Doctor Leyfeilds' case. or justifies in right of the Grantee, in such cases the first Grant aught to be produced; As the second Grantee of a Rent-charge shall show the first Grant, and so shall his Bailiffs, etc. but where a man is a stranger to a Deed, and claims nothing contained in the Grant, nor any thing out of it, nor doth any thing in the right of the Grantee, as Bailiff or Servant, there he may plead the Patent or Deed without showing it. Damages, where counted for, and where not. 18. There is a Diversity betwixt personal Actions and real Actions, Co. l. 10. 117. a. 2. in Robert Pilfords' case. wherein damages are to be recovered, for in personal Actions the Plaintiff shall count for damages: because he may know in certain what damage he hath suffered before the Writ purchased, and those he shall only recover, but in real Actions the Demandant shall never count for damages, because he is to recover damages, hanging the Writ, which being uncertain, he shall not count for them, but shall have them assessed after by Writ of Inquire, as in a Writ of Entry sur Disseisin, or in the nature of Assize, as it was held in 33 H. 6. 47. a. Parson, impersonee. 19 When a thing is beyond time of memory, Co. l. 11 10. a. 2. Priddle and Nappers case. a man is not compellable to prove the Commencement thereof, as where a Prior and his Predecessors have been Parson's Imparsonees of a Church time out of mind, proof of the Commencement thereof, and whether it were by appropriation or union is dispensed withal: because (by intendment) not such proof can be made. Action of Account. 20. Fitz. N. B. 117. c. c. If a man having cause to bring an Action of Account against one as his Bailiff or Receivor, makes his Executors and die: In this case, his Executors shall have that Action, for that the Executors may by rentals and otherwise know how to charge them: but an Action of Account lies not against the Executors of a Bailiff or Receivor for the receipt or occupation of their Testator: because (by intendment) they being ignorant of the accounts of their Testator, are not able to defend themselves: So likewise, the Executor of a Merchant shall have an Action of Account against another Merchant, but not against the Executor of a Merchant. Covin. 21. Covin need not be certainly pleaded, Pl. Co. 46. a. 3. in Wimbish and Talbois case. but may be alleged generally: for Covin is a secret thing contained in the heart of a man, whereof (by intendment) another man can have no knowledge, and then the law will never force a man to show that, which by intendment of Law lieth not within his cognisance: And therefore a woman shall have dower of a rent-charge without showing the deed of the grant; because it belongs not to her. vide plus ibidem, & 54. b. 1. in Wimb. and Talb. case. Pl. Co. 64. b. 4. in Dive and Maninghams' case. vide Pl. Co. 83. b. 4. in Stranges' case. 22. A general act need not be specially pleaded; Pleader of a Statute. for the judges ought to take notice thereof without special pleading; but a particular Act, or a particular Act in a generalty (as when it concerns a certain sort of men, as Sheriffs, justices, or the like) ought to be specially pleaded, at least the branch thereof, which concerns the present matter: for (by intendment) the judges cannot take such notice thereof as of an Act which generally concerns all the people of England, within which number they themselves are included. P. C. 81. b. 3. in Partridges case, and 84. a. 3. and 85. a. 4. 23. In an action brought upon the Statute of 32. H. 8. 9 against such as buy pretenced titles, if it be for the demise of a lease, Monstrance des faits. Pretenced ●itles. the plaintiff shall not be compelled to show the term, rent, or any other circumstances thereof; because he is a stranger thereunto, and (by intendment) can by no means come to the knowledge thereof; And this may well be resembled to the cases of showing of deeds: And therefore in 35. H. 6. 8. where an action is brought for goods carried away, the defendant justifyes, for that at the time of the trespass supposed to be done he was Mayor of the town of C. and that the King had granted unto the defendant (being then Mayor) and to the commonalty, and their successors, all goods of outlawed persons within the said Town, and shows that the plaintiff was outlawed, and so justifies: And by the better opinion the plea is good without showing the letters patents; because they now belong to his successor and not to him, and he is now become a stranger to them, albeit he was once privy to them, being Major, etc. vide plus ibidem. and 84. a. 3. and 85. a. 4. Pl. C. 123. a. 4. in Sir Richard Binkleys' case. 24. In an action brought against the Sheriff upon the Statute of 23 H. 6. 15. for making an untrue return of the Knights of Parliament, Election of Knights of Parliament. the Plaintiff shall not be compelled to plead a certain number of the Electors; because he can by no means come to the knowledge of them, and therefore shall express them generally by the greater number, without giving the number of them in certain: So in debt against an executor, the Defendant pleads, ne unques executor, ne administer come executor, to this the Plaintiff may say, that at such a place he administered, without showing what things he there administered, because he cannot come to the knowledge or number of them, being not privy thereunto: And so it is also of things of an infinite number, as if a man be bound to save the Sheriff harmless of all things concerning his office, he shall allege, that he hath discharged him generally, without showing the things in certain, because the things are of so great a number, that the certainty thereof cannot (by intendment) be remembered or known: Also, if a man be bound to shear yearly the sheep of the Obligee going in such a pasture, he shall say that he hath shorn them without showing the number, for peradventure some years there were more, some years fewer, so as he cannot (by intendment) remember the certain number. 25. A. brings an action of debt against B. upon an Obligation by the father, wherein he bond himself and his heirs, Co. l. 5. 60. Gooches case. B. pleads riens per descent, A. maintains that assets at D. in come. S. descended unto him: And upon a Nisi prius before Sir Christopher Wray the descent was proved, and agreed; whereupon B. the defendant gives in evidence, that long before the action commenced, he enfeoffed one C. of the Land, which was also confessed; but A. the plaintiff proves likewise, that that feoffment was made by fraud to deceive him of his action, and therefore void by the Statute of 13. Eliz. 5. Now it was strongly urged, that this aught to have been pleaded, and could not upon the issue (Riens per descent Jour del brief purchase) be brought in evidence: But it was resolved that it might be brought in evidence without pleading; because fraud and covin (for that they are odious) are so privily hatched in an hollow tree (in arbore cava & opaca) and so artificially covered and concealed, that the party grieved hath no means to find or know them, and then to force the Plaintiff to plead the feoffment (whereof he hath no notice) and also that it was done by fraud, is both against Law and reason, being indeed very mischievous to creditors, and tending much to the maintenance and increase of fraud and covin. Feoffment upon condition. 26. A. enfeoffs B. upon condition, Co. l. 5 96. b. 1. in Goodals' case. that if A. after the death of B. pay unto the heirs, executors, or administrators of B. 100 l. that then the feoffment shall be void, afterwards B. enfeoffs C. and C. enfeoffs D. etc. B. dies, A. pays the 100 l. to the heir of B. In this case, the condition is performed, albeit the heir was then a stranger to the Land, because the heir is the person expressly named in the condition, to whom the payment shall be made, and the feoffor is a stranger to the conveyances, which the feoffee and his assigns have made, and therefore the feoffor shall not take notice at his peril of the validity thereof, nor of the conditions or limitations annexed thereunto. Quo minus Charter pleaded without showing it. 27. In the Exchequer the King's Farmer brings a Quo minus, Dyer 174. 18. 1, 2. Eliz. and in his Count entitles Qu. Eliz. to the reversion of his term by the grant of his lessor (who was Sir Richard Sackvile) of the reversion to the Duke of Northumberland with his attornement to the said Duke, and after the Duke grants it over to E. 6. in fee, by deed enroled, and doth not allege expressly, that Sir Richard Sackvile granted the reversion by deed, but generally, quod concessit reversionem hadendam in feodo, ad quam quidem concessionem idem querens se inde Atturnavit: And in this case the Count (per Dyer) was good without saying per cartam, and without producing it into Court; because the Farmer was a stranger to the deed or grant, and had not the power of it, for that it belonged not to him, neither did he convey any title to him under it; T. 17. H. 6. Rot. 121. So in an Assize, the Plaint was made of Land and rent, and the tenant conveyed them unto him by the grant of A. in tail, the remainder to the King in fee, and prayed Aid of the King without showing the deed, and without saying, concessit tenementum per cartam, & habuit Auxilium, etc. Feomedon. 28. In a Formedon in Reverter the donor need not show the pedigrees of the issues of the donee, nor who was last seized, Dyer 216. 56 4. Eliz. because he is a stranger to the pedigree, and by intendment cannot come to the knowledge of it: It is otherwise in a Formedon in discender; Quaete in Remainder. Appeal. 29. The Lessee of a Parson brings an Ejectione firmae, Dyer 240. 46. 7. Eliz. the defendant pleads that the parson was deprived, the Plaintiff saith, that the parson hath appealed to the Archbishop of Canterbury in Curia sua prerogativa de Arcubus, and because the words of the Statute of 24. H. 8. 12. are, the appeal that shall be to the Archbishop of the Province, or, etc. without limiting any Court in certain, the Defendant demurred; And these words to the Archbishop of Canterbury were held sufficient, because of substance, etc. And in this argument although it appeared by the Civilians that the Arches were not the Prerogative Court, yet because the Defendant did not show it, but demurred generally, the Temporal judges were not bound to take notice of their jurisdictions. Formedon in Rem. 30. In a Formedon in Remainder brought upon a Remainder in use after the Statute of 27. H. 8. It was held by the Justices, Dyer 277. 58. 10. Eliz. that the demandant need not show the deed of the remainder, 1. because (in this case) the remainder might be created without deed, 2. for that the deed did appertain to the feoffees, and not to Cestuy que use, and therefore might not be in his power to produce. Hob. 51. Holmes and Twist. 30. A. being possessed of 10 ton of woad, sells to B. one ton thereof, Assumpsit. for which B. promiseth to pay him according to such rate as he should sell the rest for; A. sells the rest after the rate of 23 l. the ton: In this case, A. shall not recover the 23 l. of B. before he hath acquainted B. at what rate he sold the rest; because the price is a secret thing betwixt A. and his other chapmen, whereof B. is not bound to take notice; as it was adjudged upon a Writ of Error in the Exchequer Chamber T. 12. Jac. Rot 1758. 152. Nor to do that, which were in vain for him to do. Litt. S. 103. Co. Inst pars 1. 79. a. 2. 1. If an heir female be married within the age of 14. in the life of her ancester, and the ancester die, she being still within the age of 14, Tender of marriage. the Lord shall have but the ward of the land until her age of 14, and shall not within the two years after tender her marriage, according to the Statute of Westminster. 1. cap. 22. for that is without the case of the Statute, it being in vain for the Lord to tender her marriage, when she is already married: Natura non facit vacuum, nec Lex supervacuum. Litt. S. 179. Co. ibid. 119. a. 3. 2. If a villain purchase a reversion, Claim by Lord. the Lord (after attornment) ought to claim it upon the land to entitle himself thereunto; so it is also of a rent, common, or other inheritance issuing out of land: but if a villain purchase the signory, or a rent, common, or, etc. issuing out of the land of the Lord himself, it is said, that the signory, rent, common, etc. are extinguished in the Lord's possession without any claim; for it is needless to claim them upon the Land, when he himself is possessed of the land, out of which they are issuing. Co. ibid. 123. b. 3. 3. A villain shall not have an appeal of Robbery against his Lord, Appeal. Lord and Villain. for that the Lord may lawfully take the goods of the villain as his own: and then it would be in vain to bring an appeal against the Lord for taking his own goods. Litt. S. 194. Co. ibid. 126. b. 3. 4. If the Lord mayhem his villain, Appeal of mayhem. he may be indicted for it at the suit of the King, and thereupon make Fine for his offence; but the villain shall not have an appeal of mayhem against his Lord; because in such appeal he shall recover only damages, which the Lord after execution may take again, and so the judgement would become inutile and illusorie, and sapiens incipit a fine, And the law never giveth an action, where the end of it can bring no profit or benefit to the Plaintiff. Litt. S. 273 Co. ibid. 178. b. 4. 5. A man seized of 30 acres of land of equal value, Hochpot. and having two Daughters, gives 15 acres with one of them in frankmarriage and dies, and the other 15 acres descends to the other Daughter: In this case, there shall be no casting into hochpot; because the lands were of equal value at the time of the partition; for it were in vain to put them into hochpot, being equal, no alteration since (by the act of God or otherwise) whereby the lands are bettered or impaired, being to be had in consideration. Co. ibid. 19●. b. 1. 6. If there be two tenants in common of a rent, as money, grain, Tenants in common. or any severable thing, and they be disseised thereof, they shall bring several assizes for the recovery thereof, because they have it by several titles: Howbeit, if the rent be a Hawk, horse, or any other entire thing, which cannot be severed, they shall join in an assize for it: because the Law will never enforce a man to demand that, which he cannot recover, and a man cannot recover the moiety of an Hawk, horse, or the like, Lex neminem cogit ad vane seu inutilia. Co. ibid. 218. a. 4. 7. If I grant a rend charge in fee out of my land upon condition, Claim not needful. there if the condition be broken, the rent shall be extinct in my hand; because I (that am in Possession of the Land) need make no claim upon the Land, and therefore the Law shall adjudge the rent void without any claim. Claim the like. 8. If a man make a Feoffment unto me in fee, Ibid. upon condition that I shall pay unto him twenty pounds at a day, etc. and before the day I let unto him the Land for years reserving a rent, and after fail of paying the twenty pounds; In this case, the Feoffor shall retain the Land to him and his Heirs, and the rent is determined and extinct; for that the Feoffor could not enter, neither hath he need to claim upon the Land, because he himself was in Possession, and the Condition being collateral is not suspended by the Lease. The like. 9 If a man by his Deed in consideration of Fatherly love, Ibid. b. 1. & 237. a. 2. etc. covenant to stand seized to the use of himself for life, and after his decease to the use of his eldest Son in tail, the Remainder to his second Son in tail, the Remainder to his third Son in fee, with a Proviso of revocation, etc. The Father makes a Revocation according to the Proviso; In this case, the whole estate is immediately (upon the Revocation) revested in him without Entry or Claim, causa qua supra. Release good. 10. A Release to a Tenant at sufferance (as to one that holds over his term) is void, Co. ibid. 270. b. a. Litt. S. 460, 461. but a Release to a Tenant at will by the Owner of the Land is good to convey the Inheritance unto him, because there is between them a Possession with a privity; for it would be in vain to make an estate by Livery to him who hath already Possession of the Tenements by the Owners consent. Averment. 11. That which is apparent to the Court by necessary collection out of the Record need not be averred, for it were vain to aver that, Co. ibid. 303. b. 3. which is apparent to the Court already. Attornment of T. in tail. 12. Albeit Tenant in tail may attorne where the Reversion of his estate is granted over, yet he is not compellable to attorne, Co. ibid. 316. a. 4. although such Grant of the Reversion be by Fine; because he hath an estate of Inheritance, which may continue for ever: and therefore it were a vain thing to require any Attornment from him. Attornment. 13. If a Lease be made for life, the Remainder to another in tail, Litt. S. 578. Co. ibid. 319. b. 1. the Remainder to the right heirs of the Tenant for life; In this case, if the Tenant for life grant his Remainder in fee, that Remainder passeth without Attornment; for here, if any should attorne it should be the Tenant for life, and it were in vain for the Tenant for life to attorne upon his own Grant. Attornment. 14. In these eases following, Co. ibid. 318. a. 4. the Tenant is not compellable to attorne; because if he should it were in vain for him so to do: As 1. if an Infant levy a Fine, the Tenant shall not be compelled to attorne; because the Fine is defeasible by Writ of Error during his minority: So if Land be holden in ancient demesne, and he in the Reversion levieth a Fine of the Reversion at the common Law, in this case, the Tenant shall not be compellable to attorne, because the estate that passed is reversible by a Writ of Deceit: Also if Tenant in tail (before the Statutes of 4 H. 7. and 32 H. 8.) had levied a Fine, the Tenant should not have been compelled to attorne, because it was defeasible by the issue in tail: but since those Statutes (which give strength to Fines to bar the Issue in tail) the reason of the common Law being taken away, the Tenant in this case shall now be compelled to attorne, as it was adjudged in justice Windhams case, Co. l. 3. fol. 86. Lastly, if an alienation be in Mortmain, the Tenant shall not be compelled to attorne; because the Lord Paramont may defeat it. Co. l. 5. 21. a. 1. Sir Anthony Manes case. 15. A. Leases for one and twenty years to B. and is bound to make a new Lease to B. upon surrender of the old, A. Disability to make surrender. Leases to another for eighty years by Fine; in this case, the Bond is forfeit; Albeit the first act is to be done by B. viz. to surrender, and albeit he never surrender: for by the Fine levied for eighty years, A. hath disabled himself both to take the Surrender and to make a new Lease; And the Law will not enforce a man to do a thing which will be vain and fruitless, To make Feoffment. Lex neminem cogit at vana & inutilia per agenda: but it would be a vain thing to compel B. to surrender to A. when A. is not in a capacity to take it: So if a man seized of Lands in fee Covenants to enfeoff I. S. of them upon request, and after he makes Feoffment in fee of the said Lands; in this case, I. S. shall have an Action of Covenant without request, because it would be in vain for I. S. to make request, when the other hath disabled himself to do it. Co. l. 5 121. b 4. in Long● case. 16. In some cases upon an Indictment of Manslaughter it may be requisite to express the length and depth of the wound, A wound upon an Indictment. because it may appear thereby whether or no the wound was mortal; but when the wound penetrates through the body it is not necessary to show them; because it were vain to show them, when the wound appears to be mortal of itself without producing those dimensions. Co. l. 9 54. a. 4. in Batens case. 17. In a Quod permittat brought by A. against B. for building an House so near the House of A. that it jutties over the House of A. it is sufficient to say, Nusance. Ad nocumentum liberi tenementi ipsius A. without assigning any special Nuisance; for it were in vain to assign any such special Nuisance, when it appears to the Court, that it must needs be to the Nuisance of the Plaintiff; because the rain, which falls from the House of the Defendant must of necessity fall upon the House of the Plaintiff: And Cujus est solum, ejus est usque ad Caelum: Also by over-hanging of the Defendants House, the Plaintiff is hindered of Air, and building his House higher, etc. Co. l. 9 106. a. 4. in Margaret Podgers case. 18. A. being Copyholder for life, Remainder for life, Fine of a Copyhold in bar. the Lord bargains and sells and levies a Fine to A. with Proclamations, and five years pass without any claim by those in Remainder, nevertheless they in Remainder shall not be barred; for no Fine or Warranty shall bar any estate in Possession, Reversion, or Remainder, which is not devested and put to a right: because he that hath the estate in him cannot be put to his Action, Entry, or Claim: for that he hath already that which Action, Entry, or Claim can vest in him or give him: And therefore in vain was the bargain and sale and Fine, when they could not alter the estates of them in Remainder. Co. l. 10. 90. a. 4. in Doctor Leyfields case. 19 Colour shall not be given in any Action, Colour to the Plaintiff. where the Plea goes in bar of the right: for it were in vain to give colour of right, and to bar it after: As in Assize or Writ of Entry in nature of an Assize, if collateral Warranty be pleaded, and the Defendant rely upon it, or if an Estoppell be pleaded, or Fine levied with Proclamations, etc. there is no need of any colour to be given, because the Plaintiff is barred, albeit he had right: So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King, or by Act of Parliament: for that bars the right, etc. it is otherwise, where the Possession is only barred, etc. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case. 20. When a man is not bound to do a thing, Not tied to answer. in a Plea concerning it, he need not make answer thereunto: as in Fogassaes' case exception was taken, for that the surety was not named, that was bound for answering the custom, and it was said, that because the Statute speaks of no surety, and the agreement might be good without surety, it had been in vain to speak of it, or to make answer thereunto, and thereupon that exception quashed. Death not traversable. 21. In a Formedon in Reverter or Remainder, P. C. 32. b. 1. Colthrist versus Bevishin. a man shall not show the death of the particular Tenant, because it is but a Conveyance, and not traversable nor issuable: So in Colthrist and Bevishins case, the Defendant shall not show the deaths of Henry and Elinor Bevishin, because the Plaintiff Colthrist should have traversed it, and said, that they were alive, he should confess, that he had not title to the Land before their lives, and would have destroyed his own Action; And therefore in regard their deaths were not traversable, it was in vain for the Defendant to show it, (by consequent) he shall not be compelled to do it. Covin. 22. A man need not show any special cause of Covin when it is apparent; P. C. 49. b. 2. in Wimbish and Talboies case. Ibid. 55. b. 3. as when Feme Tenant in tail for her jointure by Covin appears in a Formedon in Remainder brought against her by one that pretends title in Remainder, and she appears the first day without Essoine, View, etc. and judgement is had against her by nihil dicit; here the Covin is apparent and need not be specially showed, for it is in vain to show that, which is apparent of itself: So it is a vain thing to aver, that an Horse bought, which wants eyes, is blind, when it is apparent that he must be blind when he wants eyes: If the Tenant enfeoff his Son within age by collusion, the Lord shall seize him for his Ward, and shall not be forced to show this Collusion in special, causa qua supra. Pretenced titles. 23. In an Action upon the Statute of 32 H. 8. 9 against buying pretenced titles, P. C. 81. a. 4. in Partridges case against Strange and Croker. the Plaintiff need not aver the title or right to be pretenced; because the Statute declares and intends the title to be pretenced, when neither his Ancestors, nor those, from whom he claims, have enjoyed the Land in Possession, Reversion, or Remainder, nor received the rents or profits thereof for a year before the purchase thereof: and therefore because it were in vain for him to aver the pretenced title, because the Statute makes it so, he shall not do it. 153. Non licet, quod dispendio licet. Surrenders. 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old, Co. l. 5. 21. a. 4. in Sir Antohny Manes▪ case. M. Leases to another for eighty years by Fine, and S. brings an Action of debt upon the Bond: In this case, albeit S. may surrender and aught to do the first act, viz. to surrender, yet M. hath forfeited his Bond, although S. never surrender, for S. shall not now be forced to surrender; because if he should surrender, M. cannot now make him a new Lease, which w s the effect and end of the Surrender: for by such Surrender S. will lose his old term, without possibility of having a new one: And, Non licet quod dispendio licet. Parson not to resign. 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resign his Church to the Prior for a certain Pension, Co. l. 5. 21. b. 1. ibid. & 14 H. 4. 19 a. as it should be agreed, the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resign; And 14 H. 4. 19 a. it was the opinion of all the Court, that albeit they were agreed of the Pension, yet the Parson was not bound to resign, until he might be sure of his Pension, and that could not be without Deed; And therefore (in such case) the Parson was not bound to resign, until the Prior should ●ender a Deed of the Pension, whereby he might be sure 〈◊〉 it. 154. It favoreth Truth, Faith, and Certainty. Vide Max. 41. ●9. Co. Inst. pars 1. 139. a. 3. 1. Regularly, upon a nonsuit the Demandant or Plaintiff may again commence an action of like nature, etc. Howbeit, in an Attaint, Nonsuit in Attaint peremptoria. if the Plaintiff after appearance be nonsuit, it is peremptory, and he is thereby barred from ever bringing an attaint against the first jury again; and the reason is, for the faith that the Law gives to the verdict, and for the terrible and fearful judgement, that should be given against the first jury, if they should be convicted, and therefore upon the nonsuit the Plaintiff shall be imprisoned, and the pledges amercied. Vide infra 11. Co. ibid., 227. b. 3. Co. ibid., b. 4. L. S. 366. 2. A special verdict, or at large, may be given in any action, A special verdict. and upon any issue, be the issue general or special; because the truth of the cases may be the better discovered and discussed, and justice and right don●: so if a man seized of lands in fee, let's them for life without Deed rendering rend, upon condition of reentry upon nonpayment of the rent, whereupon if the lessor enter and the lessee bring an assize of Novel Disseisin, the jurors may find the matter at large, and the judges ought to adjudge it for the tenant, albeit regularly a condition is not available without Deed shown, and although the lessor show no Deed. Co Inst. pars 1. 294. b. 4. 3. In an action of Debt (the better to discover the truth) Wager of Law is allowed, Wager of Law. that is to take an oath (for example) that he sweth not the Debt demanded of him nor any penny thereof. It is called W●ger of Law, because of ancient time the Defendant put in surety to make his Law at such a day: It is also called, Making of his Law, because the Law (for the discovery of the truth) doth give such a special benefit to the Defendant to bar the plaintiff for ever in that case: Howbeit for the further manifestation of the truth, the Defendant ought to bring wi●h him eleven persons of his neighbours, that will avow upon their oaths, that in their consciences he saith truth, so as he himself must be sworn De fidelitate, and the eleven De credulitate. Co ibid., 303. 4. 3. 4. A Count or Declaration, Truth and certainty in Plead. which anciently (and yet) is called Narratio ought to contain two things, viz. certainty and verity, for that it is the foundation of the suit, whereunto the adverse pertie must answer, and whereupon the Court is to give judgement, Certa debet esse intentio & narratio, & certum fundamentum & certa res, quae deducitur in Judicium. Bract. lib. 2. 140. Howbeit, it must be understood, that there are three kinds of certainties; First, to a common intent, and that is sufficient in a Bar, which is to defend the party and to excuse him; Secondly a certain intent in general, as in Counts, Replications, and other plead of the Plaintiff, Co. ibid., 352. b. 1. that is to convince the defendant, and so in Indictments, etc. Thirdly, a certain intent in every particular, a● in Estoppels; because, in respect they conclude a man ta allege the truth, they ought to be certain to every intent, and not to be taken by argument or inference. Co. ibid.▪ 352. b. 2. 5. Where the verity is apparent upon Record, Estoppel. there the adverse party shall not be estopped to take advantage of the truth, for he cannot be estopped to allege the truth, when the truth appeareth of Record: So if a Fine be levied without any original, it is voidable, but not void; howbeit if an original be brought, and a Retraxit entered, and after that a concord is made, or a Fine levied, this is void, in respect the verity appeareth of record; Likewise, an Impropriation is made after he death of an Incumbent to a Bishop and his successors, the Bishop by Indenture demiseth the Parsonage for 40 years, to begin after the death of the Incumbent, the Dean and Chapter confirm it, the Incumbent dieth, this demise shall not conclude, for that it appeareth, that he had nothing in the Impropriation till after the death of the Incumbent. Certainty and verity in Counts 6. If a man declare upon a Statute, he must recite it truly; P. C. 84. a. 4. in Partridges case against Strange and Croker. for mentioning the Statute and misreciting it, causeth error, albeit as to the substance of his declaration he might have omitted it; because a Declaration ought to have 1. Certainty, so as the defendant may know to what to make answer; And therefore when of necessity a thing must be showed in certain in the Declaration, it must by no means be omitted. 2. Verity, which ought to be joined with certainty; for if it appear to the Court, that falsehood is produced in stead of truth, the party, that shows it, hath confounded and annoyed himself. Wast. Plea: 7. If the tenant do or suffer waist to be done in houses, Inst. 1. 53. a. 3. yet if he repair them before any action brought, there lieth no action of waist against him: Howbeit in such case he cannot plead Nul wast fait, for that is not true; but he ought to plead the special matter, as the truth of his case doth import. Vide M. 166. Variance. F. N. B. 104. Audita querele. 8. If a man comprehend two several matters in an Audita querela to extinguish the execution, yet the Writ is good; Howbeit (to reduce that double matter to some certainty) the Plaintiff shall hold himself to one matter only, and the Defendant shall be put to answer only to that. Co. l. 10. 92. a. 4. in Doctor Leyfeilds' case. Co. Inst. part. 1. 226. a. 1. Showing Let●ers and other Deed●▪. 9 The lessee or assignee of a Patentee shall not justify his estate by producing only his lease or assignment, but he ought to show the original letters Patents, or a true copy thereof proved upon oath, to the end the judges and jury severally (as it belongs to them) may give certain judgement of the sufficiency, or insufficiency thereof (vide Dyer 28 H. 29. b. pl. 199.) And so it is also of other original Deeds, which are not Letters patents. Vide Dyer 171. 9 Dyer 35. 26. 29. H. 8. Feoffment to divers. 10. It was agreed by the justices of the C. B. If a man enfeoff divers, and make livery to one in the name of all, this is not good without Deed of feoffment; because as (it seems) their names being expressed in a Deed of feoffment, it may be certainly known who are the feoffees, unto whom the feoffor intended to convey the estate. Artaint. 11. In an Attaint the Plaintiff shall not give more in evidence nor produce more witnesses, than he gave or produced to the Petty jury; Dyer 54. b. 14. 34. H. 8. but contrariwise the Defendant is allowed to give and produce more in affirmance of the first verdict. vide supra 1. Showing Lett. pat. 12. In nono of H. 8. A Merchant obtains a licence to him and his assigns to import Wines in any vessel besides English, Dyer 54. a. 17. 34. H. 8. notwithstanding the Statute of 4 H. 7. 10. the assignee of the Patentee upon an Information brought against him, pleads the Letters Patents of licence and his assignment, but produceth not the Letters Patents into Court, for want whereof his Plea was adjudged insufficient. Dyer 87. a. 100 Averment. 13. If the King grant all his lands, which he had by the Attainder of I. S. and a man will convey the lands unto himself by such a grant, he ought to aver, that I. S. had such lands: So in case of a Common person, who makes a release of all such Lands as descended unto him on the part of his mother in D. there ought to be an averment, what lands descended unto him there on his mother's part; for otherwise the release is void by reason of the generalty and uncertainty thereof, etc. Dyer 229. 51. 6. Eliz. 14. In Debt upon an Obligation to ratify, confirm, Pleading a Deed. and allow at all times the estate of the Obligee, it is no good plea to say, that he hath ratified, confirmed, etc. for the confirmation ought to be pleaded by Deed, that it may appear to the Court to be certain. Dyer 243. 56. 8. Eliz. 15. There was a submission to an Award by Obligation, Arbitrement. so as it should be made and yielded in Writing at or before Michaelmas, etc. the Plaintiff saith, that the Arbitrators by arbitrement in writing factum & partibus before the day deliberat. make an award, etc. and assigns the breach, the Defendant demurs, and the Court gave it against the Plaintiff; Because 1. it is no direct but only an argumentative affirmance, that the Arbitrators delivered the award. 2. He should have pleaded the delivery according to the condition, viz. that it was delivered at or before, etc. and not before only: 3. Redditum had been a more apt word to answer to yielded, then deliberatum. Hab. 38. Capes case. 16. Upon an Assumpsit brought by an Administrator for a promise to the Intestate, it is not enough for him to plead the Letters of administration, Administrator. but he ought to produce them in Court, that it may appear to them, that it is as he hath pleaded; So upon plea of a Deed, the Deed must be showed in Court. Hob. 91. 17. The Auditor of the Court of Wards could set no charge, or award process to answer any charge, but upon a Record, an office, or the like, Sir Thomas Puckering case. 255. It Disfavoureth Impossibilities. Co. Inst. pars, 1. 25. b. 4. 1. If Lands be given to a man and two women, Lands entailed to a man and two women. and the heirs of their bodies begotten; in this case, they have a joint estate for life, and every of them several Inheritance; because they cannot have one issue of their bodies, neither shall there be by any construction a possibility upon a possibility, viz. that he shall Marry the one first, and then the other; And the same Law it is, when Land is given to two men and one woman, and to the Heirs of their bodies begotten. Co. ibid., 28. b. 1: 2. Lands are given to the husband and wife, General Taile frustrates Special. and to the heirs of the body of the husband, the remainder to the husband and wife, and to the heirs of their two bodies begotten, the husband dies without issue; In this case, the wife shall not be tenant in tail after possibility, etc. for the rent in special tail was utterly void, for that it could never take effect; because so long as the husband should have issue, it should inherit by force of the general tail, and if the husband die without issue, than the special tail cannot take effect, in as much as the issue, which should Inherit the special, must be begotten by the husband, and so the general which is larger and greater, hath frustrated the special, which is lesser; and the wife in that case shall be punished for waste. Co. ibid., 30. b. 2. 3. A man shall be tenant by the courtesy of a Common sans number, Common sans number. but a woman shall not be endowed thereof, because it is Impossible to divide it. Co. ibid., 48. b 4. Betrisworths' case, Co. l. ●. 31. b. 4. 4. If a man be seized of an house and of divers several closes in the same County in fee, and makes a lease thereof for years, Livery Void. and afterward maketh a feoffment in fee of the same, and makes livery of seisin in the closes (the lessee or his wife or servants being then in the house) the Livery is void for the whole; because it is impossible for the lessee to be upon every parcel of the land to him demised, for the preservation and continuance of his possession therein; and therefore his being in the house or any part of the Land to him demised, is sufficient to preserve and continue his possession in the whole from being ousted or dispossessed. A Corporation cannot do homage. 5. A single person may do homage either in his own right or in the right of another, as the husband and wife in right of the wife, Co. ibid., 66. b. 3. the Bishop in right of his Bishopric, the Abbot or Prior in right of his Monastery, etc. for the Covent are dead persons in Law: But a Corporation aggregate of many (though capable persons, be the same Ecclesiastical or Temporal) cannot do homage, as Deane and Chapter, Mayor and Commonalty, and the like, albeit they be seized of Lands holden by homage; because homage must be done in person, and it is not possible for a Corporation aggregate of many to appear in person; for albeit the bodies natural, whereupon the Body Politic consists, may be seen, yet the body corporate or politic itself cannot be seen, nor do any act but by Attorney, and homage must ever be done in person. Relief. 6. A tenant holdeth of his Lord certain Lands in soccage to pay yearly a pair of Gild Spurs or 5 s. in money at the feast of Easter; Co. ibid. 90. b. 4. In this case, the rent is uncertain, and the tenant may pay which of them he will at the said feast, and likewise the tenant may pay which of them he will for relief; but if the tenant be to attend upon his Lord at the feast of Christmas, or to pay 10 s. in that case, the relief must be 10 s. because it is impossible to double the attendance upon his Lord at Christmas, for that (as the common saying is) Christmas comes but once a year. Homage ancestrel, Acquittal, warranty. 7. In case of an express Warranty the heir shall be charged but only for such lands as he hath by descent from the same ancestor, Co. ibid., 102. a. 3. who created the Warranty; but in case of Homage Ancestrell (which is a special Warranty in Law) the lands generally, that the Lord hath at the time of the voucher, shall be liable to execution in value, whether he hath them by descent or purchase; for it were unreasonable, that the tenant should be driven to recover in value only those lands, which the Lord had from that Ancestor, who created the signory; because that is (in a manner) impossible, for that the signory must be created before time of memory, and the first creation of the signiory did not create the warranty, but the continuance of both sides time out of mind created it. No heir female whiles an heir male. 8. If a man give lands to another, Co ibid., 164, a. 2. and to the heirs males of his body, upon condition, that if he die without heir female of his body, that then the donor shall re-enter; this condition is utterly void; for it is impossible, that he should have an heir female, so long as he hath an heir male. Condition. 9 Regularly, it is true, that he, Co. ibid., 202. a. 3. who entereth for a Condition broken shall be seized in his first estate, or of that estate, which he had at the time of the estate made upon Condition; Howbeit, this faileth where there is an Impossibility it should be so: As if a man seized of lands in right of his wife, maketh a feoffment in fee by Deed indented, upon condition, that the feoffee should Demise the land to the feoffor for his life, etc. the husband dieth, the condition is broken; In this case, the heir of the husband shall enter for the condition broken, but it is impossible for him to have the estate, that the feoffor had at the time of the condition made: for therein he had but an estate in the right of his wife, which by the coverture was dissolved: And therefore, when the heir hath entered for the condition broken, and defeated the feoffment, his estate doth vanish, and presently the estate is vested in the wife. Impossible conditions void. 10. In all cases, where the condition of a bond, recognizance, etc. Co. Inst. par●, 1. 206. a. 4. is possible at the time of the making of the condition, and before the same can be performed, the condition becomes Impossible by the act of God, of the Law, or of the Obligee, etc. there the Obligation, etc. is saved: but if the condition of a bond, etc. be Impossible at the time of the making of the condition, the Obligation, etc. is single: And so it is also in case of a feoffment in fee with a condition subsequent, that is Impossible; In that case, also the estate of the feoffee is absolute; but if the condition precedent be Impossible, no State or interest shall grow thereupon: As if a man be bound in an Obligation, etc. with condition that if the Obligor do go from the Church of Saint Peter in Westminster, to the Church of Saint Peter in Rome within 3 hours, that then the Obligation shall be void; In this case, the condition is void and impossible, and the Obligation standeth good. So likewise, if a feoffment be made, upon condition, that the feoffee shall go, as is aforesaid, the state of the feoffee is absolute, and the condition impossible and void: In like manner, if a man make a lease for life upon condition, that if the lessee go to Rome, as aforesaid, that then he shall have fee; Here, the condition precedent is Impossible and void, and therefore no Fee-simple shall (in this case) accrue to the lessee. Co. ibid. 218. a. 2. & Pl. Com. 32. a. 4. in Colthrists case. And. ibid. 34. b. 4. 11. If a Lease be made with Condition to have fee upon payment of money to the Lessor or his Heirs at a certain day, Condition impossible, no accruet. before the day the Lessor is attainted of Treason or Felony, and also before the day is executed: Now is the Condition become impossible by the act and offence of the Lessor, and yet the Lessee shall not have fee, because a precedent Condition to increase an estate must be performed, and if it become impossible, no estate shall accrue. Co. l. 1. 87. a. 4. in Corbets case. & Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case. 12. If Coparceners agree to present by turn, Perpetuity. this may be done being partition, as to the Possession: so if they agree, that one of them shall have it from Easter to Lammas, and the other from Lammas to Easter, this is good, and may be done as to the possession and the taking of the profits, but they cannot make severance of the estate of Inheritance in the Land, as the one to have it for one time and the other for another, for such agreement were impossible and void: And therefore if a man entail his Land to his eldest Son, provided, that if he go about to alien, etc. that then his second Son shall have it, etc. this is void; for it is impossible and against reason, that an estate should cease as to one, and yet continue, as to another, or that (in such case) the eldest Son should be dead, when one beholds him, and in full life, when another looks upon him, and so to make him (as it were) half alive and half dead. Vide pl. ibid. Co. l. 2. 51. a. 1. Sir Hugh Chomleys' case. 13. If there be Tenant in tail, Render void. the Remainder in tail grants all his estate for the life of Tenant in tail, the Remainder to Queen Eliz. In this case, the Remainder to the Queen is void; because the particular estate, which should support it, is void; for that it is impossible, that the Remainder granted during the life of the Tenant in tail should ever take effect in Possession, or the Grantee enter to have any benefit of such a Grant, Co. ibid. b. 4. and therefore void: besides, when the Remainder in tail had granted all his estate for the life of Tenant in tail, it is not possible the Queen should take any thing, when all his estate was granted away before to the first Grantee; but in such case, the Inheritance in obeyante, etc. Co. l. 4. 19 b. 2. in Briltridges case. 14. If one say, that I. S. is a perjured old knave, Slander. and that is to be proved by a stake parting the Land of A. and B. These words by reason of the insensibility, and impossibility of them are not actionable; for it is impossible, Co. l. 5 8. a. 2. in Justice Windhams case. that a stake should prove any thing. 15. Regularly, if Land be granted to two and their heirs, Joint Grant enures severally. they shall take jointly: Howbeit, if a Lease be made to an Abbot and a secular man, or a gift to two men or two women, and the heirs of their two bodies begotten; in one case the Possession, and in the other the Inheritance, is several; because it is impossible, that an Abbot (being a Corporation) should take jointly with a secular person, or that two men or two women should have Issue of their two bodies, unless one of them be an Hermotradite. Payment of money. 16. The payment of a less sum at the day in satisfaction of a greater, Co. l. 5. 117. a. 3. in Pinnels case. cannot be satisfaction for all; for that by no possibility a lesser sum can be satisfaction for a greater; but before the day a lesser sum may be taken in satisfaction of a greater; and so may any thing else, as an Horse, Hawk, or the like, upon the day or before the day; because the money paid before the day, or a Horse, Hawk, etc. may be as beneficial for the party, as if the money had been paid at the day. The Duchy of Cornwall. 17. One chief reason, Co. l. 8. 16. a. 3. in the Prince's case. to prove the first point in the Prince's case (whether or no, the Duchy of Cornwall was to be always in the eldest Son of the King, by the Charter of the 11 of E. 3. or by Act of Parliament confirming that Charter) was; because there were divers privileges granted him, which could not possibly be granted by Charter, but must of necessity be by Act of Parliament. Vide. pl. ibid. Melius inquired. 18. A Melius Inquirendum to find, what Land I. S. held of King James at the time of his death, Co. l. 8. 168. a. 4. in Paris Sloughters case. being in the 40 year of Queen Eliz. shall be quashed for the impossibility thereof; for it is impossible, that I. S. should hold any Land of King James in the 40 year of Queen Eliz. he being then King of Scotland. 156. Non cogit ad Impossibilia, & Impotentia excusat Legem. Showing a Deed. 1. If a Deed remain in one Court it may be pleaded in another Court without showing it forth: Co. Inst. pars 1. 231. b. 4. because he cannot have it out of the other Court, and Lex non cogit ad impossibilia, vide Co. l. 5. 74. b. 4. in Wymarks' case. Claim. 2. Regularly, Litt. S. 434. Co. ibid. 258. a. 3. where a man doth less than the commandment or authority committed to him, there (the commandment or authority being not pursued) the Act is void, and where a man doth that, which he is authorized to do, and more, there it is good for that which is warranted, and void for the rest, yet both these rules have divers exceptions, and amongst the rest this for one, that if a man be sick, that he cannot go to the Land nor any part thereof to make his claim, and he commands his Servant to do it, and the Servant dare not go to the Land for fear of some bodily hurt; in this case, if the Servant go as near the Land as he dare, and there make claim for his Master, that shall suffice, albeit his Master bade him go to the Land; because Impotentia excusat legem; for seeing the Master cannot, and the Servant dare not enter into the Land, it sufficeth that he come as near the Land as he dare. Descent. 3. Descent shall not take away Entry of a man in Prison at the time of the Descent cast, because he could not make continual claim, Litt. S. 436. Co. ibid. 259. a. 2. when he was in Prison, being there kept (as it is presumed in Law) in salva & arcta custodia, without intelligence of things abroad. Descent. 4. A Descent cast during the vacation of an Abbey, Litt. S. 443. Co. ibid. 263. b. 2 shall not take away the Entry of the next Successor; because, seeing by the death of the Abbot (which is the Act of God) no person is able to make continual claim, therefore a Descent during that time shall not prejudice the Successor; for, Impotentia excusat legem. Co. l. 5. 22. a. 3. in Laughters case. 5. Where the Condition of an obligation is in the disjunctive, Condition disjunctive. viz. for the Obligor either to do one thing or another, and both the things possible at the time of the delivery, and afterwards one of them becomes impossible by the Act of God; in this case the Obligor is not bound to perform the other; for Impotentia excusat legem. Co. l. 5. 115. a. 3. in Wades case. 6. If a man be bound to pay 40000 l. at such a day, Tender of money. if he tender it in bags, it is sufficient; for it is not possible it should be numbered within the compass of one day. Co. l. 6. 21. b. in Butler and Goodalls case. 7. Lawful Imprisonment without Covin, Nonresidence the want of a Parsonage House, and sickness without fraud (when the Incumbent by the advice of his Physician removes for better air, or the like) are good excuses for nonresidence, against the statute of 21 H. 8. cap. Co. l. 8. 172. Hales case. 8. If the Heir holding of the King by Knight's Service tender his Livery, that includes tender of Homage, Tender of Livery. and therefore after such tender he may sell any part of his Land; and if he die after tender, and before Livery sued out, the King shall not have the profits of his Lands longer than to the time of the Tender; because by his death (which is the Act of God) the showing out of his Livery is become impossible, and Impotentia excusat legem. Co. l. 3. 73. a. 1. in Doctor Husseyes' case. 9 A Feme Covert is not within the Statute of Westminst. 2. cap. 39 Ravishment of Guard, W. 2. c. 39 concerning Ravishment of Ward, for the Law, that disables her to have any thing, wherewithal to satisfy the value of the Marriage, doth also free her from the punishment of Banishment and Imprisonment; because it is impossible she should satisfy it when she hath nothing to do it withal; for, Lex non cogit ad impossibilia, etc. vide Max. 34. Co. l. 10. 139. b. 3. in Knightlies' case. 10. If a man be bound to repair a Wall against the flowing of the Sea, if it fall into decay by his default and negligence, Wast, a wall of the sea. he shall be solely charged with the repair thereof; but if it be overthrown or endamaged by the violence of the water without his fault, by the Stat. of 23 H. 8. they are to be equally charged, who have loss by it; for, Impotentia excusat Legem, vide Pl. ibid. 157. It disfavoureth Falsehood, Fraud, and Covin, Vide Dyer 294. 8. Co. Inst. p. 1. 17. b. 3. 1. A man hath as absolute ownership and property in an Advowson, Advowson how pleaded. as he hath in Lands or Rents, yet he shall not plead, that he is seized thereof, In Dominico ut feodo; because that Inheritance, savouring not De domo, cannot either serve for the sustentation of him or his Household, neither can any thing be received for the same for defraying of charges; and therefore he cannot say, that he is seized thereof, In Dominico suo de feodo: Whereby it appeareth how the Common Law doth detest Symmony and all corrupt Bargains for Presentation to any Benefice, but that Idonea persona for the discharge of the cure should be presented freely without Expectation of any thing; nay the Common Law is so cautelous in this point, that the Plaintiff in a Quare Impedit, should recover no Damages for the loss of his Presentation, until the Statute of Westminster 2. cap. 5. And that is the reason, that Guardian in Soccage shall not present to an Advowson, because he can take nothing for it, whereof to make Account, for by the Law he can meddle with nothing, that he cannot account for: So in a Writ of Right of Advowson, the Patron shall not allege the Explees in himself, but in the Incumbent: For which Reasons, of an Advowson a man shall plead, that he is seized, De advocatione ut de feodo & jure. False plea in Dower. 2. In a Writ of Dower, Co. ibid. 33. a. 1. if the Tenant (being in by descent) plead a false Plea, he shall answer all the damages from the time of the Husband's death, albeit for some part of that time he enjoyed not the Land, nor received any profit thereof: As it appears in a notable Record between Belfeild and Rowel, Mich. 8, & 9 Eliz. Rot. 904. in Com. Ba. In which Suit, the Tenant as to parcel pleads non tenure, and for the residue detainer of Charters, upon which Pleas they were at Issue, and both Issues found by the jury against the Tenant, and found further, that the Husband died seized such a day and year, and had Issue a Son, and that the Demandant and the Son for six years, after the decease of the Husband, together took the profits of the Land, and after the Son such a day and year died without Issue, after whose decease the Land descended to the Tenant, as Uncle and Heir to him, by force whereof he entered and took the profits, until the purchasing of the Original Writ, and found the value of the Land by the year, and assessed damages for the detaining of the Dower, and costs of Suit; upon which Verdict (after much debating) the Demandant had judgement to recover her damages for all the time from the death of her Husband, without any defalcation: And this was chiefly caused by his false Plea, whereas he might have avoided the answering of the damages for the six years, if he had truly pleaded according to the truth of his case. Assignment of Dower by a wrongdoer voidable. 3. If assignment of Dower be made by any Disseisor, Abator, Co. ibid. 35. ●. 2. & in Bredi man's case. Co. l. 6. 58. a. 1. Intrudor, or any wrong doer, in Lands and Tenements, if they came to that estate by collusion and covin between the Widow and them; albeit the Widow hath just cause of Action, and the Assignment be indifferently made after judgement by the Sheriff of an equal third part, yet shall the Disseisee, etc. avoid it; for, covin (in this case) shall suffocate the right, that appertained to her, and so the wrongful manner shall avoid the matter, that is lawful. See Pl. Co. 51. a. Rent-charge extinct by covin. 4. If a man grant a Rent-charge out of two acres, Co. ibid. 148. b. 3. and after the Grantee recovereth one of the Acres against the Grantor by a title Paramont, the whole rent shall issue out of the other Acre: but if the Recovery be by a faint title by Covin, than the rent is extinct for the whole, because he claimeth under the Grantor. Forfeiture. 5. If Tenant for life plead covinously, Co. Inst. pars 1. 252. a. 1. to the disherison of him in the Reversion, this is a Forfeiture upon Record. Avowry, Stat. 11 H. 8. 19 6. The Stat. of 21 H. 8. 19 (which gives to the Lord Avowry upon the lands without naming any person certain) being made to suppress fraud, Co. ibid. 268. b. 2. & in the case of Avowry, Co. l. 9 22. a. shall be taken with equity; And therefore where the words of the Statute be, If the Lord distrain upon the Lands and Tenements holden, yet if the Lord come to distrain, and the Tenant chase away his Beasts, which were within view, out of the Land holden, and there the Lord distrain; Albeit the Distress be (in that case) taken out of his fee and Seignory, yet it is within the said Statute; for in judgement of Law the Distress is lawful, and as taken within his fee and Seignory; because that Statute being made to prevent fraud and covin admits an equitable interpretation, as aforesaid: So it is also, if his Bailiff do it, tamen quaere de hoc, but for Damage-feasant the Distress must be taken upon the Land, etc. Attaint. 7. Perjury (which is a falsehood or fraud in a high degree) is greivously punished by the common Law; Co. ibid. 294. b. 2. And therefore in an Attaint (which is a Writ that lieth where a false Verdict in Court of Record upon an Issue joined by the parties is given) if the petty jury be attainted of a false oath, they are stained with perjury, and infamous for ever: for, the judgement at the common Law importeth 8 grievous punishments, 1. Quod amittat liberam legem imperpetuum, viz. that they shall be infamous for ever, and never be received to be a witness, or of a jury, 2. Ferisfaciant omnia bona & catalla sua, 3. Terrae & tenementa in manus domini Regis capiantur, 4. Uxores & liberi extra domos suas ejicerentur, 5. Domus suae prostrentur, 6. Arbores suae extirpentur, 7. Prata sua urentur, 8. Corpora sua carceri mancipentur. And the Law esteemed perjury in this kind the more odious, and afflicteth the greater punishment thereupon, because the trials of all Actions, real, personal, and mixed, depend upon the oath of twelve men, and prudent Antiquity inflicted a strange and severe punishment upon them, if they were attainted of falsehood and perjury, ut poena ad paucos, metus ad omnes perveniat; for, there is miserecordia puniens, and there is also crudelitas paucens. But this punishment is altered by the Statute of 23 H. 8. cap. 3. Co. ibid. b. 3. 8. The Statute of 23 H. 8. cap. 3. (made to prevent perjury and false Verdicts) shall be taken with equity; for, 1. where the Statute saith, Attaint, Stat. 23 H. 8. 3. that the party grieved shall have an Attaint against the party, who shall have judgement upon the Verdict, yet the Attaint shall be maintained upon that Statute against the Executors of that party: Howbeit, it must be between party and party, 2. In the King's Bench or Common Pleas, 3. Consider what Pleas may be pleaded in an Attaint by force of that Statute, and what not. Litt. S. 675. 9 If a man let Land to a Feme for life, A false Recovery. and afterwards one sues a feigned and false Action against the Feme, and recovers the Land against her by default, so as the Feme may have a Quod ei deforceat, according to the Statute of West. 2. cap. 4. The Law gives so much respect to a Recovery, Co. ibid. 356. a. 4. & 362. a. 1. & Co. l. 1. 15. b. 3. that it works a Discontinuance, so as the Reversioner shall not have an Action of Waste, etc. Howbeit, if Tenant for life suffer a common Recovery, or any other Recovery by covin and consent between the Tenant for life, and the Recoveror, this is a Forfeiture of his estate, and he in the Reversion may presently enter for the Forfeiture: See the Statute of 14 Eliz. cap. 8. concerning this matter, and Co. l. 1. 15. Sir William Pethams' case, & l. 3. 60. etc. Litt. S. 678. 10. If the Baron discontinue the Land of the Feme, Covin hinders a Remitt●r. and the Discontinuee is disseissed, and after the Disseisor lets the Land to the Baron and Feme for life, this is a Remitter to the Feme; but if the Baron and Feme were of covin and consent, that the Disseisin should be made, then is it no Remitter to the Feme, because she is then a Disseiseresse, and particeps criminis: Howbeit, if the Baron were only of covin and consent to the Disseisin, and not the Feme; in that case, the Feme shall be remitted: So as here, covin and consent of Baron and Feme doth hinder the Remitter of the Feme; Co. ibid. 357. a. 4. and so covin doth (in many cases) choke a mere Right, and the ill manner doth many times make a good matter unlawful. Co. ibid. b. 1. Co. l. 3. 78. a. in Farmer's case. 11. If a Disseisor, Intrudor, or Abator do endow a woman, that hath lawful title of Dower, this is good, and shall bind him that right hath: but if a woman be lawfully entitled to have Dower, and she is of covin and consent, that one shall disseise the Tenant of the Land, against whom she may recover her lawful Dower, all which is done accordingly: In this case, the Tenant may lawfully enter upon her, and avoid the Recovery in respect of the covin. Co. ibid. b. 2. 12. In all cases, The like. where a man hath a rightful and just cause of Action, yet if he of covin and consent do raise up a Tenant by wrong, against whom he may recover, the Covin doth suffocate the right, that the Recovery (though upon good title) shall not bind, or restore the Demandant to his right: So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father, and the Father dyeth, and the Land descendeth to the Issue; in this case, the Issue is not remitted against the Discontinuee, in respect he was privy and party to the wrong, but in respect of all others he is remitted, and shall deraigne the first Warranty: And so note, a man may be remitted against one, and not against another. The like. 13. A. and B. joint-tenants are entitled to a real Action against the Heir of the Disseisor, A. causeth the Heir to be disseised, Co. ibid. against whom A. and B. recover and sue execution; In this case, B. is remitted, for that he was not party to the Covin, and shall hold in common with A. but A. is not remitted, causa qua supra. False Plea. 14. He that will have the benefit of the Statute of Gloucester, Co. ibid. 366. a. 3. & Co. l. 8. 53. a. 3. in Sims case. cap. 3. 6 E. 1. must plead the truth of his case, viz. the Warranty, acknowledge the title of the Demandant, and pray, that the advantage of the Statute may be saved to him; and than if afterwards assets descend, the Tenant upon this Record shall have a Scire facias, etc. But if the Tenant plead the Warranty, and plead further, that assets descended, etc. and the Demandant taketh Issue, that assets descended not, etc. which Issue is found for the Demandant, whereupon he recovereth; In this case, the Tenant, albeit assets do afterwards descend, shall never have a Scire facias upon the said judgement; for that by his false Plea he hath lost the benefit of the Statute. Outlawry by 〈◊〉. 15. Imprisonment is a good cause to reverse an Outlawry, Co. Inst. pars 1. 259. b. 2. if it be by Process of Law in invitum; but if it be by consent and covin, such Imprisonment shall not avoid an Outlawry, because upon the matter it is his own act. Attornment. 16. Where the Tenant hath notice, Co. l. 2. 68 a. 2. in Tookers' case. that the Seignory was granted but to one, or that the Reversion was granted but of one Acre, or that the Reversion was granted for fewer years, or that the Reversion was granted for life only with no Remainder over, whereas it was in any of the cases otherwise; in such case, general Attornement without true notice of the Grant is void; for the usual pleading (which intent is the oracle of the Law) is, to which Grant he attorned, and therefore if he hath not notice of the Grant, or (which is all one) true notice thereof, the assent, which he gives to it (which in truth is but part of the Grant) the Law (which abhors falsehood) will not construe to be Attornment to the true Grant. Fine by covin, to bar. 17. A man possessed of divers parcels of Land within the Manor of D. whereof some he held for years, others at will, others by copy, Co. l. 3. 77. b. 2. in Farmer's case, & in Margaret Podgers case. Co. l. 9 105. b. 1. and some also in fee, demiseth the whole to another for life, and then levies a Fine to the Tenant for life and his Heirs of so many Acres as amount to the whole Land, continues Possession, and pays the rents to the Lord, five years pass; yet (in this case) the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intent that such a Fine levied by fraud and practice of Tenant for years, at will, or by copy, which pretend no title to the Inheritance, but intent the disherison of their Lessors or Lords, should bar them of their Inheritance, and this appears by the preamble of the said Act, where it is said, that Fines ought to be of greatest strength to avoid strifes and debates: but when Tenant for years, at will, or by copy, make Feoffment by assent and covin, that a Fine should be levied, this is not to avoid strife and debate, but by assent and covin, to begin and stir them up; And therefore that Statute did not intent to establish any such estate made and created by such fraud and practice, which (being fraudulent) is (upon the matter) no estate at all, etc. vide pl. ibid. A fraudulent ●●e of goods. 18. The grant of goods, albeit it be made upon good consideration, Co. l. 3. 80. b. 4. in Twines case. yet if it be not bona fide, but hath trust in it, or other badges of fraud, as if the Grantor keep them still in his own Possession, useth them as his own in disposing of them, or otherwise, or if they be Sheep, and the Grantor brand them with his own mark, or when he grants all his Goods and doth not except so much as his wearing apparel, or the like; such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at another's Suit, the Sheriff may seize them, as if no Grant at all had been made thereof. Vide pl. in that case to the like purpose. Queritur ut crescunt tot magna volumina Legis; In promtu causa est, crescit in orbe dolus. Co. l. 4. 26. a. 1. in Kite and Quientons' case. 19 Pretenced titles of Copyhold-lands are within the Statute of 32 H. 8. 9 for the Statute saith, If any bargain, buy, or sell, etc. Pretenced titles of Copyholds. any right or title in or to any Lands, or Tenements, etc. and Copyholds are Lands, in and to which right or title may be had and made, and they are included in that act to avoid Suits, Maintenance, and Champerty, and (by consequent) fraud and deceit, per Wray. And note, that in Partridge and Crokers' case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppress fraud, Fraud. The king bound. the King is bound, albeit he be not especially named, because Truth, justice, and Religion are the Supporters of his Crown and Diadem. In the case of Ecclesiastical persons. Co. l. 5. 60: a Gooches case. 21. In Debt upon an Obligation against the heir, Fraudulent conveyance void. the Defendant pleads riens per descent, the plaintiff maintains assets in Com. S. the Defendant saith, that before the action commenced he had enfeoffed A. of those lands; against which the Plaintiff alleged and proved, that the feoffment was by fraud, unto which it was urged, that the fraud ought to have been specially pleaded, and could not be brought in evidence: but it was adjudged per totam Curiam, that it might be given in evidence, and needed not to be specially pleaded; 1. because the Statute of 13. Eliz. 5. provides generally, that the estate, as to the creditor shall be void, and Acts of Parliament made for prevention and Suppression of fraud ought to have a benign interpretation: 2. If that matter ought to be pleaded, it would prove mischievous to Creditors, and would tend much to the maintenance and increase of fraud and covin; for fraud and covin (because they are odious) are so privily hatched in an hollow tree (in arbore cava & opaca) and so artificially contrived and concealed, that the party grieved hath no means to find or know them, and then to force the Plaintiff (who is a stranger to it) to plead the feoffment (whereof he hath no notice) and that it was done by fraud, etc. would be mischievous, and against Law and reason; and thereupon judgement was given for the Plaintiff. Co. ibid. b. 22. A. seized of land in fee makes a fraudulent conveyance (to the intent to deceive and defraud purchasers contrary to the stat. of 27. The like. Eliz. 4.) continues in possession, and is reputed as owner; B. enters into communication with A. for the purchase thereof, and by accident B. hath notice and intelligence of the fraudulent conveyance, and notwithstanding that concludes with A. and takes his assuranre from him; In this case, B. shall avoid the said fraudulent conveyance by the said Act, notwithstanding such notice; for the Act hath by express words made the fraudulent conveyance void as to the purchasor, and in as much as it is within the express purview of that Statute, it ought to be so taken and expounded in suppression of fraud, per Wray; but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen. Co. l. 5. 69 b. 4. in Burtons' case. 23. If A. lend 100 l. to B. upon the first of July 1653, and B. Usury. grants to A. 20 l. per annum out of the Manor of D. to begin to be paid at Christmas twelve Months after, upon Condition if B. pay 100 pounds to A. the first of July, 1654. that then the Annuity shall ce●se; This is not within the Statute of usury; but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July, 1654. and the clause of redemption was inserted on purpose to evade the Statute, that had been an usurious bargain and contract within the Statute. Usury. 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one year, Co. ibid. per Popham. if the Son of A. shall be then living, this is Usury within the Statute, for if this shall be out of the Statute, by reason of the uncertainty of the life, the Statute will be of little effect; because, by the same reason that he may add one life, he may add more, and so he may evade the statute at pleasure, that Liberty being like a Mathematical line, viz. Divisibilias in indivisibilia. False deed. 25. If a Deed be pleaded and showed in Court, and denied, Co. ib. 74. b. 4. in Wymarkes' case. than it shall always remain in Court, to the end that if it be found not his Deed, it should be damned for the falsity thereof. Fraudulent conveyances. 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Booths case. being made to suppress Fraud and Deceit, shall be taken and interpreted beneficially; And therefore whereas the words of that Act are, that where Tenant for life or years have demised or granted, to the intent, that those in Reversion, (viz. their Lessors, their Heirs or Assigns) should not know their names, and afterwards the first Tenants continually occupy the Lands, etc. and make Waste, etc. It is ordained, etc. that he in Reversion (in such case) shall maintain a Writ of Waste against the said Tenants for life or years; yet every Assignee of the first Lessee mediate or immediate is within the said Act, albeit not therein mentioned: Also he in Remainder is within the Act, as well as he in Reversion, albeit both in the Preamble and Body of the Act, there is only mention made of him in Reversion. Profits, 27. In Formedon the Tenant pleads non-tenure, Co. ibid. b. 2. the Demandant saith, that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy, and still takes the profits; In this case, the pernancy of the profits, and not the Feoffment is traversable, 4 H. 7. 9 Warranty. 28. The Father Tenant for life, Remainder to the Son, Co. l. 5. 80. b. 2 leases for years to A. with a design to bar the Son, A. enfeoffs B. to whom the Father releaseth with Warranty, and dies; In this case the Son is not barred by this Warranty, being a Warranty, that gins by disseisin, for albeit it is said in our books (and true it is) that Warranty is much favoured in Law, because it extends to establish him, that is the Tertenant in possession, yet when Warranties are mixed with Covin, (which is so odious and so much abhorred in Law) they lose not only their favour but force also, for Covin is like poison, that infects every good thing, with which it is mixed, etc. Feigned arrest. 29. The entering of feigned Actions in the Counter, Co. l. 6. 54. b. 2. in the Countess of Rutland's case. upon pretence afterwards when the Sergeants have the Prisoner in their Custody to charge him with a Capias ad satisfaciendum, (to prevent an escape upon the Capias) was condemned by all the Court of Star-chamber in the Countess of Rutland's case; because by the colour of Law and justice, they by such feigned means do contrary to Law and justice, and so cause Law and justice to be the Author of wrong and Injustice. Seisin of rent. 30. If A. having a Rent-seck issuing out of the Manor of D. Co. l. 6. 58. a. 1. in Bredimans' case. granted unto him, but no seisin thereof, plots with B. to disseise the Tertenant, to the end, that after such disseisin B. may give him seisin of the Rent, this seisin shall not bind the disseisee, or he that right hath; for the Covin makes it unlawful. Fraudulent Leases. 31. The Father leases by Fraud, and dies, Co. l. 5. 72. b. in Burrells case. the Son knowing of it (or not) sells the Land; in this case the Vendee shall avoid those Leases, by the statute of 27 Eliz 4. so it is also where the Father leases to the Son, who assigns fraudulently, and then sells the Land. etc. False Deed. 32. If a man deny the Deed of his Ancestor, Co. l. 8 60. a. 1. in Beechers case. or plead a Deed made to his Ancestor, and it is found against him, yet he shall not be fined but only amercied, quia de alieno delicto, etc. But if the Tenant or Defendant plead a false Deed made to him, or deny his own Deed, and it is found against him, or if he relicta verificatione cognoscit actionem, he shall be fined for his falsity, quia certi debemus esse de proprio facto. Co. l. 8. 127. a. 1. in the City of London's case. 33. Where the custom is, Inward shop. that no Foreigner shall sell in any open Shop, in pain to be fined, he is a greater offender that trade's there in an inward Shop or Chamber; for such places are more dangerous and offensive then outward Shops, because they may there use deceit, and are not subject to search: Qui male agit odit lucem, & omnia delicta in aperto leviora sunt. See there likewise the case of the Prior of Dunstable to the like purpose. Co. l. 8. 134. Marry Shipleys case. 34. If an Executor plead pleni administravit, Executor, assets. and assets be found by the jury in his hands, they shall pay the debt, as far as they will answer, but if they come short, he shall answer the damages of his own goods, for his false Plea. Co. l. 9 17. b. 1. in Ann Bedingfeilds' case. Co. ibid. 19 a. 3. 35. If a Feme having title of Dower do deceitfully detain the Charters which concern the Lands, Rebutters in Dower. out of which she is to have Dower assigned, that is a good rebutter of the Action in a Writ of Dower brought by her against the Heir: So if she deceitfully conceal and detain the heir, the Guardian in Chivalry may plead it against her in bar of her Dower: but he cannot plead detainer of Charters, which concern the heir: because they shall not be delivered to him. Co. l. 9 20. b. 4. in the case of Avowry. 34. The Law will never suffer falsehood to suppress truth: Avowry. and therefore, if there be Lord and Tenant by Fealty and Rent, and the Tenant make a Lease for years, and the Lord distrains (when there is no Rent or Services behind) the Cattles of the Tenant, and avows upon a mere stranger, as his true Tenant, with purpose to charge the Plaintiff unjustly: In this case, the Lessee upon showing the whole matter in special, may pray in aid of the Lessor, and shall thereby compel the Lord to avow upon the Lessor, as his true Tenant, and the false Avowry of the Lord upon the stranger, who is not Tenant, shall not annoy the Lessee against the truth of his case, quia veritas nihil veretur nisi abscondi. Co. l. 10. 110. a. 2. in Arthor Legates case. 35. A false suggestion in the Kings Grant (being the words of the Patentee) makes the Patent void: Void Patents upon false suggestion. As where the King grants fifteen Acres of Land, as concealed, whereas they being parcel of a Manor, the profits thereof are duly answered to the King, though occupied by an Intrudor, yet because they are only detained and not concealed, but suggested only to be concealed, the Patent is void: So in 19 E. 3. tit. grant 58. The King by his Letters Patents gives licence to appropriate the Advowson of D. to the Prior of C. Quae quidem advocatio non tenetur de nobis, etc. and in truth the Advowson was held of the King, and the licence was held void, for the Book saith, that the suggestion was false: And in 21 E. 4. 48. if the King grant the Manor of D. etc. Quod quidem manerium ad manus nostras devenit ratione eschaet. etc. and in truth the Manor did not come to the King by escheat, in this case also the Grant was void, and the reason that Hussey chief justice there gives is, for that, the falsehood comes of the surmise of the party. Co. l. 11. 73. b. 4. & 74. a. 4. in Magdalen College case. 36. A Grant to the Queen by the Master and Fellows of Magdelen College in Cambridge, The like. of an House in London rendering 15 l. per annum Rent, upon Condition, that she should re-grant it to Benedict Spinola Merchant Denizen, and his heirs, was adjudged void, because they made use of the Queen's Prerogative to alien the Lands of the College, which they were prohibited to do by the Statute of 13 Eliz. within which Statute the Queen is included: So if one intending to sell his Land, had by Fraud conveyed it by Deed enrolled to the Queen, with purpose to deceive the Purchasor, and after he sells the Land for a valuable consideration, and makes conveyance accordingly, in this case, the Purchasor shall enjoy the Land against the Queen by the Statute of 27 Eliz. 4. for albeit the Queen is not excepted, yet the act being general, and made for suppressing of fraud, shall bind the Queen, etc. vide pl. ibid. Covin in Feoffment. Recovery. Remitter. 37. In Trin. 19 H. 8. fo. 12. Br. Remitter 1. Pl. Co. 51. a. in Wimbish and Talboies case. & ibid. 54. b. 4. If one disseise the Discontinuee in tail by covin, to the intent to enfeoff the Issue in tail within age, who had no knowledge of the covin, he enfeoffs him accordingly: in this case (by the better opinion) the Issue in tail shall not be remitted, notwithstanding his good title, and the only cause hereof is the covinous intent, for covin may alter the matter, where the title is good: so if my Ancestor disseise me, to the intent to make Feoffment with warranty to bar me: here, albeit the Warranty be made twenty months after, yet this Warranty gins by Disseisin, so the intent maketh the act to enure otherwise then it would do: for when covin is mixed with the truth, it makes all unsavoury: So in Wimbish and Talboies case in the Com. Eliz. Talbois joining 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 falsify a feigned 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 heir, 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 always abhorred in our Law, and Statutes made for the suppression thereof, are made for the public 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 always 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 Heir 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 gins 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 died, this Warranty had barred the Heir, etc. vide pl. ibid. attaint. 40. A false Verdict is a contradiction in itself, Co Inst. par● 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 Simony is to be largely expounded, though penal. 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 tail. doth not extend to preserve any Reversion or Remainder expectant upon an estate tail, 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, etc. 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 avoiding of Recoveries by collusion, etc. 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 herb) or covin with truth, Truth. Covin. that conjunction and mixture makes all bitter and unsavoury, and goodness is perverted into wickedness, for they cannot continue together, no more than 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 jury before their agreement, eat or drink at the charge of either of the parties, it is good cause of Error to reverse the judgement 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 implies partiality and suspicion. 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 Heirs or Issues, etc. this is good; for he doth not restrain 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 Mortmain, 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 Mortmain, it seems 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 denied the Concord, whereupon the Defendant demurred, and judgement 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 subtle invention of pleading, an ancient Principle in Law (that for transitory causes of Action the Plaintiff might allege the same in what place or County he would) should be subverted, which ought not to be suffered, and therefore the judges of both Courts allowed a Traverse upon a Traverse in that case: And the wisdom of the judges and Sages of the Law have always suppressed new and obliqne inventions in derogation of the common Law: whereupon it is said by the judges in one Book (38 E. 3. 1.) we will not change the Law, which hath been always used; and another saith (2 H. 4. 18.) it is better that it be turned to a default, than the Law should be changed, or any innovation made. Warranty that gins by Disseisin by an obliqne grant. 3. The Father Tenant for life, Co. l. 5. 80. a. 1. Fitzherberts' case. the Remainder to the Son and Heir apparent in tail, Leases to A. for years with purpose, that A. should enfeoff B. unto whom the Father should release with Warranty, all which is done accordingly; this is a Warranty that gins 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 gins by Disseisin, this Warranty binds not, because of the covin. An obliqne Grant of College Lands, void. 4. The Master and Fellows of Magdalen College in Cambridge, Co. l. 11. 73. b. 1. in Magdalen College case. grant an House in London to Queen Eliz. upon Condition that she within three months should convey it to Benedict Spinola and his Heirs, who doth so accordingly; this Grant of the College is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared, that the intent of the Master and Fellowes was, that they should convey the said House to Benedict. Spinola and his heirs; and therefore that which they could not do de directo, they attempt to do ex obliquo, to grant it to the Queen and her Successors, but upon Condition contained in the same Grant, that the Queen within three months should grant the House to B. Sp. and his Heirs, so as it was by this device endeavoured, that the Queen, who was the Fountain of justice, should be made an Instrument of injury and wrong, and of the violation of a pious and excellent Law, which she herself had made for the maintenance of Religion, advancement of learning, and sustenance of poor people. The like. In 17 E. 3. fo. 59 Co. ibid. b. 4. The Friars Carmelites (who had not then any place of habitation) obtain of one John Merit, who was seized of ten Acres of Meadow holden of the Bishop of Winchester, to have the said ten Acres of Meadow, for a place of habitation for them, and because John Merit could not grant unto them the ten Acres by reason of the Statute of Mortmain, by covin contrived betwixt Merit and the Friars to oust the Bishop of his Seignory, Merit (to evade the Statute of Mortmain) grants the ten Acres to the King, his Heirs and Successors, whereby the Bishop's Seignory might be extinct, to the end that the King should grant them over to the Friars, which he did accordingly: Howbeit, because here there was a practice betwixt Merit and the Friars to take away the Bishop's Seignory, it was adjudged, that the Charter should be repealed, and that the Carmelites should be distrained to deliver it to be canceled. Lands purchased with the King's money. 6. In Term. Trin: 24. E. 3. Rot. 4. in the Exchequer, Co. l. 11. 92. b. 4. in the Earl of Devonshire's case. one Walter Chirton, the King's Customer, had purchased certain Lands with the King's money, and by covin had caused the Vendor to enfeoff his friends in fee to defraud the King, and yet nevertheless took the Issues and profits of the Land to his own use, and those Lands were by inquisition returned with the values into the Exchequer, and there by judgement were seized into the King's hands, until, etc. for albeit the estate of the Land was never in Chirton, yet the taking of the estate in the name of others, and he in the mean time receiving the profits thereof, was all one, as if he had taken the estate in his own name, especially in the King's case, and the lands being bought with the King's money. Fraudulent Indictment. 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts, as also for Fines to the King returned into the Exchequer, caused himself to be indicted of Felony, with an intent to confess it and to have his Clergy, and so to be out of the temporal Law, and then to have his purgation, and all this with purpose to defraud his Creditors, etc. And upon a Corpus cum causa, all was removed into the King's Bench; Howbeit the King having notice of the Fraud, by a privy Seal commands the justices to stay the Arraignment, etc. 160. Rectum est index sui & Obliqui. Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospital Sir Edward Coke excuseth himself from answering the Objections in that case at large, (being, Excuse to answer objections. as he saith, for the most part of no great moment) by producing manifest and fallible proofs of the validity of that Incorporation, alleging this Maxim for the ground thereof, Rectum & index sui & obliqui. Dyer 234. 16. 7. El. 2. In a Formedon in Descender, Formedon. a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar, and the issue being upon Nul tiel Record, at the day the Tenant had the Record, but in the Proclamations, viz. 5, 6, 7, 8. made in Trin. Term, the year of the King was omitted; Howbeit because in Easter Term before, and Michaelmas Term after, 30 H. 8. was expressed, of necessity it did follow, that the said four Proclamations were also made in the same year, for they being right, by consequence the others were right also; And thereupon it was held, that he had not failed of the Record. 161. It disfavoureth Improbabilities. Co. Inst. p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets' case. 1. If Lands be given to a man and a woman being not his wife, Lands entailed. and to the Heirs males of their two bodies, they have an Estate Taile, albeit they be not married at that time, so it is also, where Lands are given to a man, which hath a wife, and to a woman, which hath a husband, and the Heirs of their two Bodies, they also have presently an Estate Tail for the possibility that they may marry: But if Lands be given to two Husbands and their Wives, and to the Heirs of their Bodies begotten, they shall have a joint Estate for life, and several Inheritances, viz The one Husband and Wife the one Moiety, and the other Husband and Wife the other Moiety, and no cross Remainder or other possibility (for the improbability thereof) shall be allowed in Law, where it is once settled and takes effect; so likewise if Lands be given to a man and two women, and the Heirs of their bodies begotten, in this case, they have a joint Estate for life, and each of them a several Inheritance, because they cannot have one Issue of their bodies, neither shall there be by any construction a possibility upon a possibility, (for the Improbability thereof) viz. that he shall marry the one first and then the other: The same Law it is also, when Land is given to two men and one woman, and to the heirs of their Bodies begotten. Co. l. 2. 51. a 4. in Sir Hugh Cholmelies case. in Magdalen College case. Co. l. 11. 70. b. 3. 2. A remote possibility is never intended by Law; Remainders improbable to take effect. And therefore where A. was Tenant in Tail, Remainder in Tail to B. B. grants all his Estate to C. for the life of A. this Grant is void, because it is impossible it should ever take effect; and whereas (in that case) it was objected that A. might enter into Religion and be professed, whereupon the Grantee might enter and enjoy the Land, during the natural life of A. it was answered and resolved, That that was a Foreign possibility, and not probable nor imaginable in Law; for a possibility which makes a Remainder good, must be Potentia propinqua a common possibility; and not Potentia remota: And therefore a Remainder will not vest in a thing or person that is not in Esse, at the time of the Grant made, unless at the same time there be Potentia propinqua, or a pregnant probability that it may take effect; as a Remainder granted to a Corporation, not in being at the time of the Grant made, is void, albeit the Corporation be erected afterwards during the particular Estate, because that is Potentia remota, and improbable; But if a Lease be made for life, the Remainder to the right Heirs of I. S. this is good; for by common possibility that I.S. may die, during the life of Tenant for life, and until he die, his Heirs are in him; Howbeit if at the time of the limitation of the Remainder, there be no such person as I.S. but during the life of Tenant for life I.S. is borne and dies, his Heir shall never take it, 2 H. 7. 13. 10 E. 3. 46. as it is agreed in 2 H. 7. 13. So likewise in 10 E. 3. 46. upon a Fine levied to R. he grants and renders to I. and Florence his Wife for life, the Remainder to G. the Son of I. in tail, the Remainder to the right Heirs of I. and in truth at the time of the Fine levied I. had not any Son named G. but after had issue named G. and died; In this case, G. could not take the Remainder in Tail, because he was not borne at the time of the Fine levied, for when I. had not then any Son named G. the Law doth not expect that he shall have a Son named G. after, for that is improbable, and Potentia remota, etc. Obligation payable before statutes. 3. Debt due by Obligation shall be paid by an Executor before a Statute acknowledged for the performance of Covenants, Co. l. 5. 28. b. Harrisons case. when none of them are, or perhaps will ever be broken, but are things in contingency & Futuro, and therefore such a possibility, which peradventure will never happen, shall not bar present and due debts by Obligation, or other specialties. Contingency. 4. When a man by Indenture limits Lands to himself for life, Co. l. 10. 85 a. 2. in Leonard Lovies his case. Remainder to another in tail, Remainder to his right Heirs with power to make Leases for Life, Lives, or Years, without any restraint of Lives or Years, and further to the uses to be expressed in his last Will, or to the use of such person or persons, unto whom he shall by his last Will devise any Estate or Estates thereof: In this case, the Estate in Taile is incontingency, for by those or the like words he may devise the Land to any person in Tail or in Fee: And therefore, because it is very improbable, that the Estate tail may ever take effect, it shall not (in this case) presently vest by the statute of 27 H. 8. but shall be said to be in contingency, so as, if he by such power altar not the Estates so limited, it may happen to take effect, but if otherwise, it will vanish and come to nothing, Vide pl. ibidem. Bar to an avowry. 5. In Bar to an Avowry for Trespass in 300 acres of common field Land, or Down, Dyer 171. 9 1 2. Eliz. the Plaintiff to frame himself a Title allegeth in his Bar, that A. (from whom he derived his Estate) was seized of the scite of the Manor of Dale, whereof the said 300 acres were parcel, and this Bar was adjudged insufficient for the Improbability, that so much Land should be parcel of the scite. 162. Uncertainties, by which the truth may be inveigled. Villain. 1. If a man do enfranchise a Villain Cum tota sequela sua, Co. Inst. pars 1. 3. a. 4. that is not sufficient to enfranchise his children borne before, for the uncertainty of the word Sequela. Heirs. 2. If a man gives Lands to one, to have and hold to him or his heirs, Co Ib. 8. b. 3. 22 H. 6. 15. he hath but an Estate for life for the uncertainty; so if a man give Land to two, to have and to hold to them two Et heredibus, omitting Suis, they have but an Estate for life for the uncertainty. Co. ibid. 9 a. 2. and Co. ibid. 20. b. 1. 3. To avoid uncertainty, Vocabula artis. which is commonly the Mother of contention and confusion, the Law doth appropriate to itself certain words (which may be termed Vocabula artis) to express divers things, which cannot significantly be expressed by any other words, or by any Periphrasis or circumlocution without them, as the word Heirs for the descent of Inheritance, which doth not only extend to his immediate heirs, but to his heirs remote, and most remote, born and to be borne, Sub quibus vocabulis, heredibus suis, omnes haeredes propinqui, & remoti, nati & nascitari, And Haeredum appellatione veniunt haeredes haeredum in infinitum, saith Fleta, lib. 3. cap. 8. So likewise, the Law useth peculiar words for Tenors, Persons, Offences, Forms of Original Writs, Warranty, Exchange, etc. and all this to procure certain expressions, and to prevent uncertainty for the reason aforesaid. Co. ibid. 20. b. 1. 4. If a man give Lands to A. Et haeredibus de corpore suo, A grant void. the Remainder to B. In forma predicta, this is a good Estate Tail to B. for that the words, In forma predicta, do include the other; but if a man let Lands to A. for life, the Remainder to B. in Taile, the Remainder to C. In forma predicta, this Remainder is void for the uncertainty. Co. ib. 34. b. 1. 5. In Dowment Ad ostium ecclesiae, to the end it may have certainty, Dowment ad ●ostium ecclesiae. which is the Mother of quiet and repose, and to avoid after contention, the Law requireth, that it be done openly, and may be assigned in certainty, to be enjoyed distinctly by itself, and not in Common. Co. ibid. 37. a. 3. & Co. ibid. 6. In all cases where the demand of Dower is certain, Assigment of dower. as in case of Dower Ad ostum ecclesiae, or Ex assensu patris, There the wife after the death of her Husband may enter; but where the demand is uncertain, as in Writs of Dower at the Common Law, there albeit the thing itself be certain, yet shall she not take it without Assignment, as if a woman bring a Writ of Dower of three shillings rend, albeit she ought to be endowed of one shilling, yet cannot she after judgement distrain for 12 d. before Assignment, because the demand was uncertain: So it is if two Tenants in Common be, and the wife of one of them bring a Writ of Dower to be endowed of a third part of a moiety, and have judgement to recover, yet cannot she enter without assignment, Co. ibid. 34. b. 3. albeit the Assignment cannot give her any certainty, because her Husband's Estate was uncertain: So if a woman bring a Writ of Dower of six pounds' Rent-charge, and she hath judgement to recover the third part, albeit it be certain, that she shall have forty shillings, yet she cannot distrain for forty shillings, before the Sheriff do deliver the same unto her: It is otherwise, where a Writ demands Land, Rent, or other things in certain; for there the Demandant after judgement may enter and distrain before any Seisin delivered to him by the Sheriff upon a Writ of Habere facias seisinam, etc. Co. ibid. 45. b. 2. 7. If a man make a Lease for so many years as he shall live, Lease void. this is void for the uncertainty. Co. ibid. 45. b. 4. 8. If the Parson of D. make a Lease of his Gleab for so many years as he shall be Parson there, this cannot be made certain by any means; The like. for nothing is more uncertain than the time of death, Terminus vitae est incertus, & licet nihil certius sit morte, nihil tamen incertius quam hora mortilo: But if he make a Lease for three years, and so from three years to three years, so long as he shall be Parson, this is a good Lease for six years, if he continue Parson so long, viz. First, for three years, and after that for three years, and for the residue uncertain. Co. ibid. 49. b. 2. and Co. ib. 359. ●. 3. 9 If A. be to make a Feoffment to B. and C. and their heirs without Deed, Livery. and A. makes Livery to B in the absence of C. in the name of both, and to their heirs, this Livery is void to C. because a man being absent, cannot take a Freehold by a Livery, but by his Attorney lawfully authorised by Deed to receive Livery, unless the Feoffment be made by Deed, and then the Livery to one in the name of both, is good, and the reason hereof seems to be, because the Feoffment being made without Letter of Attorney or Deed, it is uncertain whether or no he consented thereunto, which is apparent by his sealing of the Letter of Attorney or Deed of Feoffment. Note, That a Deed sealed may be delivered without words, because there is sufficient certainty expressed in the Deed, what is meant by the Delivery; but Livery of Seisin requireth words to express it, and also Ceremony, to the end it may be certainly known what is intended by it; And a man absent can neither take nor make Livery without Deed. A Plow-land uncertain. 10. A Fine of so many Acres of Land, Meadow, and Pasture, Co. ibid. 69. a. 4. in certain is good, because the quantity of an Acre is certainly known by the Statute, De terris mensurandis; but a Fine De una virgata terrae shall not be received for the uncertainty; because it contains in some places more, in others less, and therefore Prisot saith well in 35 H. 6. 29. That a Blow may till more Land in one year in one Country, then in another. Rend and Distress uncertain. 11. There may be a certainty in uncertainty, Co. ibid. 96. a. 1. & 142. a. 3. as if a man hold of his Lord to shear all the sheep depasturing within the Lords Manor, this is certain enough, albeit the Lord hath sometimes a greater and sometimes a less number there; for this uncertainty being referred to the Manor, which is certain, the Lord may distrain for this uncertainty: Howbeit no distress can be taken for any Services, that are not put into certainty, nor can be reduced to any certainty, (for Id certum est quod certum reddi potest) because Oportet quod res certa deducatur in judicium, and upon the Avowry Damages cannot be recovered for that, which neither hath certainty, nor can be reduced to any certainty. A Protection uncertain. 12. A Protection, Co. ibid. 130. b. 4. as well moraturae as profecturae must be regularly to some place out of the Realm of England, and must be also to some place in certain, as super salva custodia Caliciae, etc. and not to Carlisle or Wales, which are within the Realm, or the like, but it may be to Ireland or Scotland, because they are distinct Kingdoms, or to Calais, Aquitaine, or the like, but a Protection granted to one, etc. until he return from Scotland was in 1 E. 3. 25. disallowed for the uncertainty of the time; So likewise a Protection, Quia moratur super altum mare, will not serve, not only because (as some think) that Mare non moratur, or for that a great part of the Sea is within the Realm of England, but likewise for the uncertainty of the place. A Bishop's certificate. 13. If a Bishop certify, that another Bishop hath certified him, Co. ibid. 134. a. 3. that the party, which is his Diosesan, is excommunicated, this certificate upon another's report is not sufficient for the uncertainty, there is the same reason also of an Hear-say in evidence. A Villain. 14. If the Lord make a Lease to his Villain for life or years by Deed or without Deed, this is an enfranchisement of the Villain; Litt. S. 207. Co. ibid. 138. but if he make him a Lease at will by Deed or without Deed, it is no enfranchisement, because he hath no certainty of his estate, but the Lord may put him out when he will. An Earldom to Daughters. 15. If an Earl hath his dignity to him and his Heirs and dyeth, Co. ibid. 165. a. 3. having issue one only Daughter, the Dignity shall descend to the Daughter and to her posterity, as well as any other Inheritance, as it fell out in Samson leonard's case, who married Margaret the only Sister and Heir of Gregory Fines Lord Dacre of the South, and in the case of William Lord Rosse; for in such case there can be no uncertainty, when there is but one Daughter, or Sister: Howbeit, where there are more Daughters than one, the eldest shall not have the Dignity and power of the Earl, viz. to be a Countess; but (in such case) the King, who is the Sovereign of honour and dignity, may for the uncertainty confer the dignity upon which of the Daughters he please; Howbeit the Lands shall be divided betwixt them, as amongst Parceners, for they are divisible and certain. Co. ibid. 211. a. 2. & 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certain, Uncertain day of payment. the Obligor cannot tender the money at the place when he will, for then the Obligee should be bound to perpetual attendance, and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice, that on such a day at the place limited, he will pay the money, and then the Obligee must attend there to receive it; for if the Obligor then and there tender the money, he shall thereby save the penalty of the Bond for ever: So likewise, if a man make a Feoffment in fee upon Condition, that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certain, that then, etc. In this case also the Feoffor must give notice to the Feoffee, when he will pay it; for without such notice, as aforesaid, the tender will not be sufficient: Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day, C. must give no●●ce thereof to D. and request him to be on the Land at the day to receive ●he Feoffment, and (in such case) he is bound to seek D. and to give him notice: In all which cases it is to be observed, that what the contract of the parties leaves uncertain, the Law (to prevent contention) reduceth to a certainty: And therefore (in such cases) Littleton's advice is wholesome council, viz. Not only to limit a certain place and day, Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certain time of the day, as betwixt the hours of two and four, or the like: And (indeed) it is good in Conveyances to set down every thing in certainty and particularity; for certainty is the mother of quietness and repose and uncertainty the cause of variance and contention: And therefore for the obtaining of the one, and avoiding of the other, the best means is in all assurances, to take council of learned and well experienced men, and not to trust only (without advice) to a Presiden: for as the Rule is concerning the state of a man's body, Nullum medicamentum is idem omnibus, so in the state and assurance of a man's Lands, Nullum exemplum est idem omnibus. Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition, that which of them two shall marry first, Lease on Condition to marry. that one shall have the fee, they intermarry; In this case, neither of them shall have fee, for the uncertainty. Co. ibid. 227. a. 1. 18. If the jury give a Verdict of the whole Issue, and of more, Insufficient Verdict. etc. that is surplusage, and shall not stay judgement; for, utile per inutile non vitiatur, and necessary incidents required by Law, the jury may find: Howbeit, a Verdict finding matter uncertainly or ambiguously is insufficient, and no judgement shall be given thereupon; as if an Erecutor plead plene administravit, and Issue is joined thereupon, and the jury find, that the Defendant hath goods in his hands to be administered, but find not to what value, this is uncertain and therefore insufficient: so a Verdict, that finds part of the Issue, and nothing for the residue, is insufficient for the whole; because they have not tried the whole Issue, whereby they are charged: As if an Information of Intrusion be brought against one for intruding into a Message, and one hundred Acres of land, upon the general Issue, the jury find against the Defendant for the Land, but say nothing for the House, this is insufficient for the whole, and so it was twice adjudged, viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queen, and M. 28, & 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis. Co. Inst. pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs, Uncertainty or an use. who hath no notice of the former use, yet no use passeth by this bargain and sale; for there cannot be two uses in esse of one and the same Land, and seeing there is no transmutation of Possession by the Tertenant, the former use can neither be extinct nor altered: And if there could be two uses of one and the same Land, than could not the Statute of Uses execute either of them for the uncertainty. Detinue. 20. A Writ of Detinue lieth for goods delivered or found, Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are; but it lieth not for money out of a Bag or Chest, or for Corn out of a Sack, or the like; because these cannot be distinguished from other money or Corn: So likewise an Action of Detinue lieth for Charters, which concern the Inheritance of Land, if he know them in certain, and what Land they concern, or if they be in a Bag sealed, or Chest locked, albeit he know not the certainty of them; but the Writings, or (at least) the Bag or Chest he must know in certain, otherwise that Action lieth not; And in case of a Bag or Chest it is good to declare (if he can) of one Writing in certain, for then the Defendant cannot wage his Law, which otherwise he may. Plaas double and multiplied. 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter, for in their time and place a man may use divers of them, Co. ibid. 304. a. 3. but in Pleas perpetual and peremptory, there ought not to be duplicity or multiplicity of distinct matter to one and the same thing, whereunto several answers (admitting each of them to be good) are required, for that is not allowable in Law for the uncertainty; Bract. fo. 5. fo. 400. Fleta l. 6. cap. 35. whereof Bracton and Fleta speak notably, Sicut Actor una actione debet expediri (saltem illa durante) sic oportet tenentem una exceptione, dum tamen peremptoria (quod in dilatorijs non est tenendum) quia si liceret pluribus uti exceptionibus peremptorijs simul & semel, sicut fieri poterit in dilatorijs, sic sequetur, quod si in probatione unius defecerit, ad aliam probandam possit habere recursum, quod non est permissibile non magis quam aliquem se defendere duobus bacalis in duello, cum unus tantum sufficiat. Vide pl. ibid. per totam paginam, for departure, double Pleas, etc. Attornement. 22. If the Lord first grant the Services of his Tenant to one, Co. ibid. 310. b. 1. and afterwards by another Deed of a later date grants the same services to another; In this case, if the Tenant attorne to the last Grantee, it makes his Grant good, and albeit he afterwards attorne to the other Grantee, yet cannot that make the first Grant good; because the Attornement took effect in perfecting the last Grant: Howbeit (in the same case) if the Tenant attorn to them both, the Attornment is void to both for the uncertainty, so if a Reversion be granted for life, and after it is granted to the same Grantee for years, and the Tenant attorneth to both the Grants, this is also void for the uncertainty: A Fortiori, if the Lord by one Deed grant his Seignory to I. Bishop of London and to his heirs, and by another Deed to I Bishop of London, and to his Successors, and the Tenant attorne to both Grants, this Attornment is void for both Grants; for albeit the Grantee be but one person, yet he having several capacities, and the Grants being several, the Attornment is not according to either of the Grants, and (by consequent) void for the uncertainty. An uncertain Deed. 23. If Land be given by Deed to two, to have and to hold to them, Co. l. 1. 85. a. 1. in Corbets case. & heredibus, it is void for the insensibility and incertainty; And although it hath a clause of Warranty to them and their heirs, this shall not make the first words which are incertain and insensible, to be of force and effect in Law, albeit his intent appear; but his intent ought to be declared by words certain and consonant to Law. 24. In an Indenture of bargain and sale for twenty pounds, Dyer 6. 26 H. 8. 3. there are divers Covenants, An uncertain Plea and in the end there are these words, Ad quas conventiones perimplendas obligo me in 40 l. etc. Here, in debt brought for the 40 l. payment of the 20 l. is no Plea without an Acquittance; albeit, proof may be made of the payment of the 20 l. yet without an Acquittance it remains uncertain whether the Covenants were performed, and what other agreements there were betwixt the parties by Spilman, Fitzherbert, and Shelley, and 28 H. 8. 25. accords, Tamen Quaere, for Dyer seems to be of another opinion. Dyer 14. 71. 28 H. 8. 25. If a Feoffment be made to four by Deed, Livery without Deed. Livery to one is good for all; It is otherwise, if it be without Deed for the uncertainty. Dyer 17. 95. 28 H. 8. 26. A negative pregnant is disfavoured in Law, for the uncertainty; A negative pregnant. as in a Writ of Entry in consimili casu, supposing the alienation to be in fee, the Tenant saith, that the Tenant for life did not alien in fee, which implies that he did alien, though not in fee; for notwithstanding that Plea, the Tenant for life might alien for another life or in tail, and therefore no good Plea for the uncertainty. Dyer 22. b. 138. 28 H. 8. 27. If a man buy twenty quarters of Grain, No Detinue for grain of money. and is to have them delivered at such a place upon such a day, and the contract is not performed by the Vendor; In this case, the Vendee cannot have an Action of Detinue for the Grain for the uncertainty; because one quarter of Grain cannot be known from another quarter of the same Grain; there is the like Law of Coin. Dyer 25. 156. 28 H. 8. 28. An Inquest remained pro defectu hundredorum, Defect of Jurors. and the Plaintiffs Council made suggestion to the Court, that there were no Freeholders in the Hundred, but all Copy-holders', and Tenants in ancient Demesne, and thereupon prayed Process, the proxim. hundred. adjacente, & non potuit habere; for the Court are not to believe the Counsels suggestion for the uncertainty thereof, but aught to have it ascertained by the return of the Sheriff, who is a sworn Officer. Co. l. 1. 84. b. 4. in Corbets case. 29. If Land be given to A. in tail, the Remainder to B. in tail, A perpetuity not good. with other Remainders over, upon Condition, that if any of these shall offer to bar the said estate, his estate shall cease as if he were naturally dead, and then it shall be to the next in Remainder: This is a void Proviso for the uncertainty; for judges ought to know the intention of the parties by certain and sensible words, which are agreeable and consonant to the rules of Law. Co. l. 1. 155. a. 3. in the Rector of Chedingtons' case. 30. A man possessed of certain Land for sixty years in consideration of a marriage to be had betwixt his Son and the Daughter of another, Leases void for the uncertainty. demiseth the Land to his Son for seventy years, to begin after his death, and after the Lessor dies, in the case the Lease is good; because, when the Land is demised, Habendum after the death of the Lessor for seventy years, there was sufficient certainty, and no apparent uncertainty in the Deed, as it was agreed in Locrofts case, M. 34. & 35 Eliz. But if a man possessed of a Lease for forty years grants to B. so many of the years as shall be behind, tempore mortis suae, this is void for the uncertainty, as it is agreed in 7 E. 6. Br. Grants 154. and in Pl. Com. 520. b. So if a man have a Lease for life by Deed indented with Proviso, that if the Lessee die within sixty years, that the Executors of the Lessee shall have it for so many years as shall be behind at the time of his death, this is but a Covenant, and not a Lease for the uncertainty: Vide 3, & 4, P. & M. Gravenors' case, Dyer 150. a. & 22. Ass. Pl. 37. Co. I. 2. 3. Mansers' case. 31. In debt by P. against M. the Defendant pleads the Bond was upon Condition, that P. should enjoy the Land, An uncertain Plea. which he held by Feoffment from M. discharged and indemnified, and that M. and his Son should perform such Acts for further 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 showed 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 show, that the Release concerned the Land. An uncertain covenant to stand seized. 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 blood, I will stand seized 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 certain, and the person by matter, ex post facto, may be made certain; but if I for divers considerations covenant with you, that I will stand seized 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 raised, 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 general and uncertain as his words were: Neither can the Covenantor (in such case) reserve power to make Leases for the same reason. Uncertain Grant. 33. The King or a common person grants omnia illa messuagia in tenura Johannis Browne situate in Wells, Co. l. 2. 33. a. 3. Doddingtons' case. whereas in truth they lie in D. in this case, the Grant is void for the uncertainty. Error. 34. In Error, Co. l. 3. 2. a. The marquis of Winchester's case. the Record of a Recovery was of the Manor of Merleston cum pertin. and the Writ of Error was to remove a Recovery of the Manor of Merleston in Merleston cum pertin. this is no good removal 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. until C. shall return from Rome into England, Co. l. 3. 2. a. 4. in Bonastons case. and after such return from Rome into England, to remain over in fee, this Remainder is void for the contingency and uncertainty, it being altogether uncertain, whether or no C. will ever return 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 mere 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 heirs, Co. l. 3. 32. b. 3. Butler and Baker's case. bona & Catalla felonum & fugitivorum, or utlagorum fines amerciamenta, etc. within such a Town or Manor; 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 uncertain, and therefore they are usually called casualties. Dower. 37. If Lands be conveyed to a Feme before marriage for part of her jointure, Co. l. 4. 3. a. 3. in Vernous case. and after marriage more Land is conveyed unto her for her full jointure, and in satisfaction of all her Dower, and after the Baron dies; 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 jointure, 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. Saunder. 38. In slander, Co. l. 4. 17. b. 1. james and Ru●lech case. both the person and scandalous words ought to be certain 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 thief; in this case, I. S in his count may show, that there was speech of him betwixt them, and that the one said of him, He (innuendo pred. I.S. is a notorious Thief; for the Office of an Innuendo is to design the same person which was named in certain before, and in effect standeth in the place of a Predict. But an Innuendo cannot make that person certain which was uncertain 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, etc. here, for the uncertainty of the Person, no Action lies, and an Innuendo cannot make it certain; so if one say generally, I know one near about I.S. who is a notorious Thief, 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 general 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 mere imagination of an intent, which appears not by the words, upon which the Action is grounded, but is altogether uncertain, and subject to a lose conjecture. Co. l. 4. 35. a 4. in Bosom's case. 39 The Queen grants Totam illam portionem decimorum, Grant of tithes. etc. 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 youngs 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 arm, or in the belly, and an Indictment ought to express in certain as well in what part the mortal wound is, as the depth and breadth of it, to the end it may appear to the Court to be mortal; and because it was said that he died De vulueribus & plagis predict. and one of them was uncertainly alleged, that made the Indictment insufficient as to all. Co. l. 4. 74. a. 4. in Palmer's case. 41. An Inquisition was thus returned, Inquisition insufficient. that the Queen's Debtor was possessed of a certain Term, Pro termino quorundam annorum adhuc venturo, and it was adjudged insuffient, for a Term cannot be extended without showing the commencement and certainty of the Term, to the end that (the Debt being satisfied) the party may have the term again, if any part thereof shall remain, which ought to appear, and thereupon the party may have remedy to remove the hands of the Queen or of any other person, and so it was adjudged M. 32. & 33. Eliz. In scaccario. Co. l. 4. 110. b. 4. adam's and Lambert's case. & ib. 110. b. 2 in the same case▪ see there also 113. a. Sir Barth. Reads case. 42. If Land of the yearly value of 20 l. per ann, A charitable and a superstitious use. be given upon condition to fine a Priest to pray for Souls, and that the Priest shall have yearly 10 l. thereof for his Salary, and shall distribute other ten pounds to certain poor people; in this case by the Statute of 1 E. 6. 14. the King shall have but the 10 l. limited to the Priest, and not the Land; howbeit if the same Land were given to find the Priest, and for the maintenance of 20 poor men, in this case the King shall have all the Land, albeit the Priest hath 10 l. thereof, and the poor men the other 10 l. And the reason of this diversity is, because in the first case there was a good use separate and distinct in certain from the superstitious use, but in the other case it was left altogether uncertain how much the Priest, and how much the poor men should have, and therefore in such case the King shall have all. Co. l. 4. 115. b. 3. Turner's case in Ad. and Lamb. case. 43. A man seized of certain Houses of the yearly value of 4 l. 6 s. 8 d. devised them upon Condition to find an Obits, The like. spending thereat so much as the devisees should in their discretions think fit, the Devisees expend only upon the Obits, 6 s. 8 d. per annum, and it was adjudged that the Queen Elizabeth, should have all the houses, because the appointment was uncertain, albeit the employment was certain. Co. l. 5. 1. a. 4. in Claitons' case. 44. Indentures of demise were engrossed bearing Date the 26 day of May, Anno 25. Eliz. to have and to hold for three years from henceforth, Commencement of an Indenture. and they were delivered at four a clock in the afternoon upon the 20 day of June anno praed. In this case the Lease shall end upon the 19 day of june in the third year; for the Law in this computation rejecteth all Fractions and Divisions of a day for the uncertainty, which is always the Mother of contention. Several Interests, several Covenants. 45. An Authority may be granted to two, vel cuilibet eorum, Co. l. 5. 19 a. Slingsbies' case. as to make Livery or the like; but an Interest cannot be so granted, as if A. covenants with two, Et cum quolibet eorum, they cannot sue severally, unless their interests were several; as if a man by Indenture deviseth Black Acre to A. White Acre to B. and Green Acre to C. and covenants with them, Et quolibet eorum, that he is lawful owner of the said Acres; in this case in respect of their several Interests, by the words, quolibet eorum, the Covenant is made several; but if he demise the acres to them jointly, than the words, Cum quolibet eorum are void for the uncertainty; for albeit divers persons may bind themselves, & quolibet eorum, and so the Obligation shall be joint or several, at the election of the Obligee, yet a man cannot bind himself to three, and to each of them to make it joint or several at the election of several persons for one and the same cause, for the Court will be in doubt for which of them to give judgement, which the Law will not suffer: As it was held in 3 H. 6. 44. where one brought a Replevin for one beast against two, who made several avowries, each of them by himself in his own right, and there (by the advice of all the justices) both the Avowries abated for the inconvenience and uncertainty; because, if both the Issues should have been found for the Avowants, the Court could not have given judgement to them severally of the same thing. Uncertain count. 46. It is the duty of a Declaration, Co. l. 5. 35. a. 3. in Plaiters case. to reduce the generalty of the Writ into certainty, otherwise the issue will be general and uncertain, and (by consequent) the verdict the like, and then the jury cannot be attainted, if they happen to give a false verdict. Schismatic. 47. Where a Bishop refuseth to admit a Clerk, Co. l. 5. 37. b. Specots' case. it is not a sufficient cause to allege in general, that he is Schismaticus inveteratus, for that is causa vaga & incerta, but he ought to charge him in particular with some particular Schism, and to show how and wherefore he is a Shismatick. Release. 48. M. is Bail for C. in an Action where H. is Plaintiff, Co. l. 5. 70. b. Hoes case. H. hath judgement, and Scire facias against C. and in his default against the Bail, who pleads the Plaintiffs release before judgement, this is held an insufficient plea, because a certain duty with a Condition subsequent may be released, as an Obligation; not an uncertain duty with a condition precedent before the time, because the debt and damages are uncertain. See also Co. l. 10. 51. a. 1. in Lampets' case. An award. 49. The Plaintiff and Defendant submit themselves to the Arbitrement of A. who awards that the Defendant shall enter into Bond, Co. l. 5. 77. b. Sammons case. that the Plaintiff and his wife shall enjoy such Land quietly; This is a void award, because of the uncertainty of the sum in the Bond, which ought to be (at least) to the value of the Land, also the award is void as to the Feme, because she is a stranger to the submission. No Lapse. 50. A Patron is not bound any way to take notice of a Laps for the Incumbents not reading the Articles according to the Statute of 13 Eliz. 12. but from the Ordinary himself, Co. l. 6. 29. b. 1. in Green's case. and no laps will incur if that be not done, and such notice ought to be certain and particular, and therefore it is not sufficient for the Ordinary in such case to give notice, that the Presentee hath not read the Articles and subscribed, generally; but he ought particularly to inform the Patron, that he hath not read the Articles, etc. for which default he is deprived, and that thereupon it belongs to the Patron to present, for Notitia dicitur a noscendo, and Ex vi termin. it ought to be special and certain, for Notitia non debet claudicare. Co. l. 35. b. 1. The Bishop of Baths case. 51. If one let the Manor of D. to I. S. for so many years, An uncertain Lease. as I. N. hath in the Manor of S. and he hath ten years in it, such Term shall I. S have in the Manor of D. so if a Lease be made to another during the minority of I. S. and he is of the age of ten years, this is a good Lease for 11 years, if I.S. so long live, because such Leases have a certain commencement and a certain end; but if the wife of I.S. be great with child, and a Lease be made until the issue in ventre sa mere, shall come to full age, this is no good Lease for the uncertainty; for at the time when the Lease is to take effect, it is uncertain when the child will be borne, and (by consequent) the commencement, continuance, and end, of that Lease is uncertain, and therefore void: So if a man let Land of the value of 20 s. per annum, until 21 l. be levied of the Issues and profits, without Livery, this is but a Lease at Will for the uncertainty, for it is not certain that the Land will hold to be every year of one and the same yearly value, vid. plus ibidem. 52. Vide Max. 36. 1. Co. l. 6. 60. a. 3. Gatewards' case. 53. Common by reason of Commonancy is against reason, Common for commonancy for such a Common is transitory and utterly uncertain, because it follows the person and that for no certain time or estate, but only during his inhabitancy, which kind of Interest the law will not suffer, for custom ought to extend to that which hath certainty and continuance. Co. l. 8. 68 b. Trolops case. 54. A Bishop certifies in general, that I.S. is excommunicate, Excommunication. this is not good for the uncertainty, for he ought to certify the particular cause in certain, wherefore he was excommunicate. Co. l. 8. 91. a. 4. Frances case. 55. If Land be devised to I.S. upon condition that he suffers his Executors to carry away his goods, Devise. disturbance by Parol is no breach of the Condition, but the heir that claims interest must allege some special disturbance in certain by some act done, as by shutting the doors upon them, laying hands upon them, or the like, whereunto the other party may make a certain answer, and whereupon a certain issue may be taken, whereof the jury may inquire, and the Court may judge whether it be a sufficient breach of the Proviso or no. Co. l. 8. 121. a. 1. in Doctor Benhams case. 56. Regularly, Uncertain plea. those that have power to impose Fine and Imprisonment (except a Court of judicature) shall plead the particular cause in certain wherefore the party was so fined or imprisoned, and not in a general or uncertain manner, because in such Cases upon an Action brought by the party fined or imprisoned, the cause is traversable, as the Fine and Imprisonment in Doctor bonham's case, and the Acts and Orders of Commissioners of Bankrupts; for they are traversable, and therefore ought not to be uncertainly pleaded. Co. l. 8. 135. a. 4. in John nedham's case. 57 An Administrator cannot plead uncertainly and in general, The like. that the Intestate had Bona notabilia; but he ought to plead them in certain, for otherwise it will be intended that the Intestate had not Bona notabilia, in several Dioceses. Co. l. 8. 155. a. 3. in Edw. Althams' case. 58. If a man by Deed gives goods to one of the sons of I. S who hath divers Sons; here, he shall not take averment which son he meant, for by judgement of Law upon this Deed, this gift is void for the uncertainty, which cannot be supplied by averment, Vide 11 E. 4. 2. Co. l. 9 18. a. 2. Ann Bedingfeilds' case. 59 In Dower, upon plea of detainer of Charters, in bar thereof, Detainer of Charters. the heir must show the certainty of the Charters, or that they are in a chest or box, locked or sealed, to the end that a certain Issue may be joined thereupon, and it is not enough to plead detainer of Charters in general, for that is an insufficient plea for the uncertainty, See also Co. l. 9 110. a. 2. Co. l. 9 25. a. 2. in the case of Strata Mercella. 60. In the case of the Abbot De Strata Mercella, Uncertain plea. the Defendant pleaded, Quod pred. Abbas licite habuit bona felonum, etc. And yet shown not his case in so certain and special manner that the Court might adjudge whether the Abbot by the Law had Felons goods or no; And thereupon his plea was adjudged insufficient for the Uncertainty: So also it is agreed in 22 E. 4. 40. The Lord Lisles case, where one was bound in an Obligation upon Condition that he should come to B. such a day and show the Obligee or his Council a sufficient discharge of an Annuity of 40 s. which he claimed out of two houses, etc. And in Debt upon this Obligation, the Defendant pleaded, that he came to B. at the day aforesaid, and there offered to show to the Plaintiff and his Council a sufficient discharge, and that they refused to see it, upon which the Plaintiff demurred in Law; And it was adjudged that the plea was insufficient, for the plea ought to have alleged what manner of discharge in certain he offered to show, viz. a Release, unity of possession, or other matter of discharge, whereupon the Court might have adjudged whether it had been sufficient, or no. Ravishment of Guard an uncertain verdict. 61. In Ravishment de Gardiner, Co. 9 74. a. 3. in Doctor Hu●sers case. (according to the Statute of Westm. 2. 35.) The jurors found generally, that the Ward was married, and that at the time of his marriage, he was eighteen years old and upwards, etc. and this was adjudged an insufficient Verdict; because it is not only thereby left uncertain who procured him to be married, viz. Whether the Ravishor, a stranger, or the Plaintiff himself, or that the Ward of his own accord married himself; but also it is uncertain in the time when he was married, whether before or after the Ravishment; And therefore it is well said in 30 E. 3. 23. That the Verdict ought to be such that the judges may clearly proceed to judgement, and (by consequent) ambiguous and uncertain Verdicts are insufficient and void, as in 40 E. 3. 15. in Debt against Executors, they plead fully administered, etc. the jurors find that they have goods in their hands, but do not say to what value, and for this uncertainty their Verdict was held insufficient and void, See more authorities, ut supra Uncertain re●●cation. 62. A. seized of the Manor of D. levies a Fine to uses with power of Revocation, upon payment of 40 s. to the Conusee, Co. l. 9 106. b. 2. Lady Gresham's case in Marg. Podgers case. & being likewise seized of the Manor of S. levies another Fine thereof to the same Conusee, but to other uses, with like power of Revocation upon payment of 40 s. to the said Conusee; Afterwards A. pays 40 s. to the Conusee for revocation of all the uses raised upon both the Fines, and this payment was testified in writing under the Seals of the parties; In this case none of the uses are revoked, but the Revocation is utterly void for the uncertainty; because two several sums of 40 s. should have been tendered, and not one sum only, for they were several Indentures, and several Mannore, and could not be satisfied by one sum, because it was thereby left uncertain, which uses, and of which Manor the Revocation was meant. Uncertain plea. 63. In debt against an Executor, he ought not to plead, Co. l. 9 109 b. 3. Menel Treshams' case. Quod ipse non habet, etc. aliqua bona, etc. praeter bona, etc. quae non sufficiunt ad satisfacienda debita predicta; but he ought to plead, Quod non habet, etc. bona, etc. praeterquam bona & cattalla ad valentiam of a certain sum, Et non ultra, quae eiisdem debitis obligata, & onerabilia existunt, etc. for the first plea is insufficient for the uncertainty, because the Plaintiff cannot reply thereupon, so as a certain Issue may be taken. ●ncertainty of ●●e the per●●n. 64. When there is uncertainty in the person, Co. l. 10. 51. a. 3. in Lampets' case. to whom a Release or other Grant is made, such Release or grant cannot be good; And therefore if a Lease for life be made, the Remainder to the right heirs of I. S. and the Lessee is disseised, and the eldest Son of I.S. releaseth to the disseisor, and after I. S. dies; In this case the Release is void for the uncertainty, whether or no he shall be right heir at the death of his Father: So likewise in 17 Eliz a man lets to Baron and Feme for 21 years, the Remainder to the survivor of them for 21 years, and the Baron grants over this term, here also the grant is void for the uncertainty of the person, for albeit of all Chattels real, which are the Femes, the Baron may dispose, yet in this case neither the Baron nor Feme had any thing until the Survivor, etc. Co. l. 10. 90. a. 3. in Doctor Leyfeilds' case. 65. The reason why colour is given in a Writ of Entre sur disseisin, Colour in pleading. Writ of Entre in the nature of an Assize, and Assize, Trespass, etc. is, for that the Law (which prefers and favours certainty as the mother of quiet and repose) to the intent that either the Court may adjudge upon it, if the Plaintiff demur, or that a certain Issue may be taken upon a certain point, requires that the Defendant, when he pleads such a special Plea (notwithstanding which the Plaintiff may have right) shall give colour to the Plaintiff, to the end that his Plea should not amount to a general Issue, and so leave all the matter at large to the jurors, which would be uncertain and full of multiplicity and perplexity of matter. Co. l. 10. 117. b. 2. in Rob. Pi●folds case. 66. In Trespass the Plaintiff counts for damages twenty marks, Uncertain Verdict, the Defendant pleads not guilty, the jurors tar damages and costs jointly at twenty two marks; In this case the Verdict cannot stand, for it appears not how much is for damages, and how much for costs; and therefore the Plaintiff can have judgement but for twenty marks for the uncertainty. Co. l. 11. 25. b. 1. in Hen. Harpers case. 67. An Ejectione firmae brought de omnibus & omnimodis decimis in W. without saying garborum, faeni, lavae, etc. Uncertain allegation. this is not rightly laid for the uncertainty, because there is no certainty alleged of the nature or quality of the tithes, whereupon a certain judgement may be given, or execution by habere facias possessione had; And this also appears in an Assize brought, de quadam portione decimarum, etc. in 7 E. 6. Dyer 84. F. N. B. 41. a. 68 The Bishop shall not cite or distrain any to appear before him to make oath at the pleasure of the Bishop against the will of him, Citations. that is so summoned or cited; for such general citations, which the Bishops make to cite men to appear before them, prosalute animae, without expressing any cause in special, are against Law, for which the party grieved may sue a prohibition against the Bishop, and thereupon an Attachment, if the prohibition be not obeyed; And such cause ought to be only Matrimonial or Testamentary. Plow. 56. a. 1. Wimbish and Talb●ies case. 69. A Bar, which is certain to a common intent, is good; Replication● must be certain: but Replications, Titles, Pleas in Abatement of Writs, and Estoppels aught to contain Certainty; for the Law (which is grounded upon reason) ordains, that Replications which make the Issue, should be certain, to the end that neither the Court nor jurors (who try the Issue) should be misled or enveigled by uncertainty; and therefore albeit a man may plead in Bar Que estate, without showing how he comes by the estate, yet in a Replication if he plead Que estate generally, it is not good, as it is held in 2 E. 4. but he ought to show how he comes by the estate for the cause aforesaid. Pl. 65. a. 3. Dive and Manninghams' case. 70. Where a Recovery is had of two hundred Acres, An uncertain Plea. upon occasion of pleading that Recovery, to plead a Recovery of one hundred Acres, inter alia, is not good for the uncertainty, as in 22 E. 4. in a Scire facias to have execution of two hundred acres of Land, the Tenant pleads that since the Scire facias sued, I.S. brought a Formedon of one hundred Acres inter alia, and recovered and had execution, judgement of the Writ for that parcel, and this Plea was not held good, for it is not the right form of pleading such a Recovery, because a Recovery ought to be certainly pleaded to every intent, and these words inter alia are certain to no intent; but there it is held, that he ought to have pleaded, that I. S. brought a Formedon of two hundred Acres, whereof those one hundred Acres now in demand are parcel, and hath recovered, and hath had execution. Certainty in Law proceed. 71. The proceed of a Suit, Pl. 84. a. 4. Partridges case. the allegations ought to be certain in one part or other, according to the nature of the Suit, viz. 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 Prioress for his salary, and declares, that he was retained with his Predecessor, and shows 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 general without certainty, as in Assizes, but there the certainty ought to be showed by the Replication: sometimes the Writ, Count, and Replication may be uncertain, but then the certainty ought to appear by the Verdict, as in a Quare Impedit, the value appears not in the Count, nor in the Replication, but it will appear by the Verdict, for they shall assess double damages, or damages by half a year according to the value of the Church; so in a Writ of Ward the jury shall find whether the heir be married or not, and shall assess damages for it, and yet in the Count or Replication no such matter appears; So likewise in a Detinue the value of the goods shall appear by the Verdict, etc. so as certainty ought always to appear 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 certain Lands, as should be devised by council; the Defendant saith, that he was not requested; the Plaintiff replies, that his council advised, that the Defendant should seal a Release, which was required to be done, and that the Defendnat refused; to this the Defendant rejoins and saith, that he did not refuse, and that he was ready to do it: And the Court said, that this rejoynder 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 judgement 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 than a bare Tenant for life (concurrentibus hijs, quae in jure requiruntur) may charge or alien it, as in case of a Parson, Vicar, etc. when the Patron and Ordinary join 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 join, the Charge or Grant might have been thereby made certain and infallible: but where the Fee-simple is in Abeyance, and albeit by possibility it may every hour come in esse, yet it is altogether uncertain, when or whether ever or never that may happen: In such case, the Fee-simple cannot be charged until 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 Heirs of I.S. Here the Fee-simple cannot be charged or aliened, before I.S. be dead, in case I.S. die, living the Tenant for life, Co. ibid. 378. a. 3. but if the Tenant for life happen to die before I.S. then is the Remainder vanished and gone, because it cannot immediately vest after the death of the Tenant for life. Second deliverance. 74. Upon a second deliverance the Defendant being a Widow justifies by an estate for life, if she so long continue a Widow, Dyer 142 51, etc. 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 Cattles were taken, the Plaintiff had judgentent etc. Inquisition. 75. Inquisitio capta apud D. of Land in S. Dyer 208 19 3, 4. Eliz. without showing in what County either D. or S. is, was adjudged insufficient for the uncertainty, because upon a Traverse it could not be tried 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 term and died, and that the Defendant entered and was possessed, and that for arreare of rent the Action accrued, to this the Defendant demurs, 1. because he hath not alleged, that the Devisor made Executors, and that the Defendant entered with their agreement: 2. For that he saith not, vertute cujus legationis, the Defendant was possessed: 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 lieth 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 jury 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, etc. 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 uncertain 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, etc. 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 appear, that the first office was by warrant, etc. Hob. 89. Rich and Shere. 80. In an Ejectione firmae the Plaintiff counts of a Message, etc. Ejectio●e firma with Appurtenances called Dizzard in Cornwall, to hold for five years, the Defendant pleads not guilty, whereupon the Plaintiff had judgement; And the Defendant assigns for Error, that the Plaintiff had not showed in what Town, Parish, Hamlet, or place the Message lay, but in the general County, and thereupon the judgement was reversed in the Exchequer Chamber, 13. Jac. for here was a trial without a Visne. Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit, Elegit. Error for omitting the Entry of a clause in the Roll, which were expressed in the Writ and Return. Hob. 128. Pie and Coke. 82. Two Informations exhibited the same day against the same party for one and the same offence, judgement 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 recital conclude any thing, because it is no direct affirmation. The Earl of Leicester's case in Ploughed. 164. Generale nihil certi implicat. General 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. situate in W. whereas in truth they lie in D. In this case, because the grant is general, and is restrained to a certain Town, the Patentee or Grantee shall not have any Lands out of that Town, 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 himself in such a Court, such words of slander are actionable, for by these words it appears, that he hath forsworn himself in a judicial proceeding, but if one say to another, that he hath a Manor, and hath gotten it by swearing and forswearing, these words will bear no Action; because they are too general, and words which shall charge any with an Action, in which damages shall be recovered, aught to have convenient certainty: So if one call another Villain, Rogue, Varlet, or the like, or tells him that he is forsworn, such words are not actionable, because they are accounted words of heat 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 nowadays, then in times past. Schism. 3. Co. l. 5. 58. a. 4. Sp●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 Schismatic in general, but he ought to accuse him of some Schism or heresy in certain, to the end the Court may consult with Divines to know whether if be Schism or no, and thereupon make judgement whether the original cause of refusal be just or no. Arrests. 4. When the Sheriff, Bailiffs, or Sergeants arrest one, C. l. 6. 54. a. 4. The Countess of Rutland's case. it is not sufficient for them to say in general words I arrest you, but they ought upon the arrest to show at whose Suit, out of what Court, for what cause they do it, and when the Process 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 mean Process, either to agree with the party, or to put in bail according to Law. Errors. 5. In Assignment of Errors a general 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 special and certain, as to say, in hoc erratum est, etc. and to show the certainty of the things, and again to say, & in hoc erratum est, and to show another thing, & sic de singulis, in which he will assign Errors. Arbitrement. 6. The submission to an award betwixt A. and B. was general, Co. l. 8 98. a. 2. Baspoles' case. viz. of all Actions, Demands, etc. 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, etc. And therefore if the Arbitrement were not made of all the matters in controversy, the award was void: Howbeit, the award was adjudged good, because when the submission is general of all Actions, Demands, etc. Generale nihil certi Implicat, and therefore it stands well with the generalty of the words, that there was but one cause depending in controversy betwixt them. 165. Dolosus versatur in generalibus. Co. l. 3. 80. b. 4. Twines case. 1. P. being indebted to T. in four 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 Chattels, but continues the Pessession and employs 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 alleged in that Grant, was, for that it was general, viz. of all his Goods, etc. Co. l. 5. 57 b. 4. Specots' case. 2. Schismatiqu● It is not a sufficient allegation for a Bishop upon refusal of a Clerk to say in general, that he is a schismatic, Heretic, or the like; but he ought to accuse him of some crime, or Error in particular; because if such general allegation shall be admitted, Bishops (at this day) might at their pleasure deprive all Patrons of their Presentations. Vide 164. 3. for Dolosus versatur, etc. 166. Variance. Co. Inst. 1. 131. a. 4. 1. A material 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 repair them before any Action brought, there lieth 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 will be found against him; but he must plead the special 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 justification 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 justify it; but he must plead the special matter, and confess and justify the Battery; for otherwise the Variance of the Evidence from his Plea will cause the jury to find him guilty. The like Law is in many other cases; and therefore it is a learning necessary to be known, because the loss of many causes dependeth thereupon: As in Battery if the Defendant can justify the same to be done of the Plaintiffs own assault, he must plead it specially, and must not plead the general Issue. Co. ibid. 4. In Trespass of breaking his Close, Trespass. upon not guilty he cannot give in Evidence, that the Beasts came through the Plaintiffs Fence, which he ought to keep, nor upon the general Issue justify by reason of a Rent-charge, Common, or the like. Co. ibid. 283. a. 1. 5. In Detinue the Defendant pleadeth non detinet, Detinue. in this case he cannot give in Evidence that the goods were pawned to him for money, and that it is not paid, but he ought to plead it: Howbeit he may give in Evidence a gift from the Plaintiff; for that proveth he detaineth not the Plaintiffs goods. Co. ibid. 6. In Waste upon the Plea non fecit vastum, Waste he may give in Evidence any thing, that proveth it no Waste, as by tempest, lightning, enemies, or the like: but he cannot give in Evidence justifiable Waste, as to repair the House, or the like; for that will cause a Variance between the Evidence and the Issue. Co. ibid. & l. 5. 119. Whelpdales' case. 7. If two men be bound in a Bond jointly, and the one is sued alone, Joint Obligees. he may plead this matter in Abatement of the Writ, but he cannot plead non est factum, for it is his Deed, though it be not his sole Deed, See Whelpdales' case, where a man may safely plead non est factum, & where not, and former books that treat of that matter, well reconciled: Co. Inst. 1. 303. b. 4. See also more of this matter Co. Inst. ubi supra, etc. And here note, that in matter of pleading (to prevent variance) each party must be very circumspect in the ordering thereof, lest his Replication departed from his Count, or his rejoinder from his Bar, Et sic de cetaeris. Likewise what is departure in pleading and what not, See Co. Inst. 1. 304. per totam paginam, & pl. Co. 105. b. Variance inter Writ and Count 8. Co. l. 5. 37. a. 4. Bishop's case. Co. l. 8. 163. a Blackamoors case. In an Action upon the case Variance was found betwixt the Writ and the Count in the Defendants name, for in the Count he was named George, and in the Writ Christopher, and after judgement for the Plaintiff in the Common Place upon a Writ of Error in the K. B. the judgement was reversed by reason of that variance; for the Statute of 18 Eliz. 14. gives remedy where there is no Original Writ, but not where there is a Writ and a material variance betwixt the Writ and Count, etc. Variance inter Original and Judgement. 9 There ought not to be any variance betwixt the Original Writ, Co. l. 9 74. a. 1. Doctor Husseyes' case and the judgement given thereupon, but the judgement ought to be conformable to the Original, because it is grounded thereupon: And therefore in Ravishment of Ward, if the Action be grounded upon the Statute of Westm. 2. 35. according to the form of the Writ there prescribed, the Plaintiff cannot have judgement at the Common Law, but the judgement ought to be conformable and pursuant to the Original Writ, which is the Foundation and ground of the judgement, Vide plus ubi supra. Variance of names. 10. The Dean and Cannons of Windsor, Co. l. 10. 124. b. 2. Linne Regis case. Win●ates case. 29. & 30. Eliz. Hob. 124. were incorporate by the Statute of 22 E. 4. by this name, The Dean and Cannons of the King's free Chapel, etc. And in the Reign of P. and M. they made a Lease of certain Lands by this name, The Dean and Cannons of the King and Queens free Chapel, etc. And in an Ejectione firmae, brought by Wingate against Hall, M. 29. and 30. Eliz. the Lease for that variance was adjudged void. The like. 11. Merton College in Oxford, Co. ibid. 125, a. 2. was incorporate by Act of Parliament anno 1. M. Per nomen Guardianis & Scholarium Domus sive Collegii Scholarium de Merton, etc. And they made a Lease, per nomen domus sive Collegii de Merton, omitting Scholarium; Merton College case in B. R. And in an Ejectione firmae, H. 30. Eliz. This omission was agreed to be a variance in substance to quash the Lease; for the said Act hath Baptised the College by the name of the College of the Scholars of Merton, and they made the lease by the name of the College of Merton himself, who, (in truth) was the Founder. And, quer. 12. In an Audita querela, F. N. B. 104. 5. variance betwixt the Writ and the Record shall cause the Writ to abate. Variance inter brief and ●●●nt. 13. In Debt upon the Statute of 32 H. 8. 9 Pl. Co. 79 b. 4. Partridges case. made against buying pretenced Titles, etc. That Statute was recited in the Count to commence the 28 of April anno 32 H. 8. whereas it did begin the 28 of April anno 31 H. 8. and was continued by prorogations until 32 H. 8. and for that variance the Count was adjudged defective. The like. 14. In 20 H. 6. A man brings a Writ of Forger of false Weights, Pl. ibid. 84. b. 3. and the Writ was Diversa facta & munimenta, etc. and he counts but of Deed only, and Per totam curiam, for that variance the Writ shall abate. Writ and Count 15. In a Writ De consuetudinibus & servitiis, if the Demandant say, F. N B. 15 1. 7▪ De reddibus & arreragiis, etc. These words prove that the Demandant himself was seized of the Services, and then if he count in such a Writ of the Seisin of his Ancestor, and not of his own Seisin, for that variance the Writ shall abate. Dyer 150. 85. 3, 4. P.M. 16. The Corporation of Eton College was erected by H. 6. A void lease. Per nomen praepositi & Collegii Regalis Collegij beatae Mariae de Eton, etc. And in the time of E. 6. a Lease was made by Sir Thomas Smith, and the Fellows, Per nomen Praepositi & sociorum Collegii Regalis de Eton, and adjudged void for the variance. Dyer 191. 22. 2, 3 Eliz. 17. The relict of a Copyholder pleaded a Custom, Custom. to have the Copyhold during her life after her husband's death, and upon the evidence the custom appeared to be only Durante viduitate, and thereupon the Defendant demurring to the Evidence, judgement was given against her. Dyer 219. 11. 5. Eliz. 18. A man declares for the debt of 20 l. upon the sale of Wood, Debt. and gives in evidence but for twenty Marks, it shall be found for the Defendant, as if there had been variance in the things sold, Tamen Quaere if there be no difference, for the Issue is Quod nullum Denarium inde debet, So in Detinue of a chain of three ounces, where it weighed but two ounces, the Law lay 22 E. 4: Dyer 299. 34. 13. Eliz. 19 Issue was joined, that T. West, Issue, Miles dominus de la Warre non demisit, and in truth he was then Dominus, but at the time of the demise he was but Knight, yet it seemed to three Justices that the dignity was parcel of the Issue, so it could not be found with him, that pleaded his Lease. Dyer 338. 14. 18. Eliz. 20. In an appeal of the death of a Brother against I. S. of M. etc. Appeal. as principal, and one F. as accessary, whereas the name of the principal was T.S. The accessary appears and pleads, Nul tiel in rerum natura, as I.S. the day of the Writ purchased, nor at any time since; In this case the two Chief Justices held, That albeit there were another I.S. in another County, if it were not in the same County, where the Town of M. is, or if he were dead before the Writ purchased, the Plea sufficeth; and there also it was held, that in Favorem vitae, a man might traverse the Sheriffs Return. Hob. 38. 21. In Wast, Wast. if more Towns be mentioned in the Declaration then in the Writ, where the Wast is supposed to be done, the Writ shall abate. The Earl of Cumberlands case. Hob. 118. the Bishop of Yorks case. 22. In a Quare Impedit for the Vicarage of Leeds, Amendment, the word Vaccariam was inserted instead of Vicariam, and exception being taken thereunto, it was amended by the Cursitor in open Court. Vide 40. 53. 167. Contrariety and Repugnancy. And therefore, Libera Eleemosina. Co. Inst. 1. 97. a. 1. If Lands were given to hold In libera Eleemosina, reddendo, a Rent, the Reservation of the Rent seemeth to be void, because it is repugnant and contrary to the former grant, In libera Eleemosina. Co. ibid. 142. a. 3. 2. A man upon his Feoffment or Conveyance cannot reserve to himself parcel of the annual profits themselves, Profits cannot be reserved. as to reserve the Vesture or Herbage of the Land, or the like, for that would be repugnant to the Grant, Non debet enim esse reservatio, de profieiris ipsis, quia ea conceduntur, sed de redditu novo extra proficia. Lit. S. 220. Co. ib. 146. a. 2. 3. When in a general grant the Law doth give two remedies, Proviso repugnant. the Grantor may provide that the Grantee shall not use one of them, and may leave him to take the other, as upon the Grant of an annuity, the Grantor may provide, that the Grantee shall not charge his person; but where the Grantee hath but one Remedy, there that Remedy cannot be barred by any Proviso, for such a Proviso would be repugnant to the Grant. Co. ib. ●: 3: 4. The like. If a man by his Deed granteth a Rend charge out of the Manor of D. (wherein the Grantor hath nothing) with a Proviso that it shall not charge his person; Here, albeit the Repugnancy doth not appear in the Deed, yet the Proviso taketh away the whole effect of the Grant, and therefore is (in judgement of Law) repugnant, for upon the matter it is but a Grant of an Annuity, provided that it shall not charge his person. The like. 5. If a man by his Deed grant a Rent-charge out of Land, Co. ib. a. 4. provided that it shall not charge the Land; Here, albeit the Grantee hath a double Remedy, as above is said exam. 3. yet the Proviso is repugnant, because the Land is expressly charged with the Rent, but the Writ of unity is but employed in the Grant, and therefore that may be restrained without any repugnancy, and sufficient Remedy besides left for the Grantee, Condition repugnant. 6. If a man give Lands to another, Co. ib. 164 a. 2. and to the Heirs males of his body, upon Condition that if he die without heir female of his body, that then the Donor shall re-enter, this Condition is utterly void; for he cannot have an heir Female, so long as he hath an heir male. The like. 7. If a man make a Feoffment in Fee upon Condition that he shall not alien, this Condition is repugnant and against Law, Co. ib. 206. b. 3. 222. b. 4. Litt. S. 360. and the Estate of the Feoffee is absolute: But if the Feoffee be bound in a Bond, that the Feoffee and his Heirs shall not alien, this is good; for he may notwithstanding alien, if he will forfeit his bond that he himself hath made: So it is also if a man make a Feoffment in Fee upon Condition that the Feoffee shall not take the profits of the Land, this Condition is repugnant, and against Law, and the Estate conveyed is absolute: But, a Bond with a condition that the Feoffee shall not take the profits of the Land, is good. If a man be bound with Condition to enfeoff his wife, the Condition is void and against Law; because it is against a Maxim of Law, yet such a Bond is good: so if he be bound to pay his wife money, that is good also, Et sic de similibus, whereof there be plentiful Authorityes in our Books. Devise, Release, etc. 8. If a man devise Land upon Condition, Co. ibid. 223. a. 1. that the Devisee shall not alien, the Condition is void; And so it is of a Grant, Release, Confirmation, or any other Conveyance, whereby a Fee-simple doth pass, for it is absurd and repugnant to reason, that he, who hath no possibility to have the Land revert to him, should restrain the Feoffee, Devisee, or Grantee, in Fee-simple, of all his power to alien. Chattels. 9 If a man be possessed of a Lease for years, or of an House, Co. ibidem. or of any other Chattel, real or personal, and give or sell his whole Interest or Property therein, upon Condition that the Donee or Vendee shall not alien the same, this is a void Condition; because his whole Interest and Property is out of him, so as he hath no possibility of a Reverter, and it is also against Trade and Traffic, and bargaining and contracting betwixt man and man. Iniquum est ingenius hominibus non esse liberam rerum suarum alienationem: Again, Rerum suarum quilibet est moderator & arbiter: Take also this Rule, Regulariter non valet pactum de re mea non alienanda. Seignory in Rent, etc. 10. If a man be seized of a Seignory, Rent, Advowson, Common, Co. ib. a. 3. or any other Inheritance that lieth in Grant, and by his Deed granteth the same to a man and to his Heirs, upon Condition that he shall not alien, this Condition is also void for the repugnancy: Howbeit some have said, that a man may grant a Rend charge newly created out of Lands to a man and his Heirs upon such a Condition, and that in such case it shall be good, because the Rent is of his own Creation, but this is against the reason and opinion of Littleton (Sect. 360.) and also against the height and purity of a Fee simple: Howbeit, the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale itself, Condition not repugnant in respect of the Repugnancy, and not to any collateral thing; As if A. be seized of Black acre in fee, and B. enfeoffeth him of white Acre, upon Condition that A. shall not alien black acre, the Condition is good, because the Condition is annexed to other Land, and ousteth not the Feoffee of his power to alien the Land, whereof the Feoffment is made, and so no Repugnancy to the State passed by the Feoffment; And so it is of gifts or Sales, of Chattels real or personal: Again, A man before the Statute of Quia Emptores terraum, might have made a Feoffment in Fee, and added further, that if he or his Heirs did alien without Licence, that then he should pay a Fine, this had been good: And it is said, that then the Lord might have restrained the Alienation of his Tenant by Condition, because the Lord had a possibility of Reverter, & so it is in the King's case at this day, because he may reserve a Tenure to himself. Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Marry Portingtons' case. Co. l. 5. 40. Sir Anthony Mildmayes case. 11. If a gift in Taile be made upon Condition, that the Donee, etc. Condition repugnant upon grant of an estate in tail. shall not alien, this Condition is good to some intents, and void to other some; for as to all those alienations, which amount to any discontinuance of the Estate Taile, (as Littleton speaketh, Sect. 362.) or are against the Statute of Westminster 2. the Condition is good without question; but as to a common Recovery, the Condition is void, because this is no discontinuance but a Bar, and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile; for it is to be observed, That to this Estate Taile there be divers incidents; First, To be dispunishable of Waste. Secondly, The Wife of the Donee in Taile shall be endowed. Thirdly, That the Husband of the Feme Donee after Issue shall be Tenant by the Courtesy. Fourthly, That Tenant in Taile may suffer a common Recovery: And therefore if a man make a gift in Tail upon condition to restrain him of any of these incidents, the condition is repugnant and void in Law: And it is further to be observed, That a collateral Warranty or lineal without assets in respect of the recompense is not restrained by the Statute De donis, no more is a common Recovery in respect ot the intended recompense: And Littleton ubi supra, to the intent to exclude the Common Recovery, saith, Tiel alienation & discontinuance, joining them together. Inst. pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis, had made a gift to a man, The like. and to the Heirs of his Body, upon Condition, that after Issue he should not have power to sell, this Condition had been repugnant and void; Pari ratione, after the Statute a man makes a gift in Tail, the Law, Tacite, gives him power to suffer a common Recovery, therefore to add a Condition, that he shall have no power to suffer a common Recovery, is repugnant and void. Co. ibidem. 13. If a man make a Feoffment to Baron and Feme in Fee, Feoffment to Baron and Feme. upon Condition that they shall not alien, to some intent this is good, and to some other intent it is void, for to restrain an alienation by Feoffment, or alienation by Deed, it is good; because such an alienation is tortuous and voidable: But to restrain their alienation by Fine is repugnant and void, because it is lawful and unavoidable. 14. It is said, that if a man enfeoff an Infant in Fee, upon condition, Infant. that he shall not alien, Co. ibid. this is good to restrain alienations during his minority, but not after his full age. Co. ibid. 15. It is likewise said, Spirit. Corpor. that a man by Licence may give Land to a Bishop, and his Successors; or to an Abbot and his Successors, and add a Condition to it, that they shall not without the consent of their Chapter or Covent alien, because it was intended a Mortmain, that is, that it should for ever continue in that Sea or House, for that they had it En autor droit, for religious and good dses: And note, That whatsoever is prohibited by the intent of any Act of Parliament, may be prohibited by Condition, and shall cause no repugnancy. Confirmation. 16. A Disseisor makes a Lease for one hundred years, Co. ibid. 297▪ a. 2. and the Disseisee confirms the estate of the Lessee for fifty of those years, this is a confirmation of the whole term, for when he had once confirmed the Lessees estate, the whole estate was thereby confirmed, and therefore afterwards to limit the term to fifty years only, when the whole term was confirmed before, is repugnant and void; but the Confirmation ought to have been of the Land for part of the term; so likewise might the Disseisee confirm part of the Land for part of the term, etc. Vide infra 32. Habendum. 17. In a Deed or other Conveyance of Land, Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premises, or enlarge them, the Habendum is good, but when it abridgeth the Premises, it is repugnant and void. Vide Dyer 272. 30. Repugnant covenant. 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them, Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years, and if Jo. de Marre did not pay to Jo. de Burford one hundred marks at the end of the term, that then the Land should remain to Jo. de Burford and his heirs: In this case, the subsequent Covenant was repugnant and void; for first, the Charter of the Fee-simple was absolute, and the Covenant being made after the Charter, could neither alter the absolute Charter, nor upon a Condition precedent give him a Fee-simple, that had a Fee-simple before. A saving Repugnant. 19 I.S. being seized of certain Land in Fee, Co. l. 1. 47. a. in Alton Woods case. the same Land is given by Act of Parliament to the King in Fee, saving the Estates, Rights, etc. of all persons; In this case, the Estate of I. S (the owner of the Land) is not saved; for that would be repugnant, and make the express gift void, and vain. Act of Parliament repugnant. 20. It appears in our Books, that a saving in an Act of Parliament, which is repugnant to the body of the Act is void, Co. l. 1. 47. in Alton Woods case. as in Plowdens' Commentaries fol. 563. b. where the supposed Attainder of the Duke of Norfolk was by Act of Parliament in primo Mariae declared to be void and null, ab initio, saving the Estates and Leases made by E. 6. This saving was void, for when the Attainder was declared to be void, the said saving was against the body of the Act, and therefore repugnant and void. The like. 21. It is enacted by the Statute of 31 H. 8. cap. 13. that all Houses of Religion, Co. ibid. a. 3. and their Possessions then or afterwards to be dissolved shall be the Kings in the same estate and condition, as they were at the time of the making of the said Act, saving to all strangers their Interests, etc. After the said Act the Abbot of Ramsey grants the next avoidance of a Church of his Patronage, and after the Abbey is dissolved, and it was adjudged (Mich. 6. & 7. Eliz. Dyer 231.) that the Grant was void, and the saving repugnant to the body of the Act, for if the Advowson were in the King in the same estate and condition, as it was at the time of the making of the Act, than a Grant made after cannot be saved. 22. If Land escheat to the King by Forfeiture of Treason, Co. ibid. Co. l. 8. 118. b. 3. Doctor bonham's case. and after this Land is given to another by Act of Parliament, The like. saving to all others their Rents, Services, etc. This saving is repugnant and void, for they were extinct by the Forfeiture, 14 Eliz. Dyer 313. The like. 23. By the Statute of 1 E. 6. of Chanteries, all Services, Rents, Co. Inst. ibid. a. 4. etc. are saved, yet this saving as to Services is repugnant and void, for the King cannot hold of any, as it is held 14 Eliz. Dyer 313. a. 24. In the case of Alton Woods, Co ibid. & 52. b. 1. the Manor of Abbottesley being expressly given to the King, by the Statute of 28 H. 8. the general saving cannot extend to save the estate, The like. etc. of him, that was seized of the Land, for that would be repugnant to the body of the Act, and would make the Act vain and idle. Co. l. 1. 84. a. 3. Corbets case. Co. l. 6. 40 b. Sir Anthony Mildmayes case. 25. C. covenants to stand seized to his own use for life, Perpetuities. the Remainder to R. in tail, the Remainder to A. in tail, etc. upon this Condition or Proviso, that if any of these shall resolve to bar the said estate, that then his estate shall cease, as if he were naturally dead, and be to the next Remainder; Here, this Proviso is repugnant and against Law, for an estate tail cannot cease by the only death of the Tenant in tail, but by his death without Issue, and death natural or civil is requisite to every Descent, Reversion, or Remainder upon the determination of an estate tail. Vide pl. ibid. Co. ibid. b. 3. 26. In 8 Assis. Pl. 33. A man gives Land to Mary and Johan his Sisters, Joint estate repugnant. Et haeredibus de corporibus earum legitime procreatis (whereby they had a joint estate for life, and several Inheritances) and the Donor (intending that neither of them should break the jointure, but that the Survivor should have all, per jus accrescendi) added this clause, Sub hac forma quod illa quae illarum diutius vixerit tenebit terram illam integram; Howbeit, in as much as his intent is contrary to Law, if the jointure were severed by Fine levied, the Survivor shall not have the part so severed by the said clause, which he had so inserted of his own cenceit and imagination repugnant to Law and reason. Co. ibid. b. 4. 27. In Plesintons' case in 6 R. 2. (which see tit. Quid juris clamat, Condition repugnant. 20.) A man makes a Lease upon Condition, that if the Lessor grants the Reversion, that then the Lessee shall have fee; In this case, if the Lessor grant the Reversion by Fine, the Lessee shall not have fee, for the Condition is repugnant and void. Vide Pl. Com. 32. a. 4. Colthirst and Bevish. Co. l. 1. 176. b. 1. Mildmayes case. 28. When an use is raised in consideration of Fatherly love, Proviso repugnant. etc. with a Proviso to make Leases, the Proviso is repugnant and void; because when the Indenture is once sealed and delivered, his power of making Leases is taken away: it is otherwise where uses are raised upon a Fine, Recovery, or Feoffment, for there needs no consideration. Co. l. 2. 23. b. 4. in Baldwins case. 29. In Baldwins case in the 2 Report, Premises and Habendum repugnant. these Resolutions were agreed for Law; 1. As to things which take their essence and effect by the Delivery of the Deed without other ceremony, and which lie in Grant, when there is variance between the Premises and the Habendum; In such case, the estate which so passeth by the Delivery of the Deed, and is most advantageous to the Grantee shall stand, and the other shall be void for the repugnancy; So if a man grants rend on Condition, etc. out of his Land by the Premises of the Deed to a man and his Heirs, Habendum to the Grantee for years or life; in this case, the Habendum is repugnant, for fee passed in the Premises by the delivery of the Deed, and therefore the Habendum for years or life is repugnant and void. 2. If a man by Deed grant a Rent in esse, or a Seignory in the Premises to one and his Heirs, Habendum to the Grantee for years or for life, albeit it another thing or ceremony is requisite (viz. Attornement) besides the delivery of the Deed, yet in as much as the thing lies in Grant, and both the estates, viz. as well the estate in fee, as the estate for years or for life, aught to have one and the same ceremony (viz. Attornement) to pass it; for that cause (in such case) the Habendum is also repugnant and void. 3. When a man gives in fee by the Premises, Habendum to the Lessee for life; in this case the Hebendum is repugnant and void, for one and the same ceremony (viz. Livery) is requisite to both the estates, and therefore when Livery is made according to the form and effect of the Deed, it shall be taken most forcibly against the Feoffor, and most for the advantage of the Feoffee, and the Habendum (in such case) is repugnant and void, and until Livery the Feoffee hath but an estate at will. 4. When to an estate limited by the Premises a ceremony is requisite to the perfection of the Estate, and to the Estate limited by the Habendum nothing is requisite to the perfection and essence thereof, but only the delivery of the Deed, there albeit the Habendum be of a less Estate, then is mentioned in the premises, yet the Habendum shall stand, and the premises are repugnant and void, as it fell out in the principal case in Baldwins case; for A. covenants, grants, and lets to farm to B. and C. and to the heirs of C. to have for ninety nine years, etc. here the Estate for years limited by the Habendum took effect by the delivery of the Deed, whereas the Estate mentioned in the premises could not take effect without Livery, and for that cause was adjudged repugnant and void. Indictment repugnant. 30. Where a Wound was given the fourth of August, Co. l. 4. 42. b. 2. Heydons case. and the party died the nineteenth of December after, An Indictment against A. and B. as Abettors to the Felony, was drawn in these words, Et praed. A. & B. tempore feloniae & murdri praed. fact. viz. 4: Aug. etc. Felonice fuerunt presents, etc. ad feloniam & murdrum praed. in forma praed: faciend: And this Indictment as to A. and B. the Abettors, was adjudged insufficient for the Repugnancy, because no Felony was committed until the death of the party, and none shall be adjudged a Felon by relation, which is but a Fiction in Law. The like. 31. In an Appeal of Murder, Co. l. 4. 42. b 4. Humes case. the Wound was laid in the Count to be given at Weetwood, and the death to be at Westliborne, and then he concludes, Et sic praed. L.O. apud Weetwood praed. modo & forma praed. the said A. H. Felonice, etc. Murdravit. And it was resolved, that the Count was repugnant and insufficient, for it cannot be said that he murdered him at the place where the wound was given, but where the party died. The like is adjudged in Wrotes' case, Co. l: 4: a: 4. Confirmation. 32. A Prebend leases for seventy years, Co. l. 5. 81. a. 4. Fords case. the Dean and Chapter (being the Patron) confirm, dimisionem praed. in the Form aforesaid, for one and fifty years, and no farther, this confirms the entire Term; for after the Term is confirmed, one and fifty years are repugnant and void: It had been otherwise if they had recited the Lease for seventy years, and then confirmed the Land for one and fifty years. vide supra, 16. Conditions repugnant. 33. It hath been said, Co. l. 6. 42. b. 4. Sir Anthony Mildmayes case. If a man make a gift in Tail upon Condition that he shall not make Feoffment, this is a good Condition, but if the Condition be, that he shall not make a Charter of Feoffment, this is not good, for this without Livery (as Littleton saith, fo. 15.) amounts but to a Tenancy at Will, which Tenant in Taile cannot be restrained to do: So if a man make a gift in Tail, upon Condition that he shall not make a Lease for his own life, this is void and repugnant; for when a man makes a gift in Tail (which is an Estate of Inheritance, and by possibility may continue for ever) and thereby makes the Donee the Principal owner of the land, he cannot restrain him from doing any lawful Act, or making any Estate, which is no Wrong to any, and which by the Law he may lawfully do or make: Howbeit, if a man make a Lease for Life or Years, with Condition that he shall not alien or demise, this is good, because the Lessor hath the Reversion, whereby he hath power to restrain the Lessee; so if a man demise a Copyhold Manor for Life or Years, with Condition, that he shall make no voluntary Grant of any Copyhold Lands, according to the Custom of the Manor, this is good: but if a man grant in tail a Copyhold Manor with such a Condition, the Condition is void for the repugnancy. Co. l. 6. 61. a. 3. Gatewards' case. 34. It was alleged, that the custom of the Town of S. was, Common. that every Inhabitant within it had used, etc. to have Common (by reason of Commonancy) within a place in the Town of H. which was another Town, and it was adjudged insufficient for the repugnancy. Co. l. 7. 25. a. 2. Butts case. 35. A. seized of black Acre in fee, Rent. Avowry. and possessed of white Acre for years, grants a Rent-charge to B. for life out of both of them, A. distrains and avows in white Acre, concluding thus in his Plea, Virtute cujus, he was seized in dominico suo ut de libero tenemento pro termino vitae suae, and the Avowry was adjudged insufficient and repugnant, because he could not have a Franktenement out of a term for years: Derivata potestus non potest esse major primitiva, Max. 26. Co. l. 8. 118. a. 2. in Doct. bonham's case. 36. When an Act of Parliament is against common right and reason, Cessavit. Act of Parliament repugnant. or repugnant or impossible to be performed, the common Law shall control and adjudge such an Act to be void, as the Statute of West. 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenementum, & super eos, quibus alienatum fuerit hujusmodi tenementum, and yet it is adjudged in 33 E. 3. Tit. Cessavit 42. that the Heir should not have a Cessavit: The case was this, there were two Coparceners Lords, and Tenant by Fealty and certain Rent, the one Coparcener hath Issue and dies, in this case the Aunt and the Niece shall not join in a Cessavit, because the heir cannot have it for the Cesser in the time of her Ancestors, in regard the arrearages do not belong to her, etc. (See F. N. B. 209. F. &. Pl. Com. 110.) besides in a Cessavit the Tenant before judgement may render the arrearages and damages, etc. and retain the Land, and that cannot be done, when such an heir brings a Cessavit for the Cesser in the time of his Ancestor, because the arrearages then incurred belong not to him, as aforesaid. Co. l. 8. 127. a. 1. The City of London case. 37. Where there is a Market overt, and correction in any, Prescription repugnant. a Prescription to sell commodities in private houses or other places out of the open Market is repugnant and void, because so the Seller may use deceit and is not subject to search, Qui male agit odit lucem, & omnia delicta in aperto leviora sunt, See 11 H. 6. 19 The Prior of Dunstables case. Co. l. 9 58. b. 3. William Aldreds' case. 38. When a man hath lawful easement or profit by prescription time out of mind, another Custom which is also time out of mind, Prescription for a way. cannot take it away, because that were repugnant, the one being as ancient as the other; as if a man hath a way over the Land of A. to his Francktenement by Prescription time out of mind, etc. A. cannot allege Prescription or Custom to stop the said way. Co. l. 9 109. b. 3. Meriel Treshams' case. 39 In Debt against an Administratrix, she pleads in Bar, Bar repugnant. Quod ipsa plene administravit omina bona, etc. quae fuerunt, etc. & quod illa nulla habet bona, etc. quae fuerunt, etc. nec habuit die impetrationis brevis, etc. praeter bona & catalla ad valentiam, of the King's debt, and of several Recognizances, by which plea she confesseth, that she had sufficient in her hands to satisfy the said Debt and Recognizances; And then she pleads further, Quod ipsa nulla alia sive plura habet bona, etc. quae fuerunt, etc. Praeterquam bona & catalla, quae non sufficiunt ad satisfaciendum Praed. seperalia debita: Which is clearly and Ex diametro repugnant to what she had confessed before; and thereupon the said Bar was adjudged insufficient. Co. l. 11. 80. b. 2. Lewes' Bowls case. 40. A Feme brings a Cui in vita, quod clamat tenere ad vitam, Cui in vita, Contrariety. and maintains it in her Count by a gift in special Tail to her and her Husband, and that her Husband is dead without Issue, and the Writ abated for the contrariety of the Title; for in the Writ she named herself but a bare Tenant for life, whereas in her Count it appeared, that she had such an Estate for life, which had greater Privileges incident unto it, than a bare Estate for life hath, Vide 18 E. 3. 37. Assignment of Errors. Contrariety. F. N. B. 21. b. 41. In a Writ of Error upon a judgement given in the Common Bench, the Plaintiff cannot assign for Error, that the justices of the Common Bench did not give the judgement, but that the Clerks of their own heads did it; Neither can he assign for Error, that the jurors gave Verdict for the Defendant, and that the justices entered it for the Plaintiff, and gave judgement for him; because such assignment is contrary to that which the Court doth as judges. Remainder limited upon a contrariety. 42. A Remainder limited upon a contrariety cannot be good, Pl. Com. 29. b. 3. Colthrist and Bevisham. as in the case of Rickill in Littleton, S. 720. for when he had once made a Feoffment and vested the estate in one, he could not make that estate cease as to him, and cause it to remain to another: So if Land be given to a man and his heirs, so long as I. S. shall have heirs of his body, and if I. S. die without heir of his body, that then it shall remain to another in fee, this Remainder is void for the contrariety; because the first estate was Fee-simple determinable, upon which a Remainder cannot depend. The like. 43. If a Lease for life be made upon Condition, Pl. Com. ibid. & 32. a. 4. 34. b. 4. that if a stranger pay to the Lessor twenty pounds, that then after the death of the Tenant for life, it shall remain to the stranger, this is a good Remainder, so if a Lease for life be made to Baron and Feme, and it is appointed by the said Lease, that if A. their eldest Son die, living the Baron and Feme, that then it shall remain to B. their second Son for life, this is also a good Remainder; for in these cases there is no contrariety, because in the first the stranger shall have it expressly after the death of Tenant for life, and in the other it is intendable that B. shall have the Remainder after the death of Baron and Feme: But if a Lease for life be made upon Condition, that if a stranger pay to the Lessor twenty pounds, that then immediately the Land shall remain to the same stranger, this Remainder is void for the contrariety, because the Tenant for life ought to have it during his life, during which time the stranger cannot have it. Proviso repugnant. 44. C. makes B. and a Feme his Executors, 19 H. 8. Dyer 4. Pl. 10. provided that B. shall not administer his Goods, this Proviso is void for the repugnancy, for when C. had made them once his Executors, the several powers limited to them afterwards are void, because when the intent of a man, who makes a Testament, agrees not with the Law, his intent shall be taken as void, as if a man devise to H. in fee, and if he die without heir, that M. shall have the Land, this devise is void for the repugnancy as to M. for one Fee-simple cannot depend upon another Fee-simple, by the Law. Condition ●●id. 45. The Custom of London is, Dyer 33. 12. 28, & 29 H. 8. that a man may devise his Purchase-Land in Mortmain, and a Purchasor devised by his Will, that the Prior and Covent of Saint Bartholm. and their Successors should have the Land, Ita quod reddant annuatim Decano & Capitulo Sancti Pauli 16. Marc. And if they failed of payment, that their estate should cease, and that then the said Deane and Chapter should have it, and for the Condition broken those of Paul's entered; and it seemed clear to Baldwin and Fitzh. that the Condition was void, for no estate could remain after the Fee-simple given away, because the Feoffor had determined his Interest and Right, and then a stranger could not enter for the Condition broken, but the heir ought to do it. ●●ape. 46. In debt against the Sheriffs of London, Dyer 66. a. 11. 3 E. 6. for an escape of a Prisoner out of Ludgate, they plead, that three years before Jerveis and Curteis their Predecessors suffered the same Prisoner to escape to Lambeth in Surrey, he being then in their Guard in Ludgate Goal London, which is impossible; for the former Sheriffs could not let them go at large, when he was imprisoned and in their custody at the time of the escape, and then the escape ought to have been supposed in London, where the Prison was; for which repugnancy and other errors the Plea was adjudged void. Dyer 68 b. 28. 5 E. 6. 47. An Indictment of Murder was adjudged insufficient; Indictment. for that the place of the assault was set down, and not the place of the Murder, nor these words, adhuc & Ibidem, inserted in the Indictment, in case the Assault and Murder were acted at one and the same place; And this was for the uncertainty, because the Assault and the Murder are of differing natures, and might be done at several places. Dyer 209. 21. 3, 4 Eliz. 48. A Lease is made for years upon Condition, Condition repugnant. that if the Lessor grant the Reversion, the Lessee shall have fee, the Lessor levies a Fine, the Conusee brings a Quid juris clamat, the Termor claims fee, this is a Forfeiture, because the Condition was repugnant: And note the judgement there, that the term shall be forfeit, the Conuses might enter, and the Fine shall be engrossed. Vide Ploughed. against Freeman, and Plesintons' case, 6 R. 2. Dyer 264. 40. 9 El. 49. Repugnant Lease. Baron and Feme being Termors of the three Coneys in Fleetstreet, the Baron leaseth part of the term by these words, the Message called the three Coneys with all the Chambers, Sellars, and Shops, except to the Baron the Shops, ad proprium opus & usum, the Feme enters into the Shops, and then brings Ejectione firmae, and per Curiam the exception is but temporary to the Baron himself, there being no mention of Executors or Assigns, and also the exception is void for the Shops, because repugnant to the demise of the Shops. Dyer 288. 54. 12 El. 50. Exception repugnant. If a common person grant the Manor of D. except the Courts and perquisites, the exception is void for the repugnancy, and the Grantee shall keep Courts and have the perquisites, notwithstanding such exception: Howbeit, it is otherwise in the King's case. Vide Max. 81. 103. Hob. 13. Sir Daniel Nortons' case. 51. If an under-sheriff covenant with his High-Sheriff, Sheriff and Under-Sheriff. that he will not execute any Writ of execution for any debt above twenty pounds, without special Warrant from the High-Sheriff; This Covenant is void for the repugnancy: for albeit he may choose not to make an under-sheriff at all, or may make him at his will, and remove him also if he please, yet he cannot leave him an under-sheriff, and yet abridge his power, no more than the King may, in case of the Sheriff himself. Vi. 65. 25. Hob. 39 John Ion's case. 52. An Office was found, Office. that A. being seized of the Manor of D. in fee, enfeoffed B. in fee, to the use of himself for life, the Remainder to C. in fee, and that A. being so seized of the Premises, died thereof so seized; And this Office was adjudged void for the repugnancy. 168. It will not drive a man to justify or show that, which he goeth about to defeat, or which makes against him. Co. l. 7. 10. a. Vghtreds case. 1. The marquis of Winchester grants the Captainship of a Fort, Condition subsequent not to be averred. and for the exercising of that Office, and for finding a Gunner, and six Soldiers, he grants him an Annuity of two and thirty pounds yearly; upon Suit for this Annuity exception was taken to the count, for that the Plaintiff had not therein averred his exercising of the Office: but the exception was overruled by the Court; because in all cases when an Interest or Estate commenceth upon a Condition precedent, be the Condition or Act to be performed by the Plaintiff or Defendant, or any other, and be the Condition in the affirmative or negative, there the Plaintiff ought to show it in his Count, and to aver the performance thereof, for then the Interest or estate commenceth in him by the performance of the Condition, and is not in him until the Condition be performed; but it is otherwise when the Interest or Estate passeth presently and vests in the Grantee, and is to be defeated by matter, ex post facto, or Condition subsequent, be the Condition or Act to be performed by the Plaintiff or Defendant, or any other, and be the Condition in the affirmative or negative; In such case the Plaintiff may count generally without showing the performance thereof, and it shall be pleaded by him that will take advantage of the Condition or matter, ex post facto, for every one ought to allege that, which makes for him, and which is for his advantage, and no man shall be forced to allege that, which makes against him, Vide plus ibidem. The like. 2. If I grant to one, that when he shall be promoted to a benefice, Pl. Come 25▪ b 4. Colthrist and Bevish. that then he shall have an Annuity; In this case, if he demand the Annuity, he ought first to show that he is promoted to a Benefice, in such a case he shall have a Writ of Annuity, and shall not show that he is yet promoted, because the annuity precedes, and the promotion is subsequent, and goes in defeasance of the annuity, and therefore aught to be showed on the contrary part, and not by the Plaintiff, because it makes against him, Vide 15 H. 7. fol. 1. Br. Annuity 22. & Count 43. & Co. l. 7. 10. b. Vghtreds case. The like. 3. In Colth. and Bevishams' case, Pl. Com. ibid. 26. b. 4. 30. a. 3. 32. b. 2. 34. a. 2. Pl. Com. The Grange was to remain to Peter Bevisham for life, Si vellet inhabitare, etc. durante termino, which was the whole Term, and immediately after the death of Henry and Elinor, and therefore it was alleged, that he should have showed in his bar the time of his entry, and his abode thereupon; but it was resolved, that the bar was good notwithstanding that exception, because by common intendment it shall be taken, that his entry was immediately after the Remainder fell, and if it were not so, the Plaintiff ought to have showed it, and not the Defendant in his Bar, because it made against him, being in Defeasance of his Estate, etc. Condition subsequent. 4. If I grant to one, that when he shall do such an Act, Pl. Com. 30. a. 2. Colthirst and Bevish. that then he shall have a Rend charge out of my Land, in this case, he shall not avow for the Rent, unless he first show the performance of the Condition, for that enables him to the Rent; but if I grant to one out of my Land a Rent-charge, upon Condition, that he shall do such a thing, here he shall avow for the rent without showing the thing to be done, for the Condition is subsequent and goes in defeasance of the estate, which he that would have the estate to continue ought not to show, because it makes against him. Copyhold. 5. A Copyhold Lord in suing for a Fine upon admittance, Ho. 135. Denny and Leman. need not aver, that the Fine set upon the Copyholder was reasonable, because that might perhaps make against him, if it should be adjudged by the Court unreasonable: but the unreasonableness of the Fine aught to be pleaded on the Copyholders part. 169. Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio. Taile discontinued. 1. If Tenant in tail of Lands make a gift in tail, or a Lease for life, Co. Inst. pars 1. b. 2. rendering a rent, and dyeth, and the Issue bringeth a Formedon in the Descender, in this case, the Reversion and Rent shall not bar the Demandant, because by his Formedon he is to defeat the Reversion and Rent. Et non potest adduci, etc. Disclaimer. Error. 2. If the Tenant disclaim, Co. l. 8 61. b. 4. in Beechers case. he shall not have a Writ of Error against his Disclaimer, because by his Disclaimer he hath barred himself of his right in the Land; for the words of the Disclaimer of the Tenant are, Nihil habet nec habere clamat in illa terra, nec die impetrationis brevis originalis, etc. habuit sive clamavit, sed aliquid in illa terra habere dead●ocat & disclamat; And against this he cannot have a Writ of Error to have restitution of the Land against such Disclaimer. Vide 6 E. 3. 7. & F. N. B. 22. c. 170. None shall take exception to an Error or Act, which operateth to his own advantage. Co. l. 3. 69. b. 4. Lincoln College case. 1. C. and F. joint-tenants for life, Collateral Warranty. and to the heirs of the body of C. intermarry, and have Issue E. who after the death of C. disseiseth F. and suffers a common Recovery, F. releaseth to the recoverors with Warranty and dies, also E. dies without Issue, and R. as heir male of the body of C. brings his Formedon in Descender; and here the question was, whether or no the collateral Warranty of F. did bar the Demandant, or that the heir in tail might have the Land by force of the Statute of 11 H. 7. 20 which gives Entry to the next Heir upon Discontinuance, etc. of the Inheritance of the Husband by the Feme: But it was resolved, that this case was out of the intention of the said Act, because the intention of that Act was to restrain such women to make Discontinuance, Warranty, or Recovery in bar, or prejudice of the heir in tail, or of them in Remainder, etc. but when the heir in tail himself conveys & assures the Land to others, the release or confirmation of the Feme with Warranty is but to make perfect and corroborate the estate, which the heir in tail hath made, and therefore such Warranty is not restrained by the said Act; for it shall be intended for the benefit of the heirs in tail, and not to their prejudice: And this is also the reason, why a common Recovery in respect of the intended recompense was not restrained by the Statute of West. 2. Co. l. 8. 59 a 3 in Beechers case. 2. For the reversal of a judgement a man shall not assign for Error, that which maketh for his advantage, Assignment of Error. as to allege that he was essoined, where he ought not to have been essoined, or that he had a longer day than the common day, or that he had aid granted to him, where it was not grantable, or the like. Vide 7 E. 3. 25. per Herle, 8 H. 5. 2. 11 H. 4. 8. F. N. B. 21. f. Co. l. 11. 56. a. Benhams case. 3. M. brings a Writ of Annuity against B. and they being at Issue, Insufficient Verdict. the jury found for the Plaintiff, and also the arrearages, but did not assess any damages or costs; whereupon the Verdict was imperfect, neither could it be supplied by a Writ to inquire the damages; Howbeit, afterwards the Plaintiff released his damages and costs, and thereupon had judgement: whereupon the Defendant brings a Writ of Error, and assigns for Error, the insufficiency of the Verdict, but the judgement was affirmed, because the Plaintiffs release of the damages and costs was for the Defendants benefit and advantage, and therefore ought not by him to be excepted against. Vide 22 Eliz. Dyer 369, 370. Where in a Writ of Ejectione Custodiae terrae & haeredis, the jurors assessed damages entirely, which was insufficient, for it lieth not for the heir, yet the Plaintiff released his damages and had judgement for the Land: Note, that insufficient Assessment of damages and no Assessment is all one. F. N. B. 22. d. & 25. c. 4. It is not Error to suffer one to make an Attorney in an Action, Attorney. in which he ought not to make an Attorney, because that is for his advantage. 171 Nemo tenetur armare adversarium suum contrase. Challenge. 1 He that challengeth a juror for the hundred, or for Cozenage, Co. Inst. pars 1. 157. a. 2. & 4. must show in what hundred he hath no land, and how he is of kin, and shall not drive the other party to show it. 2 The plaintiff in a Replevin pleads in bar of an avowry for damage fesant, Co. l. 5. 78. b. 3. Gray's case. that he hath common of Pasture by custom in the place where, etc. belonging to his Copyhold, which custom was traversed, and it was found that he had such Common there, but withal that every Copyholder had used to pay time out of mind, etc. pro eadem communia unam Gallinam, & quinque ova annuatim; and it was adjudged, that upon this verdict the Plaintif should have judgement, albeit he omitted in his bar the yearly payment of the Hen and five eggs; And the reason was, because the Plaintif was not bound to show more than what made for him, and tended to his advantage. 172 It favoureth Diligence; And therefore hateth Folly and Negligence. Waste, 1 Waste may be done in houses by suffering them (by negligence) to be uncovered, whereby the spars, fasters, planchers, Co. Inst. pars 1. 51. a. 2. & b. 2. or other timber of the house become rotten; So likewise if he suffer a wall of the sea to be in decay, so as by the flowing and reflowing of the sea the Meadow or Marsh adjacent is surrounded, whereby the same becomes unprofitable; Also the burning of an house by negligence or mischance is waste. Waste. 2 A prohibition of waste did lie at the Common law against tenant by the Courtesy, tenant in Dower, and a Guardian in Chivalry, Co. ibid. 53. b. 4. because they were in by the Law; but not against tenant for life or years, because they come in by the Act of the lessor himself, and therefore it is imputed to his own folly and negligence, if upon granting the term, he made not sufficient provision against committing of waste, for in that case the Law did not aid him. Vide Co. l. 4. 62. b. 3. in Herlakendens case, & Co. l. 5. 13. b. 3. in the Countess of Salops case. Guardian in soccage. 3 If Guardian in soccage marry the heir under 14 years of age without a convenient fortune, Co. ibid. 88 a. 3. Littl. §. 123. he is compellable to make it good upon his account; for it will be imputed to his own folly, that he married him without provision of a convenient portion answerable to his estate. Goods gauged. 4 If goods be delivered to one as a gage or pledge, Co. ibid. 89. a. 4. and be afterwards stolen from him, yet he shall be discharged of them, because he hath a property in them, and therefore he ought to keep them not otherwise than as his own; Tender. but if he that gauged them tendered the money before the stealing, and the other refused to deliver them, then for this negligence and default in him he shall be charged with them. Default in re●●●ictions. 5 In real actions where Vourcher lieth, Co. ibid. 101. b. 4. if the Sheriff return that the Vouchée is summoned, and he make default, than a Magnum Cape ad valentiam is awarded, when if he make default again, then judgement is to be given against the tenant; Also if the vouchees do appear, and after make default, than a Parvum Cape ad valentiam is awarded, and if he thereupon make default again, then judgement is to be given, as before. Villain. 〈◊〉 Lords 〈◊〉. 6 If a Villain purchase land, Co. ibid. 118. a. 4. & b. 1, 2. Littl. §. 177. and alien the land to another before the Lord enter; In that case, the Lord cannot enter, for it shall be adjudged his folly, that he entered not, when the land was in the Villeins hand: So it is likewise, if a freeman hath issue, and afterwards by confession becometh bond, and purchase lands in fee, and before the Lord enter he dieth seized, and the land descends to his issue, which is free, in this case also the Lord shall not enter: The like Law it is, if the land so purchased by the Villain escheat to the Lord of the fee before any entry made by the Lord of the Villain; as if the Villain die without heir, or be convict or outlawed for felony; or if a recovery be had against the Villain in a Cessavit, or the like, in all such cases, it will be imputed to the folly of the Lord of the Villain, that he entered not in time, when he might: Also if a Villain be disseised before the Lord doth enter, the Lord may enter into the land in the name of the Villain, and thereby goin the Inheritance of the land; but if there be a descent cast, so as the entry of the Villain is taken away, than the Villain must recontinue the estate of the land by judgement and execution, before the Lord of the Villain can enter: So if the Villain purchase lands in tail and alien before the Lord enter, the Lords entry is taken away causa qua supra; but if the Villain die, and his issue recover the land entailed in a Formedon, than the Lord may enter: The like law is also of Signories, Co. ibid. 2. Advowsons', Reversions, Remainders, Rents, Commons certain, and such like certain Inheritances: And all the reason of these ●●●es is, (besides the Lord's folly and negligence) because the Lord before his entry hath no interest, but only a bare possibility: Howbeit it is otherwise in the King's case after office found, because nullum tempus occurrit Regi. Co. ibid. 118. a. 4. & b. 3. Littl. §. 177. 7 If a Villain purchase goods or chattels, Villain. The Lord's seizure of Goods. and sell or give them away before the Lord seize them, his title to the goods is gone, for the Law imputeth it to his folly and negligence, as before of lands, etc. for a bare claim of the goods of the Villain is not sufficient in Law, but he must seize some part in the name of all the residue, or that the goods be within the view of the Lord, for the claim and view amount to a seizure, as the claim of a Ward (being present) by word is a sufficient seizure, albeit the Guardian layeth no hands of him: And here under the name of goods and chattels are comprehended not only personal goods, as an Horse, a Cow, Householdstuff, and the like; but also chattels real, as Wardships, Leases for years, Interests by Statute staple, Statute merchant, Elegit, or the like: and the gifts aforesaid do not only extend to gifts in deed, but likewise to gifts in Law; And therefore if a Wife hath goods and taketh Baron, upon this gift in Law by force of the marriage, the land is barred; So likewise if a Villain having goods make his executors and die, by this gift in Law the Lord is barred for his folly and neglect. Co. ibid. 131. a. 4. 8 In an action where a Protection lieth, ●●●tecti●n. if after it is allowed the party tarrieth in the Country without going to the service (for which he was relieved) above a convenient time after the Protection had, or otherwise withdraw himself from the service, upon Information thereof to the Lord Chancellor, he shall repeal the Protection in that case, by an Innotescimus. See the Statute of 13 R. 2. 16. Littl. §. 261. Co. ibid. 173. a. 4. 9 If lands be given to a man in tail, Partition. who hath as much Feesimple lands, and hath issue two daughters, and die, and the daughters make partition, and the feesimple lands are assigned to the youngest daughter for her purparty, and the entailed lands to the elder, and the youngest daughter aliens the feesimple lands, and having issue dies; In this case the issue of the youngest daughter may enter into the moiety of the entailed lands notwithstanding such partition, for it will be imputed to the folly of the eldest daughter, that she agreed to such a Partition, whereas she might have had upon the Partition the moiety of the one and also of the other; because in a writ of Partition she was not compellable to take the whole estate in tail, but might have challenged moities in each, as aforesaid, and that ex provisione legis: But when she will not submit herself to the policy and provision of Law, but betake herself to her own policy and provision, there the Law will not aid her: So likewise if a man be seized of three Manors in fee of equal value, Dower. and taketh wife, and chargeth one of the Manors with a rent-charge, and dieth, the wife may by the provision of the Law take a third part of all the Manors, and hold them discharged, but if she will (in folly) accept the entire Manor charged, she shall hold it charged with the rent. Mortgage. 10 If the Mortgageor tender the money at the day to the Mortgagée, and the Mortgagée refuse it, and the Mortgageor thereupon enter, Littl. §. 335. Co. ibid. 207. the Mortgagée is without remedy at the Common Law, for it will be imputed to his folly, that he refused it, when lawful tender thereof was made unto him. Vide Max. 80. case 24. Bastard Mul●er. 11 If there be a Bastard eygne and Mulier puisne, Littl. §. 399. & 401. Co. ibid. 244. and after the father's death the Bastard enter, and peaceably enjoys the land without entry of the Mulier all his life, and having issue dieth seized; In this case the Mulier is barred for ever; for it is imputed to the folly and negligence of the Mulier, that he entered not during the life of the Bastard; and albeit the Mulier were under age, or covert baron at the time of the descent cast, or that after the death of the Bastard the Mulier entered before the heir of the Bastard, yet none of these cases shall aid or help the Mulier. Vide infra 25. Entry of feme covert. 12 If a Feme covert have title of entry into lands, Co. ibid. 246. a. 3. and her husband neglects to do it, and during his life a descent is cast, yet after her husband's death the feme may enter notwithstanding the descent; But if a feme sole be seized of lands in fee and is disseised, and then taketh husband; In this case, the dying seized of the disseisor shall take away the entry of the wife after the death of her husband; because it will be accounted folly in the feme, as well for that she did not enter when she was sole, as that afterwards she took an husband, who would not enter before the descent cast: It is otherwise, if the woman were under age at her marriage, for than it will not be imputed to her folly, but her husbands) or it the Land were entailed, and only disconnued. Continual claim. 13 If a man be disseised, Co. ibid. 353. b. 4. Litt. §. 426. Co. ibid. 256. a. 2. Littl. §. 440. Co. ibid. 261. b. 4. and the disseisor die seized within a year and a day after the disseisin made, whereby the tenements descend to his heir; in this case the entry of the disseisée is taken away; for the year and day shall not be taken from the time of his title of entry accrued, but only from the time of the claim by him made; and therefore it it will be accounted his folly, that he made not his entry immediately after the disseisin committed, which he ought to have done: Howbeit, this is now helped by the State of 32 H. 8. cap. 33. for now by that Statute, if the disseisor die seized within five years after the disseisin, though there be no continual claim made, it shall not take away the entry of the disseisin; but after the five years there must be such continual claim as was at the Common: Also that Statute extendeth not to any Feoffée or Donee of the disseisor, immediate or mediate, but they remain still at the Common Law, as they were before the making of the said Statute. Remitter. 14 If tenant in tail enfeoff his heir apparent, Littl. §. 664. Co. ibid. 350. b. 1. the heir being of full age at the time of the feoffment, and after the tenant in tail dies, this is no remitter to the heir, because it was his folly, that he being of full age would take such a feoffment; for albeit the heir apparent might have some benefit there by in the life of his ancestor, yet was he by taking such a feoffment (besides his own) subject during his life to all charges and encumbrances made or suffered by his ancestor: Howbeit, it is otherwise, if he were under age, in respect of his tender years and want of experience. Li●tl. §. 682. Co. ibid. 358. b. 4. 15 If tenant in tail hath issue two sons of full age, Remitter. and he demiseth the land to the eldest son for life, the remainder to the younger son also for life, and dies: In this case the eldest son is not remitted, because it was his folly to take such an estate of his father, which created a tortuous feesimple; but if the eldest son die without issue, the younger son shall be remitted, because no folly can be imputed to him, for that the franktenement was cast upon him by force of the remainder. Littl. §. 725, 726. Co. ibid. 380 a 16 At the Common Law before the Statute of the 11 H. 7. 20. Warranty to bar entry. if tenant in Dower or for life had aliened the land with warranty, and the warranty had descended upon the heir, reversioner, or remainder-man, being yet under age; In such case they might have entered upon the alienee, because no lachess or folly could be adjudged in them (being under age) that they did not enter in the life time of the terretenant: But if the heir, reversioner, or remainder-man were within age at the time of the alienation, and becoming of full age in the life of such terretenant, did not enter, they were barred by such warranty, because it was imputed to their folly, that they being of full age entered not in the life time of the tenant in Dower or for life. Co. l. 1. 177. b. 1. in Mildm●yes case. 17 Where a lease is void in Law, Slander. yet if one ignorant of the Law taking upon him to know the Law, and meddling in a matter, that he hath nothing to do withal, will report and affirm openly, that such a lease is good, to the prejudice of another's title, that other may have an action upon the case against the reporter, and recover damages according to his prejudice, for in such case Ignorantia Juris non excusat. Co. l. 2 26. b. 3. in the case of Bankrupts. 18 By the Statute of 13 El. 7. Bankrupts. distribution is to be made to all the creditors rate and rate-like, viz. to such of them as are willing to come in as Creditors; but a Creditor, that either obstinately refuseth, or carelessly neglects to come before the Commissioners, and pray the benefit of the Statute, shall not be admitted to have any share with the rest, for vigilantibus & non dormientibus Leges subveniunt. Co. l. 3 9 a. 2. in B●v●lls case. 19 Seisin of one yearly service is not seisin of another yearly service, Lord and tenant. as if there be Lord and tenant by fealty, rend of 10 s. and three work-days yearly, seisin of the rent is not seisin of the work-days, neither is seisin of the rent, seisin of suit of Court, which is annual, Vide 16 El. Dyer 330. d. And the reason is, because it shall be imputed to the folly of the Lord, that he did not obtain seisin of that, which was yearly due unto him; and besides, it would be mischievous to the tenant, for peradventure in ancient time the work-days were discharged, which now cannot be showed, whereupon might ensue suits and trouble. Co. l. 7. 6 a. 3. in S●nd ls case. 20 If a man be rob in his house in the day time or in the night, Robbery. the Hundred, in which that house is situate, shall not be charged therewith; for albeit the words of the Statute of Winchester are general, without mentioning any place in special, yet such Robbery is not within the said Act, for divers reasons, amongst which this is one, viz. because the house of every one is his castle, which he ought to keep and defend at his peril; and therefore if any be rob in his house, it shall be imputed to his own negligence and default. Co. l. 8. 72. b. ●. in Greneleys case. 21 By the Statute of 32 H. 8. c. 28. Entry by Feme. Discontinuance by fine by the husband of the wives lands, shall not bar her entry after his death, yet if she make not her entry within five years after her husband's death, she shall be barred by the Statute of 32 H. 8. cap. 36. notwithstanding the said Statute of 32 H. 8. 28. for it will be imputed to her folly, that she did not enter within the time limited by 32 H. 8. 36. ●●●d, Mesne, ●enant. 22 If there be Lord, Mesne, and tenant, Co. 9 23. a. 1. in the case of avowry. and the Lord distrains the tenant for rend arrear, etc. in this case, the tenant ought to request the Mesne to put his into the pound, and thereby release the tenants and if the Mesne refuse so to do, or otherwise acquit not the tenant, by payment of the rent, etc. the tenant may have a writ of Mesne, etc. but if the tenant will replevy the and have deliverance of them himself, and then the Lord avow upon a stranger, In this case the tenant is without remedy by his own default, for it will be accounted folly in the tenant, that he did not request the Mesne to acquit him as aforesaid. ●●isoner. 23 A Prisoner cannot wage his law for meat and drink had of the Gaoler, Co. 9 87. b. 4. in Pinchons' case. because the Gaoler being enjoined by Law to keep the prisoner in salva & arcta custodia, Innkeeper. is compellable to find him victuals; But if a Victualler or an Innkéeper bring an action of debt for the victuals delivered to his Guest, Guest. the Guest may wage his Law, for the Victualler or Innkeeper is not compellable to deliver his victuals to his Guest, until he be paid for them; and therefore it is his folly to part with them, until he hath money in hand for them. Feme advowson. 24 If a feme purchase an Advowson, and takes baron, and the Church is void, and the baron suffers an Usurpation; In this case, F.N.B. 34. 5. the feme, if she had presented before, is put to her writ of right of Advowson, but if she had not presented before, she is without recovery; for it will be attributed to her folly, that she took such an husband, as would not present upon the avoidance, but suffer an usurpation. It is otherwise if the Advowson came to her by descent. Vide Max. 114. case 52. Bastard. M●●●er. 25 If a man hath issue a Bastard, and dieth, Co. Inst. pars 1. 244. a. 4. and the Bastard entereth and dieth seized, and the land descendeth to his issue; in this case the Collateral heir of the father is bound, as well as where the father hath two sons, Bastard eigne, and Mulier puisne: So likewise if a man hath issue two daughters, the eldest being a Bastard, and they enter and hold the land peaceably as heirs, now the Law in favour of legitimation, doth not adjudge the whole possession in the Mulier (who then had the only right) but in both, so as if the Bastard hath issue and dieth, her issue shall inherit; and in the same case if both daughters enter and make partition, this partition shall bind the Mulier for ever. Vide supra 11. Proviso upon ●ale of land. 26 A bargainée of land for 600 l. by another Indenture covenants to make back to the bargainor and his heirs such assurance of the land, Dyer 361. 9 2● Eliz. as the Council of the bargainor should devise within the year next ensuing, provided, that if the vendée made default in the assurance, if he than should not pay 500 l. to the vendor, that he would stand seized to the use of the vendor, the vendor tenders no assurance, and the 500 l. is not paid; In this case, the vendée hath the right of the land; for it was the folly of the vendor, that he required not the Assurance. Winsors case. 173 Negligentia semper habet infortunium Comitem. Laches. 1. Regularly, Co. Inst. pars 1. 246. b. 2. no laches or negligence shall be accounted in Infants or femes covert for non entry or claim to avoid descents, yet laches shall be accounted in them for non-performance of a condition annexed to the estate of the land; for if a feme be enfeoffed either before or after marriage, reserving a rent, and for default of payment a reentry: In that case, the laches of the baron shall disherit the wife for ever: And so it is of an Infant, his laches for non-performance of a condition annexed to an estate, either made to his ancestor, or to himself, shall bar him of the right of the land for ever: And therefore if a man make a feoffment in fee to another reserving a rent, and if he pay not the rent within a month, that he shall double the rent, and the feoffée dieth, his heir within age, the Infant payeth not the rent, albeit the Infant at this day shall not by this laches forfeit any thing; yet in such case a feme covert shall; and the reason and cause of this diversity is, for that the Infant is provided for by the Statute of Merton cap. 5. Non current usurae contra aliquem infra aetatem existen. etc. but before that Statute he could not have avoided such a penalty; neither yet doth that Statute extend to a feme covert, or to a condition of a reentry, which an Infant ought to perform, because the breach thereof cannot be properly called usura. Co. ibid. 250. b. 4. 2 If the father be disseised, and make claim, and the disseisor dieth, Continual claim. & then the father also dieth; In this case, his heir may enter, because the descent was cast in his father's time, and the right of entry, which the father gained by his claim, shall descend to his heir: But if the father make continual claim and dieth, and the son make no continual claim, and within the year and day after the claim made by the father the disseisor dieth, this shall take away the entry of the son, for that the descent was cast in his time, and the claim made by the father shall not avail him, that might have claimed himself; because no continual claim can avoid a descent, unless it be made by him, that hath title to enter, and in whose life the dying seized was: The same likewise holdeth in all respects of the predecessor and successor: Co. ibid. 252. a. 3. Also if tenant for life make continual claim, this shall not give away benefit to him in the remainder, unless the disseisor died in the life of the tenant for life, causa qua supra. Co. l. 5. 13. b. 4. in the Countess of Salops case. 3 Upon Bailment of goods to keep, Bailment of goods. when there is a confidence put in the Bailée, an action upon the case will lie for negligence, notwithstanding the delivery of them by the Bailor; As in 12 E. 4. 13. A man delivers an horse to another to keep safely, the defendant equum illum tàm negligentèr custodivit, quod ob delictum bonae custodiae interiit; here an action upon the case lieth for the breach of the trust reposed in the Bailee: so likewise in 2 H 7. 11. If my shepherd, whom I trust with my sheep, by negligence suffers them to be drowned, or otherwise to perish, here also an action lies. Co. l. 5. 109 a. 4. in Foxl●ys case. 4 By the default and negligence of the owner of goods waived in not making fresh pursuit after the fellow and prosecuting him in an appeal of the same felony, he shall lose his property in them, Goods waived. and the King shall have them as goods waived, and this course is ordained by the Law to prevent felonies; for Interest reipublicae ut maleficia remaneant impunita, & impunitas semper ad deteriora invitat: Also if the owner be negligent, Co. ibid. 109 b. 4. and omit any of the goods stolen from him out of his appeal, the King shall likewise have the goods so omitted, because perhaps by leaving them out the fellow might have escaped. Co. l. 5. 1●0 b. 4. 5 If a man upon an appeal or indictment of felony be so negligent, Exigent. that he comes not in, but tarries the Exigent; In this case, albeit he be afterwards (when he comes in) acquit of the felony, yet he shall forfeit his goods to the King for such his default and neglect. Co. l. 6. 45. b. 4 in H●ge s case. 6 In 17 E. 3. 24. In debt upon an obligation of 20 l. judgement was obtained before the Mayor of Newcastle, Two Judgements. and execution had thereupon, and because the obligation was not quashed (as it ought to have been) the use was then, being the Plaintif had judgement in another action upon the same obligation; And the defendant upon pleading the first judgement could not be relieved, because it was imputed to his negligence, that he did not procure the obligation to be canceled upon the first judgement. Vide 17 E. 3. 24. Copyhold. 7 Tenant by Copy in fee (where the custom is, Co. l. 8. 100 b. 3. in Sir Rich. Lechfords case. that the heir within three Courts and proclamations made, shall be barred, if he claims not) dies, his heir being then beyond sea, and until the three Courts and proclamations be past, but then returns and claims his right; In this case, he shall not be barred, no more than by non-claim upon a fine: but if he went beyond sea after the death of his ancestor, he shall be barred, because of his neglect to take admittance of his Copyhold before he went his journey. Repair of sea banks. 8 If one be bound by prescription to keep a sea-bank in good repair, Co. l. 10. 139 b. in Kightleys case. and by a sudden and unusual increase of waters it is beaten down; in such case the Commissioners of Sewers, by the Statute of 23 H. 8. 5. may charge all other persons and their lands, that may receive any loss or damage thereby: but if any default or negligence be found in him that should so repair it, as that he hath not kept the banks so high nor so well in repair as they have used formerly to be kept; or that the danger was not so inevitable but that he might well have prevented it, the Commissioners may charge him only with the repair thereof, and if by his negligence the danger becometh inevitable, or he be not able to repair it, so as the charge is laid upon others, each person so charged may have an action upon the case against him, that should so repair it, and recover damages according to their loss. Quare Impe●●. 9 In a Quare impedit, F. N. B. 35. c. if the defendants clerk was admitted and instituted at the time of the writ purchased, and the plaintiff purchase the writ only against the Patron, not naming the Incumbent, albeit the Plaintif recover, yet he shall not avoid the defendants clerk, because he neglected to insert his name in the Quare impedit. Quare Imp. 10 In a Quare impedit, F.N.B. 38. h. if the Patron being defendant makes default to the distress, and the Incumbent abate the writ by plea, yet there shall be no writ awarded to the Bishop for the Patron by reason of his default and negligence. Lord. Villain. 11 Upon a nativo habendo brought by the Lord, F.N.B. 77. h. & 78. f. the Villain sues a libertate probanda, & obtulit se at the fourth day against the Lord, who did not appear but make default, upon which default the Villain was enfranchised, & had a writ to the Sheriff, that the Sheriff should not suffer the Lord to vex him afterwards: so if the Lord be non-sute after appearance, the Villain or Nief shall be enfranchised. Audita Qu. 12 Upon an Audita querela sued, F. N. B. 104. o. the plaintif shall have a supersedeas in the same writ to cease execution; but if he be nonsute, he may have a new Audita querela, but then he shall not have a supersedeas to stay execution. Attaint. 13 Nonsute in attaint after appearance is peremptory, F.N.B. 108. d. and so likewise is a Retraxit entered of Record, So as the plaintif in attaint shall not bring a new attaint afterwards. Non-sute. 14 At the day of the return of the Habeas corpus, or Distringas, Dyer 286. 44: 12 El: if the jury and defendant appear; albeit the writ be not returned, yet if the Plaintif make default he shall be nonsute, because the parties have day by the Roll. Quaere, nam dubitatur in Banco Regis. Ward. 15 The Queen grants the ward of the body of A. who dies at full age, no tender of Marriage being made by the grantee; Dyer 306. 65 14 El: In this case the land shall not be retained in Curia Wardorum, for it was his folly and negligence not to tender a Marriage. ●●b● against ●e heir. 16 In debt upon an obligation against the daughters and heirs of Henningham entered into by their father, Dyer 344. 1: 18 Eliz. the Plaintif recovered upon Nihil dicit, and hath general judgement: Afterwards upon the Scire facias to have execution, the defendants pleaded riens per descent in see the day of the first writ purchased or since: Howbeit the opinion was, that after recovery by Nihil dicit, non sum informatus, or confession, the heir comes too late to plead riens, etc. but he ought at first to plead or show the certainty, when, etc. And per Dyer, if the profits received after the death of the ancestor until the writ purchased, were sufficient to satisfy the debt, that then the plaintif should have general judgement against the heir. Dyer 357. 45. 19 El. 17 If an Alien born pray not medietatem linguae before the Venire facias is awarded, he comes too late after, for non constat Curiae, Alien. that he is an Alien. Spinolaes' case. 174 Vigilantibus non Dormientibus Leges subveniunt. Co. Inst. pars 1. 139. b. 1. 1 At the Common Law upon every continuance or day given over before judgement, the plaintif might have been nonsuited, Non-sute. and therefore before the Statute of 2 H. 4. cap. 7. after verdict given, if the Court gave a day to be advised, at that day the plaintif was demandable, and might have been Nonsuited, for vigilantibus non dormientibus, etc. Co. l. 4. 82. b. 3. in Sir Andrew Corbets case. 2 A. deviseth land to B. till 800 l. be raised for the preferment of his daughters, & dies, C. the heir of A conceals the will, enters, & dieth; Devise. Notice. In this case B. shall have allowance for the time that the will was concealed; but albeit B. had not notice of the will, yet if a stranger had occupied the land, the devisee ought to take notice of the devise at his peril; for vigilantibus non dormientibus, etc. And in such case none is bound to give him notice. Co. l. 5. 76. a. The Earl of Pembroke's case. 3 Where the defendant shows a deed to the Court, Deed entered. the plaintif may pray the same Term, that it may be entered in haec verba, And so he may demur, or take issue at his pleasure; But if he neglect to pray it that term, he shall never have it so entered afterwards. Co. l. 7. 27. b. Sir Hugh Portmans' case. 4 In a Quare impedit if the plaintif be nonsute after appearance, Quare Impedit. or discontinue the suit, that is peremptory, and the defendant becomes Actor and shall immediately have a writ to the Bishop, etc. Co. l 6. 8. b. 1 in Ferrer case. 5 At the Common Law before the Statute of Westm. 2. cap. 4. Recovery by default. If any had suffered a Recovery in any real action by default (if he were lawfully summoned, and there were no error in the proceeding) he could not have (the case of an Infant only excepted) any remedy, but by writ of right; And therefore the writ of Quod ei deforceat was by that Statute given to tenant in tail, by the Courtesy, in Dower, and for life, after recovery had against them by default. F.N.B. 20 g. 6 In a writ of Error, when the record is come into the Court, Error. if the plaintiff all that Term do not assign his errors, and albeit he then assign the errors, yet if he do not then also sue out a Scire facias ad audiendum errores against the defendant returnable the same term or the next term following, all the matter is discontinued. Dyer 232. 9 7 Eliz. 7 An Infant at full age brings an Audita querela in Chancery to avoid a recognizance in the nature of a Statute staple by him made within age, Infant. but because his age was to be tried by the inspection of the Court, it was adjudged, that it did not lie; so also it had been, if he had died within age: for in such case he should have brought the Audita querela before his full age. Dyer 241. 48 7 Eliz. 8 A Quare Impedit issued against the Archbishop of Canterbury, Quare Imp. the Bishop of Lincoln, and the Incumbent, who made default to the great distress, whereupon the plaintif made title, that he might have a writ to the Bishop, and a writ was awarded to inquire de damnis, de plenitudine, ad cujus praesentationem, quantum temporis elabitur a vacation, et quantum Ecclesia valet per annum, all which points were returned by inquisition, and accordingly judgement was given, that the plaintif should recover the presentment, and should have a writ to the Bishop of Lincoln, and damages to the value of the Church by half a year, and the defendants in misericordia. Error. 9 If a writ of Error be delivered to the Chief justice of the C. B. or the Clerk of the Treasury there, this is a Supersedeas in Law, Dyer 244. 63. 8 Eliz. and a stop to award execution; Howbeit, if the plaintif do not crave the removal of the record before the return of the writ of Error, the justices may then award execution. Vide 6 H. 7. 16. 175 It favoureth speeding of men's Causes; And therefore Protections, 1 In ancient time, Co. Inst. pars 1. 130. b. 4. when Noblemen and others purchased by Letters Patents from the King protections, either Profecturae, or Moraturae, to go or remain beyond the Grecian sea, or elsewhere, they were also by other Letters Patents to purchase licence to make their general Attorneys in all Courts, so as no actions or suits should be thereby delayed, which Britton commends to be bien et sagement fait, fol. 282. Protection. 2 In an Assize of Novel disseisin a Protection is not allowable, Co. ibid. 131. a. 1. Co. l. 8. 50. a. 2 in Jehu Webs case. nor yet in a Certificate upon an Assize, because an Assize is festinum remedium to restore the disseisee to his freehold, whereof he is wrongfully and without judgement disseised: And therefore in this action the defendant shall not be essoined, nor pray in aid but only of the King, nor vouch a stranger, nor any party to the writ, unless he will immediately enter into the warranty; there is the same Law also of receipt; neither shall the Paroll stay for the nonage either of the plaintiff or defendant, and in many other respects an Assize is remedium maximè festinum. Dower. Appeal. Assize. 3 In Dower, Co. l. 9 30. b. 3. in the case of the Abbot of Strata Mercella. or in appeal brought by the feme of the death of her husband, or in an Assize brought by a feme, which was the wife of B. if the tenant or defendant plead, that the baron is in full life, the trial thereof shall not be by the jury, but by the justices upon examination made before them, and that course is taken for the greater expedition. Nonage inspected. 4 If the tenant in a real action vouch A. as heir within age, Co. l. 9 30. b. 4. The same case or if the tenant for life be impleaded and pray in aid of A in reversion within age, and pray also, that the Paroll may demur, etc. In both these cases, if the demandant reply, that he is in full age, this shall not be tried by the Country for the great delay of the demandant, but a writ of Venire facias shall issue to the Sheriff to bring A. before the justices to be inspected by them, whether he be of age or no. Assize. 5 Of all actions an Assize is most favoured in Law, Pl. Co. 75. b. 4. Wimbish, and the Lord Willoughby. because it gives the most speedy remedy. And therefore the Statute of Westm. 2. cap. 25. saith of it, & quia non est aliquod breve in Cancellaria per quod querentes habent tam festinum remedium sicut per breve novae disseisinae, etc. And as the Law favours an Assize, so likewise it favours all such things, as may speed and expedite it, and abhors any thing, Pl. ibid. 89. b. assize of Fresh force in London. that may hinder or retard it; And therefore upon a bare surmise, that the Sheriff is allied foe either party, the writ shall be at first directed to the Coroners, and this shall be no exception to abate the writ, and many other exceptions, which abate other writs, shall not abate an Assize, because it is much favoured in Law by reason of the expedition and dispatch, which accompanies it, and wherein the Law takes much delight and satisfaction. Vide Dyer 84. b. 83. Co Inst. pars 1. 155. a. 2. 6 Albeit the writ of Assize command the Sheriff, Assize. Quod faceret duodecim liberos et lega les homines de vicineto, etc. videre tenementum, etc. yet by ancient Course the Sheriff must return 24, and this is for expedition of justice; for if twelve should only be returned, no man should ever have a full jury appear or be sworn (in respect of Challenges) without a Tales, which would be a great delay of trials. 176 Hateth Delays. Co. Inst. pars 1. 32. b. 4 1 Some say, that the demandant in a writ of Dower, Dower. who procureth or suffereth delays in that suit, shall not recover damages. Co. ibid. 126. b. 4. 2 The cause of an Amerciament in a plea real, Amerciament. personal or mixed (where the King is to have a fine) is for that the tenant or defendant ought to render the demand (as he is commanded by the King's writ) the first day, which if do, he shall not be amerced; so as for the delay which the tenant or defendant doth use, he shall be amerced. Co. ibid. 128. a. 4. 3 If the defendant plead in disability of the person an Outlawry of the same Court, he shall not need to show it forth presently, Outlawry. or if he plead an outlawry in bar, and it be denied, than he shall have a day to bring it in; But if he plead an Outlawry, and offer withal to show it to the Court, he must show forth the record of the Outlawry maintenant sub pede sigilli; because the plea is but dilatory. Co. ibid. 158. a. 2. 4 After challenge to the Array, and trial duly returned, Challenge. if the same party take a challenge to the Polls, he must show cause presently; so if a juror be formerly sworn, if he be then challenged, the party challenging must show cause presently, and that cause must rise since he was sworn; likewise when the King is party, or in an appeal of felony, the defendant, that challengeth for cause, must show his cause presently. Co. ibid. 161. a. 3. 5 To Counterplead the plaintif in an Assize, Counterplea. by which he is delayed, maketh him, that pleadeth it, a disseisor: Otherwise it is, if he had pleaded Nul tort, etc. Co. ibid. 260. b. 3. 6 If a man be out of the Realm, Recovery. and a recovery be had against him in a Praecipe by default; In this case, he shall not avoid such recovery; because by such means a man might be infinitely delayed of his freehold and Inheritance, whereof the Law hath so great regard; and few or none go over, but of their own freewill, neither is he in such case without his ordinary remedy, either by his writ of an higher nature, or by a Quod ei deforceat: Howbeit it is otherwise of outlawry in a personal action, for de minimis non curat lex, Outlawry, Imprisonment and he should otherwise be without remedy: Also as to a recovery, there is a difference betwixt being beyond sea, and imprisonment, etc. Co. ibid. 390. b. 3. 7 If a man be convicted of felony by verdict, Vourcher. and delivered to the Ordinary to make purgation, he cannot be vouched; for that the time of his purgation (if any should be) is uncertain, and the demandant cannot be delayed upon such an incertainty; besides the tenant is not without remedy, for he may have his warrantia cartae. Co. l. 4 35. b. 1. in Bozouns case. 8 If the King grant a protection in a Quare Impedit, Protection. or an Assize with a non obstante of any Law to the contrary, that grant is void; for by the Common Law a Protection lieth not in either of these cases, for the damage that may happen to the plaintif by such great delay, and a non obstante cannot avail, when by the Common Law the King cannot grant the thing itself. Stat. 36 E. 3. ●. 9 The Statute of 36 E. 3. Stat. 1. cap. 13. Co. l. 4. 58. a. 2. in the Saddler's case. which gives traverses to offices of lands seized into the King's hands shall be taken generally according to the letter and intention of the said Act, because it is for the advancement and execution of justice against grievous and tedious delays. Ad admittend. 〈◊〉. 10 In a Quare Impedit if the defendant do not come in at the distress returned against him, F.N.B. 38. n. the plaintif shall have a writ ad admittendum clericum directed to the Bishop, without making any farther title. ●●cedendo. 11 If the judges of any Court (as well of record as other) do delay the party plaintiff or defendant, F.N.B. 153. b, c, d. and will not give judgement for him, when they ought to do it; In this case, the party grieved may have a writ de procedendo ad judicium directed to such judges or justices, and thereupon an alias and pluries, if they will not proceed to give judgement, and after that an attachment (if they please) directed to the Coroners, and returnable into the King's Bench or Common Pleas. Assize. 12 The Law favours all things, Pl. Co. 75. b. 4. Wimbish & the Lo. Will. which have speed and expedition in them, and abhors all delays, which retard or delay justice; and therefore an Assize (which by the Statute of Westm. 2. cap. 25.) is said to be festinum remedium, is much favoured in Law; so as a writ of Assize upon a bare surmise shall be at first directed to the Coroners, without first directing it to the Sheriff, and then upon a challenge to the Array to have it afterwards directed to the Coroners, which is the ordinary course for other writs. 177 Unnecessary Circumstances; And therefore, Frustrafit per plura, quod fieri potest per Pauciora. The entry of the issue congeable after discontinuance. 1 In a praecipe, where the demandant is to recover damages, Co. Inst. part 1. 362. b. a. if the tenant plead non-tenancy or disclaim, there the demandant may aver him to be tenant of the land, as the writ supposeth, for the benefit of his damages, which otherwise he should lose, or otherwise he may pray judgement and enter, at his election: but where no damages are to be recovered, as in a Formedon in descender, and the like, there he cannot aver him tenant, but pray his judgement and enter; for thereby he hath the effect of his fute, and Frustra fit per plura, etc. And therefore if tenant in tail discontinue, Littl. §. 691. and his issue bring a Formedon against the discontinuée, and the discontinuée pleads that he is not tenant, but utterly disclaims in the tenancy of the land; In this case, the judgement shall be, that the tenant shall go without day, and after such judgement the issue may enter into the land, notwithstanding the discontinuance. One patent better than two. 2 When the King was to grant a reversion, Co. l. 8. 167. a. 1. in the Earl of Cumberlands case. the ancient form was to recite the first grant, and then to grant the reversion, and besides by another patent to grant the lands in possession, by which way a good estate passed to the patentee; Howbeit, to pass these several grants in one and the same patent, is as good and effectual in Law, as to pass them in several patents; and frustra fit per plura, etc. Seizure. Office. 3 If the Office of the Marshalsea be forfeit, Co. l. 9 95. b. 3. in Sir. Geo. Reynolds case. the King shall be in possession thereof by seizure without office; so it is also of the Temporalties of a Bishop, or of a Prior Alien; because the certainty of these appear in the Exchequer, & frustra fit, etc. In some cases also the King shall be in possession by office without seizure, as of lands, tenements, offices, etc. which are local, and whereof continual profit may be taken, as where it is found by office, that a condition is broken, or that one attainted of felony is seized of land, etc. or in case of the ward of land, etc. In all these cases the King is in possession by office without any seizure. 2 H. 6. 1. b. Finch, fol. 54. 4 One that is in Court ready to join with the defendant may do it without process, Vouchee. as the vouchee (the lessor of the plaintif being prayed in aid of) when the defendant in a replevin avows upon him; Or the Mesne, when the Lord paramount avows upon him: but joinder in aid cannot be by Attorney without process. Co. l. 5. 21. Sir Anthony Manes case. 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old, Covenant to surrender. M. leases to another by fine for 8. years, and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case, the covenant is broken, albeit S. do not surrender (which ought to be the first act) because it were in vain for him to do it, in regard M. hath disabled himself to take the surrender, or to make a new lease. 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher, Waiver of issue. and grant the voucher; for if the Enquest pass, the tenant cannot have more. 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer, King's debtor. if he be seen in Court, may be brought in to answer without process. Dyer 59 ●. 14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintiff, Replevin. and upon Returno habendo the Sheriff returns averia elongata per Querentem, and thereupon Withernam is awarded, and the defendant hath delivered unto him as many of the plaintiffs goods, whereupon the Plaintif is to sue a second deliverance; In this case, he shall sue the second deliverance for the first distress, and not for the delivered upon the Withernam, for the of the first distress (being the cause of the Withernam) being delivered, the other upon the Withernam will be also discharged. Dyer 19●. 24. 2, 3. El. 9 The Sheriff of Midd. had an attachment of privilege against one Kemp, Cap. satisfac. & an attachment. and likewise a Capias ad satisfaciendum against him at the same plaintiffs suit, both returnable the same term into the C. B. but the attachment was returnable first; upon which he brings his body into Court, and said he would return the Ca sa. at the day of return thereof: Howbeit, upon motion of one of the Protonotaries, the justices sent the defendant to the Fleet, and discharged the Sheriff of him, and would not stay until the return of the Ca Sa. there being a former judgement against him upon Record. Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Upon nihil dicit in waste, a writ issueth, Waste. that the Sheriff in propria persona accedat ad locum vastatum, to inquire of the damages, and it was held good, and not to inquire of the waste, for that was confessed by the Nihil dicit; neither is it in such case necessary, that he should then go in person, according to West. 2. cap. 25. for that is only in vasto inquirendo, where the Defendant makes default to the distress. 178 Expedit Reipublicae, ut sit finis Litium. 1 Regularly, an Abbot, Prior, Bishop, Abbot. Annuity. or other sole Corporation cannot disclaim, Co Inst. p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice, but what may be avoided by the successor; yet if an Abbot, Bishop, etc. acknowledge the action in a writ of Annuity, this shall bind the successor, because he cannot falsify it in an higher action, and Expedit reipublicae, ut sit finis Litium. Vide supra Max. 1. case 4. & 93, 10. So it is likewise in an action of debt upon an Obligation, Statute, or Recognisance; for there must be an end of suits, and Res judicata pro veritate accipitur. Challenge. 2 If the plaintif allege a cause of challenge against the Sheriff, Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners, and if any cause against any of the Coroners, process shall be awarded to the rest, if against all of them, than the Court shall appoint certain Elisors or Esliors (so nanamed of the French word eslire, to choose, because they are named by the Court) against whose return no challenge shall be taken to the array: Howbeit, challenge may be yet made to the Poles, but that shall be also presently examined and settled in Court: For Expedit reipublicae, etc. Partition. 3 A partition of entailed lands between parceners, Co. ibid. 173. b. 1. being equal at the time of the partition, shall bind the issues in tail for ever, albeit 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 memorial of the judges of the same Courts, Co. ibid. 260. a. 2. import in them such incontrollable credit and verity, 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 itself; 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 judicial act is done, the Record remaineth in the breast of the judges of the Court, and in their remembrance, and therefore (in such case) the Roll is alterable during that term, as the judges shall direct; but when that term is past, than 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 been 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 judges, that (before that Statute) after a full and perfect execution had by extent returned and of Record, there could never be any reextent 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. ●udgement final. 7 Where the judgement is to be final, Co. Inst. par. 1. 294. a. 4. there the Oath of the Grand Assize or jury ought to be absolute, and not to their knowledge; as in a writ of right, when the Miso is joined upon the mere right, or in an Attaint, or in wager of Law; for the judgement in every of these three is final. Judgement in a Grand Assize. 8 In a writ of right when the Miso is joined upon the mere right, Co. ibid. 295. b. 2. and the tenant tenders a Demy mark, that the grand Assize may also inquire, whether the demandants ancestor were seized in the time of the King, as he had Counted In this case, albeit the verdict of the Grand Assize be given only upon this last point, yet judgement final shall be had thereupon: so it is likewise if the tenant after the Mice joined make default, or confess the action, or if the demandant be non suit, and yet in none of these cases they of the Grand Assize give their verdict upon the mere right; but the reason is, because the Law aims at peace and quiet, and that there might be an end of suits and controversies. Vide F. N B. 5. n. Hea. 9 Every plea that a man pleadeth aught to be triable, for that without trial the cause can receive no end. Et expedit reipublice, etc. Co. ibid. 303. b. 1. Co. ibid. 369. b. 1. 10 If there be tenant for life the remainder in fee by lawful 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 suits, and cannot be to the prejudice of any. Co. l. 4. 15. b. 1. in Stanhop & Blithe's 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 judicial proceeding: but words of heat and passion, as to say to one, that he hath forsworn himself, or that he is a Villain, Rogue, Varlet, or the like, by these or such like words an action ought not to be maintained, for Boni Judicis interest lights 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. samon's case. 12 The plaintiff and defendant submit themselves to the arbitrement of A. who awards, that the defendant shall enter into bond, Arbitrement. that the plaintiff 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 suit and controversy, for that the Arbitrator not naming the sum, he cannot assign his power to the plaintiff, 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 Sheriff. or by Ejectione firmae, the Sheriff 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, etc.) because otherwise there would be no end of such suits: 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 Ferrer case. 14 When one is barred in any action real or personal by judgement upon demurrer, confession, verdict, Barr in action's. etc. he is barred as to that or the like action of the same nature for the same thing for ever; for Expedit Reipublicae, etc. Vide supra, 93, 9 Co. l. 6. 9 b. 1. in Ferrer 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 defendant pleads, Judgement bar to the bond. That the plaintif hath recovered upon the same bond, and that the judgement thereupon is removed by Error into the King's Bench, and was not yet reversed; And this was adjudged a good plea, because the judgement takes away the strength of the bond, and if after judgement he might sue the same party upon the same bond, he might do it infinitely, and (consequently) the defendant might be infinitely amerced; for upon every judgement the defendant shall be amerced, and if he be a Peer of the Realm, the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation, which would be mischievous, Et interest Reipublicae ut sit finis litium. Co. l. 7. 43. Kenns case. 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness, Bill of reviver. no more than a writ by journeys accounts upon a former writ of the same nature, for so they might be had infinitely. Barrettry. 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth, Co. l. 8. 37. in the case of Barratry. because whereas the Law endeavoureth to settle peace and amity, and to suppress discord and contention, he is seminator litium, & oppressor vicinorum suorum, either by force and open Maintenance of possessions, or the like, or by fraud and malice under colour of Law, as by multiplicity of unjust and feigned suits, Informations, or the like, to the end he may by that means enforce poor people (ad redimendum vexationem) to give him money, or otherwise to compound with him, etc. A bitrement. 19 Upon an award albeit the parties do not discover all their differences to the Arbitrators, so as they determine some, C. l. 8. 98. a. 4. in Baspoles' case. and leave the rest undetermined, yet the award is good; because otherwise many Arbitrements might be avoided, for the one or the other of the parties may conceal a trespass done to him, or some other secret cause of action, and so avoid the Arbitrement, which were inconvenient, for Expedit reipublicae, etc. Accord. 20 Accords are much favoured in Law, Co. l. 9 79. b. 4. in Peytoes' case. because they prevent and compose suits and controversies amongst neighbours (Et concordiâ parvae res crescunt, discordiâ maximae dilabuntur) And therefore it was adjudged P. 3 sac. rot. 1033. that an Accord with satisfaction was a good plea in bar, in Eden and Blakes case. Fines. 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King, though he be not named, because it was ordained for the settling and quieting of estates, and the prevention of debates and controversies in the Commonwealth, in Magdalen College case. Assets descended a bar. 21 The Statute of Gloucester in 6 E. 1. cap. 3. ordains, Co. l. 52. b. 4. in Syms case. Pl. Co. 110. Fulmerstons' case. that where tenant by the courtesy aliens his wife's inheritance with warranty, if assets descend from the heir, he shall be barred for the value of the inheritance so descended, and if lands after descend, that then the tenant shall recover against the heir of the seisin of his mother, viz. out of the residu of his mother's lands so much as the assets afterwads descended shall amount unto: Here, albeit at the making of this Act (being in 6 E. 1.) there were not entailed lands (for all Inheritance was then, (viz. before Westm. ●. being 13 E. 1.) feesimple absolute or conditional) yet entailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands entailed, but only the lands which should so descend; because otherwise there would be occasion of new suits and contention, which the Law hates and abhors; for if the tenant after assets descended might retain or recover the lands entailed, then if the assets were aliened, the issues inheritable to the estate tail might by writ of Formedon in descender recover the entailed lands again, which would beget a new suit, and no way answer the Intention of the said Act, being (indeed) a good provision for féesimple lands, but not for lands entailed, without such a construction by equity, as aforesaid; And therefore in case of entailed lands so aliened with warranty, the tenant shall have a Scire facias out of the Rolls of the justices, before whom the suit depends, to recover the lands descended according to the provision of the said Act of Gloucester; which in just and proportionable equity agrees with the case of the feesimple lands, and the Intention of the same Act. Vide supra 15. 9 & infra 186. 8. 179 Circuit of Action. Co. Inst. part 1. 265. a. 3. 1 Littleton saith, §. 446. If the father be disseised, Rebutter. and the son (having only a possibility) release to the disseisor without warranty, such release is void; Howbeit, if there be a warranty annexed to the release, than the son shall be barred; for albeit the release cannot bar the right, because the son had no right in the land in the life of the father, yet the warranty may rebut, and bar him and his heirs of a future right, which was not in him at that time: And the reason (which in all cases is to be sought out) wherefore a warranty being a covenant real, shall bar a future right, is for avoiding of circuit of action, which is not favoured in Law, viz. That he who made the warranty should recover the the land against Terretenant, and then the Terretenant by force of the warranty should have as much land in value against the warrantor, which course would occasion Circuit of action, and more trouble than needs. Mauxels case, 7. b. Finch. 2 Where the father enfeoffeth his son and heir apparent with warranty, and dieth, Vourcher. the son in a praecipe brought against him may immediately vouch his father's feoffor, for the Law will not suffer him to vouch himself, according to Max. 54. and so, when he comes in as vouchee, he may darraign the first warranty, to avoid Circuit of Action. Finch. fol. 14. Fr. Edit. F. N. B. 18. f. 3 In false judgement against an Abbot, the plaintif was non-sute, False Judgement. and the Abot had a Scire facias against the plaintiff to show cause, why he should not have execution returnable quindena Paschae, at which day the plaintif appears and assigns his errors, and tenders security to sue cum effectu, and prays a Scire facias against the Abbot ad audiendum errores, and the opinion of the Court was, that he might assign his errors against the Abbot, without suing out any Scire facias against him. Finch, pag. 55. 4 In an action of waste upon a lease for years by deed, Waste. wherein the lessor granteth to the lessee, that he shall not be impeached of waste, the lessee may plead this in bar of the action of waste, without bringing his action of Covenant. Finch, ibid. 5 Upon 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 rend issuing out of land disseiseth the terretenant, Recouper. in an Assize 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 reenters, the action for the arrearages of rent shall be received; but Circuitus est evitandus, & boni judicis 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 suit, 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, Orphan's. which by the custom of that City is under the government of the Mayor and Aldermen there, sue in the Ecclesiastical Court, or in the Court of Requests, etc. 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 account, etc. In such case, a prohibition lieth; because the government of the Orphans of London belongs to the Mayor and Aldermen of that City, and they have jurisdiction 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. judgement drowns a ●o●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 judgement, 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 Cour●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 Queen, Dyer 292. pl. 71. 12 Eliz. sed per quae servitia juratores 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 sense 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. Quar● Imped●t. 1 At the Common Law, Co. Inst. part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patron's Clerk, and before the Church were full, the Patron had brought a Quare Impedit against the Bishop, and hanging the suit, 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 speedily 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 suit; the like writ also may be had after judgement, and before execution. Vide the Statute of Gloucester, 6 E. 1. cap. 13. It lieth 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 Green's 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 plaintiff 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 justices in Court, but that by a jury, which innovation will much delay and prejudice the defendant in the writ of error. F.N.B. 37. f. g. 5 In a Quare impedit, or darrein presentment, if the plaintiff suspect, Ne admittas. that the Bishop (hanging the plea) will admit the defendants Clerk, the Law gives the plaintiff a writ of Ne admittas within the six months, to inhibit the Bishop so to innovate, to his prejudice, hanging the plea: The words of the writ are these; Prohibemus vobis ne admittatis personam ad ecclesiam de B. quae vacat, ut dicitur, & de cujus advocatione contentio mota est in Curia nostra inter A. & B. donec discussum fuerit in eadem Curia, ad quem eorum pertineat ejusdem ecclesiae Advocatio. F. N. B. 43. 1. 6 If a man sue a Quare Impedit, and deliver it upon record, Prohibition. as he may, and after the defendant or his clerk sues a Citation against the presentee of the plaintiff; In this case, the plaintiff in the Quare Impedit shall have a prohibition in the Common Place, before the return of the Quare Impedit, because it appears upon record, that such a Quare Impedit is depending. F.N.B. 48. o. 7 If a man hath a Quare impedit, Quare incumbravit. and he sue a Ne admittas to the Bishop, and after the Bishop encumbers the Church within the six months with his own chaplain, or with the chaplain of the defendant; here, the plaintif shall have a writ of Quare incumbravit, to prevent such disturbance hanging the suit in the Quare Impedit. F. N. B. 71. e. f. m. 8 If a man distrain for rent or service, Recaption. and after (hanging the plea) distrains again for the same rent or service; In such case he that is so distrained shall have a writ of Recaption, and shall recover his damages for the second distress so taken, and he that distrained shall make fine for the wrong he hath done, albeit the first distress was lawfully made, and the rent is still in arrear. 182 Infiniteness and multiplicity of suits. Co. Inst. part 1. 56. a. 2. Co. l. 5. 73. a. 3. in William's case. 1 There is a diversity between a private way, Public nuisance. which serves for a private man's use or occasion, and a public way, which is a Common passage; for if a man be interrupted in a private way, he shall have an action upon his case, and recover damages according to his prejudice: But if the way be a Common way, and any man be disturbed to go that way, or if a ditch be made overthwart the way, so as a man cannot pass, yet he shall not have an action upon his case; and this the Law hath provided for avoiding multiplicity of suits, for if any one man might have an action, all men might have the like: But the Law for this common nuisance hath provided an apt remedy, and that is by presentment in the Léet or in the Turn, unless any man have a particular damage, as if he and his horse fall into the ditch, whereby he receiveth hurt and loss, there for this special damage, which is not common to others, he shall have an action upon the case: And all this was resolved in the King's Bench 27 H. 8. 27. And in that case it was said, that it had been adjudged in that Court between Westbury and powel, that where the Inhabitants of Southwark had by custom a watering place for their , which was stopped by powel, that in that case any Inhabitant of Southwark might have an action; for otherwise they should be without remedy, because such a nuisance is not presentable in the Leet or Turn. Plea. 2 In an action against two, if one of them plead to the writ, Co. Inst. pars 1. 125. b. 3. and the other to the action, the plea to the writ shall be first tried; for if that be found, all the whole writ shall abate, and make an end of the business: So likewise in a Personal action against two defendants, if one defendant pleads that which extendeth only to himself, and the other plead a plea which goeth to the whole, this last plea shall be first tried, and if that be found for the defendant that pleaded it, that shall discharge both, and the particular plea of the other defendant shall not be tried; for example, if one of the defendants in trespass plead a release to himself (which in Law extends to both) and the other pleads not guilty (which extends but to him that pleads) the plea which goeth to the whole and dischargeth both, shall be first tried; for if that be found, it maketh an end of the suit, and the plea of the other defendant shall not be tried; Howbeit, the Law is otherwise in Real action, for which vide ubi supra. Descent a full entry. 3 If a recovery be had by A. against B. and before execution B. die seized, this descent shall not take away the entry of the Recoveror, Co. ibid. 237. b. 4. and so it is also in case of a fine; for if that were admitted, there would be no end of suit, but a new one would be occasioned: So likewise if a recovery be had against tenant for life, where the remainder is over in fee, tenant for life dieth, he in the remainder entereth before execution, and dieth seized; here also the entry of the Recoveror is lawful, not only because he in the remainder is privy in estate, but likewise for that otherwise it would occasion a new suit: Howbeit, the Law is otherwise of an Advowson, because at the Common Law every presentation to a Church did put the rightful Patron out of possession, and did put him to his writ of right, whether the presentation were by title or without. Things in action. 4 The Common Law, for avoiding of Maintenance, Co. ibid. 214. a. 3. suppression of right, and stirring of suits at Law, hath provided, that nothing in action, entry or reentry, shall be granted over, because under colour thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the Common Law abhors; as also that men should grant any thing before they be in possession thereof, which might occasion suits and troubles. Divine service. 5 A man that by prescription hath had Divine service celebrated, Co. l. 5. 73. William's case. & the Sacraments administered upon every Sunday and Holiday at his Chapel within the Manor of D. for his own family, upon failer thereof may have an action upon the case against the chaplain that neglects to perform it, because such a prescription will be intended to commence by some grant: But when the Chapel is not a private Chapel for him and his family only, but public and common to all his tenants of the said Manor, which may be many; In such case no action of the case lieth for the Lord; for then every tenant may also have an action upon his case, as well as the Lord, and so there might be infinite actions for one default; neither yet are they in such case without remedy, for they may and aught to sue in the Court Christian, and there shall have it redressed. Co. l. 5. 104. b. in Boulstones case. 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house, Dove-house. because then every man might have the like; And therefore it hath been held, that if any man (except the Lord of a Manor) erect a Dove-house, Prat and Sternes case. it is presentable in the Leet; Sed quaere de hac, for it hath been since otherwise adjudged; See the E. of Northumberlands case, Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrer case. 7 If the plaintif be barred by judgement, upon demurrer, Vexatious suits. confession, or verdict, in personal actions he is barred for ever, and in real actions he must have recourse to his action of an higher nature, and at last shall be finally barred in his writ of right, if the Grand Assize find against him: So likewise (before the Statute of Marlbridge) when the degrees were passed, and (before the Statute of Westm. 2.) upon loss by default, there was no remedy but by writ of right: And the reason of the Common Law in these and the like cases, was to avoid Multiplicity and Infiniteness of suits, trials, recoveries, and judgements in one and the same case; And therefore in the judgement of the Law it was thought more profitable for the Commonwealth, and more for the honour of the Law, (in some cases) rather to leave some without remedy, and to put others to their writ of right, without any respect of Coverture, Infancy, or the like, than that there should not be a convenient time for the ending of actions and suits: See the judgement in redisseisin and post diss. F. N. B. 188, 190. and the punishment inflicted by the Law in such case; See also the Register 206. & 208. And (indeed) without such a strict course there may be much oppression committed under colour and pretence of Law: for so a rich and malicious man may by actions and suits infinitely vex him that hath right, and in the end (for the avoiding of charge and vexation) Compel him to forsake his right, all which was remedied by the Rule and Reason of the ancient Common Law, the neglect whereof (by introducing trials of rights and titles of Inheritance and franktenement in personal actions, in which there is no end or limit of suits) hath brought with it four main Inconveniences; 1. Infiniteness of verdicts, recoveries, and judgements in one and the same cause: 2. Sometimes contrarieties of verdicts and judgements one against another: 3. Continuance of suits by 20, 30, and 40 years to the utter impoverishing of the parties: 4. All this tends to the dishonour of the Common Law, which utterly abhors Infiniteness and protraction of suits: And herein the excellency of the Common Law is to observed, viz. That the receding from the true institution thereof, introduceth many Inconveniences, and the observation of it is always accompanied with peace and quiet, the end and centre of all human laws. See the Epistle to the 4. Report, fol. 1. b. 8 Vide Max. 180. ca 3. & 186, 25. 183 The Law construeth things with Equity and Moderation. Convenient time. 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately, yet he shall have convenient time to do it. In Butler and Baker's case. Escape. 2 For as much as Escapes are very penal to Sheriffs, Co. l. 3. 44. a. 4. in Baytons' case. Bailiffs of Liberties, and Keepers of Prisons, the judges have always made such favourable construction, as the Law will permit, in favour of them, being Officers, and Ministers of justice, and will never adjudge one to make an escape upon any strict construction; for albeit the Sheriff or other officer, that keeps prisoners, ought not to suffer one in execution to go at large by Bail or Baston, but aught to keep them in salva & arcta custodia, and according to the Statute of Westm. 2. cap. 11. which ordains, quod carceri mancipentur in ferris, to the end they may the sooner pay their Creditors; yet if one be arrested upon a Capias ad satisfac. and the Bailiffs upon a habeas Corpus bring him to Westm. and at his request carry him to Lambeth in Surrey, and at the day of return deliver him to the King's Bench, This shall be adjudged no escape, neither shall the prisoner thereupon have an Audita querela against the Creditors; So it is likewise if the prisoner had of his own accord gone to Lambeth, so as he had returned in time to be delivered into Court at the return of the writ, as it was adjudged in Charnicks case, Sheriff of the County of Bed. in 31 Eliz. So if one be Sheriff of two Counties, & hath several prisoners in execution in each County, upon two habeas Corpora against two of them, he may bring the one prisoner out of the one County into the other, and then carry both the prisoners up according to the several writs to him directed, and this shall not be adjudged any escape in the Sheriff: Also, If a prisoner in execution escape and fly into another County, and the Gaoler make fresh suit after him, and taking him puts him into the Gaol again, this shall be adjudged no escape; for that upon fresh suit the Gaoler took him again, and put him in prison before any action brought against him: And in the cases above produced upon habeas Corpus the Sheriff is not strictly bound to keep the direct way to West. in recta linea, so as he have him at the return of the writ, and then deliver him into Court, for if the effect of the writ be pursued, it sufficeth. Copyhold Fines. 3 Where fines in a Copyhold Manor are uncertain, Co. l. 4. 27. b. 3. in Hubbert & hamond's case. the Lord ought not to demand or exact excessive or unreasonable fines, and if he do, the Copyholder may deny to pay it without danger of forfeiture, and it shall be determined by the opinion of the justices, before whom the matter depends, upon a demurrer, or at the trial, whether the fine demanded were reasonable or no; for if Lords might assess fines excessively at their pleasure, all the estates of Copiholders, which are a great part of the Realm, and have continued time out of mind, would be at the will of the Lords to defeat and destroy, which would be inconvenient; And thus it was adjudged in the Common place in Hoddesdons' case. Sewers. 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions, Co. l. 5. 100 a. 3. in Rooks case. yet their proceedings ought to be limited and bounded by the Rule of Law and reason; for discretion is a science of discerning truth from falsehood, right from wrong, shadows from substance, and betwixt equity and colourable glosses and pretences, and not to do according to their own wills and private affections. Co. l. 6. 50. b. 4. in Boswels case. 5 If tenant in tail suffer an usurpation and die, Tail. Usurpation. the issue in tail is remedied by the equity of the first branch of Westm. 2. cap. 5. because after the Statute of Westm. 2. cap. 1. (which created the estate tail, and was made the same Parliament) the issue in tail could not have a writ of right of advowson, and therefore shall be aided by the said first branch, as it is held 43 E. 1. 24, & 25. Vide 26 Ass. pl. 4. 8 E. 2. Quare Impedit 167. 24 H. 6. 28. Co. l. 8. 40. a. 4. Grieslyes' case. 6 Amerciaments, Amerciaments. whether they are to be affeared in Inferior Courts by the suitors, or in Superior Courts by the judges, they are all termed Misericordia, because whosoever hath the affearance of them, aught to use great moderation. Co l. 11. 44. a. 2. in Rich. Godfrey's case 7 The Reasonableness of fines in Courts, distresses, Fines. Distress, etc. amerciaments, and fines at the will of the Lord, shall be adjudged by the justices, and if they be outrageous, and excessive, and (by consequent) injust and against the Law, they have power to moderate them. F. N. B. 75. a. etc. 8 When an amerciament is excessive or outrageous in a Court Baron, or other Court, which is not a Court of Record, for trespass, Amerciament. or any other offence, the Law hath ordained the writ of Moderata Misericordia to be directed to the Lord of the same Court or his Bailiffs, commanding them to take a moderate amerciament according to the quantity of the trespass, etc. and thereupon the party grieved may have an Alias, Pluries, and Attachment if he please. See the Statutes of Magna Cart. cap. 14. and Westm. 2. cap. 6. F. N. B. 103. b. 9 If a man be bound in a statute merchant, Statute Merchant. and after make feoffment of parcel of his lands to one man, and of another parcel thereof to another, and the recognisée sues execution upon the Statute, and hath execution against the one feoffée; here, this feoffée shall have an Audita querela against the other feoffée, to show cause why the recognisée hath not execution against his lands, as well as against the lands which he hath, etc. Pl. Co. 17 a. 4. etc. in Fogassaes' case. 10 Both the matter and words of penal Laws shall be taken strictly, Penal Laws. and not extended by Equity in prejudice of them against whom the penalty is to be inflicted: As the Statute of Westm. 2. cap. 11. ordains, that if Accomptants shall be found in arrear before Auditors, Arrestentur Corpora eorum, et per testimonium Auditorum ejusdem Compoti mittantur et liberentur proximae Gaolae Domini Regis in partibus illis, quousque, etc. Here, the Statute is general, that they should be imprisoned by the Auditors, and saith not at what time, so as by the Letter of the Statute, the Auditors may imprison the Accomptants when they please after their account; yet in 27 H. 6. 8. Tit. Barr, 44. & Br. Account 6. In debt upon arrearages of account it is adjudged, that if the Auditors do not commit the Accountant to prison presently after the account, they can never commit him afterwards, because the Statute is penal to him, that is to be imprisoned, etc. Pl. Co. 67. a. 1. Dyve and Man●ngh. 11 At the Common Law before the Statute of 23 H. 8. 10. the Sheriff had commandment and authority to let to bail such as were mainpernable; Bail. for the Common Law (which is Common reason) would always have persons taken by writ, bill, or warrant upon personal actions, or Indictments of trespass, to be enlarged by sureties, for that in a manner it stands indifferent, whether they are guilty or no, and then if they should not be guilty, and yet restrained of their liberty, it would be a great inconvenience, which the Law would never suffer. 12 Hob. 14. Sir Dan. Norton against Simmes. 184 Restraineth a general Act or Rule, and (sometimes also) a Particular contract, if there be found any mischief or Inconvenience in them. Wife no witness ●or her ●u●band. 1 Regularly, any person of competent age and discretion, Co. Inst. par● 1. 6. b. 4. and against whom there is no just exception by reason of perjury, conviction of felony, or the like, may be admitted a witness in any cause, yet in 10 Jac. in Com. Banc. in a case upon the Statute of Bankrupts, it was adjudged, that a wife cannot be produced as a witness either against or for her husband, for that it might be a cause of implacable discord and dissension between the husband and wife, and a mean of great inconvenience. Tender of marriage. Co. ibid. 79 a. 3. 2 By the Statute of Westm. 1. cap. 22. Tender of Marriage to an heir female before the age of fourtéen is void, which is to be understood, where the Lord may hold the land the two years after the 14, for within that time the Statute appointeth the tender; but where the Lord cannot have the two years, he may tender a marriage to the heir female at any time after the age of 12. and before 14. for so he might have done at the Common Law. Frankmarriage. Frankalmo●gn Co. ibid. 97. a. 4. Littl. §. 138. 3 An Argument drawn from inconvenience is forcible in Law, and the Law, that is the perfection of Reason, cannot suffer any thing which is inconvenient; And therefore the Law saith, It is better to suffer a mischief (viz. peculiar to one) than an inconvenience, that may prejudice many: Frankmarriage is so called, because it ought to be freed of all service to the donor, until the fourth degree be past, yet the tenant in Frankmarriage shall make fealty to the donor, for it were inconvenient that he should hold land, and do no service at all for it; So likewise tenant in Frankalmoign, albeit he be freed from all temporal service, yet he shall say divine service for his Lord, for it were inconvenient that he should do no service at all for the land he holds of his Lord. All land holden. Co. ibid. 98. a. 1. 4 If an Abbot holds in Frankalmoign, and he and the Covent under their Common Seal alien the land to a Layman; In this case the secular man shall make fealty, albeit the Alienors held not by fealty nor any terrene service, but only by Spiritual services, and those uncertain; for in such case the Law createth a new Temporal service out of the land to be done by the Alienee (wherewith the Abbot was not formerly charged) for the avoiding of an Inconvenience, viz. that the feoffee should do no manner of service, and (consequently) that the land should be holden of no man, which would be inconvenient, for that all land is holden of one or other; and mediately or immediately of the King, because they did originally come from the Crown. Vide 148. 35. Grand Serjancy. 5 Regulary, Co. Inst. part 1. 107. a. b. tenant by Grand Serjancy must perform that service in proper person, and shall not make a deputy without the King's licence: yet at the Coronation of King R. 2. john Wiltshire a Citizen of London, who held certain lands in Heydon in the County of Essex of the King by Grand Serjancy, viz. by holding a Towel when the King should wash his hands before dinner, the day of his Coronation, etc. upon his petition exhibited to the High Steward of England in his Court was admitted to make a deputy to perform it, because it was inconvenient for him (being a Citizen) to execute so high an office himself; And therefore he deputed Edmond Earl of Cambridge to perform the service by holding the towel that day to the King. So at the same Coronation William Furnival, who held the Manor of Farnham in Com. Buck. by Grand Serjancy, viz. to find the King a glove for his right hand, and to support the King's right hand the day of his Coronation, while he held in his hand the Verge Royal, could not have executed that place in person, but by some honourable deputy, had not the King that day made him a Knight, and by that means made him also capable of performing that office himself. Also Anne the wife of Sir john Hastings Earl of Pembroke, who held the Manor of Ashley in Norfolk of the King by Grand Serjancy, viz. to perform the office of the Naperie at his Coronation, was adjudged to make a deputy, because a woman could not do it in person, and thereupon she deputed Sir Thomas Blunt Knight, who performed the service in her right, etc. Co. ibid. 117. a. 1. 6 It is a Rule in Law, Lord and Villain. that what the Villain hath is the Lords upon seizure or claim, yet if the Villain purchase a Common sans number, the Lord shall not have it, for the Lord may surcharge it, which would be a prejudice to the terretenant; there is the same law also of a Corodie uncertain granted to a Villain, or such like inheritances, etc. Co. ibid. 128. a. 4. 7 In any suit Outlawry is a good exception in disability of the person, yet in a writ of Error to reverse an Outlawry, Outlawry. Outlawry in that suit, or at any stranger's suit, shall not disable the plaintif, because if he in that action should be disabled, if he were Outlawed at several men's suits, he should never reverse any of them, which would be inconvenient; So likewise in an attaint Outlawry in the plaintif cannot be pleaded in disability of the person. Co. ibid. 130. b. 1. 8 A protection cannot be cast for the demandant or plaintif, Protection. because the tenant or defendant cannot sue a re-summons or a re-attachment, but the demandant or plaintif that sued out the summons or attachtachment, etc. must also sue forth the re-summons or re-attachment. Co. ibid. 131. a. 1. 9 In a writ of Dower unde nihil habet no protection is allowable, Protection. because the demandant hath nothing to live upon; otherwise it is in a writ or right of dower: Likewise in a Quare Impedit, and assize of Darrein presentment a Protection lieth not, for the eminent danger of the laps: neither lieth a protection in an Assize of Novel disseisin, because it is festinum remedium, to restore the disseisee to his freehold, whereof he is wrongfully and without judgement disseised: It lieth not in a Quare non admisit, because it is grounded upon the Quare impedit; nor in a Certificate upon an Assize, for the like reason, et sic de fimilibus: yet regularly and in most suits Protections are allowable. An Infant was vouched, and at the Pluries venire facias a protection was cast for the Infant, but disallowed, because his age must be adjudged by the Inspection of the Court. Co. ibid. 134. a. 1. 10 If an Executor or Administrator sue an action, Excommunication. Outlawry in the plaintif shall not disable him, because the suit is in altar droit, viz. in the right of the testator, and not in his own right: but if an executor or administrator be excommunicate, he may be disabled, albeit he sue in altar droit, because they, who converse with a person excommunicate, are excommunicate also. Littl. §. 202. Co. ibid. 136. b. 3. 11 The Law giveth power to the Lord to seize his Villain where he finds him, yet if a Villain enter into Religion and be professed, Villain. the Lord cannot take him out of his Cloister, because than he could not live as a dead person, nor according to his Religion, which were inconvenient. Littl. §. 219 Co. ibid. 145. a. 1. 12 Upon the grant of a rent-charge the grantee may make his election, either to recover it by writ of Annuity or by distress, Annuity. for the law grants both to him; yet when he hath once made his election and fixed upon one way, he shall not make use of the other, for than he should recover one thing twice, which would be a double charge to the grantor. Replevin. 13 The words of the Statute of Marlbridge, Co. ibid. 145 b. 3. cap. 21. for Replevins are, Quod vicecomes post querimoniam inde sibi factam ea sine impedimento vel contradictione ejus, qui dicta averia ceperit, deliberare possit, etc. By which word querimonia it may seem, that by the Statute the plaint ought first to be entered in the County Court, before the Sheriff can grant a Replevin; Howbeit, the Sheriff may take a plaint upon the said Act out of the County Court, and make Replevin presently; for it would be very inconvenient for the Owner to forbear his till the County day. Replevin. 14 If a man by his deed grant a rent with clause of distress, Co. ibid. 145. b. 3. and grant further, that he shall keep the goods distrained against gauges and pledges, until the rent be paid, yet shall the Sheriff replevy the goods distrained, for it is against the nature of such a distress to be irreplevisable, and by such an Invention the current of Replevins would be overthrown, to the hindrance of the Commonwealth; And therefore in 31 E. 3. Gage deliv. 5. it was disallowed by the whole Court, and awarded, that the defendant should gauge deliverance, or go to prison. Grant of a rent. 15 If there be Lord and tenant by fealty and certain rent, Co. ibid. 150. b. 1. and the Lord by deed grant the rent in fee, saving the fealty, and grant 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 Signiory, 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 fealty, and further grant, that the grantee shall distrain for it; Here also, albeit the reversion of the rent be a rend service, yet the donee or grantee shall have it but as a rent seek, and shall not distrain for it. Coperceners. 16 Estovers appendent 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 seized of the Manor of Canford in see, Co. ibid. did by deed indented and enrolled bargain and sell the same to Browne in fee, who in the deed covenants, that the Lord Mountjoye and his heirs shall dig over and turf in the wastes of the said Manor; And in this case three 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 than 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, etc. 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 debt 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, etc. he shall not plead uncore priest, 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 entered upon the land; Littl. §. 434. And if the party be sick, decrepit, or recluse, he may do it by his servant, etc. Littl. §. 440. Co. ibid. 261. 20 The Rule of Law is, that where a disseisor dies seized, Descent a fuller En●●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 shall 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 laid 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 plaintiff 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 subtle invention of pleading, an ancient 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 judges of both Courts allowed a traverse upon a traverse in that case: And the wisdom of the judges and Sages of the Law hath always suppressed new and subtle 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 sufficeth not to satisfy 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 Courtesy, tenant in Dower, tenant for life, years, etc. for they shall answer for waste done by a stranger, and then shall take their remedy over. Detinue for writings. 24 Regularly, Co. l. 1, 2, 3, in the Lord Buckhursts case. the writings that concern land belong to the owner of the land, and are to be kept by him, yet if I am enfeoffed to me and my heirs, and I enfeoff another to him and his heirs with warranty, my heir shall have a Detinue for the deed, by which I was enfeoffed, and shall Count specially, viz. upon the special matter, in respect of the special loss and prejudice, which he may have for want of the deed, in case he should be vouched upon the warranty, which I made to my feoffée. Vide 10 E. 4. 9 b. Rend extinct. 25 Tenant in tail, remainder in tail, Co. l. 1. 62. b. Caples case. he in remainder grants a rend charge out of the land, and then Tenant in tail in possession suffers a recovery; In this case, the rent is extinct and gone; for it were inconvenient that the land should be subject to the charges both of the tenant in possession, and of him in remainder also, as to be charged with the statutes or recognizances of tenant in tail, and also of him in remainder simul et semel, whereas tenant in tail in possession having power to dock both his own estate, and the estate of him in remainder, by possibility it might never come in possession to him in remainder. Fraudulent Conveyances. 26 Where a man conveys his land to the use of himself for life, Co. l. 3. 82. b. 2. Standen & Bullocks case, in Twines case, per Warmsley Just. from Sir Ch. Wray Ch. Just. per tot. cur. and after to the use of divers others of his blood, with future power of revocation, as after such a feast, or after the death of such a man, and afterwards, and before the power of revocation commenced, he for a valuable consideration bargains and sells the land to another and his heirs, this bargain and sale is within the remedy of the Statute of 27 Eliz. cap. 4. for albeit the Statute saith, The said first conveyance not by him revoked, according to the power by him reserved, which seems by the literal sense to be meant of a present power of revocation, for no revocation can be made of a future power, until it come in esse, yet it was held, that the intent of the Act was, that such voluntary conveyance, which was originally subject to the power of revocation, be it in praesenti, or in futuro, shall not stand against the purchasor bonâ fide for valuable consideration, & if any other construction should be made, the said Act would serve for little or no purpose; for than it would be no hard matter to evade it: So likewise if A. reserve a power of revocation by the assent of B. and after A. bargains and sells the land to another, this bargain and sale is good, and within the remedy of the said Act; for otherwise the good provision of the Act by a small addition and knavish invention might be defeated. The like. 27 In 38 Eliz. in C. B. betwixt Lee and his wife executrix of one Smith plaintiff, and Mary Colshil executrix of Th. Colshil defendant, Co. l. 3. 82. b. 4. Colshils' case, reported in Twines case. in debt upon an obligation of 1000 marks, Rot. 1707. The case was this, Colshil the testator had the office of a Customer by Letters patents to him and his deputies, and by indenture betwixt him and Smith the testator of the plaintiff, and for 600 l. paid, and 100 l. per annum to be paid during the life of Colshil, makes deputation of the said office to Smith, and Colshil covenants with Smith, that if Colshil die before him, that then his executors should repay unto him 300 l. and divers covenants were in the said Indenture concerning the said office and enjoyment thereof, and Colshil was bound to Smith in the said obligation to perform covenants, and the breach was alleged for the nonpayment of the said 300 l. for that Smith survived Colshil. And albeit the said covenant to repay the 300 l. was lawful, yet in as much as the residue of the covenants were against the Statute of 5 Ed. 6. cap. 16. the obligation was adjudged void, because if the addition of a lawful covenant should make the bond of force as to that, the Statute would serve for little or no purpose. Vide plus ibid. Co. l. 4. 122. b. 4. in Bustards case. 28 The Rule of Law is, Exchange. that exchanges ought to be of equal estates, and yet if A. hath a reversion in fee of an acre of land expectant upon an estate for life, and makes an exchange with B. by deed indented, and gives this acre by name of an acre of land, (and not by the name of the reversion) in exchange for another acre; In this case albeit B. expect to have the acre, so given to him, in possession, yet (in as much as nothing passes by the grant of the acre of land but the reversion) the warranty or condition in Law annexed to the exchange, cannot by the Law extend to more than passed by force of the exchange, for they are incident and annexed to the estate which is given, and cannot extend to the franktenement which was in the lessée; because if the Law should be otherwise, great mischief would ensue: for if an exchange be made of divers Manors, and peradventure divers parcels of them are in lease for life; In this case if the exchange should be void, because it was not made as of a Manor in possession, that would avoid all such exchanges, which would be mischievous, and there can be no mischief on the other part; for when the tenants for life are in possession of the Land, it will be imputed the laches and folly of the purchasor, that he did not discover it by Survey or some other enquiry. Co. l. 5. 90. a. 2. in Hoes case. 29 Regularly, all writs directed to the Sheriff ought to be returned, Executions. for so the Sheriff is by them commanded to do, & if a Capias in process be not returned, the arrest is tortuous; so likewise an Elegit, because the extent is to be done by an Inquest, and not by the Sheriff alone, if it be not returned, it is not valid: nevertheless, in all writs of execution, when the Sheriff alone doth it, as Capias ad satisfaciendum, habere facias possessionem, or seisinam, fieri facias Liberate, etc. if the execution be duly made, it is valid, albeit the writ be not returned; for if the non-return of the writ by the Sheriff should cause new execution to be had against the defendant, and should leave him to his action against the Sheriff, that would tend much to the prejudice of the defendant, whose goods are already sold by the writ and process of Law for the satisfaction of his debt: Again, if the sale of the goods by force of the writ should by the non-return of the writ be tortuous, than the Sheriff 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 suit. 30 If a rent be granted out of the Manor of Dale, Rend charge. and the grantor grant over, Co. l. 7. 24. a. 3. Butts 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 lieth, 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 do 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 demur for the nonage of the plaintiff, 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 Metcalves case. 1. That a writ of Error lieth not upon an award, until the principal judgement be given; 2. That it lieth 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 justices 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 lieth, & 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 judgements 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▪ etc. shall be severed from the original and removed into the King's 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 until all be determined, for the record cannot be in the King's 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 judicio disseisire, fed brevia habeant de hujusmodi custodia sibi reddenda, yet if the tenant enfeoff the Villain of the Lord upon collusion, the Lord may enter and expel 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 Villain, 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 itself, 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 Assizes, 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 justify 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 war 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 men's 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 facias issue out to summon the jury, they ought to be tried all together, but if they in subtlety make several Challenges, so as there cannot be left a full jury, the Clerk may sever the panel; for otherwise upon sleight and subtlety they might evade the trial. Co. l. 4. 22. b. in the cases of Copyholds. 36 Albeit the estate and interest of a Copyholder (upon descent) vesteth in him by force of the Custom of the Manor, Copyhold. yet in pleading the Law doth allow him to allege (before admittance) his ancestors admittance, & (after admittance) his own, as a grant, and this is so permitted him by the Law to avoid an inconvenience, which otherwise would necessarily follow; for if the Copyholder in pleading should be compelled to show the first grant, he would be at a loss in doing that, because if the grant were before time of memory, then is it not pleadable, or if it were within time of memory, then would the custom fail; for which cause the Law hath allowed the Copyholder in pleading to allege any admittance, as a grant, either upon a descent, or a surrender rather than to force him to plead that which may tend to his prejudice, although in rei veritate he is in by the Custom, and not by any grant. Dyer 218 3. 5 Eliz. Fortescue against Strode. 37 The condition of an obligation was, Unreasonable condition. that the obligor upon request should do all acts, which to the Council of the obligee should seem reasonable for the releasing of an obligation, in which the obligee stood bound to the obligor; hereupon request was made to seal a release of all demands to the obligee and one M. and averment, that there was no other matter betwixt them, but makes no mention of M. And this request was adjudged unreasonable, albeit there were no matter betwixt the obligee and M. Dyer 262. 31. 9 Eliz. 38 Regularly, Felo de se. all the personal estate of a Felo de se is forfeited to the King, yet if such a fellow had due unto him a debt upon a simple contract without specialty, it shall not be forfeited to the King, because then the party should be rebutted from waging his Law, which he might do against a common person. 39 Vide Hob. 3 Pincombe against Rudge: A warranty may be sued by way of Covenant 133. Allen, and Walter, for summons in Dower. Hob. 91. Sir Tho. Packering case. 40 If an office be found only in one County of all the lands lying as well in other Counties as there, which in Law is no office, Offices. but only for the proper County, yet this by the Court of Wards was allowed, as an office to all, to ground a charge and process upon; for that it was beneficial to the Subject, who else by divers offices would have been put to an intolerable charge, etc. 185 Nemo bis punitur pro eodem delicto. App●al. Indictment. 1 Wetherol brings an appeal of murder against Darley, Co. l. 4 40. a. 3. Darleys' case. the defendant pleads not guilty, and he was found guilty of Homicide, and had his Clergy; And afterwards he was indicted of murder, and thereupon arraigned at the Queen's suit, and he pleads the former conviction in the appeal at the suit of the party; And it was adjudged a good bar, and thereupon he was discharged; for it was a good bar at the Common Law, and not restrained by any Statute; And the reason thereof is, because the life of a man shall not be twice put in jeopardy for one and the same offence. Barr in mayhem. 2 Hudson brings an appeal of Mayhem against Lee, Co l. 4. 43. a. Lees case. the defendant pleads, that the plaintif had before brought an action of trespass in the Common Bench against him of assault, battery, and wounding, and thereupon had recovered against him 200 Marks damages, and 10 s. costs, which were satisfied before the appeal brought; and farther averred, that the battery and wounding in the trespass, & the mayhem in the appeal were all one, and not divers; whereupon the plaintiff demurs: And it was resolved per totam Curiam, that the bar was good; for albeit it was alleged, that an appeal of mayhem, being an action of an higher nature than an action of trespass, could not be barred by it, yet because in the appeal the plaintif was but to recover damages, as he had done before in the action of trespass, he shall not be twice satisfied, nor the defendant twice punished for one and the same thing. Vide 41 Ass. pl. 16. & 2 R. 3. 14. Action sur case Bar in debt. 3 Recovery or Barr in an action upon the case sur assumpsit is a good bar in an action of debt brought upon the same contract, Co. l. 4. 94. b. Slades case. And vice versâ Recovery or bar in an action of debt is a good bar in an action upon the case sur assumpsit; because in such an action upon the case he shall not only recover damages for the special loss which he hath, if any be, but likewise for the whole debt, and reason will not permit, that the defendant should satisfy one debt or duty twice. Vide 12 E. 2. 13. a. 2 R 3. 14. 38 H. 8. Br. Action sur le case 105. Bis idem exigi bona fides non patitur, & in satisfactionibus non permittitur amplius fieri, quod semel factum est. Covenant. 4 A. covenants with two, and cum quolibet eorum; Co. l. 5. 19 a 3. Slingsbies' case in this case they cannot sue severally, unless their Interests be several, for their Interests and the Covenant must accord: otherwise the covenantor may be twice charged for one and the same thing; and therefore these words cum quolibet eorum are (in such case) but words of amplification and abundance, and cannot sever the joint cause of action: In like manner one cannot be bound to many jointly and severally, for albeit authority may be so given (as to two, vel cuilibet eorum, to give livery, etc.) yet interest cannot, causâ qua suprâ. Trover. 5 In an action of Trover and Conversion brought in the Exchequer by bill, the defendant pleads, that the plaintif had an action of Trover, Co. l. 5. 61. a. 3. Sparries case. etc. for the same goods then depending in the K. B. and demands judgement of the Bill, whereunto the plaintiff demurs; and it was resolved by the Barons, that the Bill should abate; and one of the reasons thereof was this, that the defendant should not be twice vexed for one and the same thing; Nemo debet bis vexari, si constat Curiae, quod sit pro una et eadem causa. Nusance. 6 A man shall not have an action upon the case for a nuisance levied in the high way, for it is a common nuisance, Co. l. 5. 73. a. 4. in William's case. and therefore it is not reason, that one particular person should bring the action; for by the same reason, that one person may have an action for it, by the like reason every one may likewise have an action for it, and so by that means the party may be punished 100 times for one and the same cause, which were both unjust and unreasonable. Co. l. 8. 61. a. 4 in Beeche●s case. 7 In all causes real or personal, Amercia●ent when there is but one demandant or plaintif, and divers tenants or defendants, the demandant or plaintif may be divers times amerced, but where there is but one tenant or defendant, he shall not be twice amerced. Co. l. 11. 43. b. 4. in R●. Godfrey's case 8 If a man be convicted in the County Court before the Sheriff in a Writ of Recaption, he shall be only amerced, Amerciament because it is not a Court of Record; but if he be convicted in a Writ of Recaption before the justices, viz. in a Court of Record, he shall be fined and imprisoned, but then he shall not be amerced, for that were to punish him twice for one and the same offence. Co. l. 11. 51. b. 1. in Lifords' case. 9 If my disseisor be disseised, and after I re-enter, Disseisin. I cannot have an action of trespass against the second disseisor; because than he would be doubly charged for one and the same offence, viz. by me, and the first disseisor, And therefore by a fiction in Law) I shall recover all the mesne profits against the first disseisor, his servants, and others, who have committed trespass by his Command, and in his right. F. N. B. 39 d. 10 If a man hath a Quare Impedit against one, Damages. and the defendant hath also an Assize of Darrein presentment, against the plaintif, and recovers in the Darrein presentment, and the plaintif is non-sute in the Quare Impedit; In this case, the defendant shall have two judgements against the plaintif, viz. to have a writ to the Bishop in both Actions, and two writs shall be awarded to inquire of damages, Howbeit he shall not pay damages twice for one and the same disturbance. F.N.B. 43. g. 11 Where one is sued in the Common Bench and in the Court Christian for the same thing, a prohibition lieth. Prohibition. 12 Vide Hob. 2. Incerti temporis & nominis. Debt. A debt shall not be twice satisfied. Hob. 128. Pa & Coke. 13 Two Informations exhibited the same day against the same man for the same offence, shall be both quashed. Information. 186 It flieth and preventeth all occasions of Evil. Co. Inst. pars 1. 88 b. 1. Littl. §. 123. 1 The heir of lands in Soccage under the age of 14. shall not be committed to the custody of any person, Heir in soccage. unto whom the Inheritance by any possibility may or can descend, lest by undirect practice he may gain the Inheritance to himself; And therefore if a man hath issue two sons by several ventures, and having lands holden in soccage of the nature of Borough English, dyeth, the younger brother within the age of 14 years, the elder brother of the half blood shall not have the custody of the land, because by possibility the elder brother may inherit the land; for if the youngest die without issue, and the land descend to the uncle, the elder brother of the half blood may be heir unto him; And therefore the Rule in Lib. Rubr. cap. 70. is, Nullus haeredipetae suo propinquo vel extraneo periculosa sarè custodia committatur; And herewith also agree our ancient Authors, as Bracton l. 2. fol. 87. Brit. fol. 163. Fleta l. 1. cap. 10. Fortesc. cap. 40. Howbeit it is otherwise in the Civil Law, Vide Fort. ibidem. Co. ibid. 100 a. 3. 2 To prevent suits and troubles, Writs of Prevention. there are six writs in Law that may ●e maintained, Quia timet, before any molestation, distress, or impleading: As 1. A writ of Mesne, before he be distrained; 2. A Warrantia cartae, before he be impleaded; 3. A Monstraverunt, before any distress or vexation; 4. An Audita querela, before any execution sued; 5. A Curia Claudenda, before any default of enclosure; 6. A Ne vexes, before any distress or molestation: And these are called brevia anticipantia, writs of Prevention. To prevent false verdicts. 3 To prevent false verdicts, Co. ibid. 228 a. 1. if the jury after their evidence given unto them at Barr do at their own charges eat or drink either before or after they be agreed on their verdict, it is finable, but it shall not avoid the verdict; Howbeit, if before they be agreed on their verdict they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict; but if it be given for the defendant, it shall not avoid it, Et sic e converso: Howbeit, if after they are agreed on the verdict, they eat and drink at the charge of him, for whom they do pass, it shall not avoid the verdict. The like. 4 If the plaintiff after evidence given, Co. ibid. a. 2 and the jury departed from the bar, or any for him, do deliver any letter from the plaintif to any of the jury concerning the matter in issue, or any evidence, or any escrowl touching the matter in issue, which was not given in evidence, it shall avoid the verdict, if it be found for the plaintiff, but not if it be found for the defendant, & sic e converso: But if the jury carry away any writing unsealed, which was given in evidence in open Court, this shall not avoid the verdict, albeit they should not have carried it with them. The like. 5 By the Law of England a jury after their evidence given upon the issue, aught to be kept together in some convenient place, Co. ibid. without meat or drink, fire or candle, (which some Books call an Imprisonment) and without Speech with any unless it be the Bailiff, and with him only if they be agreed: After they be agreed, they may in causes between party and party give a verdict, and if the Court be risen give a privy verdict before any of the judges of the Court, and then they may eat and drink, and the next morning in open Court, they may either affirm or alter their privy verdict, and that which is given in Court shall stand: But in criminal causes of life and member, the jury can give no privy verdict, but they must give it openly in Court. Law-wager. 6 In no case where a contempt, trespass, Co. ibid. 295. a. 2. deceit or injury is supposed in the defendant, he shall wage his Law, because the Law will not trust him with an Oath to discharge himself in those cases: Only in some other cases, as debt, detinue, and account, the defendant is allowed by Law to wage his Law, because they are not criminal. The reason of discontinuance. 7 The reason why alienations in fee, in tail, or for life, Co. ibid. 327 a. 2. by tenant in tail, Abbot, Bishop, husband of his wife's land, and the like, do make a discontinuance, and put the issue in tail, him in the reversion or remainder, successor, or wife, that right had, to their action, and took away their entry, was for that he was privy in estate, and for the benefit of the purchasor, and for the safeguard of his warranty, so as every man's right might be preserved, viz. to the demandant for his ancient right, and to the feoffee for the benefit of his warranty, which was founded upon great reason and equity, because the benefit of the warranty would be prevented and avoided, if the entry of him, that right had, were lawful, and thereby also the danger, that many times happeneth by taking of possessions, was warily prevented by Law. Stat. of Gloc. Warranty. Assets. 8 By the express purview of the Statute of Gloucester, Co. ibid. 366. a. 2. cap. 3. (where the baron aliens his wife's Inheritance with warranty) if assets do after descend from the father, than the tenant shall have recovery and restitution of the lands of the mother; But in a Formedon (for lands entailed) if at the time of the warranty pleaded no assets be descended, so as the demandant recovereth the land, if afterwards assets descend, there the tenant shall have a Seire facias for the assets, and not for the land entailed; And the reason hereof is, for that if (in this case) the tenant should be restored to the land entailed, then if the issue in tail should alien the assets, his issue in a Formedon would again recover from the tenant the land entailed: And therefore the Sages of the Law to prevent future occasions of suits, have heretofore resolved the said diversity in the cases abovesaid, upon consideration and construction of the Statute of Gloucester, and of the Statute de donis, West. 2. cap. 1. Vide supra 15, 9 157, 14. & 178. 22. Co. Inst. part 1. 392. a. 4. 9 The punishment which the Law inflicts upon a fellow is very severe, for he is not only punished in his own person, Punishment of Treason and Felony. but likewise in his relations; The judgement against his person is, that he shall be hanged by the neck until he be dead: he is punished also implicative in his relations; as 1. In his wife, for she shall lose her Dower; 2. In his children, for they shall become base and ignoble; 3 In his Posterity, for his blood is stained and corrupted, so that they shall not inherit either to him or any other Ancestor; 4. In his real estate, for he shall forfeit all the lands that he hath in feesimple, feetail, or for life; 5. In his personal estate, for he shall forfeit all his goods and chattels both real and personal: Thus heavy was his punishment at the Common Law, And the reason thereof was, to the end men should fear to commit felony ut poena ad paucos, metus ad omnes perveniat: And it is truly said, Etsi meliores sunt quos ducit amor, tamen plures sunt quos corrigit timor: And so it is a fortiori in case of High Treason. Howbeit, after the Statute de donis 13 E. 1. cap. 1. Entailed lands could not be forfeited for felony or treason, but only during the life of tenant in tail; but since by the Statute of 26 H. 8. cap. 13. Entailed lands shall be also forfeited for Treason: Also by the Statute of 1 E. 6. c. 12. the wife was to be endowed, albeit her husband were attainted, convicted, or outlawed for treason or felony; but afterwards by the Statue of 5, & 6 E. 6. cap. 11. The wife shall lose her dower, where the husband is attainted of Treason, so long as the attainder continues in force: There are also divers offences made felony by special Statutes, wherein dower, corruption of blood, and disherison of the heir are by special provision saved. Co. ibid. 171. b. 3. 10 The Law hath provided for the safety of a man's, Infant's age. or a woman's estate, that before their age of twenty one years they cannot bind themselves by any deed, or alien any lands, goods, or chattels. Co. l. 2. 44. a. 4. in the Bishop of Winchester's case. 11 A mere Layman, Prescription for tithes. which was not capable of tithes in perancie, was yet capable of discharge of tithes at the Common Law in his own land, as well as an Ecclesiastical person, for by the Common Law the Parson, Patron and Ordinary might have discharged a parishioner of tithes in his own land, or the parishioner might have given part of his land to the Parson for the discharge of tithes in the residue, as appears in 8 E. 4. 14. and in the Reg. fol. 38. Howbeit, this was always by grant or composition, but he could never be discharged of tithes by prescription; for albeit such prescription might have lawful commencement, yet the Law in favour of holy Church would never suffer such prescription to be put to the trial of lay-men, lest they should rather strain their consciences for their private benefit, than render the Church the Duties due unto it. Vide supra 2, 5. Feoffment per fait not devested by parol. 12 The Law to prevent suits and troubles, will not permit, Co. l. 3. 26 b. 2. in Butler and Baker's case. that a franktenement shall be lightly devested by bare words in pais, to the end the tenant to the praecipe may be the more certainly known; & therefore if there be Lord and tenant, and the tenant by deed enfeoffs the Lord and a Stranger, and make livery to the stranger in the name of both; In this case, if the Lord by parol disagree to the estate, this is not valid to divest it, or if he enter into the land, and distrain for the services of his Seignory, this shall amount to a disagreement of the feoffment, and shall not divest the franktenement out of him, but if he enter into the land generally and take the profits, this act shall amount to an agreement to the feoffment, as it is adjudged per tot. Cur. in 10 E. 4. 12. For than it is not left uncertain, who are tenants to the praecipe, etc. Attornment, 13 If a reversion of two tenants for life, Co. l. 2. 67. a. 4. in Tookers' case. or the rent or signiory of two jointenants be granted by fine; here, in a Quid juris clamat, Quem redditum reddit, or Per quae servitia against such jointenants, the Law will not permit the one to attorn without his Companion, because the one making attornment without the other may prejudice his companion, as in not claiming to be dispunishable of waste, a Condition to have fee, a future term, or the like; for upon a general attornment in Court of Record, the lessee shall lose all advantages, which are not so claimed of Record. Prisoner's Sheriff. 14 The Law hath so great a regard and care of executions, Co. l. 3. 72. a. 2. in Westhies' case. which are the fruit and life of every suit, that notwithstanding they be matters of Record, and the Letters Patents granted to the new Sheriff, and the writ of discharge, and writ of delivery to the old Sheriff, yet until the prisoners are delivered unto the new Sheriff, they still remain in the custody of the former Sheriff; and all this to prevent a new suit and trouble for the recovery of that, which is already determined by Law. S●ander. 15 It one exhibit articles to justices of Peace against another, Co. l. 4, 14. b. 1. in Cutler & dixon's case. containing great abuses and misdemeanours, not only touching the petitioner, but many others also, and all this to procure him to be bound to the good behaviour; In this case, the party accused for any matter contained in such articles shall not have an action upon the case, because therein the party complainant pursues the ordinary course of justice, and the Law will not permit actions in such cases, lest such as have good cause of complaint should be deterred from doing it, for fear of suits and infinite vexation. Common. 16 In case of Common by reason of vicinage, Co. l. 4. 38. b. 1. in Tirringhams' case. the one may enclose against the other; for he that hath such a Common cannot put his into the land of the other; but the ought to be put into the land where they have Common, and then if the stray into the other land, they are excused of trespass, by reason of the ancient usage, which the Law permits, to prevent suits, which might arise, if actions should be brought for every such trespass, when there is no separation or enclosure betwixt their Commons. Vide Co. l. 7. 5. b. Sir Miles Corbets case. Execution of process. 17 In all cases, when the process concerns the King, Co. l. 5. 92. b. 3. in Semayns case. the Sheriff or other officer, (upon refusal after demand, to open the door) may break open the door of the house, or use other means to get in to do execution; But in case of a common person the Law doth not permit the Sheriff, etc. (upon request made, and denial, as aforesaid) to break into the house of the defendant to execute any process at the suit of any Subject, for the great inconvenience that might ensue thereupon; because if men as well in the night as in the day should have their houses (which indeed are their Castles) broken open, upon pretence thereof great mischief and damage might fall out, for by colour thereof upon any feigned suit the house of any man at any time might b● broken open, when the defendant might be arrested elsewhere, and so men should not be in safety and repose in their own houses: And albeit the Sheriff be an officer of great authority and confidence, yet it appears by experience, that the King's writs are many times executed and served by Bailiffs, who are generally persons of little or no value, and therefore not to be trusted with the breaking open and ransacking of houses upon every slight occasion. See Co. l. 11. 82. a. 4. Lewes' Bowls case. Co. l. 5. 101. b. 3. in Penruddocks case. 18 If a nuisance be levied to the prejudice of another's franktenement, Nusance. the Law doth permit the party grieved to abate the nuisance before he suffer any prejudice thereby, and by that means prevent the damage, before he be prejudiced by it. Per Popham cum tota Curia. Co. l. 5. 115. b. 3. in Fol●ambs case. 19 To prevent any further waste, Waste. Estrepement. a writ of Estrepement lieth in an action of waste at any time, as well before judgement, as after judgement and before execution. Co. l. 6. 51. a. 3. in Boswels case. 20 To prevent Simony, or any thing that might savour thereof, Simony. the plaintiff in a Quare Impedit before the Statute of Westm. 2. cap. 5. did at the Common Law recover no damages; for the Law doth so abhor Simony, that it giveth to the Patron no recompense either for his presentment or for his disturbance thereof. Co. l. 6. 74. b. 2. in Sir Drue Druries' case. 21 In Sir Drue Druries' case in the 6. Report the justices said, Wardship. Knighthood. that it did behoove them to have good consideration in all cases depending before them, nor only of the present case in question, but likewise of the consequences thereof, viz. what general prejudice might happen thereupon either to the King or the Subject: So if a ward should be knighted after the grant of the wardship under the Great Seal, if his knighthood might excuse him from the value of his marriage, when he might be knighted not only by the King, but likewise by his Lieutenants in Ireland or elsewhere, this would tend very much to the damage both of the King and Subject, for none would then purchase any wardship upon such uncertainties; and therefore in that case his knighthood shall not excuse him from the value of his marriage, which was vested in the Lord upon his ancestors death. Co. l. 7. part 1. 18. b. 2. in calvin's case. 22 The Common Law by inhibiting an Alien born to be capable of Inheritance in England, prevents three great inconveniences; Alien. for otherwise, 1. The secrets of the Nation might thereby be discovered, 2. The revenues thereof (being indeed the sinews of war, and the ornament of peace) might be taken and enjoyed by Strangers born, 3. It might at last bring the Nation to ruin and destruction, 1. Tempore belli, for then Strangers might fortify themselves in the heart of the Realm, not much unlike the Trojan horse in Virgil, 2. Tempore Pacis, for they having gotten into their hands a great part of the Inheritance of the Commonwealth, and not being capable to serve of juries, there would be a failer of justice, etc. Co. l. 9 56. b. 2. in the Poulter's case. 23 To prevent mischief and oppression in the Commonwealth, Conspiracy. Conspirators are Inditable by the Common Law▪ albeit they put nothing in execution by any overt act, as if they shall be found guilty of conspiring to indict and acquit any, though they put nothing thereof in ure. Co. l. 9 69. ●. 4. in Mackallyes case. 24 To prevent escapes upon arrests, Arrests. the Law doth not enjoin a Sergeant or Bailif sworn and commonly known (though not by the party arrested) to show his mace or warrant, nor a special Bailif to show his warrant without demand, lest in the mean time the party arrested may escape; but it shall be warning and warrant enough to say, I Arrest you. Things in action. 25 To prevent multiplication of controversies and suits, Co. l. 10. 48. a. 3. in Lampets' case. great oppression of the people, (principally of terretenants) and the subversion of the due and equal execution of justice, the wisdom and policy of the Sages and Founders of our Law have provided, that no possibility, right, title, or thing in action shall be granted or assigned to strangers; and as they cannot be granted by the act of the party, so right of action cannot be transferred by act in Law; as unto the Lord by escheat, neither shall the Lord of a Villain have things in action, as appears in 22 Ass. pl. 37. etc. Co. l. 3. fol. 1. And in the Marquis of Winchester's case Right of action to land was not given to the King by an Act of Attainder: And all this was for the quiet and repose of terretenants: Howbeit, all rights, titles, and actions may by the like prudence and policy of the Law be released to the terretenant, for the same reason of his repose and quiet, and for the avoidance of contentions and suits, and that every one may live in his vocation in peace and plenty. Ecclesiastical live. 26 To preserve Ecclesiastical possessions from alienation in prejudice of the Successor, Co. l. 10. 60. a. 3. in the Bish. of Sarums case. the prudence of the Sages of the Law did provide, that no sole Corporation should be trusted with the disposition of his possessions, as to bind his Successors, but in such case they were to have the consent of others, as the Bishop was to have the consent of his Dean and Chapter, the Abbot of his Covent, the Parson of his Patron and Ordinary, & sic de caeteris. Auditor of the Court of Wards. 27 The Law to prevent any miscarriage in matters of judicature, hath provided, Co. l. 11 4. a. 2. in Auditor Curls case. that no judicial office shall be granted in reversion, and the rule of Law in this point is, Officia Judicialia non concedantur antequam vacent; And the reason is, to prevent a great inconvenience which may ensue thereupon; for that he, who at the time of the grant in reversion may be able and sufficient to supply the office of judicature, and to administer equal justice to the King's Liege people, may, before the office fall, become unable and insufficient to perform it; And therefore the Kings grant of the office of Auditor of the Court of Wards unto John Churchil and john took in reversion after the death of Walter took, and William Curl, was adjudged void, because it was an office of judicature in that Court, and therefore could not be granted in reversion. Error in London. 28 If a man hath judgement given for him in London in the Sheriff's Court, F.N.B. 24. a. or before the Mayor and Sheriffs in the Hustings of London, and the defendant to delay the execution of the judgement, sues a writ of Error to remove the Record before the Mayor, etc. in the Hustings, or before certain Commissioners, if the judgement be given in the Hustings, etc. and afterwards the defendant eloyns his goods goods out of the City, or wastes them, to the intent that the plaintif should not have execution of those goods; In this case, the plaintiff may have a special writ directed to the Mayor and Sheriffs to take order, that so many of the goods of the defendant as amount to the value of that which is recovered, may be safely kept to satisfy the plaintif, if he shall have the judgement affirmed for him, so as execution of the former judgement may be made, etc. of the same goods, etc. Security of the Peace. 29 Before a man can have security of the Peace against another, F.N.B. 79. h. (lest the cause of his complaint may arise rather from malice than any just ground of fear) the party complainant ought first to make oath, that he requires the Peace against the other for the safeguard of his body, and not out of malice; And this course is still used in the K. B. and before justices of Peace; And it was also the usual course in the Chancery to make such oath before a Master of that Court, before he could have it granted; but of later times that course hath been left in Chancery, which Fitzharbert saith is not well done, because such prosecution for the most part proceeds rather from malice, than any just cause of fear. F.N.B. 113 a. 30 The King of right aught to save and defend his Realm as well against the Sea as against Enemies, Oyer & Terminer for Nuisances. that it be not surrounded and laid waste, and to provide remedy for the same, and also to take order that his subjects may have their passage throughout the Realm by bridges and safe ways, etc. And therefore if the banks of the Sea be broken, or the Sewers and drains be not scoured, that the fresh waters may have their direct course, the King for the prevention of such damage as may happen by reason of such defaults, might by the Common Law before any Commissions of Sewers, etc. grant commissions to inquire, hear, and determine such defaults. Pl. Co. 67. a. 2. in Dyve & Maninghams' case. 31 The persons mentioned in the second branch of the Statute of 23 H. 6. 10. (viz. such as were in ward by Condemnation, Bailment. exemption, Capias utlagatum or excommunicatum, surety of the peace, or committed by command of the justices, or Vagabonds refusing to serve) were not bailable by the Common Law (before that Statute) for the Inconveniences which might ensue thereupon. Co. l. 5. 83. b. in the case of Market overt. 32 No sale of stolen goods, but in a Market overt, Market overt. altars the property; And therefore if stolen plate be openly sold (in London or elsewhere in any other market overt) in a Scrivener's shop, that sale altars not the property, because it is no market overt for plate; it is otherwise, if it be openly sold in a Goldsmith's shop; but if the sale be there behind a hanging or Cupboard, or in a warehouse, or other part of the house, and not openly, that passengers may observe it, such sale altars not the property; And this the Law hath ordained to prevent felony, etc. Vide Max. 191. 3. & 134. 14. Co. I●st. pars 1. 6. b. 4. 31 It was resolved in the C. B. Pasc. 10. Feme covert no witness for the Baron. jac. that a wife cannot be produced as a witness, either against or for her husband, and one of the reasons of that resolution was, in respect it might be a cause of implacable discord and dissension betwixt the husband and wife, and a mean of great inconvenience. H b. 36. Druries' case. 32 Drury brought a Quare Impedit against Kent the Incumbent and others; and upon surmise made to the Court, Prohibition. that Kent did fell timber upon the Glebe, and upon the lands of Copyholders, holding of a Manor parcel of the Rectory, the Court granted a Prohibition to prevent further waste. H●b. 62. Pa●row & L●w●llyn. 33 The private 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 quarrelous 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 itself. Co. I st. part 1 13. ●. 1. 1 A Protection Moraturae or Profecturae have these clauses in them, Protection. Praesentibus minimè valituris, si contingat ipsum, etc. 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 war, 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 war, Moratur (he doth stay) according to the intention of the Protection and Statute aforesaid. Annuity. 2 If A. be seized of lands, Co. ibid. 144. b. 2. and he and B. grant a rend charge to one in fee, this prima fancy 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. judgement. 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken, etc. 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 plaintiff; In this case, albeit the issue was found against Tilly, yet the plaintif had not judgement against him; for it was found betwixt the plaintiff and Woody that the plaintif had not title; and then in as much as it appeared to the judges 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 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, etc. and for so much arrear he took the ; the plaintif saith, there is nothing arrear, etc. and hereupon they were at issue, and it was found for the plaintiff; 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 lieth not, Marbr. 3. for the Statute saith, Non ideo puniatur dominus, etc. 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 f●ctū. 6 In debt upon an obligation, Pl. Co. 66. b. 4. if the defendant conclude his plea with judgement si action, whereas his plea should have been non est factum, yet if the justices 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. ● of Attaints lieth 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 rigour of the Common Law shall be taken by equity, and the words against the party that hath judgement are superfluous, for it lies 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 St●nhop & Blithe's 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 justice 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 james & 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 refer, 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, unless it be parcel of a Mansion-house, or full of Corn; And in this and the like 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 john 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 john Molyns, and his heirs, Tenendum de nobis haeredibus, & successoribus nostris, et aliis capitalibus dominis feodi illius per servitia inde debita & de jure 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 ways, viz. either immediately of the King, or mediately by the Mesne, reason requires, that the words should be understood in the milder sense, especially when that appears to be the King's 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 only 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 rend 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 King's 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, etc.) so if I have a Park by the licence 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, etc. Remainder vests. 8 If land be granted to A. for life, the remainder to B. for life, Pl. Co. 32. a. 2. in Colthrist & Beinsh●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 fancy do seem to import, but they shall have a beneficial construction, viz. that then it shall remain, as a remainder ought to do, 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 do such an act, that then the land shall remain to his right heirs, this word than 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 judges 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, unless 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. Bonun. 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. jurors. 7 By the Common Law in a plea real, mixed, 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 sufficeth; And in an Attaint albeit the jury is double, yet the Hundreders are not double. Fee-simple. 8 When a man is said to be seized 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 seized in fee tail, unless this addition be put to it, fee tail; for fee 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. etc. in tres parts divisas, this shall not be intended to be in common; but if the verdict be in tres parts dividendas, than it seems that they are tenants in Common by the Intendment of the verdict. Co. ibid. 226. a. 1. 10 The Lord by escheat, albeit his estate is created by Law, Pleading a condition. Lord. Tenant by courtesy. shall not plead a condition to defeat a fréehold without showing of it, because the deed doth belong unto him, and therefore it is presumed that he hath it in his custody: So likewise a Tenant by the Courtesy shall not plead a condition made by his wife, and a reentry for a condition broken, without showing the deed; for albeit his estate he created by Law, yet the Law doth presume, that he had the possession of the deeds and evidences belonging to his wife. Co. ibid. 237. b. 3. 11 One of the reasons why a descent taketh away the entry of him that right hath, is, Descent a toll entry. for that the heir of the disseisor cannot suddenly (by intendment of Law) know the true state of his title: And in regard many advantages follow the possession and tenant, the Law taketh away the entry of him, that would not enter (when he might) upon the Ancestor, (who is presumed to know his title) and driveth him to his action against the heir, who (by intendment) may be ignorant thereof. Co. ibid. 238. b. 4. 12 At the Common Law, Writ of right. if Lands were conveyed out of the degrees, the demandant was driven to his writ of right; for that in regard of such long possession in so many men's hands (which the Law doth ever respect and favour) the Law did presume, that the present tenant had best right to the Land: But this is now altered by the Statute of Marlebr. cap. 29. which gives a writ of entry in the Post in that case. 13 Max. 22, 31. Littl. §. 440. Co. 261. 14 If a descent be cast when the disseisée is out of the Realm, Descent out of the Realm. albeit he be not there in the King's service, that descent shall not take away the entry of him that right hath; because he that is out of the Realm cannot, by intendment of Law, have conusance of the disseisin, no more than a thing done out of the Realm can be tried within the Realm by a jury of 12 men; but it is otherwise, if such disseisee were within the Realm at the time of the disseisin, or the descent cast. Co. ibid. 194. b. 4. 15 In a writ of right or an Appeal, when the tenant or appellee failed of witnesses, evidences, or other proofs, Battle. the Law did institute trial by Battle, because the presumption of Law is, that God will give victory to him that hath right. Co. ibid. 344. b. 1. 16 At the Common Law, if the Church were once full, Plenarty. the Incumbent could not be removed, and plenarty generally was a good plea in a Quare Impedit, or Assize of Darrein presentment, and one of the reasons hereof was, for that the Law intended, that the Bishop who had Cure of souls within his diocese, would admit and institute an able man for the discharge of his duty and his own, and that the Bishop would do right to every Patron within his diocese: besides, Institution is a judicial act, and in nature of a judgement, and therefore intended to be just. Co. ibid. a. 4. Co. ibid. 294. a. 3. 17 The four Knights Electors of the grand Assize are not to be challenged, for that in Law they be judges to that purpose, Challenge. and judges and justices cannot be challenged, because they are intended by Law to do right: And for the same reason it is, that Noblemen, who in case of High Treason are to pass upon a Peer of the Realm, cannot be challenged, because they are judges of the fact; and therefore (by intendment of Law) will give a righteous judgement, Res judicata pro veritate accipitur. Co. ibid. 373. a. 4. 18 If rend be behind for 20 years, No averment against presumption in Law. and the Lord make an acquittance for the last that is due, all the rest are presumed to be paid, and the Law will admit no proof against this presumption: So if a man be within the four Seas, and his wife hath a Child, the Law presumeth, that it is the child of the husband, and against this presumption the Law will admit no proof: If a man that is innocent be accused of felony, and for fear flieth for the same, albeit he judicially acquitteth himself of the felony; yet if it be found that he fled for the felony, he shall, notwithstanding his innocency, forfeit all his goods and chattels, debts and duties: for as to the forfeiture of them the Law will admit no proof against the presumption in Law grounded upon his flight. Vide 79. 1. War anty. 19 In a feoffment by deed, Co. ibid. 383. b. 2. albeit in the clause of warranty it be not mentioned to whom, etc. yet it shall be intended to the feoffee. Titles. 30 A Layman may prescribe in modo decimandi, Co. l. 2. 44. a. 4. in the Bp. of Winchester's case, & Co. ibid. 45. a. 1. but not in non decimando, because a Layman is but in some special cases capable of Tithes at the Common Law, and therefore without special matter showed, it will not be intended, that he hath any lawful discharge: Vide 2, 5. Limitation of uses. 21 If baron and feme levy a fine of land, Co l. 2. 57 a. 4. in Beckwiths' case. whereof they are seized in right of the feme, and the baron only declare the use of the fine, this declaration shall bind the feme, if her disassent appear not; for when she joins with the baron in the fine, it shall be intended (if the contrary appear not) that she joined also with him in agreement for the declaration of the uses of the fine: So if baron and feme sell the land of the feme to another for money by paroll, and after levy a fine to the vendee and his heirs, this shall bind the feme without any writing proving her assent. Vide plus ibid. & Dyer 290. pl. 61. Attornment. 22 If the reversioner oust his lessée for life, Co. l. 2. 68 b. 2. in Tookers' case. and make feoffment in fee, and the lessee re-enter, this is a good attornment, and yet peradventure he had not notice of the feoffment which was made of the land, and without notice the attornment is not valid; Howbeit, in regard it is intended by Law, that the lessee cannot be mis-conusant of such feoffments as are made of the land, the Law (in such case) doth imply notice. Limitation. 23 By the Statute of 32 H. 8. cap. 2. of Limitations, Co. l. 4. 10. b 4. in Bevils' case. in an Avowry or Conusance for rent, suit or services, the seisin shall be within 40 years before such Avowry or conusance; Howbeit, that Act shall not extend to such rent or service, as by common possibility may not happen or become due within 40 years; as if the signiory consists of homage and fealty only, in this case the tenant may live 40 years after they are made: In like manner if the service be to cover the Hall of the Lord, or to march with him when there shall be war betwixt the King and any of his enemies, such casual services, as by common possibility cannot happen within 40 years, are not within that act: There is the same Law also of a Formedon in descender, for the tenant in tail may live 50 years after the discontinuance; And therefore in Fitz williams case in 10 & 11 Eliz. it was adjudged, Dyer 278. pl. 2. that Formedons in descender were not within the Statute for the common possibility aforesaid. Vide plus ibid. Sale by the Sheriff 24 The Sheriff reciting, Co. l. 4. 74. a. 3. Palmer's case. that A. had a lease of a Parsonage pro termino diversorum annorum extunc venture. sold it by force of a Fieri facias to another; and this sale was adjudged good, because by common intendment the Sheriff cannot have precise knowledge of the commencement and end of the term: The Law is otherwise in case of an Inquisition, because a term cannot be extended without showing the beginning and ending thereof, to the end that the debtor may have the residue of the term, when the debt is satisfied, etc. Co. l. 4. 77. b. 2. in the case of Corporations. 25 Albeit a Corporation have a commencement by Charter, Corporations. and (by consequence) within memory, & it be expressed in their Charter that the choice of their Mayor, Bailiffs, and other principal Officers shall be by the Commonalty, yet if by a long usage they have chosen them by a select number of the principal of the Commonalty or of the Burgesses, although no such constitution can be showed to warrant such election, yet (to avoid popular confusion) such election is adjudged good in Law, because it is presumed and intended, that such special election (which could not commence without common assent) was formerly made and agreed upon. Vide infra 192. 2. Co. l. 5. 12. a. in Sanders case. 26 If a man hath land, in part whereof there is a Cole-mine open, Cole-mine. and he deviseth the land to one for life, or for years, the lessee may dig in the mine; for in as much as the mine is open at the time of the lease made, and he demiseth all the land, it shall be intended, that his intent is here general, as his demise is, viz. that the lessee shall take profit of all the land, and (consequently) of the mine within it: Vide 17 E. 3. 7. And so the doubt in F. N. B. 149 c. well explained. Co. l. 5. 96. b. 4. in Goodals' case. 27 A. seized of lands in fee by deed indented and enroled covenants with B. that if B. shall pay to A. his heirs or assigns 100 l. such a day at such a place, Assignee in Law, and in fact. Diversity. that then A. and his heirs will stand seized of the land, to the use of B. and his heirs; before the day of payment A. having issue a son makes his will in writing, and his wife executrix thereof, and dies, the wife renounceth the executorship, and then takes administration: In this case, this word Assigns shall be only intended of the assigns of the estate of A. for he hath an estate in him assignable, and the Law will never seek an assignee in Law, when there may be an assignee in fact: but if A. had made a feoffment in fee, upon condition that the feoffee shall pay the money to the feoffor, his heirs or assigns, etc. there because he hath departed with his whole estate in fee, and hath but a naked condition, which cannot be assigned over, the Law, which never rejects any word, if by any reasonable construction it may take effect, will make construction what person shall be most apt (as his assignee in Law) to receive the money, and these the Law adjudgeth to be his executors, because they represent the person of the testator for all goods and chattels, and in such case the feoffor cannot have any assignee in fact. Vide 27 H. 8. 2. a. Co. l. 5. 97. a. 4. in Goodals' case. 28 In a special verdict all other matters shall be intended and supplied, but only that, Verdict special. which the jurors have referred to the consideration of the Court, as it was adjudged in 30 & 31 Eliz. in B. R. inter Scovel & Cabel: and therefore in Goodales' case in the Fifth Report, albeit no title was there found for the defendant, but was as a mere stranger, yet the Court never doubted thereof, but by intendment took it for granted, and took only into their consideration that, whereof the jurors made doubt, viz. whether the payment there were a good performance of the Condition. Co. l. 5. 105. Aldens case. 29 In an Ejectione firmae at the Common Law Ancient Demesn is a good plea to the jurisdiction of the Court, Ancient demesn. because by common intendment the title and right of the Land will thereby come in debate, and the plaintif shall recover the possession of the land, and have execution by habere facias possessionem; so also in Replevin, writ of Mesn, writ of Ward in account against Guardian in Socage, etc. Ancient demesn is a good plea for the appearance, and common intendment, that the realty will come in debate; the like Law is also in account against a Bailif, because it is brought for the issues of the land, which is ancient demesn; and therefore aught to be brought and determined in the Court of ancient demesn, and not elsewhere, etc. Co. l. 6. 16. a. Colliers case. 30 By intendment of Law a devise shall be for the benefit of the Devise. devisee, and not to his prejudice, as if land of the value of 3 l per annum be devised to A. and that A. shall pay out of it 50 s. per annum, in this case A. hath but an estate for life, for he may pay it out of the profits of the land, and is sure to be at no loss; but if it be devised to B. for life, the remainder to A. paying 50 s. per annum out of it; In this case, A. hath fee simple, because after the payment thereof A. may die before he can receive satisfaction for the same out of the profits of the land; and therefore such a devise shall be fee simple, because the Law intends that the devise was intended for his benefit, and not for his prejudice. Error in popular actions. 31 B. brings a plaint in the Court of Ludlow (which is a Court of Record) against C. tam pro Domina Regina quam pro seipso, Co. l. 6. 19 b. Gregory's case. upon the Statute of 4 & 5. Ph. & M. cap. 5. for exercising the trade of a woollen-weaver without having served seven years as an Apprentice, etc. and had judgement, etc. hereupon C. brings a writ of Error, etc. and for one of the Errors assigns, that albeit Ludlow be a Court of Record, yet it is not such a Court as is intended by the Statute for causes of that nature; for that the ancient usage in all such popular actions or informations hath been, that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information, yet if the defendant pleads a special plea, the Queen's Attorney shall reply alone, and it was intended by the makers of the said Act, that the suit should be in such a Court, where the King's Attorney may attend, for the benefit which the King may have by such a suit, and that is in the four Courts at Westminster; And thereupon the judgement was reversed. Vide Dyer 236. 24. Admission and Institution. 32 He that comes in by Admission and institution, Co. l. 6. 49. b. 1. in Boswels case. comes in by a judicial act, and the Law presumes that the Bishop, who hath the cure of the Souls of all within his diocese, for which he shall answer at his fearful and final account (in respect whereof he ought to defend them from all Schismatics, Heretics, and other Instruments of the devil) will not do, or assent to any wrong to be done to any Parsonage within his diocese, but if the Church be litigious, will inform himself of the truth de jure Patronatus, and so do right. Peer ag●. 33 The person of a Peer of the Realm, or a Countess, Baroness, Co. l. 6. 52. b. 3. in the Countess of Rutland's case. etc. by marriage or descent, ought not to be arrested for debt or trespass; because the Law presumes, that they have sufficient in lands and tenements, whereby they may be distrained; and therefore in such cases issues only shall go out against their lands: And albeit a Countess, Baroness, etc. in respect of her sex, cannot sit in Parliament, yet she is a Peer of the Realm, and shall be tried by her Peers, as appears by the Statute of 20 H. 6. cap. 9 which is but a declaration of the Common Law. Vide plus ibidem. Cestuy que use. 34 If Cestuy que use had granted his use by his will, Co. l. 6. 76. a. 3. in Sir Geo. Cursons case. no collusion could have been averred upon such a will to obtain the wardship of his heir; for Nemo prae●umitur esse immemor suae aeternae salutis, et maxime in articulo mortis. et omne testamentum morte consummatum est: And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use, makes exception, when any will is by him declared. Vide 27 H. 8. 14. Divorce. 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis mino●is et impubertatis Eliz. after they had lived ten years together, and had issue a daughter; Co. l. 7. 43. b. Kennes case. and afterwards Ch. marrying another woman, by another Sentence in the Ecclesiastical Court the first marriage was declared void, the second good, and liberty given them ad exequenda conjugalia obsequia; The second wife dies, and Ch. marries a third wife, and hath issue another daughter; The last daughter is found heir by office, the first traverseth the office by bill in the Court of Wards: And in this case it was resolved, that albeit the first was in truth a lawful marriage, yet the Sentence of divorce being in force, no averment could be admitted against it, because the Spiritual judge having jurisdiction thereof, before the Sentence were repealed, it was intended by Law to be Just, and our Law gave credence thereunto: for, Res Judicata pro veritate accipitur. See Dyer 13. pl. 62. Co. l 9 52. b. 4 in Hickmols' case. 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor, Release of bonds. this (by intendment of Law) is a release or discharge of all bonds betwixt them; for albeit the word discharge is not properly said of the part of the Obligee, but of the Obligor, (for the Obligor is to be discharged,) yet (in judgement of Law) such an acknowledgement amounts to a discharge of the Obligor of all such duties. Co. l. 9 109. Meriel Treshams' case. 37 In debt against an executor he cannot plead quod ipse non habet, etc. aliqua bona, etc. praeter bona, Plea of Executor. etc. quae non sufficiunt ad satisfacienda debita praedicta; but he ought to plead, quod non habet, etc. bona, etc. praeterquam bona & catalla ad valentiam of a certain sum, & non ultra, quae eisdem debitis obligata & onerabilia existunt; for the first plea is insufficient for the uncertainty (vide Max. 162. pl. 61.) and the other he ought to plead, because he being privy and representing the person of the testator, hath (by intendment of Law) notice of the certainty and certain value of the goods, and therefore in such case ought to plead certainly, as aforesaid; The like Law is of an administrator for the goods of the Intestate. Co. l. 11 13. a. 1. in Priddle and Napp●rs case. 38 Of Impropriations formerly given to Monasteries, Appropriations. not only those which were truly Impropriate, but likewise such as had been and were so in reputation, were given to H. 8. by the intendment of the Statutes of Dissolution; for albeit in those Statutes there is a saving of rights, yet the Founders, Donors, etc. are excepted out of that Saving, so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G an●s case. 39 A Prescription, Tites. that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly, instead of Tithes, is a good prescription; because (by intendment of Law) the commencement thereof might be lawful, for it might be so by composition for the land before the houses were built. 40 It is a Principle in Law, that a bar is good, if it be certain, Plea in bar to a common intent good. to a common intent; Pl. Co. 28. a. 4. Colchrist & Bernshin. Vide ibid. 31. a. & 33 a. 4. & ●6. a. 3. as if a Message be demised to A. for life, the remainder to B. for life, si ipse B. vellet inhabitare in messuagio praedicto, etc. Here, in an Action brought by the lessor for the recovery of the Message, etc. upon the condition broken, it is a good bar for B. to say, that after the death of A. he entered, without averring the time of his entry, viz. immediately after the death of A. because (by intendment of Law) it will be presumed he did so enter: So if one plead in bar, that A. died seized, and that B. entered, as son and heir to A. this is a good bar, and yet it may be that he was not his heir, for it is not expressly said, that he is his son and heir, but that he entered as son and heir, and yet in regard he pleads by way of bar, the best shall be intended for the defendant. In like manner in 27 Ass. pl. 31. Tit. Bar 303. & Br Assize 272. In an assize brought by the heir, the tenant saith, that the father of the plaintif being tenant by the Courtesy, and yet in life, let his estate to the ancestor of the tenant, who died seized of that estate, after whose death the tenant was in as son and heir, and demands judgement si Assize, etc. And this was held a good bar, And yet he saith not, that he was the first that entered after the death of his Father, and if he were not the first, he hath no title, for the land in such case Occupanti conceditur, viz. to him that first enters, and that might be the plaintif: but yet the bar was held good, because to a common intent it shall be taken, that the tenant was the first that entered after the death of the father, and if it were not so, the plaintif may and aught to show it. Vide plus ibid. & infra 195. 27. Capias pro fine. 41 If a man be condemned in trespass, F.N.B. 121. 1. or in debt upon an obligation (where he denies his deed) at the suit of the party, and after he is taken by Capias pro fine within the year at the King's suit, and committed to the Gaol, if the Gaoler suffer him to escape, the party shall have an action of debt for this condemnation against the Gaoler, and yet he was not committed to him at his suit, but at the suit of the King; Howbeit the King's suit shall serve the party in this case, because the King was entitled to the fine by the party: but it is otherwise after the year, for than it will be intended, that the party hath accorded with him that was condemned; And therefore after the year he shall be put to sue a Scire facias upon that judgement. Vide Max. 63. pl. 4. Executor. Heir. Assets. 42 In debt against an Executor the plaintif need not count, Co. l. 9 94. a 3. in Will. Banes case. that the executor hath assets; for it will be intended prima fancy, that he hath assets; So likewise in debt against the heir, the plaintif shall never aver in his Count, that he hath assets; for the Law presumes it prima fancy; because the Law presumes, that the testator or ancestor will not leave a greater charge upon the executors or heir, than he leaves benefit to discharge it. Perpetuities. 43 In the Argument against perpetuities in Corbets case, Co. l. 1. 87. b. 4. in Corbets case. it was said by Glanvile justice, that betwixt the making of the Statute of 13 E. 1. de donis, and the Statute of 27 H. 8. of Uses, such a proviso annexed to an estate tail, that it should cease as if the tenant in tail were dead, was never seen or heard of, and therefore he concluded, that it could not be done by Law: Little. f. 23. And so likewise concludes Littleton in the like case, that if any action might have been brought upon the Statute of Merton, cap. 6. De dominis, qui maritaverint illos, etc. si parentes conquerentur, etc. it shall be intended, that at some time or other, it would have been put in ure; And therefore he saith, that no action can be brought upon that Statute, in as much as it was never seen or heard, that any action was ever taken thereupon. Attaint. 44 By intendment of Law a verdict is true, Dyer 212. 34. 4 El. and therefore the Law will admit of no new proof to defeat it: for albeit, where the defendants in an attaint give new matter in evidence to enforce the first verdict, as they may, the plaintif shall be admitted to disprove it; yet the plaintif shall never be suffered to produce any new matter in evidence, nor enforce the first by other matter afterwards discovered. Devise. Tenure. 45 A man entitles himself as devisee of the whole land by the Statute of the 32 H. 8. of wills, and albeit he shown not the tenure, Dyer 329. 16. 16 Eliz. it was ajudged well enough, for that it ought to come on the other part, and prima fancy it shall be intended Socage, because most part of the land is so holden. 190 Stabit praesumptio donec probetur in Contrarium. Co. Inst. p●rs 1. 222. b. 3. 34 Ass. pl. 1. 1 If an agreement be made between two, Condition. that the one shall enfeoff the other upon condition in surety of the payment of certain money, and after the livery is made to him and his heirs generally, the estate is bolden by some to be upon condition, for that the intent of the parties did not appear to be changed, but to continue at the time of the livery. Co. ibid. 227. b. 1 Dyer 81. 2 An issue found by verdict shall always be intended true, Attaint. until it be reversed by Attaint, and for that reason upon an Attaint no supersedeas is grantable by Law. Plow. 49. b. Co. ibid. 310. b. 4. 3 If a man plead a feoffment of a Manor, Attornment. he need not plead an Attornment of the tenants, for it will be intended that the tenants did attorn; But (if it be material) it must be denied or pleaded of the other side. Co. ibid. 361. a. 3. 4 The issue of tenant in tail may falsify a recovery had against tenant in tail by default, nihil dicit, confession, or demurrer; Falsifying of a recovery, but if the recovery passed upon an issue tried by verdict, he shall never falsify in the point tried, because an attaint might be had against the jurors, and albeit all the jurors be dead, so as the attaint do fail, yet the issue in tail shall not falsify in the point tried; because, until it be lawfully avoided, pro veritate accipitur: As if the tenant in tail be impleaded in a Formedon, and he traverseth the gift, and it is tried against him, and thereupon the demandant recovers; In this case, the issue in tail shall not falsify in the point tried, but he may falsify the recovery by any other matter; as that the tenant in tail might have pleaded a collateral warranty, Littl. §. 688. or a release, as Littl. putteth the case, or to confess and avoid the point tried. Co. l. 4. 71. ●. 4. Hinds case. 5 A. seized of land in fee, demiseth to B. for years, Fine. Deed enrolled. and after by deed indented before Easter Term in 29 Eliz. bargains and sells the land to C. and the same Term levies a fine to C. and his heirs, and afterwards in the same Term also the deed is enrolled, A. commits waste, for which C. brings his action, whereunto A. pleads that C. was in by the fine, and not by the deed enrolled, and that he never attorned: upon which plea C. demurs: In this case, although it was objected, that it shall be intended by Law, that the deed was enroled 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 enrolled, but generally Term Pasch. and therefore it shall be intended to be enroled 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 enroled 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 enrolment 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 King's Ecclesiastical Law. 6 In the cause against Cawdry, being deprived by the High Commission Court for preaching against the Common Prayer-book, H●gh Commission. it was objected, that the Commissioners were not nominated and appointed according to the Act of 1 Eliz. 1. because the jurisdiction 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 Queen having only a power given by force of that Act, the nomination not pursuing the authority given unto her, was utterly void, etc. But to this it was answered and resolved, that they who were Commissioners, and had places of judicature over the King's 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 agrees Littl. fol. 22. yet this presumption of Law gives place to a judgement and proof to the contrary, according to the Maxim, Stabitur praesumptioni donec probetur in contrarium: And therefore when the King, who is the Sovereign and supreme judge of Chivalry, 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 marriage, etc. 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, etc. 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, etc. and therefore if the arbitrement were not made of all the matters in controversy, 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 showed and alleged by the other party. U●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, etc. 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. etc. and pleads also the Statute of 32 H. 8. which revives the privileges of Abbeys, and that the King granted a Manor parcel of the Abbey, and tot, talia, et tanta privilegia, etc. 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, etc. 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 showed, etc. so the word Fee shall be intended fee simple, and not fee tail, unless it be so expressed. Vide supra, Max. 189. pl. 8. 11 If the principal in felony be attainted erroneously, either by error in process, No accessary where no principal. or because the Principal being out of the Realm, Co. l. 9 119. a. 4. in the L. Sanchars' case. etc. was outlawed, or for that he was in prison at the time of the outlawry, etc. yet the accessary shall be attainted; for the attainder against the principal stands in force, until it be reversed, and with this agrees 2 R. 3. f. 12. And in the 18 E. 4. 9 The principal was erroneously outlawed for felony, and the Accessary 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 accessary 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 accessary, which depended upon the attainder of the principal, is ipso facto utterly defeated and annulled: And this notably appears in an ancient book in the time of E. 1. Tit. Mordancester 46. The case was this, A. was indicted of felony, and B. of the receipt of A. A. essoignes himself and is outlawed, B. was taken, and putting himself upon the Inquest was found guilty, whereupon B. was attainted and hanged, and the Lord entered as in his escheat, and after A. came and reversed the outlawry, and pleading to the felony was found not guilty, and thereupon was acquit, whereupon the heir brings a Mordancester against the Lord by escheat, who comes and shows all this matter, and it was demurred in judgement thereupon, whereupon it was awarded, that the heir of B. should recover seisin of the land; for if B. had been then alive, he should have gone quit by the acquittal of A. because he could not be a Receiver of a fellow, when A. was no fellow. Vide plus ubi supra. F. N. B. 45. d. 10 The writ of Indicavit shall not mention, Tithes. that the tithes and offerings, which are in suit, amount to the fourth part of the Church, but decimas provenientes de centum acris, or of such a Manor, and if those Tithes be not of the value of the fourth part of the Advowson, the other party may surmise it, and pray Consultation; for the Law presumes, that the plaintif would not bring an Indicavit, if the Tithes were not of that value, until the defendant allege something to the contrary. Plow. 64. a. 3. 11 The return of a Sheriff, whether it be right or wrong, Return. is presumed by Law to be good, and shall stand in force, until it be reversed by error. Plow. 77. a. 2. 12 Upon suggestion of consanguinity in the wife of the Sheriff, Assize directed to the Coroners. and the wife of the plaintiff, an Assize was directed to the Coroners, and an exception was taken to the suggestion, for that it was not showed that they were of the whole blood; but the Court held, that it should be intended they were of the whole blood, until the contrary were showed on the other part. Co. Inst. part 1. 295. a. 1. 13 Wager of Law lieth not, Wager of Law. when there is a specialty or deed to charge the defendant, but when it groweth by word, so as he may pay or satisfy the party in secret, whereof the defendant, having no testimony of witnesses, may wage his Law, and thereby the plaintif is perpetually barred, (as Littl. saith §. 514.) for the Law presumeth, that no man will forswear himself for any worldly thing. Co. l. 5. 98 a. Buries case. 14 The husband and wife were divorced Causa frigiditatis in the husband, he marries again and hath issue, this issue is legitimate; Divorce. for the first marriage was dissolved from the Matrimonial bond, and albeit the second marriage be admitted voidable, yet it stands good, till it be avoided. Dyer 179. 42. 2. Eliz. 15 A man arraigned of homicide pleads not guilty, Bail. and is found guilty, but for the difficulty of the Clergy in the case, he was reprieved before judgement, and it was moved to the justices, whether or no he were bailable in the mean time; And it was held he was not, because he was more than a vehemently suspected person, being convicted of the offence: It had been otherwise if he had not been convicted; for by presumption of Law before conviction he shall not be deemed guilty before he be so found upon his trial, and the meaning of the Law in Bails is, quod stat indifferenter, whether he be guilty or not. Dower. 16 In 2 Eliz. a woman sued for her Dower, Dyer 185. 65. 2. Eliz. and being put to prove her husband's death, she did it by two witnesses (whereof one was his brother) viz that being a Minister in 1. Mar. he fled for religion into Germany, and that by Merchants and other Englishmen, who used to travel and trade in those parts, they could never learn any tidings of his life, and therefore they did in their consciences rather think him dead than alive; And this proof was adjudged sufficient for the recovery of her Dower. Fine reversed. 17 Cheney levies a fine, and after brings error to reverse it, Dyer 201. 63. 3. Eliz. and assigns nonage, and hath a Scire facias against the Conisee, and upon two Nihils the Court proceeds, and by witnesses and inspection reverse the fine: Cheney sells the land to others, upon whom the first Conisee enters, and the Vendees bring a writ of entry sur disseisin, and against the former judgement the tenant gives in evidence an exemplification of the examination of witnesses in Chancery, proving the full age, and albeit it seemed to the Court not available against the judgement, yet the verdict passed with that testimony, and afterwards was affirmed in attaint. Office. Tenure. 18 Upon a Commission in nature of a Diem clausit extremum a tenure in Socage is found of the Queen, Dyer 248. 81. 8. Eliz. as of her Barony of S. Afterwards a second Commission finds Knight-service tenure, as of the said Barony; After that a third Commission issues reciting, Quod compertum est per inquisitionem capt. post mortem A. tempore H. 5. that the said land was holden of the King in Knight-service in Capite, whereupon Knight-service in Capite is returned, prout per dictum Inquisitionem tempore H. 5. liquet: And in this case, it was held, that the heir need not traverse the two last Inquisitions, because they were without warrant, but that the first office (although against the Queen) shall be allowed, until disproved by Scire facias, which shall issue out of the Record tempore H. 5. according to the Statute de Eschaetoribus, 29 E. 1. Leases g●od. 19 The Dean of Wells was deprived by the Bishop for having two dignities in the same Church, Dyer 273. 35. 10. El. but he being afterwards restored by a Commission of Delegates, made divers demises, which were confirmed by the Bishop and Chapter, and after that he was again removed by another Commission of Delegates; yet the demises, which he made while he was Dean, were adjudged good. Devise. 20 Lessee for years deviseth his term to his executor for life, Dyer 277. 59 10. El. the remainder to A. and dies, the executor enters, and makes executor and dies, the executor of executor enters, and takes the profits for a year, and he in remainder brings account for the profits; And it was held, it lay not, 1. for want of privity, 2. the remainder of the term was void, (Howbeit Weston, Welsh, and Harper, held it might be good by devise, though void by estate executed) 3. for that the executor had not declared to have the term as devisee, or as executor, and it shall be intended as executors, until the contrary be showed. Debt against the heir. 21 In debt against the executor of the heir, Dyer 344. 1. 18. Eliz. there need no averment that assets descended to him, for it is so intended, unless the contrary be showed. Hob. 78. Saint-Iohn & Saint-Iohn. 22 In debt by Saint-John against Saint-John, Bailiff of Stockbridge, upon the Statute of 23 H. 6. 15. for not returning him Burgess of that Town to the then intended Parliament: And where the Statute saith, that the Sheriff shall send his precept to the Mayor, and if there be no Mayor, then to the Bailif, the plaintif declared, that the Sheriff had made his precept to the Bailif, without averring that there was no Mayor; And after a verdict for the plaintiff this was moved in arrest of judgement: But the Court was of opinion clearly, that it shall be presumed there was no Mayor, except it be showed, and if there were, it ought to be showed on the other part. 191 Ad ea quae frequentius accidunt, Jura adaptantur. Co. Inst. part l. 238. a. 2. 1 It is said, Descent a Toll entry. that Abators and Intruders are out of the Statute of 32 H. 8. cap. 33. which gives the disseisee five years to prevent a descent, etc. because that Statute is penal, and extends only to a disseisor, who is only named in it; And the reason why he only was therein named, and not the Abator or Intrudor, was, because disseisin was the most common mischief; Et ad ea quae frequentius accidunt, etc. Co. ibid. 295. a. 1. 2 In times past wager of Law was accounted a good trial in an action of debt without specialty, because the Law presumed, Wager of Law that no man would forswear himself for any worldly thing; But of later times men's Consciences are grown so large (especially in this case passing with impunity) that the plaintiff now dare not (many times) adventure the debt upon the defendants oath by bringing an action of debt, but rather chooseth to bring an action upon the case upon his promise, wherein he cannot wage his Law. Co. l. 5. 83. b. in the case of Market overt. Popham 84. 11. 3 The proper and most usual place for selling plate in London or any other Market overt is a Goldsmith's shop, Market overt. because such commodities use to be sold there, and not in a Scrivener's shop, or the like; And therefore if stolen Plate be sold in a Scrivener's shop (although it be openly, and upon the market day) it shall not alter the property, but the party shall have restitution; It is otherwise if it be sold openly in a Goldsmith's Shop. etc. Vide Max. 186. pl. 32. & 134. 4. Co. l. 5. 127. b. 1. Palmer's case. 4 Guardian in Knight-service shall have the single value of the marriage without tender; Valour maritagii. And yet the words of the writ de valour maritagii are, Quare cum Maritagium praed. B. ad ipsum A. pertineat, eo quod praed. B. terram suam de eo tenuit per servitium militare, & idem A. praed. B. dum fuit infra aetatem, etc. compotens maritagium absque disparagatione, etc. saepius obtulerit, etc. But the reason thereof is, for that writs are most commonly framed according to that which doth most usually fall out, always (in this case) supposing, that a tender is made, because for the most part it so happens to be; And therefore whereas the Rule is, Ad ea quae frequentius accidunt, jura adaptantur, it may in like manner be said, Ad ea quae frequentius accidunt, rescripta sive brevia adaptantur; And in other cases a special case shall have an usual writ, and a special Count Co. l. 6 45. l. 3 in Higgins case. 5 In 17 E. 3. 24. In debt upon an obligation of 20 l. judgement was obtained before the Mayor of Newcastle, Obligation not to be canceled after Judgement. and execution had thereupon, and because the obligation was not canceled (which after judgement had was the usual course in those days) the plaintiff had judgement in another action upon the same obligation, and the defendant upon pleading the first judgement could not be relieved, because it was imputed to his folly, that he did not procure the obligation to be canceled upon the first judgement which was the ordinary usage of the judges at and about that time, because men in ancient time after a judgement obtained were apt to be quiet, and to rest contented therewith, without bringing writs of Error, or Attaints, which then were very rare, especially writs of Error: But now of later time men growing more contentious, and not satisfied with any trial or judgement, but being apt upon every such trial or judgement to bring a writ of Error or Attaint, the judges have thought it dangerous to order the deed to be canceled, either where the plaintif recovers, or where he is barred by judgement; for in both cases the judgement may be reversed by Error or Attaint: And therefore the reason or cause of the judgement in 17 E. 3. being now changed, there is now no question, but at this day judgement and execution upon an obligation is a good bar in a new action thereupon, albeit the obligation be not canceled. Statute of wills. 6 If there be Grandfather, Father, and divers Sons, Co. l. 6. 77. a. 2. in Sir Geo. Cursons case. and the Grandfather in the life of the Father convey his lands to any of the Sons, this is out of the Statute of 32 H. 8. 1. of Wills; for the words of the Statute are, for the advancement of his wife, preferment of his children, etc. and therefore because the Father's children are none of the Grandfather's children, such a conveyance is out of that Statute; But the makers of that Act framed it according to that which was most vulgar and usual, and that was for the father to dispose to his children, and Ad ea quae frequentius accidunt, etc. Presentation. 7 If a man present to an Advowson, and after the Parson resigns, F.N.B. 31. h. or is deposed, and the Patron presents again, and is disturbed, he shall have an Assize of Darrein presentment, and the form of the writ shall be, Quis Advocatus tempore pacis praesentavit ultimam personam, quae mortua est ad ecclesiam, etc. Albeit he resigned, and is in full life: Also the form of the writ is to suppose that the defendant did deforce him out of the Advowson, and yet by his Count he shall declare, that he or his ancestor presented last to the Advowson, by which he supposeth, that he is in possession of the Advowson, and yet this good; for ad ea quae frequentius accidunt, etc. Nomination. 8 If a man hath the nomination to an Advowson, F.N.B. 33. b. c. and another hath the presentation, if he name his Clerk, and he that ought to present, present another Clerk, he that had the nomination shall have a Quare impedit, and the writ shall be, Quod permittat ipsum praesentare, etc. And in his Count he shall declare the special matter, and the writ, notwithstanding such variance from the Count, shall be good: so if a man have a chantry, Donative. which is a donative by his Letters patents, and not presentative, and he gives it to a Clerk, who is disturbed by another, and that other presents to this chantry, or gives it by his Letters Patents, he that hath right, shall have a Quare Impedit of this donative, and the writ shall be, Quod permittat ipsum praesentare, etc. ad Cantariam, etc. And yet it is not presentative but donative: Howbeit in the Count he shall show the special matter. Collation. 9 If a Bishop be disturbed to present, F N.B. ibid. d. e. where he ought to make Collation, the writ shall be, Quod permittat ipsum praesentare, etc. So likewise if the King be disturbed to make Collation by his Letters Patents to his Free Chapel, he shall have a Quare Impedit, and the writ shall be, Quod permittat ipsum praesentare, etc. ad praebendam in sua libera Capella, etc. Quare Imp dit without alleging a p esentment. 10 Regularly, a man shall not have a Quare Impedit, F.N.B. ibid. h. i. k. unless he may allege a presentment in himself, or in his ancestor, or in some other person, by whom he claims the Advowson, and that in his Count; And yet at this day if a man by the King's licence make a Church parochial, which shall be presentable, etc. if he be disturbed to present unto it, be shall have no other writ for the recovery thereof, than a Quare Impedit, and that without alleging any presentment in any person; for that writ being the most usual writ for the recovery of Advowsons', shall not be altered for any such special case: So if a man recover an Advowson by writ of right against another, when the Church is void, he shall present, and, if he be disturbed, shall have a Quare Impedit, and allege presentment in him, against whom he recovers, without alleging any other presentment: In like manner if an Abbot hath been Parson imparsonee time out of mind, etc. and afterwards the Abbey is dissolved, etc. Here, he of whom the Advowson was held, shall present, and if he be disturbed, shall have a Quare Impedit without alleging any presentment in the Count, etc. 11 If an Advowson become void by six months, Vacation. at such time as the King is seized of the Temporalties of the Bishopric, Here the King shall present to this Advowson, as the Bishop should have done, and if disturbed, shall have a Quare impedit, etc. The King likewise shall have a Quare Impedit of the Subdeaconry of York, which voideth when the Temporalties of the Archbishopric are in the King's hands, and the writ shall be, Quod permittat eum praesentare, etc. And yet the King may give the Subdeaconry by his Letters Patents. F.N.B. 38. a. 12 Albeit the Bishop himself be party and disturber, Collation. yet the form of the writ of Ne Admittas altars not for that, but remains the same, as in other cases, viz. Prohibemus vos ne admittatis, etc. Howbeit the form of the writ in such case might more properly be, Prohibemus vos, ne conferatis Clericum ecclesiae, etc. quae vacat, etc. because the Bishop is properly said to Collate, when he presents in his own right. F.N.B. 60. d. 13 If a man make a Lease for one year, or for half a year, if the tenant commit waste, the Lessor shall have a writ of waste, Leases. and the writ shall say, Quas tenet ad terminum annorum; because the writ was ordained for leases, which were most vulgar and usual, viz. for leases for years: Howbeit, he shall in his Count show the special matter: ibidem, n. So a writ of waste is maintainable upon a lease made to a man, until he shall promote himself to a benefice, and the writ shall suppose, quod tenet ad terminum vitae: It is so likewise of a Lease made to endure from such a feast to such a feast: and in such case the writ shall suppose, quod tenet ad terminum annorum, etc. but the Count shall declare the special matter, as aforesaid. F.N.B. 86. k. 14 If one man imprison another, the form of the writ of trespass is, Imp isonment. Ostens'. quare vi et armis in ipsum A. apud N. insultum fecit, et ipsum vulneravit, imprisonavit, male tractavit, & alia, etc. and it is not material whether he wound him or not, for the form of the writ is so, comprehending all that in such case may happen, and therefore is the same in all cases of Imprisonment, without alteration. F. N. B 118. ●. 15 If a man hath a writ of account against a Prior, Receipt of moneys. upon a receipt made by him by the hands of his Commoigne, yet the writ shall suppose that he himself received it, and shall not say, by the hands of the Commoigne; So likewise a receipt made by the baron by the hands of his feme is his own receipt, and both the writ and the Count shall suppose, that he himself received it, without saying by the hands of the feme; The writ also shall be the same, when the money is received by the hands of a stranger; Howbeit, in this case the Count shall declare the special matter, viz. that he received it by the hands of a stranger, etc. but in all these cases and the like, the writ shall be general and remain the same, viz. de tempore quo fuit receptor denariorum, with out saying by the hands of any, because a Receiver for the most part receives the money by himself, etc. ●●rantia Chartae. 16 Before the Statute of Quia Emptores terrarum in 18 E. 1. a man might grant land to hold of himself, which was then the most usual course, yet then also the feoffor (if he so pleased) might grant it to hold of the Lord paramount, which did not so often happen; and therefore the writ of warrantia chartae (used at this day) seems to be the same that was used before that Statute, which always supposeth, that the plaintif in that writ holds of the defendant, because that did most often happen, for the form is, Rex, etc. praecipe A. quod just, F.N.B. e. f. etc. warrantizat B. unum Messuagium cum pertinentiis in D. quod tenet et de eo tenere clamat, etc. yet it is not material whether he hold of him or no: So likewise if the plaintiff hold by homage ancestrel of the defendant any land, and is impleaded, and hath no charter thereof, yet he shall have this writ de warrantia chartae against the defendant, and the writ shall say, unde cartam habet, etc. and yet he hath not any Charter to show, but only holds by homage ancestrel, which implies a warranty; nevertheless because for the most part a warranty is contained in a Charter, the writ retains the same form, and in such cases the words, unde chartam habet, etc. are not material. Escheat. 17 If a man be condemned to be hanged for felony, and happen to die after such judgement, and before execution thereof by the officer, F.N.B. 144. b. yet the writ of Escheat shall say, pro quo suspensus fuit, etc. and it is not material whether he be hanged or no; but the writ retains that form, because for the most part after such judgement the fellow is hanged. 192 Frequentia Actus multum operatur. Fine. Non-claim. 1 A. possessed of divers lands in D. for years, at will, Co. l. 3. 79. b. 2. in Fermors case. and by Copy, and seized of other lands there in fee, demises the whole to B. for life, and then levies a fine to B. etc. of so many acres as amount to the whole land, continueth possession, and pays the rents to the Lord; five years pass, yet is not the Lord barred by his non-claim; because in as much as the lessée had lands in fee simple in the same Town, the fine shall be presumed to be levied of such lands there, whereof it is lawful to levy a fine; and then as for the quantity, albeit the fine contain more acres, than his own fee simple lands, that can prove nothing to pass the Lease or Copy land; because it is the common use and practice almost in all fines to insert more acres therein, than the lands intended to be passed by such fines do contain. Corporation. 2 Albeit a Corporation have a Commencement by Charter, Co. l. 4. 77. b. in the case of Corporations. and (by consequence) within memory, and it be expressed in their charter, that the choice of their Mayor, Bailiffs, and other principal officers shall be by the Commonalty, yet if by a continual usage they have chosen them by a certain select number of the principal of the Commonalty, or of the Burgesses, albeit no constitution can be showed to warrant such election, yet such election is adjudged good in Law, because it it hath been so often put in execution. Vide supra 189. 25. Duchy of Cornwall. 3 Ed. 3. gave unto the Black Prince the Dukedom of Cornwall, Co. l. 8. 21. b. 1. in the Prince's case. etc. habendum et tenendum eidem duci, & ipsius & haeredum suorum Regum Angliae filiis primogenitis, et dicti loci ducibus in regno Angliae haereditarie successuris, etc. This grant was adjudged fee simple, and not at will, as some would have had it; And one of the reasons was, because divers Acts both of E. 3. and the Black Prince himself did confirm the same to be fee simple, and not any inferior estate: for E. 3. in the 14. year of his reign, when he was to make war against Philip de Valois King of France, (which was but 3. years after the said Charter) grants to the Prince, by the name of Edward Duke of Cornwall, to be Lieutenant of the Realm so long as the King should be beyond sea: Then in 21 E. 3. the Prince for a fine of 1000 marks demiseth the Stanneries to Redman, rendering 3000 marks rend per annum. And divers other Letters Patents were cited in the Prince's case in the 8. Rep. to the like purpose, all which did confirm the said estate of the Prince to be fee simple: For frequentia actus multum adjuvat. Vide supra 71, 4. Also another reason to prove the title of the Prince to the Duchy of Cornwall was, that ever since the creation thereof (which was in the 11 of Ed. 3.) in the succession of divers ages it had been enjoyed according to the said Charter by the eldest son of the Kings of England, etc. for which see the book at large. 193 It always construeth things to the Best; And therefore Co. Inst. part 1. 87. b. 3. 1 If a man be seized of a rend charge, rend seck, common of pasture, Guardian. Infant under 14. or such like Inheritances, which do not lie in tenure, and dieth, his heir within the age of 14 years; In this case, the heir may choose his Guardian; but if he be of such tender years, as he can make no choice, then (if the father hath made no disposition of the custody of the child) the Law adjudged it most fit, that the next of kin, to whom the Inheritance cannot descend, should have the custody of him; and whosoever taketh the rent, etc. the heir shall charge him in an account. Co. ibid. 98. a. 3. 2 Where an Abbot (holding in Frankalmoigne) together with his Covent, aliens the land to a Secular man, he cannot hold as they held, Frankalmoigne. Socage. viz. in Frankalmoigne; yet because (of necessity) he must hold the land of some person, and by some service, the Law (in this case) creates and appoints him the lowest and easiest tenure that is, viz. to hold the land of the Lord in socage by fealty only, which is incident to every tenure: Co. ibid. 99 b. 3. so likewise if the Seignory be transferred to a stranger by act in Law, and thereby the privity is altered; In such case also the tenure in Frankalmoigne is changed to a tenure in socage by fealty: And therefore if there be Lord, Mesn, and Tenant, and the Tenant is an Abbot, who holds of the Mesn in Frankalmoigne; Here if the Mesn die without heir, so as the Mesnalty escheats to the Lord Paramount, the Abbot shall hold immediately of the Lord Paramount by fealty only, because he cannot hold of him in Frankalmoigne: 148, 35. Co. ibid. 146. b. 3 3 If a Villain descend to two Coparceners, Entire Inheritances. this is an entire inheritance, & albeit the Villain himself cannot be divided, the Law hath ordained, that the profit of him shall be divided; for one Coparcener may have the service one day, one week, etc. and the other another day or week, etc. And for the same reason it is, that a woman shall be endowed of a Villain, viz. to have him every third day, week, or, etc. Likewise, if an Advowson descend to Coparceners, the Law hath so ordered it, that they shall present by turns▪ Et sic de similibus: In all which cases the Law hath contrived and established the best way and order that may be, for the parting of Entire inheritances, which are otherwise in their nature indivisible. Co. ibid. 214. ●. 2. 4 If two joint-tenants, the one for life, and the other in fee, I●intenants. Tenant for life. Reversioner. join in a Lease for life, or a gift in tail, reserving a rent; In this case the rent shall inure to them both; for if the particular estate determine, they shall be joint-tenants again in possession; But if tenant for life and he in the reversion join in a Lease for life, or a gift in tail by deed, reserving a rent, this shall enure to the tenant for life only, during his life, and after to him in the reversion; for each of them grants that which he may lawfully grant, and if (at the Common Law) they had made a feoffment in fee generally, the feoffee should have holden of the tenant for life during his life, and after of him in reversion: And so it was holden Mich. 36 & 37 Eliz. in B. R. Release. 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land; Co. Inst. part 1. 273. b. 1. & ●. by this A. hath an estate for the term of his own life; for a lease for term of his own life is higher and better in judgement of Law, than an estate for the term of another man's life: So if a release be made to tenant by Statute Merchant or Staple, or tenant by Elegit, or to Guardian in Chivalry, who holdeth in for the value of the marriage, by him in reversion of all his right in the land, by this a fréehold passeth for the life of him, to whom the release is made; for that is the best and greatest estate, that can pass without apt words of Inheritance, viz. heirs. Accruer. 6 Queen Eliz. being seized of a Reversion in fee upon an estate tail in the Lord Stafford, grants it to Tindal in tail, Co. l. 8 77. a. 2. in the Lo. Staffords case. upon condition to have praedictam reversionem in fee; Here, these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal, but to the reversion in fee. Feoffments. 7 The heir of the disseisor being in by descent, Co. Inst. part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed, and livery of seisin is had thereupon: In this case as to the heir, the land passeth, and the deed enures by way of feoffment, and as to the disseisee, by way of Confirmation; for (by construction of Law) the land shall ever pass from him, that hath the estate of the land in him; as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joined in a feoffment, it had been the feoffment of the feoffees, because the estate of the land was in them: So it is likewise, if the tenant for life, and he in the remainder or reversion in fee join in a feoffment by deed, the livery of the freehold shall move from the lessee, & the inheritance from him in the reversion or remainder, from each of them according to his estate; for it cannot be adjudged by Law, that the feoffment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder, or doth work a wrong, because they joined together: So if there be tenant for life, the remainder in tail, the remainder in tail, etc. and tenant for life and he in the first remainder in tail levy a fine, this is no discontinuance or divesting of any estate in remainder, but each of them pass that which they have power and Authority to pass. The like. 8 If the disseisor and disseisee join in a charter of feoffment, Co. ibid. 302. b. 4. and enter into the land and make livery, it shall be accounted the feoffment of the disseisee, and the confirmation of the disseisor, because the entry of the disseisee was then lawful; It is otherwise, when the heir of the disseisor and the disseisee join (as in Littleton's case, supra 7.) for in such case the disseisees entry is not congeable: But if he in the reversion in fee and tenant for life join in a feoffment by parol, this shall be (as some hold) first a surrender of the estate of tenant for life, and then the feoffment of him in the reversion; for otherwise if the whole should pass from the lessee, than he in the reversion might enter for the forfeiture, and every man's act (ut res magis valeat, etc.) shall be construed most strongly against himself. 9 Words are always taken best for the Speaker; Hob. 77. Adrian Coote. so as there is one Rule for deeds or pleading, and another for words. 194 Every Act to be lawful, when it standeth indifferent, whether it should be lawful, or not. Co. Inst. part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B, for term of life, Estates for life. without mentioning for whose life it shall be; This shall be deemed for term of the life of the lessee, because (in this case) it shall be taken most strongly against the lessor, an estate for a man's own life being (as to him) better and higher, than for the life of another: But if tenant in tail make such a lease without expressing for whose life, this shall be taken but for the life of the lessor, for two reasons; First, when the construction of any act is left to the Law, the Law, which abhorreth injury and wrong, will never so construe it, that it may work a wrong; And in this case, if by construction it should be for the life of the lessee, then should the estate tail be discontinued, and a new reversion gained by wrong: but if it construed for the life of the tenant in tail, than no wrong is wrought: And it is a general Rule, that whensoever the words of a deed, or of the parties without deed may have a double intendment, and the one standeth with Law and right, and the other is wrongful, and against Law, the intendment that standeth with Law, shall be taken. 2. The Law respecteth more a lesser estate by right, than a larger estate by wrong; as if tenant for life in remainder disseise the tenant for life in possession; in this case the disseisor hath a fee-simple; but if tenant for life in possession die, now is the disseisors wrongful estate in fee (by judgement of Law) changed to a rightful estate for life: So if tenant in tail make a lease to another for term of life generally, and after releaseth to the lessee and his heirs; Here, albeit between the tenant in tail, and the releasee a fee-simple passed, yet after the death of the lessee, the entry of the issue in tail is lawful, which could not be, if it were a lease for the life of the lessee, for then by the release it had been a discontinuance executed: In like manner, if I retain a servant generally without expressing any time▪ the Law shall construe it to be for one year, because that retainer is according to Law. Vide Stat. 5 Eliz. cap. 4. Co. Inst. part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut down a tree (where the trees are not exempted) this is an employed determination of the will, Lease at will, for that it would otherwise be a wrong in the lessor to do it: So if a man lease a Manor at will, whereunto a Common is appendent, and the lessor puts in his beasts to use the Common, this is also a determination of the will, for otherwise he should be a trespassor. Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion; for In facto, quod se habet ad bonum & malum, A Will. magis de bono quam de malo lex intendit. Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land, the reversion in fee, Villain. & a Villain purchase the reversion, and the tenant for life attorns; In this case, the Lord may justify to enter upon the Land and claim the reversion, and yet shall be no trespassor to the tenant for life; for the Law will make construction that he entered to make his claim, and not to commit trespass: The like Law is also of a reversion after an estate in tail, Statute Merchant or Staple, Elegit, and for years, and of the reversion of a Seignory, rent, common, and any other freehold or inheritance, issuing out of any lands or tenements of another. Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners, albeit such partition be unequal, yet it is not void, Pa ration. but voidable, for it shall be deemed good and lawful, until it be defeated by the entry of either of the femes, if she happen to survive her husband: There is the like Law of an Infant copercener, Co. ibid. 171 a. 4. for it remains good, if he defeat it not at his full age. Feoffment upon condition. 6 If a feoffment be made by deed poll upon condition, Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll, and afterwards the condition is broken, whereupon the feoffor reenters; In this case, having the deed en poigne, albeit it doth not properly appertain to him, but to the feoffée, yet he may make use of the deed, and thereby plead the condition in justification of his entry and title; for it will be rather intended, that he came to the deed by lawful, Joint trespass. than by tortuous means: Littl. §. 3●7. So if there be two joint trespassors, and the party trespassed releaseth to one of them; In this case also, if the other trespassor be sued, and have the release en poigne, he may plead it in discharge of the trespass, causa qua supra. Bastard. 7 If the husband be within the 4. seas, viz. within the jurisdiction of the King of England, if the wife hath issue, Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard; for the question being, whether he is legitimate or no, the Law will rather deem him legitimate, than Proles spurius, a bastard: And in this case Filiatio non potest probari. The like. 8 If a man hath issue two daughters, the eldest being a Bastard, Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together; Here, the Law, in favour of legitimation, will not adjudge the whole possession in the Mulier, (who indeed hath the only right) but in both, so as if the Bastard hath issue and dieth, her issue shall inherit: And in the same case, if both daughters enter and make partition, this partition shall bind the Mulier for ever. The like. 9 If the Bastard invite the Mulier to see his house, Co. ibid. 245. a. 2. and to see pictures, etc. or to dine with him, or to hawk, hunt, or sport with him, or such like, upon the land descended, and the Mulier cometh upon the land accordingly, this is no interruption, because he came in by the consent of the Bastard, and therefore the Law will not adjudge the coming upon the land in such case to be any trespass; but if the Mulier cometh upon the ground upon his own head, and cutteth down a tree, or diggeth the soil, or take any profit, these shall be interruptions; For rather than the Bastard shall punish him in an action of trespass, the act shall amount in Law to an entry, because he hath a right of Entry: so it is if the Mulier put any of his into the ground, or command another to do it, these do amount to an entry; for albeit in these cases the Mulier doth not use any express words of Entry, yet these, and such like acts do (without any words) amount in Law to an Entry, for acts without words may make an Entry, but words without an act, (viz. Entry into the land, etc.) cannot make an Entry. Vide infra 28. M scon invance. 10 If one process be awarded instead of another, or a day is given which is not legal, this is a miscontinuance of the suit, Co. ibid. 325. a. 4. and if the tenant or defendant make default, it is good cause of Error, but if he appear, then is the Miscontinuance salved; for albeit (in truth) his appearance is not legal, yet when he appears, the Law shall construe it to be lawful, because there is a suit depending against him in Court. Discontinuance of estates 11 If there be tenant for life, the remainder in tail, Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed, and the tenant for life attorns, this is no discontinuance of the remainder in tail; So it is likewise of a rend charge, Advowson in gross, Common in gross, or the like: for the Rule is, that a grant by deed of such things as do lie in grant, and not in livery of seisin, do work no discontinuance; and the reason is, because the Law makes construction, that of such things the grant of tenant in tail worketh no wrong, either to the issue in tail, or to him in reversion or remainder; for (in such case) the Law adjudged nothing to pass from the tenant in tail, but that which he may lawfully grant, viz. an estate for his own life. Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor, the remainder to the lessor and a stranger in fee: Surrender. Forfeiture. In this case for as much as the limitation should work a wrong, by construction of Law it rather inureth to the lessor as a surrender for the one moiety, and a forfeiture as to the remainder of the stranger; for he cannot give to the lessor that which he had before, and as to the remainder to the stranger; it is a forfeiture for his moiety, and when the lessor entereth, he shall take benefit thereof. Co. Inst. part 1. 381. b. 1. 13 The words of an Act of Parliament must be always taken in a lawful and rightful sense, Stat. of Gloc. as in the Statute of Gloucester cap. 3. The words in the end of that Act (whereof no fine is levied in the King's Court) are to be understood, whereof no fine is lawfully or rightfully levied in the King's Court: And therefore a fine levied by the husband alone of the wife's land, is not within the meaning of that Statute; for that fine would work a wrong to the wife; but a fine levied by the husband and wife is intended by the Statute, for such a fine is lawful and worketh no wrong: So the Statute of Westm. 2. cap. 5. saith (Ita quod Episcopus Ecclesiam conferat) is construed, Ita quod Episcopus Ecclesiam legitime conferat, and the like in a number of other cases in our books: And the general rule is, Non praestat impedimentum, quod de lure non sortitur effectum. Co. ibid. 42. a. 1. 14 If tenant for life infeoff him in the remainder for life, Surrender. this the Law construes to be a surrender, which is a lawful act, and not a forfeiture, which implies a wrong. Co. ibid. 15 If tenant for life maketh a lease by deed or without deed, Lease for life to him in remainder. to him in the remainder or reversion, in tail or in fee, for the term of the life of him in remainder or reversion, and after he in remainder taketh wife and dieth; In this case, his wife shall not be endowed; for the Law will adjudge the estate made to him in remainder or reversion, a good and lawful estate, and tenant for life shall enjoy the land again: And here, in regard this can be no surrender, because tenant for life did not part with his whole estate, the Law (rather than to admit of a forfeiture, which implies a wrong) preserves the first estate for life from being surrendered, drowned or forfeited: And (indeed) forfeited it cannot be in another respect, for that he in remainder was party thereunto. Co. l. 1. 76 a. Bredons' case. 16 If there be tenant for life, remainder in tail, remainder in tail, No discontinuance or forfeiture. and tenant for life, and the first remainder levy a fine to one, who grants and renders a rend charge to the tenant for life, and then the first remainder dies without issue, and the second remainder enters, and tenant for life distrains for the rent: In this case, there is neither discontinuance nor forfeiture: no discontinuance, because each of them grants but his own estate, which he may lawfully do: no forfeiture, because it shall be first construed to be the fine of him in remainder, and afterwards of the tenant for life. Co. l 2. 67 a. 1 in Took●es, case. 17 Dower assigned by one jointenant only, Assignment of Dower. Attornment. or by an Abator or disseisor, shall not be avoided by the other jointenant or the disseisée, as it is agreed in 12 Ass. pl. 20. because these are lawful acts: so it is said, if the disseisor attorn or give seisin to the grantée of a signory, this shall bind the disseisee for the same reason: albeit the grantee of a signory cannot compel the disseisor to attorn to him, or to give him seisin, if he had not seisin before within the time of limitation. Vide 8 H. 6. 17. 8 Ass. pl. 16. 8 E. 3. 52. 11 H. 4. 29. 39 H. 6. 2. It is likewise said, that if the lessor disseise his two lessees for life, and enfeoff another, and one of the lessees re-enter, this act of the one is an attornment in Law for both; much more shall an express attornment bind both, because these are (by construction of Law) lawful acts, etc. Vide 23. Fine and 5. years pass. 18 T. possessed of divers parcels of land within the Manor of S. for years, at will, and by Copy, and of others in fee there, Co. l. 3. 79. b. 2. Fermers case. demises the whole to C. for life, then levies a fine to him and his heirs of so many acres as amount to the whole land, continueth possession, and pays the rents to the Lord: Here, albeit 5. years' pass, yet is not the Lord barred: for in as much as the lessee had lands in fee simple in the same Town, by construction of Law it will be presumed, that the fine was levied of the land, whereof a fine might be lawfully levied; And albeit the fine contained more acres than his own land, yet that altars not the case, for it is usual (almost) in all fines to put in more acres, than the just content of the land. Copyhold. 19 If a man seized of Copyhold land in right of his wife surrender it to the use of another in fee, who is admitted accordingly, Co. l. 4. 23. a. 2. in Copyhold cases, Bullock and Dibley. the baron dies, this is no discontinuance to the feme or her heirs, but that the feme may well enter, neither shall she be put to her Cui in vita, or her heir to his sur Cui in vita: because the Law will construe it to be such an alienation as he may lawfully make, viz. of his estate in right of his wife during the Coverture: So if a Copyholder for life surrender to the use of another in fee, this is no forfeiture for the like reason; and because it passeth by surrender to the Lord, and not by livery. King tenant pur altar vie. 20 If the King being tenant pur altar vie, Co. l. 5. 12. a 4. in Englefields case. make a lease for 40. years; albeit he (having but an estate pur altar vie) cannot absolutely contract for a lease of 40. years, yet without any recital or mention of the estate for life, the lease is good; because the lease for years is (in judgement of Law) less than the estate pur altar vie, and the King doth not thereby any wrong or prejudice to any, neither yet is he deceived in his grant; for (by construction of Law) it is a lease for 40 years, if Cestuy que vie so long live. Afferment of Amerciaments. 21 If a jury or a Leet tax an amerciament, Co. l. 8 40. b. 4. in Grieslyes' case. this sufficeth without any afferment, for the afferment may as well be per totum Homagium, as by special Afferrors, because the amerciament is the act of the Court, and the Afferment the act of the Iury. Vide 10 Edw. 3. 9 & 10. 8 Hen. 7. 4. 7 Edw. 3. 15. b. Astlies' case. 25 Edw. 3. 26, & 27. Grant of the King. 22 The King grants the herbage and pannage of a Park to Markham for life, and reciting that estate, Co. l. 8. 56. a. 1. The E. of Rutl. case. grants to the E. of Rutland for life: In this case, albeit the King grants to the Earl in possession, yet he is not deceived in his grant; for reciting and granting, as here, it enures (as it may by Law) to a grant of the reversion, etc. Attornment. 23 Albeit an Infant be not compellable to attorn, unless the grant be by fine in a per quae servitia, Co. l 9 85 b. 3 Conies case. yet upon the grant of a signory without fine, if he attorn, that shall bind him, and he shall not have his age: so likewise attornment by him upon the grant of a reversion is good, albeit he cannot be forced thereunto. Vide supra 17. Covin. 24 Covin shall never be intended or presumed in Law, except it be expressly averred, quia odiosa & inhonesta non sunt in lege praesumenda, Co. l. 10. 56. a. 3. in the Chan. of Oxf. case. & in facto, quod se habet ad bonum & malum, magis de bono quam de malo praesumendum est. And so it was adjudged in the case of Meriel Littleton, Trin. 10 ●ac. in B. R. Quod vide ubi supra. Co. l. 10. 67. b. 3. in the Churchwardens case. 25 When two Constructions may be made of the Kings grant, The King's Charter. and by force of the one the grant may according to the Rule of Law be adjudged good, and by the other it may be also taken by the Law to be void; In such case, for the honour of the King, and the benefit of the Subject such construction shall be made, that the King's Charter may take effect: as it was resolved in the case of the Churchwardens of Saint Saviour's in Southwark, Co. l. 10. 67. b. 3. and in Sir John Molins' case, Co. l 6. 5. See also Priddle and Nappers case, Co. l. 11. 11. a 4 The E. of Rutland's case supra 22. The L. Staffords case, Co. l. 8. 77. The Lord Chandos case, Co. l. 6. 55. The E. of Cumberlands case, Co. l. 8. 166. &. 12 E. 4. 44. F. N. B. 148. f. 26 If the heir within age endow the feme of more land than she ought to have assigned in Dower, Dower assigned. or if the Guardian endow the feme of more than a third part of the land, the heir at his full age shall have a writ of Admeasurement of Dower against the feme; Howbeit in such case she shall retain so much of the land so assigned as amounts to her Dower, because it was a lawful act, Plea in bar. only the surplusage shall be taken from her, what she had above such third part assigned unto her. Pl. Co. 28. b. 1. in Calthr. and Bevish. case. 27 In an Assize, if the tenant plead in bar descent to the plaintiff, and two others, and that he hath the estate of one of them; In this case, the plea is good, and yet it may be, that he had his estate by disseisin, in which case he is also a disseisor to the plaintiff, for he cannot be a disseisor to one, and not to the other, or he may gain his estate lawfully, and so a doubt ariseth, whether the tenant is in lawfully, or by wrong: Howbeit in this case it shall be taken, that he had his estate lawfully, and not tortiously or by wrong, and therefore such plea in bar is good. Vid 189. 40. Pl. Co. 93. a. 4. The Assize of Fresh force in London. 28 In the Assize of Fresh force by Panel against Moor and the Corporation of Mercers in London, Assize of Fresh force. Moor's invitation of the plaintiff to dine with him and to see the Cellar, etc. was adjudged no entry by the plaintif after the last continuance, because it was rather to be esteemed a lawful than a tortuous act, being by the consent of Moor one of the defendants. Vide supra 9 29 Cestuy que use for term of life the remainder over in tail, Cestuy que use for life. after the Statute of 1 R. 3. 1. makes a lease for the term of the life of the lessee, Dyer 57 b. 1. 35 H. 8. and dies, and the lessee continues his estate; In this case the lessée is but tenant by sufferance; for the lease makes no discontinuance of the Remainder, because he had authority by the said Statute to make a lease, grant, or feoffment, and that ought to be understood, of such an estate as he may lawfully make. Dyer 150. b. 86. 3, 4. P.M. 30 By the Statute of 32 H. 8. 1. that giveth power to devise two parts of a man's land holden in Knight service, Devise of lands. a devise of the whole had been good for two parts, albeit the Statute of explanations (34 & 35 H 8. 5.) had not been made. Dyer 286. 43 11 El●z. 31 In an Ejectione firmae the plaintif declares of a lease made unto him the 8. day of May, Ejectione firmae. to have and hold for 21 years extunc proxime sequent. Virtute cujus postea, viz. eodem 8 day of May he entered: This seems to be good, and that he entered not as a disseisor before the lease commenced; for extunc is immediately after the delivery, and shall not be intended the morrow after the date, and the word postea declares, that he entered not before the lease was made: Tamen Quaere, for the practice is otherwise at this day, making the term to commence at some feast or day before the day of delivery, to prevent the said exception. Dyer 359 3. 2. E. 34 A. Tenant of Prince Arthur as Earl of Chester, Wardship. in Knight service in Capite dies, and B. his eldest son is in ward, B. dies without issue, and upon a Devenerunt C. was found brother and heir to B. and within age, C. at full age pursues livery by writ to the Escheator per nom●n B. filius & haeres A. And now the question was whether or no the possession still continued in Qu. Eliz.? And it was adjudged, that it did not, but that it was a good livery; for if he had not been named heir to any, it had been good, because constat de persona. Tenants in Common. 35 If a tenant in Common enter into the land generally, Hob. 120. Smales and Dale. without expressing whether it be for himself alone, or both for himself and his companion; yet it shall be taken according to right, as under construction of Law, and therefore construed lawful, and not that he intended to oust his companion of his part by tort. 195 Non praestat impedimentum, quod de Jure non sortitur effectum. Vide 195, 13. Bastard eigne & Mulier Puisne. 1 If the Bastard eigne after the decease of the father enter, Co. Inst. part 1. 245. b. 1. and the King seizeth the land for some contempt supposed to be committed by the Bastard, for which no freehold or inheritance is lost, but only the profits of the land by way of seizure, and the Bastard die, and his issue is upon his petition restored to the possession; In this case, for that the seizure was without just cause, the Mulier is barred for ever; for the possession of the King▪ when he hath no just cause of seizure, shall be adjudged the possession of him, for whose cause he seized: But if after the death of the Father the Mulier be found heir, and within age, and the King seizeth; In such case the possession of the King is in right of the Mulier, and vesteth the actual possession in the Mulier, and consequently the Bastard eigne is foreclosed of any right for ever: so it is likewise when the King seizeth for a contempt, or other offence of the father, or of any other ancestor; In that case; if the issue of the Bastard eigne upon a Petition be restored, for that the seizure was without just cause, the Mulier is not barred; because the bastard could never enter, and consequently could gain no estate in the land; but the possession of the King in that case shall be adjudged in the right of the Mulier. Vide 2 Ass. pl. 9 Copyhold. 2 If a Copyhold estate fall into the Lords hands by escheat, Co. l. 4. 31. a. 2. in Frenches case. forfeiture, or the like, and the Lord make a lease thereof for years, life, or other estate by deed or without deed, or if the Lord make a feoffment thereof in fee upon condition, and enter for the condition broken, or if the Copyhold so forfeited or escheated, before any new grant thereof made, be extended upon a Statute or Recognisance acknowledged by the Lord, or if the feme of the Lord in a writ of Dower hath that land assigned to her; In all these cases, and albeit these last impediments are by acts in Law, yet for as much as all these interruptions are lawful, the lands can never after be granted by Copy; because after such disposition thereof it was not demised or demisable: But if the interruption be tortuous, as if the Lord be disseised, and the disseisor die seized, or if the land be recovered against the Lord by a false verdict, or erroneous judgement: In these cases, until the land be recovered, or the judgement nulled or reversed by the Lord of the Manor, the land was not demised or demisable, and yet after the land is recontinued, it is again grantable by Copy, because the interruption was tortuous, for Non valet Impedimentum, quod de jure non sortitur effectum, & quod contra legem fit pro infecto habetur. Restraint to alien. 3 If a man make a gift in tail, upon condition that the donee shall not alien; yet in such case if the donee suffer a Common recovery, Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case. that is no breach of the Condition, because it is a Conveyance allowed by Law in respect of the intended recompense; but if he make a feoffment in fee or any other estate, whereby the reversion is tortiously discontinued, the donor may enter for the Condition broken; for every act, which is prohibited by Law, or is a tort, may be prohibited by condition, vide 10 H. 7. 11. So if a feoffment be made to Baron and feme, upon condition that they shall not alien, yet that doth not restrain their joint alienation by fine, because it is lawful and incident to their estate: But their feoffment, or alienation by deed is restrained by such a condition, for that is tortuous, and against Law: Also if a man enfeoff an Infant in fee, upon condition that he shall not alien, this cannot restrain him to alien at his full age; but during his minority it doth, because that is tortuous, and prohibited by Law. Co. l 7. 6 a. 3. in Send●ls case. 4 One of the reasons, Robbery. why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfy the damages, is, for that it is not lawful for any man to enter into the house of another for the safeguard thereof. Co. l. 11. 74. a. 3. Magd. Coll. case. 5 Albeit the Friars Carmelites were of a Profession of Religion, Carmelites. and had not any habitation, so as it seemed to be a work of piety and charity to provide an habitation for them, yet non facias malum, ut inde fiat bonum. F.N.B. 36. f. 6 If a man be disseised of a Manor, to which an Advowson is appendent, Usurpation. and the disseisor suffers an usurpation by a stranger to the advowson, and after the disseisée reenters into the Manor, he shall present to the advowson, when it happens to be void, notwithstanding such usurpation. Dyer 168. 19 1 Eliz. 7 Bronker Sheriff of Wiltshire, to prevent perjury in his office, Sheriff's oath. did neglect to be sworn in incepto officii, which he ought to have done by the ancient Common Law of the Realm, for which contempt he was fined and imprisoned by decree in the Star-chamber. Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house, Livery of seisin. and quiet possession, to the Mayor of London to the use of the obligee; no person being in the house he locks the door, and delivers the key to the Mayor out of view; A stranger pretending title, enters into the house; This seems to be no delivery of possession, yet verdict was given for it, which was afterwards affirmed in Attaint; And the reason seems to be, for that the impediment was unlawful. 196 Praetextu liciti non debet admitti illicitum. Co. l. 11 88 b. 1 in the case of Monopolies. 1 The Charter of making and importing Cards (being adjudged in the 11 Rep. a Monopoly) had a glorious preamble and pretext; Monopolies. yet was repealed as derogatory to the King's honour, and very pernicious to the Commonwealth; And indeed it is true, Quod privilegia, quae revera sunt in praejudicium Reipublicae, magis speciosa habent frontispicia, et boni publici praetextum, quam bonae et legales concessiones; but Praetextu liciti non debet admitti illicitum. Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trees to repair the house, Waste. and he fells 4. Oaks for that purpose, and sells them, and buys 4. other Oaks as good, and employs them towards the repair of the house, yet that is waste; for the cutting of them down and selling them was a tort: so if a man sell the distress, which he hath caken and impounded, and afterwards (finding his error) buys them again and impounds, yet their sale is a tort, and the impounding of the afterwards shall not excuse it. Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks, sells them, and pays the obligée for the lessor; Waste. yet an action of waste lieth against the lessee for felling the trees, albeit the money arising upon the sale was converted to the use and profit of the lessor; for albeit a thing may sometimes sound for the profit of a man and not for his damage, yet it is not lawful for a man to do a wrong; As if a man see his neighbour's beasts in another man's soil Damage pheasant, Damage feasant. it is not lawful for him to chase them, and if he so do, the owner shall have an action of trespass against him, yet in so doing he doth a good work, and saves the owner from the damages for depasturing his . Trespass. 4 In 21 H. 7. A Parson brings an action of trespass for his Grain carried away, the defendant saith, Dyer ibid. pl. 39 that the Grain was severed from the 9 parts, and in danger to be spoiled with , whereupon the defendant carried them to the plaintiffs own barn, and there lodged them; And yet this was adjudged no good plea, because the carrying of them away was a tort: So if a Commoner make a trench in the soil, where he hath Common, whereby the soil is made better, yet he is a trespassor, and subject to an action for it. 5 Hob. 12. Holder against Tailor, and 220. Wrenhams case, who was censured in the Star chamber 1000 l. for publishing a scandalous book against a decree of the Lo. Ch. Bacon's. 197 The Law favoureth things for the Commonwealth. Incapable Officers. 1 If an Office either of the grant of the King or Subject, Co. Inst. pars 1. 3. b. 2. which concerns the administration, proceeding, or execution of justice, or the King's revenue, or the Commonwealth, or the interest, benefit or safety of the Subject, or the like; If these or any of them be granted to a man that is unexpert, and hath no skill or science to exercise or execute the same, the grant is merely void, and the party disabled by Law, and incapable to take the same, pro commodo Regis & populi, for only men of skill, knowledge, and ability to exercise the same are capable thereof to serve the King and his people: So an Infant or Minor is not capable of an office of Stewardship of the Court of a Manor either in possession or reversion: Neither yet is a man, though never so skilful and expert, capable of a judicial office in reversion, but must expect until it fall in possession: Likewise bargaining, or giving of money, or any manner of reward, etc. for offices, shall make such a purchasor incapable thereof; because it is to be presumed he will by bribery, extortion, and other undue means make his stake good again, to the prejudice of the Commonwealth; which learning is worthy to be known, but more worthy to be put in due execution. Dower C●stles. 2 Of a Castle, that is only maintained for the private use and habitation of the owner, a woman shall be endowed; But of a Castle, Co. ibid. 31. b. 3. that is maintained for the necessary defence of the Realm, a woman shall not be endowed: And so it was adjudged in the Court of Common Pleas, where in a writ of Dower the demand was, De tertia parte Castri de Hilderker in Comitatu Northumb. And the Statute of Magna Charta, cap. 7. whereby it is provided, Nisi domus illa sit Castrum, is to be understood of a Castle for the necessary and public defence of the Realm: And this agreeth also with ancient Records, the effect whereof is, Non debent mulieribus assignari in dotem Castra, quae fuerunt virorum suorum, et quae in Guerra existunt, vel etiam homagia & servitia aliquorum in Guerra existentia: And so are the old books to be intended, as it was resolved Trin. 17 Eliz. in the Court of Common Pleas. Vide infra 35. Co. ibid. 39 a. 4. Littl. §. 48. 5 If a man seized of 40 acres of land, (20 hold by Knight service, Dower de la plus beale. and the other 20 in Socage) die thereof seized (his heir being under the age of 14 years) his feme shall be endowed de la plus beale out of the Socage land, and not out of the Knight service land; for the Common Law giveth this privilege to the land holden by Knight service, that it shall not be dismembered, but in such case the whole dower shall be taken out of the Land holden in Socage; And the reason is, for that Knight service land is for the defence of the Realm, which is pro bono publico, and therefore to be favoured. Co. ibid. 47. a. 4. 4 Things shall not be distrained for rent, Distress. which are for the benefit and maintenance of trades, and (by consequent) of the Commonwealth, and are there by authority of Law, as a horse in a Smith's shop shall not be distrained for rent issuing out of the shop, nor the horse etc. in the Hostry, nor the materials in a Weavers shop for making of cloth, nor cloth or garments in a Tailor's shop, nor Sacks of Corn or meal in a Mill or Market, nor any thing distrained before for damage fesant, for it is in the custody of the Law, and the like. Co. ibid. 55. a. 4. 5 If Tenant at will sow the ground with grain, hemp, flax, Tenant at will shall reap his c●op. or the like, or set roots, or sow or set any other thing which will yield an annual profit, and after the same is so planted, the lessor will out him, or if the lessee dieth, yet he or his executors shall have that years crop; And the reason is, for that the estate of the lessor is uncertain, and therefore lest the ground should be unmanured, which would be hurtful to the Commonwealth, he shall reap the Crop which he hath sowed in peace, albeit the lessor doth determine his will before it be ripe: There is the same reason also for every other particular estate, that is uncertain; And therefore if tenant for life sow the ground, and dieth, his executors shall have the Corn, for that his estate was uncertain, and determined by the act of God; And there is the same Law of a lessee for years of the tenant for life: So likewise if a man be seized of land in right of his wife, and soweth the ground and dieth, his executors shall have the Corn, and if his wife die before him, he himself shall have it. If tenant pur term dauter vie sow the land, and Cestuy que use dieth, the lessee shall have the corn. If tenant by Statute merchant soweth the ground, and then a sudden and casual profit falleth, by which he is satisfied, he shall have the embleaments. If a man seized in fee hath issue a daughter and dieth, his wife being enseint with a Son, and the daughter soweth the land, and then the son is born, yet the daughter shall have the Corn, because her estate was lawful, and defeated by the act of God, and it is good for the Commonweaith that the ground be sown: But if husband and wife he jointenants of the land, and the husband soweth the ground, and the land surviveth to the wife, 8 Ass. pl. 21. 8 E. 3. 54. Dyer 316. It is said that she shall have the Corn and not the executors. and the Law seems to be so, because they were as one person in Law, and held by intietties. Co. ibid. 75. b. 4. 6 The tenure by Knight service being at first ordained for the defence of the Commonwealth both against domestic insurrections and foreign invasions (a Militia being indeed the chief pillar that supports a Commonwealth) the due observance thereof was strictly enjoined by the Laws of Edward the Confessor, Knight service. where you shall find it thus provided, Lamb. 135. Debent enim universi liberi homines, etc. secundum feodum suum, & secundum tenementa sua, arma habere, & illa semper prompta conservare ad tuitionem regni, & servitium dominorum suorum, juxta praeceptum Domini Regis explendum et peragendum. And William the Conqueror confirmed that Law in these words, Statuimus et firmiter praecipimus, quod omnes Comites, & Barones, & Milites, et Servientes, & universi liberi homines totius regni nostri praedicti habeant & teneant se semper in armis, et in equis, ut decet, et oportet, et quod sint semper prompti & parati ad servitium suum integrum nobis explendum & peragendum, cum semper opus adfuerit, secundum quod nobis debent de feodis et tenementis suis de jure facere, etc. The like. 7 The tenure by Knight service (because it was instituted for the Guard and defence of the Commonwealth) was so much favoured in Law, Co. ibid. 76. b. 4. that betwixt the making of the Statutes of 4 H. 7. 17. and 27 H. 8. 10. of Uses, there might lie two wardships for one and the same land, as if Cestuy que use before the Statute of 27 H. 8. had died, his heir within age, the Lord should have had the wardship of his heir by force of the Statute of 4 H. 7. and if the feoffée had died, his heir within age, the Lord should have had the wardship of his heir also, viz. by the course of the Common Law: And at the Common Law before the making of those Statutes there might be two wardships in respect of the same land, as if tenant by Knight service had made a gift in tail, the remainder in fee, and tenant in tail had made a feoffment in fee, and died, his heir within age, the Lord should have had the wardship of him, and if the feoffee had died, his heir within age, Co. ibid. 77. a. 1. the Lord should have also had the wardship of his heir, and of the land: so likewise if tenant by Knight service make a gift in tail, and the donee maketh a feoffment in fee, and the donee dieth, his heir within age, the donor shall have the wardship of him, because he is his tenant in right: but if the feoffee dieth, his heir within age, the Lord paramount shall have the wardship of his heir, because en fait he is tenant to him, etc. And the Common Law did not remedy this inconvenience, because that tenure was deemed serviceable for the Commonwealth. Tillage. 8 Agriculture or Tillage is much favoured, and of great esteem, Co. ibid. 85. b. 1. because it is very profitable for the Commonwealth, concerning which the goodness of the habit is best known by the privation: For by laying of lands, used in tilth, to pasture, six main inconveniences do daily increase: 1. Idleness, Co. l. 4. 39 a. in Tirringhams' case. which is the beginning and ground of all mischiefs: 2. Depopulation and decay of Towns: 3. Husbandry, which is one of the greatest Commodities of the Realm, is decayed: 4. Churches are destroyed, and the service of God neglected by diminution of Church-livings, (as by decay of Tithes, etc.) 5. Injury and wrong is done to Patrons and Gods Ministers: And 6. The defence of the land against foreign Enemies is enfeebled and impaired, the bodies of Husbandmen being more strong and able, and patiented of cold, heat, and hunger than of any other: from which Inconveniences necessarily follow these consequences; 1. The displeasure of Almighty God: 2. The subversion of the Policy and good government of the Realm; And all this appeareth in our books: And therefore the Common Law giveth arable land (anciently called Hyde or Gaine) the precedence before Meadows, Pastures, Woods, Mines, or any other ground whatsoever; And averia carucae (the beasts of the Plough) have in some cases more privileges than other , etc. This employment was also of high estimation amongst the ancient Romans, Co. Inst. part 1. 161. a. 1. in so much that the grave Senators themselves would put their hand to the plough, etc. If the Lord will distrain averia carucae, where there is a sufficient distress besides, the tenant may make rescous. O Fortunatos nimium, sua si bona norunt, Agricolas, quibus ipsa, procul discordibus armis, Fundit humo facilem victum justissima Tellus. Virg. in Georg. Co. ibid. 99 a. 2. 9 An Abbot or Prior, etc. who holdeth lands by Knight service, Abbot. Prior. albeit he ought not, in respect of his profession, to serve in war in proper person, yet must he find a sufficient man, conveniently arrayed for the war, to supply his place; And if he can find none, then must he pay Escuage, etc. for his possession doth not privilege him, but that the King's service in his war must be done, which belongeth to his tenure, and concerneth both the honour and safety of the Commonwealth. Co. ibid. 127. a. 4. Bract. lib. 6. fo. 6. 10 The life and members of every subject are under the safeguard and protection of the King; Life and Member. for (as Bracton saith) Vita et membra sunt in potestate Regis; And herewith agreeth a notable Record, Pasch. 19 E. 1. coram Rege, Rot. 36. Northt. Vita & membra sunt in manu Regis, to the end that they may serve the King and the Commonwealth, when occasion shall be offered: And therefore if the Lord mayhem his Villain, the King shall punish him for mayheming his subject, Villain. by fine, ransom, and imprisonment, until the fine and ransom be paid, because he hath thereby disabled him to do the King and Commonwealth service. Co. ibid. 130. a. 4. 11 The Protections Quia Profecturus (which concerns services of war, as the King's soldier, Protections. etc.) and Quia Moraturus (which concerns wisdom and counsel, as the King's Ambassador or Messenger pro negotiis regni) being for the public good of the Realm, private men's actions and suits must be then suspended for a convenient time; for Jura publica anteferenda privatis, and again, Jura publica ex privatis promiscue decidi non debent: And the cause of granting such protections must be therein expressed, to the end it may appear to the Court, that they are granted pro negotiis regni, et pro bono publico: And these protections are not allowable only for men of full age, but for men within age, and for women, as necessary attendants upon the Camp, and that in three cases, Quia Lotrix, seu Nutrix, seu Obstetrix. Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth; Protection. And therefore the King (who is the Head of the Commonwealth) is regularly (by his prerogative) to be preferred in payment of his duty or debt by his debtor before any subject, albeit the King's debt or duty be the later; upon which ground it is, that the King may grant his debtor a protection cum clausula volumus, to protect him from the suits and actions of other Creditors: And the reason hereof is, for that Thesaurus Regis est fundamentum belli & firmamentum pacis: But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19 quod vide. Co. ibid. 132. b. 3. If a Monk be a farmer of the King, yielding a rent, Monk. he shall have an action concerning that farm, because the King's revenue is also the revenue of the Commonwealth. Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King, Queen. and is capable of lands or tenements of the gift of the King, as no other feme covert is, and is of ability and capacity (without the King) to grant and to take, to sue and be sued, as a feme sole at the Common Law; for the wisdom of the Law would not have the King (whose continual care and study is for the public, & circa ardua regni) to be troubled and disquieted with such private and petty causes. Co. ibid. 149. a. 2. & Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat, Service. Tenant. or a pound of Cumin, or pepper, or the like, and the Lord purchaseth part of the land, there shall be an apportionment, as well as if the rent were in money: yet if the rent were by one grain of wheat, one séed of Cumin, one pepper Corn, a horse, or any other entire service, by purchase of part, the whole should be extinct: Howbeit if such an entire service be pro bono publico, as Knight service, Castleguard, Cornage, etc. for the defence of the Realm, or to repair a bridge or way, to keep a Beacon, or to keep the King's Records; or for avancement of justice and peace; as to aid the Sheriff, or to be Constable of England, albeit the Lord purchaseth part, yet the entire service remains. See bruerton's case, Co. l. 6. 1. b. 4. & Jo. Talbots, l. 8. 105. b. 4. Authority. 15 If a man make a Letter of Attorney to two, to do any act, Co. ibid. 181 b. 3. if one of them die, the survivor shall not do it: but if a Venire facias be awarded to four Coroners, to impannel and return a jury, and one of them die, yet the other shall execute and return the same; because it is for the execution of justice, and (by consequent) pro bono publico: so if a charter of feoffment be made, and a Letter of Attorney to four or three jointly and severally to deliver seisin, two of them cannot make livery, because it is neither by them four or three jointly, nor by any of them severally: But if the Sheriff upon a Capias directed to him, make a warrant to four or three jointly or severally to arrest the defendant, two of them may arrest him for the reason aforesaid, and for the same reason such an act shall be more favourably expounded, than a private one; for jura publica ex privato promiscua decidi non debent. Tenants in Common and Joyntenants. 16 If there be two tenants in Common of a Manor, Co. ibid. 200. a. 3. etc. to which waif and stray doth belong, a stray happens, they are tenants in Common thereof; And yet if one of them take the stray, the other hath no remedy by action, but to take it again; unless they have a prescription to take strays by turns: Howbeit if there be two tenants in Common of a Dove-house, and the one wholly destroys the flight; or of a folding, and one disturbs the other to erect hurdles; In these cases an action of trespass lieth against the other, because they are offences committed in prejudice of the Commonwealth. If two several owners of houses have a River in common between them, and the one corrupts the River, the other shall have an action upon his case against his companion: So if there be two tenants in Common or jointenants of an house or Mill, and it fall into decay, and the one is willing to repair it, and the other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith, Ad reparationem et sustentationem ejusdem domus teneantur, whereby it appeareth, that owners are in such case bound pro bono publico to maintain houses and mills, which are for the habitation and use of men. Offices. 17 Non-user of itself without some special damage is no forfeiture of Private offices, as the Kéepership of Park or the like: Co. ibid. 233. a. 4. But Non-user of Public offices, which concern the administration of justice, or the Commonwealth, is of itself a cause of forfeiture. Repair by the lessee. 18 In many cases a tenant for life or years may fallen down timber to make reparations, albeit he be not compellable thereunto, Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste: As if an house be ruinous at the time of the lease made, if the lessée suffer the house to fall down, he is not punishable, for he is not bound by Law to repair the house in that case; and yet if he cut down timber upon the ground so let, and repair it, he may well justify it; And the reason is, for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind, and are (by consequent) beneficial to the Commonwealth: And therefore if the lessor by his Covenant undertake to repair the house, yet the lessee (if the lessor doth it not) may with the timber growing upon the ground repair it, though he be not compellable thereunto: In like manner if a man make a lease of an house and land without impeachment of waste for the house, yet may the lessée with the timber upon the ground repair the house, though he may utterly waste it if he will; and so it is in many other cases for the reason above alleged. Co. l. 4. 14 b. 1. Cutle● and dixon's case. 19 If a man exhibit articles to justices of Peace against another, Slander. containing divers great abuses and misdemeanours, to the intent to have him bound to the good behaviour; In this case, the party accused shall not have for any matter contained in such Articles any action upon the case: because he hath pursued the ordinary course of justice in such case provided: And if actions shall be permitted in such cases, they who have just cause to complain would not dare to make such complaint, Co. ibid. Si● R ch. Buckleys case. for fear of infinite vexation. So if a man had exhibited a Bill in the Star-chamber against another, containing divers scandalous accusations, albeit they were false, yet no action upon the case would lie for them, if they were examinable in that Court; because the proceeding was in a Course of justice, whereunto the Law giveth favour, because it tends to the good of the Commonwealth. See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams' case. 20 In ancient time when a Lord enfeoffed another of arable land, Tillage. to hold of him in Socage, viz. per servitium Socae, the feoffée ad manutenendum servitium Socae had Common in the wastes of the Lord for his necessary , that gained and compossed the land; not only because that liberty was employed in the feoffment, (for he could not blow and compass the land without , and they could not live without pasture to sustain them) but such Common appendent was principally given him for the maintenance & advancement of tillage, which is much regarded and favoured in Law, because it is one of the chiefest supports of the Commonwealth; so as such Common appendent is of Common right, and began by operation of Law, and in favour of tillage, and therefore needs not prescription (as it was held in 4 H. 6. & 22 H. 6.) which it ought to have, if it were against common right: Howbeit it is only appendent to the ancient arable Hyde and Gain, and only for horses and oxen to blow the land, and for Cows and Sheep to manure it; And all this for the melioration and advancement of tillage, as aforesaid: And with this agrees 37 H. 6. 34. per tot. Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in B●verleys case. 21 No felony or murder can be committed without a felonious intent and purpose, Nam ideo dicta est felonia, Non compos mentis. quia fieri debet felleo animo; And therefore a Mad man cannot commit felony, because he cannot have a felonious intent: so likewise if a feme Non compos mentis kill her husband, it cannot be Petty treason: Howbeit in some cases Non compos mentis may commit high treason, as if he kill or offer to kill the King, that is high Treason; For the King est Caput et salus Reipublicae, & a capite bona valetudo transit in omnes, and for that cause their persons are so sacred, that no man ought to offer them violence, and if he do, he is Reus criminis Laesae Majestatis. Co. l 5. 63. a 2. in the Chamberl●●n of London's case. 23 The Inhabitants of a Town (without any custom) may make Ordinances or By-laws, for the repair of the Church, By-Lawes. or of an Highway, or any other such thing, which is generally for the good of the Commonwealth, and in such case the greater part shall bind all without any custom. Vide 44 E. 3. 19 Also Corporations may make Ordinances or Constitutions (without custom or the King's charter) for things which concern the Commonwealth, as reparations of the Church, common Highways or the like. Vide 8. E. 2. Assize 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20, & 40. Co. l. 5. 63. ●. 4. 23 The Act of the Common Council of London for bringing of Cloth to Blackwell-Hall to be searched, Constitutions and the imposition of a penny for tallage upon every Cloth, were adjudged lawful constitutions, because they were beneficial to the Commonwealth, and not for any private profit. Constitutions. 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albon, Co. l. 5. 64. a. Clerks case. a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term, and every Inhabitant was enjoined to pay his respective assessment on pain of imprisonment; Clerk an Alderman (who also consented to the assessment) refused to pay his proportion, and thereupon being imprisoned by the Mayor, did bring an Action of false Imprisonment against the Mayor, and had judgement to recover, because the Constitution was against Magna Charta, cap. 29. Nullus liber homo imprisonetur, etc. Howbeit if the Constitution had been upon a pain of a reasonable sum of money, and distress or action of debt for the recovery thereof, the Mayor might have justified the distress or action; because it was pro bono publico, that the Town should make provision for the Term, and the rather, for that E. 6. who did incorporate them had granted them power to make Ordinances: Albeit Corporations within time, &c. cannot have that privilege, but by Parliament, when it is pro commodo privato. See Co. l. 8. 127. b. Penalties of Statutes not transferrable. 25 When a Statute is made by Parliament for the public good of the Realm, Co. l. 7. 36. b. 3. in the cases of Penal Statutes. the King cannot give the penalty or benefit thereof to any subject, or give him power to dispense with it, or to make a warrant to the Great Seal for licenses in such case to be made; for when a Statute is made pro bono publico, and the King (as the head of the Commonwealth, and the Fountain of. justice and Mercy) is by all the Realm trusted with it, this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Sovereignty, that he cannot transferr it to the disposition or power of any private person, or to any private use; because it is committed to the King by all his Subjects for the Common good, and if he might grant the penalty of one Act, he may also grant the penalty of two, and so in infinitum. Dangerous to have London too populous. 26 The Custom in London, that a Foreiner shall not sell by retail, Co. l. 8. 127. b. 2. in the case of the City of London. was adjudged good, because it was beneficial not only for the Citizens, but likewise for the whole Commonwealth; for that it would prevent the confluence of people from all parts of the realm to London, which confluence might produce 3. great inconveniences: 1. Impoverishment of all the good Towns in England: 2. Depopulation of Towns in every Country: 3. Destruction in the end of all trades and tradesmen in every part of the Realm: Besides, it might be a means to increase the Pestilence by reason of the multitude of people, and pestering the air, whereby it might prove dangerous not only to the Subject, but likewise to the King himself and the Great Lords who attend upon his royal person: Again, if London should be too populous, it would become ungovernable by the Magistracy of the City, and if that City (which is tanquam Epitome totius regni) should not be well governed all the parts of the Realm would find the inconvenience thereof, whereas when that City shall be well governed, all parts of the Commonwealth will be preserved in better order: Lastly, that City becoming too populous, it will not be subject to search, etc. not only in prejudice of the City itself, but likewise of the King and the whole Commonwealth, because then fraud and deceit will increase in all Merchandise and things vendible. Plea. Accord. 27 Accord with satisfaction is a good plea in an Ejectione firmae, Co. l. 9 78 a. 3. Henry Petoes case. for that is mixed with trespass; and (indeed) in all actions, which suppose a tort to be done (where Capias and Exigent do lie) there an Accord is a good plea, because it redeems the body from imprisonment, so as men (being at liberty) may go about their business, which is good for the Commonwealth. Co. l. 10. 108. b. 3. Lofi●lds case. 28 If there be Lord and Tenant by Knight service, Tenure. and the tenant gives the tenancy to two men, and to the heirs of their bodies, and they die having issue, their issue shall hold severally by Knight service, because it is for the defence of the Lord, and of the Realm. Vide supra 14. Co. l. 11 54. a. The Tailors of Ipswich case. 29 An Ordinance of a Corporation, Corporation Ordinance. that none shall exercise any trade there, unless he hath served 7. years as an apprentice in the same, and shall also be approved by them to be skilful therein, is not good, because against the Common Law, which restrained no man from exercising any trade, and also prejudicial to the Commonwealth, for that it puts a greater restraint upon Tradesmen, than the Statute of 5 Eliz. doth ordain, in as much as he ought also to be approved by them, which the Statute doth not enjoin; for if he be ignorant of his trade, an action upon the case lieth for his misdoing; as it did also at the Common Law before the Statute; neither doth the Stat. restrain a Tailor or other Artificer retained to exercise his trade in a private house. And the Statute of the 19 H. 7. strengthens not any Ordinance against the Law or the Commonwealth, though allowed, as that Statute ordains; the allowance only discharges the penalty of 40 l. for making Ordinances against the King's prerogative and the Commonwealth. Co l. 11. 72. a. b. Magd. Coll. case. 30 The King is bound by the Statute De donis, though not named, Statutes binding the King. because it is an Act, which concerns the Commonwealth, and was ordained for the preservation of the possessions of the Nobility, Gentry, and others; so the Statute of 13 Eliz. 10. made for the prevention of long leases, and dilapidations of Colleges, Cathedrals, Hospitals, etc. doth bind the King, albeit not named, because those Corporations were trusted with their possessions pro bono publico, & for the use of the Commonwealth, & for the same reason that Act hath in all cases had a benefical and favourable construction to the prevention of all inventions and evasions, Co. ibid. 76. a. 2. against the true Intention of the same Act. Co. l. 11. 86 a. 3. & b. in the case of Monopolies. 31 One of the Chiefest reasons, Monopolies. why the Monopoly of the sole making and importing of Cards, and all other Monopolies are prohibited by Law, is, for that there are three inseparable incidents to every Monopoly against the Commonwealth: 1 The price of the Commodity will be raised, for he who hath the sole vendition of any commodity, may and will make the price as he pleaseth: And this word Monopolium is compounded of these Greek words, μόνοϲ and πωλεομαί, id est, cum unus solus aliquod genus mercaturae universum emit, pretium ad suum libitum statuens; And the Poet saith, Omnia Castor emit, sic fit ut omnia vendat. Also it appears by the writ of ad quod damnum (F. N. B. 222) that every gift or grant of the King hath this condition, either expressly or tacitly annexed unto it, Ita quod Patria per donationem iliam magis solito non oneretur seu gravetur: And therefore every grant made in grievance or prejudice of the Subject is void, (Vide 13 H. 4. 14.) The second Incident to a Monopoly is, that after the Monopoly granted, the Commodity is not made so good and merchantable, as it was before; for the Patentée having the sole trade, regards his private benefit only, and not the Commonwealth. 3. This tends to the impoverishment of divers artificers and others, who before by the labour of their hands in their art or trade did sustain themselves and their families in good condition, and having also by that means increased their substance, were fit and ready to serve the King, when need should require; but by the grant of such a Monopoly they are reduced to such necessity, that ever after they are constrained to live in idleness and beggary, etc. Munition & Treasure of the King. 32 Munition (though unserviceable) cannot be claimed as fees belonging to the Master of the Ordnance, Co. l. 11. 91. b. 4. The Earl of Devons case. because they were provided for the defence and safeguard of the King and Commonwealth; and therefore albeit the King grant them to him, and then he dies, yet his executors shall not have them, but shall be accountable to the King for them: And for the same reason it is, that no officer of the King, or all of them together, can ex officio, issue or dispose of the King's treasure, although it be for the honour and profit of the King himself: for although it be true, that it is for the honour and benefit of the King, that good service done unto him should be rewarded, yet it ought to be rewarded by the King himself, or by his warrant, & not by other; because the treasure of the King (being the ligament of Peace, the preserver of the Honour and Safety of the Realm, and the sinews of War, all which do much concern the Commonwealth) is of so high an estimation in Law, in respect of the necessity thereof, that the imbezilling of treasure trove, although it were not in the King's Chests, was Treason; And treasure and other valuable chattels are so necessary and incident to the Crown for the reasons aforesaid, that in the King's case they shall go with the Crown to the successor, and not to the executors, as in case of a common person, as appears in 7 H. 4. 43, & 44. Escape. Statutes extendible by equity. 33 Albeit the Statute of 1 R. 2. 12. be penal, Pl. Co. 56. b. Plaits case. and gives an action of debt only against the Warden of the Fleet, yet is extended by equity against all other persons, who have the Custody of prisoners in execution, because it is good for the Commonwealth; for although it is penal against the Warden, yet being also extended against all others so chargeable with prisoners, it is beneficial to the Commonwealth; And (indeed) every Statute is penal against some man; but in as much as the taking of it by equity is more beneficial than prejudicial to the greater number of men, and so (by consequent) to the Commonwealth, it is good reason, that it should be by the Rules of Law extended by equity: So likewise the Statute of Circumspect agatis in 13 E. 1. is, Pl. Go. 59 b. in Wimbish and Talbois case. Vide Pl. Co. 82. a. the Stat. of 32 H. 8. 9 of pretenced titles extended also by equity. viz. Circumspect agatis de negotiis tangentibus Episcopum Norwicensem & ejus Clerum, and yet it is extended to all other Bishops; Likewise the Statute of 9 E. 3. cap. 5. which ordains, that the executor, who comes in first by distress, shall answer, is extended by equity to Administrators: Also the Statute of Westm. 2. cap. 3. 13 E. 1. which gives a Cui in vita upon a recovery by default, is extended by equity to a Cui ante Divortium; And the Statute of Marlbridge, cap. 6. which makes mention only de hiis qui primogenitos suos infra aetatem existentes feoffare solent, and yet if his first son die, and he enfeoff his second son, who is his heir, this is within the equity of that Statute, or if he levy a fine to him, which is a matter of Record, that is also within the equity of the same Statute, and yet the Statute speaks only of a feoffment: But regularly all Statutes, which are for the advancement of justice, or beneficial to the Commonwealth, are extendible by equity. Torts justifiable. 34 In some cases a man may justify to do a wrong, Dyer 36. Pl. 40, 29 H. 8. which tends to the good of the Commonwealth, as in time of war a man may justify to make Bulwarks in another man's soil without licence; So may he justify to pull down an house that is on fire, for the safeguard of the neighbouring houses: also if the Sheriff pursue a fellow to an house, he may justify to break open the house door to take him; for all these and the like sound to the good of the Commonwealth. Co. Inst. pars 1. 165. a. 4. 35 If a Castle that is used for the necessary defence of the Realm, Coparceners. descend to two or more Coparceners, this Castle might be divided by Chambers and Rooms, as other houses be, but yet for that it is pro bono publico, & pro defensione Regni, it shall not be divided, Propter jus gladii dividi non potest (Fleta l. 5. cap. 9) And another saith, (briton 186, 187.) Pur le droit del espee, que ne souffree division, en aventure que la force del Realm ne defaille pas tant: But Castles of habitation for private use, that are not for the necessary defence of the Realm, may be parted amongst Coparceners as well as other houses, and wives may be thereof also endowed, as before hath been said, supra 2. Co. Inst. pars 1. 14. a. 36 In King alfred's time Knights fees descended to the eldest son; Knight service, Socage. for that by division of them between Males the defence of the Realm might be weakened; but in those day's Socage-fee was divided between the heirs male, and therewith agreeth Glanvile, (lib. 7. cap. 1. & 3. Cum quis haereditatem habens moriatur, si plures reliquerit filios, tunc distinguitur, utrum ille fuerit Miles, sive per feodum militare tenens, aut liber Sockmannus, quia si miles fuerit aut per militiam tenens, tunc secundum jus regni Angliae primogenitus filius patri succedit in toto, etc. si vero fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes filios, etc. 198 Public Commerce. Vide supra 198, 31. Co. Inst. pars 1. 2. b. 2. 1 If an Alien take a lease for years of Lands, Meadows, Alien. Trade. etc. or (being no Merchant) taketh a lease for years of an house for habitation, upon office found, the King shall have them; for albeit he be capable to take such a lease, or lands, tenements, or hereditaments to him and his heirs, yet upon office found, the King shall have them by his prerogative: Howbeit he being a Merchant, may take a Lease for years of an house for habitation, as incident to Commercery, for without habitation he cannot merchandise or trade; But if he be no Merchant, or being a Merchant departed the Realm, the King shall have the Lease; or if he die possessed thereof, neither his executors or administrators shall have it, but the King; for he had it only for habitation, as necessary to his trade or traffic, unto which the Common Law giveth much favour. Co. ibid. 129. b. 1. 2 An alien enemy shall not maintain any action real, personal, Alien. Actions. or mixed, donec terrae fuerint communes: Howbeit (in favour of trade) an alien in league may maintain personal actions; because such an Alien may trade and traffic, buy and sell; And therefore he must of necessity be of ability to have personal actions, or being condemned in an information, he may have a writ of Error to relieve himself: but he cannot have either real or mixed actions. Co. ibid. 172. a. 3. 3 Regularly, Merchant's account. a Receiver (upon his account) shall not be allowed his expenses and charges, yet in some case in an action of account against one as Receptor denariorum, he shall have allowance of his expenses and charges, and also shall account for the profit he received, or might reasonably receive; And this was provided by Law in favour of Merchants, and for advancement of trade and traffic; As if two joint Merchants occupy their stock, goods, and merchandise in common to their common profit, one of them naming himself a Merchant, shall have an account against the other, naming him also a Merchant, and shall charge him as Receptor denariorum ipsius B. ex quacunque causa & contractu ad communem utilitatem ipsorum A. & B provenientium, sicut per legem Mercatoriam rationabiliter monstrare poterit. Merchants. 4 Survivorship holdeth not betwixt two joint-merchants; Co. ibid. 182. a. 2. for the wares, merchandizes, debts, or duties, which they have as joint-merchants, or Parceners, shall not survive, but shall go to the executors of him that deceaseth; And this is per legem Mercatoriam, which is part of the Laws of this Realm, for the advancement and continuance of Commerce and trade, which is pro bono publico; for the Rule is, that Jus accrescendi inter mercatores pro beneficio commercii locum non habet. Trade. 5 One of the chiefest reasons, why a Condition not to alien, Co. ibid. 223. a. 2. annexed to a feoffment, devise, or gift of lands or goods, is void, is, for that it is flatly against trade and traffic, bargaining and contracting, between man and man. Vide infra 9 Monopolies. 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void, because it restrained trade and traffic, Co. l. 8. 125. a. 3. the case of London. which are the very life of every Commonwealth, and principally of an Island. There is the same reason of all other Monopolies. Vide Co. l. 11. 87. Guilda. 7 In favour of trade and traffic, Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam, viz. a Fraternity, Society, or Incorporation of Merchants, to the end that good order and government may be by them observed, for the increase and advancement of Merchandising and trade, and not for the hindrance and diminution thereof. Trade. Idleness. 8 At the Common Law none could be prohibited to work in any lawful trade, Co. l. 11. 53. b. 4. The Tailors of Ipswich for the Law abhors Idleness the Mother of all mischief, Otium omnium vitiorum mater, and principally in young people, who ought in their youth (which is their séed-time) to learn lawful sciences and trades, which are for the advancement of traffic, and profitable to the Commonwealth, and thereof they ought to reap the fruit in their old age, For Jeunesse Oisense, Vieillesse disettense: And therefore the Law detests Monopolies, which prohibit the exercise of lawful trades; And this appears in 2 H. 5. b. where a Dyer was bound, that he should not use the Dyers trade by the space of two years, and there Hall held, that the obligation was against the Common Law; and added farther, Per dien si le plaintiff fuit icy, il iroit all prison, tanque il feroit fine all Roy. Tail. 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion, that tenant in tail by a fine might have barred his heir, Dyer 32. 28. & 29 H. 8. albeit the reversion were in the King; because the Law always disfavours restraint of alienation in prejudice of trade and traffic. Vide supra. 5. 199 Honour and Order. Tenant by Courtesy. 1 A man shall be tenant by the Courtesy of an house, Co. Inst. pars 1. 30. b. 2. that is Caput Baroniae, or Comitatus, because so it may be still preserved entire; but it appeareth by 4 H. 3. that a woman shall not be endowed thereof, because in such case it should be severed, which the Law will not permit, for that the Law respecteth Honour and Order. Vide Title Dower 180. Villain. 2 Amongst the cases where the Villain shall be privileged from the seizure of the Lord, albeit he be not absolutely enfranchised, Co. ibid. 137. b. 3. this is one, viz. Ratione dignitatis, as if the Villain be made a Knight, the Lord cannot seize him. Vide Britton 79. Challenge. 3 A Péer of the Realm, Co. ibid. 156. b. 3. or Lord of Parliament (as a Baron, Viscount, Earl, Marquess, or Duke) in respect of Honour and Nobility are not to be sworn on juries, and if neither party will challenge him, he may challenge himself; for by Magna Carta it is provided, Quod nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, aut per legem terrae: Now in reference to Honour and Order the Common Law hath divided all the Subjects into Lords of Parliament, and into the Commons of the Realm: The Peers of the Realm are divided into Barons, Viscounts, Earls, Marquesses, and Dukes; And the Commons are divided into Knights, Esquires, Gentlemen, Citizens, Yeomen, and Burgesses; and in judgement of Law, any of the said degrees of Nobility are Peers to another: As if an Earl, Marquess, or Duke be to be tried for Treason or Felony, a Baron, or any other degree of Nobility is his Peer: In like manner a Knight, Esquire, etc. shall be tried per pares, and that is by any of the Commons, as Gentlemen, Citizens, Yeomen, or Burgesses, so as when any of the Commons is to have a trial, either at the King's suit, or between party and party, in such case a Peer of the Realm shall not be impanelled. Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honour and Dignity there is an ancient Book-case in 23 H. 3. Tit. Partition 18. in these words; Note, Noble women Coparceners. if the Earldom of Chester descend to Coparceners, it shall be divided between them, as well as other lands, and the eldest shall not have this Seignory and Earldom entire to herself; Quod Nota, adjudged per totam Curiam. By this it appeareth, that the Earldom (viz. the possessions of the Earldom) shall be divided, and that where there be more daughters than one, the eldest shall not have the dignity and power of the Earl, that is, to be a Countess; but in such case the King, who is the Sovereign of Honour and Dignity, may for the uncertainty confer the Dignity upon which of the daughters he please: And this hath been the usage since the Conquest, as is said (Vide 3 H. 3. tit. Prescription.) Howbeit if an Earl, that hath his dignity to him and his heirs, dieth, having issue one daughter, the dignity shall descend to the daughter and her posterity; for there is no incertainty: And this appeareth by many precedents, and by a late judgement given in Samson leonard's case, who married with Margaret, the only sister and heir of Gregory Fines Lord Dacre of the South, and in the case of William Lord Ros. Howbeit, there is a difference between a dignity or name of Nobility, and an office of Honour: for if a man hold a Manor of the King to be Constable of England, and die, having issue two daughters, and the eldest daughter taketh husband, he shall execute the office solely, and before Marriage it shall be exercised by some sufficient Deputy, and all this was resolved by all the judges of England in the Duke of Buckingham's case, 11 Eliz. Dyer 285. But the Dignity of the Crown of England was (without all question) descendible to the Eldest daughter alone, and to her posterity; and so it hath been (25 H. 8. cap. 22.) declared by Act of Parliament: for Regnum non est divisibile, and so likewise was the descent of Troy, as appears by Virg. Aeneid. 1. Praeterea Sceptrum Ilione, quod gesserat olim Maxima natarum Priami— Co. l. 1. 24. b. 4. in Porter's case. 5 judges in their resolutions ought to have a special care, Go●d uses. that the honour of the Law be not prejudiced nor any way blemished: And therefore in Porter's case in the 1. Rep. one of the reasons, why good & charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was, because it would be dishonourable to the Law of the Land to make such good uses void, and to restrain well-minded people to give lands to good and charitable uses; And if that or any other Statute should be made directly against the Law of God, Doct. & Stud. lib. 1. cap. 6. as if it should be ordanied, that none should give Alms to any, in what necessity soever they were, or the like, the judges (in point of Honour to the Law) ought to adjudge such a Statute void. Libel. 6 In a settled state of Government, if an injury be offered, Co. l. 4. 125. b. 1. In the c●ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling, or otherwise; but aught to make complaint thereof to the Magistrate in an ordinary Course of Law. King's grant. 7 It hath been always the gravity of the ancient Sages of the Law to construe the Kings grants beneficially for his Honour, Co. l 6 6. a. Sir John Molins' case, & Co. l. 9 131. a. in Bewleys case. and the relief of the Subject, and not to make any strict or literal construction in subversion thereof: And therefore E. 3. being Lord, an Abbot Mesne, and the Tenant attainted of Treason, the King grants to I. M. to be held of us, and other chief Lords of the fee, by the services, etc. In this case the Mesnalty was adjudged to be revived; for that the words were sufficient to create a tenure in the Mesne, as it was before the Treason; because that seemed to be the King's intention, and was also consonant to equity, viz. that the Mesne who offended not, should not lose his services; And therefore in such case the grant shall be taken beneficially for the Honour of the King, and for the relief of the Mesne; neither yet can the words Tenendum, etc. have any other reasonable construction. Arrest of Peers. 8 The person of one, who is in Law a Countess by marriage, Co. l. 6. 52. b 3. The Countess of Rutl. case. or by descent, is not to be arrested for debt or trespass; for albeit (in respect of her sex) she cannot sit in Parliament, yet is she a Péer of the realm, and shall be tried by her Péers, as appears by the Statute of 20 H. 6. 9 which was but a declaration of the Common Law: And there are two reasons why her person shall not be arrested in such cases: the one, in respect of her dignity; and the other in respect that the Law presumes, that she hath sufficient lands and tenements, in which she may be distrained: There is the same reason for a Lord, that is a Péer of Parliament. Oath of Allegiance. 9 To preserve the King's Honour and Safety, Co. l. 7. 6. b. 3 in calvin's case. and good order in the Government of the Commonwealth, the Oath of Allegiance was invented and enjoined (as it is said in Lamb. 135, 136.) by King Arthur to be taken in Folkmoteses, now called Turns and Leets: Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno, etc. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit. Homage. fealty. 10 Homage and Fealty, Co. l. 10. 108. b. 2. in Humphrey Lofields' case. were at first ordained for the preservation of order in the Common wealth, and being servicces of fidelity do require multiplication; And therefore if a man seized of two acres, the one, at the Common Law, and the other in Borough English, and make a gift in tail of both, and the donée having issue two sons dies, both the sons shall make fealty; There is the same Law also of Homage, whether it be reserved by the party or created by the Law: so likewise if the donor die having two sons, both the s os shall have homage and fealty. King. 11 In a writ de Cautione admittenda these words, F.N.B. 66. a. De gratia nostra speciali, are not words of necessity, but of form only. for the Honour of the King; for he ought of right to make restitution of the goods of the Clerk, before seized by the Sheriff. Fines in Courts. 12 For the better preserving of order in the Commonwealth, Co. l. 8 38 b. 3. in Grieslyes' case. if any contempt or disturbance be committed in any Court of record, the Law giveth the judge or judges thereof power to impose upon the offenders a reasonable fine; And this holds not only for the Superior Courts at Westm. but likewise for all inferior Courts, which are of Record; And therefore in a Léet (being a Court of Record, and the Steward judge there) if any contempt or disturbance to the Court be committed before the Steward there, he may impose a reasonable fine upon the offenders; as if the Bailiff there refuse to execute his office, the Steward may assess upon him a reasonable fine; and with this agrees 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet, the Steward may impose a reasonable fine upon him, as it was held 10 H. 6. fo. 7. Also if one of the jury in a Léet departed without giving up his verdict, he shall be fined by the Steward, as appears in the book of Entries, fol. 149. Et sic de similibus. Dyer 107. b. 27. 13 When a Peer of the Realm is party to a suit, Challenge. there ought to be one Knight at least impanelled of the jury, otherwise it is a good Challenge for the Peer. 200 Public quiet. Co. Inst. pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled, Fortresses. etc. or other fortress defensible, without the King's licence, for the danger which might ensue in disturbance of the peace and quiet of the Realm, if every one at his pleasure might do the like. Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure, Escuage. yet because the assessment concerned so many and so great a number of the Subjects of the Realm, lest it might disturb the public quiet thereof, it could not be assessed by the King, or any other, but by the Parliament only. Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea (amongst other things) saith thus, None shall go beyond sea. Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre congee, car issint poet le realm remainder disgarny de fort gente, because if many others should do the like, and by that means the Realm be left unfurnished of able and powerful men to serve the King, that might tend much to the disturbance of the public quiet thereof. Vide supra 198, 35. & infra 16. & Max. 78. 27. & Dyer 128. pl. 61. Co. ibid. 246. a. 1. 4 Regularly, Infant. no lachess shall be adjudged in an Infant within the age of 21 years; yet the Public Repose of the Realm, concerning men's freeholds and inheritances, shall be preferred before the privilege of Infancy, in case of a fine, when the five years begin in the time of the Ancestor. Vide Pl. Co. 372. Co. ibid. 328. a. 3. 5 The disseisee, Release. Feoffment. or any other that hath a right only by his release or confirmation, cannot make any discontinuance, because nothing can pass thereby, but that which may lawfully pass: But otherwise it is of a feoffment, in respect of the livery of seisin, for that it is the most solemn and common assurance in the Country, and to be maintained for the Common quiet and repose of the Commonwealth. Co. ibid. 361. b 3. Co. l. 1. 106. a. 4. in Shelley. case. 6 If a judgement be given against a tenant in tail upon a faint or false action, and tenant in tail die before execution, Common recovery. no execution can be sued against the issue in tail: But if in a Common Recovery judgement be had against tenant in tail, where he voucheth, & hath judgement to recover over in value, albeit the tenant in tail dieth before execution, yet the Recoveror shall execute the judgement against the issue in tail, not only in respect of the intended recompense, but likewise for that it being the Common assurance of the Realm, is much favoured in Law for the public quiet and repose of the Commonwealth. Co. ibid. 161. a. 3. 7 Encloser is adjudged in Law a disseisin of the rent, Encloser. because the Lord cannot justify to break open the gates, or break down the Enclosures to take a distress, for that would be in disturbance of the public peace and quiet of the Commonwealth. Exchequer Seal. 8 The judges in general cases have great respect and consideration, Co l. 2. 17. a. 1. Lanes case. that their judgement may not impeach or prejudice a multitude of people against ancient and common approbation; and therefore in Lanes case in the 2 Rep. a lease under the Exchequer seal was adjudged good, albeit by the Common law no grant of any land by the King is available or pleadable, but under the Great Seal, yet the ancient usage of that Court makes such leases to be good and available in in Law; For if such leases should not be good, great mischief would ensue thereupon, because an infinite number of leases and grants under the Exchequer Seal would be said to be void, and as great a number of grants of reversions expectant upon such leases would be void also, for if the King grant a reversion, where he hath a possession, his grant is void: And therefore, lest their judgement in that case might disturb the public repose of the Commonwealth, leases under the Exchequer Seal were adjudged good and available in Law, as aforesaid, etc. Common assurances. 9 In Common Recoveries, Co. l. 2. 75. a. 3. in the Lo. Cromwel's case. and other common assurances it would be a thing too perilous to make any construction against the general allowance thereof, for thereupon would arise infinite contentions, quarrels and suits, which would be inconvenient, and stir up trouble and disquiet in the Commonwealth, whereas the end of the Law is to settle and establish repose and tranquillity betwixt man and man concerning their possessions. Imprisonment 10 The body of the defendant was not liable to the execution for debt at the Common Law, Vide 13 H. 4. 1. Co. l. 3. 12. a. 3. in Sir William Harberts' case. But the Common Law, which is the preserver of the Common peace of the land, abhors all force as the Capital enemy thereof; And therefore against such as commit any force, the Common Law subjects their bodies to Imprisonment, (which is the highest execution, and whereby he loseth his liberty) until he hath agreed with the party, and made fine to the King. False News. 11 The Statutes of Westm. 1. cap. 33. and of 2 R. 2. cap. 5. which prohibit false and scandalous news, Co. l. 4. 13. Actions of Slander. whereby debate might arise between the Lords and Commons in disturbance of the peace and quiet of the Commonwealth, seem to be but declarations of the Common Law; for (doubtless) that offence was punishable at the Common Law before the making of those Statutes, because it was prejudicial to the peace and repose of the Commonwealth, and might be a cause to raise Sedition in the Realm; As the Poets describes it. Ac veluti magno in populo cum saepe coorta est Seditio, saevitque animis ignobile vulgus, Jamque faces & saxa volant, furor arma ministrat. In which tumults another Poet saith, Non novit medium rustica progenies. Murder. Constable. 12 If upon an Affray made, Co. l. 4. 40. b. 4. in Young's case, & Co. l. 9 66. a. 4. & 68 a. 4. in Mackallyes case. the Constable and others in his assistance come to suppress the Affray, and to keep the peace, and in doing their office the Constable or any of his assistants are slain, this is murder in Law, albeit the Murderer did not know the party that was slain, and although the affray was sudden; because the Constable and his assistants come by authority of Law to keep the peace, and to prevent the danger that might ensue by the breach thereof; and therefore the Law adjudgeth it Murder, and that the Murderer had malice prepense, because he opposed himself against the justice and public repos● of the Commonwealth: So if a Sheriff or any of his Bailiffs or other Officers be slain in the execution of a process of Law, Co. l. 5. 71. b. in Saint-iohns' case. or in doing their office, it is Murder: Guns. There is the same Law also of a Watchman, that is slain in doing his office: Upon the same reason it is, that the generalty of the Statute of the 33 H. 8. 6. prohibits not Sheriffs and their officers to carry about them (in execution of justice, and in order to the peace and quiet of the Realm) the weapons therein forbidden. Co. l. 5. 91. b. 1 in Swains case. 13 In order to the general peace and quiet of the Commonwealth every man's house is to him as his Castle and Fortress, A man's house his Castle. as well for defence against injury and violence, as for his repose, And albeit the life of a man is a precious thing, and much favoured in the eye of the Law, so as albeit one man kill another in his own defence, or per infortuniam, without any intent, yet the Law adjudgeth that felony, and thereby he shall forfeit all his goods and chattels, for the great regard that the Law hath to the life of a man: Howbeit, if Thiefs assault a man's house to rob or murder him, and the owner or his servants kill any of the Thiefs in defence of himself and his house, this is not felony, neither shall he lose any thing thereby; And with this agrees 3 E. 3. Tit. Corone 303. & 305. & 26 Ass. pl. 23. So likewise it is held in 21 H. 7. 39 that a man may justify to assemble his friends and neighbours to defend his house against violence, but not to go with him to the Market or elsewhere to guard himself from violence: And all this to establish quiet and tranquillity in the Commonwealth. Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libel (which is called famosus Libellus, Libels. seu infamatoria scriptura) is made either against a private man, or against a Magistrate, or public person: if it be made against a private person, it deserves a severe punishment, for albeit the Libel be only made against one, yet it invites all of the same family, kindred, or society to revenge, and so tends (by consequence) to quarrels and disturbance of the peace and quiet of the Commonwealth, and may be the cause of effusion of blood, and of great inconvenience: If it be against a Magistrate or other public person, that is yet a greater offence, for this concerns not only the breach of the peace, but the scandal of Government; because what greater scandal can there be to Government, than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him? Neither can there be greater imputation to the State, than to permit such corrupt men to sit in the sacred seat of justice, and to have any meddling in or concerning the administration of justice, which conceit being fixed in the minds of the people, may be a cause of tumults and sedition, to the great disturbance of the quiet and repose of the Commonwealth. F N.B. 81. d. 15 Albeit justices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace, yet the Law gives them thereby that power ex congruo, in order to the public quiet of the Commonwealth, for that they are thereby Constituted to be Conservatores Pacis, and empowered to cause men to keep the peace, and to hear and determine offences committed against the peace and quiet of the Realm: The Common Law giveth also power to the Sheriff (either upon a writ of Supplicavit, or without such a writ) to take a Recognizance for the keeping of the peace, because he also is Conservator Pacis, and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff, as appears by the words of his Commission and Patent; Rex, etc. Commissimus vobis Custodiam, etc. And what the justices or he do in that behalf, is matter of Record, and so ought to be deemed, for that it concerns the Public peace and tranquillity of the Commonwealth. A man may go beyond sea 16 By the Common Law any man may go out of the Realm to employ himself as a Merchant, or to undertake a pilgrimage, F.N.B. 85. a. or for any other cause at his pleasure, without demanding licence of the King, neither shall he incur any punishment for so doing: Howbeit, because every man in right is bound to defend the King and his realm, and to preserve the public repose and tranquillity of the Commonwealth from foreign invasions from abroad, and intestine sedition and insurrection at home, the King may at his pleasure command by his writ De securitate invenienda, quod se non divertat ad partes exteras sine licentia Regis, under the Great Seal, Privy Seal, or Signet, that he shall not go beyond sea without the King's licence; And if he do, he shall be fined for disobeying the King's command. Vide 3. Uses. 17 In case of a Feoffment or other conveyance, Co. Inst. pars 1. 237. a. 2. whereby the feoffée or grantée, etc. is in by the Common Law, a Proviso for a power of Revocation is merely repugnant and void; but in a voluntary conveyance, which passeth by raising of Uses, being executed by the Statute of 27 H. 8. 10. and now become very frequent, by such a Proviso it is lawful for the Covenantor at any time during his life to revoke any of the said Uses, etc. And these revocations are always favourably interpreted, b●cause now to interrupt that Course would disturb the Public quiet of the Realm, many men's Inheritances depending thereupon. Warranty collateral. 18 In 50 E. 3. (Rot. Parl. 77.) it was attempted in Parliament to have a Statute made, Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral, but where Assets descend from the same Ancestor; but it could never take effect, because it would weaken common assurances, and (by consequence) disturb the peace and quiet of the Commonwealth. Remainders. 19 For as much as in coveyances, Co. Inst. pars 1. 299. a. 2. limitations of Remainders are usual and common assurances, it is dangerous by conceits and nice distinctions to bring them in question (as hath of late time been attempted) lest thereby the quiet repose of the Commonwealth may be interrupted. Descent to toll Entry. 20 The Statute of the 32 Hen. 8. 33. (concerning descents to toll entries) shall be understood of a descent upon any disseisin, Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength: And this large interpretation of the words is given for the better preservation of the pea●e and quiet of the Country: By the Opinion of all the Justices. Descent of the Royal line. 21 In the Star-chamber the Countess of Shrewsbury was fined 1000 l. and committed to the Tower; Hob. 235. for that being called to the Council Table, and Interrogated what she knew, or had heard, or thought of a supposed child, which was rumoured that the Lady Arrabella should have had, she refused obstinately to make any answer: because it was judged, that this was a question of State, and proper for the Council Table to take cognizance of; for there is not one thing that doth more concern the peace and quiet of a kingdom, than the certainty of the Royal line, etc. 201 Conventio seu beneficium privatorum non potest publico juri derogare. Vide supra 198, 29. Co. Inst. pars 1. 166. a. 4. Littl. §. 244 1 No private contract or agreement, Partition. which varies from the ordinary course of Law, and sounds in prejudice of the Commonwealth or Common right, shall be deemed good in Law; as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners, and they by agreement choose certain of their friends to make partition between them, who make partition of the Rooms and Chambers of the Castle, assigning some to one, and some to another, etc. this Partition is void, because a Castle, which is to be kept entire pro bono publico, and for the safeguard of the Commonwealth, will not admit of any such division; albeit such a partition of other lands that are partable, had been good in Law, and binding to the Coparceners after election of their several Parts: Co. ibid. 31. b. 3. Dower. Neither shall such a Castle be assigned for Dower, albeit the parties consent thereunto, because the public shall be preferred before the private. Co. l. 7. 23. a. 3. Butts case. 2 A. seized of black acre in fee, Rend out of a lease for years. and also possessed of white acre for years, grants a rend charge out of both to B. for his life, with Clause of Distress, etc. In this case, the estate of the rent, being a Franktenement (according to the purport of the deed) cannot issue out of the term for years, but out of the land only, which the grantor had in fee-simple, because the Franktenement of the rent cannot issue out of a Chattel, and the entire rent cannot be Franktenement out of black acre, and a chattel out of white acre, and to make two rents, when one only is granted, would be injurious; Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent, which is not chargeable by Law, as out of an Hundred, or Advowson, 30 Ass. Pl. 5. or out of a Fair, 14 E. 3. Scire facias 122. The Earl of Kent's case: Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement, which is not mainourable, either in possession, reversion, or by possibility, but is only haereditamentum incorporeum; for Pacta privata non derogant juri communi; And in an Assize they cannot be put in view, neither can any distress be taken in them; And in the case above, albeit white acre be haereditamentum corporeum and mainourable, yet in respect of the exility and incapacity of the interest which the grantor hath in it, that rend of Franktenement cannot issue out of it, but out of the land in fee simple: And in that case also, in an Assize brought for the rent, the land in fee shall be only put in view: And if the Grantee should accept a lease or grant of white acre, that will not suspend his rent. Co. l. 9 128. a. 4. in Sundays case. 3. Term. Hill. 8. jac. it was resolved by the two Chief justices, Recovery. Title. the Chief Baron, and the Court of Wards, that no condition or limitation, be it by act execute, or limitation and use, or by devise in a last will, can bar tenant in tail to alien by a Common recovery, for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report. Co. l. 9 141. b 3. in Beaumont's case. 4 If there be Lord and tenant of a Carve of land, Confirmation and the tenant hath issue, and is attainted of felony, and the King pardons him, and after the Lord confirms the estate of the tenant, and the tenant dies; In this case the Lord shall have the land against his own confirmation, for the confirmation cannot add to the estate of the tenant a descendible quality to him, who was disabled to take the land by descent; For Pacta privata juri publico derogare non possunt. The like. 5 Baron and feme being tenants in special tail, Co. ibid. 138. b. & 141. b 4. the remainder to the heirs of the Baron, the Baron levies a fine to E. 6. who grants to the Earl of Hunt. in fee, the Baron dies, and the Feme enters, and the E. of H. confirms her estate, Habendum to her and the heirs of the body of the Baron, than the Feme dies having issue a son; In this case, the confirmation is void, for it cannot add a descendible quality to the issue in tail, who was disabled by the fine to take by descent; Again, if that confirmation should add to the estate of the feme a descendible quality, it would in effect (as to that point) repeal no less than two Acts of Parliament, viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues, and the issues are disabled to claim the Land by force of the said estate tail. Sed Pacta privata, etc. Common Recovery. 6 Tenant in tail cannot be prohibited by any condition or limitation to bar the issues in tail, as also the reversions or remainders, Co. l. 10. 38. b. 1. & 4. Marry Portingtons' case. by suffering a Common Recovery; much less can he be prohibited to prevent by any such condition or limitation a going about, conclusion, or agreement to suffer such a recovery; for to suffer such a recovery to the purposes aforesaid, is an incident so inseparably annexed to an estate tail, that it cannot possibly be prohibited by any such condition, limitation, or other agreement whatsoever between the Parties, Conventio privatorum non potest, etc. So likewise Dower or tenancy by the Courtesy cannot be restrained by condition, because they are annexed to the estate tail by Law, no more than a tenant by the Courtesy or tenant in tail after possibility can be by condition made punishable for waste: Also things ordained by Statute, cannot be restrained by condition, etc. as that the tenant in tail shall make no leases, according to the Statute of 32 H. 8. 28. or levy a fine, according to the Statutes of 4 H. 7. 24. & 32 H. 8. 36. to bar the issues; for none of these, which are incident to his estate by Act of Parliament, can be restrained by condition or limitation. Auditors of the Wards. 7 The King himself cannot do any thing against an Act of Parliament, when the subject hath also an interest in it: Co. l. 11. 3. b. 4 in Auditor Curls case. And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards, be conjunctim & divisim, et alterius eorum diutius viventis, yet that being an office of trust, there shall be no survivor thereof; for that it being enacted by that Statute, that there should be two persons, etc. which should have a judicial voice, the King cannot constitute one only; for the Subject by the Act hath interest therein: Et securius expediuntur negotia commissa pluribus; Howbeit, the King may constitute one at one time by one patent, and another at another time by another patent; And albeit he may so do, yet he who is first constituted, hath not any judicial voice, until the other be constituted also, for it is provided by the Statute, that two persons, etc. shall be one officer; and therefore these words, Conjunctim et divisim, et alterius eorum diutius viventis, serve only to this purpose, that 〈◊〉 survivor shall be one of the persons, unto whom the other shall be 〈◊〉. A fraudulent grant. 8 The Master and Fellows of Magdalen College in Oxford having an intent to grant a Message in London to Benedict Spinola and his heirs (because they were prohibited by the Statute of 13 Eliz. 10. Co. l. 11. 73 b. 1. in Magdalen College case. to grant it immediately to him) made a grant thereof first to the Queen and her successors, upon condition (contained in the same grant) that the Queen within 3. months should grant the said Message to Spinola and his heirs; whereby it was endeavoured, that the Queen, who was the fountain of justice, should be an Instrument of Injury and tort, and of the violation of a pious and excellent Law, which she her self (for the maintenance of Religion, the advancement of Liberal Arts and Sciences, the sustenance of poor people, and other public uses) had made: And whereas the said Master and Fellows were seized of the said Message to them and their successors for ever in jure Collegii pro bono publico, and to pious and charitable uses, thereby it should be converted to the private use of Spinola and his heirs for ever: And so (as the Statute of Carlisle hath it in 35 E. 1. Quod olim in usus pios ad divini cultus augmentum, & caetera opera pietatis charitative fuit erogatum, nunc in sensum reprobum est conversum; which also the Poet well reprehends, — fuit haec sapientia quondam, Publica privatis secernere, sacra profanis. Co. l. 11. 87. a. 2. in the case of Monopolies. 9 The Monopoly of the sole making and importing playing Cards was damned, Monopolies. because albeit it was pretended by the preamble of the Patent to be for the good of the Commonwealth (which was indeed the Queen's intent when she granted it) yet it was apparent to be very prejudicial thereunto, and merely intended to be employed for the private benefit of the Patentée, the Queen being thereby deceived in her grant, and the Commonwealth more abused than before. Dyer 60. a. 21. 36 H. 8. 10 A Member of Parliament is free from arrests of his person, A Member of Parliament. because the King and all his Realm having an interest in his person for the dispatch of the public affairs of the Commonwealth, it is reason that the private commodity of any particular man should not in such case be regarded, and the rather, for that such arrest is no discharge of an execution, but that after the Parliament he may be taken again thereupon. 202 Minime mutanda sunt, quae certam habuerunt interpretationem. Vide Max. 201. per tout. Co. Inst. pars 1. 364. b. 4. Co. ibid. 186. a. 1. 1 Littleton at the beginning of the Chapter of Warranty, Communis opinio. intending to distinguish warranty into the three several kinds thereof, Lineal, Collateral, and that which gins by disseisin, the better to confirm that distribution, saith, that it is Commonly said there are 3. such kinds of warranty; whereby it may be observed, that Communis opinio is of Authority, and stands with the Rule of Law, A Communi observantia non est recedendum. Vide Max. 204. 1. Co. ibid. 383. b. Littl. §. 733. 2 The word warrantizabimus doth only create a warranty, Warrantizabimus. for so hath that word of Art been always interpreted; Neither ought there to be any other word (though it may signify the same thing in substance) used for warranty; And therefore neither Acquietabimus, or Defendemus, or any other word of the like signification will do it: The reason why the Law hath rather fixed upon that word (though barbarous) than any other, seems to be, 〈◊〉 ●void uncertainty, and critical cavils and disputes about the signification of words: And as Ego & haeredes mei warrantizabimus, etc. creates a warranty in Latin, so I and my heirs shall warrant, in English, creates a warranty also. Co. l. 6. 43. ●. 4. in Sir Anth. Mildmayes case. 3 It was the intent of the Statute of 27 H. 8. 10. Uses. (as appears by the preamble, to restore the ancient Common Law, and to extirpate and extinguish all subtle inventions, imaginations, and practices of Uses, which had introduced many mischiefs and inconveniences, mentioned in the same preamble: And this was very good and necessary for the Commonwealth; for the Common Law hath Rules to direct the estates and, inheritances of lands, which are certain and infallible; And therefore it is (without comparison) better and much more safe to have estates and inheritances directed by those certain Rules of the Common Law (which hath been an ancient, true, and faithful servant to this Commonwealth) than by the uncertain imagination and conjecture of any of these new inventors of Uses, without any approved ground of Law or Reason. Primet seisin. 4 Tenant in Chief, having issue a son, Co. l 6. 77. a. 3. in Sir Geo. Carsons case. covenants to stand seized to the use of his niece; the son dies; In this case, the King shall not have primer seisin: And two of the chiefest reasons which induced that resolution was, because the experience of the Court of Wards had been always so; and for that a great number of the subjects, which were in peace, would be vexed and molested, if the Common received opinion should be changed. The old Laws best. 5 Interroga Pristinam generationem, Co. l. 7. pars 1. 3. b. 3. in calvin's case. & investiga patrum memoriam (job 8.8.) Hesterni enim sumus, & vita nostra sicut umbra supra terram. We are but of yesterday, and therefore had need of the wisdom of those that were before us, and had been ignorant, if we had not received light and knowledge from our forefathers; Our days also upon earth are but as a shadow, in respect of the old and ancient days passed, wherein the Laws have been by the wisdom of the most excellent men (in many successions of ages) by long and continual experience (the trial of right and truth) fined and refined, which no one man (being of so short a time) albeit he should have in his head the wisdom of all the men in the world, in any one age, could ever have effected or attained unto: And therefore it is optima regula, qua nulla est verior et firmior in Jure, Neminem oportet esse sapientiorem legibus, No man ought to take upon him to be wiser than the Laws, which have been received and approved by men of the greatest wisdom in all former ages. Acts of Parliament. 6 Albeit an Act of Parliament be thus expressed, Co l. 8. 20. b. 3. in the Prince's case. Dominus Rex statuit, etc. (as there are many so penned, Vide 7 H. 7. 14. & 39 E. 3. 12.) yet if they be entered in the Parliament Roll, and always allowed for Acts of Parliament, it shall be intended, that they were by authority of Parliament, although no mention be therein made of Lords or Commons. Writs not to be changed. 7 Writs form and of course, viz. Originals, Co. l. 8 48. a. 4. in jehu Webos case. were at first authorised by Parliament, and without Parliament they cannot be altered or changed, but shall still remain the same; albeit they may in some cases seem incongruous: as the original writ De Assisa ultimae praesentationis was form in these words, Quis Advocatus tempore pacis praesentavit ultimam personam, quae mortua est: This form shall hold, and cannot be changed, albeit the Incumbent resigned, as appears in 18 E. 2. Tit. Ass. de dar. pres. 20. & F. N. B. 31. h. So likewise the writ of Warrantia Cartae is form thus: Quod just, etc. warrantizet B. unum Messuagium in D. etc. unde cartam habet, etc. And yet if he be held to warranty by force of an exchange, or by Homage ancestrel, the form of the writ shall not be altered. Vide 9 E. 4. 49. 21 H. 6, ●. & F. N. B. 134. and many other cases may be put upon this ground. Arbitrement. 8 A. being bound to stand to the award of B. countermands the authority of the arbitrator; In this case, the bond is forfeit; Co. l. 8. 82. b. 4. in Vinyors' case. because the Condition is, that A. the obligor should stand to and abide, etc. the rule, order, etc. which form was invented by prudent antiquity, to the end he should not revoke the submission; And it is good always to pursue (in such cases) the ancient forms and precedents, which are full of knowledge and wisdom. Co. l. 9 11. b. 3. in Dowmans' case. 9 The defendant in an Assize makes title by a recovery suffered by A. to certain uses, the plaintif confesseth the recovery, Declaration subsequent. but withal saith it was to the use of A. and his heirs in fee, and traverseth, that it was to the uses mentioned by the defendant: The jury find that the recovery was suffered, as the defendant had alleged, and that by Indenture subsequent, the intent of the parties to the recovery was declared to be, as the defendant had alleged: In this case, such subsequent declaration was adjudged good; for that no mischief or inconvenience could ensue upon that construction, and if it should be otherwise construed, great inconvenience might follow thereupon; because the inheritances of many Subjects in England depend upon such declarations subsequent, or (at least) upon Indentures, which (in truth) were delivered after the recoveries suffered, or the Fines levied; and this resolution concurs with the common opinion of men learned in the Law, and Common experience, and alterations of such opinions, as concern assurances of inheritances, would prove dangerous, and be of ill consequence in the Commonwealth. Co. l. 10. 40. a. 3. in Mary P rtingtons case. 10 At this day to question the validity of a Common recovery to bar an estate tail (albeit the land recovered in value be not had, Common Recovery. or the tenant in tail after judgement and before execution die) is as great an absurdity, as to deny Common and known Principles; and if any should be so impudent, as to dispute against that or any other of the legal Pillars of the Common assurances of the lands and inheritances of the Subjects, he ought not to be heard; And therefore in a cause depending before the Lords (at a Parliament in Qu. Eliz. time) One Hoord an Vtter-barrister (of Council with one Vernon, who was barred by a Common Recovery) rashly and with great malevolence inveighing against Common Recoveries (not knowing the reason and foundation of them) was with great gravity and some acrimony reproved by Sir James Dyer, then Chief justice of the Common pleas, who said, that he was not worthy to be of the profession of the Law, that durst speak against Common Recoveries, which were the very sinews of the assurances of Inheritances, and founded upon great reason and authority: Semper in fictione juris subsistit aequitas, Et contra principia negantem non est disputandum. Co. l. 11. 35 a. 3. Alexander Poulters case. 11 In Alexander Poulters case in the 11 Rep. it being doubted (upon the penning of the several Statutes of 23 H. 8. 1. 25 H. 8. 3. 1 E. 6. 12. 5, & 6 E. 6. 10. & 4, & 5. P. & M. 4.) whether or no one guilty of House-burning should be allowed his Clergy; House-burning. The judges had conference with divers Clerks of Assize, and other ancient Clerks, to the end they might be satisfied of the usual course therein; And for that (upon view of many Records) it appeared, that the Principals and Accessories (before) had been always outed of their Clergy in case of House-burning (except one in Essex before Sir John Puckering and his Companion, justices there) the said Powlter had judgement to be hanged for setting an house in Newmarket on fire, whereby most of the Town was burnt, and therefore was ordered to be hanged in Chains, etc. Co. l. 11. 83. a. 2. L●w●s Bowls case. 12 B. covenants to stand seized of the Manor of D. to the use of himself and his wife for life without impeachment of waste, Waste. the remainder to his 1. 2. and 3. sons successively in tail, the remainder to the heirs of the bodies of B. and his wife, with other remainders over; they have issue a son; then B. dies, the wife enters, the son dies, a piece of a Barn parcel of the premises is blown down by wind, the wife causeth 30 loads of timber blown down to be carried from off the Manor, for which he in the remainder brings an action of Trover and Conversion: And upon the argument of this cause two questions were moved, 1. Whether or no the wife shall be tenant in tail after possibility, or that she shall have the privilege of tenant in tail after possibility, viz. to make waste? 2 Admitting she shall not have the privilege, etc. whether the clause, without impeachment of waste, gives to her prope●●y in the timber so thrown down by the wind; whereupon it was resolved, that she had a property in the timber, and might convert it to her own use; for that (as was said) it was the continual and constant opinion of former times, that these words, without impeachment of waste, do give power to the lessée to make waste to his own use, and it would be dangerous now to recede therefrom; And as it was said by the judges in 38 E. 3. 1. So the present judges did say in this case. We will not change the Law, which hath always been used; Also it is well said in 2 H. 4. 10. It is better that there should be a default or defect, than that the Law should be changed. 13 Albeit the King hath a prerogative above others, F. N. B. 7. b. Finch 84. that he may sue in what Court he pleaseth, as to bring a Quare Impedit, or a writ of Escheat of Lands in London, retornable in the King's Bench, yet he cannot change the nature of the writ, otherwise than the Law gives power to him and others, or hath been formerly used. Assize of Fresh force in London. 14 In an Assize of Fresh force in London before the Mayor and Aldermen, against Foxley and Agnes his wife, and 11 others, Pl. Co. 90. b. 4. 10 of them appear by Bailiff, and plead, No such woman as Agnes the wife of Foxley, in rerum natura, and demand judgement of the Plaint, and that it should be inquired by the Assize, etc. and the others plead the same plea by Attorney: And it was adjudged, that the Plaint should not abate, but should stand good against all the rest, save only Agnes: And this resolution was given upon the advice of justice Hales to Southcote (than judge of the Hustings, where the suit was brought) because (as Hales said) all the books went that way, and not one the other way: And therefore he advised Southcote to follow the judgements formerly given. Trial of accessary. 15 An accessary shall not be arraigned as accessary before all the principals be attainted, Pl. Co. 99 b. because it had been always the usual course in such cases so to proceed; and therefore it seemed the best way to the Court to pursue the same order that the Sages had formerly used; and the rather, for that he may not be accessary to one, and yet may be found accessary to another. Common Recovery. 16 In the case of a Common Recovery, Co. l. 2. 74. a. 3. in the L. Cromwell's case. he that enters into the warranty may (if he please) save his rent issuing out of the land; yet if he enter into the warranty generally, it may be saved by covenant and agreement in the Indenture made before the recovery, as may be agreed betwixt them, and this in favour of Common Recoveries, which are the Common assurance of land, the usual form whereof shall not be altered by any special matter of Entry, saving his rent or condition, but they ought to be saved by the Indenture dehors: For Conveyances, which are used for Common assurances of land shall be expounded and construed according to common allowance, without prying into them with eagle's eyes; And therefore, Pasch. 35 Eliz. in Dormers' case it was adjudged in the King's bench, that a Common Recovery may be had of an advowson: So was it also adjudged in the Exchequer in Sir Will. pelham's case, that if a Common Recovery be suffered by tenant for life, it is a forfeiture of his estate, and the reason of both these judgements was, because that a Common Recovery is by usage a Common conveyance, as a fine, feoffment, etc. And it is said in Trevilians case 514. that in Common Recoveries the common usage and the intent of the parties are to be respected; for a Common Recovery had against Baron and Feme shall bar the feme of her dower, and yet the feme shall not have any recompense in value and therefore in strictness of reason it is strongly to be maintained, that Common usage and the intent of the parties make this bar, according to these rules, Non recedendum est a Communi observantia, & Minime mutanda sunt, quae certam habuerunt interpret●●onem. And these Rules hold not only in a Common Recovery, but much stronger in a fine, which is also a Common assurance of land; for in case of a Recovery the Vouchée may enter into the warranty, saving his action, rent, condition, etc. and yet (because Common usage hath allowed it heretofore) they may be better saved by covenant and agreement, as aforesaid; Howbeit, in a fine no saving can be contained therein, and therefore by necessity (and according to common usage always allowed) they ought to be saved by the direction and Rule of a precedent covenant and grant: Upon which ground it was adjudged in 6 E. 2 tit. Estoppel 2. that if a man and his wife enfeoff two by deed, to have and to hold to them and their heirs, and after the feoffor and his wife levy a fine sur conusance de droit to them and the heirs of one of them, yet this is no conclusion, but that both of them may have the fée-simple, as they had it before. 203 A Communi Observantia non est recedendum. Littl §. 371. Co. Inst. pars 1. 229 b 4. Vide Max. 203. 1. 1 The making of an Indenture in the third person is the most sure way, because it is most commonly used, whereby it appeareth, Indentures in the third person. that the form which is most commonly used in conveyances is the safest, Magister Rerum usus. It is provided by the Statute of 38 E. 3. 4. that all Penal bonds in the third person be void and holden for none, wherein some Books (viz. 40 E. 3. 1. 2 H. 4. 10. 8 E. 4. 5.) seem to differ, but they being rightly understood, there is no difference at all; for the Statute is to be intended of Bonds taken in other Courts out of the Realm, and so it appeareth by the preamble of that Act; being (indeed) principally intended of the Courts at Rome, and so it appeareth by justice Hankford in 2 H. 4. In which Courts bonds were taken in the third person: so as such bonds made out of the Realm are void, but other bonds in the third person are resolved to be good, as well as Indentures in the third person, by the opinion of the whole Court in 8 E. 4. Co. ibid. 303. a. 3. 2 The ancient forms of Courts are to be duly observed, Pleading. as Cum dimisit, or Cum dedit, and not to say that he was seized and demised, etc. and yet if he say so, it maketh not the Count vicious; But in a bar, replication, or other kind of pleading, the party must allege a seisin in the Lessor or Donor, and ancient forms of pleading are also to be observed. Co. l. 1. 24 b. 3. in Porter's case. 3 The Statute of 23 H. 8. 10. ordains, that if any grant of land, Charitable uses. etc. shall be made in trust, to the use of any Churches, Chapels, Churchwardens, Guilds, Fraternities, Commonalties, Companies, or Brotherhoods, etc. all such uses shall be void, they being no corporations, but erected either of devotion, or else by common consent of the people: yet this Statute doth not make good and charitable uses (not savouring of any superstition) to be void, as to find a Grammar-school, to sustain poor people, or any other such good use, but only superstitious ●ses; because that Statute hath been always by the Common opinion so taken to be; for almost all the lands belonging to Towns and Boroughs (not incorporate) to defray the Common Taxes of the Town, or to repair the Highways, or the Church, or for sustenance of the poor of the parish, or to support other common charges of the parish, are conveyed to divers Inhabitants of the parish & their heirs, in trust to employ the profits thereof to such good uses; & such good uses (albeit prima fancy they seem to be within the letter of that Act) were never made void by that Statute: and it is a thing dishonourable to the Law of the Land to make good uses void: And it appears by a case reported by Serjeant Benlowes, that it was held in the Common pleas in 5 & 6. E. 6. that a feoffment to the use of poor people was not within that Act of 23 H. 8. 10. Office. 4 In Alton Woods case in the 1. Rep. Exception was taken to an office virtute officii returned into the Chancery, for it was said, Co. l. 1. 42. b. in Alton Woods case. that it ought to have been returned into the Exchequer, but upon the view of infinite precedents of offices found before the Escheator virtute officii, and returned into the Chancery, it was disallowed per totam Curiam. Perpetuities. 5 In the argument of Corbets case in the 1 Rep. justice Glanvile said, that betwixt the making of the Statute of 13 E. 1. de donis, Co l. 1. 87. b. 4. Corbets case. etc. & 27 H. 8. such a proviso annexed to the estate tail, viz. that it shall cease, as if the tenant in tail were dead, was never seen or heard of, and therefore he concluded, that it could not be done by Law: And so likewise concludes Littl. fol. 23. in like manner, that if any action might have been brought upon the Statute of Merton, Disparagement. cap. 6. De dominis, qui maritaverint, etc. it would be intended, that sometimes it would have been put in ure; and therefore he concludes, that no action can be taken upon that Statute, in as much as it was never seen or heard, that any action was ever brought thereupon. Elections in Corporations. 6 Where in the Charters of Corporations it is said, Co. l. 4. 77. b. in the case of Corporations. that the choice of the Mayor, Bailiffs, Provosts, or the like Magistrates or Officers, shall be chosen by all the Commonalty or Burgesses, if they have been chosen (time out of mind) by a certain select number of the principal of the Commonalty or Burgesses, commonly called the Common Council, or by such like name, and not in general by all the Commonalty or Burgesses, nor by so many of them as will come to the election, such ancient and usual elections are good and well warranted by their Charters, and by the Law also; for in every of their Charters they have power given them to make Laws, Ordinances, and Constitutions, for the better government of their Cities, Boroughs, etc. by force whereof, and to avoid popular confusion, if they (by their common assent) do constitute and ordain, that the Mayor, Bailiffs, or other principal officers shall be chosen by a certain select number of the principal of the Commonalty or Burgesses, as aforesaid, and prescribe also how such select number shall be chosen, such Ordinance and Constitution was resolved (in 40 & 41 Eliz.) to be good and allowable, and to agree with the Law and their Charters, for avoiding of Popular discord and confusion: And albeit such an Ordinance or constitution cannot be now produced, yet it shall be presumed in respect of such a special manner of ancient and continual election (which cannot begin without common consent) that at first such an Ordinance or Constitution was made; Such reverend respect the Law attributes to ancient and continual allowance and usage, although it begin within time of memory: Mos retinenda est fidelissimae vetustatis; Quae praeter consuetudinem et morem Maiorum fiunt, neque placent, neque recta videntur: Et frequentia actus multum operatur. And according to this Resolution the ancient and continual usages have been in London, Norwich, and other ancient Cities and Corporations, and God defend, that they should be innovated or altered; for many and great inconveniences may arise thereupon, all which the Law hath well prevented, as appears by this Resolution. Co. l. 4. 93. a. 4. Slades' case. 7 Albeit an action of debt lieth upon a Contract, Action upon the case. yet the bargainor may have an action upon the case, or an action of debt for the same at his election, and one of the chiefest reasons of that resolution was, for that George Kempe (secondary of the Protonotaries of the King's Bench) produced an infinite number of precedents, as well in the Common Pleas as in the King's Bench, in the reigns of Hen. 6. E. 4. H. 7. & H. 8. by which it appeared, that the plaintiffs did Count, that the Defendants in Consideration of a sale to them of certain goods, did promise to pay so much money, etc. to which precedents and judgements, being of so great number, and in so many successions of ages, and in the several times of so many reverend judges, the justices in this case gave great regard, and so the justices in ancient time and from time to time have done, as well in matters of form, as in deciding of doubts and questions, as well at the Common Law, as in the Construction of Acts of Parliament: And therefore in 11 E. 3. Formedon 32. it is held, that the ancient forms and manner of precedents are to be maintained and observed, and in 34 Ass. pl. 7. that which is not according to the usage, shall not be permitted, and in 2 E. 3. 29. The ancient form and order is to be observed. Vide plus ubi supra. Co. l. 5. 32. a. Pettifers' case. 8 Upon fieri facias of the Goods of the Testator, Devastavit. the Sheriff returns nulla bona, etc. hereupon a writ issues to the Sheriff to inquire by Enquest, whether the executors have wasted, etc. He returns they have, and thereupon judgement was given of their own goods, but the executors suing a writ of error de redditione executionis, the execution was reversed; because this course of proceeding in such case had been taken up of later times, whereas the ancient course was upon the return of Nulla bona, to sue a scire fac. to the Sheriff to levy, etc. out of the Testators goods, and if it should appear to him, that the executors have wasted, then out of their own goods: for albeit it was said, that the said newer course was usual in the Common Bench, and more favourable than the ancient course was, because thereby the Devastavit shall not be returned by the Sheriff only, but shall be inquired likewise by an Inquest returned, and thereupon a Scire facias ought to be awarded; yet judgement was given, that the said proceeding was erroneous, because invented of later times; And the rather, for that by the ancient course, if the Sheriff make a false return, the party may have his remedy by action upon the case, which is a good mean to enforce the Sheriff to make true and just returns in such cases; but by the said new course, if the Sheriff take an inquest and return it, although it be false, yet the party hath no remedy either against the Sheriff, or any other, which would be inconvenient: by which resolution it may be observed (by the way) how dangerous a thing it is to alter or change the ancient forms and courses of Law, for albeit a new way may (prima fancy) seem specious and convenient, yet afterwards it will prove incommodious by introducing sundry mischiefs, which cannot be discovered otherwise than by future experience, as in the case above recited: which point (it were to be wished) our late Regulators would well study and consider, before they presume to innovate any thing in the Law. Co l. 9 15. a. A●●● bedingfield's case. 9 In a writ of Dower an essoin was cast, and challenged, Ess●in. for that by the Statute of Essoins 12 E. 2. it is provided, Quod non jacet Essonium in breve de Dote; Howbeit, because the Common essoin hath been always allowed in a writ of Dower, therefore the justices did construe that Statute to extend to an essoin of the King's service, and not to the Common essoin; And the rather, for that the Statute addeth a Reason of that purview, viz. Quia videtur deceptio & prorogatio juris, and that is properly to be intended of an essoin of the King's service, which is a delay and prorogation of right for a year. Vide 4 E. 3. 36. 4. Ass. pl. 2. Long 5 E. 4. 70. Ward. 10 Albeit 16 E. 3. Damages 80. and some other books are, Co. l. 9 74. b. 2. in Dr. Husseys' case. that Damages shall not be recovered in a writ of Ravishment of Ward, yet for that it is held in 17 E. 3. 57 and many other books (quas vide ubi supra) and agreeth with common experience, that Damages should be recovered in that writ, it was so resolved accordingly. Bastardy. 11 It appears by the Statute of Merton, Co. l. 5. pars 1. 12. a. 1. & Merton 20 H. 3. that all the Bishop's instanced the Lords, that they would consent, that all such as were born before Matrimony (marriage following after) should be legitimate, as well as they that were born within Matrimony, as to the succession of Inheritance, for that the Church accepted such to be legitimate: But all the Earls and Barons with one voice answered, Nolumus Leges Angliae mutare, quae hucusque usitatae sunt et approbatae. A writ to the Coroners. 12 If a writ be directed to Coroners, Coronatoribus de Comitatu, Pl. Co. 76 b. 4. Wimbish & Willoughby. or in Comitatu, have the same construction, de and in (in this case) signifying the same thing; yet because in (in such case) hath been most frequently used, upon such a direction to the Coroners, the aught to be rejected, and in retained: for the order of the Register is, that all writs directed to the Sheriff shall be Vicecomiti de Comitatu, but those directed to the Coroners, Coronatoribus in Comitatu; as an Attachment against the Sheriff for not returning a Replevin, is directed Coronatoribus in Comitatu, etc. So is likewise the writ of Certifying an Outlawry, as appears in the book of Entries, and so all other writs, as a Diem clausit extremum is, Escheatori in Comitatu, and the like: And he that finds fault with this direction, argueth against the Register, and also against the common usage of the Law heretofore practised. Phrase. 13 If I give you a pint of wine, you shall not have the pint-pot; Pl. Co. 85. b. 4. Partridges case. but if I give you an Hogshead of wine, you shall have the Hogshead, for the phrase of the language commonly used expresseth the intent, Et a Communi observantia, etc. 14 A writ of Inquiry being directed to the Sheriff himself to be executed, he makes return, Hob. 83. Virely and Gunstone. Quod mandavit Balivo Hundredi de B. etc. Qui quidem Balivus sic sibi respondit, And so sets down the Inquisition taken before the Bailiff, and 40 l. damages; Howbeit, upon a writ of Error it was agreed by all the judges, that the return was insufficient; because it was apparently untrue and against Law; for that the warrant was directed to the Sheriff himself to be executed in any part of the County, and no Venue contained in that Inquest of office, as there is in other writs, which entitle the Bailiffs of Liberties: Howbeit, the Court would not reverse the judgement, because there were divers of the like kind, both in the King's Bench and Common Pleas, especially in Suffolk and Norfolk in later times. Vide Hob. 84. Skeat and Oxonbridge such an allowance in a writ of waste. Star-chamber 15 In a suit in the Starr-chamber witnesses were examined to prove what was deposed concerning a will in the Ecclesiastical Court; Hob. 114. but because depositions were not allowed in the Starr-chamber taken in other Courts, they were rejected, as a crafty device to induce depositions against the Rule of the same Court. 204 Eventus varios Res nova semper habet; And therefore it hateth new Inventions, and Innovations. Co. Inst. pars 1. 379. a. 2. 1 Sir Edward Cook speaking of justice Richel his Perpetuity, Inventions. observes, that new inventions (though of a learned judge in his own profession) are full of Inconvenience: Periculosum est res novas et inusitatas inducere. And that Author saith farther, that Littleton in the debate of that case (§. 721, 722, & 723.) hath taught us an excellent point of learning, Co. ibid. b. 1. that when any innovation or new invention starts up, the best way is to try it by the Rules of the Common Law, for they are the true touchstones to sever the pure gold from the dross, and sophistications of novelties and new inventions: And by this example (he saith) you may perceive, that the Rules of the Common Law (which are indeed the Maxims of Reason) being sound applied to such novelties, it doth utterly crush them and bring them to nothing; for commonly a new invention doth offend against many Rules and reasons of the Common Law: Co. ibid. 282. b. 3. And therefore the ancient judges and Sages of the Law have ever suppressed innovations and novelties, as soon as they have offered to creep up, lest the Quiet of the Common Law might be disturbed, and so have Acts of Parliament also many times done the like: And the judges say in 38 E. 3. We will not change the Law, which always hath been used And another saith in 2 H. 4. 18. Co. ibid. 303. b. 4. It is better that it be turned to a default, than that the Law should be changed, or any innovation made. And therefore new and subtle inventions ought not to alter any principle of the Common Law. Vide supra 184. 21. & 159. 2. Co. ibid. 377. b. 4. 2 The Invention devised by justice Richel (an Irishman born) in the time of R. 2. & the like by Thirning Chief justice in the time of H. 4. were both full of imperfections, The like. for nihil simul inventum est & perfectum, and saepe viatorem nova non vetus orbita fallit: And therefore new inventions in assurances are dangerous. Co. l. 1. 87 a. 4. in Corbets case. 3 If a man make a feoffment in fee of land to the use of A. and his heirs every Monday, and to the use of B. and his heirs every Tuesday, Perpetuity. and to the use of C. and his heirs every Wednesday, these limitations are void, because it is a new invention, there being no such fractions of estates found in the Law: And therefore not to be permitted for the inconvenience that may ensue thereupon. Co. l. 1. 138. a. 3. in Chudl●yes case. 4 By the Statute of 27 H. 8. of Uses, The like. some uses were executed presently, others by matter ex post facto, and others again were extirpated and extinguished by that Act: Uses in esse did draw the possession presently by force of the Act; Uses limited in futuro, and agreeable to the Rule of the Common Law, are also, if they become in due time in esse, within the provision of that Statute; but uses invented and limited in a new manner, and not agreeable to the ancient Common Laws of the land are utterly extirpated and extinct by that Act; for it appears by the express letter of the Act, that it was the intent of the Parliament to extinguish and root them out, and to restore the ancient Common Law of the Land. Vide plus ibidem. Co. l. 5. 32. a. Pettisers case. 5 Upon a fieri facias of the goods of the testator, Devastavit. the Sheriff returns nulla bona, etc. And thereupon another writ issues to him to inquire by Enquest, whether or no the executors have wasted, etc. he returns they have, and thereupon execution is awarded of their own goods; but this award of execution was reversed by writ of Error; because that practice had been taken up of late days, whereas the ancient course was (and since the judgement in this case is taken up again) to sue a fieri facias to the Sheriff to levy, etc. of the testators goods, and if it appear to him, that the executors have wasted, etc. then of their own goods: And in such case an action upon the case will lie against the Sheriff if he make a false return; whereas in the other case no such action lies, because the Sheriff makes his return by Inquest. Perpetuity. 6 All perpetuities (being new inventions) are against the reason and policy of the Common Law; Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case. Co. l. 9 128. a. 4. in Sundays case. for at the Common Law all Inheritances were fée-simple, to the end that neither Lords should be defeated of their escheats, wards, etc. nor purchasers or farmers should lose their estates or leases, or be evict by the heirs of their grantors or lessors, nor such infinite occasions of troubles, contentions, or suits should arise: And therefore it may be truly averred, that the policy and Rule of the Common Law in this point was in effect subverted by the Statute de donis made in 13 E. 1. which ordained a general perpetuity by Act of Parliament for all such as had then made it, or would afterwards put it in ure; by force whereof all the possessions of England in effect were entailed accordingly, which was the cause of the said and divers other mischiefs; Howbeit divers attempts were made for remedy thereof in divers Parliaments, and many bills exhibited accordingly, but they were always upon one pretence or other rejected: Indeed the truth was, that the Lords and Commons knowing that their estates tail were not forfeitable for felony or treason, as their estates of Inheritance were before the said Act (and principally in the Baron's wars in the time of H. 3.) and finding also, that they were not chargeable with the debts or encumbrances of their ancestors, and that the sales, alienations, or leases of their ancestors did not bind them for the lands which were so entailed to their ancestors, did always reject such bills; And this continued all the residue of the Reign of E. 1. and the Reigns of E. 2. E. 3. R. 2. H. 4. H. 5. H. 6. and until about the 12 of E. 4. when the judges upon consultation had amongst them did resolve, that an estate tail might be docked and barred by a Common recovery, and that by reason of the intended recompense the Common recovery was not within the restraint of the said perpetuity made by the said Act of 13 E. 1. whereby it appears, that many mischiefs did arise upon the change of a Maxim and Rule of the Common Law, which they who altered it could not discern, when they made the said change; for Rerum progressus ostendunt multa, quae in initio praecaveri seu praevideri non possunt. Vide 8. Marshalsea. 7 In Sir Geo. Reynels' case in the 9 Report, Co. l. 9 97. a. 2. one of the reasons why the office of Marshalsea could not be granted for years, was, because it was an ancient office, and had been always granted for life, or at will, to the end the person to whom it was granted might be certainly known; And therefore to grant it for years, when it was never known to be so granted before, being an Innovation, might prove dangerous and of ill consequence to the Commonwealth. An Entail docked. 8 The docking of an Entail by a Common recovery in 12 E. 4. was not new invention, Co. l. 10. 37. b. 2. in Mary Portingtons' case. but consonant to the opinion of the Sages of the Law, even from the making of the Statute De donis, as appears by divers authorities in our books, viz. in 42 E. 3. 53. in 44 E. 3. 21, 22. Octavian Lumbards' case, in 48 E. 3. 11. b. Jefferey Bencher's case, in 12 H. 4. 13. b. in 1 E. 4. 5. in 5 E. 4. 2. b. which resolutions and opinions in Law, together with divers others of the like kind, did (as it seems) produce the judgement in 12 E. 4. And therefore such barring of an estate tail was not then to be esteemed an innovation or new invention, but the judges and Sages of the Law then perceiving what contentions and mischiefs had crept into the quiet of the Law by such fettered Inheritances, upon consideration of the said Act, and of the former exposition thereof by the Sages of the Law since the making of the same Act, did in the said 12 year of E. 4. give judgement, that in such case an estate tail should be barred. And in Scholasticaes case in 12 Eliz. Pl. Com. 403. it was not thought fit to stand with the honour and gravity of the Court, that the question concerning the restraint of a Common recovery (which had been so often debated and resolved) should be once moved. Vide supra 6. Co. l. 11. 87. a. 3. in the case of Monopolies. 9 The Queen grants to one of the Privy Chamber the only making, Monopolies. and importation of Cards; This was adjudged a Monopoly, and therefore void; and one of the reasons was, because the grant was primae Impressionis, for no such was ever seen to pass by Letters Patents under the Great seal to that very day: And therefore because it was a dangerous Innovation without precedent or authority of Law or Reason, and the Queen deceived in their grant, it was adjudged void. Dyer 135. 15. 3, 4. P. M. 10 A Dedimus Potestatem was granted to justice Saunders to receive an Attorney for the defendant in a Quid juris clamat, Quid juris clamat. but because there could be found no former precedent for it, it was with much difficulty and after long debate allowed by the judges, and that upon great necessity, and weakness of the party. 205 Communis Error facit Jus. Co. Inst. 1. 52. b. 2. 1 In a deed of feoffment beginning with Omnibus Christi fidelibus, Livery by Attorney. etc. or Sciant omnes per praesentes, etc. or the like, a Letter of Attorney may be contained, for one continent may contain divers deeds to several persons: But if it be by indenture between the feoffor on the one part, and the feoffee on the other part, there a Letter of Attorney in such a deed is not good, unless the Attorney be made a party in the deed indented; howbeit, because it hath been commonly used to insert it in the Indenture, without making the Attorney party thereunto, it hath been permitted to pass, but the other way is safest, and more legal. Communis Error facit Jus. Co. l. 6. 67. a. 4 in Sir Mo●●●inches case. 2 Where it is required by the Statute of 1 H. 5. 5. that in every writ original, etc. in which Exigent shall be awarded, Additions. Stat. 1 H. 5. Additions should be given to the defendants of their estate, degree, mystery, etc. It so fell out, that one, who was by birth but a Yeoman, was commonly called Gentleman; And in that case, in such a writ brought against him he may have the Addition of Gentleman, albeit in truth he is no Gentleman, but only by vulgar reputation: for in as much as the intention of the Act is, that he should have such a name by which he may be known, it is sufficient to satisfy the Act of Parliament; for Communis error, etc. 206 So doth a Custom, which is reasonable: unreasonable, contra. Co. Inst. spars 1. 59 b. 4 1 Of fines due to the Lord by the Copyholder, Copyhold fines. some be by the Change or alteration of the Lord, and some by the Change or alteration of the tenant, the change of the Lord ought to be by the act of God, otherwise no fine can be due, but by the change of the tenant, either by the act of God, or the act of the party, a fine may be due: for if the Lord do challenge a Custom within his Manor to have a fine of every of his Copyholders of the said Manor at the alteration or change of the Lord of the Manor, be it by alienation, demise, death, or otherwise; This is a custom both against the Law and Reason, as to the alteration or change of the Lord by the Act of the party; for by that means the Copyholders may be oppressed by multitude of fines, by the Act of the Lord: But when the change groweth by the Act of God, there the custom is good, as by the death of the Lord: And this was resolved upon a Case in Chancery by all the judges and Sergeants of Sergeants Inn in Fleetstreet (Trin. 39 Eliz.) and so certified into that Court: But upon the change or alteration of the Tenant, a fine is due unto the Lord, because that custom is reasonable. 2 Of fines taken of Copyholders some be certain by custom, and some be uncertain, The like. but that fine although it be uncertain, Co. ibid. yet ought it to be rationabilis, and that reasonableness shall be discussed by the justices upon the true circumstances of the Case appearing unto them; And if the Court, where the cause dependeth, adjudgeth the fine exacted unreasonable, then is not the Copyholder compellable to pay it: And so it was adjudged P. 1 jac. C. B. rot. 1845. for all excessiveness is abhorred in Law. 3 In former times it hath been doubted, whether or no, if a Copyholder had been ousted by his Lord, Copyhold custom. he might have any other remedy therein, than only to sue to his Lord by petition; for it seems, Co. ibid. 60. b. 3. Littl. §. 77. that if the Copyholder might have any other remedy, he could not be properly said to be Tenant at the Will of the Lord according to the Custom of the manor: But Magistra rerum experientia hath made this cléer and without question, that the Lord cannot at his pleasure put out the lawful Copyholder, without some cause of forfeiture, and if he do, the Copyholder may have an Action of Trespass against him; For albeit he be tenens ad voluntatem Domini, yet it is secundum consuetudinem manerii: And Britton saith, speaking of these kind of Tenants, Et ascuns gents sont, qui tout franks de sank et tenent terre de nous en villeynage, et sont proprement nos sokemans, Britton fo. 163. Co. ibid. 140. a. 3. et ceux sout privileges en ties manere, que nul ne les doit ouster de tiels tenements taut come ils font les services, que a lour tenements appendent, et nul ne poit lour services accressre ne changer, a fair autres services ou plus, autrement que ils ne solaient, And herewith agreeth Sir Robert Danby Cl. Inst. of the C. Pl. M. 7 E. 4. 19 and Sir Thomas Brian his Successor M. 21 E. 4. 80. That the Copyholder doing his customs and services, if he be put out by his Lord, shall have an Action of trespass against him. Consuetudo. 4 Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet; Again, Co. ibid. 113. a 4. Consuetudo ex certa causa rationabili usitata privat communem Legem: And, Consuetudo praescripta et legitima vincit legem. Villeinage, fine to marry. 5 All customs and prescriptions, that are against reason are void; Co. ibid. 139. b. 4. Littl. §. 209. as if a Lord of a manor will prescribe, that every Tenant, who matieth his daughter to any man without the Lords licence, shall make fine; This prescription is void, being against reason: because none shall make such fines, but only villeins; for a freeman may freely marry his daughter to whom he pleaseth: And albeit that it hath been objected by some, that such a custom may have a lawful beginning, because Littl. in the beginning of the chapter of villeinage §. 174. alloweth, that a freeman may take lands of the Lord to be holden of him, viz. to pay a fine for the marriage of his son or daughter, and therefore some have thought, that such a custom generally with in the manor might be good; but the answer is, that although it may be soln a particular Case upon such a special reservation of such a fine upon a gift of land, yet to claim such a fine by a general custom within the manor, is against the freedom of a freeman, that is not bound thereunto by particular tenure: howbeit a custom may be alleged within a manor, that every tenant (albeit his person be free) that holdeth by bondage or native tenure (the freehold being in the Lord) shall pay to the Lord for the marriage of his daughter without licence, a fine; And this is termed Marchet, of two french words, Marriage and achecter to buy. Co. ibid. 140. a 4. & b. 1. Littl. §. 210. 6 The custom of Gavelkind in Kent, where all the sons inherit equally, Gavelkind. hath been always allowed a good custom, because every son is as well a gentleman, as the eldest, and having means may attain to as great honour and preferment as the eldest, which by want and penury may be obstructed, according to that of Horace, Haud facile emergunt, quorum virtutibus obstat Res angusta domi. Co. ibid. 140. b. 3. Littl. §. 211. The like custom is used and allowed as reasonable in other parts of England within divers manors and seignories, although it be not called Gavelkind in any Country but Kent: And as it is said of sons, so likewise (by custom) when one brother dieth without issue, all the other brethren may inherit; There is also another custom allowed within divers manors, called Borough-English, Borough-English where the youngest son, or youngest brother inherits; and in the manor of B. in Berkshire, where the sisters shall not be Parceners, but the eldest sister shall have the inheritance; all which do hold good, because consonant to reason. Co. inst. pars 1. 141. a. 3. 7 Malus usus abolendus est, and every usage is evil, Malus usus. that is against reason; Quia in Consuetudinibus non diuturnitas temporis, sed soliditas rationis est consideranda; And by this rule at the Parliament holden at Kilkenny in Ireland Lionel Duke of Clarence being then Lieutenant of that Realm, the Irish custom (called there the Brehon-law) was wholly abolished, for that (as the Parliament said) it was no law, but a lewd custom, et malus usus abolendus est, as is said before. Co. ibid. 155. a. 2. 8 Albeit the writ of Assize be, that the Sheriff, Assize. Faceret duodecim liberos et legales homines de vicineto, etc. videre tenementum, etc. Yet by ancient course the Sheriff must return 24. and this is for expedition of justice; for if 12. should only be returned, no man should have a full jury appear or be sworn (in respect of challenges) without a Tales, which would be a great delay of trials; so as (in this case) usage and ancient course maketh a Law. Co. l. 2. 17. a. 4. in Lanes case. 9 Severance of the franktenement and inheritance of land holden by copy of Court-Roll, Copyhold. doth not extinguish or determine the Copyhold estate; for albeit his estate is taken to be but an estate at Will, yet the custom hath so established the estate of the Copyholder, that he is not removable at the Will of the Lord, so long as he performs the customs and services: And by the same reason the Lord cannot determine his interest by any Act that he can do, and so hath it been oftentimes adjudged in the King's Bench. Co. l. 4. 21. a. 3. in Brown's case. 10 Albeit a Copyholder hath (in judgement of law) but an estate at Will, yet custom hath so established and fixed his estate, Copyhold. that it is (by the custom of the manor) descendable, and his heirs shall inherit it; And therefore his estate is not merely add voluntatem domini, but ad voluntatem domini secundum consuetudinem manerii: so as the custom of the manor is the very soul and life of Copyhold estates; for without custom, or if they break their custom, they are subject to the Will of the Lord: And by custom a Copyholder is as well inheritable to have his land according to the custom, as he who hath a franktenement at the Common Law, for Consuetudo (in this case) est altera lex, and being an usage time out of mind may create and consolidate Inheritances. Alienation presented. 11 A Custom within a Manor, Co. l. 5. 84 a. 3. in Penimans' cas●. that every alienation of lands holden of the same Manor (whether it be by writing or feoffment thereof made, or by will) shall be presented at the next Court holden for the said Manor, in pain that (upon failer of such presentment) such alienation shall be void, is a good and reasonable Custom: But a Custom, that none shall use his Common in such a place, until the Lord enter with his beasts, is void for the unreasonableness: for if the Lord will not enter, it is no reason that the Commoners should lose their Common. Vide 2 H. 4. 24. Common of Shack. 12 Common called Shack (which at the beginning was but in nature of a feeding together by reason of Vicinage for avoiding of suits) is in some places (by Custom) altered to the nature of Common appendent or appurtenant, Co. l: 7. 5. a. Sir Miles Corbets case. and in some places it retains the original nature, and the Rule to know it▪ is the Custom and usage of every several Town, or place, for Consuetudo loci est observanda: And therefore if in the Town of Dale one hath gotten divers parcels of land together (in which the Inhabitants have used to have Shack) and long since did enclose it, and nevertheless always after harvest the Inhabitants have had Shack there for their , This shall be taken for Common appendent or appurtenant, and the Owner cannot exclude them from Commoning there, albeit he will not Common with them, but hold his own lands so enclosed in severalty; And this is well proved by the usage, for notwithstanding the ancient enclosure the Inhabitants have had Common there: But if in the Town of Sale the Custom and usage have been, that every Owner in the same Town hath enclosed his own land 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 enclose and keep it in severalty, and seclude himself from having Shack with the rest of the Commoners. Ancient Demesn. 13 Lands in ancient 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 seizure, 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 enrolment, 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 fee could not make a lease for above six years; and it was adjudged a void custom, because repugnant to fee▪ 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 Corpse of one who is no parishioner, Ho. 175. The Lady Fer●ars case. but only passing that way by accident, lodging in an Inn, 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 plaintiffs bring an action in London, Slander. for that the defendant called the wife of the plaintiff Whore, the defendant removes it by habeas corpus into the King's 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 denied per per totam Curiam; for such a Custom to maintain actions for such brabbling words is against Law: Licet Consuetudo, etc. 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, etc. In this case the Mesnalty is revived: and albeit divers Offices, licences, and other Records were produced to prove the King's 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 judges) upon Record: And it was then also said, Licet consuetudo, etc. 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 precedents 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, Account. Prison. that if a man be found in arrearages upon his account, 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 Accountant safe in prison, until he hath paid the arrearages: And it seems also upon the same reason, that if a man sue forth a writ of debt upon arrearages of account before Auditors, and hath the party attached, etc. 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 suit 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 jurisdiction 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 bar 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 lieth for the falsehood and deceit, because one cannot conspire with himself: and therefore a writ of Conspiracy for indicting the plaintiff of felony lieth not against Baron and feme only, because they are but one person, but it may lie against Baron and feme and a third person. Account. 3 In an action of account, receipt made by the Baron by the hands of the feme is the Barons own receipt, 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 a wife who is indebted to other persons, F. N B. 120. f. the Baron and feme shall be sued for this debt, living the feme, but if the feme die, the Baron shall not be charged therewith after the death of the feme; Howbeit if the Creditor of the Baron and feme recover the debt during the Coverture, which was due by the feme before the Coverture, then albeit the feme die, yet the Baron shall be charged to pay that debt after the death of the feme, by reason of that Recovery, etc. And all this because during the coverture they are but one person in Law. Remitter. 5 If tenant in tail enfeoff a feme in fee, and die, Littl. §. 665. Co. I●st. pars 1. 350. b. 3. and his issue within age takes the feme to wife, this is a remitter to the infant within age, and the feme hath nothing left in her, because they are one person in Law: So likewise if the husband discontinue his wife's land, and take back an estate to him and his wife, during the life of the husband, this is a remitter to the wife presently, albeit the estate is not by the limitation to have continuance after the decease of the husband, because the husband and wife are one person, as aforesaid. Joint purchase 6 If a joint estate of land be made to Baron and feme and a third person, in this case the Baron and feme shall have but a moiety, Littl. §. 291. Co. ibid. 187. a and the third person the other moiety; so likewise if land be given to Baron and feme, and two others, the Baron and feme have but a third part; because they are but one person in Law. Cui in vita. 7 If the Baron discontinue the land of the feme, Littl. §. 676. Co. ibid. 356. b. 1. and after take an estate to him and his wife, and a third person, for life or in fee; This is only a remitter to the feme for the moiety, and for the other moiety, after the death of her husband, she shall have a Cui in vita. Witness. 8 It was resolved in the Common Bench, Co. ibid. 6. b. 4. in P. 10 jac. that a wife cannot be produced as a witness either against or for her husband, quia sunt duae animae in carne una, and it might be a cause of implacable discord and dissension between the husband and wife, and a mean of great inconvenience. Pardon for alienation. 9 Sir Robert Catlyn Chief justice purchased lands holden of the Crown in Capite, to him and his wife, Dyer 196. 40. 3. Eliz. and the heirs of the said Sir Robert, and the Queen pardons him omnes transgressiones et offensas, pro quacunque alienatione sibi facta, without speaking of his wife; yet this was a sufficient discharge of the fine for the alienation to him and his wife; because (as it seems) they were one person in Law. Ho 179. Levendens case. 10 An action of debt was brought against the husband and wife for the Recusancy of the wife, Debt for Recusancy. and the husband would have appeared alone by Supersedeas; but the Court resolved, that either both must appear, or both be outlawed; being one person in Law. 209 The Wife is of the same Condition with her Husband. Co. Inst. pars 1. 16. b. 3. & Co. l. 4 118 b. 3. in Acton's case, & Co. l. 6. 52. b. & 53. b. in the Countess of Rulands' case. 1 Nobility may be granted for term of life, by act in Law, Nobility. without any actual creation; As if a Duke take a wife, by the intermarriage she is a Duchess in Law, and so of a Marquis, an Earl, and the rest, and in some other case; for that (in such case) she is of the same condition with her husband: Howbeit, there is a diversity between a woman that is noble by descent, and a woman that is Noble by marriage: for if a woman, that is noble by descent, marry a man that is under the degree of Nobility, yet she remaineth Noble still; but if she gain it by marriage, she loseth it, if she marry under the degree of Nobility, and so is the Rule to be understood, Si mulier Nobilis nupserit ignobili desinit esse Nobilis; but if a Duchess by marriage marrieth a Baron of the Realm, she remaineth a Duchess, and loseth not her name, because her husband is Noble, & sic de caeteris. Co. ibid. 30. b. 1. & Co. l. 4. 55. a. 3. in the Commonalty of Saddler's case. 2 If a man marry the Nief of the King by licence, and hath issue by her, and after lands descend to the Nief, and the husband enter, Villeinage. the Nief dieth, he shall be tenant by the Courtesy of this land, and the King upon any office found shall not evict it from him, because by the marriage the Nief was enfranchised during the Coverture. But if a free woman marry a Villain of the King by licence, and lands descend to the Villain, the Villain dieth, the wife shall not be endowed, but upon an office found the King shall have the land, for the Villain remaineth still a Villain to the King. Co. ibid. 123. a. 1. Littl. §. 187. 3 If a Nief marry a freeman, Villeinage. by the Common Law of England the issue is free, because in such case during the Coverture she is enfranchised, and (by consequence) free; And therefore they being both free, the issue ought to have the same privilege: So likewise if a Villain marry a freewoman, the issues are Villeins, for the like reason, viz. because during the coverture they are both Villeins. Co. ibid. 136. b. 1. 4 In case where a freeman marrieth a Nief, some have holden, Villain Nief. that by this marriage the wife shall be free for ever, but the better opinion of our books is, that she shall be privileged during the coverture only, unless the Lord himself marrieth his Nief, and then some hold, that she shall be free for ever. Vide infra 9 Co. ibid. b. 2. 5 If a Nief be regardant to a Manor, Villain Nief. and she taketh a freeman to husband by licence of the Lord, and the Lord maketh a feoffment in fee of the Manor, the husband dyeth, the feoffee shall not have the Nief, but the feoffor; for that during the marriage she was severed from the Manor; And so is the book of 29 Ass. (which is falsely printed) to be understood. Co. ibid. 6 If there be two Coperceners of a Villain, Villein● and one of them taketh him to husband, she and her husband shall not have a Nuper obiit against her Copercener, but after the decease of her husband 〈◊〉 may. Petty treason. 7 By the Statute of 25 E. 3. it is declared, Pl. Co. 86. b. 2. in Partridges case. that if a servant kill his Master, it shall be adjudged Treason, viz. Petty treason, and in 19 H. 6. 47. (tit. Corone 7. & Br. Treason 8.) upon an Indictment one was arraigned for killing the wife of his Master, which he confessed, and thereupon it came into question, whether or no he should be drawn and hanged, or hanged only, and it was adjudged by the advice of all the justices of both the Benches, that he should be drawn and hanged, for that it was treason; And there it is not taken within the equity of that Statute, which speaks only of killing the Master, but rather within the words thereof, because Master and Mistress import the same, being one person in Law. Amerci●me●t. 8 If a feme cove●t be outrageously amercied, F N. B. 75. d. and thereupon the husband be distrained for it, he shall have the writ de Moderata misericordia to relieve himself from such outrageous amerciament. Villain and Nief. 9 If a freeman marry a Nief, she shall be free for ever, F. N. B. 78. g. albeit the Baron die, and she survive, and this the Law giveth her, as Britton saith, in favorem libertatis; and it seems reasonable that the Law should be so, because she and her husband are but one person in Law, and she ought to be of the same nature and condition in Law to all intents with her husband; Now therefore her husband being free to all intents without any condition in Law, or otherwise, and she being of the same nature and condition with her husband, if she be once clearly discharged of Villeinage to all intents, she cannot be Nief after without some special act done by herself, as divorce, or Conusance in a Court of Record; and this is in favour of Liberty. Vide Exod. cap. 21. & supra 4. A Lady of Honor. 10 A writ of partition was brought against the Duke of Suffolk and his wife, and others, per Radulphum Haward Armig. Dyer 59 b. 51, 6 & 7 E. 6. & Dominam Annam Powes uxor. ejus (for so she was named in the writ) and exception was taken upon the Misnomer, because she ought to have been named only by the name of her husband, and not otherwise. And by the opinion of Montague Ch. justice, and Hales justice, the exception was good, because by the Law of God she is sub potestate viri, and therefore her name of dignity ought to he changed according to the degree of her husband, notwithstanding the courtesy of the Ladies of Honour and the Court; whereupon the plaintiffs brought a new writ, ad re●pondendum Radulpho H. & Anna uxori suae, nuper uxori Domini Powes defuncti. 210 They cannot sue one another, nor make any grant one to the other, or the like. Baron cannot g●a● to the ●●m●. 1 A man may at this day by his deed covenant with others to stand seized to the use of his wife, Co. Inst. para 1. 112. a. 4. Littl. §. 168. or make a feoffment or other conveyance to the use of his wife; for now such an estate may be executed to such uses by the Statute of 27 H. 8. 10. because an use is but a trust and confidence, which by such a mean may be limited by the husband to the wife; so likewise in places where lands were devisable, the husbands (before that Statute) might by his testament devise his tenements to his wife in fee, for life, or years, because such devise took not effect, until after the death of the devisor: Howbeit, at the Common Law a man could not by any conveyance, either in possession, reversion, or remainder, limit an estate to his wife; neither yet since the said Statute covenant with his wife to stand seized to her use, because (he and his wife being one person in Law) he can grant nothing to her, nor covenant with her. Co. ibid. 206. b. 3. 2 If a man be bound with a Condition to enfeoff his wife, Bond. the condition is void and against Law, because it is against a Maxim of Law, viz. that a man cannot make any grant to his wife; and yet the bond is good, but if he be bound to pay his wife money, that is good, Et sic de similibus. Co. l. 4. 29. b. 3. in Buntings case. 3 Albeit he that is admitted to a Copyhold estate is in by him, Copyhold. that made the surrender, yet a man may surrender to the use of his wife, because the Baron doth it not immediately to the wife, but by two means, viz. by surrender of the Baron to the Lord to the use of the wife, and by the admittance of the Lord according to the surrender; but if the estate did immediately pass from the husband to the wife, it could not be good. Co. l. 8. 136. a. 2. in Sir john nedham's case. 4 It was adjudged M. 30 & 31 Eliz. that, Feme Executrix. where in debt against a feme executrix, she pleaded fully administered, and it was found, that the defendant had taken the Obligor to husband, and that the husband was dead, this was no release in Law, neither yet the debt thereby extinct, but only suspended during the Coverture; for she could not (against a Maxim of Law) by taking him to husband make a release to him of the debt. 5 Hob. 10. Friar against Gildridge. 211 Upon a joint Purchase during the Coverture, either of them taketh the whole. Co. Inst. p●rs 1. 55. b. 2. 1 If a man be seized of land in right of his wife, Emblements. and soweth the ground and dieth, his executors shall have the Corn, and if his wife die before him, he himself shall have it: But if husband and wife be joint-tenants of the land, and the husband sow the ground, and then the land surviveth to the wife; in this case, it is said, that she shall have the Corn. Vide 8 Ass. 21. 8 E. 3. 54. & Dyer 316. Co. ibid. 187. a. 4, 2 If a joint estate of land be made to a man and a woman and their heirs before marriage, and after they intermarry; in this case, Baron & feme hold by intierties. the husband and wife have moities between them: but if it be during the Coverture, they hold by intireties: For example, William Ocle and Joan his wife purchased lands to them two and their heirs, afterwards William Ocle was attainted of high treason for the murder of E. 2. and was executed, Joan his wife surviving him; E. 3. granted the lands to Stephen de Bitterly and his heirs, John Hawkins the heir of joan in a petition to the King discloseth this whole matter, and upon a Scire facias against the Patentee hath judgement to recover the lands, for that William and Joan were one person in Law. Co. ibid. 187. b. 2. Vide Pl. Co. 58. b. 4. Wimbish and Talbois. 3 If a feoffment were made before the Statute of Uses (27 H. 8. 10.) to the use of a man and a woman and their heirs, The like. and they intermarry, and then the Statute is made; In this case they hold by moities, for if the husband alien it is good for a moiety, because the Statute executes the possession according to such quality, manner, form, and condition, as they had in the use, so as though it vest during the coverture, yet the Act of Parliament executes several moities in them, Co. ibid. 310. a 1. & Co. l. 2. 68 a. 1. in Tookers' c●se, Pl. Co. 483. a. Nich. & Nich. seeing they had several moities in the use: But it hath been said, if a reversion be granted to a man and a woman, and their heirs, and before attornment they intermarry, and then attornment is made, That in this case the husband and wife shall have no moities, no more than if a charter of feoffment be made to a man and a woman, with a letter of Attorney to make livery, they interm●ry, and then livery is made secundum formam cartae, in which case it is also said, that they have no moities. Cui in vita. 4 Before the Statute of 32 H. 8. 28. if husband and wife were jointly seized to them and their heirs, Co. ibid. 326. a. 2. of an estate made during the Coverture, and the husband's alone (or together with his wife) had made a feoffment in fee, and died, the wife by the Common Law might have had a Cui in vita to recover the whole land, and after her death, her heir might also have had sur Cui in vita; And since that Statute both she and her heir may enter after such discontinuance of the husband, without being put to their action. Discontinuance. 5 If the Baron discontinue the land of the feme, Co. ibid. 356. b. 1. and after take an estate to him and his wife, and a third person for life or in fee; this is only a Remitter to the feme for a moiety, and after the death of her husband she is pat to her Cui in vita for the moiety: But if such an estate be taken back to him and his wife only, she shall be remitted to all. Recovery. 6 Husband and wife are jointenants for life, the remainder to the husband in tail, the Remainder to another in fee, Co. l. 3. 5. a. 4. the Marq. of Winchester's case. the husband suffers a recovery; this is no bar to the issue for any part, because there are no moities betwixt Baron and feme, and therefore no lawful tenant to the praecipe of the whole; And the estate in remainder depends upon the entire estate made to Baron and feme, etc. Real lien. 7 If sundry persons acknowledge a recognizance, it survives not, but the lands of them all shall be put in execution equally; Co. l. 3. 14. a. 4. in Sir William Herbert's case. so likewise if two be bound to warranty, the survivor and the heir of the other shall be vouched together: But if husband and wife, and the heirs of the wife be bound to warranty, and the wife die, the land of the Baron may be only put in execution; because there are no moities betwixt Baron and feme, etc. The like. 8 If a feoffment be made to a man and a woman sole with warranty, they intermary, and then they are vouched, and recover in value; Pl. Co. 483. a. 1. Nich. and Nich. In this case, moities shall not be betwixt them, for albeit they were sole, when the warranty was made, yet when they recover and have execution, they are Baron and feme, and cannot take by moities. 212 The Husband is the Woman's head; And therefore Homage by Baron and feme. 1 The husband and wife doing homage for the wife's land, Littl. §. 88, 89, 90. Co. Inst. pars 1. 66, a. 3. & 67. a. 2. the husband shall speak the words for them both, viz. We do you Homage, etc. And the homage, which the husband and wife do, is the very homage, which the wife should do alone for her own land; and in that case when he hath issue by his wife, he shall do the homage alone, during his wife's life, because by having of issue he is entitled to an estate for term of his own life, in his own right, and yet is seized in fee also in the right of his wife; so as in such case he is not a bare tenant for life: Howbeit if his wife die, than he hath only an estate for life, and (by consequence) cannot do homage: And what is said of doing homage, is also true of taking homage, in case where the husband is seized of a Seignory in right of his wife, for in such case also (before issue) the husband and wife shall take it together by holding the tenants hands in the hands of them both: But after issue he shall receive it alone, and after the wife's death he shall not receive it; for (regularly) it is true, that he who cannot receive homage in respect of the weakness of his estate in the signory, shall not do homage, when he hath a like estate in the tenancy. In like manner, Co. ibid. 130. b. 1. Co. ibid. 54 b. 1. Protection for the husband shall serve also for the wife. Protection. Redisseisin. 2 If a recovery he had against a woman in an Assize of Novel disseisin, and the plaintif recovereth and hath execution, the woman taketh husband, and both of them redisseise the plaintiff, he shall not have Redisseisin, because the husband is now the woman's head, and alius: But if a feme recover in an Assize, and after take Baron, and they are redisseised, the husband and wife shall have a redisseisin, because (as before) he is the woman's head, and therefore joineth for conformity, and doth it in the right of his wife, who was disseised before, so as (in effect) it is Idem disseisitus, & idem Conquerent. Vide Merton cap. 3. 20 H. 3. Co. ibid. 354. a. 3. 3 If land be given to Baron and feme, Remitter. and the heirs of their two bodies, and after the Baron alien the land in fee, and then take back an estate to himself for life; In this case the Baron shall not be remitted against his own alienation: But if he had taken back an estate to him and his wife for their lives, albeit they be but one person in Law, and no moities between them, yet for that the wife (the husband being her head) cannot be remitted in this case, unless the husband be remitted also: Therefore (in judgement of Law) both husband and wife shall in this case be remitted against the husbands own alienation. Co. l 11. 77. b. 2. in Magdalen College case. 4 If an Appeal be brought against a feme covert, and she be acquit, Appeal. Feme covert. she shall not have damages by the Statute of Westm. 2 cap. 12. because she is disabled by the Law to sue sole without her husband. Vide 22 E. 3. tit. Corone 276. Co. Inst. pars 1. 112. a. 4. 5 To cover in English is tegere in Latin, and is so called, Contract. for that the wife is sub potestate viri, and therefore is disabled to contract with any without the consent of her husband, who is her head. 213 All that she hath is her Husbands. Vide Ho. 216. Co. Inst. pars 1. 112. a. 4. 1 Omnia, quae sunt uxoris sunt ipsius viri, non habet uxor potestatem sui sed vir, Bracton, lib. 2. cap. 15. And again, Nothing the wives. Res licet sit propria uxoris, vir tamen ejus Custos, cum sit caput Mulieris. Bract. lib. 5. cap. 25. Co. ibid. 326. a. 4. 2 The husband is tenant in tail, the remainder to the wife in tail, Discontinuance. the husband makes a feoffment in fee; In this case the husband by the Common Law did not only discontinue his own estate tail, but his wife's remainder also, because at the time of the feoffment he was seized of his wife's remainder in her right: Howbeit after the death of the husband without issue the wife may enter by the Statute of 32 H. 8. 28. Co. ibid. 351. a. 1. 3 If a man taketh to wife a woman seized in fee, Inheritance. he gaineth by the intermarriage an estate of freehold in her right, which estate is sufficient to work a remitter, and yet the estate, which the husband so gaineth, dependeth upon uncertainty, and consisteth in privity, for if the wife be attainted of felony, the Lord by escheat shall enter, and put out the husband; otherwise it is if the felony be committed after issue had: Also if the husband be attainted of felony, albeit the King thereby gaineth no freehold (for that remaineth still in the wife) yet the King shall have a pernary of the profits during the Coverture. Co. ibid. a. 3. 4 If a man marry a woman possessed of a term for years: Chattel real. In this case the baron is also possessed thereof in her right, and hath power to dispose thereof by grant or demise, he may also forfeit it by Outlawry or Attainder, because they are gifts in Law. Co. ibid. 5 Upon an Execution against the husband for his own debt, The like. the Sheriff may sell the term: Howbeit, the husband cannot dispose thereof by will: Also if he make no disposition or forfeiture of it in his life, & survive the wife, he shall have it by gift in Law; but in such case if the wife survive him, she shall have it again: There is the same Law likewise of estates by Statute Merchant, Statute Staple, Elegit, wardships, and other chattels real in possession. Vide Hob. 3. Young and Radford. The like. 6 Chattels real en auter droit, Co. ibid. or consisting merely in action or use, the husband shall not have by the intermarriage; but Chattels real being of a mixed nature, viz. partly in possession, and partly in action, which happen during the Coverture, the husband shall have by the intermarriage, if he survive his wife, albeit he reduceth them not into possession in her life-time; but if the wife survive him, she shall have them: As if the husband be seized of a rent-service, charge, or sack, in the right of his wife, and the rent becomes due during the coverture, the wife dieth, the husband shall have the arrearages, but if the wife survive him she shall have them, and not the executors of the husband: So it is of an Advowson, if the Church become void during the Coverture, he may have a Quare Impedit in his own name, as some hold, Vide 50 E. 3. 13. 28 H. 6. 9 7 H. 7. 2. But the wife shall have it, if she survive him, and the husband, if he survive her: Et sic de similibus: But if the arrearages had become due, or the Church had fallen void before the marriage; In such case they were merely in action before the marriage; Co. ibid. b. 1. And therefore the husband should not have them by the Common Law, although he survived her: And so it is likewise of Reliefs, mutatis mutandis: But now by the Statute of 32 H. 8. 37. if the husband survive the wife, he shall have the arrearages as well incurred before the marriage, as after. Chattels personal. 7 Things in Action, as debts by obligation, contract, or otherwise, Co. ibid. the husband shall not have, unless he and his wife recover them; But the marriage is an absolute gift of all Chattels personal in possession in her own right, whether the husband survive the wife or no: so if an Estray happen within the Manor of the wife, and the husband die before seizure, the wife shall have it; But after seizure by the husband, the property vesteth immediately in him, and if he die, his executors shall have it: Howbeit, as to personal goods there is a diversity, between a property in personal goods (as is aforesaid) and a bare possession; for if personal goods be bailed to a feme, or if she find goods, or if goods come to her hand as Executrix to a Bailiff, and then she take a husband, this bare possession is not given to the husband; yet in such case the Action of detinue must be brought against husband and wife, as (regularly) in all other actions against the wife it ought to be. Co●fi mation. 8 If a man let land to two men, to hold the one moiety to the one for life, and the other moiety to the other for his life, Co. Inst. pars 1. 299. b, 1. and the lessor confirm the estate to them both in the land, to hold to them and to their heirs, they are tenants in common of the Inheritance; for regularly the confirmation shall enure according to the quality and nature of the estate, which it doth enlarge and increase: But if such a lease for life be made to husband and wife by several moities, and the lessor confirm their estate in the land, to hold to them and their heirs, this confirmation as to the moiety of the husband enureth only to the husband and his heirs, for the wife had nothing in that moiety; but as to the moiety of the wife, they are jointenants, for the husband hath such an estate in his wife's moiety, in her right, as is capable of a Confirmation. Feme. Executor. 9 A feme covert cannot make an executor without the assent of her husband, Co. l. 4. 51. b. 2. Andrew Ognell. and the administration of her goods of right appertains to her husband. Replevin. 10 If the beasts of a feme sole be taken, and after she takes a Baron, F. N. B. 69. k the Baron alone may sue a Replevin, Trin. 33 E. 3. Obligation. 11 If a feme sole be bound in an obligation, and take baron, F. N. B. 121. c. and after dies, the baron shall not be charged therewith, if recovery thereof were not had against him and his wife in the life of the wife; but if a man demise land to a feme for life, rendering rend, Rent. and she take baron, and after the rent is arrear, and then she dies; In this case the baron shall be charged by writ of debt for those arrearages, because he took the profit of the land by reason of his wife. F. N. B. ibid. 12 If a man be bound by obligation to a feme, and she take baron, The like. and the day of payment comes during the espousals, and after the feme dies, the baron shall not have an action of debt for this obligation, because it was a duty due to the feme, and a thing in action before the espousals; but if a feme be endowed of a rent, and after she take baron, and the rent is arrear, and then the feme dies; In this case, the Baron shall have a writ of debt for this rent, because it was a duty accrued unto him during the espousals. Co. Inst. pars 1. 46. b. 3. 13 If a lease be made to Baron and feme for term of their lives, Leases. the remainder to the executors of the survivor of them, the husband grants away this term and dieth, this shall not bar the wife; for that the wife had but a possibility, and no interest: But if a man be possessed of a term for forty years in right of his wife, and maketh a lease for 20 years, reserving a rent, and die, albeit the wife shall have the residue of the term, yet the Executors of the husband shall have the rent, for that it was not incident to the reversion, because the wife was not party to the lease: So if the husband had made a grant of the whole term, upon condition that the grantee should pay a sum of money to his executors, etc. and the husband had died, and then upon breach of the condition the executors had entered; This had been a disposition of the whole term, and the wife had been barred thereof, because the whole Interest was in that case passed away by the husband: Also if husband and wife be ejected of a term in the right of his wife, and the husband bring an Ejectione firmae in his own name, and have judgement to recover, this is an alteration of the term, and vesteth it in the husband: & sic de similibus. 214. Her will ought to become his will, and to be subject unto it. Co. Inst pars 1. 112. b. 1. 1. The husband may devise lands to his wife, Devise. because (as Littleton saith §. 168.) the devise taketh not effect till after the husband's death; Howbeit this reason holdeth not to make a devise of lands from the wife to the husband goo●; for if a Feme covert be seized of lands in fee, she cannot devise the same to her husband, because at the making of her will she had no power (being sub potestate viri) to devise the same, and the law intendeth, that it may be done by coercion of her husband. Co. ibid. 132. b. 2. 2. A woman cannot be professed a Nun during the life of her husband: Profession. Howbeit in such case some do hold a diversity, viz. that ante carnalem copulam, the husband or wife may enter into religion without any consent, but Post carnalem copulam neither of them can without the consent of the other. Co. ibid. 310. b. 1. 3. If a Feme sole maketh a lease for life or years reserving a rent, Attornment. and granteth the reversion in fee, and then taketh husband, this is a countermand of the Attornment; for that she had no such freedom of will, when her grant was to take perfection by attornment, as she had at the time of the grant made, her will now being subject to the will of her husband. Co. l. 2. 57 a. 4. in Beckwiths' case. 4. If Baron and feme levy a fine of land, Declaration of Uses. whereof they are seized in right of the feme, and the baron only declare the use of the fine, this declaration of the use shall bind the feme, if her disassent appear not, albeit her assent to the limitation of the uses cannot appear; for when she joins with the baron in the fine, it shall be intended (if the contrary appear not) that she joined also with him in agreement in the declaration of the uses of the fine. Declaration of uses. 5. If Baron and feme sell the land of the feme to another for money by parol, and after levy a fine to the vendee and his heirs; this is good, Co. l. 2. 24. Beckwiths' case. and shall bind the feme without any writing proving her assent; A fortiori when the use is declared by the deed of the baron, and no other declared by the feme, it shall bind, vide 12 Eliz. 290. Dyer. Baron and feme were seized of a tenement in London to them and the heirs of the Baron, & the Baron covenanted by Indenture in consideration of 20 l. that he and his wife should suffer a recovery by writ of right according to the custom of London (which binds as a fine at the Common-law) and that the recovery should be to the use of the recoverors, until they should make a lease by Indenture for 40 years, and after the making of the lease, then to the use of the baron and feme and the heirs of the baron, and the recovery was had accordingly, and the opinion of all the justices was, that the lease was good, and not disseisible by the feme, who survived the baron; And yet in this case the baron was only party to the deed that declared the use, nevertheless it bond the feme, because the feme is sub potestate viri. And therefore albeit the feme be owner of the land, and the declaration or disposition of the use ensues the ownership of the land, sicut umbra sequitur corpus; Co. l. 4. 51. b. 2. And. Ognels case. yet in regard she is sub potestate viri, she cannot in respect of her coverture without the barons consent limit the use, no more than she can make an executor without such consent. Devise. 6. A feme sole deviseth land to a man, and then takes him to husband, Co. l. 4. 61. a. 3. etc. Forse, and Hembling case. and dies, this intermariage is a revocation of the devise, and the heirs of the feme shall have the land, and not the husband; because after marriage the will of the feme in judgement of law is subject to the will of her husband, and (as it is commonly said) a feme covert hath not any will; for the making of the will is but the inception thereof, and takes not effect until the death of the devisor: Omne Testamentum morte consummatum est, and voluntas est ambulatoria usque ad extremum vitae exitum. Tenant at will. 7. If a feme sole be lessor or lessee at will, and take husband, Co. l. 5. 50. a. 4. Hensteads case. this determines not the will; because after the marriage, the feme herself cannot countermand or determine the lease at will, no more than where she and her husband make a lease at will rendering rend during the coverture, or if a lease be made to them at will; for she hath submitted herself and all her will to her husband; And▪ so a few covert may have a tenant at will, or be a tenant at will, and yet she herself cannot countermand it, because she by her intermariage hath put her cowtermanding power in this case (which concerns not franktenement or Inheritance) into the mouth of her husband: so if baron and feme demise land at will, and the baron dies, this is no countermand of the will, but the lease continues still. Security of the peace. 8. The will of the wife ought (by the law of England) to be subject to the will of her husband; that to make her obedient thereunto, F. B. 81. f the Common-law doth seem to allow him to give her lawful and reasonable chastisement, For if the husband threaten to beat or kill his wife, she may have a writ de securitate pacis against him, but such writ shall have this clause in it, Quod ipse praef. A. been & honest tractabit & gubernabit, ac damnum & malum aliquod eidem B. de corpore suo alitèr quàm ad virum suum ex causa regiminis & castigationis uxoris suae licitè & rationabiliter pertinet, non faciet nec fiei procurabit quovismodo, Compellatis, etc. Pl. Co. 37. a. 2. in Plaits case. 9 If the office of the warden of the Fleet (which is an office in fee) descend to a feme sole, Escape. and she maries one imprisoned there upon an execution, this shall be adjudged an escape in the feme, who is warden, and the Prisoner (albeit he be within the walls of the prison) is thereby enlarged; for he cannot be lawfully imprisoned, but under a warden, and he cannot be under the guard of his wife; and therefore the law will adjudge him at large. Co. Inst. pars 1. 3. a. 1. 10. A feme covert cannot take any thing of the gift of her husband, Purchase by a feme covert. but is of capacity to purrhase of others without the consent of her husband; Howbeit her husband may disagree thereunto, and divest the whole estate; but if he neither agree nor disagree, the purchase is good; Howbeit, after his death, albeit her husband agreed thereunto, yet she may without any cause to be alleged waive the same, and so may her heirs also, if after the decease of her husband she herself agreed not thereunto. Dyer 271. 27 10 Eliz. 11. The baron is outlawed, and his feme waived, Baron and feme outlawed. the feme comes in in ward by process, and hath a charter of Pardon; In this case, she shall be discharged of the Imprisonment, but the charter could not be allowed, because she could not have a Scire facias against the Plaintif without her husband, for that her will is subject unto his. FINIS. THE TABLE. A. ABatement of Writ, 683. 695. Where disability abates it not, 38. Of a Quare Impedit, 90. 247. 557. Of a Formedon, for an omission in pedigree, 597. Abatement in Lands, where it is no bar, 564. Abayance, 633. Abbot and Prior. 676. 732. Abjuration, 342. 345. 391. Ab initio, 486. Acceptance, 169. 460, 461. Of a Rent, where it makes a Lease good, 40. 141. 458 Makes voidable Leases good; not so of void, 54 103. Where a good bar, 59 579. Of Rent, no Confirmation, 572. Of a Deed, makes Attornement good, 458. Of one thing in lieu of another, 461. Bars Escheats, 470. O counterfeit money, after receiving of it shall not give advantage to alter for the Condition broken. Accruer, 771. Of estate, 194. Accord, With satisfaction where a good Plea, 64. Accessary, No Accessary without a Principal, 4●. 713. Actions, To be laid, where the cause ariseth, 47. Where the ground of it fails, all is gone, 114. Entire, 252. Popular, 331. Real and personal, 363. Where to be brought, 495. Acts, The original Act, where to be considered, 62 Done to a man's self, 169, 170, 171. Voluntary and Compulsary, 422. against common right, 548. Actions upon the Case, 573. For words, 159. 678 690. 703, 704. 734. 762. For Nuisances 95. 696. Lies not for erecting a Dove cote, 684. Upon abatement of goods lost, or spoilt by negligence, 670. Acts of Parliament, 331. B●st expound themselves ●49. Judges, to take notice of them, 29●. Do no wrong, 580. Repugnant, void, 641. 644. Account, 715. Against Guardian in Socoge, and when, 85. Not against the Executors of the Accountant, 155. 597. Must be grounded upon privity, 175. Of Merchants, 738. Accusation; None bound to accuse himself, 486. Acquittance, 97. 464. Advantages, Not taking of them, is an Inlet to Covin, 457. Administrators and Administration, 456. Where they shall not sue Execution, 83. In Law, 140. Ought to execute their office faithfully, 340. Of bona Notabilia, 218. Composition, shall not prejudice, 330. Admeasurement. Of Acres, how to be 482. Advowson, 251. 290. 610. Appendent, 143. After Partition remains appendent, 228. Appendent to one Acre, 234. To the Demesnes, 236. Admission, and Institution, 709. Age. 346. 347. By the civil Law, 348. Agreement and Disagreement, 454, 455. Aide, 31. To deraigne the Warranty 40 Of the King, 307. Allegiance, 134. 288. One may be borne in England, and yet not within the King's Allegiance, 46. Is due to the natural person, 88▪ An inseparable incident, 136. Due by nature, 279. Is not local, 287. Alienations, by Tenant in tail where no bar, 72. By Tenant by the Courtesy no bar, 206. Of a Villain purchasor, 291. Alien, 291. 345. May trade, 95. Not Inheritable, 160. In league, may be indicted, but not alien Enemy, 344. May have and maintain Actions personal, may purchase to the use of the King. Amendment, of a Record, 594. Amercement, upon a Nonsuit, upon what Lands, 42. in Courts Baron, and Leet, 335. Of the Town, for Manslaughter, 588. Te●med Misericordia, 686 afferred, 725 The Country not amerced for not apprehending of Felons for f●lon s in the night, 488. Annuity, 703. What, 155. Extinct by Eviction of the Land, 31. Not maintainable against the Heir by Prescription 36. Where good hy Prescription 69. Good, and yet the Land evicted 576. Annual sum not severable 240. Ann and Jour. 489 To bring Appeal to make claim 489. Appeals 391. 768. Not by the Lord against his Villain 104. 500 By the Villain against the Lord 110. Of Mayhm 680. Malicious abhorred in Law 499. Apportionment and Division. Castles where dividable 91. Estovers, Advowsons', and things entire not apportionable 255. 455. Approvement 208. Apt words 606. Appropriation 710. Disappropriate 125. Appendent and Appurtenant 284. Arrests 355. 424. The Bailie must show his Warrant 700. Erroneous 590. Arbitrament and Arbitrators 456. 153 221. 379. 713. 749. Their power not irrevokable 379. A Plea to it revoked 138. Attaint, lies not before Execution 112. By the heir in Villainage 198. No new Evidence to be given in it 605. 711. Attachment of a Debt in London 400. Assets 149. 386. Found in any County 430. Assets, by Descent. Assumpsit 280. 600. Defeated 123. Assignments 325. Of Dower 579. Assignees in Fait and in Law 708. 451. May vouch 187. Attainder, the right of the Heir not forfeited by it 188 Attorneys. The Lessor Attorney to make Livery 60. 90. Cannot do more than his Master 66. So of Bayly ibid. Were not allowed by the common Law 152. To deliver Seisin 336. Assize, By joint-tenants and Tenants in Common 43. Of a Rent after a Disseisin 143. By the Grantee of a Seignory upon a Fine before Attornement 15. In Consinio Comitatus 225. Amounts to a claim 584. Attornement 707. 770. 143. 155. 184. 255. 326, 377. Not compellable to a deseisible estate 33. 601. Where upon Alienations 32. Who shall attorne 33. Paramount a Condition 82. of a Eeme Sole 110. Where it is needful 13 601. To the particular Tenant, vests all Remainders 183. Upon the grant of Rent, who ought to attorne 183, 184. By one joint-tenant good for both 185. 188. 256. Of an Enfant 690. One not to attorne without his Companion 699. Not for a time, or upon Condition 508. Void for uncertainty 625. Audita Querela 123. 147. 605. By an Enfant to avoid a Statute, 672. To avoid a Statute made by duresse 50. Not after a release 105. Nonsuit in it 335. Averment, not against a Presumption in Law 707. Negative Pleas not to be averred 110. Not of that, which appeareth 112. Where necessary, & e contr. 613. Avowry 92. For a Rend service upon the person 32. Where title is to be made 165 Made for a Rent, where it shall be a bar in Annuity 176. without Attornement 557. 593. Determination of Election 473. Auditors. Of the Court of Wards granted to two, there shall be no Survivor 747. Authority 733. 374. Created, by the parties, and by the Law differ 438. Revocable 243. 450. Ancient Demesne 147, 148. 276. 292. 369. 708. Award 247. 679. 456. B. Bail 686. 714. Bailement 380. 702. Of Goods 35. 375. Executors of the Bailee shall not take advantage of a Release 5. Bars 233. In divers respects 163. 479. Defective, yet the Plaintiff shall recover 243. 248. In personal, and real Actions 360. In a Writ of Escheat 369. In a Quare Impedit, & e contr. 394. & 588. e contr. In Mayhm 695. Bar in an Action upon the Case is a bar in Debt 695. Baron and Feme 141. 359. 571. Grant of the Husband without the wife, where not good 63. Estates to them is joint-tenancy 66. Husband, chargeth the Wife's Lands 81. Wife can pass nothing, without Examination 317. Husband cannot grant to his Wife 765. Hold by Entierties 766. Bastard and Mulier 52. 200. 349. 723. 499, 500 Shall vouch 431. Takes by purchase 432. Est nullius filius 500 Battle, in an Appeal 155. Bills, Of Revivor, not upon Revivor 678. By-laws, where good 734. Blood Corrupted, not inheritable 246. Body, more worthy than Land 224. Bonds taken by the Sheriff, where not, with the Statute of 23. of H. 6. 250. without date good 390. Boötes, where the Lessee may take them without Assignment 244. C. CApias pro fine 52. 711. Lay not at the Common Law for a Debt 354. Carrier 410. Castle-Gard 222. Casualties not devisable 627. Cause, the cause ceasing the effect shall. cease 29. 30 Charges upon Lands, where good, & è contr. 117, 118. Upon a Benefice, without the Patron 411. Where the person shall be charged although discharged by a Proviso 551. Cestuy que use, his Lessees estate determined 38. Champerty 281. Chattels, real return to the wife 82. Vested 103. 137. What the Husband shall have 769. Challenge 72. 114 167. 292. 677. To the Array and Polls 277. 569. Peremptory 352. Cannot be of the four Knights of the Grand Assize 706. 481. Charters, how to be construed 65. Chaplains 64. 76. Certainty, where required 629, 630, 631, 632, 633. Certificate, of the Bishop 156. 291. Of an Accord, before a Non omittas 272. Not to be traversed Clergy 106. 357. Claim 550. 553. 609. Where not needful 601. How it must be made 43. in part, good in all 216. Fear of making continual claim 353. 489. When, and where to be made 495. by the Lord of the Villains goods 361. Of Privilege 366. the Heir Beyond-sea, not barred by Non claim 671. in Case of fear made as near the Land as may be, good 487. Circuit of Action 680. Collusion 693. Collations 717, 718. Common Recovery, common Assurances 742, 743, Where bars an estate tail, 45. Common, Of Vicinage 34. 211. Appendent, due of common right 63. Apportionable 238. 548. Ratione Comorantie 269. 287. Without number 576, 577. Commoners, by Vicinage, may enclose one against another 699. Compositions 330. Conditions, precedent and subsequent 47. 64. Proviso, is a word of Condition 53. 68 A Stranger may take advantage of it 53. Of a Mortgage must be performed 65. Where an estate shall cease upon it 68 Paramount, a Descent 81. 83. 293. Of increaser 293. Accessary, to the estate 232. Runs with the Lands 255. Entire 259, 260. 485. Repugnant 639. & è contr. 640. subsequent, not to be averred, 646. Not pleadable without showing the Deed 324. Words Conditional in Leases 361 In Law, upon Trust 375. Annexed to estates in Lands, and of a Recognizance differ 395. In the Disjunctive 442. Apportioned by Act in Law 439. Where by Entry for a Condition, the party shall not be in his first estate 607. Impossible void 608. Unreasonable 694. When to be performed presently, when in convenient time 491, 492, 493. Restrains Liberty 483. Performance of them must be averred 485. Concord 415. Conjunction and Copulative, how to be taken 13, 14. Confirmations, void, 74, 116. 160, 161. Of a Rent void, to enlarge his estate 59 255. By the Patron and Ordinary 59 Works not, without Privity 183. Joint, to the Husband and Wife 362. Conformity, joinder in Actions and Fines for Conformity 438. Contracts void 75. Import an Assumpsit 137. Conspiracy 171. Must be brought at least against two 763. Lieth not after a Pardon 35. Indicted, though yet nothing in Execution 700. Contempts 152. Colour of Entry 431. Not to be given where the Plea goes in bar of the right 602. Consent takes away Errors 481. Contribution 413. Where not compellable upon Audita Querela 36. Where the heir sued shall not have 199. 282. Considerations 413, 414. Where blood is no good Consideration, & e contr. 138. What is good, within 13 Eliz. cap. 5. 168. To raise Uses 281 Continual Claim 584 Construction, Where one thing shall be taken within another 218 219. Concealments 240. 302 Constitutions 735 Conveyances, out of the Statute of 32 H. 8. of Wills 717. By Livery, where a Forfeiture 370 Copyholds and Copyholders 727. 760. 217. No Fine due upon surrender or descent b●fore Admittance 45. May lop Trees 47. Their estate confirmed by Custom 58. Surrenders by Attorney, and good 68 In by the Surrender, not by the Lord 83. Severed by Custom, so continue 133. 328. Grantable, by Executors 142. Dominus pro tempore 142. Grantable in fee, may be granted for life 216. Their Fines must be reasonable 213. Surrenders, before admittance, good 327. In pleading may allege an Admittance as a Grant. Copyhold Customs 759. Extinct 463 Conveniency, things respected, by reason of their conveniency 428 Cornage 162 Corodies 228 254 Corporations 390. 708. 719. Failing, the Lands revert 29. Hold Lands, by Knight's service 36. Where granted, is dissolved upon a Release 52. 53. Translated, enjoy their old Privileges 154. Single and aggregate 150. Altered, yet the body remains 354 Corruption of Blood 161 Coronors, their Inquest 244 Costs 564 Covenants, joint and several 89. What bind betwixt Lessor and Lessee 133. Incident to the Lands, and came with it 135. Employed and expressed 157. Have special relation 167 Covin apparent, need not be showed 603. Hinders a Remitter 612. Not presumed, unless averred 725 Cui in vita 765 Custom Concealed 14. Of goods lost by Tempest, not recoverable 591 Customs, binds strangers 145. Of Burrough English 148. 244▪ 313. To have a Fine for marrying the Daughter 352 Count 'tis, made good, by the Bar and Replication 249. Must contain certainty and verity 605. abated by misrecital 470 Courts Baron 135. By Commission cannot sit in Term where the King's Bench is 223. Remedy for spiritual things in temporal Courts 234 Of Record only have power to imprison 367 D. Days, in Court, and pleadable 7 Damages several, amongst Parcenors' 237. When they shall be laid in the Count 597. And increased, & e contr. 502. Double Writs of Enquiry of them 696 Darriane Presentment 331. 341. 382. Demand, of a Rent, when to be made 489, 490, 491, 492, 493. 495. 474. Of the purchase of a Villain 495 Deeds must be avoided by Deeds 71, 72. In whose custody to remain 127. In Cases of necessity may be proved without showing them 425. Made void by rasure, etc. 590. Fraudulent void 613, 614, 615. 691. Not to be pleaded, without showing 706 Death, Not traversable 603 Delivery, Of Goods by the Bankrupt not good 207 Degrees, Of worthiness of the Lands 269 Demise of the King, no change by it 145 Demise of goods 151 Debt, for rent after a Surrender 144. Extinct 154. 172. Against Executors 157. 161. 288. Against the Heir 556 Denial 596 Deraignment purgeth Profession 73 Deprivation 289 Detinue, by the heir of Deeds 691. For Charters, 136. Of Charters where no Plea 195 Devise 715. 770. One equal part of Capite Land to descend 209. For Executors to sell 221. Of the third part 327. Of a Reversion sold by Executors 336. Shall make a Fee-simple by Construction in Law 709 Demand, the form of it in a Writ 17. Of rent, must be upon the Land, and when 52. 245. 460 490. Not to be by the King 295 Demurrer 296 Devastavit 754 756 Dignity, forfeited for Treason 138. Restrained to an estate for life 156. Respected for conveniency 428 Descent 293. 311, 312. When privity of blood faileth 32. Where shall take away Entry, Et e contra, 32, 134, 609. To Daughters, and not Parcenors', 51. In stirpes, & in capita 61. By Entry into Region 62. Where not good against the King, 62. One out of the Realm not barred by a descent, 216. Takes away Entry, 577. 591. 683, 716. Of the Bastard eigne where it shall bar the Mulier 493 Discontinuance, 20, 56, 57, 325, 368, 270, Removed the Issue may enter, 33. Defeated upon a surrender, 33. Of an Estate tail 44. 55. Once defeated, all that depends upon it is gone, 117. Where a Bar, Et e contra, 185. Of the Lands by the husband, 218. By enfeoffing the Donor and a stranger, 256. The reason of it, 697 Discontinuance of Suit 557 Dispensations 160. To take two live, 22, 101 Disseisin 696. Not of a Rent without Attornment 217. Not of a Rent-charge or Sack but at Election 462. In time of war takes not away Entry 488 Disseisor and Disseisee 235. May be no Tenant of the Land 563 Disfranchisement 107 Deceit 147 596 Disclaimer 364. 368. Where it shall bind, & e contr. 55. In the blood 459 Disability 343. 570. To make a Surrender 602 Distress, for Damage pheasant most be upon the Land 31. Of the Lord out of his fee, when 42. Of the Lord Paramount without attornement 82. No Distress is irreplevisible 168. For owelty of Partition 237. In the night 418 Not for certainty in Leet 549. For more rent than is due, where justifiable 468, 469. In another County 418 Division, of Lands, in Hotch pot 205. Of the Testators goods 205 Divine service, by Prescription 683 Divorce, 593. Causa frigiditatis 714. Sentence in case of Divorce repeated after the death of the parties 498 Donative, Charges donative, may be made Presentative 462 Double Pleas 625 Dower, where it lieth against the Guardian & e contr. 35. Of a woman at nine years of age 37. Ex assensu Patris, where not good 73. 622. Does non de dote 79 According to the improved value 79. of Copyhold 91. 556. Where not of the Rent, but of the Land 125 Of entire things 207. Ad ostium Ecclesiae 220. 622. Of Castles where, & e contr. 729. Of the pluis beat part 730. Of Rent to be delivered by the Sheriff 429 Duchy of Cornwall 720 Drunkard 570 E. Ecclesiastical persons cannot prejudice their Church, 4. Cannot disclaim, 4. May resign to the King, 220. Ecclesiastical Courts, may take Recognizance of a debt, 239. Where Temporal Courts are to take notice of their Jurisdiction, 599. Ecclesiastical Laws, What are in force, 7. Founded by the Common Law 71. Ejectione firmae, 141. 727. Of what it lieth not, 18. Not within the Statute of 32 H. 8. of Titles 92. By the Lessee of a Copyholder 545 506 Estates, Deseiable, 122. Upon accruer, 122, Particular and Remainder one Estate 187. Voidable evicted by Guardian and Bishop, 192. In tail cannot drown, 201 Two Estates made together of one Land, 207. Once void remediless, 395. Executed and Executory, 396. Altered and charged 433 Election, 159, 473, 474, 475, 477. Of a Writ of Annuity or Distress. 473. Lost by doing wrong, 565. By Coparcenors', 478 To Corporations, 753. Of the Knights of the Parliament, 550. Of the Heir and the Lord, 475. Of things in grant, 475. Of Entry and Actions, 476 Enfranchisement, 356, 459. For a time, 161 Enfant, May attorne 48. Shall do his Services, ibid. Where, shall not have his Age, 48. Cannot be Guardian, 104, Where his plea shall demur for Enfancy, 315. Shall not account, 319. Their Acts upon Record not voidable, 369. Married before years of consent, 402. Compellable to attorne 415 Entry congeable 40 44 Entry, Taken away by Corruption of blood, 37 Revived, 38. Is not good where is no Interest 55. Taken from the Issue in tail, 57 After Entry, the party Trespassor Ab initio, 108. Given to the King without demand, 275. When may be for nonpayment 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 certain 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 completed 247. 274. 545. 693. In fact, and in Law 682. In London 701. Upon a Plaint in Inferior Courts 709 Escheat 294 Escape 36. 95. 572. 585. 685, 772. 645. By marriage of the Keeper 36. Against a Gaoler 561 Estrepment 700. In what case it lieth 682 Estovers 135 194 Estoppell 186. 566. The heir where not estopped 573. No Estoppell, to allege the truth which appeareth on Record 604 Executors, where they shall not recover Arrears 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 own wrong 466 Execution 400. Where against the King's Debtor, & e contr. 40. Of the Land only, 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 parcel of the Land 240. Sheriff may break open doors to do it 290. Where not against an heir 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 Process 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 equal void, 242. Entire, 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 refer to the next Antecedent. 15. In forma predicta, 15. Of Sentences and words 21 23 Exception 165 Extinguishment, Tail extinct in a fee-simple 223. Of a Rend charge, bars 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 tail in Remainder 67 False Latin 19 Shall not quash a Count, nor a judicial 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 Conditional 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 again, 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 Bar an entail, 154, 188, 330, For years within the Statute of 11 H. 7. 209 Levied by Covin shall not bar, 586. 613. Reversed 715 Fines upon copyhold Estates, 434. Excessive or unreasonable, no Forfeiture to deny them, 685 Fine, In a Leet to be distinct and not joint, 49, 334 557. For an unjust vexation, 68●. Eor disturbance in a Court of Record 741 Forejudger, 371 Folly, where attributed to the party, and so bind them 666 667 Forfeiture, of marriage, 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 Mass 245. By Attornement upon Record 366 Fo●cible Entry 91 Foundation, of a College, where void 76 Formedon 41 599 Frankalmoigne 410 720 Frankmarriage, Hodgepodge 31. 62. Who shall have the Land, after a Divorce 52. Out of use 158 Fractions, in Conditions, estates 256 257 Franchises, shall not die 64 65 Fraud 613 614 615 Fraudulent Grants 747 G. GArnishment 123 Gavelkind 148 Goals 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 marriage 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 general 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 honour, and the relief of the Subjects 741 Grants, of an estate of in futuro void 24. Not to be expounded against the express Letter 25. Of a Villain for years, not good without Deed 42. Of a Reversion not good without Attornment 67. Of Monopoly, void 68 Of a Rent, where void 74. Of the office of Auditor 77. Of a Surveyorship 77. To a College, 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 avoidance 160. 164 245. 579. of a Seignory 169. of Pawnage 245. of copyholds 252. In pais, not good, without Attornment 366. Joint, where they enure severally 608. 609. By Ecclesiastical persons 762. Where good, without Attornment 455, Made Concurrentibus his, how they operate 484 Gifts, to Husband and Wife, how to be taken 62. Causa Matrimonii prolocuti 275 H. HAbendum, and Premises, their difference 100 Heir, a man's heir remains in him during his life 241 Heresy 8 Heriot service, and custom 254 Homage, by Husband and Wife 767. Auncestrell gone after Alienation 30. 410. May be separated, and twice done 113. Personal 150 Extinct 173. ancestral implies Acquitaile 607. Hodgepodge 205 600 Hospitals 407 Hue and Cry 588 Hundred, not chargeable to a Felony done in a man's house 668 I. Idiot's, examined in Chancery 123 Imprisonment 320 356 743 Indictments, Not void by Nicety, 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 acquit, where a good Plea 501 Incidents 131. Incident services not discharged without special words 131. Fish and Doves to the 226. To a Deed 321. To Corporations 135. Inseparable 135. A Judgement distroyes a Bond 222 Entire things 262, 263, 264, 265, 266. 498. Entire Inheritances 720. Multiplied 467 Indentures, subsequent, declare uses of a precedent Recovery 468 Inventions, new, are dangerous 756 Enclosures 563. Disseisin of a Rent 742 Inheritances, shall not depend, upon uncertain words 107 Indicavit, where it lieth, & e contr. 178. 179 Infidels, accounted Enemies in Law 10 Interpretation of the Statute of 11 H. 8. Of the Statute of 32 H. 2. cap. 2. Of Charters, as the Law was when they were first made 158. Jointures, void 75 Before marriage no bar of dower by the Common Law 414 Made in lieu of Dower 464 joinder in Action 600 430 Joint tenants charge 164. May grant their moieties 57 59 of a right, of differing natures 162. May prejudice one another 363 Issue, where not inheritable 343 Issues, of Jurors levied upon the Feoffee 42 Journeys Accounts 121 588 Judgements, in the Grand Assize 677. where defeated 122, 123. Payable, before debts 350. Upon dead men 561. Drown Obligations 681. Final 6. 77 Jurisdiction of Courts 139. Prohibited. 139 Justices of the Benches 219. Must surcease upon the King's Certificate 38. Where they ought to give Judgement, ex officio 703. Where righteous Judgement 507 Juris Vtrum 161 K. KIng, his command against the Law not to be obeyed 8. 103. Shall have the Purchases of Aliens 38. Shall not find Pledges 106. Not deceived in making Leases 219. No Minor 224. his Debts shall first be paid 228. His Grants favourably interpreted 295. 299. His Prerogatives 296, 297, 298, 299. 305. Acts to him done, must be fully completed 301. Where not barred by Acts of Parliament 303. Cannot be joint-tenant with another 305. absolute before his Coronation 389. Hath property of Felons goods waived 670 Knights-service 91 738 L. LAw, Common Law preferred before the Statute Law, 341. Favoureth Right, 542. Where it excuseth 609 Appropriats to itself vocabula artis to express itself by 632. Penal not taken by Equity, 686. hateth Vice, 499. Countenanceth things done in peace, more than in War, 437, 488. Lachesse, shall not prejudice an Enfant, 6 Of Entry, shall bar the party, 666, 667 Leases, 74, 69, 393. With condition to take the profits, 11. The Commencement of them 7. Where exception in them is void, 11, 13. Durante viduitate, 67. By Tenant in tail, good only for his life, 67. 162. When to begin▪ 76. Where shall enure by grant or confirmation, 102. where voidable, 121. To one and his Heirs at will, void 242. Of a house with Implements Quid operatur, 227. Void for incertainty, 626. Drowned as to one, hath continuance as to another, 324. For years not capable of a Warranty, 362. By Tenant in Tail 442. By Deans an Chapters, 715. Under the Exchequer Seal good 743 Legacies not grantable over 95 Leet 549 Livery and Seisin, 728. Of an Estate in futuro, void, 73. By Attorney, 96. Upon condition 99 void 113. To one, enures to both 166: Of what it must be made 226. Within the view 393. 418. Where of part not good 5●5. Not to be made, nor taken without a Deed 623 Livery and ouster le Maine 37 203 Libels 744 Limitation of Uses 707 Licences, not revocable 381. To alien where good 394. To sell Wines 157 418 Lord and Villain, manumission of the Villain 50 London, dangerous to be populous 735 M. MAintenance, Where justifiable 432 Manumission 392 Marriage, of Priests 73. Due to the Lord 102 An absolute gift of Chattels to the Husband 199 Manor, by the word Manor, a Reversion passeth 218. What things it draws to it 228 229 Magis Dignum 226 348 349 Market-overt 702. In London 716 Merchants 561 Manslaughter, the diversity in it 211 marshalsea, none to sue there but those of the King's Household 276. Office of it not grantable for years 757 Menalty 327 Misnosmer 391. 556. Shall not make void a Grant, or a Presentment 21 27 Misprision, of Clerks where not amendable & e contr. 250 385 592 Miscontinuance of Suit 723 Monopolies 728 748 756 140 302. Monks 337 Mortgage 251. Where upon it, the money is to be paid to Executors, where to the heir 43 Monstrans of deeds, 196. 595. 598, 457 Modo & formae, not words of substance 381. 382 Mortmain 309 Murder 747. An Act may be murder, though not intended 48, 50. All are Principle sin it 50. Intentions adjudged Murder 901 N. NAturalisation 284 Ne Exeat regnum 742 Necessity, in what Cases it excuseth 425, 426. Writs in what Courts to be sued in case of necessity 427. A Deed not showed, where it may be good in Evidence in case of necessity 498 Neife 356 Nobility 764. Got by marriage, lost by marriage 71 Non-claime 316 Nonresidency, good excuses of it 610 Nonage 74 Non Compos Mentis 43. 367. Shall not lose his life for Felony 355 Non Obstant● 310 Non est factum 158 591 Nonsuit, in a Quare Impedit peremptory, in Attaint peremptory, 394 604 497 Notice, where a man shall not forfeit his estate upon a Condition broken, without notice 593. 596. Things done in one County, taken notice of by them in another County, e contr. 595 Nuisances 96. 154. 289. 602. For public and private, how the Actions shall be 683. Abated 700 O. OAth of Allegiance 741 Obligations, joint and several 88 Several, upon one Parchment 320, 321. Made Beyond-sea 381. Payable before Statutes 621. With Conditions to enfeoff 469. To perform an Accord 468. Released by making the Obligor Executor 468. Where not to be canceled after Judgement 716 Office found 694. Not to be quashed but by Petition or matter of Record 70 Offices, of trust, not traversable 89. 153. Of Clerk of the Sheriff 133. Of Exigenter of London 137. Of the Marshal personal 152, 153. 377. Of skill 153. Of Filizer 153. Of Auditor of the Court of Wards 264. Of the King's Tennis plays 273. In the King without suing a Scire facias 301. Of Clerk of the County 334. Judicial, not grantable in Reversion 701. Granted to persons unskilful or incapable, void, 729. Where they cannot be leased for years 553 Ordinary, where he cannot dispose of the goods 160. 340. The Intestates goods committed to him, 300 Order in Writs 271. In plead 275 Oyer and Terminer, cannot sit where the King's Bench is, in Term time 223. For Nuisances 702 Outlawry, where it gives a Forfeiture of Land, & e contr. 50, 51. Upon an Indictment reversed by Error 71. Outlaw, babet Caput Lupinum 341. Where beyond the sea reversible, 553, must be pleaded, Sub pede sigilli 674 P. PAnell void 76 Pardon 164. 252. before Judgement, discharges an annuity, 31. Cannot pardon damages or costs before Judgement for Alienations 765 Payment no plea without acquittance, 72 place of payment of a Rent, 166 Parcenors, Where they shall have the Rent jointly, where in common, 37, 42, 43. Shall have aid, to deraign the warranty, 38. shall join in Assize 43. So of Deodands, 46. Where the Judgement shall be to hold in severalty▪ 65. The propriety of one, not gone by alienation in respect of privity, 175. Cannot make severance of estate of inheritance in the Lands 608 Patron and patronage, shall not charge the Glebe 73 Partition 746. 149. 200. 209. 369. Not avoided for inequality 437. Where made, not to be impeached 174. Avoided by Eviction 175. Makes no Discontinuance 438. Egality of it 552 460 Particeps Criminis 163 Peace and War 298 Parson and Vicar, his ability 4. Not to be removed, after institution 4. Ought to be resident 6. Their Alienation, no Discontinuance 339 Peers and Peereage, not to be sworn on Juries 740. Trial of them 741. In Coparcenory 267 268 Piracy 547 Plaints, in Copyhold Courts 132 Plead, and Pleas 456. Guardian may plead, without showing a Deed 445. Of Non est factum, or Judgement if Action 101. Truth and Certainty must be in them 604. dictatory 644. In bar to a common intent good 710. Not to be holden in the night 488 Plenarty 291, 294 Pluralities 21, 787 Perquisites 159 Shall accrue to executors 236 Perpetuities, 711 753 757 void 243 688. Post nati & Antenati 158. Not noble, without creation 46 Possession fratris 141 P●ssibility 401. 406. may be forfeited. 405 remote is never intended in Law 620 621 Post fines 268 Prescription, where insufficient 17. Extinct by interruption 32. Felons goods not forfeitable by prescription 45. Where saved 72. In a water course 144. Of Estovers, 144 quashed by a record or writing, 222. for Felons goods, not good 225. To repair Sea Banks 671. for tithes, 698. where void 478 Repugnant void 644 Presentation and nomination 717 771 89 145 147. 469 By Symmony, 73 By laps 294 their difference 559 Precipe in capite 331 Privilege of Bailee of goods detained 34 of Tenant by the courtesy lost 125. Lost by purchase 126. Of impeachment of waste gone by altering the Estate 197. Of a person in one Court not allowed where another Court is seized of the plea 471 of the Clergy 5. of Tenant by the courtesy 61 Priority and posteriority 160 307 Privity of blood & title 178 179. of contract 190 of estate & contract, 190 favoured in Law, 172 173 destroyed, the action is gone 173. Homage extinct for want of privity 173 In blood and estate 177 193. between the Ancestor and the Heir, the Testator and Executor 176 177 Procedendo 675 Prohibition 681 682 Of Waste not against Tenant in dower 125. against waste 213. upon a suit for Orphans goods in the spiritual Court 681 To the spiritual Court for examining a thing triable at Common Law 487 Power of Revocation annulled by Feoffment or Release 69 Protection 307 688 702 Quia moratur in Walliam 35 Repealed by Inotesimus 41 72 By whom must be disallowed 68 Cast for the vouchee 174 by whom it may be cast 595 Incertain void 623 In what cases not allowable 673 in what actions not 673 674 not for the demandant 688 quia profecturus, quia moraturus 732 not for above a year 489 Profession 576 makes no descent 571 dischargeth wardship 576 Proof 597 Proviso where it makes a condition 13 Proximity of Estates respected 272 Purchase of a Feme Covert, not good without the assent of her husband 772 Principal & accessary 231 232 233 234 241 Q. QVare Impedit, 141, 172, 329, 341, 681, 467, 451. Causes or refusal of a Clerk, 45. Not without alleging a presentment 717 Quare non admisit, Out of what Court, 234 Quare incumbravit, 682 Queen, Is a person exempt from the King, and may grant, or take 732 Quit Rents 157 Quid Juris clamat, 427 Quod ei deforceat 34. Whereupon a Recovery had upon default in Waste, Et e contra 44. For Tenant in Dower and the Courtesy, 273 Quo minus 599 Quo warranto 713 R. RAtionabile parte bonorum, 477 Ravishment of Guard, 335. The guardian shall have it 103 Rebutter, 191. 687. 763. Without privity, 187 Recovery, By default, 19 316. Where it is no Discontinuance, 19 In value. 51. 413. Feigned, 118. Not avoidable by error 417. Bind, being by consent of parties, 481 Recognizance 151 Records, removal of them 351 Recaption, 681. 501 recusancy 245 Redisseisin 682 Refusal Of goods in pais, 455. Of the Clerk, 591 Reparation of Sea banks, 671. 591. Felling of Timber for Reparation 733 Rleases, 33, 58, 105, 115, 116, 182, 183. Of Actions, 480. By Executors before probate, 507. Excuseth Execution, 32. Of a Remainder of a Term, 49. Before an Interest void, 56. To disseisors how it enures, 57 To the Bail not good, 58. Of a Conusee of a Statute of his right in the Land, yet he may sue Execution, 59 By the Donor to the discontinuee of Tenant in Tail, 60. To Lessee for years, where void, 73. For a time, good for ever 115. To privies, where good, 180. Before Entry, where void, 181. To Tenant at Will and sufferance, the difference, 181. without privity is void, Of a writ of Error 187. of all demands, 217. Of a future Interest, where void, 242. In Fact and in Law, 440. Of a Right 450. To one Disseisor, 563 Relation, 165, 167, 326. Protection and Subjection relate from the birth, 165 Of offices and fees, 165. of damages and wrong 166. Of process, 166 Remainder, 705. Where good, where void, 15 117. 128. 608. Of a Rent, void, 55. 119. of a Term, not grantable, 59 good when the particular Estate fails, 99 Must vest during the particular estate, 119. To a man's right heir, a limitation to himself, 128 Upon an Estate tail not valuable, 417. against his own alienation, 554 Remitter, 84, 159, 311, 313, 314, 705, 667 668, 763, 768 Of the wife is the Remitter of the husband, 508. Of an Infant, where not 67. avoids a Rent, 74. Right with action, no Remitter, 79. The reason of, because no person against whom to bring a Writ, 169. 485. Suspended by warranty and assets, 412. Favoured in Law 506 Relief, Services not doubled for it, 254. remedy for it, 550. Paid by no Enfant, 575 Reversion separated for years, good, without attornment 365 Reservation of Rent not exchanged by altering Names 20 Rents 24, 325. Extinct by feoffment 55. 119, 161, 253, Devisable, & e contr. 60. 166. Apportioned 130. 253, 289. 569. 435. Incident to the Reversion 130, 131, 132, A sum reserved to a stranger, no Rent, 242. Charge, becomes Sack, 253, 254. Extinct by Recovery and purchase of part 254, 322, 548. Not to go out of things incorporeal, 286. Suspended in all, 322. paid by the Lessee, no prejudice to the Tenant of the Land, 328. In Esse after a Release, 329. By encroachment, 373. Service made sack, 464. May pass without Deed 437. When to be demanded 490 Replevin 334. 391. For cattles not distrained 560. A plaint must be entered before the writ can be good 689 Resistance must be by some over tact, and not by word, 107 Resignation 603 Rescous, where lawful 73 Retraxit 151 Revocation 151. Shall be strictly taken, 379. The power of it, 192. 298 377 Right cannot be transferred, 69 196. ancient not barred 82. Left after a Recovery, 143. Of possession, draws right of property, 225. follows the possession 227. may be forfeited 237. preferred before the possession, 372. where extinct, Et e contr. 440. cannot incorporate with wrong, 567. favourably expounded 502. cannot die, 504. Present, or future, may be barred 485 Robbery 110 Return, The Court cannot proceed upon afalse return 272 S. SAles, not good upon the Lord's day, 8. by the Sheriff 707 Scandal. magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin, 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit, 191. not traversable, 287. of a Rent by the Feoffor 421 Scire facias 160, 613, 690. When shall issue out, when not, follows the Record, 229 Seals 743 Seizure of a villain 162 Seignory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution, 420. Where they may break up a house to deliver Execution or Seisin, 678 Sewers, 685, 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 entire 260 in Law, 472 447 450 Suspense, Seignory suspended, not grantable 56 personal things once suspended, ever gone 154 Statutes what bind the King, 13. subsequent expounded by equity of former 23 220 Interpretation of them. 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty, how taken 355 taken by intendment 501 Stewardship 300 Services Entire 262 263 Divine 285 Summons and severance 337 574 T. TAil, what things may be entailed 358 Void for incertainty 405 docked by recovery, value 414 Tales 507 Term not extinct by purchase of the Fee, 335 not drowned, 339 Tempus sem. how to be accounted 12 Tender Of marriage 91 687 of amends 259 of money to a stranger, 200 Upon a mortgage 375 Excused 570. of Livery by the heir 610. Tender and refusal 470. ●or the Redemption of a mortgage by the Guardian 497. For an idiot, 497. by a straner where saves a forfeiture 485. of the demi mark 677▪ Of the debt in Court, 689 Tenant by the courtesy 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery, and how not 130 131 Tenant in Frankalmoigne, 149. cannot disclaim 104 is not to be distrained for Arrears 106 Tenant Right 214 Tenants in common 244. shall join in Assize 545 where join, where sever in actions, 611 Tenant in tail after possibility, etc. 450 Tenant for another's life 578 Tenant at sufferance 453 Tenors, In capite, 61. 142. In socage. 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure, none can dispose of the King's treasure without licence 303 304 Trade, what it is, 139 Traverse, not without an office found 72. the place not to be traversed in personal actions, 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Trial in a foreign county 224 of villainage 351. of a Peer in Ireland, 497. Per medietatem lingue 472 Trover brought by a Lunatic 427 Trusts, where they shall go to executors, 187 V. VAriance, between the original and judgement 637. in circumstances no prejudice, 384 Between the writ and the count, 636 637 Valour Maritagii 716 Verdict, entire 261 in criminal causes not privy 353 where at large 604 708. incertain is insufficient, 624. 631. 632. 648. where voided by acts done by the Jurors, 697 Et e contr. Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seizure 666 View of the vouchee 92 Voyage royal 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Usurpation, 310 318 upon an Infant 444. Unity of possession, doth not extinguish partition 150 Uses 349. Revoked 72 of a recovery after it is suffered, declared 109 regarded, as E states 202 superstitious, draw good uses, 231 good and charitable to be preferred, 740 741 752. introduced inconveniences 748 Declaration of them 771 good, and superstitious, how they shall operate 628. W. WAger of Law, 429. 644. 697. 714. 716, 419. Not by a prisoner for meat and drink, 669. Where not in account, and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall lose it, 37. The second ward shall not sue Livery, 37. Revived 40. No Wardship because the tenure gins in the Sons, 61. of an use 111. Where, though not dying seized, 142. Not during the Father's life 277 278 Way 377 Warrants 366 Waiver of goods, To whom the goods belong, 501. 502 Warranty 238. 314. 326. No bar, & e contra, 20, 256 340. Collateral and Lineal 39 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heir not bound to warranty, where the Ancestor was not, 57 Makes a discontinuance, 99 Extinct 118. May increase upon an Estate granted, 119 Determined 124. What words imply it, 124. void 124. Without the word (Heirs) 187. Employed in Exchange, and partition 191. For life only, 206. Follows the Land, 250. Entire 256. 262. Deraignment of it, 535. Annexed to incorporeal things, 411. With Assets binds the King, 411. Express and employed, 447. By Husband and wife, 555. Continues after Partition, 577 Warrantia Charta. 157. 469. 719. Not after a Recovery in value 410 Waste, 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where, 39 Et e contra, In Cole mine's not opened 67. 573. Against Tenant in Dower, and by the courtesy 188. Against the Guardian 575. Successor not charged with it 451. Women, Not sworn in Leets 318. Withernam 560 Wills, Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words, In Grants needless 245. Of inferior Ranck exclude them of higher, 270. Construed in the milde● sense, 704. General, Imply no certainty; 635 636 Writs, Of Customs and services, 18 317. not to be changed without Act of Parliamen, 68 De secunda superoneratione, 273. Of Right o● Advowson, 294. Of Mesne, 371. 380. 445. Of Entry upon an Advowson, 421. O● Deceit 560. To the Bishop 112. Adversa●ia & amicabilia, and their difference, 482 Where to be brought, 496 Wreck 489. FINIS.