Statutes which restrain Alie­nation of Ec­clesiastical li­vings, binde the King though not named. 1 REgularly Statutes binde not the King, Co. l. 8. 14. a. In the case of Ecclesiastical persons. Co. l. 11. 70. a Magdalen Col­ledge Case. Co. l. 2. 44. b. In the Bishop of Winchesters Case. unlesse he be particularly named, yet the King is included within the general words of 13 El. 10. which prohibit Ec­clesiasticall persons to make grants of their Livings; because the Parliament which made that Statute, adjudged such grants to be causes of dilapidations, and decay of spirituall livings, and hospitality, and of the utter impoverishment of successors, In­cumbents in the same; whereupon would necessarily follow decay of true Religion, and the spirituall 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 robbed 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 himselfe, or his children, or any other committed to his charge, to the study of Di­vinity, when after long and painfull study they shall have nothing to live upon. See more in the Books at large.

Ecclesiastical livings 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 [Page 4] away the entry of the successor, and to drive him to a reall action, whereby he should be destitute of maintenance in the mean time.

Co. ibid. 3 Vpon consideration of all the Books of the Law, Ecclesiastical persons can­not injure the Church. this diver­sity is well observed by Sir Edw. Cooke, that a Parson or Vicar for the benefit of the Church, and his successor, is in some cases estéemed 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. 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, Arch-deacon, Prebend, Ecclesiastical persons can­not disclaim. Par­son, Vicar, or other sole Corporation, that is seised in auter droit, cannot disclaim, because they alone cannot devest any fée, 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 passe away no Inheritance. And the reason of this was, because the wisdome 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, &c. 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 Epithete idonea includes abilitie 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 intend 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 Clerke, and he had been admitted and instituted to a Church, whereof any sub­ject had béen lawful Patron, the Patron in that case had no other re­medie to recover his Advowson, but by a writ of right of Advowson wherein neverthelesse the Incumbent was not to be removed: And so it was also (at the Cōmon Law) if an usurpation had béen had upon an Infant or a feme covert, having an Advowson by descent, or upon te­nant for life, &c. 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 intend and apply himselfe 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 béen admitted, instituted, and inducted (for without induction the Church had not béen 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; neverthelesse (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 meane 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, [Page 5] 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 one­ly, 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 Non-suit per­emptory. 7 In a Quare impedit if the Plaintiff be non-suit after apparence, Co. Inst pars 1 139 a. the defendant shall make title, and have a writ to the Bishop; and this is peremptorie to the Plaintiffe, and is also a good barre 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 non-suit, shall never be removed, that being a flat barre as to that pre­sentation: And the same Law and for the same reason it is in case of a discontinuance, &c.

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 al­ledge, that the presentée is a Schismatick in general, Co. l. 5. 58. b. Specots case. but he ought to express Schisme 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 Rolles of the Crowne; the other hath the cure and guard of souls.

Intire services remains after purchase of part by the Lord. 9 There is a diversitie concerning intire services to be reduced to the Lord, as a spurre, horse, or the like; Co. l. 6. 1. b. in Bruertons 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 intire 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. tenures 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 intire service remaines.

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 Kings purveyors and carriages. See the Stat. of 14 E. 3.

Priviledge of Clergie. 11 Before the Statute de articulis cleri cap. 15. Co. l. 11. 29. b. Alex. Poulters case. he that confessed the felonie could not have the priviledge of Clergie, because he could not make his purgation; And although the Statute speakes onely of Ab­juration, and of an Approver, yet the Iudges (in favorem Ecclesiae) ex­tend it to all other confessions upon the Arraignement of the offender.

Tithes not ex­tinct by unity of possession. 12 If the Parson of a Church purchase a Mannor within his Parish, here, by this purchase and unity of possession, the Mannor, 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 Rectorie to a stranger; in this case, the Parson himselfe shall pay tithes of his Mannor to the Lessée of the Rectorie, or if the Parson make feofment of the Mannor, the feoffée shall pay tithes to the feof­for being Parson, because tithes cannot be extinct by any unity of pos­session as rent 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 himselfe: And therefore if the Parson let part of his Glebe land for yeares or life reserving rent, the lessée shall pay the Parson tithes, because they are due of common right. vide Br. dismes 17.

Co. Inst. pars 1 246. a. 1.1 Laches shall not prejudice an Infant in point of descent, Laches shall prejudice an Infant. &c. but it shall be adjudged in him if he present not to a Church within six moneths; for the law respecteth more the priviledge of the Church (that the Cure may be served) than the priviledge of Infancy.

F. N. Br. 160. c. d.2 Men of Religion ought not to appeare at the Sheriffes turnes, 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 priviledge: 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 com. B. the defendant saith, A Parson ought to be resident. that before the day of the writ purchased he dwelt at B. in com. N. Et non allocatur; for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls, which he hath there, and the Parson, who hath cure of souls and is a non-resi­dent, 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 fréed from all personal charges, The like. that may hin­der him in his calling: And therefore he shall not be chosen Bailiffe, 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 avoydance is called a Cession, because the taking of the last makes him neglect the first.

F. N. Br. 175. Br. Dismes 165 To the end that Religion may not be neglected, Tithes due onely 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 yearely encrease, which are called Dismes, 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 Winchesters case. And therefore albeit a meere lay man may prescribe in modo decimandi, yet he cannot so doe in non decimando; because he is but in special cases capable of tithes at the Common Law; and therefore without special matter shewed it shall not be intended, that he hath any lawful discharge; And for this cause in favour of holy Church (al­though it may have lawfull 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 custome) 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 Londons case.

Co. Inst. pars 1 128. b.1 In the raigne of King Alfred, Outlawed persons had capita Lupina. and untill a good while after the Conquest no man could have been out-lawed but for felonie, and then the out-lawed person was said to have Caput Lupinum, because he might be put to death by any man, as a Wolfe that hateful beast might; and in [Page 7] ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed, the partie so killing them was to have a Mark for his paines: Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges (for a­voiding of inhumanitie and effusion of Christian bloud) that it should not be lawfull for any man, but the Sheriffe only (and that upon law­full warrant) to put to death any out-lawed person, though it were for felonie, in pain to suffer death, as in case of killing another man.

One attainted of a Praemu­nire.2 It was lawfull for any man to put to death a man attainted of a Praemunire, because he was also without the Kings protection, Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy: but this was ta­ken away by the wisedome of Queen Eliz. and her Parliament (5 El. 1.) as a libertie not becoming a Christian Common-wealth.

Lepers.3 The Law of England for removing of Lepers (by the writ de le­proso amovendo) from the societie of men to some solitarie 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. Colledge case. where a reversion expect­ant upon an estate in taile was granted to one for the life of the te­nant in taile, A Monkish life condemned. it was said, that by possibilitie this grant for life may take effect; for tenant in taile having no issue may become a Monk and enter into religion, and then the grantée may have it during his naturall 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 Almes to any, in what ne­cessitie 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 Kings Ecclesi­astical Law. and Synodals pro­vincial, Ecclesiastical Laws. as have béen allowed by general consent and custome within the Realme, and are not contrariant or repugnant to the Lawes, Sta­tutes and Customes of the Realme, nor to the damage or hurt of the Kings Prerogative royall, are still in force within this Realme, as the Kings Ecclesiasticall Lawes of the same.

Spiritual Laws.1 The Spiritual Laws mentioned in Littleton (Sect. 648) are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme, 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 Kings pre­rogative is a principal part) nor against the statutes or customes of the Realme, Prerogative and (regularly) according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance, and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme, and so declared by Act of Parlia­ment.

The Lords day.1 In all the four terms the Lords day is not Dies juridicus, Co. Inst. pats 1 135. a. for that ought to be consecrated to divine service.

Pleas.2 No plea shall be holden Quindena Paschae, F. N. B. 17. f. because it is alwayes the Lords day, but it shall be crastino quindenae Paschae.

Fin [...].3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day, Finches Ley pag. 7. all the proclamations are erroneous, for the Iustices may not sit upon [Page 8] that day, being a day exempt from such businesses by the Common Law for the solemnitie of it; to the intent that all people may apply themselves that day to prayer and serving of God.

1 El. Dyer 168 12 E. 4. 8.3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day, it is errour, because it is not dies dominicus in Banco. Errour.

4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie. Sale.

Co. l. 11. 29. b. Poulters case.1 Regularly, Clergy. a man shall (by the Common law) have the benefit of Clergie for any felonie; Howbeit, if a felon be also an Heretique, Iew, Sarazen or Infidel, he shall not have it.

F. N. B. 269. b. Br. Heresie 1. Co. l. [...]. 58. a. Specots case.2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith, or the like; Heresie. And there­fore (at the Common law) this offence was punished by a more ter­rible and grievous mulct, than any other felony whatsoever, (and in­deed than Treason it selfe;) viz. by fire and faggot: Howbeit, to deter­mine, what is Heresie, falls not within the Conusance of temporal Courts, but is wholly left to the Ecclesiastical Iurisdiction; for it ap­pears by the writ de haeretico comburendo, that (at the Common law) before an heretique could be committed to the Lay-power to be burnt, he was to be convicted in a Provincial Synod before the Archbishop and his Clergie, and then if he did either refuse to abjure the heresie, or having abjured it, upon a relapse were convicted again by such a Sy­nod) of that or any other heresie, he was then delivered to the secular power to be punished by fire and faggot, and no Sanctuarie could privi­ledge him: Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse, and if the Sheriffe were present at his conviction, the Bishop might deliver him to the Sheriffe to be burnt, and that without the Kings writ; but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets, and from th [...]nce to be certified to the Ordinarie, which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1, 2 P. M. 6. (which revived 2 H. 4. 15.) an heretique was punishable at the Common Law as above is expressed: but by 1 El. 1. the Statute of 1, 2 P. M. was repealed, and then by 1 El. the Quéenes Commissioners (heretofore called the High Commission Court) had power to judge of heresie, but they were there­by also restrained to adjudge nothing Heresie, but what was so adjudg­ed by the holy Scriptures, the four first General Councils, or the Parli­ament with the assent of the Clergie in their Convocation: Howbeit at this day the Iurisdiction of Bishops being taken away, and that clause of 1 El. repealed by a later Act, it séemes (at present) there is no law to punish that offence. See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264, and 340. Rast. Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit, observe, that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly in­tended against such as did then begin to discover the Pride, Lucre, and errors of the Church of Rome, and in dirision were termed Lollards, as you may read at large in the Book of Martyrs and elsewhere in di­vers other authors, as Sleiden, Brightman, &c. The Kings command a­gainst Law not to be obeyed by the Judges.

Stat. 18. E. 3. Stat. 3. 8.3 One part of the Iudges oath is, that they shall not deny right, though it be by command from the King, which if they breake, they will be [Page 9] found guilty Laesae Majestatis divinae; And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God, for Gravius est divinam, &c. And to the end that the Iudges might be the better protected from this danger, Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes, whereby the Iustices have power to procéed, Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie, no, though it be under the Great or Privie Seal: And therefore if the King write to the Iustices to pro­rogue an Assize, because the defendant is in his service, F. N. B. 153. h. yet the Iusti­ces ought to procéed, and not to cease for any such letter: so likewise in an Assize the Bishop certifies Bastardie, 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease, because the certificate was suspicious, not­withstanding which letter they tooke the Assize; and afterwards, albe­it the Chancellor reversed the taking of the Assize; in the Council, be­cause they obeyed not the letter, yet notwithstanding that the Iustices gave Iudgement upon the Assize: 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoi­ned, and had farther day given, at which the King sends a letter to ex­cuse the tenants apperance, alleadging that he was at Callis in his service. Howbeit the Iustices gave no regard to it, but proceeded not­withstanding that letter.

Nor by the Sheriff.4 The Sheriffe also, 14 E. 3. Returns del Viscont, 8 [...]. who is but an Officer or Minister to the supe­riour Courts of Iustice, ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King, least he likewise incurre the like danger by breaking his oath; And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force, An Exigi facias went forth against him to the Sheriff, who returned, that the King had certified him by writ, that he had pardoned the trespasse and imprisonment, command­ing him that he should desist, and that therefore he had not executed the writ; whereupon saith Wilby, the writ ought first to have béene sent to us, that we might have commanded the Sheriffe to cease, for the Sheriffe 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 Sheriffe 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 contrarie 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 Iury in p per, and adjournes them over to another day to take it in Parch­ment and by Indenture, before which day the Quéen 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.

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 Plaintiffe is excommunicate. Doct. & Stud. l. 1. cap. 6.

2 The old Bookes have said, that if a man be excommunicate, he ought not to serve of a Iurie.

Jews.3 A Iew born in England took wife a Iew 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 yeelded 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, &c.

[Page 10]4 Infidels are accounted in Law to be perpetui inimici, Infiels. with whom a Christian ought to have no peace, but perpetual enmitie and hosti­litie, according to that of the Apostle, 2 Cor. 6.15. Quae autem concordia Christo cum Belial? Co. l. 7. 17. a. b. in Calvins 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 a­gréeth the book in 12 H. 8. fol. 4. where it is holden, that a Pagan cannot have or maintaine any action at all; and upon this ground there is a diversitie betwéene the Conquest of a Country of a Christi­an Prince, and the Conquest of a Country of an Infidel; The power of a Conquerour. for if a Prince obtaine a Christian Country by Conquest, seeing that he hath vitae & necis potestatem, he may at his pleasure alter and change the Lawes of that Nation; but untill he do make an alteration, the anci­ent Lawes thereof shall remain: Howbeit if a Christian Prince should conquer a Country of an Infidel, and bring them under subje­ction, there ipso facto the Lawes of the Infidel are abrogated; for they be not onely against Christianitie, but against the Law of God and nature, contained in the Decalogue: And in that case untill cer­taine Lawes be established amongst them, the Prince by himselfe or such Iudges as he shall appoint, shall judge them and their causes ac­cording to natural equity and original Iustice, in such sort as Kings in ancient time did within their Kingdomes, before any certaine mu­nicipal Lawes were established: But where a Prince hath the Go­vernment of a Nation by descent, seeing that by the Lawes of the Nation he doth inherit that Authority, he cannot change the Lawes thereof without the consent of the People assembled in Par­liament.

A Lease with condition to take the pro­fits.1 IF a man make a Lease for yeares 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, untill thereof he be satisfied; in this case the profits shall be ac­compted 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, untill he be satisfyed and paid of the rent (without saying thereof) or to the like effect, there the profits shall be accompted no part of the sa­tisfaction, but onely to hasten the Lessee to pay it, and untill he be sa­tisfied he shall take the profits to his owne 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 sivè. 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 untill he hath seisin all is Labor, Dolor, & 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 downe last, and seisina seemes 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 moneths, Co. l. 6. 62. a. in Catesbies Case. viz. such six mo­neths, qui conficiunt dimidium anni, & there is a great diversitie in our cō ­mon spéech between a Twelve-moneth (being y ^e singular number w ^ch in­cludes [Page 12] a whole yeare according to the Kalender, and twelve moneths (in the plural number) which shall be computed according to 28 dayes for e­very moneth, Vide 31. 13.

Co. l. 8 85. b. in Sir Richard Pexhals Case5 A. deviseth to B. 100 Shéep and ten Bullocks, Devise. and 10 l. issuing and payable yearely out of his lands; here, the last (and) disjoynes the rent from the Shéep and Bullockes: It is otherwise; if he had devi­sed them thus, 100 Shéep, ten Bullockes, and 10 l. yearely; for then the (and) connexeth them all together, and then they are all to be paid yearely out of the lands.

Co. l. 10. 133. a Osborns Case.6 Words, which passe under the name of Latin, are of four sorts, Latine 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 ordaines, that all pleas shall be entred and enrolled in Latin. The se­cond sort are such words as these, Messuagium, Tostum, Gardinum, Bru­era, Jampna, &c. These and the like are allowed not only in Pleas, but also in originall writs; for these are such words as are knowne 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, &c. who use many times to explaine them by Anglicè, &c. as Sollaria angli­cè Ware-houses; The Physicians also use Brothium for broth, and the like: The third sort is false and incongruous Latin, this shall a­bate an originall writ, but shall not make a Iudicial 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 déed, when the intention of the parties may ap­peare, 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, Seaven­teene &c. Also when there is no latin for a word, as for a Stirrup, Vel­vet, &c. Strapedia, Velvetum, &c. may be used, because they have the coun­tenance of latin, so also Operimentum for a Rugge: Howbeit, in such case, (for explanation sake) it will be fit also to insert the word Angli­ce, as Operimentum anglice a Rugge, Duas virgatas velveti, anglice, of velvet, &c. The fourth and last sort are insensible words, as in a case of a Replevin, P. 36 El. Gawins case, Vitrium for Vitrum, glasse: yet (in that case) the Court did incline onely to adjudge it false latin, be­cause it had the countenance of latin, and the Court was sufficiently ascertained, that glasse 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 quart-pot, 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 Messuage 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 Crom­wels 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 déed, un­to which it referres; as in 5 El. 22. inter Eyre and Orme, a notable case: so in 7 H. 6. a lease without impeachment of wast, provided, that he shall not make voluntarie wast: In Littl. Sect. 220. A grant of rent 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 explaine a precedent sentence; makes not a con­dition: And 3, 4. P. M. 150. Parkers case, a Proviso amounts to a covenant see 28 H. 8. Dyer. 13 b.

[Page 13] 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 Iudges was of opinion that it was not several; because utrumque is properly of two, viz. both; And it should have béen quemlibet nostrum, &c. when more than two are bound: Howbeit it séemed to the Court that the obligation was good and several, Vide 31. 12.

Confirmation.10 If the disseisée confirme the estate of the disseisor, Littl. Sect. 519 & 520. though it be but for an hour he shall have a lawfull 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 certaine Towne, the Patentée or Grantée shall not have any lands out of that Towne, unto which the generaltie of the grant referres, and this case is the stronger, because of the Pronoune illa, for omma illa messuagia &c. maketh necessary reference as well to the towne, as to the tenure of I. B. so that if either faile, the generall grant is void; for illa is not satisfied, untill 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 ingrossed bearing date the 26 of May Anno 25. Co. l. 5. 1. a. Claytons Case. Eliz. to have and to hold for three yeares from henceforth and the Indentures were delivered at 4 of the clock in the afternoone 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 untill the delivery, Quia traditio facit loqui tantum. Vide suprà 2.

Conjunction copulative.1 If lands be given in taile upon condition, Littl. Sect. 364 that if the tenant alien in fée, fée taile, or for terme of life &c. and also if all the issues of tenant in tail die without issue, that then it shall be lawfull for the donor and his heires to re-enter: Taile. here, the right of the intaile may this way (after discontinuance) be preserved to the issue in taile (if any be) so that upon entry of the donor and his heirs the estate taile shall not be defeated for such condition. Condition. And yet in this case if the tenant in taile or his heires make any discontinuance, he in the re­version or his heires after the estate taile determined (for default of issue) may enter into the land by force of that condition, and shall not be put to his Formedon in reverter. Note, Co. Inst. pars 1 224. b. that here Littleton doth purposely make parcel of the condition in the copulative. 1 viz. that the tenant in taile should alien, &c. and all the issues die, &c. for if a gift in taile be made to a man and the heires of his body, and if he die without heires of his body, that then the donor and his heires shall re-enter, this is a void condition; for when the issues faile, the estate determineth by expresse limitation, and (consequently) the adding of the condition to defeat that, which is determined by the limitation of the estate, is void; and in this case the wife of the donée shall be en­dowed: And therefore Littleton to make the condition good, added an alienation, which amounted to a wrong, and restrained not the alie­nation onely (for then presently upon the alienation the donor, &c. [Page 14] might re-enter and defeat the estate taile) but addeth, and die without issue, to the end that the right of the estate might be preserved, and not defeated by the condition, but might be recovered againe by the issue in taile in a Formedon.

Co. ibid. 125. a. pl. Co. 107. in Fulmerstons Case.2 Note, that in a condition consisting of divers parts, Conjunction copulative and disjunctive. in the copu­lative (as above in the case of Littleton) both parts must be perform­ed; but otherwise it is, when the condition is in the disjunctive; for in disjunctivis sufficit alterum esse verum, what then if the condition or li­mitation be both in the copulative and disjunctive, as if a man make a lease to the husband and wife for the terme of 21 yeares, if the hus­band & wife or any child betwéene them so long live, and then the wife dieth without issue, shall the lease continue or determine during the life of the husband? The answer is, that it shall continue; for the disjunctive referreth to the whole, and disjoyneth not onely the latter part as to the child, Pl. 30. El. in C. B. Truepennies Case. but also to the barn and feme; so as the sence is, if the barn, feme, or any child shall so long live. So if an use be limi­ted to certaine persons, untill A. shall come from beyond Sea, and attain to his full age, or die; here, if he doth come from beyond Sea, or attaine to his full age, the use shall cease.

Co. l. 10. 59. a The Bishop of Sarums Case.3 In Avowry exception was taken to the barre, Negative pregnant. Pleading. because where the avowant had alleadged by matter in fact, that the office (for which the annuitie was due) had béen granted to such person or persons as pleased the Bishop of Sarum, &c. the defendant in his barre had plead­ed in the negative, that the said office had not béen granted but for the life of one, &c. and therefore the defendant ought to have concluded, & hoc quaerit, quod inquiratur per patriam, whereas he concluded all his plea with, & hoc paratus est verificare, &c. sed non allocatur; for the Avowant alleadged not that the said office had béene granted, &c. to divers persons, but to such person or persons as pleased the Bishop; Et in disjunctivis sufficit alterum esse verum: so that the defendant did not traverse what the Avowant had alleadged.

Pl. Co. 5. b. Fogasses Case.4 The Statute of 1 El. 13. Disjunctive. (for the payment of Subsidies for Mer­chandize) is in the disjunctive, viz. the subsidie not paid, or the Col­lector not agréed with: And therefore if either of these be done the in­tent of the Statute is performed.

Pl. ibid. 9. a.5 The Statute of 26 H. 8. 3. is in the disjunctive, Disjunctive. viz. that every Parson, Vicar, &c. which before they enter upon their benefice doe not satisfie, content or pay, or compound or agrée to pay to the King the first-fruits, &c. shall be taken as intruders; And there­fore although they do not pay down the first-fruits immediately, but agree to pay them, or (as the Comon use is) give bond for them, it is sufficient.

Dyer 43. 22. &c. 30 H. 8.6 A Merchant having payed custom for certain Clothes, Custome con­cealed. ships them for beyond-sea, & in a tempest the Marriners (for the safeguard of them­selves and the ship) were forced to throw the Clothes over boord, and comming back to the same port, they asked the Customer whether or no they might (having that misfortune) transport as many more Clothes without paying Custome, the Customer told them he thought they might, which they did accordingly; hereupon an Information being brought, the issue joyned was, Quod Customarium & Subsidium non fuerunt solut. nec cum Collectore concordat. Sed omnino concelat. & substract. contra formam statuti, &c. And it was found by the Nisi prius at Guild-hall, Quod Customarium & Subsidium, &c. non concelat. & sub­stract. contra formam statuti, &c. And here it was doubted whether the verdict was for or against the King; for the verdict had béene per­fect if it had béen, Quod non fuerunt concelat. aut substract. if the Iu­ry had intended to find for the defendant; but now their intent [Page 15] (as it séemes) was to acquit the defendant of the concealment, but not of the Subtraction.

Remainder where good or void.1 If a man gives land to A & haeredibus de corpore suo, Co. Inst. pars 1. 20. b. the remain­der to B in forma praedicta, that is a good estate to B. because in forma praedicta doth include the other; Co. ibid. 385. b. But if a man letteth lands to A. for life, the remainder to B. in tail, the remainder to C. in forma praedicta, this last remainder is void for the uncertaintie; Howbeit if the re­mainder had been, the remainder to C. in eadem forma, this had been a good estate tail, for, Idem semper proximo antecedenti refertur.

Release.2 M. releaseth to N. Omnimodas actiones 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, &c. Here, the words of Relation (Quae vel quas) do referre as well to the special words Dowers, &c. as to the ge­nerall words Actions, &c. and Demands; for it would be against rea­son, that they should referre to the general words, which are more remote, and not to the words of qualification, which are néerer unto them.

Pretended rights.3 The Statute of 32 H. 8. 9. provides, Pl. Co. 88. 6. in Partridges case that none shall buy rights of titles in land, unlesse such person, &c. have béene in possession of it, or of the reversion or remainder of it, or have taken the rents and profits of it by the space of one whole yeare next before; Here, these words by the space of one whole yeare, shall be onely referred to the sentence next before viz. the taking of the rents and pro­fits.

Abbey Lands. Leases.3 The Statute of 31 H. 8. 13. ordaines, Pl Co. 107. a, Fulmerstons case. that farmers of Abbey lands, which had then Leases in being, should enjoy them for 21 yeares from the time of the making of such leases, if so many years were therein limited; or else they should enjoy them for so many yeares, as in such lease or leases were expressed, so that the same lease or leases exceeded not 21 yeares; Here, this last sentence, so that, &c. relates to the clause next going before it, and not to the first: Ad proximum antecedens fiat relatio.

Alienation of an entail.4 Sir Th. Cheyney in 1 El. deviseth, &c. to H. his sonne, Co. l. 5. 68. a. The Lord Cheyneys case and to the heires male of his bodie, remainder to Th. Cheyney of D. and the heires male of his bodie upon condition, that he or they or any of them shall not discontinue: The question was, whether or no H. the sonne was included within these words he or they; And it was resolved by Wray and Anderson after conference had with other Iudges, that those words should not be referred to the grant made to H. the sonne, but onely to the grant made to Th. Ch. of D.

Tithes.5 Qu. El. grants to I. S. Totam illam portionem decimarum, Co. l. 4. 35. a. Bozoms case. &c. in L. in com. N. cum omnibus aliis decimis suis quibuscunque in L. in dict. com. N. nunc vel nuper in occupatione I. C. Here, these last words nunc vel nuper, &c. referre to the whole sentence, and not to the later part of it onely, viz. cum omnibus aliis, &c. 1 Because the first words are Totam illam portionem Decimarum, &c. So that this pronoune illam sheweth plainly; that there ought to be subsequent words to explain, and reduced, into certaintie, what portion by the intention of the Qu. shall be granted, The reference of illam. viz. that which was in the occupation of I. C. And there­fore this pronoune illam is not satisfied, untill you come to the full [Page 16] end of the sentence: 2 This Conjunction cum omnibus aliis, &c. cou­ples the last words with the former, and makes the subsequent words referre to the whole sentence, Vide supra Max. 8 Case 11.

Dyer 46. b. P. 31, & 32. H. 8.6 An Indictment found in this manner, that Eliz. fuit in pace, Indictment. &c. quousque A. vir prefatae Eliz. de D. in com. S. yeoman did kill her, is good; for the addition yeoman must of necessity referre to the husband be­cause a woman cannot be a yeoman: But an Indictment, Quousque Alicia S. de D. in comit S. uxor I. S. Spinster, &c. is not good again Alice S. for there Spinster being an indifferent addition both to man and wo­man must referre to I. S. being the next antecedent, and so the wo­man hath no addition: 9 E. 4. 48. so likewise an indictment against I. S. serviens I. D. de D. in com. Midd. yeoman, is not good; for servant is no addi­on, and yeoman, referreth to the Master, which is the next antece­dent.

Dyer 15. b. 28 H. 8.7 A man makes a lease for life, the remainder in taile, In forma p [...] dicta. the re­mainder to I. S. in forma praedicta, this shall not referre to the estate, which is the next before, but to the first estate because there wants the word heires to cause him to have an estate taile.

Dyer ibid.8 A man is bound to abide the award of I. S. who awards, Relation of time. that the one party shall pay before such a feast 10 l. to the other, and that then the other shall make him a release. This word then shall not be referred to the feast, but to the time of payment of the mo­ney.

Dyer ibid.9 In a Cui in vita brought by a feme, the writ is, Cui in vita. Cui ipsa in vita sua contradicere non, &c. this word sua shall not be referred ad proximum antecedens viz. ipsa, but to the baron.

Co. Inst. pars 1 302. a.1 Whensoever a Confirmation doth enlarge or give an estate of Inheritance there ought to be apt words (as Littl. expresseth them Sect. 533) used for the same. Apt words.

Co. ibid. 297. a.2 If a disseisor make a lease for 100 yeares, Confirmation. the disseisée may con­firme parcel of those years, but then it must be by apt words; for he must not confirme the lease, or demise, or the estate of the Lessée; for in that case (though it should be but for an houre) it gives the disseisor fee simple for ever (as you have it in Littl. Sect. 519 and 520.) and then also the addition of parcel of the terme would be repugnant, if the whole were confirmed before; but the confirmation must be of the Land for part of the terme.

Co. l. 1 85. a. in Corbets Case.3 Iudges ought to know the intention of the parties by certaine and sensible words, Certain and uncertain words. which are agréeable and consonant to the Rules of Law, And therefore if land be given by déed to two, to have and to hold to them & haeredibus, this is voide for the insensibility and uncer­tainty; And albeit they have a clause of warranty to them and to their heires, this shall not make the first words, which are uncer­tain and without sense, to be of force and effect in law, although his intent appeare; for his intent ought be declared by words certaine and consonant to law.

Co. l. 6. 26. a. Sharps Case.4 If one saith thus, unto another, Improper words. I do here demise unto you my house for terme of your life; this is a good beginning, if actual livery be made accordingly, or if he use apt words, which may amount to so much; but without livery or such words, such a demise doth a­mount but to a Lease at will. Vide Thorough goods case Co. l. 9. 137. b.

Co. l. 6. 43. a.5 In Sir Anthony Mildmayes case it was observed, Compendious­ness. that in the Provi­so there (to restraine the tenant in tail from alienation) found at large [Page 17] by the speceial verdict, there were more then a thousand words, where­as (in our books) when the tenant in tail was restrained from alie­nation, there were under twelve words: Haec fuit candida illius aetatis fides & simplicitas, quae pauculis lineis omnia fidei firmamenta possuerunt: Co. l. 10. 30. b. 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 yeare of his reigne) they are much more prolix and volumi­nous, whereas Lawes and Precepts ought to be short and signifi­cant, to the end they may be easily understood, and the better retain­ed in the memorie, according to that of Erasmus in his religious Col­loquie, Praestat pauca avidè discere, quam multa cum taedio devorare; And that of Horace;

Franchise. Prescription.6 A Prescription to have all wild Swans, which are ferae naturae, Co l. 7. 18. a. The Case of Swans. and not marked, nidificant. gignent. & frequentant. within such a Creeke, is insufficient; so is also such a prescription for a Warren, viz. to have all Phesants and Partridges nidificant. gignent. & frequentant. within such a Mannor, but he ought to say, that he hath Free warren of them within the Mannor; for albeit they be nidificant. &c. within the Mannor, yet he cannot have them Jure privilegii but onely so long as they are with­in that place: Howbeit a Prescription thus alleaged is good, viz. that within such a Créeke there hath béen time out of mind, &c. a game of wild swans not marked, nidificant, &c. And then to prescribe, that such an Abbot and all his predecessors, &c. have alwayes used to have and take to their owne use some of the said wild Swans, and their signets within the said Créeke, such a prescription (I say) is good; for albeit Swans are Royal fowl, yet this way a man may prescribe in them, because that may have lawfull beginning, viz. by the Kings grant.

Debet & deti­net.7 The forme of a writ of debt shall be sometimes in the debet and detinet, and sometimes in the detinet onely, F. N. Br, 88. b. F. N. B. 119. b. and then if it be the de­bet it shall abate: It shall be always in the debet and detinet, when he that makes the bargaine or contract or borrows the money, or he, to whom the obligation is made, brings an action against him that is bound, or is party to the bargain contract or borrowing, and also when the action is brought for money: But if a man sel 20 quarters of wheat for an horse, here if he bring a writ of debt for the horse, the writ shall be in the detinet onely: And the Rule of the Register is, Fitz. ibid. m. quod in brevi debito, de catallis nunquam dicetur quòd ei debet: Also if a writ of debt be brought by executors upon a dutie due to their testa­tor, the writ shall be, quòs eis detinet, and not debet & detinet, because they were not partie to the contract: so likewise if a writ of debt be brought against executors by the creditor upon a dutie by their testa­tor, the writ shall be quos ei detinent, and not debent & detinent, albeit he demand money, as 20 l. or any other sum.

Annuity.8 In a writ of annuitie the form, is Quem ei debet, F. N. Br. 152. a. when any thing that is not money is demanded. It is otherwise in an action of debt, Non est factum for if it be for money, the demand shall be in the debet, but if it be for any thing else, it shall be in the detinet and not in th debet: And in debt also if a man demand money and ten quarters of wheat, then the forme of the writ shall be, Praecipe A. quòd justè, &c. reddat B. decem libras, &c. quas ei debet, & decem quarteria frumenti, quae ei injustè detinet, &c.

9 If a man be taken in execution by the Sheriff upon a ca. sa. and [Page 18] the Sheriffe takes bond of him for his apperance and rendring him­selfe true prisoner, Pl. Co. 66. a. Dive and Manninghams case. contrary to the Statute of 23 H. 6. 10. In an acti­on of debt brought by the Sheriff against the obliger, it is no apt con­clusion for the obliger to say, judgement se action, but he ought to conclude with nient son fait; for the Statute saith, if an obligation be taken in another forme, then is conteined in that Statute, that it shall be void, and if it be void, it was void from the beginning, and therefore never his déed. Vide plus ubi suprà.

F.N.Br. 151. g.10 When a writ of Customes and services is in the right onely, Customes and services. then the demandant shall count of the seisin of his Ancestor, and the writ shall be in the debet onely; but when he comes of his owne seisin, then the writ shall be in the debet & solet.

Co. Inst. 1. 291. a.11 If A. be accountable to B. and B. releaseth him all his duties, Accompt. Release. this is no barre in an action of accompt; for duties extend to things cer­tain, and what shall fall out upon an accompt is uncertain: And albeit the latin word is debita, yet duties do onely extend to all things due, which be also certaine; And therefore dischargeth Iudgements in per­sonall actions, and executions also.

F.N.Br. 8. c.12 Where a feme is endowed of parcel of her Dower, Dower. and would demand the rest against the same tenant and in the same town; In this case, for the recovery therof she shall have a writ of right of Dower, and not a writ of Dower undè nihil habet; for the words of this writ will not serve, because she hath already received part of her Dower; And therefore she must of necessitie sue a writ of right of Dower to recover the residue.

Co. l. 11. 55. a. 4 in Edward Lawes case.13 An Ejectione firmae lyeth not of a Close, Ejectione fir­mae. although it hath a cer­taine name, as Dovecot Close, conteining three acres, but it ought to be of so many acres, and ought also to shew of what nature those acres are, as Land, Meadow, Pasture, Wood, &c. and the certainty ought to be comprised in the Court, because he shall recover the possession by Habere facias possessionem, and shall ensue the form of other writs of like nature, as a Writ of ward or Ejectment de guard, or the like, shall not be of a Close by a certain name, but ought to be by the cer­tainty of acres conteining withall the quality of the soile, as Land, Meadow, Pasture, Wood, &c.

Co. Inst. 1. 68. b1 Right Interpretations and Etymologies are necessary; for, Etymologie. 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 Etymologie of the word Soccagium, Soccage. Littleton declareth the nature of tht 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.

Co. Inst. pars 1. 146 b. & 223. b1 Sir Edward Cooke 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, &c. Here nec and non do in a Grammatical construction [Page 19] 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 Gréek and French a double negative maketh the negation more forcible; And therefore Quere, whether Littleton being much acquainted with the Law-french doth not expresse that Latin according to the French Phrases.

False Latine.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. Maner. de D. & C. if it be (in truth) but one Mannor, then those abreviations tot. ill. Maner. shall be taken in the singular number for Totum illud Manerium; but if they be in truth two distinct Mannors then 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 (indéed) but one Mannor.

One Office in two persons.3 Letters Patents made to John Periont and W [...]llim Tooke 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, &c. 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 it selfe 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, &c. according to the Rule Mala grammatica, &c.

False Latine.4 An Indictment or Count shall not be quasht for false Latin or false Orthographie, Co. l. 5 121. a. Longs case. so that a proper Latin word may be knowne by it, as Praefato, Reginae, Mamilla, Diffamo, diffinitio, for Praefatae, Mammilla, Defamo, Definitio.

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 seised onely in the right of his wife, and therefore out of the words of that Statute; yet the contrary hath béen often adjudged; for, Westm. 2. 4. the Law of England respecteth the effect and substance of the matter, and not e­very nicitie of forme or circumstance; Aspices juris non sunt jura, & pa­rù differunt, quaere concordant.

2 A man seised of lands in fée levied a fine to the use of himselfe for life, and after to the use of his wife, Co. ibid. 365. b. No discontinu­ance. St. 11. H. 7. 20. and of the heires male of her bodie by him begotten for her Iointure, 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 barre the issue male, but his entry was adjudged lawfull, and yet this case is out of the letter of that Statute; for she neither levied the fine, &c. being sole, nor with any other after taken husband, but it is by her selfe with her husband, that made the Iointure.

B A man is seised of lands in right of his wife, and they two levie a fine, and the conusée grants and renders the land to the husband [Page 20] and wife in special taile, the remainder to the right heires of the wife, they have issue, the husband dieth, the wife taketh another husband, and they two levie a fine in fée, and the issue entreth, 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 Glocester 6 E. 1. cap. 3. Discontinu­ance. A fine le­vied by the husband alone of the wives land shall barre the heire, for the statute séemes to intend all alienations except by fine, because it is there said, whereof no fine is levied in the Kings Court; Howbeit by the meaning of that Statute the heire shall not be barred, Gloc. 3. for such a fine would worke 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 lawfull and worketh no wrong, and a fine by the husband onely would worke the same mischiefe, for which the Statute ordaines remedie, and therefore shall not barre the heire, though it be with warrantie, unlesse the heire have assets by descent, &c.

Co. l. 5. 5. b. The Lord Montjoys case.5 Donée in taile is restrained by a particular Act of Parliament, Warranty no barre. quòd non faceret aliquid in nocumentum, &c. haered. &c. nisi pro juntur. uxor, &c. reddend. verum & antiquum reddit, &c. Here, if the ancient reservation was of gold, he cannot reserve silver, if two farmes were anciently let to several tenants for several rents, he cannot let them both to one man for one intire rent, nor demise parcel of the farme rendring rent 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 qualitie, value, and nature.

Co. l. 6 65. b. Sir Moile Fin­ches case.6 The change of the name of a thing cannot alter the thing it selfe, Reservation of rent. but the new name may be used by the owner in conveyances, praeci­pes, &c. without prejudice; And therefore in Sir Moile Finches case in the 6. Rep. it was agréed, that Exceter-house in the Strand, and Dorset-house in Fleet-street having then within thrée yeares 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, &c. so in a praeci­pe brought of a Mannor in com. Bedd. by the name of the Mannor of Asple, whereas it had béene formerly and was still called Asple guise; here, the tenant, after the view, demanded judgement of the writ, unto which the demandant said, the Mannor put in view was also known by the name of Asple; 41 E. 3. tit. Maint. de briefe 49. 8 H. 6. 32. and it was adjudged, that such a name gotten by the knowledge of the Country is sufficent, 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 [...]re­shams case.7 Albeit Covina, of it selfe and ex vi termini, Corin. ought 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 Etymologie of the word; for, Plerunquè dum proprietas verborum attenditur, sensus verborum amittitur.

Co. l. 11. 34. a. in Alexander Powlters case.8 The Statute of 23 H. 8. 1. House-burni [...] takes away Clergie from the House-burner; the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons, save onely for Murder, Poysoning, Burglary, Robberie, Horse-stealing, and Sacriledge, so as House-burning being in this Statute casus omissus, such an offender séemeth thereby to be allowed his Clergie; Neverthelesse, because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner, that standeth mute, challengeth [Page 21] 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 Clergie 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. Lauds case. The four first letters in the name and stile of H. 7. viz. H. R. A. F. (for Henricus Rex Angliae, Franciae, &c. 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 al­leadged, that T. W. resignavit, &c. in manus J. Episcopi, &c. & loci illius Ordinarii, And exception was taken, because it was not in manus Johannis Episcopi, séeing the Letter J. signified nothing: but yet the Count was adjudged good.

Wast.10 The Statute of Glocester cap. 5. Co. Inst. 1. 54. b which gives an action of wast against the Lessée for life or yeares (which lay not against them at the Common Law) speaketh of one that holdeth for terme of yeares in the Plural number, and yet it appeareth by Littleton Sect. 67. that al­though it be a penal Law, whereby treble damages and the place wasted shall be recovered, yet a tenant for halfe a yeare being with­in the same mischiefe, shall also be within the same remedie, 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 Iudicial 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, &c. Vide suprà 13, 4.

False Latine.12 In the 14 of E. 3. the King grants licence to found in Oxford, Co. l. 11. 8. b. Doctor Ayries 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, Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford: The Incumbent devises the Rectorie, which they confirme by the name of Provost, Fellowes, and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford: Misnamer of a Colledge. Notwith­standing these variances y ^e 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.

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 soules (being worth eight pounds per annum or above) take another, and be instituted and inducted in the possession of the same, &c. the first shall be void; Here, albeit the Statute saith plainly instituted and inducted, yet if he be onely instituted into it, he shall lose the first before induction; and this is in regard of the great in­convenience, that would insue, 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.

[Page 22] 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 summe. untill 800 l. shall be levied and received out of the profits of them (besides all charges) to be imployed for the preferment of his two daughters Marg. and Mary; Robert Corbet sonne and heire con­ceals the will, enters into the lands, and enjoyes them fi [...]e years and dies, after whose death (the will being discovered) Richard Corbet enters into the lands and raiseth 640 l. and imployes 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 summe of 800 l. And in this case it was resolved, that albeit the words be, until the summe of 800 l. shall be levied, &c. 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, untill such a summe shall be levied; that was as much to say as, untill such a sum may be levied, for otherwise great mischief would in­sue; because in as much as he in reversion or remainder shall not enter untill the sum be levied, it shall be in the power of those, who are appointed to levie it, to deferre 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 retaines 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 retaine another during the life of the Chaplain discharged; for by that meanes 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 case2 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 felfe 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 mariage) 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 marie women, that have tenants at will, for the l [...]sse of their rents: for these causes it was resolved, that without expresse matter done by the husband after the mariage 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. &c. to H. his sonne and the heires male of his bodie, the remainder to Th. Ch. of D. and the heires male of his bodie, with condition, that he or they or any of them shall not discontinue, &c. the question was whether T. Ch. should be recei­ved to prove by witnesses, that it was the intent of the divisor to in­clude his sonne within these words he or they; And it was resolved by Wray and Anderson upon conference with other Iudges, 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 controled 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, [Page 23] 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 then 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 l ke.7 If a man grant lands to A. in fée, Littl. 720, 722. Co. Inst. 1. 377. Justice Richels Case, Temps R. 2. upon condition that if he ali­en in fée, his estate shall cease and be voide, and that immediately from thenceforth the estate of the land shall remaine to B. and his heires; 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 voide 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 no right before, which would be inconvenient and against the expresse rule of Law, because an entry cannot be given to a stranger to avoide a voidable act, as appeares 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 mariage money to the heire 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 mariage he accomplish the age of 18 yeares, 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 Glocester in 6 E. 1. cap. 3. ordaines, Co. l. 8. 52. b. 4. in Syms case. Pl. Co. 110. in Fulmerstons case. that where the tenant by the Curtesie aliens his wives Inheritance with war­rantie, if assets descend to the heire, 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 heire of the seisin of his mother, viz. out of the residue of his mothers 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.) fée simple absolute or conditional) yet entailed lands are since taken to be within the equitie of the said Act of Glocester, but not to retaine or recover (as in case of fée simple lands) the lands entailed, but onely 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 retaine or recover the lands entai­led, then if the assets were aliened, the issues inheritable to the e­state taile might by writ of Formedon in Descender recover the entail­ed lands againe, which would beget a new suit and no way answer the intention of the said Act, being indeed a good provision for fée 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 warrantie, the tenant shall have a Scire facias out of the rolles of the Iustices, before whom the suit depends, to recover the lands descended according to the provision of the said Act of Glo­cester, which prevents the aforesaid inconvenience, and in just and proportionable equity agrées with the case of Fée 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 inlarging of the Common [Page 24] 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 remedie the Parliament hath resolved and appointed to cure that dis­ease of the Common-wealth: 4 The true reason of the remedie: And then it is alwayes the office of the Iudges to make such con­struction, as may represse the mischief, and advance the remedie, and also to suppresse such subtile inventions and evasions, as may con­tinue the mischief, & pro privato commodo; and to adde force and life to the cure and remedie, 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 Copihold or Customarie estates; and by them this Rule was then also agréed, That when an Act of Parliament alters the ser­vice, tenure, interest of the land, or other thing in prejudice of the Lord, or of the Custome of the Mannor, or in prejudice of the te­nant, there the general words of such an Act shall not extend to Co­piholds; 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 custome of the Mannor; In such case many times Copihold and Customarie estates are within the general pur­view of such Acts.

Co. Inst. 1. 147 a. Co. l. 7. 24. a. Buts case.1 If a rent be granted out of the Mannor of Dale, Rent. and the grantor grant over, that if the rent be behind, the grantée shall distraine for the same in the Mannor of Sale, this is no grant of rent, only but a pe­naltie in the Mannor of Sale, & one reason thereof is, because the Law néeds not to make construction, that this shall amount to a grant of a rent, for here the rent is expresly granted to be issuing out of the Mannor of Dale, and the parties have expresly limited, out of what land the rent shall issue, and upon what land the distresse shall be ta­ken, and the Law will not make an exposition against the expresse 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 passe by the premisses as in case of repugnancie or the like) yet here no estate shall passe by implication of Law against the expresse limitation of the partie; although his limitation be void.

Co. l. 5. 118. Edriches case.3 A seised of Land in fée, Rent. grants a rent out of it with clause of di­stresse to B. for the life of C. and dies, the heire lets the land (thus charged) to D. for life, the remainder to E. in fée, the rent is behind for divers yeares 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 auter 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 [Page 25] that he shall distraine for the same arrearages upon such lands, &c. out of which the said rents, &c. are issuing in such manner and forme as he ought or might have done if Cesty que vie had been alive, Here, (I say) the latter part of this branch doth expresly charge him in the remainder with the payment of the arrearages; And the Iudges in that case said, that they ought not to make any interpretation against the expresse letter of the Statute; for nothing can so well expresse the intent of the makers of an Act, as the direct words themselves (for index animi sermo) and it will be dangerous to give libertie to make construction in any case again the the expresse words, when the intent of the makers appeares not to the contrarie, 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 heires of his bodie, the remainder to C. and his wife and after their dis­cease to their children, C. and his wife having then issue a sonne and a daughter: And after the divisor dies, also A. dies and B. dies with­out issue, C. also and his wife die, and the sonne hath issue a daughter and dies; Here, the question was, whether the daughter of the sonne 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 taile is one­ly grounded upon the intent of the divisor: Howbeit, it was resolved, that such an intent ought to be manifest and certaine, and not obscure and doubtfull, 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 sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares, Co. l. 10. 87. a. Leonard Lo­ves Case. Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors, for this terme is but a chattel and can­not be intailed, and such a devisée may alien the terme, if he please: And Cook Chief Justice held, that such a devise is but an estate for years, because it is so in expresse words devised, and that (in this case) against expresse 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 expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius, and no exposition can in this case be made against expresse words; for viperima est ista expositio quae corrodit ventrem textus.

7 If feme tenant for life take husband, who makes wast, Co. l. 5. 75. b. Cliftons Case. and the feme dies; Here, the husband is not punishable for that wast; because the Statute of Glocest. 6 E. 1. cap. 5. is thus recited in the writ of wast, Wast. Quare cum de communi, &c. provisum sit, quòd non lice­at alicui vastum, &c. facere de terris, &c. sibi demissis ad terminum vitae vel annorum, &c. So that the land being not demised to the husband, but he holding it onely for her life and in her right, he shall not be charge­able for wast after the death of the wife, by the expresse 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 ordaines onely that it shall be in writing, and enjoynes 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 levie a fine, and five yeares passe, this shall barre the estat tail, notwithstanding the [Page 26] Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collate­ral ancestor of the Donée release with warrantie, and the Donée suf­fer the warrantie to descend without entry made in the life of the ance­stor, this also shall bind the tenant in raile, because the words of that Statute are, had, done, or suffered by or against any such tenant in taile; And in this case he is not partie, or privie to any act either done or suffered by or against him.

Co. l. 2. 24. a. Baldwins Case1 The Earl of Cumberland demises land to Anne and to one Antho­ny Baldwin her sonne and to the heires of the said Anthony, Demise. Haben­dum to them from the date for 99 yeares; Here, albeit heires are men­tioned in the premisses, yet is not the Habendum repugnant unto them, but they have a joynt estate for yeares, 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. Col­ledge 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 Li­vings. bodie politique or corporate, and the King is a person, as it is said in 10 H. 7. 18. and a bodie politique, as appears in Plowd. fol. 213 & 234. Now therefore if the King be cléerely 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 Quéen, Lords, and Commons, who made the Act, have adjudged (as in the preamble appears) that long leases made by Colledges, &c. are unreasonable and against reason (much more estates in fée simple.) And the Law, which is the perfection of reason, will never expound the words of that Act against reason, for maledicta est expositio, &c.

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, &c. and doth not alleadge to what places the said libertie doth extend, or whe­ther part or any of the towne of Cossam be within the libertie, and so it did not appear, that the Coroner had any Iurisdiction in the place, where the inquisition was taken, nor where the murder was com­mitted, nor where the dead bodie lay, for all is alleadged 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 certaine, 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 barres, which are to defend and excuse the partie; the second is required in indictments, counts, replications, &c. because they are to excuse or charge the partie; the third is rejected in Law, as too nice and curious, for Talis certitudo certitudinem confundit: And in this present case the indictment is cer­taine enough in general, viz. that Cossam is within the libertie of Cossam: but to imagine that the libertie may extend out of the town, and yet the town it self to be out of the libertie, is a captious and strained intendment, which the Law doth not allow.

[Page 27] Misnomer.2 In a conveyance of lands in Kent certain lands lying in Beamston were excepted by the name of the Mannor of Beamston, Co. l. 6. 6 4. b. Sir Moyle Finches case. whereas it had (indéed) formerly béen a Mannor 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 lesse in grants or other conveyances, in which case they cannot have new ones; And therefore if two be joyned in a writ, the one shall not plead the Misnamer of the other, as it is agréed in 14 H. 6. 3. 33 E. 3. Mainten. de briefe 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 trespasse in Heldernesse at W. the defendant pleads (in respect of Misnomer) that it was neither Town, Hamlet, or place known, &c. the Plaintiff re­plyeth, it was without shewing in certaine, either that it was a Town, hamlet, or place known, And all this in detestation of nice and dilatorie exceptions.

Nice constru­ctions.3 Cook Chief Iustice of the C. Pl. in the Earle of Rutlands case in 8 Rep. 6 Jac. complaines together with the other Iudges of the same Court, Co. l. 8. 56. b. The Earl of Rutlands case. that then of late time divers nice and strained constructions of Letters Patents had béen made, and many of them upon slight grounds had béen 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 cléerly a­gainst the true reason and ancient Rule of Law, as did manifestly appeare 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 shew 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 necessarie 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 néedlesse, Vide plus ibidem.

Exception to a Charter, &c.5 Exception was taken against the confirmation of the Charter of Queens Colledge 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 it selfe 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 Bur­gesse ought to be of a certain Town and not of a Castle, but it was not allowed: Exception to a Charter, &c. for the ancient Sages of the Law did alwayes reject such niceties concerning appellations and names, when the thing in­tended might be thereby well enough known and distinguished.

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 bodie Politique is dissolved, Co. Inst. pars [...] 13 b. 2. the Donor shall have againe the land and not the Lord by Escheate; be­cause in the case of a bodie Politique, the fée simple is vested in their poli­tique 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 bodie Politique 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 fée 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 Escheate.

Wedlock cea­sing, the Dow­er ceaseth.2 The wife shall be endowed of the lands, &c. of her husband, [...]o. ibid. 32. a. 4 if the mariage 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 onely, as for adultery) the Dower ceaseth, For, ubi nullum matrimonium, ibi nulla dos. See Dyer 13. a.

The tenure ended, the di­stress ceaseth.3 For the rent due the last day of the terme, Co. ibid. 47. b. 3 the lessor cannot di­straine, because the terme is ended; and therefore some use to reserve the last halfe yeares rent at the feast of St. John Baptist before the end of the terme; so as, if the rent be not then paid, he may distraine be­twéen that and Michaelmas following.

The tenure ended, the e­stople ceaseth.4 If a man takes a lease for years of his own land by déed in­dented, the estopel doth not continue after the terme ended; Co. ibid. 47. b. 4 m. 31. & 32. Eliz. Londons 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 terme ended, belong [Page 30] to the Lessor, which should not be, if the estopel continued. Vide 40. 32.

Co. ibid. 76. a. 15 If after the Lord hath the wardship of the bodie and land, The Seigniory extinct, the Wardship cea­seth. the Lord doth release to the Infant his right in the Seigniory, or the Seigniory 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, mariage &c. 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 Cō ­nusor 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. 36 If the tenant makes a feofment in fée of lands holden by Knights-service, to the use of the feoffee and his heires, The town per­formed, the Wardship cea­seth. untill the feoffor pay unto the feoffée or his heires an hundred pounds at a time and place limited; The feoffée dieth, his heire within age, the Lord shall have the wardship of the body and lands of the heire of the feoffee, but it shall be conditionally; for he cannot have a more absolute interest in the wardship, than the heire hath in the tenancie: Therefore if the feoffor pay the money at the day and place, and entreth 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. 47 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 heire female be within the age of 14 yeares, and not married at the time of the death of her ancestor, then the Lord shall have the ward of the land holden of him, untill her age of 16 yeares, 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 bodie, the grantee thereof cannot enjoy the benefit of the two yeares, because he cannot hold the land over; and the Lord, which hath the wardship of the land onely, shall also lose the benefit of the two yeares, because he hath the lands onely, and cannot tender any mariage; Therefore (in this case) the heire female shall enter into her land at her age of 14 yeares: So if a tenant holdeth of one Lord by prioritie, and of another by posteriority and dieth, his heire female within the age of 14 years, the Lord by posteriority shall have the lands but until her age of 14 yeares, because the mariage belong­eth not to him: Also, if the Lord marieth the heire female within the two yeares, her husband and she shall presently after the mariage 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.

[Page 31] 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. Coles case. 37 H. 6 21. Co. l. 5. 49. Vaughans Case. personal or mixt (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 Kings 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 intitled thereunto, untill judgement be given, because by the judge­ment the wrong is discerned, yet a pardon before judgment, shall, after Iudgment given, discharge the partie, because the original cause, viz. the delay, &c. is pardoned.

A wife after coverture, a Niefe again.11 If a Niefe marry a frée-man, Co. Inst. pars 1 136. b. 2. 137. b. 3. she is priviledged 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 Iuror (after his returne) 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 feare to offend, to have his lands wasted, and the like, &c. (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 sée the beasts in his soile, and the owner chase them out on purpose before the di­stresse taken, the owner of the soile cannot then distraine 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 distresse.

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 joyn in a praecipe; likewise, the issues of two coparceners, which are in by several descents, being disseised, shall joyne in an As­sise: Howbeit, in the same case, if the two daughters had béen actually seised, and had béen disseised, after their deceases the issues shall not joyn: 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 againe, and one praecipe lyeth against them, and release made by one of them to the other is good.

Frankmariage Hotchpot.15 If lands given in frank-mariage be impleaded, Co. ibid. 177. b. 2. the tenant shall not have ayde against the other parcener; but if she put the land into Hotchpot, she shall have it; for, then the lands are become as o­ther lands, which descended from the common Ancestor.

Prescription or Custome ex­tinct by inter­ruption.16 If tenant by homage ancestrel maketh a feofment in fée upon Condition, and entreth for the Condition broken, Co. ibid. 202. b. 1. it shall be never holden by homage Ancestrell again: so it is, if a Copihold escheat, and the Lord maketh a feoffment in fée upon Condition, and entreth for the condition broken, it shall never be Copihold again; because (in both these cases) the custome or prescription (which supported, and was the cause of the tenure) is interrupted, and that being once bro­ken, is become remedilesse.

The land evi­cted, the An­nuity is gone. The mariage 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 heires causa matrimonii praelocuti, in this case if the man refuse to marry her, she shall have the land againe to her and her heires; but it is otherwise in case of a man.

[Page 32] Co. ibid. 238. a. 4.18 If a disseisor make a gift in taile, A dying seised, and yet no de­scent to take, &c. and the Donee discontinueth the fée, and after disseise the discontinuee, and dieth seised, this di­scent shall not take away the entry of the diseissée; For the discent of the Fée simple is vanished and gone by the Remitter, And al­beit the issue be in by force of the estate taile, yet the Donée died not seised of that estate, and of necessity there must be a dying sei­sed.

Co. ibid. 239. a. 2.19 When the degrées are past so as a writ of Entry in the Post doth lye, yet by event it may be brought within the degrées again, A writ out of the degrees may be redu­ced. as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the dis­seisor die seised, and the land descends to A. and from him to B. and from him to C. Now are the degrées past, and yet if C. enfeoffe A. or B. now is it brought within the degrées again.

Co. ibid. 242. b. 1.20 If the eldest sonne hath issue and dieth, A descent when privity of bloud faileth. and after his decease the younger sonne or his heire entreth, and many descents cast in his line; yet may the heires of the eldest sonne enter, in respect of the privity of bloud, and of the same claime by one title; But if the younger sonne make a feoffment in fée, and the feoffée dies seised, that discent shall take away the entry of the eldest, in respect that the privity of bloud faileth.

Co. ibid. 285. a. 4.21 If an action of wast be brought by Baron and feme in remain­der in special taile, Death void [...] the action. and (hanging the writ) the wife dieth without issue: the writ shall abate; because every kind of action of wast must be ad exhaeredationem.

Co. ibid. 291. a. 4. Execut. 7.22 If the bodie of a man be taken in execution upon a Ca. sa. and the Plaintiffe releaseth all actions, Release of debt excuseth execution. yet shall he still remaine in exe­cution; but if he release all debts, duties or judgements, he is to be discharged of the execution; because the debt, or the dutie, 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 betwéen a rent-service and a rent-charge is, Avowry for a rent service up­on the person. for that in rent-service the avowry shall allwayes 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 certaine, and then by Littletons reason there néedeth no privity to the attornment of a Seigniory, for (say they) Cessante causa & ratione legis, cessat lex; As at the Common Law no aide was grantable of a stranger to an Avowrie; because the Avowrie was made of a certaine person; but now the Avowrie being made by the said Act of 21 H. 8. upon no person; therefore the reason of the Law being changed, the Law it selfe is also changed, and consequently in an Avowrie, 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 béen 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 Avowrie 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 assigne 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 assignement there is no tenure or attendance, &c. betwéen 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.

[Page 33] The assignee of tenant by possession shal [...]attorn.25 Tenant in taile 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 priviledge is lost, the assignée having in him onely a bare estate for life.

Release of quarrels is re­lease of Act.26 Quaerela (being derived à quaerendo) properly concerneth per­sonal actions, or mixt 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 compel­ [...]able 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 seised of a reversion, levie 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 taile had levied a fine, the tenant could not have béen compelled to attorne, because it was defeasible by the issue in taile: But those Statutes have gi­ven a farther strength to fines to barre the issue in taile; 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 taile to B. who maketh a gift in taile to C. C. maketh a f [...]ffoment in fée, 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 fée simple, which B. had gained up­on the estate taile 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, then 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 lawfull.

Discōtinuance determined, the issue in tail may enter.29 Tenant in taile makes a lease for the life of the Lessée, Littl. Sect. 620 Co. ibid. 333. a. 2. and af­ter sels the reversion to a stranger, the tenant for life dies, the grantée of the reversion enters in the life of the tenant in taile, this as a discontinance in fée, and here if the tenant in taile 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 taile, the entry of the issue had béen lawfull; 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, &c. which worke discontinuances, Littl. § 632. Co. ibid. 336. a. 4. are defeated, the discontinuances themselves are also defeated; As if the husband be seised of land in right of his wife, and make feoffment of fée upon condition, and die; here, if afterwards the heire enter upon the feoffee for the condition broken, the entry of the feme is con­geable upon the heire; because by the entry of the heire for the con­dition broken the discontinuance is defeated.

Discōtinuance defeated upon surrender.31 If tenant in taile 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 taile 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 moneths to passe, and after the usurper granteth the Advowson to [Page 34] B. and his heires, B. dieth; his heire is not remitted, because his right to the Advowson was remedilesse, viz. a right without an action; for a remitter can never enure, but upon a right recoverable by acti­on.

Co. ibid. 356. a 1.33 If a recovery had béen 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) re­medilesse; because he could not have a writ of Right, in respect of the meanesse 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 béen remitted, because her estate was remedilesse, as aforesaid: But now since that Statute she shall in that case be remitted, because she may now regaine her estate by a Quòd ei deforceat, given by that Statute: for when an Act of Parli­ament or a custome doth alter the reason or cause of the Common Law, thereby the Common Law it self 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. enfeoffes 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 heire, 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 inclose 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 trespasse, by reason of the ancient usage, which the Law allowes to take away suits, which may arise, if actions shall be brought for every such trespasse, when no separation or inclosure 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 yeares, Trees selled are the Les­sors. the Lessée hath but a special interest or property in the trées (which are great timber) as things annexed to the land, so long as they remaine annexed unto it: but if the Lessée or any other sever, hem 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, &c. kill them, The bailee of goods may lose the privity. the Bail­or shall have a general action of trespass against him; because by the killing of them, the privity is determined, which restraineth the acti­on of trespass in that case.

38 If the Lessée makes wast, Waste. and before any action brought repaires the place wasted, and after the Lessor brings an action of wast, the acti­on is not maintainable; for the iurors ought to sée the wast, and ces­sante causa, &c.

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 mariage not paid after Knighthood. he marry elsewhere, yet he shall not pay the forfeiture of the mariage; for, by making of him Knight he is out of the ward and custodie of the Lord; because after he is Knight, he ought to be sui juris, and to im­ploy himselfe in feats of armes to defend the Kingdome, &c. And none shall pay the forfeiture of mariage, but he that after refusal marrieth himselfe 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 heires full age of 21 years.

[Page 35] No protection for Wales.40 Since the Statute of 12 E. 1. Calvins 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 lye: because Wales is now within the Realm of England.

No wardship after attainder41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe 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 heire; 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 déed executed in his life) yet there can be no wardship or primer seisin, but where there is an heire, by reason of whom alone those rights accrue to the King.

No dower by Guardian.42 During the minority of the heire a writ of Dower lyeth 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 mariage, yet no writ of Dower lyeth against him, neither can he endow her; because after the full age of the heir he is no longer guardian.

Nusance re­moved.43 In Assise de nusans, or Quod Permittat prosternere, Co. l. [...]. 55 a. 1. in Baltens Case. Co. l. 10. 84. b. 4. in Lovers Case. &c. it is a good plea, that the Plaintiff himselfe, (either before the writ purchased, or hanging the writ) hath abated the nusance.

All Soccage Land devised.44 If there be tenant in tail to him and the heires males of his bo­dy the remainder in fée to another, of land holden by Knight-service in Capite, and that is also seised of other lands in soccage in fée, 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 I. grant the Mannor of D. except the wood, Co. l. 11. 49. b. 3. Liffords case. by this the soil it selfe is excepted; but if I. except all my trées growing upon land or pasture out of any wood; there, by the exception of the trées the soil it selfe is not excepted; But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées; for without that the trées, 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 felonie, Fitz. 115. g. and after by Act of Par­liament a general pardon is granted of felonies, &c. Here, the party shall not have a writ of conspiracie, although he will plead to the in­dictment and is acquit, and will not plead the Act, &c. because his life was never put in jeopardie (which indéed ought to be the cause and ground of the action of conspiracie) the felonie being pardoned by the Act.

No attaint.47 If a man recover outragious damages by verdict, Fitz. 107. b. and release parcel of the damages before Iudgement, and hath onely Iudge­ment 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, &c. here, if the defendant, hanging the action, deliver the goods over to him, unto whom they were given [Page 36] to be delivered, this is a good barre 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 mariage not spent, Dyer. 13. 62. 28 H. 8.

Fitz. 152. [...].50 The heire 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 heire by prescription; because it cannot be known, whether he had any thing by descent from the same an­cestor, by whom the annuity began, &c.

Plowd. 37. a. The Sheriff of Londons case.51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey, though he have a kéeper with him, Escape. yet that is an escape; for, being in Surrey, which is another County, he was without gard, and so consequently out of prison, &c.

Plowd. ibid. per Chomley.52 If a woman be Warden of the Fleet, Prisoners en­larged by ma­riage, or des­cent. and one imprisoned there marieth 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 fée) die seised, his sonne and heire 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 gard, it being impossible that he should kéep himselfe in prison.

P. 13. E. 4. 8. Plowd. ibid.53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the County where he is Iustice, 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 ought 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 certaine 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 privi­ledge.

Plowd. 72. b. Sir Thomas Popes 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 himselfe, 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, &c.

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 béen good, Lands held by Corporations, in Knights Service. and the Abbot should have done homage and found a man, &c. or have paid escuage; But there was no wardship or reliefe 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 reliefe, and other incidents belonged of common right to the tenure: And so it is, if the King give lands to a Major and Communalty and their successors to be holden by Knight-service; In this case the Patentées [Page 37] shall do no homage, neither shall there be any wardship or reliefe, onely they shall find a man, &c. or pay escuage: But if they convey over their lands to any natural man and his heires; now homage, ward, mariage, reliefe, 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 mixt, and it is found that he is no villaine, the bringing of a writ of errour is no enfranchisement, because thereby he is to defeat the former judgement, and if in the mean time the plaintiffe or de­mandant bring an action against the Lord, he néed make no protesta­tion, so long as the record remaines in force (for at that time he is frée) but the Lord shall be restored to all by the writ of er­rour.

Waste.57 If lands be given to two and to the heires of one of them, Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Sta­tute of Glocester against the Ioyntenant for life, but his heir shall maintaine an action of waste against him upon that Statute: So that (in this case) the heir shall maintaine 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 sonne endow his wife at her age of 7 yeares ex assensu patris, if she before the death of her husband attaine to the age of nine yeares, 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 rent 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 owne use, but for the benefit of the heire, and the exe­cutor or husband by common intendment beare 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 misdemeanors, 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 misdemeanors being pardoned, all things pursuing it are also pardoned.

Livery.62 The King hath a Ward pur cause de gard, 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 Ioyntenants of the rent.

Challenge.64 It is no principal Challenge to a juror, 14 H. 7. 2. Finch 9. that he hath married the parties mother, if she be dead without issue; for the cause of favour is removed.

Entry.65 If an Infant tenant in taile make a feofment in fée, and die, Co. Inst. pars 1 337. a. 2. his issue may enter; but if after the feofment 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 onely, but of his bloud also, which is corrupted; Formedon. and therefore in that case he is driven to his For­medon.

Villain.66 Si mulier serva copulata fit libero, &c. 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 [Page 38] 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 fée, Coparceners. and after her feof­fée is impleaded, and voucheth the feoffor, she may have aide 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 her selfe 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. &c. upon an office found the King shall have them, yet being a Merchant he may take an house, and kéep 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 againe all his goods, which his executors have not spent; for, cessante causa, &c.

Dyer 57. b. 1. 25 H. 8.70 Cestuy que use for terme 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) onely tenant at sufferance. The Lo. Zouches case.

Co. Inst. pars 1 128. b. 2.1 If the defendant plead an outlawry in the Plaintiffe, 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 shew 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 taile, Entry revived. and the donée hath issue and dieth seised, 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 sonne disseiseth one and enfe­offeth the grandfather, who dieth seised, The like. and the land discendeth to the father, now is the entry of the disseisée taken away; but if the father dieth seised, and the land discendeth to the sonne; here, is the entry of the disseisée revived, and he may enter upon the sonne, who shall take no advantage of the discent, 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 lawfull upon him.

Co. ibid 245 b. 1.5 If the mulier entreth 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 seised, this shall barre 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 fée, and the alienée dies seised, and the tenements descend, to his heire, the Infant being still within age; here, my entry is taken a­way: [Page 39] way: but if the Infant within age enter upon the heire, 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 infants entry hath defeated that descent.

The like.7 If I be disseised and the disseisor makes a feofment in fée upon condition, and the feoffée dies seised of that estate; Here, Littl. § 409. Co. ibid. 248. I cannot enter upon the heire of the feoffée: But if the condition be broken, so that the feoffor doth therefore enter upon the heire; 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 sonne, 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 terme 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 onely 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 thrée sonnes, and discontinue the taile in fée, and the second sonne releaseth by his déed to the discontinuée, binding himself and his heires with warran­ty, &c. and after the tenant in taile dies, and the second sonne dies without issue; here, the eldest sonne is barred to have any recovery by writ of Formedon, because the warranty of the second brother is colla­terall unto him, in as much as he can by no meanes convey unto himself (by force of the entaile) any descent by that brother, and therefore as to the eldest brother it is collaterall 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 lineall to the youngest sonne, in as much as he might have conveyed unto him­selfe (by possibility) the estate by his second brother, in case he had sur­vived the eldest, &c,

The like.10 If tenant in taile lets lands to a man for term of his life, Littl. § 738. Co. ibid. 387. the re­mainder to another in fée, and a collaterall ancestor confirmes the e­state of the tenant for terme of life, and binds himselfe and his heirs to warranty for the terme of the life of the tenant for life, and dies; and the tenant in taile 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 collaterall 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 fée, and the tenant for life make wast in the trées, and after he in the remainder for life die, an action of wast is maintainable by him in the remainder for the wast done in the life of the tenant for life: So it is likewise, where he in the remainder for life (after the wast committed) surrenders his estate to him in the remainder or reversion in fée: For, Remoto impedimento.

Lease by te­nant in tail.12 If tenant in taile of lands in capite makes Leases, Co. l. 7. 7. b. & 8. a. The Earl of Bedfords case. not war­ranted by the Statute of 32 H. 8. 28. and dies, his heire under age; in this case, although the King in right of the heire may avoid those Leases for his time, yet if, after the Kings interest determined, [Page 40] the heire accepts the rent, they shall be thereby made good againe: 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 Bishoprick; but after the Kings 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 to the heires of their two bodies, the Baron makes a feoffment in fée, Entry conge­able. and having issue of the Feme dies, the Feme also before entry dies; here, the estate taile is discontinued, so that the issue cannot enter: but in this case if the Feme had entred and recontinued the estate taile, then had the discontinuance béen purged, and the estate tail had béen thereby revested in the Feme, and would have from her descended upon the issue, and so his entry had béen congeable.

Fitz. 28. b.15 A man shall not have execution against the Kings debtor, The Kings debtor. that hath a Protection, because the King ought to be paid first; yet if the Plaintiff will undertake to pay the Kings debt, he shall have Iudge­ment 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 felonie, 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. 417 If tenant in fée take wife, Dower. and make a Lease for yeares 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 villaine a Praecipe quòd reddat, &c. that is a manumission; yet if tenant in tail of a Mannor, whereunto a villain is regardant, enfeoffe the recovery of the Mannor and dieth, the issue shall have a Formedon aganst the villein, and after the recovery of the Mannor he shall seise the villain, and the bringing of the Formedon shall work no manumission; for that he could not seise him, till he had recovered the Mannor, which was the principal; and at the time of the writ brought he was no villain.

Co. ibid. 59. a. 219 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 warre, &c. yet upon his death no ward, mariage, or reliefe is due to the Lord; Howbeit, if the Abbot with the consent of his Covent alien the lands to a man and his heires, there is then ward, mariage and reliefe revived, &c.

Littl. § 632. Co. ibid. 336. a.20 If the baron be seised of land in right of his wife, Entry conge­able. and makes feoffment in fée upon condition and die, if the heire 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 heire, 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 aide of the other Coparcener to de­raigne the warranty paramount, but he may vouch the feoffor, and she may have aide to deraigne the warranty paramount: And yet if there be two Coparceners, and they make partition, and the one of them enfeoffees her sonne and heire apparent and dieth; in this case, if the sonne be impleaded, albeit he be in by the feoffment of his mo­ther, yet shall he pray in aide of the other Coparcener to have the warranty paramount; for upon the descent the warranty betwixt the mother and the sonne is by Law annulled, and then he is in the same condition, as if the tenements had descended upon him.

[Page 41]22 Vide, M. 28. ca. 4. & 3. 5.

Entry.23 If there be grand-father, father, and sonne, Co. ibid. 265. a. 4. and the father dis­seise the grand-father, and make a feoffment in fée, the grand-father dieth, the father against his own feoffment shall not en­ter, but if he die his sonne shall enter; for remoto impedimen­to, &c.

Protection.24 Albeit a Protection be allowed by the Court for a yeare, 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 yeare, for Remoto impe­dimento, &c. And albeit some books hold the contrarie, yet the later books are of that opinion, for otherwise the repeale would serve for little purpose, if the Law should not be so taken.

No accessory 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 receit of A. A. Es­soignes himselfe and is outlawed, B. was taken, and putting himselfe upon the Inquest was found guilty, whereupon B. was attainted and hanged, and the Lord entred, as in his escheate, and after A. came and reversed the outlawrie, and pleading to the felony was found not guilty, and so was acquit, whereupon the heire brings a Mortdancester against the Lord by escheat, who comes and shewes all this matter, unto which it was demurred in Law, whereupon it was awarded, that the heire of B. should recover seisin of the land, for if B. had béen then alive, he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon, when A. was no felon: And remoto impedimento, &c. Vide plus ubi supra.

Tenant by courtesie.1 If the King give lands to a man and a woman and to the heires 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 taile after possibility, &c. But if the King give land with a woman of his kindred in frank-mariage, and the woman die without issue, the man in the Kings 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.

Frankmariage2 If lands be given to a man and a woman in special taile, Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus, both shall hold the lands for their lives; 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 Plowd. Car­zibs case. soccage be given in special tail, and the Donées die the issue being within the age of 14 yeares, 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father, or of the part of the mother, which can hap the custodie shall have it; but in case of frank-mariage the heire 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 fée, and taketh backe an estate in fée, 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 taile, as heire 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 terme of life; this is determina­ble upon the determination of the office, which occasioned the grant of the rent. 19. 59.

[Page 42] Co. ibid. 85. a. 25 If a man make a Lease for yeares of a villeine this cannot be done without déed, neither can the Lessée assigne it over without déed, Grant of a Villain by deed. because it is derived out of a fréehold that lyeth in grant, which (in­déed) 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 déed, so may it also be assigned over without déed.

Co. ibi. 102. a 4 9 E. 2. execut. 249.6 Vpon a judgement in debt, Judgement, execution. the Plaintiffe shall not have executi­on, but onely 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 heire, 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 heire in respect of the land.

Co. bid. 102. b. 1. 22 Ass. Pl. 32.7 If a man be nonsuit, the land onely, 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 Iuror 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, Bract. f. 87 as of his Crown, that is, as he is King: Co. ibid. 108 a. 4. ubi. Vide praedict. Author. And theref [...]r [...] if one holdeth land of a common person in grosse as of his person, and not of any Mannor, &c. and this Seigniory 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 alleaged by the Plaintiff against the She­riff be p [...]rtiality to either party, Challenge. and processe be once awarded for such partiality, though there be a new Sheriff, yet processe 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 processe 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 distreine cattle, Distress. which he séeth then within his fée; and the tenant or any other to prevent the Lord to distreine, dri [...]es the cattle out of the Lords fée, into some other p [...]ace not with­in his fée; yet may the Lord freshly follow and distreine the cattle, and the tenant cannot make rescous: But if the Lord comming to distreine had no view of the cattle within his fée, though the [...]e­nant drive them off purposely, or if the c [...]ttle of themsel [...]es after the view goe out of the fée, or if the tenant after the view remove them for any other cause, then to prevent the Lord of his distresse, then cannot the Lord distrein them out of his fée, and if he doth, the te­nant may make rescous.

11 If there be thrée Coparceners, and they make partition, Rent in Co­parcenary. and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition, the grantées are not joynt­tenants of this rent, but the rent is in nature of coparcenary, and after the death of the one grantée the moity of the rent shall des­cend to her issue in course of cop [...]rcenary, & not survive to the other; for that the rent doth come in recompence 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 [Page 43] rent in course of coparcenary, and shall also joyn 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. rendring to them two and their heires a rent out of the land; In this case, they shall not be joyn-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.

Joyn-tenants 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 moity because they claime and are seised by several titles: but if 20 joyn-tenants be disseised, they shall have but one assize in all their names; because they have but one joynt title.

The like.14 If there be three joyn-tenants, Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right, &c. 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 joynt title: but as to the other third part, he, to whom the release was made, ought to have a several assize of that in his owne name; because of that part he is tenant in common, and hath title to it by force of the release, and not onely by force of the joyn­ture.

Coparceners.15 If two Coparceners have issue, each of them a sonne, and die, Littl. § 313. Co. Inst. pars 1 196. a. 4. and the sonnes before partition are disseised; in this case they shall joyn in an Assize; for, although they claime by several titles in respect of the several descents from their mothers, yet in as much as the land in­tirely descended from their grand-father to their mothers, they are in Law accompted Parceners, and a writ de partitione facienda lyeth betwixt them; and consequently shall have but one As­size.

Tenants in common.16 In real and mixt 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 joyntly in all their names, as an action of trespass, of accompt against the Bailiff of their Mannor, 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 indéed is the cause of the action) is joynt; and therefore ought to be joyntly prosecuted, and shall also joyntly survive; and the same Law is of Coparce­ners.

Mo [...]tgage.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 heire enters into the land as he ought, &c. It séemes in this case that the fe­offor ought to pay the money at the day appointed to the executors, and not to the heire 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. &c. 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 mente: And therefore his madnesse 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 feare of beating, mayming, or death; that then he ought to approach as néere the land, as he dare, to make his claime; yet in this case every doubt or feare is not sufficient; for it must con­cern [Page 44] the safety of his person, & not of his houses or goods, for the fear of burning his houses, or of taking away or spoyling his goods; are not suf­ficient causes to make him forbear to make his entry or claime upon the land, because he may recover the same againe, or (at least) damages to the value of them without any corporal hurt: And here also, though the feare do concerne the person, yet it must not be a vaine feare, but such as may justly cause a constant man to be affraid by reason of some overt act, as if the adverse party lye in wait in the way with weapons, or by words menace to beat, Bract. lib. 2. 16. b. Brit. 19. 66. &c. maime, kill, or imprison him, &c. 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 taile 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 taile doth reco­ver the land against the discontinuee, he shall recover no more then the estate taile, 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 againe, 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 Wast against tenant in Dower or by the courtesie, Waste. a Quòd ei deforceat lyeth not; because y ^e default is not the cause of the judge­ment; For notwithstanding y ^e default there goeth forth a writ to enquire 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 wast 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. Ne­verthelesse others do hold the contrary, because albeit in the writ of wast judgement is not given only upon the default, yet the default is the principal, and the cause of awarding the writ to enquire of the wast, as an incident thereunto; and the Law alwayes 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 Ioyn-tenants or Coparceners have one and the same re­medie, if the one enter, the other shall enter also; Joyn-tenants, and tenants a common. but where the re­medies be several, there it is otherwise; As if two Ioyn-tenants or Coparceners joyne in a real action, where their entry is not lawfull, and the one is summoned and severed, and the other pursueth and re­covereth the moity; the other Ioyn-tenant or Coparcener shall enter and take the profits with her; because their remedie 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 moity, the other shall not enter with her, because their re­medies were several; and yet when both have recovered, they are Coparceners againe: So if two Ioyn-tenants seised of lands (the one of full age, the other under age) be disseised, &c. And the disseisor die seised and his issue enter, the o [...]e of the Ioyn-tenants be­ing still under age, And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives; This is a remittor of the moity to him within age, because his entry was congeable; but the other Ioyn-tenant hath but an estate for life in the other moi [...]y by force of the Lease, because his entry was taken away, Lit. l. § 656. &c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants [Page 45] in fée be disseised by the father of A. who dieth seised, his sonne and heire entreth, 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 Grand-father had disseised the Ioyn-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 béen taken away by the first descent, and therefore he should not have entred with the heir of A. &c.

Warranty that begins by disseisin.23 If A. de B. be seised of an house, Littl. § 368. and F. de G. enter into the same house, clayming it to him and his heires, and make a feof­ment thereof with warranty to certaine 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 beginnes by disseisin; because that feofment 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 fée, 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, &c. yet séeing the estate taile was not originlly created by the King, the estate taile may be barred by a Common recovery: So likewise if Prince H. sonne of H. 7. had made a gift in taile the remainder to H. 7. in fée, 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 taile.

No fine before admitance.25 Popham Chief Justice said, that it was adjudged in Sands his case, Co. l. 4 28. a. 3. Copihold ca­ses. Hubbert and Hamons case. that no fine was due to the Lord either upon surrender or descent un­till admittance: For the admittance is the cause of the fine, and if after the tenant denie 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 shew­ed, why the Bishop refu­seth to admit.26 If a Clerke 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 alleadge 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 Kings Court to determine schismes or heresies; yet the original cause of the suit being matter, whereof the Kings Court hath conusance, the cause of the schisme or heresie, for which the presentée is refused, ought to be alleadged in certaine, to the intent that the Kings Court may consult with Di­vines, to know whether it be schisme or no, and if the party be dead, may thereupon direct the Iury which is to try it.

Felons goods for flying can­not be forfei­ted by prescri­ption.27 If a man flie for felony, his owne goods are not forfeited, Co. ibid. 109. b. 1. Foxl [...]yes case. un­till 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, onely by reason of this flying, without more, then a man may have such goods so forfeited by prescription, as he may have waifs, estrayes, treasure trowe, &c. but in as much as bona fugitivorum are not for­feited, untill the flight be lawfully proved upon record, and because things forfeited by matter of record cannot be claymed by prescripti­on, which is a matter in suit; for this cause they cannot be claymed by prescription.

28 Deodands are the goods, which caused the death of the party [Page 46] killed by misfortune, Co. ibid. 110. b. 4. and are not forfeit, Deodands not forfeited by prescription in England. untill 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, &c. and that the Ship sayling thitherwards was arrested by the King of France, upon the River of Somme within the Kingdome of France, &c. And issue was joyned 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 méerly from a place, which was out of the Realme, could not be tried, and that if it might be tried in England, the trial should be by a Iury 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. Calvins case.30 It is neither Coelum nor Solum, but Ligeantia and Obedientia, One may be born in Eng­land, and yet not within the Kings allegi­ance. that make the subject borne: for if enemies should come into the Realm, and possesse a town or fort, and have issue there, that issue is no sub­ject to the King of England; although he be born upon his soile, and under his meridian; because he was not borne under the ligeance of a subject, nor under the protection of the King, &c. And therefore when St [...]phano Ferrara de Gama and Emanuel Lewes Tinoco, two Portugals born, comming into England under Qu. El. safe conduct, and li­ving here under her protection, joyned with Doctor Lopez in treason within this Realme against her Majestie; In that case two points were resolved; 1 That their indictment ought to begin, that they intended treason contra Dominam Reginam, &c. 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 warre, he cannot be indicted of treason; for the indictment cannot conclude contra ligentiae suae debitum, because he never was in the Kings 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 Iudges was to be executed by Martial Law, which was done accordingly.

Co. l. 7. 15. a. 3. Calvins case.31 Albeit, since K. James tooke 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 Lande 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 Kings 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 countrey. 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.

[Page 47] 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 deceptivè outlawed him after Iudgement in the name of H. H. and thereupon imp [...]isoned him in Norfolke, laying his action in that County where he was imprisoned; whereupon the Defendant making objection, that the action ought to have béen layd 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 layd in Norfolke, where the Imprisonment, the most visible wrong, was, being (indéed) the chiefe 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 wast shall be brought where the land lies, and not where the Lease was made, although the terme be past; for the land and damages, or damages onely for the wast, 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 Seigniory be in another County: Likewise in a writ of right of ward of the body onely, 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 bodie is carried; for that action is founded upon the Ravishment, &c. 36 H. 6. 14. 22 R. 2. Bre. 937. & 12 Eliz. Dyer. 289.

Condition of Vici [...]age.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 ought 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 kéep 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 Plaintife or Defendant or any other, or be the condition in the affir­mative or the negative; there the Plaintife ought to shew it in his Count, and averre the performance of it; for there the interest or e­state commenceth in him by the performance of the Condition, and is not in him till the Condition be performed: 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 Plaintife or Defendant or by any other, and be the Condition in the affirmative or the nega­tive; there the Plaintife may count generally without shewing 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 alleadge 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 Copihold Mannor, Co. l. 8. 63. Swaynes case. within which the Copiholders might by custome lop the timber trées for estovers and necessary re­paire [Page 48] of fences, &c. makes a Lease thereof to A. for 21 years, except­ing the timber trées; A Copihold tenant having lands upon which such timber grew, surrendred his estate to another, who was admitted by A. the Lessée of the Mannor, and lops the trées for necessary repair of fences: Now the question was, whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exce­ption, Co. l. 4. 21. a Browns case, fol. 23. b Clark, 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 transferre, 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 Mannor (for the Lord is but as it were an Instrument to convey the grant of the Copihold) but the Custome of the Mannor (after the grant is made) is that, which esta­blisheth and makes it firme to the Grantée: So that although the grant be new, yet the title of the Copiholder to the profit of the trées is ancient, and so ancient, that by force of the Custome it excéeds 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 advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband, and the 18 of May gives part thereof to her husband, who thereupon became very sicke, 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 stirres it, and also eats part thereof, and dies the next day: And it was resolved by all the Iudges of England, that this was murder in Agnes, and that this case did not differ from Sanders case in the Commentaries, Plowd 474. although Martin by stir­ring it made the poison more forcible; for the stirring, &c. without putting in the poison could not be the cause of his death; and the Law joynes the murderous intention of Agnes in putting the poison in­to the Electuary to kill her husband with the event, which insued 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, stirres it, drinks it, and dies, this is murder in A. It is otherwise where Rats-bane is layd with an in­tention to kill rats, and one takes it, eats it and dies; for there was no felonious intent, &c.

Co. l. 9. 85. a. Connyes case.39 Vpon grant of a Mannor; An Infant shal do his services, &c. attornement of an infant (being tenant of the same Mannor) 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, performe services, pay a yearely rent, &c. and the tenant is in Law called tenant paravaile, because the Law presumes that he hath benefit and availe above the services which he doth, and the rent which he payes to the Lord: And therefore it is against the reason and purpose of the creation of the tenure, that, when the heire hath the tenancy paravaile by descent, he should not pay the annual rent, &c. which was reserved upon the Creation of the tenancy: And this is the reason, that the heire of the tenant, who hath the tenancy by descent, may be distreined for the rent, &c. arrere during the minority, and shall not therefore have his age, &c.

Co. l. 9. 113. a. Maryes case.40 For every féeding of the Cattle of a stranger upon a Common, Trespass for common, & contrà. the Commoner shall not have an Assise, nor action upon the case (as his case lies) but the depasturing ought to be such, per quòd le Commoner, &c. Common de pasture, &c. for his Cattle, &c. habere non potuit, sed proficium [Page 49] suuminde per totum idem tempus amisit, &c. So that if the trespasse be so little that he hath not any losse, but that still sufficient remaines for him to depasture his cattle: In that case the Commonor shall not take the Strangers Cattle damage fesant, neither shall he have any acti­on for it: but the tenant of the soile 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 servants 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, &c. amisit; So that the original Act is not the cause of his action, but the consequent upon it, viz. the losse 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. possest of a Lease for the terme of 500 yeares demiseth the terme to B. for life, the remainder to C. and the heires of his body, and makes B. his executor, and dies, and after B. is possest of the Lease, C. releaseth to B. all his right in the terme; 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 onely a possibility, the whole estate and terme of yeeres being in B. so that after the death of B, C. might enter upon the Lease againe 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 meane 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 onely a possibility, Fulwoods case. Co. l. 4. 66. b. but like­wise such an interest as might well be released, &c. But in that case a grant by C. to a Stranger had béen 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 stéere 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, &c. according to their owne wisedomes and discretions, &c. which words are meant and ought to be interpreted, according to Law and Justice, For every Iudge 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 joynt.43 In a Léet, a fine of 6 li. put upon all the Iurors joyntly, Co. l. 11. 42. b. Godfreyes case. by the Steward, (because they would not present a thing, which by the custome of the Mannor they ought to present) is not duly imposed, but ought to have béen 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 readie to present, onely those that refuse are to be fined, &c.

Damage fea­sant.44 If a man take beasts damage fesant, Fitz. 69. g. and the other offers suffi­cient [Page 50] amends, and he refuseth, &c. Here if he sue a replevin, &c. for the Beasts, he shall recover damages onely for the detinue of them, and not for their taking; for that the cause of taking them was lawfull.

Fitz. 79. h.45 The Peace ought no 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 feare, &c. of some corporal damage, and did not take that oath for malice against his adversary: the like ought to be observed by the Iu­stices of the Kings-Bench, and of Peace.

Fitz. 95. d.46 If a man winne anothers 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 Plaintife to play, yet it séemes he may well maintaine 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, &c. by which he wonne the mo­ney, &c.

Fitz. 104. l.47 If a man acknowledge a Statute Staple, Dures. or Statute Merchant by dures, &c. 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 seale a bond, Dures, or o­ther compulsi­on. he shall avoid it: So if a mans arme be drawne by compulsion, and by that oc­casion the weapon in his hand kills another, that is not felony; Likewise if an infant under the yeares 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 Rede. Plowd. 26. b. 4. Colthrist, and Bivishams.49 If one retaine another to serve a yeare for 20 s. wages; here, Wages for a years service. if the servant demand the 20 s. he ought to shew that the time is past, viz. that the yeare is expired, and he ought to plead certain, because his action is given in respect of the yeare 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 principall 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 despaire of defending himselfe, 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 Crowne 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 bare 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, joynes himselfe with others, that commit a murder, for that is but Man-slaughter in him, that so suddenly joynes with them.

44 E. 3. 14. b. 14 Ass. Pl. 20. Finch 10.52 A man makes me sweare to bring him money to such a place, Terrour. 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 [Page 51] in both, yet the force of the Outlawry shall be estéemed according to the heinousness of the offence, which is the principal cause and foun­dation of the processe.

Villenage.55 A man and a feme sole have a villein, Finch 10. and afterwards enter-mar­ry, and the villeine purchaseth land, they shall not have the land by en­tierties, but by moities Ioyntly or in Common, as they had the vil­lein.

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 rent charge be granted to A. and B. and their heires, Co. Inst. pars 1; 146. a. 1. A. di­streineth the Beasts of the Grantor, who sueth a Replevin, A. a­voweth for himselfe 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 joyn-tenant 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 méerly per­sonal or méerely real from the beginning: 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of accompt, or an action of debt at his pleasure, and he bringeth in an action of accompt, and appeares to it, and after is non-suit; yet may he have an action of debt afterwards because both actions charge the person: The like Law is of an Assise, or of a writ of Entry in the nature of an Assise, 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 accompt against a receivour upon a receipt of mo­ney by the hand of another person for accompt render (unlesse 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 lyeth not in privity betwixt the Plaintife and Defendant, but in the notice of a third person, and such a receipt is traversable: 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11, &c. But in an action of debt upon an arbitrament, and in an action of Detinue by the bail­ment of anothers 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 heires 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 taile, and after disseiseth the discontinuée, and so dies seised; 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 intaile to the one moity, and the other hath Fée 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 recompence shall ensue the losse.

[Page 52] Co. ibid. 201. b. 3.61 He that will take advantage of a re-entry 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 Assise for the rent 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 onely charged with the rent in respect of the grant out of the land, &c. 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 séek 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, &c.

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 Frank-marriage, 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 trespasse or debt upon an obligation, Capias pro fine (where he denies his déed) at the suit of the partie, and after he that is condemned is taken by Capias pro fine at the suit of the King, and committed to the Gaole; 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 yeare 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 Kings fine: It is otherwise after the yeare, because it will be intended they are a­gréed, and then the party is put to his Scire facias, &c.

Co. Inst. pars 1 245. b. 2.65 If a Bastard eigne after the deceease of the father entreth, Bastard Mu [...] and the King seiseth 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 seisure was without cause; In this case, the Mulier is barred for ever; for the possession of the King, when he hath no cause of seisure, shall be adjudged the possession of him, for whose cause he seised: But if after the death of the father the Mulier be found heire and within age, and the King seiseth; 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 seisure, and consequently the Bastard eigne is in such case fore-inclosed of any right for ever: So it is likewise, when the King seiseth 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 seisure was without cause, the Mulier is not barred, for the Bastard could never enter, and con­sequently could gaine 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 sei­sure.

Dyer 100. a. 70 1 Mar.66 If the King grant land by Charter probis hominibus villae de Is­lington, rendring rent, Kings Chanc [...] this is a good and perpetual Corporation for that intent, but if the King release or give them the rent and fée-farme, [Page 53] it séemes the Corporation is ipso facto dissolved, for the rent and farme were the cause of their incorporation.

A proviso im­ports a condi­tion.1 A. bargaines and sels the Mannors of D. (unto which an Ad­vowson was appendant) with the appurtenances unto B. and his heires, provided alwayes, Co. l. 2. 71. b. 2 The Lord Cromwels 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 onely covenant with the Bargainée, and therefore the Bargainée should also be understood onely to Covenant with the Bargainor, and so that Proviso onely 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, &c.

Feofment to the use of a Will.2 If a man seised of lands in fée 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 seised of a qualified fée, 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 seised to the use of himselfe and his heires.

Legiantia na­turalis & ac­quisita.3 Legiantia naturalis may be properly said to be pura & indefinita, Co. l. 7. 5. b. 4. Calvins case. but Legiantia acquisita, may be limited according to the will of the King that grants it, as to an alien and his heires, or to him and the heires of his body, or to him for life onely, or upon Condition, &c. for Cujus est dare, &c.

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. [...]1. and if C. die, living B. that then they shall remaine 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 wordly 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 forme 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 Egge, or 12 d. rent, Here the Lord shall not come to the land and take a Capon, and Egge, or 12 d. being arrere, although he find it there, but the onely remedie is to distrein for it; Howbeit in that case if the Tenant have 20 Capons, 20 egges, 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, &c. by assignment.6 The Lessor covenants, Dyer 19. 115 [...] 28 H. 8. that the Lessée shall have sufficient Hedge­boot, &c. by the assignement of the Lessors Bailiffe: Here, it was said (by Baldwin and Fitzherbert) that the Lessée might take such [Page 54] boots by the Common Law, and therefore that he might take them without assignement, because it is no more than what the Law gives the Lessée priviledge to do: but Shelley contrà, because it being in the Lessors power to grant the lease upon what termes he pleased, the Lessée shall be bound by it, albeit the covenant be in the Affirmative and onely 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 termes. 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 Bassets case 3, 4. P. M. the uses of a Recovery were by the In­dentures declared four yeares after the Recovery, and held good e­nough; for Cujus est dare, &c.

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 remedie by actionis given, is not to be estéemed 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 remedie, is not Assets, untill he hath gained seisin; for, want of right & want of remedie are in the same equipage: and therefore a man shall not be remitted to a Right, that is remedilesse, as appeares in the Marquesse of Winchesters 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 taile was not Assets; because it lay in the Will of the Tenant in Taile to docke and barre it at his pleasure, and the Reversioner had no power to prevent it.

Co. l. 7, 8. a. 3. The Earle of Bedfords case.2 In the Earle of Bedfords case in the 7 Report, Voidable Lea­ses made good by acceptance, it is otherwise of void things ab initio. when voydable Leases, being void for a time, shall be alwayes 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 terme; So that it appeares there remaines yet a residue, and when he, that makes the avoidance, avoides all the interest, so that it ap­peares no residue can remaine: 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 heire under age; Here, the King in right of the heir may avoid those Leases du­ring his time onely; for, after the interest is determined, the heire may make them good againe 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 againe 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 yeares rendring rent, 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, &c.

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 terme of life or yeares, An exception of great tim­ber, Mines, &c. void. if the Lessée grant unto another all his interest in the land cum omnibus profic. &c. (except & semper reservat, sibi & haeredibus suis toto benefic. & profic. Miner [Page 55] Angl. Cole mines praedict. parcel terrae ac omnibus arboribus Maerearii, &c. This exception is void, for by the exception of the profits of the Mine or of the Mine it selfe the land is not excepted, and then (by conse­quent) he hath excepted that, which he cannot have or take: As if a man assigne over his terme, except the Timber-trées growing upon the land, or the marle, 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 entry4 If the Baron within age make feofment in fée of his Wives land, and dies, his heire shall not enter to avoide this feofment, 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 heire: And therefore if an infant being tenant in taile make feofment in fée, and die without issue, his collateral heire cannot en­ter to avoide that feoffment; for although by his feoffment he grant­ed Fée simple, yet, when he died without issue, nothing descended to the heire, in respect of which he might enter: So also if lands be given to one and the heires female of his body, and he hath issue a sonne, and makes feofment in fée, and dies within age without issue female, the sonne shall not enter for the said infancy, because no right in that case descended unto him: So likewise if an infant be tenant pur auter vie, and make feofment in fée, Cestuy quae vie, die, neither the infant nor his heire shall ever enter upon the feoffée, but he in the reversion or remainder, &c.

Discontinu­ance.5 An estate taile cannot be discontinued, but where he, Co. Inst. pars 1 338. b. 4. that made the discontinuance, was once seised by force of the taile (except it be by reason of warranty, &c.) 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 Fée simple of his Parsonage; because the intire fée 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 fée, Pl. Com. 35. 2. this re­mainder is voide, because the rent was newly created by the grant, and not in esse before. In Colth. and Bivishams case.

Rent not ex­tinct.7 A man makes a Lease for terme of life, Dyer 31. a. 210 and afterwards the Lessor makes a Lease of the same land for 20 yeares, rendring rent, the terme to begin after the death of Lessée for life, afterwards Lessée for life grants his estate to the Lessor, who during the life of the tenant for life makes feofment to a stranger in fée, who suffers a recovery, and Lessée for life dies, and for the rent avowry was made by the recoverors, and the question was whether or no the rent was extinct by the feofment, and the better opinion séemes to be, that it was not extinct, because it was not in esse at the time of the feofment made.

Abbot, &c. dis­claim, barre to the successor.8 If an Abbot, Prior, Bishop, Co. Inst. pars 1 103. a. 1. or other sole Corporation levie a Fine or acknowledge the Action in a Praecipe quòd reddat, the Succes­sor shall be bound pro tempore, but he may have a Writ of Right, and recover the land: Howbeit in a Quo warranto at the suit of the King against an Abbot, Bishop, or, &c. for Franchises and Liberties, if the Abbot, &c. disclaime in them, this shall bind the Successor; So likewise if an Abbot, &c. acknowledge the Action in a Writ of Annui­ty, this also shall binde the Successor, because he cannot falsifie it in an higher Action. Vide suprà M. 1. case 4.

Co. Inst. pars 1 265. a. 2. Littl. § 446.1 These words which are commonly put into releases, A release be­fore interest void. viz. (quae quovis modo in futurom habere potero) are as void in Law; for no right passeth by a release but the right, which the Releasor hath at the time of the release made; And therefore if there be father and sonne, and the father be disseised, and the sonne living (the father) releaseth by his déed to the disseisor all his right, which he hath or may have in the same tenements, without clause of Warranty, &c. and after the father dieth, &c. The sonne may lawfully enter upon the possession of the dissessor; because he had no right at all at the time of the release made, all the right being then in the father; and therefore in this case after the decease of the father, the sonne may enter into the land against his owne release; for, Nemo potest plus juris, &c.

Co. ibid. 275. b. 3.2 If Tenant in Fée simple being disseised by two release to one of his disseisors, Release to dis­seisors enures onely to one of them. he to whom the release is made shall hold out his Com­panion; because the right of the disseisée, and the estate gained by the dssseisor are of equal extent, viz. both in Fée simple: but if Tenant for life be disseised by two, and he release to one of them, this shall enure to them both: because Tenant for life by his release can but convey unto them his own estate: and by consequent he, to whom the release is made, hath a longer estate than he that releaseth, and therefore such a release cannot enure to him alone, to hold out his companion; For then should the release averre by way of entry or grant of his estate, and consequently the disseisor, to whom the re­lease is made, should become Tenant for life and the reversion re­vested in the Lessor, which strange transmutation and change of e­states in this case the Law will not suffer.

Co. ibid. 276. a. 3.3 If two Ioyn-tenants in Fée simple be disseised by two, By Joyn te­nants good onely to one. and one of the disseisées releaseth to one of the disseisors all his right, he shall not hold out his companion; because he had but power to release a moity.

Co. ibid. 309. b. 2.4 If the Conisée of a fine before any attornment, No distress. by déed indent­ed and inrolled, bargaineth and selleth the Seigniory to another; here the Bargainée shall not distreine, because the Bargainor could not do it.

Co. ibid. 314. a. 3. Littl. § 562.5 If there be Lord and Tenant, A Seigniory suspended. and the Tenant make a Lease to a man for terme of his life, saving the reversion to himselfe, and the Lord grant the Seigniory to the Tenant for life in fée, and lie in the reversion attorne, as he ought, &c. In this case, some think, that the Tenant for life cannot grant the Seigniory over, because he took it suspended, 5 E. 3. Twongs case. and it was never In esse in him: but if the tenant make a Lease for life for or years to the Lord, there the Lord may grant it over, because the Seigniory was In esse in him, and the Fée simple of the Seigniory was not suspended; but if the Lord disseise the Te­nant, or the Tenant enfeoffe the Lord upon Condition, there the whole estate in the Seigniory is suspended; and therefore in that case he cannot during the Suspension grant over his Seig­niory.

Littl. § 619. Addition, but approved for law, per Cooke. Co. Inst. pars 1 332. b. 4.6 If Tenant in taile let this land to another for yeares, No discon [...] ­nuance. and after grants the reversion to a third person in fée, and the Tenant for yeares attornes to the Grantée, and the terme is expired du­ring the life of the Tenant in tail, whereupon the Grantée enters, and after the Tenant in taile hath issue and des; In this case, this [Page 57] grant of the reversion makes no discontinuance, Co. Inst. pars 1 332. b. 4. notwithstand­ing the grant is executed in the life of the Tenant in taile; be­cause at the time of the Lease made for terme of yeares, no new Fée simple was reversed in the Lessor, but onely the reversion of the estate taile remained in him, in like sort as it did before the Lease made.

Joyn-tenants grant moities.7 If there be two Ioyn-tenants, Co. ibid. 337. b. 1. and the one is of full age and the other within age, and both they make a feofment in fée, and he of full age dieth, Here, the infant shall not enter into the whole, but shall enter or have a dum fuit infra aetatem for the moity onely; because no more could passe from him by the feofment.

An estray.8 If an estray happen within the Mannor of the wife, 43 E. 3. 8, 10. H. 6. 11. 39. 8. 5. 17. Co. ibid. 381. b. 2. if the husband bie before seisure, the wife upon seisure shall have it and not the ex­ecutors, because the property could not be in the husband before sei­sure, and therefore the executors could derive to themselves no title in it from the husband.

The heir not bound to war­ranty.9 The heire shall never be bound to any expresse warranty, Littl. § 734. Co. ibid. 385. b. 3. but where the Ancestor was bound by the same warranty; for if the An­cestor were not bound, it cannot descend upon the heire: And there­fore if Tenant in taile seised of divisable lands, alien them in fée to his brother, who afterwards deviseth the same lands to another with warranty against him and his heires, and dies without issue; This warranty shall not barre the heire in taile of his Formedon; because this warranty did not descend to the issue in taile, for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time, neither yet could he warrant the Lands in his life time, in as much as the devise could not take effect till after his death: And now because the Vncle in his life time was not bound to warranty, such warranty cannot descend from him to the issue in tail, &c. For nothing can descend from an Ancestor to his heire; but that, which was first in the Ancestor: So likewise if a man make feoffment in fée, and bind his heires to Warranty, this is void, as to the heir; because the Ancestor himself was not bound, &c.

Tenant in tail cannot grant any remainder of estate.10 He in the remainde in taile bargains and sels his land, Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease. and all his estate, &c. by indenture inrolled, &c. to I. S and his heirs male, &c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. &c. Here, the remainder to the Queen is void; for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen; because a remainder is but a remnant of the estate of the Grantor, and the Queen cannot have any such rem­nant of estate, when he had granted away all his estate before to to I. S. And therefore it was agréed Hill. 35. El. in Blithemans case, that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life, and after his death to the use of his eldest sonne in taile, and after this Covenant, the Covenantor takes feme and dies, in this case, the feme shall be en­dowed; for when tenant in taile hath limited the use to himselfe for his own life, he cannot limit any remainder over, because an e­state for his own life is as long, as he himselfe can limit by the Law, and therefore the limitation of the remainder is void, and by consequent the Dower good, &c.

Entty taken a­way from issue in tail.11 The Baron seised to the use of himself and his wife for life, Co. l. 3. 61. a. 3. Lincolne Col­ledge case. and the heires of the body of the Baron dies; the issue in the life of the feme, then Tenant of the Frank-tenement (for so the pleading was) which shall be intended by disseisin, for no surrender or forfei­ture was alleadged, 4 H. 8. suffers a common rocovery with single voucher, by agréement, that the recoverors shall enfeoffe Litster and [Page 58] others to divers uses, and that the feme shall release to them with Warranty, which was done accordingly: 11 H. 8. the feme dies, af­ter that the issue dies, and afterwards his issue in the third degrée en­ters; The question was, whether the collaterall warranty shall bind for the recovery came not in question, because by the pleading it shall be intended, that the issue was seised by another Title then the intaile, and so the single voucher not material) or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved, that the warranty shall bind the Demandant, and was not void by that Statute; because when the first issue, by the common recovery (had against him by his own agréement) had disabled himselfe to take benefit of the forfeiture given by the Statute, after his death another issue claiming from him shall not take benefit of it; for if the Ancestor, being in esse at the time of the forfeiture, could not en­ter, much lesse shall any person, which was not in rerum natura, nor had the immediate interest, Title, or Inheritance at the time of the forfeiture, ever enter or take benefit of that Act: And although there was error in the recovery, yet the Warranty of the feme shall barre the first issue of his writ of Error, because by his own act he hath bar­red himselfe of the entry, which the Statute prescribes; and the like in effect was adjudged in Sir Geo. Brownes case, Co. ibid. 51. b. [...] where the issue in tail in the life of his mother, having the reversion in fée, levies a fine without proclamations; for there the issue against his own fine could not enter, although it was erroneous.

Copihod Cu­stome.12 Custome hath so established and fixed the estate of the Copi­holder, Co. l. 4. 24. b. 1. Murrel and Smiths case. that by the Severance of the Inheritance of the Copihold from the Mannor, the Copihold is not destroyed; for in as much as the Lord himselfe cannot out the Copiholder, no more shall any claiming under him have power to do it; because, Nemo potest plus juris, &c.

A release by bail not good.13 In debt Marshall was baile for the Defendant, Co. l. 5. 70. b. Hoes case. Co. Inst. pars 1 265. b. 2. and before Iudgement, the Plaintife releaseth to Marshall all actions, duties and demands, and after judgement was given against the Defendant, upon whose default Scire facias issued out against Marshall, who pleads the said general release: but it was adjudged, that the release was not effectual to barre the Plaintife, because the words of the baile being conditional, viz. Si contigit Defend, &c. non solvere, &c. there cannot be by the baile any present and certaine duty, before judgement given; for before that, it cannot be known to what summe the debt and dama­ges will amount; neither is he, that bailes, at first bound in any certaine summe, but his recognisance being general, it shall be redu­ced to a certainty by the Iudgement.

A release not good.14 In Trin. 4. El. Rot. 1207. in Com. Banco, Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a re­lease of all actions, suits. and quarrels a covenant before the breaking of it is not released; because there is not any cause of action, nor any certaine duty before the breaking of it, &c.

Payment of rent by a ter­mor no seisin.15 A. deviseth rent to B. for life out of the Mannor of D. and devi­seth the Mannor it selfe to C. for yeares, Co. l. 6. 57. a. 4. Bredimans Case. C. enters and payes the rent during the term; but after the term the Terre-tenant refuseth to pay the rent, whereupon B. brings an Assise: And in this case it was adjudg­ed by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the Terre-tenant after the terme 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, &c. And for the same reason a Praecipe lieth not against a Termor, because he cannot render seisin.

16 The Testator possest of a Mill for 50 yeares deviseth it to M.M. [Page 59] after the death of his wife, Acceptance a good barre. Co. l. 8. 96. a. 1. Mannings case who in the meane 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 payes 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 barre him, that was to have the future devise; for she could not transferre more to another, then she had her selfe; 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, &c.

Remainder in tail of a lease, cannot grant it.17 If A. possest of a terme for 500 yeares 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 heires of his body; in this case C. du­ring the life of B. cannot grant the remainder to another; because the whole terme 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 Terre-tenant 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 Popes 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 sonne to the disseisor of the father in the life of the father is utterly void; because the sonne hath no right at all in the life of his father. Vide supra 1.

A joyn-tenant can grant but his moity.19 Albeit Ioyn-tenants are (by Littleton) said to be seised per my & per tout, yet can they not singly dispose of more, then the part, Co. Inst. pars 1 186. a. 2. Littl. § 288. that belongs unto them, as to enfeoffe, give, or demise, or to forfeit or lose by default in a Praecipe: So likewise if my villein and another purchase lands to them two and their heires, I can but enter into the moity; And where all the Ioyn-tenants joyn in a feofment, every of them in Iudgement of Law doth give but his respective part: So if an Alien and a Subject purchase lands joyntly, the King upon office found shall have but a moity.

The like.20 If two Ioyn-tenants make a feofment in fée upon Condition, Co. Inst. pars 1. Ibid. 3. Plowd. Brown­ings case. and that for breach thereof one of them shall enter into the whole, yet he shall enter but into a moity, 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, &c. Likewise, if two Ioyn-tenants make a feofment in fée, and one of the Feoffors dies, the Feoffée cannot plead a feofment 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 rent charge issuing out of his land to another for terme of his life, and after he confirmes his estate in the said rent, Littl. § 548. Co. Inst. pars 1 308. a. 3. to have and to hold to him in Fée taile or in Fée simple, this confir­mation is void, as to enlarge his estate; because he, that confirmes, had not any reversion in the rent.

Confirmation by Patron and Ordinary.22 If the Parson of a Church charge the Glebe by his déed, Littl. § 528. Co. Inst. pars 1 300. b. 3. and after the Patron and Ordinary confirme the same grant; in this case, if the Patron be Tenant in Fée simple, the grant is good; but if he hath the Advowson onely for life or in taile, 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 con­firme alone, but the Deane and Chapter must confirme also; For the Advowson or Patronage is parcel of the possession of the Bisho­prick, &c.

[Page 60] 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 rent charge out of the Glebe, this is not good to make the rent charge, perpetual without the assent of the Patron of A. &c.

Co. ibid. 266. a. 3.24 If the Donée in taile discontinue in fée, Release by Dower to the discontinuee. and the Donor release to the Discontinuée and die, and after the issue in taile doth recover the land against the Discontinuée; In this case, the issue in taile shall leave the reversion in the Discontinuée; for the issue in taile can recover but the estate taile onely, which descended unto him from his Father, and the Donor cannot have the reversion againe against his own grant, and therefore (by consequent) it shall be left in the Dis­continuée, &c.

Co. ibid. 8. a. 2, 3.25 If an Alien cometh into England and hath issue two sonnes, Betwixt Bro­thers no inhe­ritable bloud. these two sonnes are indigenae Subjects borne; because they are borne within the Realme: Howbeit, if one of them purchase lands in fée, and dieth without issue, his brother shall not be his heire; for there was never any inheritable bloud betwéen the father and them, and where the sonnes can by no possibility be heire to the father, the one of them shall not be heire to the other: And therefore some have holden, that if a man, after he be attainted of Treason, or Felony, have issue two sonnes, that the one of them cannot be heire to the o­ther; because they could not be heire to the father, for that they never had any inheritable bloud in them, &c.

Co. Inst. pars 1 a. 3.26 If Lesse for life make a Déed of feofment, 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 Frank-tenement in him, whereup­on the Livery might work; but if Lessée for yeares make a feoffment in fée, 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 seised of devisable land before the Statute of Uses, Rent devisa­ble. makes a Lease for yeares rendring rent, and deviseth that rent to a stran­ger and dies, and the stranger is seised of the rent and dies; In this case, the executors, and not the heire 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 trées 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 trespasse lyeth for the Lessée against him: So likewise in 5 H. 4. 59. the heire in Chivalry being in ward, fells trées in the land in ward, and the Guardian brings trespasse against him; and he pleads the special matter in barre. Sed non allocatnr per curiam, &c.

Priviledge of tenant by the courtesie.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 priviledges 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 priviledges you may see, Co. In. part 1. 28. a. 2.

The like.2 If a woman Tenant in taile 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 Curtesie; because he was intitled to be Tenant per Legem Angliae at first (upon having the issue) before the estate in taile was spent: And although in this case the estate be not consummate untill 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 onely upon the husband in the life of the wife: 2 If after issue 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 feofment in fée, and the wife dieth, the feoffée shall hold it during the life of the husband, and the heire 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 feofment, was an estate of tenancy by the Curtesie initiate, and not consummate: And it is adjudged in 29 E. 3. that the Tenant by the Curtesie cannot claime by a Devise, and waive the estate of his tenancy by the Curtesie, because (saith the Book) the Fréehold commenced in him before the Devise for terme 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. &c. 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 accompteth the beginning of the forty dayes to be af­ter the King entreth into the forreigne Nation, for then the Warre beginneth, and till he come there, he and his host are said to go to­wards the Warre, 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 grosse as of his per­son, and not of any Mannor, &c. and this Seigniory 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. tenures 94. 30 H. 8. 43. 28 H. 8. B. livery 57, &c.

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 thrée daughters, and the youngest but one daughter; All those four shall inherit, but the daughter of the youngest shall have as much as the thrée daughters of the eldest, Ratione Stirpium, in respect of their mothers 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 sonnes and divers daughters, and the youngest hath issue divers daughters, the eldest sonne of the eldest daughter shall onely inherit, and all the daughters of the youngest; for this also is not in Capita, but in Stirpes; and in this case the eldest sonne is Coparce­ner [Page 62] with the daughters of the youngest, and shall have one moity, viz. his mothers part: So that men descending of daughters may be Co­parceners, as well as women, and shall joyntly implead and be implead­ed, &c. Vide 26. 2.

Littl. § 2 [...]2. Co. ibid. 178. b. 2.6 The Lands in Frank-mariage to be put into Hotchpot, Frankmariage Hotchpot. and the Lands in Fée simple which descend, ought to move from one and the same person; for if they moved from several Ancestors; they cannot be put into Hotchpot, &c.

Co. ibid. 187. a. 4. 39 H. 6. 45. 21 R. 2. judg. 63. M. 33. E. 3.7 If Lands be given to a man and a woman and their heires be­fore mariage, the husband and wife have moities betwéen them: Lands given to Batre and feme. but if it be after mariage, 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 husbands death, she shall recover the whole; as it fell out in the case of William Ocle, who was attainted for mur­thering, 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 agréement precedent ought to guide the pay­ment subsequent, and therefore in case the feoffée die, The conditio [...] of a mortgage must be per­formed. and it is a­gréed betwéen 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 heire, 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. &c.9 Littleton saith, that a descent, Descent by en­try into Reli­gion. which happens upon the disseisors entring into Religion, shall not take away the entry of the heire: 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 profest, 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 hapned; for, Cujusque rei potissima pars, principium est, And againe, Origo rei inspici debet; and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring 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 taile, 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 heire to the reversion: And therefore if the Duke of Lancaster had made a gift in taile, and the reversion descended to the King, yet was not that estate restreined by that Statute, and so of the like. Co. l. 5. 15, 16. in Wisemans case. Vide 21. 8.

33 Ass. Pl. 7.11 If a servant (departed out of his Masters service) kill his Master upon a malice that he bare him, whilest 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 fée, A. before entry or seisure of the Shop by the Kings Patentée, continueth the possession and dieth seised: This is no descent to toll the Patentées entry: For by his first e­recting of the Shop he could gaine 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, then any thing else, As in 6 E. 3. 41. if a man present to another mans Church in the time of warre, and thereupon the presentée is admit­ted, instituted, and inducted in time of peace; Here, the Law gives [Page 63] such regard to the original act, viz. the presentation, that all, which followes 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 Morgans case. Co. l. 3. 34. b. 4. Butler and Ba­kers case. and to the heires of their two bodies engendred, and the Baron alone suffers a common reco­very, this shall not bind the estate taile; 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 heires 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 begins in the sonne, and the Father during his life holds by Soccage: And è con­verso, if lands be given to a man and his heires 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 begins in the sonne.

Warranty that begins by dis­seisor, not good16 If the sonne purchaseth land, Co. l. 4 37. a. Tirringhams Case. and letteth the same to his father for terme of yeares, the father enfeoffes another in fée, and binds himselfe and his heires to warranty, the Father dies, by which the warranty descends to the sonne; this warranty shall not barre the sonne from his entry or recovery by assise, &c. because this warranty begins 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 feofment with warranty as aforesaid, &c. Such warranty shall not barre, because it begins by disseisin, &c. There is the same reason of Guardian in Knight-serice, or in Soc­cage, which make such feofment with warranty. So also if the fa­ther and sonne be Ioyn-tenants in fée, and the father make feof­ment with warranty, &c. and dies; this shall not barre the sonne of his moity, causa quae suprà.

Common ap­pendant, due of common right.17 The beginning of common appendant by the ancient Law was in this manner; 37 H. 9 34. per totam curiam. 29 H. 8. 4. when the Lord of a Mannor did enfeoffe 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 plow and compasse his land; and therefore such Common appendant is due of common right, and be­gins by operation of Law, and in favour of tillage; so that none need prescribe in it, as it is held in 4 H. 6. and 22 H. 6. as a man should, if it were against common right. And this is the reason, that it is one­ly appendant to ancient arable land Hide and Gaine, and onely for Horses, Oxen, Cowes, and Shéep, whereof the first two serve to till the land, the other to compasse it; And therefore it is against the nature of such Common to be appendant to Meadow or Pasture, and if a man will prescribe to have Common belonging to a Mease, Mea­dow and Pasture, this cannot be Common appendant, but appurte­nant; unlesse he having Common appendant belonging to land, hath of late time peradventure built an house upon it, and converted it to Meadow and Pasture for his conveniencie, and the better advance­ment of tillage, which was the original cause of the Common. For in this case the Common remaines appendant, and it shall be intend­ed in respect of the continual usage of the Common in such manner, that at the beginning all was arable; but in pleading he ought to pre­scribe to have it appendant to the land, &c.

[Page 64] Co. l. 4. 117, 118. Actons case.18 The Baroness of Monteagle in her widoow-hood reteins one Cart­mel to be her Chaplein, according to the Stat. of 21 H. 8. A Baroness may retein Chaplains in her widdow­hood. Cartmel hath the benefice of Claycotton above 8 l. per annum, the Baroness takes to husband band the Lord Compton, and afterwards Cartmel having obtained a dispensation with Confirmation, &c. is admitted, instituted, and induct­ed to the vicarage of G. Here, because Cartmel accepted of the vica­rage, when the Baronesse was covert Baron, being maried to one not under the degrée of a Baron (for in case of such mariage a Pro­viso of that Statute saves the priviledge of a Baronesse) the question was whether the first benefice was not void: And it was resolved, that Cartmel after the mariage might have a dispensation, and here­upon might have another benefice without danger of losing the first; for although a Baronesse maried to a Péere cannot during the Coverture retaine a Chaplain, yet when a Baronesse being a widdow hath retained one or two Chaplains according to the Sta­tute, this retainer is the principal matter, which at first had good beginning, and so long as the Baronesse continues a Baronesse, the Chaplains may well accept two benefices by the expresse letter of the act; for it sufficeth that at the time of the retainer the Baronesse was a widdow; because, by that the expresse words (being widdow) are satisfied.

Co. l. 6. 43. b. Blakes case.19 Eden brings a writ of Covenant against Blake for not repairing an house, Accord with satisfaction good plea. the Defendant pleads accord betwixt him and the Plain­tife, and execution of it in satisfactione, &c. decasus reparationum praedict. upon which the Plaintife demurres; Here, albeit it was objected; that this action of Covenant being founded upon the Déed, could not be discharged without matter of as high nature, viz. by Déed, and not by any accord or matter in pais; yet it was resolved per totam Curiam, that the plea of the Defendant was good: For there is a diversity, when a duty accrues by the Déed in certainty, tempore confectionis scripti, as by Covenant, Bill or Obligation to pay a summe of money; here, this certaine duty takes his essence and operation originally and onely from the writing: and therefore ought to be avoided by matter of as high nature, viz. by writing; but when no certaine duty accrues by the Déed, but a wrong or default subsequent toge­ther with the Déed do give action to recover damages, which are one­ly in the personalty, for such wrong or default accord with satisfaction is good plea.

Co. l. 7. 10. a. 1. Ʋghtreds case. Pl. Co. 32. b. 3. Colthrist and Bevisham per Hinde.20 In all cases when an interest or estate commenceth upon a Condition precedent, there the plaintife ought to shew it in his count, Conditions precedent and subsequent. and averre the performance of it; for there the interest or estate com­menceth in him by the performance of the Condition, and is not in him till the Condition be performed: It is otherwise when the inte­rest or estate passeth presently by vesting in the Grantée, and is to be defeated by matter ex post facto, or Condition subsequent; for there the Plaintife may count generally without shewing the performance of it, and the Condition or matter ex post facto shall be pleaded onely by him, Co. l. 9. 25. b. 3. In the case of the Abbot de Strata Mer­cella. 6 E. 3. 32. Jo. Darcies case. 30 H. 8. Dy. 44. 4 [...] E. 3. 32. 43 Ass. Pl. 10. 1, 2. Ph. M. Dyer 108. that will take advantage of it. Vide suprà 21. 36.

21 When the King grants any Priviledges, Liberties, Franchises shall not die. Fran­chises, &c. which were such in his own hands, as parcel of the flow­ers of his Crowne (such as are Bona & cattalla felonum, fugitivorum, utlagatorum, &c. bona & cattalla waviata, extrahur' deodanda, wreccum maris, &c. within such possessions; Here, if these come againe unto the King, they are drowned in the Crowne, and he hath them a­gaine in jure Coronae; but when a Priviledge, Libertie, Franchise, or Iurisdiction was at the first erected and created by the King, and [Page 65] was no such flower before in the Garland of the Crowne; here, by the accession of them againe to the Crown, they are not extinct, nor the appendance of them severed from the possession: As if a Faire, Market, Hundred, Léet, Parke, Warren, or the like; are ap­pendant to Mannors, or in grosse, and after they come againe to the King, they remaine (as they were before) in esse not drowned in the Crown; for at first they were created, and newly erected by the King, and were not in esse before, time and usage having made them appendant: And this diversity was agréed per totam Curiam, 11 H. 4, 5. 15 E. 4. 7. 4 E. 3. 42. 10. H. 7. 21.

A Charter to be interpreted, as the law was when it was made.22 When an ancient grant is general, obscure, or ambiguous, Co. ibid. 28. a. 3 it shall not be now interpreted, as a Charter made at this day; but it shall be construed, as the law was taken at the time, when such ancient Charter was made, and according to the ancient al­lowance upon record, 33 Hen. 6. 22. 10 Hen. 7. 13. & 14. 16 Hen. 7. 9. 12 Hen. 4. 12. 14 Hen. 6. 12. 35 Hen. 6. 54. 9 Hen. 7. 11. 6 E. 3. 54 & 55. 7 E. 3. 40. & 41. 18 E. 3. Conisance 39. 34. Ass. 14. 40. Ass. 21.

A Coparcener being outlaw­ed by the other parceners, shal hold, as be­fore.23 If there be two Coparceners, and the one disseiseth the other, 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 Assise, or if the one Coparcener recover against the other in a Nuper obiit, or a rationabili parte, it hath béen said by some, that the Iudgement 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, al dissiesi vaudra assise 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, &c. And this séemeth reasonable; for she must have her Iudgement according to her playnt, and that was of a moity, and not of any thing in severalty; and the Sheriffe cannot have any Warrant to make any partition in severalty, or by Metes, or Bounds.

Joyn-tenants shall do the like.24 If one Ioyn-tenant or Tenant in Common disseise another, Co. Inst. pars 1 187. a. 2. and the disseisée bring his Assise for the moity; in this case, though the Plaintife prayeth it, yet no Iudgement 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 béen by compulsion of Law a partition betwéen Ioyn-tenants and Tenants in Common; but that could not be; because by the Rule of Law the Plaintife must have Iudgement according to his plaint and demand, which was of a moity, and not of any thing in severalty.

Feoffor, Feof­fee, condition, diversity.25 If a man make a feofment in fée upon Condition that the Feoffée before such a day shall re-enfeoffe the Feoffor, Co. Inst. pars 1 221. b. 3. and the Feoffée take wife, entreth into Religion and is profest, or make foefment in fée, 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 re-entry; 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 feofment in fée upon Con­dition, that if the Feoffor or his heires pay a summe 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 heire, but if the heire be restored before the day, he may per­forme [Page 66] the Condition, as it was resolved in Sir Thomas Wiats case Trin. 18. Eliz. in C. B. Otherwise it is if such a disability had growne 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 remaines still in him an ayery right to have the land again: So it is also if the Feoffor enter into Religion and is profest, and be­fore the day is deraigned, he may in that case also performe the Condi­tion, causa quà suprà.

Dyer 149. 82. 3, 4 Ph. M.26 A feofment was made before the Statute of 27 H. 8. Estate to Ba­ron and Feare joyntenancy. to the use of a man and a woman unmaried, and of the heires of their two bodies, and after they intermarrie, and after mariage, the husband bargaines and sells the whole land in fée to one of the Feoffées, and dies with­out issue, and after the Statute of 27 H. 8. is made, the feme claimes the whole by the survivour, as Tenant in taile after possibility, &c. And per Curiam, without argument, she shall have but a moitie; because the Baron and Feme had at first moities as Ioyn-te­nants, by reason of the Ioyn-tenancie made before marriage, &c.

Co. Inst. pars 1 162. b. 2.1 If there be Lord and Tenant, and the rent is behind, Executors shal not recover [...] ­reares. and the Lord grant away his Seigniory and dieth, the executors shall have no remedie for these arrearages; because the Grantor himselfe had no remedie for them, when he died in respect of his grant; And the words of the Statute of 32 H. 8. 37. (which gives remedie for the recovery of arrearages of rent) are these (in like manner as the Testa­tor might or ought 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 thrée daughters, and the youngest onely one daughter; here, all these shall inherit, but the thrée daughters of the eldest shall have no more, than the daughter of the youngest, viz. a moity; because they can enjoy no more, than she was to have, through whom they claime, and that is but a moity, &c. Vide suprà 25. 5.

Littl. § 435.3 The Attorney of one that is disseised cannot make claime off from the land, if the disseisée himselfe durst have gone to the land. The Attorney cānot do more then his Ma­ster. Finch 11.

Littl. § 583. Co. ibid. 321. b. 1. Sir Moile Fin­ches case. Co. 6. 68. b. 3.4 If there be Lord and Tenant, and the Lord grants his Seigni­ory by fine to another in fée; here, A fine of a Seigniory not good without attornment, without attornment nothing pas­seth; And therefore in this case if the Conisée die before attornment, his heire shall not have it; for the heire 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 bargaine and sell the Seigniory by Déed indented and enrolled, the Bargainée shall not, distrein; because the Bargainor, from whom the Seigniory moved had never actual possession.

28 Ass. Pl. 4.5 The Bailiffe of a Disseisor shall not say, The Bailiff shall not say more then his Master. that the Plaintiffe ne­ver had any thing in the land; for the Master himselfe 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 himselfe be a stran­ger to it; for he shall not be in better condition than he, in whose right he claimeth. Finch 11.

[Page 67] Tenant in tail in remain­der cannot fal­sifie a recovery7 A. is Tenant in taile, remainder to B. in taile, Co. lib. 1. 62. Caples case. B. grants a rent charge, A. suffers a common recovery, and dies without issue; Here, the Grantée of the rent shall not have it; because he cannot falsifie the recovery, being suffered by one that could not be chargable with the rent; for if B. in the remainder cannot do it, may lesse the Gran­tée, that claimes under B.

An Infant not remitted.8 If a man by Covin disseise the Discontinuée of Tenant in taile with an intent to enfeoffe the issue in taile, 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, &c. 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 Copihold a firm estate.9 Custome hath so established and fixed the estate of the Copihold­er, Co. l. 4. 24. b. Murrel and Smiths case. that by the severance of the inheritance of the Copihold from the Mannor the Copihold it selfe is not destroyed; For, in as much as the Lord himselfe cannot out the Copiholder, much lesse shall he, that claimes under him do it.

Executors shal lose arrerages.10 If the sonne be Lord and the father Tenant by certaine rent, Co. l. 4. 49. a. Ognels case. the rent is arreare, the Tenant dies and the tenancie descends to the sonne; in this case if the sonne also dies, the executors of the sonne shall not have an action of debt for the arrearages incurred in the sonnes life; because the sonne himselfe 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 rent service or rent charge in fée, 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, &c. in as large and ample manner as the said Testator might or ought to have recovered them, &c.

Waste in a Cole-mine.12 A. demiseth a lease to B. for yeares, 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 Cole Mine not opened; Here, if B. open the Mine, it is wast; And there­fore if after the Mine is open B. assigne his terme to C. and C. taketh the benefit of the Mine, C. also committeth wast, 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 rendring rent, &c. and after the reversion is granted to B. by fine, and before attornment B. disseiseth or outs the Lessée, and enfeoffes C. the Lessée re-enters, this shall not amount to an attornment in Law, to make privity to C. and so to enable him to distraine for the rent; for he shall not be in better estate than his Feoffor was; it is otherwise, if the Les­sée had expressely attorned to the Feoffée. Co. l. 6. 68. Sir Moile Finches case.

Demise duran­te viduitale.14 If a Feme seised of lands durante viduitate, Co. 5. 116. a. Olands case. make a Lease for yeares, and the Lessée sow the land, and afterwards the Feme, that made the Lease, takes Baron; Here, the Lessée shall not have the graine; 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 then the estate lasts15 If Tenant in taile 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 taile ( against the opinion in Dyer, 33 Hen. 8. fol. 48.) [Page 68] For, Cessante statu primitivo cessat & derivativus.

Co. 8. 135. b. Sir John Ned­hams case.16 The Ordinary hath not power to give authority to another to sell the goods of the dead; Ordinary can­not sell. because he himselfe hath not any such au­thority. 9 El. Dyer 255. Co. l. 9. 39. a. Hensloes case.

Co. 9. 76. b. 2. Combes case.17 A Copiholder may surrender by Attorney; A Copihold may be surren­dred by attor­ney. but then that Attor­ney must pursue the manner and form of the surrender in all points according to the Custome, as the Copiholder himselfe 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 excéed 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 Monopolie of making Cards to Edward Darcie was adjudged void, was; because he had no skil 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 himselfe 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.

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 formed 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 re­medie 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, &c. Co. l. 8 48. a. John Webbes case.

Co. Inst. pars 1 131. a. 4. Ibid. See more authorities.2 If after a Protection is allowed by Innotescimus, A Protection must be disal­lowed by the Chancellor. the Defendant tarry in the Countrey without going to the service, for which he was re­tained, above a convenient time after he had the Protection, or o­therwise repaire from the same service, upon information thereof to the Lord Chancellor, he shall repeale the Protection in that case by a­nother Innotescimus, but a Protection shall not be avoided by a bare a­verment of the party in that case; because the record of the Protection must be avoided by matter of as high nature.

Co. Inst. pars 1 204. a. 4. 3 E. 6. Dyer 65, 66. 4 Mar. 138.3 If a man maketh a feofment in fée or for life ad faciendum or fa­ciendo, or ea intentione, or ad effectum, or ad propositum, What words make a condi­tion, and what not. that the Feoffée shall do, or shall not do such an act, none of these words make the estate of the land conditional; for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold de­fe [...]sible, which took effect by Livery (except it be in the Kings case, or in the case of a will:) But if a Lease for yeares be made with such a clause, or thus, Quod non licebat, to the Lessee, dare, vendere, vel conce­dere statum & sub poena forisfacturae, H. 40. Eliza­beth Brown & Ayers case. Plowd. Co. 142 Browning and Bestons case. Co. ibid 214. b 3. 1. ibid. per auth. this amounts to make the Lease for yeares defeasible, and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was, That a Lease for yeares was but a contract, which may begin by word, and may also by word be dissolved.

4 If a man make a gift in taile or a Lease for life upon Condition, Where an e­state shall cease upon condition, & where not. that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void, the Grantee of the reversion shall [Page 69] never take advantage of this Condition, because the estate cannot cease before an entry; but if the Lease had been but for yeares; there the Grantee might have taken advantage of the like Condition; be­cause the Lease for yeares ipso facto by the breach of the Condition without any entry was void; for a Lease for yeares may begin with­out Ceremony, and so may end without Ceremony; but an estate of Freehold can neither begin nor end without Ceremony. Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case.

Things that lie in grant not surrendred without deed.5 Rents, Advowsons, Conditions, Reversions, Remainders, Co. ibid. 338. a. 3. and all other things, that lie in grant, as they cannot be granted without Deed, so shall they not be surrendred without Deed.

6 An Obligation or other matter in writing cannot be discharged by an agreement by word. Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25.

An annuity by prescription.7 In an Annuity growing by prescription rien arrere is a good plea; for this prescription is a matter in fait: 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea, without shewing an Acquittance.

Matter plead­ed against the King.8 When a man avoides the Kings Title by as high a matter of Re­cord as the King claimeth, he may have it by way of Plea, without being driven to his Petition, though the King be intitled by double matter of Record; As one is attainted of Treason by Parliament, and an office finds his lands, whereby the King seiseth them, the par­ty may alleadge restitution by Parliament, and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case.

Power of re­vocation an­nulled by feof­ment or re­lease.7 A. by Indenture enfeoffs B. of two acres to the use of A. for life, remainder in taile to C. remainder to D. in fee, with proviso, Co. l. 1. 113. a. Albanies case. that if E. die without issue, A. by Indenture sealed, &c. in the pre­sence of 4 witnesses may alter the uses, &c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth, surrenders, re­leaseth, &c. unto B. C. and D. the said Power, Condition, Authori­ty, &c. E. dies without issue, A. by Indenture revokes the first uses, and limits new ones: And it was resolved, that A. had by the said feofment and release barred himselfe of limiting other uses; for as the Proviso and Covent aforesaid did commence by Deed, so by Deed may they be annulled and defeated, because in all cases when any thing executory is created by a Deed, the same thing by consent of all per­sons, which were parties to the creation of it, may be againe by their Deed annulled; And therefore Warranties, Recognisances, Rent-charge, Annuities, Covenants, Leases for yeares, uses at the Common Law, and the like, may by a Deed of Defeasance (with the mutual consent of all those that were parties to the creation of them) be annulled discharged and defeated; for it would be strange and unreasonable, that a thing, which is created by the act of the par­ties, shall not be againe by their act with their mutual consent dissol­ved.

Bloud no va­luable consi­deration a­gainst the Sta­tute of 13 El 5.10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case. and therefore if he that is indebted to five seve­ral persons (to each of them in 20 l.) in consideration of natural affecti­on gives all his goods to his sonne or cofin, in this case in as much as the other shall lose their due debts, &c. which are things of value, the intention of the act was, that the consideration in such case should be valuable; for equity requires, that such a gift, which shall defeat o­thers of their due debts, shall be upon as high and as good a conside­ration, as those debts are, which are so to be defeated.

A right cannot be transferred.11 By the Rule of the Common Law, a right or title, Co. l. 4. 1. a. Vernon [...] case. which a­ny hath to any Lands or Tenements of inheritance or Frank-tene­ment, [Page 70] cannot be barred by acceptance of any manner of collaterall sa­tisfaction or recompence, As if A. disseise B. Tenant for life or in fée of the Mannor of Dale, and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale, which B. accepts, yet B. may neverthelesse enter into the Mannor of Dale, or recover it in any real action; for the right of Inheritance or Frank-tenement which is supposed originally to commence by Live­ry, shall not be transferred or be extinct without some Ceremony, as first by re-entry 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. &c. And therefore it is commonly said in our Books, that accord with satisfaction, is a good Plea in personal Actions, where Damages onely are to be recovered, but not in Real Acti­ons.

Co. l. 4. 55. b. & 56. a. In the Case of the Sadlers in London. 29 Ass. 31. Pierce Parti­fields case.12 In Pierce Partifields case cited in the case of the Sadlers of Lon­don in the 4 Report, fol. 55. An office found for the King cannot be quasht 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 returnes, that the Tenant made his Will and gave them to his wife for her life, who was yet in life, and seised 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 Iudgement 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 Kings Title was found by inquest of office upon oath, the Title of the Subject ought also to appear by Record of as high nature, viz. by like inquest of office up­on oath, and not by return of the Major onely; 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 Sadlers in London.13 At the Common Law, The like. when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record, were his Title by matter of Record judicial, as attainder, &c. or ministe­rial, as office, or by conveyance of Record by assent, as fine, Déed inrolled, &c. or by matter in fact and found by office of Record upon oath, as alienation in Mortmaine, purchase by Alienée, the Kings villein, escheat by death without heire, &c. he that had right could not have any traverse, whereupon he might also have an Amoveas ma­num, but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance; Howbeit he might have his Monstrance de droit, and was not forced to his petition, when the King was intitled by matter in fact (as Villein, Mortmaine, Es­cheat, Alien, &c.) found by office, and by the same office the Title of the party did also appeare, as if a Disseisor did alien in Mortmain, or to an Alienée, or to the Kings Villeine, or did die without heire, 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 Kings Licence married the Kings Niefe, The like, and that certaine Lands descended to the same Niefe; which the Baron had aliened without the Kings leave (his wife being the Kings Niefe) to another, and for that cause the land was seised, whereupon the Alienée comes into the Chancery, and [Page 71] sheweth all the case as it was found by office; And therefore because all the truth of the case ( viz. the Niefe maried by his Licence, the descent to the Niefe after the Coverture, &c.) did appeare in the Of­fice, it was awarded, that the Baron for that cause should hold by the Curtesie, 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 heire 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, &c. who said that the land was given to I. and to his first wife the Mother of M. in taile, and that K. was his issue of another wife, and so M. sole heire; but by award of all the Iudges, all the land was seised into the Kings hand, because the entaile was not found by any Office, but onely that M. was general heire.

A Noble wo­man by mar­riage made ig­noble.16 If a Woman be noble (as Dutchesse, Countesse, Baronesse, Co. l. 4. 118. b 4 Acton. case. Co. l. 6. 53. b. 2. The Countess of Rutlands Case. &c.) by descent, although she marie under the degrée of Nobility, yet her birthright remaines; For that is annexed to her bloud, and is Character inde lebilis: But if a Woman attaine Nobility by mari­age ( viz. of a Duke, Earle, Baron, &c.) and after the death of her first husband take another under the degrée of Nobility, by this last mariage with one, that is ignoble, she hath lost the dignity, unto which she attained by her first marying 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 Kings Ecclesia­stical Law. Ordinan­ces, and Synodals provincial are still in force within this Realme, the answer is, that it is resolved and enacted by authority of Parlia­ment, That such of them as have béen allowed by general consent and custome within the Realme, and are not contrariant or repug­nant to the Lawes, Statutes and Customes of the Realme, nor to the damage or hurt of the Kings Prerogative Royal, are still in force within this Realme, as the Kings Ecclesiasticall Lawes of the fame; Now therefore as consent and custome hath allowed those Canons, &c. So no doubt by the general consent of the whole Realme, any of the same may be corrected, inlarged, 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 Earle of Rutlands case. Recovery or other assurance to certaine persons, and within a certaine time, and to certaine 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 agréed by mutual consent of the par­ties, that the assurance should be to other uses: But if any other agréement or limitation of uses be made by writing, or by any other matter as high or higher; then shall the last agréement stand; for e­very contract or agréement ought to be dissolved by matter of as high nature, as that by which such agréement was contracted; because Nihil tam conveniens, &c.

Outlawry re­versed by error upon an In­dictment.19 One Eaton was indicted in B. R. for the death of a man, Eatons case. 18 H. 7. Co. l. 5. 111. a. Foxleyes case. where­upon an exigent was awarded into the County of Lincolne, Eaton 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 [Page 72] 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 heire also.

Co. l. 8. 25. b. 4. The Princes case.21 The Charter of E. 3. The Duchy of Cornwal. ( Anno 11 Regni sui) by which lands were annexed to the Duchy of Cornwal, being past 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. &c. Henry Petoes case.22 If a man be bound in a Statute to do any collaterall Act, Writing dis­charged by writing. as to make a feofment, to render a true accompt, 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 performe such a collateral Act, it cannot in that case be altered without writing: But if a man by contract or Assumpsit (without Déed) be to deliver a horse, or to build an house, or to do a­ny other collaterall 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 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined; for, Uses and pow­ers revoked, &c. 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 alleadge a Custome a­gainst a Statute, A prescription saved. because it is matter of Record being (indéed) the highest proofe and matter of Record in Law; yet a man may pre­scribe against an Act of Parliament, when his Prescription or Cu­stome is saved or preserved by another Act of Parliament, &c.

Dyer 25. b. 160 28 H. 8.25 A man is bound by Indenture to pay a summe of money, Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe, but sheweth 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 repaire 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.

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 barre to the donor. Alienation by the Donée in taile after issue had did barre 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 Fée simple, yet [Page 73] 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. Nevils 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 barre the possibility of the Donor.

2 Tenant for life of a Carve of land, the reversion to the father in fée, reversion ex assensu patris, not good. the sonne and heire 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.

[...]imony makes the Presentati­on, &c. void.3 A Villein at this day purchaseth an Advowson in fée, Co. ibid. 120. a. 2. the Church becomes void, the Lord for 100 l. given by A. B. Clerke presents him to the Church, and his Clerke 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 onely voidable, as they were be­fore the Statute: And so it is also if any other on the behalfe 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 béen 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 entred 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.

Mariage 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 béen lawfull and should have inherited as heire to his father, &c. For, (as it was then holden) the mariage was not void, but voidable by Divorce, and after the death of either party no Divorce could have béen had: But in those dayes if a man had mari­ed a Nunne, or a Monke had maried, those mariages were holden void; the Nunne and the Monke 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. Bastardie 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 justifie to make rescous, and it shall not be adjudged dis­seisin of the rent; So it is also of a rent charge.

Livery of an estate in futu­ [...]o, void.7 If a Lease for yeares be made to begin at Michaelmass, Co. ibid. 217. a. 4. the re­mainder over to another in fée, if the Lessor make Livery of seisin be­fore Michaelmass, the Livery is void; because Livery of seisin must passe a present Frée-hold, and not in futuro; for if it should worke 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 terme of yeares, Co. ibid. 270. Littl. § 459. if the Les­sor release unto the Lessée all his right, &c. 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 onely; interesse termi­ni) at the time of the release made: It is otherwise, if the Tenant had béen 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 joyn 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 taile, reversioner, or remainder shall avoid it, and in the other case, the Licence or Confirmation of the Ordinary is not available to [Page 74] 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 rent 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 Feofment to A. with a letter of Attorney, Confirmation void. and before Livery the Disseisée confirmes the e­state of A. or the Déed made to A. this is cléerly 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 rent 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 himselfe 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 béen void; because an Attorne­ment onely, can be no disseisin of the rent; and therefore in that case the release had not good footing, nor whereon to worke.

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 Ioyntenants under age make feof­ment in fée, and one of them dies, the Survivour may enter, &c.

Littl. § 660. Co. ibid. 348.14 If Tenant in tail make feofment in fée to the issue in tail, Estate in tail not chargable. within age, by force whereof he is seised, if the Tenant in tail die, the issue is remitted; and therefore in this case, if the issue in taile, being at full age, doth in the life of the Tenant in taile, grant a rent charge issuing out of the land to a stranger, and after the Tenant in taile dies, the issue in taile shall hold the land discharg­ed.

Co. ibid. 349. a. 3.15 If the heire apparent of the Disseisée, disseise the Disseisor, A rent charge not good. and grant a rent 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 rent charge and dieth; now is the entry of the Grandfather taken away; and here, if the Grandfather dieth, the Sonne 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 Déed, 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 yeares 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 Frank-tenement cannot commence in futuro, and then the attornment, though it were after Midsummer, shall not make the reversion to passe, 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 case19 A Feme Inheretrix covenants by Indenture without the know­ledge A void sine. [Page 75] or consent of the Baron to acknowledge a Fine to certain Coni­sées and uses in the said Indenture mentioned, and afterwards the Baron covenants also by Indenture without the knowledge of the Feme to acknowledge a Fine to other Conisées and uses in that In­denture also mentioned, and afterwards the Baron and Feme, joyne in a fine to the Conisées in the Indenture of the Feme mentioned; Here, the Limitations and Declarations of Vses in both the Inden­tures are void, and the said Fine was by construction of Law to the use of the Feme and her heires, as if no use at all had béen declared, for, the Feme alone, albeit she be owner of the land, yet being sub potestate viri; cannot in respect of her Coverture without her Baron, limit the use, and on the other side, the Baron, who hath not any e­state in his own right, cannot against the good liking of the Feme limit any use; because he is not owner of the land; so that the one is not sui juris and hath the estate; and the other is sui juris, and hath not the estate; And therefore when they differ in limitation, all they do must needes be void.

A void deed, or contract.20 When a Déed hath two deliveries, Co. l. 3. 35. b. Jennings and Brags case, in Butler and Bakers case. if the person at the first de­livery had power and ability in Law to contract, but could not per­fect it, untill an impediment should be removed, before the second de­livery; in that case, the contract is good; as if the Disseisée make an Indenture purporting a Lease for yeares, and deliver it to a stranger out of the land as a scroul, and command him to enter into the land, and to deliver it upon the land as his Déed to the Lessée, which is done accordingly, this is a good Lease: But if the person at the first delivery had not power or ability in Law to make the Lease or Contract, and before the second delivery he attains, to such power, there the Lease or contract is not good; as if at the time of the first de­livery the Lessor be an Infant or Feme covert, and at the time of the second delivery they become of full age or sole, in both these cases the Déed doth not bind; because at the time of the first delivery they were not persons that had ability in Law to make a Contract.

A void joyn­ture21 If the Baron make feofment in fée to the use of himselfe for life, Co. l. 4. 2. b. 1. Vernons case. and after to the use of B. for his life, and after to the use of the Feme for life, for her Ioynture, that is not within the Statute of 27 H. 8. cap. 10. to barre the Feme of her Dower, albeit B. die, living the Baron: So also if the estate be made to A. for life, and after to the Feme for her Ioynture, neither is that within the Act, al­though A. die before the Baron; for in these and the like cases; in as much as at the time of the limitation of the estates they were out of the Act, (for that it was not then certaine, that the estate of the Feme should take effect immediately after the death of the Baron, as it ought to do by the said Act) no subsequent event can make them within the Act; For, Quod ab initio non valet, tractu temporis non con­valescet; & quae malo sunt inchoata principio, vix est ut bono peraguntur exitu.

A failer of Action.22 A. seised of the Mannor of D. in fée had communication with B. of demising the said Mannor unto him, C. gives it out, Co. l. 4. 18. Sir Gilbert Gerrards case. that he had a Lease for 90 yeares in the Mannor, whereupon B. desists from taking the Mannor by demise, and thereupon A. brings an action of slan­der against C. And it was adjudged that those words would not beare it. And in this case, though it appeared by the Defendants barre, that he had no title or interest in any such Lease, yet because the matter alleadged in the Count did not maintaine the Action, the barre could not make it good.

A grant of ti­thes not good by misnamer of the tenant.23 Q. Eliz. by Letters Patents grants to I. S. Totam illam portionem Co. l. 4. 35. 4. Bozouns case. decimarum & garbarum suarum in L. in Com. N. cum omnibus aliis decimis suis quibuscunque in L. in dicto Com. N. tunc vel nuper in occupatione [Page 76] I. C. and grants further that those Letters Patents shall be of force and effect against her selfe and her Successors, Non obstante male no­minando. vel male recitando praedict. portionem decimarum, &c. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus te­nentis sive occupatoris, &c. And all this was found by special verdict, and besides, that I. C. never had any Tithes in L. in his occupation; and thereupon one question was, whether the defect of mistaking? the Farmer was not supplyed by the non obstante; and it was resolved, that it was not; Because when the words of the grant are not suffi­cient ex vi termini to passe the thing granted, but the grant is utterly void, there a non obstante cannot make the grant good; for when the Queen grants Totam illam portionem, &c. nuper in tenura I. C. here the addition of I. C. is of the substance of the grant, and in as much as I. C. never had the portion in his occupation, the grant must néeds be void ex vi termini, and therefore the non obstante, cannot make it good.

Co. l. 4. 62. b. 4. Herlakendens Case.24 If I let my land for life, and after give the trées, A void grant of trees. and after the Lessée dies, yet the Donée cannot take them; because at the time of the grant, the Lessée had the property in them, as annext to the land. 21 H. 6. 46. d. per totam Curiam.

Co. l. 4. 90. a. 3. Druries case. Stat. 21. H. 8. 13.25 If a Countesse (that by the Statute may retaine two Chap­lains capable of dispensations to enjoy two benefices) doth first re­taine two, and after a third, Reteiner of a Chaplain void. the two first are onely capable of dispen­sations; for they onely are her Chaplains according to the Statute, and the other at the Common Law; And therefore in this case, if the two first die, yet is not the other capable of a dispensation; because at the time of his retainer he was not capable; for he ought to be newly retained again to make him capable thereof: So likewise if the Son and heir apparent of a Baron retein 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. Adams and Lamberts case. H. 6. & 7. E. 6. Dyer 81.26 Pope Urbane at the request of Ralph Baron of Greystock, A void found­ation of a Col­ledge. founded a Colledge of a Master and six Priests to be resident at Greystock, and assignes 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 Iustices, that this reputative Colledge was not given to the King by the said Act, because it had no lawfull beginning, nor so much as the countenance of a lawfull beginning; for the Pope cannot found or incorporate a Colledge within this Realme, nor assigne or give Licence to assigne any temporal livings unto it; but it ought to be done by the King himselfe, and by no other.

Co. l. 5. 42. Codwels case.27 In appeal of Mayhem betwixt John Codwel Plaintife, A void Panel. and Thomas Parker Defendant, the parties descend to issue, and the Iury finds for the Plaintife, and now it was moved in arrest of Iudge­ment, that there was variance betwixt the Panel of the Venire faci­as and the Distringas, and Postea, in the name of one of the Iury, 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 Iuror in the Ve­nire facias was mistaken, the Iudgement was arrested: But if he had béen well named in the Panel upon the Venire, and misnamed in the Distringas or Postea, upon examination it might have béen a­mended: [Page 77] because the Venire facias, and Panel are the beginning and ground of the other subsequent Processe.

A void Presen­tation.28 D. was seised of a Mannor, Co. l. 6. 50. a. 4. Boswels case. 16 E. 3. Tit. Quare impedit 67. Adams case. unto which an Advowson was ap­pendant, and dies, the Mannor descends to E. an Infant, the Church becomes void; A. presents during the nonage of E. who at full age en­feoffes F. of the Mannor, and after the Church becomes void againe, and F. presents, whereupon the Assignée of A. brings a Quare impe­dit; And it was adjudged, that by the feofment of E. when he had at­tained his full age, the Mannor 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 one­ly 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 gaine it afterwards by an usurpation.

A void grant of the Office of the Audi­tors of the Court of Wards.29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum, Co. l. 11. 4. a. 4. Auditor Curles Case. &c. habend. dictis Waltero & Willielmo & alteri eorum conjunctim & divisim pro termino vitarum suarum & eorum alterius diutiùs viventis, &c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle, grants the Reversi­on of the said Office to John Church-hill and John Tooke: 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 Iudicial 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 Curle one of the first Grantees, and John Church-hill one of the last Grantees happen to die, yet shall not John Tooke enjoy the Office by vertue of King James his grant; because, quod ab initio non valet, &c.

A void grant of a Surveyor­ship. [...]0 John Bishop of Sarum grants the office of Surveyour of the Mannor 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 onely 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, &c.) 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, &c.

A void grant to a Colledge.31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void, Co. l. 11. 7 [...]. a. 4. Magdalen Colledge 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 meanes be made good, which was meerly 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 inrolled, 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 Vaughans case. So likewise if a man seised of land in fee, had granted the land after his [Page 78] death, Co. l. 11. 78. a. 3 The same case to the Queen her heires 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 Abbesse of Sions case, and the Earle of Leicesters case Plow. 400, &c. Quae malo sunt inchoata, &c. A void pre­sentment.

Fitz. 35 f. 6.32 A presentment made by a stranger to an Advowson, which is appropriate to an Abbey, is void, be the presentment in the Abbots time or during the vacation; and albeit the Clerke be afterwards ad­mitted, instituted, and inducted, yet that cannot make the presentment, which was void at first, to take effect; For, Quod initio non valet, &c. It is otherwise if the Abbot himselfe present, &c.

Co. l. 1. 15. b. 3. Sir William Pelhams case.33 A tenant for life (remainder in tail, remainder in fée) bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recove­ry, and forfei­ture by tenant for life. and before the Statute of 14 El. cap. 8. suffered a recovery, wherein A, was vouched, and vouched over, &c. and after Iudgement was en­tred and execution sued upon that recovery; yet was the entry of the tenant in tail adjudged congeable; for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfei­ture, it could not afterwards be salved by entring Iudgement and suing execution thereupon.

Co. Inst. pars 1. 46. a. 4.34 If the Patron grant the next avoydance, and after Parson, A void grant of Glebe. Pa­tron, and Ordinary before the Statute, had made a lease of the Glebe for yeares, and after the Parson dieth, and the grantée of the next avoy­dance had presented a Clerk to the Church, who is admitted insti­tuted, and inducted, and dieth within the terme, the Patron presents a new Clerk, who is also admitted; instituted, and inducted; here albe­it, he commeth in under the Patron, that was party to the Lease, and was Admitted, Instituted, and Inducted; yet because the Lease had no good beginning, but was avoided by the Grantees Incumbent, who had the whole estate in him, it shall not be againe revived; but shall be extinct for ever, and shall not be maintained against the last Incumbent,

Co. Inst. pars 1 31. b. 4.35 If a man be Tenant in general taile, The last feme not endowed. and take a wife and hath issue by her, and she dies, and after he taketh another wife and dies, the last wife shall be endowed; because she may have issue, which by possibility may inherit: But in this case if the husband during his first wives life alien the land in Fee, and takes an estate back to him and his wife, and the heires of their two bodies, and the wife dies, the second wife shall not be endowed; because during the Cover­ture (when her Title of Dower should take beginning) he was sei­sed of an estate taile special; and yet here also the Issue, that he may have by the last wife, is inheritable.

Co. ibid. 9. a. 1.36 B. having divers sonnes and daughters, Grant to chil­dren before birth, not good. A. giveth lands to B. & liberis suis, and to their heires, the Father and all his Children do take a Fee simple joyntly by force of these words, their heires; but if he had no child at the time of the Feofment, the Child or Children, born afterwards shall not take.

Dyer, 58. a. 4. 35 H. 8.37 Cestuy que use (after the Statute of 1 R. 3. 1. Cestuy que us [...] and before the Sta­tute of Uses) makes a Lease for yeares, and after during the terme makes Feofment of the land, and gives Livery, &c. In such case, nothing passed by such Feofment, because he had nothing in Vse or Possession, and then the Statute of R. 3. would not aide him.

Where there can be no pre­sentment by lapse.1 If the Bishop be named in the Quare impedit, Co. Inst. pars 1 344. b. 4. he shall never af­terwards present by lapse, and then shall neither the Metropolitan, nor after him the King do it; For the Bishops presentment falling, which was to be the first step and begining, their power of presenting, which should successively follow his, must néeds also fail; according to the Rule. Quod non habet principium, non habet finem.

Right without action no re­mitter, & con­tra.2 Regularly, a man shall not be remitted to a Right remedilesse, Co. ibid. 349. a. 4. for the which he can have no action; And therefore Littleton saith ( Sect. 661.) that the principal cause of a Remitter is, when the issue hath no person (but himselfe) against whom he may bring his Action, by which it appeareth, that he ought to have just cause of Action; for neither an Action without a Right, nor a Right without an Action can make a Remitter; as if Tenant in tail suffer a Common Re­covery, In which there is error, and after the Tenant in tail dissei­seth, the Recoveror, and dieth; here the issue in tail hath an action, viz. a Writ of Error; but so long as the Recovery remaineth in force, he hath no Right, and therefore in that case cannot be remit­ted.

Idem.3 If B. purchase an Advowson, Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe, and the usurper granteth the Advowson to B. and his heires; B. dieth, his heire is not remitted; because his Right to the Advowson was remedilesse, viz. a Right without an Acti­on.

4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst. pars 1 31. a. 4.

Dos de dote peti non po­test.1 If there be Grandfather, Father, and Son, Co. Inst. pars 1 32. a. 4. and the Grand­father is seised of thée acres of land in fée, and taketh wife, and dieth, this land descendeth to the Father, who dieth either before or after entry; now is the wife of the Father dowable, yet shall she have the thirds but of two acres onely, and the wife of the Grandfather shall have for her Dower the other acre intirely; because the Dower of the Grandmother is Paramount, the Title of the Fathers wife, and the seisin of the Father, which descended to him (be it in Law or ac­tual) is defeated; and now upon the matter the Father had but a Reversion expectant upon a Fréehold; and in that case Dos de do­te peti non potest, although the Grandmother die, living the Fathers wife.

Dower accord­ing to the im­proved value.2 If the wife be entitled to have Dower of thrée acres of March, Co. Inst. pars 1 32. a. 3. e­very one of the value of twelve pence per annum, the heire by his in­dustry and charge maketh it good meadow, viz. every acre worth ten shillings per annum, the wife shall have her Dower according to the improved value, and not according to the value, as it was in her hus­bands time: So it is likewise if the heire improve the value by building; the like Law is, if the value be impaired in the time of the heire; for then also she shall be endowed according to the value at the time of the assignement, and not according to the value as it was in her husbands time: And the reason of all this is, because she claims paramount the improvement or impairing of it, and hath Title to she quantity of the land, viz. one just third part.

[Page 80] Co. Inst. pars 1 46. a. 3.3 If Tenant in taile make a Lease for yeares reserving xx s. rent, Lease by te­nant in tail good in dower. and after take a wife and die without issue; here as to him in the re­version, the Lease is méerly void, because he claimes paramount the Lease: but if he endow the wife of Tenant in tail of the land (as she may be though the estate taile be determined) now is the Lease as to the Tenant in Dower (who is in, of the estate of her husband) revived againe, as against her; for, as to her, the estate taile continu­eth, and the Lease is paramount her Title.

Co. Inst. pars 1. 113. a. 3. Littl. § 169.4 If a man (by the Custome) devise that his executors shall sell his lands, &c. and dieth, the lands in this case descend to his heire, Feoffee in by devise. and the executors have no estate in them, but onely a bare and naked pow­er; neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée; because the Feoffée by construction of Law shall be said to be in by the Divisor, and not by the executors: So it is likewise, if a man (by the custome) devise a reversion or any other thing, that lyeth in grant to be sold by his executors, they may sell the same without Déed, causa qua suprà.

Co. Inst. pars 1. 117. a. 2.5 If lands be given to a Villain and to the heirs of his bodie, The Lords title Paramount an entail to a vil­lain, and so is the Kings to that of an A­lien. the Lord may enter and put out the villein, and the heirs of his body; for, Quicquid acquiritur servo, acquiritur domino: And in this case the Lord gains a Fée simple determinable upon the dying of the Villain, with­out issue of his bodie and the absolute Fée simple remaineth still in the Donor. And if the Lord enter, and after enfranchise the Donée, and after the Donée hath issue, yet that issue shall never have remedie ei­ther by Formedon or Entry, to recover this land, by force of the Sta­tute de donis, &c. For the Lord is in paramount the entaile, and that Statute giveth onely remedie to the issues of the Donée, that hath ca­pacity and power to take and retaine the gift: And the Title of the Lord remaines as it did at the Common Law; for the Statute re­straineth acts done onely by the Tenant in taile: So it is also if lands be given to an Alien, and to the heires of his body, upon office found the land is seised for the King, afterwards the King makes the Alien a Denizen, who hath issue and dieth, the King shall detaine the land against the issue; because the Kings Title is Paramount the entail, viz. by his prerogative. Vide infrà 32.

Co. Inst. pars 1 148. b. 3.6 If a man grant a rent charge out of two acres, A Title Para­mount to rent. and after the Grantée recovereth one of the acres against the Grantor by a Title paramount, the whole rent shall issue out of the other acre. Doct. & Stud. l. 2. cap 17.

Co. Inst. pars 1 148. b. 3.7 If a man enfeoffeth B. of one acre in fée upon Condition, Title Para­mount a grant. and B. being seised of another acre in fée, granteth a rent out of both the acres to the Feoffor, who entreth into the one acre for the Condition broken, the whole rent shall issue out of the other acre; because his Title is paramount the grant.

Co. Inst. pars 1. 184. b. Littl. § 286.8 If two Ioyn-tenants be seised of an estate in Fée simple, Jus accrese [...] ­dendi praefertur oneribus. and the one grants a rent charge to another out of his part; here, the rent is good during his life, but after his decease the Survivor shall a­void it; because he commeth in by the first Feoffor, and not under his companion: So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth, Co. Inst. pars 1 185. a. 1. the wife shall avoid the charge: And for the same reason it is, that if a Ioyn-tenant charge the land with common of Pasture, Turbary, Estovers, or with a Corodie, or with a way over the land, or the like, this shall not bind the Survivour; For, jus accrescend [...] prefertur oneribus, and Alienatio rei praefertur juri accrescendi. Vide M. 15. Pl. 14.

Co. Inst. pars 1 185. a. 2.9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile. [Page 81] by Déed indented, and dieth, the Survivour shall not be bound by the conclusion; because he claimes above it, and not under it.

Baron charg­eth the Femes [...]and.10 If there be two Ioyn-tenants in fée, Co. Inst. pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares, reserving a rent and dieth, the surviving Feoffée shall have the reversion, but not the rent; because he claimeth in by the first Feoffor, which is paramount the rent: So it is also of the wife, where the husband being Lessée for yeares, in her right, maketh a Lease of part of the terme, reserving a rent. Inst. part 1. 318. a. 3.

Simile.11 If a husband, wife, Co. Inst. pars 1 187. b. 4. and a third person purchase lands to them and their heires, and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée, and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right, and if the wife had died, the other Ioyn-tenant should have had the whole right by Survivour; for that they might have joyned in a writ of right; and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance, but by Title paramount above the same, by the first feofment.

A condition [...]aramount a descent.12 If a man be seised of lands in Fée or Fee taile upon Condi­tion to render certaine rent, or any other Condition; Co. Inst. pars 1 240. a. b. Littl. § 391, 392. albeit such a Tenant die seised, yet if the Condition be broken in his life time or after his decease, that descent shall not take away the entry of the Feoffor or Donor, or of their heirs, because the tenancie was originally charged with the Condition, which is paramount the de­scent; for the Condition remaines 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 tenancie comes, &c. So it is likewise if such a Tenant upon Condition be disseised, and the Dissei­sor die thereof seised, and the land descends to the heire 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 heires enter, Causa qua suprà; and also for that a Conditi­on cannot be devested, or put out of possession, as Lands and Tene­ments may.

[...]ower para­ [...]ount a des­ [...]nt.13 If a Disseisor die seised, and his heire enter, who endoweth, Co. Inst. pars 1 240. b. 4. Littl. § 393. the Feme of the Disseisor of the third part of the Tenements, &c. In this case, as to this third part, which is so assigned to the Feme in Dower, presently after the Feme entreth, 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 heire entred, 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 seised and dscent: And therefore in judgement of Law, the descent, as to the Free-hold and Possession which the heire 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 taile reserving twenty shillings rent, Co. Inst. pars 1 241. a. 4. and dies, the Donee takes wife, and dieth without issue, the heire of the Donor entreth 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 taile be spent, and the rent reserved thereupon determined, yet after she is endowed, she shall be attendant to the heire, in respect of the said rent.

15 If there be Lord, Mesne, and Tenant, and the Mesne grant by [Page 82] Fine the Services of his Tenant to another in fée, 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 distraine the Tenant, although the Tenant did never attorne, because the Lord Paramount commeth to the Mesnalty by a Seigniory paramount; and therefore there needs no Attornement; As if, there be Lessee for life of a Mannor, 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 wives land takes not a­way the ent [...] of him that hath a title paramount. did take away the en­try onely of the wife and her heires 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 heires, and the husband had made a Feofment in fee, this had been a Discontinuance of the one moity, and a Disseisin of the other moity; And if the husband had died and then the wife had died, the Survivour should have entred into the whole; for he claimed not under the Discontinuance, but by Title Paramount from the first Feoffor; And séeing the right by Law doth survive, the Law doth give him a remedie to take advantage thereof by entry for other remedy for that moity he could not have.

Co. Inst. pars 1. 338. b. 2.17 If a Bishop be seised of a rent charge in fée, A title para­mount avoid rent and charges. the Tenant of the land enfeoffes the Bishop and his Successors, the Lord enters for the Mortmaine, he shall hold it discharged of the rent; for the entry for the Mortmaine affirmeth the Alienation in Mortmaine, and the Lord claimeth under his estate: But if Tenant for life grant a rent in fée, and after enfeoffe the Grantée, and the Lessor enter for the forfeiture, the rent is revived; because the Lessor doth claime above the Feofment.

Co. Inst. pars 1 351. a. 3.18 If a Feme Sole possest of a Lease for yeares 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 againe, 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 Fée simple, Title para­mount by [...] ­vivorship. with a war­ranty to the eldest and his heires, the eldest dieth without issue, the Survivour albeit he be heire 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 commeth 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 yeares 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 Ʋpton and Bassets case, in Twines case.21 In Upton and Bassets case in 3 Report fol. 83. it was agréed, An ancient right not [...] red. that by the Common Law an estate made by fraud shall be avoided onely 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 barre a more ancient Right, neither shall a covenous Grant defeat an execution in respect of a former Debt, as it is agréed 22 Ass. P. 72. But he that hath onely a later Right, Title, Interest, Debt, [Page 83] 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 incumbrances 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 custome, which is paramount the power of the Lord. Vide 21. 37.

The like.23 If a man devise a terme to I. S. and the Executors agrée 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 terme 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 heires, 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. Ferrers case. yet the Issue in taile 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 claimes in, not onely as heire, 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 entaile remaines; And with this agrées 10 H. 6. 5. 3 Eliz. Sir Ralfe Rowlets case, Dyer, 188.

The like.25 If there be two Ioyn-tenants both within age, Litt. § 634. Co l. 8. 43. a. 4. Whittinghams case. and they joyn in a feofment, in this case a joynt right remaines in them; and there­fore if one of them die, the right will survive, and the Survivour shall have the right of the land as from the first Feoffor.

A condition Paramount.26 If a man make a lease for yeares upon condition, Co. l. 8. 76. a. 2. In the Lord Staffords case. that if the Lessor out him within the terme, that he shall have fée; in this case, if the Lessor do out him, the interest of the terme 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, &c. of debts, &c.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 heires; because she claimes by Title paramount the Debts; and if she be therefore distrained by the Sheriffe, 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.

[Page 84] 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 yeares rendring rent with clause of re-entry, A Lease Para­mount. and after the Lessee make a Lease to the Lessor for 6 years to beginne two yeares 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 re-entry shall defeat the future in­terest, which vested in him.

Co. ibid.31 If a man make Feofment in fee upon collateral condition, A paramount feofment 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 himselfe 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 sonne by the first venter present and die without is­sue, and after the Church happens to be void, A descent pa­ramount. the youngest sonne of the second venter shall not present, nor have that Advowson, so if there be two daughters of several venters, 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 then claimes paramount the descent from her sister, viz. immediatly from their Ancestor.

Dyer, 54. 21. 34 H. 8.32 Tenant in tail makes a feofment before the Statute of 27 H. 8. to the use of his wife for life, Remitter. the remainder to his sonne and heir in fee, and after the Statute is made, and the Feoffor dies and his wife also, and the sonne enters; In this case, it seemes that the sonne is not remitted, for the Statute makes the possession in him as the use was before; Howbeit it seemeth also, that his issue shall be remitted, because he claimes paramount the Statute, viz. per for­mam doni; for the estate tail is still in being, and was not extinct by the Statute; And in this case it is not material, whether the sonne (when he entred) was at full age, Dyer 54. b. 22. 34 H 8. or under age, for it seems he is not remitted albeit he were then under age: for if Tenant in taile make a feofment to the use of himselfe and his heires, and the Feof­for dies, his issue within age, and then comes the Statute, here the heire shall not be remitted, but (it seemes) his issue may, causa qua su­prà. Vide suprà 5.

Dyer 54 b. 1. 34, and 35 H. 833 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire appa­rant and his wife, and of the heires of the bodie of the sonne, Wardship. after which Statute the sonne hath issue and dies, the issue within age; In this case, the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple, which was paramuont the Statute, remaines still in the father, albeit he expressed not any use in Fee sim­ple, and then by the Statute, the possession was vested in the sonne and the feme, as the use was, and the Fee simple in the father, as he was Donor of the use, and not as one in remainder of a new Fee simple, for that would have altered the case: And in the same case, if the father had covenanted, that the sonne immediately after his de­cease should have had, in possession or in use, all his land according to the same course of Inheritance, as they then stood, and that all men sei­sed or to be seised, should stand seised to the uses and intents aforesaid, yet the sonne should not be in ward, for it had been but a Covenant, [Page 85] which changeth not the estate of the Fee simple; which was para­mount the Statute, as afore is said.

Emblements sown.34 If Tenant pur auter vie sow the land, and Cestuy que vie die, Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop; So if the Baron sow the Femes land, and the Feme die, the Baron shall reap the crop; Likewise if the Baron make feofment in fée to the use of himselfe for life, the remainder to the use of the Feme for life, with remain­ders over, and the Baron sow the land and die, his executors shall have the crop, and not the Feme or Heire, because death being the Act of God, it could not be fore-séen or prevented: Howbeit, if the Baron make feofment in fée, to the use of himselfe and his Feme for their lives with remainders over, and the Baron sow the land and die, the Feme shall have the crop, because she was Ioyn-tenant with her husband, and hath it by Title paramount the executor; So if the Baron sow the land and die, and the third part is assigned to the Feme for Dower, she shall have the emblements therewithall; because, she is in of her husbands estate paramount the Title of the executor, and likewise shall be endowed de optima possessione of her hus­band.

Account by the Guardian.1 It hath béen a question much controverted in the books of the Law, at what age of the heir, Co. Inst. pars 1 89. a. 1. Stat. of Marle­bridge 52 H. 3. 17. a Guardian in Soccage was compel­lable to render an accompt, whether at 14, or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marle­bridge cap. 17. and likewise upon the original writ of accompt against such a Guardian: The words of the Statute are these, Cum ad legi­timam aetatem pervenerit, sibi respondeat, &c. 16 E. 3. Wast 100. &c, And legitima aetas is 21 yeares: Also the writ of accompt reciting the said Statute, saith, Quare cum de communi concilio, &c. provisum sit, quòd custodes, &c. in Soc­cagio haeredibus, &c. cum ad plenam aetatem pervenerint reddant rationabi­lem compotum, &c. 16 E. 2. ac­count 120. 17 E. 2. ibid. 121. 2 E. 2. ac­count. 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered, that no action of accompt did lie against the Guardian in Soccage at the Common Law, untill the heire were of his lawfull and full age of 21 yeares: But legitima aetas (as the Statute hath it) or plena aetas (as the writ doth render it) are to be understood secundam subjectam materiam, viz. of the heire of Soccage land, whose lawfull or full age, as to the Custo­die or Wardship, is 14: and therefore upon consideration had of the said Statute and of all the Books, it was adjudged in the Court of Common Pleas P. 16. El. rot. 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage, when he will at his pleasure, and with this agrées Littleton, Sect. 123.

Age, of Infant to make a wil.2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his exe­cutors, some have inferred, Co. Inst. pars 1 89. b. 2. that an infant of the age of 14 may make a will; but the meaning of Littleton in that place is, that if af­ter his mariage, he accomplish his age of 18 yeares, he may then make a will, and constitute executors for his goods and chattells; for at that age he hath power by the Law to make a Will, and the words are to be understood Secundam subjectam materiam, and as they may stand with Law and Reason. Vide suprà 15. 21.

The Kings Councils.3 The King of England is armed with divers Councils, Co. Inst. pars 1 110. a. 2. viz. Com­mune Concilium, which is the Court of Parliament; Another is cal­led Magnum Concilium, and this is sometimes applied to the House [Page 86] of Péeres alone, and sometimes out of Parliament to the Péeres of the Realme, being Lords of Parliament, who are called Magnum Concilium Regis: Thirdly, the King hath a Privy Council for mat­ters of State: Fourthly, the King hath another Councel for mat­ters of Law, and they are his Iudges of the Law: Now therefore, when it is spoken generally of the Kings Councel, it is to be under­stood secundum subjectam materiam, as if matter of Law be concerned, then his Councel at Law, viz. his Iudges are to be understood, if matter of State, his Privy Councel, &c.

Co. Inst. pars 1 302. b. 1.4 If the Tenant for life, A feofment by two. and he in the Remainder or Reversion in Fée joyn in a Feofment by Déed, the Livery of the Fréehold shall move from the Lessée, and the Inheritance from him in the Reversion or Remainder, from each of them according to his estate.

Co. Inst. pars 1 303. b. 2.5 Every man shall plead such pleas, Pleas proper as are pertinent for him Secundum subjectam materiam, viz. according to the quality of his case, Estate, or Interest, as Disseisors, Tenants, Incumbents, Or­dinaries, and the like.

Co. Inst. pars 1 200. b. 3.6 One Tenant in Common may enfeoffe his Companion, Feofment Releases. but not release; because the Fréehold is several Ioyn-tenants may release, but not enfeoffe, because the Frée-hold is joynt: But Coparceners may both enfeoffe and release, because their seisiin to some intents is joynt, and to some several.

Co. l. 3. 50. b. 4. Sir George Browns case.7 The words of the Statute of 11 H. 7. cap. 20. Statute of 11 H. 7. 20. in­terpreted, for discontinuan­ces. (which prohibits a Feme to alien the lands of her deceased husband) are these, that she shall not discontinue, alien, release, or confirm them with War­ranty, where Warranty seems to be referred to any Discontinuance or Alienation, as well as to release and confirmation; So that if a Feme Te­nant in special taile (after the decease of her husband) make a Lease for three lives (not warranted by the Statute of the 32 H. 8. cap. 28.) without Warranty, he in the Reversion or Remainder by force of the said Statute of 11 H. 7. shall not enter: but it was adjudged in Sir Geo. Brownes case in the 3 Report, that in that case he might en­ter, and that these words, with Warranty, shall be onely referred to Releases and Confirmations, which indéed do not make a discontinu­ance without Warranty for the intent of the said Act of 11 H. 7. was not onely to prohibit every barre, but also every manner of disconti­nuance, which might put the heire, to his real action; whereby he might perhaps be disinherited, or at least greatly delayed; And therefore in regard Releases and Confirmations do not make dis­continuance without Warranty, these words, with Warranty, are to be construed Secundum subjectam materiam, and shall be referred to them onely, to make them equivalent to such an estate, which passeth by Livery, and which of it selfe without Warranty makes a discontinuance.

Co. l. 4. 10. b. 4. Bevils case.8 The Statute of 32 H. 8. cap. 2. (which provides, 32 H. 8. 2. interpreted for rents. that none shal have any Avowry or Conusance for any rent suit, or service, unlesse seisin were had within 40 years before the Avowry made) extends not to any such Rent or Service, which by common possibility cannot happen or be­come due within 60 yeares; as if the Seigniory consists upon Ho­mage and Fealty onely; for the Tenant may live 60 yeares after he hath done them: So also if the Service be to cover the Hall of the Lord, or to go to Warre with him, when the King maketh Warre against his enemies, such casual Services, which by common pos­sibility cannot happen within 60 yeares, are not within that Act, &c. Likewise writs of Escheat, Cessavit, or Rescous are not within those branches of the same Statute, which limit the seisin of land, because in those writs the seisin is not traversable, but the tenure, and in [Page 87] those writs of Escheat and Cessavit, albeit they demand the land, yet néed they not alleadge any seisin in the same lands, &c. as the said Sta­tute requires; because that Act onely extends to such a writ, where the Demandant or his Ancestors may have seisin of the land in de­mand within the time of limitation prescribed by the Act, and the Statute doth not force them to any impossibility, &c.

Scandalum Magnatum.9 The Lord Cromwell brings an Action de scandalo magnatum up­on the Statute of 2 R. 2. cap. 5. against Vicar Delmy, Co The Lord Cromwels case. for speaking these words unto him; You like of those that maintaine sedition against the Queens proceedings, unto which the Defendant pleades special ju­stification, that the Plaintife procured two to prea h in his Church, which enveighed in their Sermons against the Book of Com­mon Prayer, and because the Defendant did prohibit them, the Plain­tife said to the Defendant, Thou art a false varlet, I like not of thee, to whom the Defendant said, It is no marvel though you like not of me, for you like of those, (inuuendo the two, that should have preached) that maintaine sedition (innuendo seditiosam illam doctrinam) against the Queenes proceedings. And this was adjudged a good justification; For, in case of slander for words, the sence of the words are to be taken, and the sence of them doth best appeare by the cause and oc­casion of speaking them, according to the Rule, Sensus verborum ex causa dicendi accipiendus est, & sermones semper accipiendi sunt secun­dum subjectam materiam: And therefore in this case the Council of the Defendant was said to have done well in shewing the special matter, whereby the sence of this word (sedition) might appeare upon the co­herence of all the words, taken together, viz. that the Defendant meant the seditious doctrine against the Quéens proceedings in the Act of 1 Eliz. by which the Book of Common Prayer was established; and that he did not intend any such publique or violent Sedition, as was alleadged by the Plaintife, and as ex vi termini per se, the word it selfe would import, &c. And it was said, Quae ad unum finem loquuta sunt, non debent ad alium detorqueri, &c.

Common.10 If Common be said to be appertaining to a Mease, Land, Co. l. 4. 37. a. 4. & 38. a. 3. Tirringhams case. Meadow, and Pasture, time out of mind, that shall be adjudged Common Appurtenant, and not Common Appendant; for it is a­gainst the nature of Common Appendant to be Appendant to Mea­dow or Pasture; And therefore in that case the subject matter and the circumstance of the case ought to direct the Court to give Iudgement, whether the Common be Appendant or Appurtenant.

11 In Appeal of Murder against A. as principal, Co. l. 4. 43. b. 4. Bibithes case. and against B. as accessory before the fact, Accessary in manslaughter. A. was found guilty of Man-slaughter, but not of Murder; in this case B. was acquit, because there cannot be an Accessary before the fact in Manslaughter, which allwayes hap­pens upon a suddaine debate or effray; for if it be premeditate, it is Murder.

Joint warran­ties, or words.11 Ioynt words of the parties shall by construction of Law be taken respectively & severally according to the several interests of the Gran­tées; as Warranty made to two of certain lands, Co. l. 5. 7. b. 4. 16 H. 6. 63, 64. shall enure as seve­ral Warranties; in regard they are severally seised, the one of part of the land, and the other of the residue in severalty; 6 E. 2. Cove­nant. Br. 49. So also a joynt 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 joynt Words or Grants shall enure severally, in respect of the in­capacity or impossibility of the Grantées to take joyntly, as a Lease made to an Abbot and a secular man; or to two men or two women, and to the heires of their two bodies engendred; for in these and the like cases the inheritance is several. Vide 19.

[Page 88] 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 performe an Arbitrament betwixt the Plaintife 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 (indéed) made before the day agréed upon, and was also delivered unto the Plaintife, and unto Mese one of the De­fendants, but not unto Smith, whereupon the Plaintife demurred, and Iudgement was given against the Plaintife; 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 joyning together, as if two or thrée 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 alwayes to know, in which of these two sences 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, &c. 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 performe it, and avoid the danger of breaking it, &c. 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. halfe the yeare, according to the Kalender, and is not to be accounted according to 28 dayes for each Moneth; for verba sunt accipienda secundum subjectam materiam; and therefore because this computation of moneths concernes 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. Calvins case.14 In regard the King (albeit he be but one person, Allegiance due to the na­tural capacity. yet) hath two several capacities in him the one natural, as he is a man, the o­the other politique, 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 politique capacity, and the politique, as it were appropriated to the natural capacity) and is not due to the poli­tique capacity onely, that is, to his Crowne or Kingdome distinct from his natural capacity; For every Subject is presumed by Law to be sworne to the King, which is to his natural person, and likewise the King is sworne 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 politique capacity is invisible and immortall, nay, that ca­pacity hath no soul, being framed by the policy of man; And there­fore in all indictments of Treason, when any do intend or compasse mortem & destructionem Domini Regis (which must néeds be under­stood of his natural body, his body politique being immortal, and not subject to death, the indictment concludeth, contra ligeanciae suae debitum, by which it plainly appeares, that ligeance is due to the natural body of the King, that capacity being (indeed) the onely 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, &c. Here, these in words payable quarterly, Ten Bullocks, and ten pound rent. ought to be under­stood [Page 89] Secundam subjectam materiam, and to have reference to the rent. for ten bullocks per annum cannot be delivered quarterly.

[...]ffices of [...]st personal.16 The Office of Marshall of the Marshalshey cannot be granted for yeares; Co. l. 9. 96. b. 4. Sir George Keynels case. because it is an Office of great trust annexed to the per­son, and concernes the administration of Iustice, and the life of the Law, which is to kéep 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 concerne the administration of Iustice, &c.

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 Sheriffe of the County of Bedford) harmelesse, and to be ready at his command, Plowd. 65. b. 2. Dyve against Maningham. as his true prisoner, &c. the Defendant pleades the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriffe colore officii, are made void, and farther saith, that one Thomas Palley purchased a Liberari fac. out of a recognisance to him made by the said Defendant, and procured it to be directed to the said Sheriffe of Bedford to be ser­ved and certified; and shewed farther, that the King had sent to the Sheriffes of London, Middlesex and Hertford, other writs in forme a­foresaid, and that the same Sheriffe returned the writ into the Chancery, &c. In this case, one exception taken to the Defendants plea was, for that there were di [...]ers Sheriffes named in it, and at last it is said, that the same Sheriffe returned the writ, &c. which was said to be uncertaine; but it was resolved to be certain enough, and that it sh [...]ll be referred to the Sheriff of Bedford; For, the re­turne contained an extent of land in the County of Bedford, and none could do th [...]t, but the Sheriffe of Bedford, and the whole summe of the execution was referred to [...]im, and that could not be so, unlesse the Sheriffe of Bedfo [...]d had [...]ade the return, &c.

Release of a­ctions.18 If a man be outlawed in an action personal by processe upon the original, and after brings his writ of Error; Here, if he, Co. Inst. pars 1 289. a. 2. Littl. § 503. at whose suit he was out- [...]awed, will plead against him a release of all actions personal, that seemes to be [...] plea; for by the said action he shall reco­ver nothing in the personalty, but onely to reverse the out-lawry; Howbeit, in the same case, a release of the writ of Error is a good plea: And s [...] note that, an action real or personal doth imply a re­covery of some [...]hing in the realty or personalty, or a restitution to the same; bu [...] a writ implyeth neither of them, &c.

[...]oint and se­veral covenant19 S. and his wif [...] brings a Action of Covenant against B. upon Covenant made by Indenture tri [...]artite, Co. l. 3. 18. b. 4. In Slingbies case. in which B. Covenants with the Plaintifes, and with I. S. and his wife, & assignatis suis, & cum quolibet & queli [...]et eor [...]m, that he was sole seised of the land, &c. And in a writ of Error in the Exchequer Chamber it was adjudged, that the Action would not lie; because the other Covenantées ought to have joyned with the other Plaintifes; and this diversity was agréed; when it appears by the Count, that each of the Covenantées hath or ought to have a several interest or [...]state, there the Covenant by these words (cum quolibet eorum) is several; but when they have a joynt interest, there the words ( cum quolibet eorum are void, and sig­nifie nothing; As if a man let black acre to A. white acre to B. and gréen acre to C. and Covenant with them, & quolibet eorum, that he is right owner of them, &c. In this case in respect of the said several int [...]rests, by the said words, & quolibet eorum, the Covenant is made several: But if he demise th [...]se acres to them joyntly, then those words cum quolibet eorum, are void; for a man by his Covenant (un­lesse [Page 90] in respect of several interests) cannot first make the Covenant joynt, and then make it several by those or the like words, cum quo­libet eorum; because albeit divers persons may bind themselves, & quemlibet eorum, and so the Obligation shall be joynt or several at the election of the Obligée, yet a man cannot bind himselfe to thrée, and to every of them to make it joynt or several at the election of several persons for one and the same cause; for that the Court will be in doubt, for which of them they should give Iudgement, which the law will not suffer, as it is held in 3 H. 6. 44. for there one brings a Repl [...]vin against two of one oxe, who made several avowries, each of them by himselfe in his own right, and there by the advice of all the Iustices both the Avowries did abate for, his inconvenience, that if both the issues should be found for the Av [...]wants, the Court could not give Iudgement to them severally of one and the same thing, &c. Vide 11.

Co. l 9 96. a. 3. [...]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 y ^e King doth seise; And some­time not according to the several subject matter; As if it be found by Office, that the Mannor of D. is holden of the King, and it appears also by fine upon Record, that the Mannor of D. is aliened in Mort­maine; In this case there ought to be a Scire facias, in which it may appeare by averrement that it is all one and the same Mannor (for they may be two several Mannors of one name) and that he that ali­ened it was thereof seised; because both those matters upon record without such averrement will not put the party to answer; but when the identity of the thing appeares to the Court, and that it cannot be divers; there the two matters shall then also amount to an office, and the King may seise without a Scire facias; As in the case of Sir John Savage, who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seal; for he being indicted of two voluntary escapes of Felons, it was holden per Curiam in B. R. that those words amounted to an Office, and that the King was sei­sed without a Scire facias; And the reason was, because it appeared to the Court, that there could be but one Sheriffe in one County; and therefore there was no néed of any Scire facias in that case, &c.

Co. l. 7. 26. in Maun [...]ons case.21 In a Quare impedit, Advowson [...] ­tron. when the Advowson is likely to come in question, the writ shall abate, unlesse the Patron be therein named; but when the presentation onely is to be recovered and not the Advow­son, neither yet the Patron to be put out of possession; In that case the Writ is adjudged good without naming the Patron, &c. 7 H. 4 25. 27

Co. Inst. pars 1 52 a. 3.22 If Lessée for life make a Déed of Feofment, Livery by the Lessor. and a Letter of Attorney to the Lessor to make Livery, and the Lessor maketh Live­ry accordingly, notwithstanding all that, he shall enter for the forfei­ture, but if Lessée for yeares make a Feofment in Fée, and a letter of Attorney to the Lessor to make Livery, and he maketh Livery ac­cordingly; this Livery shall bind the Lessor, and shall not be avoid­ed by him; for the Lessor could not make Livery as Attorney to the Lessée; because he had no Fréehold, whereof to make Livery, but the Fréehold was in the Lessor, &c.

23 If Tenant in taile make a Lease for yeares of lands, Fine by Te­nant in taile. and af­ter levie a fine. C [...] [...]id. 332. b. 3. this is a discontinuance, for a fine is a feofment of Record, and the Fréehold passeth: but if Tenant in Taile maketh a Lease for his own life, and after levie a fine, this is no discontinu­anc [...], because the reversion expectant upon a State of Freehold, which lyeth onely in grant, passeth thereby, &c.

24 Vide Max. 101. Pl. 7.

[Page 91] [...]orcible Entry [...]taint.25 If a writ of forcible entry and detainer be brought against A. and five more, and the Iury find all guilty of the forcible entry, Dyer. 141. 45. 3, 4, P.M. and onely A. of the detainer; in this case, if the verdict be false, albeit the original writ be intirely brought against all, yet the six shall 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 [...]ervant.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 Seale, in which he binds himselfe to pay the debt; yet, In this case, debt lyeth not against the servant, but onely an Action upon the case; for it is the debt of the Master, and the Assumpsit of the servant.

Copihold, Dower.27 The Custome of a Mannor is, that the Lord, the Surveyor, Dyer, 251. 89. 8 Eliz. or his deputy may demise by copy, the Lord deviseth authority to two fo 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 Custome, the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Man­nor in Dower; And it was held, that she should avoid the grant made by the two assigned, because she claimes by Title of Dower, which is paramount the devise.

Knight-service the defence of the Realm.1 The Tenant in Knight-service, Co. Inst. pars 1 70. b. 2. that is able to performe the Service himselfe, may neverthelesse, if he please, performe 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 Realme; 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 mariage to the heire female within the two yeares, Co. Inst. pars 1 79. a. 1. 35 H. 6. tit. gard 71. and she marry elsewhere within those two yeares, the Lord shall not have the forfeiture of the mariage; because the onely end, which the Statute of West. 1. cap. 22. giveth those two yeares, 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 yeares are given unto him (as it were in lieu of the forfeiture, in case the heire female should refuse his tender; for if he make tender within the two yeares, and she accept the same, and marry, immediately after mariage she is out of ward.

Errour sued a­gainst a vil­lain.3 If Villanage be pleaded by the Lord in an action real, mixt, Co. Inst. pars 1 127. b. 4. 18 E. 4. 6. & 7. or personal, and it is found that he is no Villaine, the bringing of a Writ of Error is no enfranchisement; because the end of bringing that Writ against the Villaine, is not to commence any new suit against him, but onely to defeat the former Iudgement.

4 If a Castle, that is used for the necessary defence of the Realme, 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 Roomes 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 Realme ne defaille par taut: But Castles ordained for another end, viz. for habitation and private use, and not for the necessary defence of the Realme, ought to be parted betwéen Coparceners as well as o­ther houses; and wives may also be thereof endowed, but cannot be of Castles for defence, &c.

[Page 92] 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 distraine upon the lands and tenements holden, &c. he may then avow, &c. upon the same lands, &c. as in lands, &c. within his Fee or Seigniory, &c. without naming any person certaine, and without making Avowry upon any person certaine, &c. 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 néed not to make his Avowry upon any person certaine; yet he must alleadge Seisin by the hands of some Tenant in certaine within for­ty yeares; for otherwise, rent, and other annual payments are not recoverable, by the expresse limitation of the Statute of 32 H. 8. cap. 2.

Co. Inst. pars 1 288. b. 1. Littl. § 503.6 If a man be out-lawed 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 out-lawed, will plead against him a Release of all manner of Actions personal, that séemes to be no plea; for by that Action he shall recover nothing in personaltie; But the end of the Writ of Error is onely to reverse the out-lawry.

Co ibid. 368. a. 3. Plowd. Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4.7 If the Tenant in an Assise of an house desire the Plaintife to dine with him, which the Plaintife 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 Plaintife came not thither to claime his right, but onely 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 (doubtlesse) a Trespasser he can­not be; for that he came thither upon the Tenants invitation.

Co. ibid. 369. a. 4.8 A Lease for yeares to another to the intent to trie 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 chiefly intended for the suppression of such abuses in the Com­mon-wealth.

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 alwayes pursued, in suppression of the mischiefe and advancement of the remedy, as by this case it appear­eth; A Fine levied by the husband onely is within the letter of the Statute of Glocester 6 E. 1. cap. 3. but the mischiefe was, that the heire was barred of the inheritance of his mother, by the warranty of his father without Assets, And this Act intended to apply a remedie, viz, that it should not barre, unlesse there were Assets; and therefore the mischiefe is to be suppressed, and the remedy advanced.

31 E. 3. Joyn­der 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 processe.

19 E. 4. 3. Finch, 13.11 The Vouchée upon a Grand cape ad valentiam, Apparance of vouchee. shall not loose the lands, though he cannot save his default; because the processe is onely to this end, viz. that he should appeare. 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 Chiefe 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 seised into the Kings hands for the Idio­cy of I. S. upon which A. commeth in and pleads, that I. S. when he [Page 93] was of perfect memory, made a release to one B. who enfeoffed A. This is good enough without shewing any licence of Alienation to dis­charge himselfe for the purchasing of those lands.

Fine with Pro­clamations.13 Tenant in taile general having issue a daughter, Co. l. 3. 50. b. 3. [...]u slowes case levies a fine in Trinity Terme, 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 barre the entaile, because that is barred before by the fine; but the onely end of making the Proclamations (by the Statute of 32 H. 8.) is to distinguish the fine, that shall barre the estate taile, from a Fine at the Common Law; for the Fine that shall barre such an estate shall be levied according to the Statute of 11 H. 7. viz. with proclamations, &c.

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, mariage: for in that Statute the end of naming the Feme (wife) is onely 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 betwéen a Capias in processe, Co. l. 5. 90. a. 3. Hoes case. Tres. 33 El. Mounts case. and a Capias ad satisfaciendum; for if the Capias in processe be not returned, the arrest is torcious; because there the end of the arrest is, that the party may appeare and answer the Plaintife: But in all Writs of execution, when the Sheriffe alone doth execute them (as a Capias ad satisfaciendum, habere facias sesinam or possessionem, fieri facias, liberat, &c.) if the execution be duly served, it is good, although the Writ be not returned; for there the Plaintife 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 Sheriffe alone, that ought 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 Clerke 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, untill the Patron present, and it is no more than belongs to his Office to do.

Dignity entai­led forfeited.17 If the Dignity of an Earledome had béen intailed to the heires male, Co. l. 7. 34. a. 4. Nevils case. it might have béen forfeited for Treason before the Statute 26 H. 8. cap. 13. by reason of a secret Condition in Law annexed un­to it; for Earles 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 it selfe, and the intent thereof also accomplished: And there­fore in Fogassues case in the Commentaries, because the King had meanes of being intitled to the Custome 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 incurre the penalty of forfeiting the Woad.

19 To let a prisoner in execution go at large upon bond, &c. is ex­pressely [Page 94] against the Statute of 23 H. 6. Plowd. com. 67 a. 4. Dive against Maningham. cap. 10. Sheriffs bond void. because the end and in­tent of making that Statute was to prevent all such bonds, &c. made for that purpose: that abuse having béen much practised by Sheriffes before the making of that Statute.

Dyer 48. 19. 32 H. 8.20 If the Plaintife importune a Iuror to appeare and passe upon the verdict according to his conscience, Juror. albeit he was not summoned by the Sheriffe or his ministers to appeare, yet this is not any un­lawfull practise or cause of challenge of the Iuror, 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 Plaintife 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 Plaintife could not have had a new exe­cution, for the execution of lands was valuable, and accounted in Law for a satisfaction, and to avoid infinitenesse, 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 Plaintife after the Defendants death may have new executi­on, untill 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.

Littl. § 237.1 Rescous, Replevin, Dissesin of re [...] and Inclosure are thrée sorts of Rent Ser­vice; because (as Littleton saith) the Lord is by them disturbed of the meanes to come by his rent.

Co. Inst. pars 1. 161. a. 4.2 The turning of the whole streame that runnes to a Mill is a dis­seisin of the Mill it selfe (9 Ass. 19. Mirr. cap. 2. Sect. 15. Britt. 108. 114. Turning a wa­ter-course. 118. 141.)

Co. ibid.3 If a man be disturbed to enter and manure his land, Disturbance. this is a Disseisin of the land it selfe; 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 Kings 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 Moile 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 rent Service, Terrified from distraining. or the Grantée of a rent charge or Seck, be going upon the way to distraine for the rent, and the Tenant hearing it, forestalls his way, and threatens him in such sort, that he dare not procéed for feare of the losse 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 shal, [...] wage. according to the Maxime in Law, Minor jurare non potest) And therefore in that case the default shall not grieve him, for séeing the meane to excuse the default is taken away by Law, the default it selfe shall not pre­judice him.

Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26.6 If the Kéeper of a Parke fell or cut any Trées, Woods, The Keeper [...] a Park making wast. or Vn­der-woods, and convert them to his own use, this is a forfeiture of his office; for destruction of the vert is, by a meane, destruction of ve­nison: So it is also if he pull down any house, wherein the hey, wherewith the Déer are fed, is usually put; for that also tendeth to [Page 95] the destruction of the Déer. 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 custodie 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 kéep 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 barre him of his right, because he hath another remedie, viz. to enter: But where his entry is not lawfull, there a release of all actions is, by con­sequence, a barre of his right, because he hath released the meane, 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 remedie to recover the land; because he had no other meanes 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 lawfull meanes any treasure, or other personal goods what­soever, as also an house for his necessary habitation, and conveniencie of trading, and from maintaining any Action for the same, were in effect to denie unto him Trade and Traffick, which is the life and support as of every Island, so more especially of this Kingdome.

Release of all demands.10 The reason, Co. l. 8. 154. a. 3. Sir Edward Althams case. why a Release of all Demands doth barre a man of all his Right, Title, and Interest in any Lands, Tenements, G [...]ods, Chattels, &c. is because by such a Release the meanes and remedies of recovering them are utterly extinct, and so by consequence, the right and Interest in the things themselves.

Nusances.11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house, Co. l. 9. 58. a. 2. Aldreds case. or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same, or makes the aire infectious or unholsome, 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 Legacie of a Lease.12 A. possest of a Lease for 500 yeares deviseth it to B. for life the re­mainder to C. and his heires and dies; Co. l. 10. 51. b. 3. Lampets case. here albeit the whole terme 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 Legacie or De­vise to C. is in esse and present, and therefore may be discharged, the Interest also, which springs from the Legacie, 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 yeares, and die, the Legatorie after the age of 21 yeares may release this Legacie and devise, and although he afterwards attaine to the age of 24 yeares, he shall be barred to recover it; and yet in this case a Release of all suits and demands shall not barre 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, &c.

Joyn-tenants.14 If there be two Joyn-tenants in fée, Co. l. b. 79. a. The Lord of Aburgavenies case. and one grants a rent charge in fée, and after releaseth to his Companion; In this case, al­beit he, to whom the Release was made, survive the other; yet shall he not avoide the charge; because he which survives, by the accep­tance of the Release hath deprived himselfe of the way and meanes of avoiding the said charge; for, jus accrescendi, the right of survivour-ship was the onely meanes to have avoided it, and the right of survivour-ship is utterly taken away by the release.

[Page 96]15 Dyer 170 b. 1. 1 and 2 El.15 H. 8. Demise of a Forrest. in the 33 yeare of his Reigne demiseth to Sir Richard Cromwell the Forrests of Waybridge and Sapley in Com. Hunt. with the appurtenances for 80 yeares at the yearely rent of twenty nobles, with this clause, viz. that Sir Richard Cromwell his Executors and Assignes should during the terme maintaine 100 Deere there, and them or the like, should leave there at the end of the terme; Now the Lord North who had the Fée simple of the said Forrests, attemp­ted to take the Déer, and give warrants there, but most of the Iudges & Se [...]jeants of both houses were of opinion he could not do it; for all the Game was included in the word and name of the Forrest, a [...]d the hundred Deer were not reserved to be killed, or any of them; beca [...]se then t [...]e Lord North would have debarred the Lessée of the meanes of preserving the Game, and (by consequent) of performing his Covenant, the end of preser [...]ing them being onely for the main­tenance of the Game and Forrests.

Dye [...] 240. 45. 7 El.16 To build a new house upon the Wast or several grounds within a Forrest is a Parpresture and Nusance to the Game, Forest. Nusance [...] and finable at the discretion of the Iustices of the Forrest to suffer it to stand, or otherwise they may demolish it at their pleasure; because it is a pre­judice to the food of the Déer, for the preservation whereof the Forrest w [...]s ordained.

1 H. 6. 4. Finch 59.1 A Déed delivered by an Infant, Delivery of a deed. cannot be delivered againe 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 deli [...]ered againe, viz. when she commeth to be sole, or the party to have somewhat in the land: For the first delivery was meerly 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. &c. 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 beare date the 26 day of May, &c. 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 befor the terme of 21 yeares 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, then 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. Thorough goods case. [...] If a man deliver a Deed of Feofment upon the land in name of [...]eisin of all the lands contained in the Déed, this is a good Li [...]ery; Livery of sei­sin. but if a man onely deliver the Déed of feofment upon the land with­out mentioni [...]g that it is in name of Livery, &c. this amounts to no Livery of the land for it hath another operation to take effect as a Déed. Co. l. 6. [...]6. Sha [...]ps cas [...]. & l. 9. 137.

Co. ibid. 48. b. 34 If a m [...]n be disseised, and make a Déed of feofment, Livery of sei [...] by Attorney. and a Let­ter of Attorney to enter and take possession; and after to make Live­ry secund [...]m fo mam cartae, Co. l. 3. 35. Jennings and Braggs case. this is a good feofment, 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 yeares, and deliver the Deed, and after deliver it upon the [Page 97] ground, A void Lease. the second delivery is void; for the first delivery made it a Déed; and in as much as the Lease for yeares must take effect by the delivery of the Déed, therefore the Déed delivered when he was out of possession was voide: but so it is not of a Charter of Feof­ment; for that takes effect by the Livery and Seisin; And in the other case if the Lessor had delivered it as a Scrowle to be delivered as his Déed upon the ground, this had béen good.

5 A man hath issue a Sonne and dieth, and the wife dieth also; Co. Inst. pars 1 13. a. 2. Then lands are letten for life, Vesting, &c. as a purchaser. rhe remainder to the heires of the wife, the Sonne dieth without issue; In this case the heires of the part of the Father shall inherit, and not the heires of the part of the Mo­ther; because it took effect and vested in the Sonne as a purchaser.

6 If there be Lord, Feme mesne, and Tenant, Co. ibid. 38 E. 3. 12. and the mesne bind her selfe and her heires by her Déed to the acquittal of the Te­nant, Acquital of Services. the mesne takes husband, the Tenant by his Déed granteth to the husband and his heires, that he and his heires shall not be bound to acquital, the husband and wife have issue and die, this issue being bound as heire to his mother, shall not take benefit of the said grant of discharge, for that extends to the heires of the part of the father, and not to the heires of the part of the mother, and therefore the heire of the mothers 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 Sonne endow his wife at the age of 7 yeares ex assensu patris, if she before the death of her husband attaine to the age of 9 yeares, the Dower is good; for in these two cases the right of Dower tooke effect in the life time of the husband hy 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 naturalized 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 meane Lord, Wardship. to his middle Sonne in taile, Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée, 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.

[...]enures 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 Tenures, which hath the like effects and incidents belonging to them, as Soccage hath, are termed Tenures in Soccage, albeit originally service of the Plough was not reserved; as if originally a Rose, a paire 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 séemes in ancient times such Offices were not Voluntiers, nor to be hired for lucre, but were to be bound thereunto by Tenure.

[Page 98] Co. ibid. 90. a. 3.10 A Tenant holdeth land of a Bishop by Knight-service, Chattel vested. which Seigniory the Bishop hath in the right of his Bishoprick, the Tenant dieth, his heir within age, the Bishop either before or after seisure dieth; neither the King, nor the Successor of the Bishop shall have the Wardship, but his Executors, for albeit the Bishop hath the Seigniory 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, unlesse 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 terme of five yeares upon Con­dition, An estate upon conditi­on to have f [...]. that if he pay to the Grantor within the two first yeares 40 marks, that then he shall have fée, or otherwise but for the terme of five yeares, and Livery of Seisin is made unto him by force of the Grant; in this case the Grantée hath Fée simple conditional, &c. and if he do not pay to the Grantor the 40 marks within the first two yeares, then immediately after those two yeares past, the Fée and Frank-tenant is and shall be adjudged in the Grantor, &c. And the reason of this case is grounded upon the effect that the Livery tooke at first: for by the rule of Law a Livery of Seisin must passe 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 passe presently, but expect untill the Condition be performed; And therefore if a Lease for yeares 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 voide, be­cause if it should worke 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) betwéen a Lease for life, and a Lease for yeares; for in case a Lease for life with such a Condition to have Fée, the Fée 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 yeares: There is also a diversity betwéen Inheritances, that lie in grant; and Inheritances that lie in Livery; for if a man grant an Advowson for yeares upon Condition, that if the Grantée pay xx s. &c. within the terme, that then he shall have Fée, the Grantée shall not have Fée untill 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 yeares upon such a Conditi­on, the Fée simple shall not passe 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 Déed of Feofment 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 Déed of Feofment, and therefore shall be subject to the Con­dition.

Co. ibid. 228. a. 1.13 If a Déed be made and dated in a forraigne Kingdome, of lands within England, yet if Livery and Seisin be made, Livery upo [...] forraigne deed. Secundum formam cartae, the land shall passe; for the land passeth, and the grant takes effect by the Livery, and not by the Déed.

Co. ibid. 271. b. 3.14 There is a diversity betwéen a Feofment of land (at this day) up­on confidence, or to the intent to performe his last Will; A feofment the use of a Will. and a Fe­ofment 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 Feofment, because after the Feofment the Feoffor was seised in Fée 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 Feofment, and the estates passe by execu­tion of the uses, which were raised upon the Feofment: Howbeit in [Page 99] both those cases, the Feoffees are seised to the use of the Feoffor and his heires in the mean time.

[...]mainder [...]od though [...]e particular [...]ate taile.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 failes 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 s [...]t­led by Attorn­ [...]ent.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 cleerly void, &c.

Devise by Te­nant in taile not good.17 If a man seised of lands in taile, Littl. § 624. Co. ibid. 334. b. 3. deviseth them to another in fee, and die, and the other enter, &c. 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 Joynture.18 If two Ioyn-tenants within age make a Feofment 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 joyntly entred in their lives, that right shall wholly accrue to him that survives, and he shall enter into the whole, &c. but in this case if one of the Ioyn-tenants had made a Feofment in Fee, and died, the right would not have survived; because the severance of the Ioynture 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 seised by force of the estate taile; because it taketh a­way the entry of him that right hath, as a discontinuance doth: As if Tenant in taile be disseised and dieth, and the issue in taile release to the Disseisor with Warranty; In this case the issue was never seised by force of the taile, 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 Feofment 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 Feofment of an Infant pas­sing by Livery of Seisin be voidable, yet his Warranty, which taketh effect onely by Deed, is meerely void.

Judge Richels case.21 Iustice 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 Sonne, upon Condition that if he should alien them in Fee, &c. that then his estate should cease and be void, and that they should remaine to the second Sonne and the heires males of his body, &c. this was a void limitation; because if the eldest Sonne should alien the lands in Fee, &c. then is the Frank-tenement and the Fee simple in the Ali­enee, and must needs settle and take effect in him and none other; and then how can it remaine to the second Sonne, &c. or how can the second Sonne 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; [Page 100] here, if the Lessor grant the reversion by Fine, the Lessee shall not have Fée; for when the Fine transferreth the Fée to the Conusée, that estate is so setled, 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, Premisses and Habendum d [...] ­versity. and take their essence and effect by the delivery of the Déed without other Ceremony, are granted to one and his heires, Habendum for yeares or life; there the Habendum is repugnant and void; as if a man grant rent, Common, &c. out of his land by the premisses of the Déed to one and his heires, Habendum for yeares or life, the Habendum is repugnant; for Fee did passe by the premisses by the delivery of the Déed, and therefore the Habendum for yeares or for life is void: Againe, if one by Déed grant a rent in esse, or a Seigniory in the premisses to one and his heires, Habendum to the Grantee for yeares or for life: Here, albeit another Ceremony is requisite ( viz. Attornement) besides the delivery of the Déed, yet in as much as they are things that lie in grant and all the estates viz. in Fée, for yeares, or life, ought to have one and the same Cere­mony to passe them, viz. Attornement; for that cause the Habendum is in that case also adjudged void. 3. when land is given by Déed in Fee by the premisses, 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 premisses 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 one­ly the delivery of the Deed; In that case, although the Habendum be of a lesse estate then is mentioned in the premisses, yet the Habendum shall stand; as if land be given to a man and his heires Habendum for yeares; here to the Fee simple limited in the premisses it is requi­site to have Livery and Seisin, and untill Livery be had nothing passeth but an estate at will (if the Deed should go no further) but by the Habendum for yeares, the estate takes effect immediately upon the delivery of the Deed, although Livery of Seisin be never given.

Co. l. 4. 61. Porfe and Hemblings case 2 R. 2. Attorn­ment, &c.24 A Feme Sole makes a Lease for life rendring rent, Feme Sole Attornement. and after by her Deed grants the Reversion to another, and after and before Attornement marries with the Grantee; here, this mariage was not a counter-mand of the Attornement, no more than if she had married with any other stranger; because, in that case, when the Feme by her Déed sealed and delivered had granted the reversion to another, that grant took such effect against her selfe, y ^t she could not by any words, which she could use, counter-mand it before or after the taking of the Baron.

Co. l. 4. 70. b. 4. [...]indes case.25 If a man bargaine and sell lands to another by Deed indented, Fine and Bar­gaine and Sale. and also levy a Fine of the same lands unto the Bargainee, and af­ter the Deed is inrolled according to the Statute; In this case, the Grantee shall be in by the Fine, and not by the Deed inrolled; for when the Fee simple past by the Fine to the Conusee and his heires, the inrollement of the Deed indented afterwards cannot devest and turne the estate out of him, which was absolutely established in him by the Fine; for then 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 concurre, the Common Law shall be preferred.

Co. l. 4. 89. b. 4. Druries case. Co. ibid. 11 [...]. a. Actons case.26 When a Countesse retaines two Chaplains, A Countesse 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; [Page 101] 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 devest 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 Countesse 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. Maries time.27 If two have Title to present by turne, Co l. 5. 10 [...]. Winsors case. and the one presents his Clerke, who is Admitted, Instituted, &c. and after is deprived for crime, or heresie, &c. yet he shall not present againe, but this shall serve for his turne; So if he present mere laicus, which was Admit­ted, Instituted, &c. although he be declared by sentence to be incapa­ble, and therefore void ab initio, yet because the Church was full untill the sentence declaratory came, that shall serve for his turne, 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 mariage ab initio, yet he shall not marry him afterwards; So (27 H. 6. Gard 118.) if the Guardian marry his Ward, and after they are divorced causa precontractus, yet he shall not have the mari­age of him againe: But when the Admission and Institution are meerly void, then without question that shall not serve for a turne; 23 Eliz. Dyer. Pl. ultimo. as if his Presentee had been Admitted, Instituted and Inducted, but had not subscribed to the Articles. &c. according to the Statute 13 El. by which in such case the Admission, Institution and Induction are all void, &c. Likewise where two were to present by turne, and one presented in E. 6. time his Clerke, The principal case in Winsors case. who in Queen Maries time was deprived by sentence, and then the other presented his Clerke, 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 loose his turne; 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 a­gaine by force of his first Presentation, Admission, &c. and there needed no new Presentation, &c. 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 turne; but if the first Presentee had died before the second sentence, or had not re­versed the first sentence, then the Patron of the last Presentee had en­joyed his turne, and could not have presented againe.

Tender of money, &c.28 As concerning the tender of money upon a Mortgage, Bond, Co. l. 5. 114. b. 2 Wades case. &c. upon a certaine day therein limited, although the last time of pay­ment of the money by force of the Condition be such a convenient time before sun-set, as that the money may be told before the Sun be set, yet if tender be made unto him, that ought 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 againe at the last instant of the day, as afore­said: for by the expresse letter of the Condition the money is to be paid upon the day indefinitely, and the Law assignes the last instant, to the end neither of the parties should lose their labour in attending the payment, &c.

Plea of non est [...]actum or [...]udgement si [...]ction.29 In all cases when a Deed is onely 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.) [Page 102] So also when the Déed 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, &c. As if an Obligation be made to the Sheriffe 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. com. 66. A­gaine, when the Obligation or other Writing took at first effect, and was once revera his Deed, but afterwards before the Action brought became no Déed, as by rasure, addition, alteration, break­ing of the Seal or the like, in these cases albeit it were sometimes his Déed, yet may the Defendant safely plead, non est factum; for doubtlesse, at the time of the plea (which is in the present tenures) it was not his Deed. In Dyer 36 H. 8. 59. In debt, the Defendant pleades non est factum, and before the day of Apparence of the In­quest, the mice had eaten the Label, unto which the Seal was fixed, by the negligence of the Clerke, in whose custodie it was kept; whereupon the Iustices commanded the Iury, that, if they found y ^t it was his Deed at y ^e time of y ^e 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 agrée 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 disagrée to it, the Obligor may plead non est factum; for by the re­fusal the Obligation loseth its force, and becomes no Déed. 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 Fée joyn in a Lease to C. this immediately after the delivery takes effect in this manner, Where a Lease enures by grant or confirmatio [...]. 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 y ^e 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 joynt Demise from A. and B. his count is not good. And in that case although the Lease be by Déed indented, yet shall it not worke any conclusion; for when the Déed 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 yeares of the Tenant for life by Déed 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 heire within age, Marriage d [...] to the Lord. Chattel ve [...] presently the value of his mariage, 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 heire within age be made a Knight, and to that purpose in Iudge­ment of Law is estéemed of the full age of 21 yeares, yet shall the Lord have the value of his mariage, as well as the custodie of his land till his age of 21 yeares, which last to remove all doubt, was expressely given to the Lord by Magna carta cap. 3.

Co. l. 7. 17. b. 3. Calvins case.32 If a King hath a Kingdome 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 [Page 103] King­dome he doth inherit it, Lawes with­out Parlia­ment. he cannot change those Lawes of himselfe, without consent of Parliament: So also if a King hath a Christian Kingdome 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 succéed­ing King could alter the same without Parliament.

A Recogni­sance chargeth a rent after re­lease to the Terre-tenant.33 The Grantée of a rent charge issuing out of land acknowledgeth a Recognisance, and afterwards releaseth to the Terre-tenant, Co. l. 7. 38. b. 3. &c. 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 Fée, 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 Bishoprick, 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 heire 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 Kings hand, causa qua supra. Likewise if a man be seised of an Advowson in Fee in grosse, or appendant to a Mannor, and the Advowson voides, and he dies, his Executors shall have the presentation and not the heire; because it was a Chattel vested and se­vered from the Mannor; neither shall the heire in taile have the pre­sentation which falls in the life of the Tenant in tail, but the Execu­tors of the Tenant in tail, &c.

The like.35 The Termor shall have the presentation, Fitz. 34. b. & N▪ which happens during the terme, albeit during the terme 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, &c. 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 heire after the age of 14 yeares, Fitz. 142. h. and after the heire is taken by a stranger, yet the Guardian shall not have a Writ of Ravishment, because he hath had the effect of his mari­age.

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 him­selfe 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 performe the Condition in the same plight and freedome, 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.

Co. Inst. pars 1 16. b. 2.1 If a man be called by Writ to the Parliament, No Peer un­lesse 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 bloud is ennobled to him and his lineal heires; 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 per­forme the effect or consequence of the Writ, which is, personaliter in­teresse cum Rege & cum Prelatis, magnatibus, &c. Super arduis & urgentibus negotiis &c. consilium suum impensurum, &c.

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 seipsū regere nescit: And by y ^e like reason, An man non compos mentis, a Lunatick, 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 heire; because he cannot be accomptable 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 heire shall present himselfe.

Co ibid. 100. a. 4.4 If two Ioyn-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 Ioyn-tenants Mesnes, and in a Writ of Mesne brought a­gainst them, one maketh default, and the other appeares, 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 disclaime in the Seigniory; 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 Villaine, No appeale by Lord a­gainst his Vil­laine. he shall be indicted for it at the Kings 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 againe. Vide infra 38. 1.

7 In a Quid juris clamat brought by two Executors, Non-suit of one executor is of both. the non-suit of the one is the non-suit 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 claime ne­cessary. and when he cannot en­ter he must make a claime; Co. ibid. 218. a. 3, & 4. And his claime is to procéed 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 claime: 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 claime, because he cannot enjoy the effect of his claime, viz. to enter into the land: As in the case of Littleton Sect. 350. If land be granted to a man for 5 yeares upon Condition, that if he pay unto the Grantor within two yeares 40 marks, that then he shall have Fee, or otherwise but for the terme of 5 yeares, if in this case the Grantee do [Page 105] not pay unto the Grantor the 40 marks within the first two yeaaes, then immediately after those two yeares past, the Fée and Frank-te­nement is in the Grantor without entry or claime, &c. Vide 34. 11. and 55. 109.

[...]ersity of [...]ctione and [...]ise.9 If an Ejectione firma be brought, Co. ibid 285. a. 3. and the terme incurreth hang­ing the Action, yet the Action shall proceed for damages onely, because an Ejectione doth lie after the terme for damages onely; but if Te­nant pur auter vie, bring an Assise, 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 Assise, which is to have as well the Land as the Damages, and not Dama­ges onely, 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 Plaintife 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 Iudgement is given upon a false verdict in a real Action; for there also a release of all Actions real, is a good barre in an Attaint, &c. for that (in these two last examples) both the Writ of Error, and the Writ of Attaint do insue the nature of the for­mer Action, &c.

No Audita [...]aerela after [...]lease.12 If the Defendant in a personal Action doth after Iudgement entred release unto the Plaintife all Actions personal, Co. ibid. he shall not af­terwards bring an Audita quaerela; because after he hath released to the Plaintife all Actions personal, he cannot have the effect of that Writ, which is to discharge himselfe of a personal execution.

No Formedon against tenant for life.13 Tenant in taile 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 taile himselfe hath it.

No entry after [...]elease.14 If Feoffée upon condition make a Lease for life or a gift in taile, 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 regaine his ancient e­state.

No action of [...]espasse for [...]oile by Co­ [...]ies.15 If a man plant Conies 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 adjoyning, yet shall not his neighbour maintaine 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 trespasse committed; for immediately after the Conies come into the neighbours 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 y ^e Title in case of exchange, condition upon Mortgage, &c. Mortmaine, consent to the Ravishor, and the like; because for these no Action lies, in which there m y be Voucher or Rebater.

[Page 106] Co. l. 11. 29. b. 3. Alexander Powlters case. Ibid. fo. 30. a. 3.17 Before the Statute of Articuli cleri cap. 15. No Clergie [...] 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, &c. for by intendment of Law he cannot (against his expresse 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 Colledge case. 22 E. 3. Tit Co­ronae 276.18 It is provided by the Statute of West. 2. cap. 12. In appeal a Monke can have dam [...] Quòd se appellatus de felonia, &c. se acquietaverit, &c. restituant hujusmodi appellatores damna appellatis. Yet if an appeal of death had béen brought against a Monk, who had been acquit, and thereupon had prayed his damages accor­ding to that Act, he should not have béen 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; Voucher li [...] not in cop [...] nery. because the Demandant cannot have the effect thereof, viz. to recover in value, in respect of the privity of bloud betwixt them, &c.

F.N.B. 31. f. Co. Inst. pars 1. 127. a. 1.20 In all originalls brought by a Subject, The King i [...] not give pl [...] es de prose­quendo. wherein pledges de pro­sequendo are to be found, the preamble of the Writ is, Rex vicecom. salutem, &c. Si A. fecerit te securum, &c. tunc summoneas, &c. But at the Kings suit the preamble shall be, Rex vicecom. salutem, &c. summo­nens per bonos summum, &c. and not, Si Rex fecerit, &c. 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 non-suited; because he is alwayes 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, &c. 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 grosse sans number; because such a Commoner cannot be admea­sured, &c.

Pl. Co. 11 c. a. 1. Fulmerston and Stewards case. West. 2. cap. 21.23 The Statute of Westm. 2. ordaines, No Cessa [...] for the bei [...] Quòd fiant brevia de ingressu haeredi petentis, super haerodem tenentis, & super eos, quibus alienata fu­erint hujusmodi tenementa, &c. yet if the Demandant in a Cessavit die, the heire shall not have a Cessavit; because he cannot have the effect thereof, viz. to recover the arrerages; 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 with-draw his Service, Tenant in Frankalm [...] not distrai [...] ble. the Lord shall not distraine, commence any suit, or séek any remedy for it, in foro seculari, in any Temporal Court; because that Service, be­ing Spiritual and uncertaine, 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 cer­taine, shall be recovered in foro seculari, and the performance or non-performance thereof shall (upon a distresse and Avowry) be tried by a Iury of 12 men, &c.

Co. Inst. pars 1. 46. a. 2.25 The Termor for yeares (before the Statutes of Glocester 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 falsifie 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 [Page 107] 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 certaine rent, the one Coparcener hath issue and dies, in this case the Aunt and Neice could not joyn in a Cessavit, because the Neice (though heire 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 Mothers time, for that they did not belong unto her, but unto her Mothers Executor, &c.

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 co-habit againe together, be­cause (as they said) Sancta Ecclesia decepta fuit in priori judicio.

Inheritances depend not upon uncer­taine 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. &c.) or (goe about, &c.) or, (enter into communication, &c.) 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 yeares; 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 Iustice said, that in this case, it is not sufficient to say, Quòd praedictus Johannes non praemisit praedict. execut. &c. quietè habere, removere & capere praedict. bona, or quòd praedict. Johannes impedivit illum, &c. but he ought to alleadge 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 certaine answer, and upon which a certaine issue may be taken, where­of the Iury 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 Bagge being a Capital Burgesse of the Town of Pli­mouth behaved himselfe contemptuously towards the Major there, Co. l. 11. 98. a. 3. Sir James Baggs case. and said unto him, You are a cosening knave, come kisse mine, &c. and per­swaded A. and B. Vintners, that they should not pay Wine-waight, &c. whereupon the Major removed him; but upon complaint in the Kings 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 Burgesse, and to the prejudice of the Common-Wealth of the City or Burrough, whereof he is Citizen or Burgesse, and against his oath which he took, when he was made frée­man there: but words of contempt, or contra bonos mores, albeit they be against the chiefe Officers, and his brethren, may be good causes to [Page 108] punish him, and to commit him, till he put in sureties for the good beha­viour, but not to disfranchise him: So likewise, if he intend or endeavour of himselfe, or conspire with others to do any thing against the duty & trust of his fréedom, and to the prejudice of y ^e Common-wealth of the Ci­ty or Burrough, &c. 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 Frée-man of a City or Burrough, he hath Franktenement in his fréedome for his life, and together with others (in their politique capacity) hath inheritance in the lands of the Corporation, & interest also in their goods, and perad­venture it may concern his trade and meanes of life, and his credit and estimation; And therefore the matter, which shall be cause of his dis­franchisement, ought to be some act or déed done, and not a bare indea­vour 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 Parke cann [...] be without some overt act. shall not forfeit them by bare endeavours or intentions of doing acts, although they de­clare them by expresse words, except the Act it selfe be put in execution; As if the kéeper of a Park shall say, I will kill all the Game within my cu­stodie, or, I will cut downe so many trees within the Park, &c. but in the mean time kills none of the Game, nor fells any of the trées, this is no forfeiture, &c.

Co. ibid. b. 4.5 If a Bishop, Arch-deacon, Parson, &c. cut downe all the trées, Deprivation cannot be without so [...]e overt act. &c. 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. Neverthelesse if in these or the like cases there be but an endeavour or enterprize without doing any such act, there can be no cause of deprivation; for in such cases, Voluntas non reputatur pro facto.

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 terrour of another: And if thrée 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 generall authority, or licence given by the Law, the Law judgeth by the act subsequent, quo animo, or to what intent he entred; for, Acta exteriora, &c. but when the party gives authority or licence himselfe to do any thing, he can for no cause subsequent punish that, which is done by his owne licence and authority: And therefore when as the Law gives authority to enter into an Inne or Tavern, to the Lord to distraine, to the owner of the soile to distrain damage fesant, to the Reversioner, to sée whether wast be committed, to the Commoner to enter into the land to see his Cattell 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 Inne or Taverne commit trespasse, as if he cary any thing away from thence; or if the Lord, that distraines for rent, or the owner for damage [Page 109] fesant weary, or kill the distresse, or if hee that enters to view the wast, do hurt to the houses, or stays there all night, or if the Commoner cut down a trée, &c. In these and the like cases the Law will adjudge, that he entred for that purpose; and therefore in as much as the Overt act, which he doth, is a trespasse, 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 Kings houshold by force of his Commission, A purveyor a trespasser. that is lawfull; 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 ge­nerall Act precedent, as Peter Vavasor, octabis Hill. suffers a recovery, Co. l. 9. 11. a. 3 Dowmās case. and by indenture made 15 of February, betwéen him and the recoverors li­mits the uses and dies, Dowman and his wife, the daughter and heire of Peter, &c. brings an Assise 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 taile hath issue two daughters, and die, and the eldest enter into the whole, and after thereof make feoffment with warranty, this is lineall warranty for the one moity, and collate­rall for the other; for the feofment subsequent doth declare the inten­tion of the general entry, viz. that it was onely for her selfe, or other­wise it would be warranty, which should begin by disseisin for the one moity; A distress sold makes it a trespasse. and with this agrees Littleton, cap. Garr. fol. 160. If the Lord come upon the tenancy, and take and drive away an oxe, if he impound him, the taking of him shall be adjudged as for a distresse, but if he kill him, that subsequent act declareth what his intention was ab initio, and so shall he be déemed a trespasser, &c. as aforesaid, and with this agrées 12 E. 4. 8. b. 28 H. 6. 5, &c.

Lord, Mesne, and Tenant distresse.5 If there be Lord, Mesne, and Tenant, Co. l. 9. 22. b. 3. The case of Avowrie. and the Mesne payes 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 Tenants instance ought to take out his cattle, and to put his own into the pound; and then if the Lord will not suffer the Mesne so to do, the Lord shall be déemed a trespasser ab initio; for the Lord doth not then use the cattle in the nature of a distresse, &c. 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 sonne in law Gore, being sicke, procured an Electuary of one Martin an Apothe­cary by the advice of Doctor Grey, into which Agnes did secretly put Rats-bane, with purpose to poyson her husband, and May 18 gives part thereof to her husband, who thereupon became very sicke, Roper also eate thereof, and likewise became very sicke; add last of all, Martin be­ing taxed for it, stirs it and eates 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 joyns the mur­derous intention of Agnes in putting the poyson into the Electuary to kill her husband, with the event, which ensued thereupon, viz. the death of Martin; for the putting of the poyson 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 poyson 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 himselfe, Co. l. 9. 136. b. 4. Thorough 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.

[Page 110] Dyer, 98. b. 56. 1 Mar.8 If two or more conspire to commit treason, as to levie 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, &c.

Dyer 224. 30. 5 Eliz.10 An offence shall not be adjudged Robbery, Robbery. unlesse the Thiefe doth not onely take some-what from the person, but likewise put him in feare of death; and therefore in 5 Eliz. where a thiefe tooke 40 s. from the person of another in the high way, without putting him in feare of death, it was adjudged onely bare felony, for which he had his Clergy, for by not putting him in such feare, 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 reliefe of his Majesties Armie in the Northern parts, that Act and all other Acts of continuance are to continue in force, untill some farther Act of Parli­ment be made for the continuance or discontinuance of the same.

1 If the Lord mayhem his Villain, he shall be indicted for it at the Kings suit; Littl. § 194. Co. Inst. pars 1. 126. a. 4. & 127. b. 1. The appeal [...]y a Villaine a­gainst his Lord. but in that case he shall not have an appeale 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 Forreign Country, Forreign pro­fession not pleadable. the Defendant shall not plead in disability of their person; because that profession will want tryall here in England: It is otherwise if they were professed in England, for that might be tryed by the Certificate of the Ordi­nary.

3 If a man enfeoffeth another of an acre of ground with warranty, The heire and youngest son vouched tog [...] ­ther. & hath issue two sons, Co. ibid. 376. a. 3. & dieth seised of another acre of land of the nature of Borough English, and the feoffée is impleaded; Here, albeit the war­ranty descendeth onely upon the eldest son, yet may he vouch them both, the one is heire to the warranty, and the other as heire to the land; For, if he should vouch the eldest sonne only, then should he not have the fruit of his warranty, viz. a recovery in value, and the youngest sonne only he cannot vouch, because he is not heire 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 ought to be averred, thus, Et hoc parat. est verificare, &c. Howbeit pleas méerly in the negative ought not to be a­verred, because it were in vaine to aver them, in regard they cannot be proved.

[Page 111] The issue after discontinu­ance cannot enter.5 If Tenant in taile release to his Disseisor, Co ibid. 318 a 4. and binde himselfe and his heirs to warranty, and die, and this warranty descends upon the is­sue, this works a discontinuance, so that the heire cannot enter, but is put to his action; for if the issue in taile 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, &c. Vide 15. 9.

It is vaine to give a man what he had before.6 It is a vaine 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 taile, sa­ving the reversion to the Donor, and after the Tenant in taile by his déed infeoffs the Donor in fee; this is no discontinuance of the estate taile; 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 owne 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 worke the wrong, it enureth to the Lessor as a surrender for the one moity, and a forfeiture, as to the remainder of the stranger; for, he cannot give to the Lessor that which he had before, &c. So likewise, if there be two Ioyntenants, and one of them enfeoffe his companion and a stranger, and make livery to the stranger, this shall vest onely in the stranger, be­cause the livery cannot enure to his companion, who was before possest of the land, per my, & per tout, &c.

Remainder granted for the life of the Tenant in tail void.7 If there be Tenant in taile, remainder in taile, Co. lib. 2. 51. a. 3. Sir Hugh Cholmleys case. and the remainder in taile bargains and sells the land, and all his estate, &c. by Indenture inrolled, &c. to I. S. to have for the life of the Tenant in taile, and to his heirs males, the remainder to the Queen, &c. Here the remainder to the Queen is voyd, because the Grantee for the life of the Tenant in taile 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. &c. 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 sonne within age: In this case, the sonne shall be in Ward in the life of the Feme by the Stat. of 4 H. 7. as heire of Cestuy que use, because the ancient use doth still remain in the sonne, notwithstanding it be in some sort altered in respect of the Feme; for by the last feofment, the sonne had no more conferred upon him then he had before, so as (notwithstanding the last Feofment) there was still a reversion of use in the sonne, and not a new remainder; because a thing cannot be gi­ven to a man, which he hath already. Vide plus ibidem vers fine. So Ce­stuy que use of two acres, one holden by priority, the other by posteriori­ty, makes a Feofment 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 infe­offe the recoveror, he shall be still seised to my use; for he shall be adjud­ged in by the recovery, and not by the Feofment.

Co. Inst. pars 1. 389. b. 3. Littl. § 743.1 If Tenant in taile enfeoffe his Vncle in fée, Warranty de­stroyed. who aliens to a stranger with warranty, to hold to him and his heires, or to him his heires and assignes, and the Vncle afterwards takes again an estate of the land in fée; in this case the warranty is destroyed, because it were néedlesse for the Vncle to warrant the land to himselfe, and the Law will not command or suffer things that are in themselves uselesse and unprofitable.

Co. l. 5 89. a. 4. Frosts case.2 When a man is in the custodie of the Sheriffe by process of Law, A prisoner in custodie needs not be formal­ly arrested. and after another Writ is delivered unto him to take the bodie of him that is so in his custodie, he is immediately (by judgement of Law) in his custody by force of the second Writ, albeit he make no actuall arrest of him; for to what purpose should he arrest him, when he is al­ready in his custodie? Et lex non praecipit inutilia, quia inutilis labor stul­tus, &c.

Co. l. 6. 29. b. 2. Greens 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 néedlesse to ob­taine such a sentence, when the Living is already voyd, 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 processe, In a Judiciall writ the plain­tiff shall not find pledges. the Plaintiffe shall not be enjoyned to finde pledges de prosequendo; for in those processe, although the Plaintiff be barred, nonsuited, or that the Writ abate, yet shall he not be amercied, because such processe are grounded upon a judgement and record; And it is a needlesse and vaine thing to binde the Plaintiff to finde 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 Londons case, the Constitution there made appearing to be agréeable to, and warranted by their Char­ter, néeded not to be so averred. So also no price of money, shall be ex­pressed in the Writ, because it appears of it selfe, 46 E. 3. 16. Like­wise 12 H. 4. 17. The sonne within age brings an Assise 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, &c.6 In a speciall verdict concerning a Bargain and Sale, Demise, The conside­ration not to be found by a Jury. or the like, the Iurors shall not be constrained to finde the payment of the money, mentioned amongst the other considerations; for it shall be néedlesse to finde that; which is affirmed to be already payd and satisfi­ed in time before the Grant, and is a personall consideration already executed; And this is true, as well in the Kings 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. &c. 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 bée had against him; because in an Attaint, the judgement is, that he shall be restored, &c. and it were improper and néedlesse 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 hee seemes rather to favour this opi­nion, &c.

[Page 113] [...] 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 sheweth by his count, that neither the Defendant nor any of his Ancestors, nor any other by whom he claims, &c. were in possession of the land, &c. nor of the reversion or remainder, &c. nor received the rents or profits, &c. by the space of a yeare, &c. The Plaintiff néed not aver the title to be pretenced; for the Statute it selfe maketh the right of him which hath not béen so in possession, to be pre­tenced; and therefore to aver that, which appears plainly by the Sta­tute it selfe and the Declaration, is néedlesse and impertinent: So if it be pleaded, [...]eed of [...]nment. that the Lessée surrendred to the Grantée of the reversion, there is no néed of pleading attornment; for attornment is included in the surrender.

[...]e shall be endow­ [...]1 If a man be Tenant in fée taile generall, Co. Inst. pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée, and takes back an estate to him and his heires in fée, 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 fée, which her Husband had during the coverture; Now, that Fée-simple vanished by the remitter of the heire in taile, and therefore her title of Dower must néeds vanish also: For, her issue hath not the land by the descent of the Fée-simple, but by force of the intaile; There is the same law, where the Tenant in taile disseiseth the discontinuee, &c.

[...]ery voyd.2 When a déed of Feoffment is void in it selfe, Co. ibid. 48. b. 1. if livery be made ac­cording to the forme and effect of that déed, the livery is also voyd; As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs; this is a voyd déed, because he cannot reserve to him­selfe a particular estate, and if livery be made according to that déed, the livery is likewise voyd; because the livery referreth to a deed, that hath no effect in Law, and therefore cannot worke, Secundam formam & effectum of that déed, &c.

[...] action of [...]st gone.3 Regularly none shall have an action of Wast, Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance, and therefore if hanging an action of Wast, an estate taile determines, and the Plaintiff becomes Tenant in taile after possibility, &c. the action of Wast is gone.

[...]cting of [...]ses shall [...] now for­ [...]the the land.4 In ancient time, Co. ibid. 92. b. 4. amongst divers wayes 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 privi­ledge 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 Common-wealth all such superstitious reliques, the danger of forfeiting Lands that way is also banished.

[...]mage may [...]epealed.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 Mannor of Dale, whereof B. is seised in taile; B. discontinueth the estate taile, and taketh back an estate in Fée-simple; A. doth homage to B. B. dieth seized, and the Issue in taile entreth; In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail, and the estate in fée, that his father had (in respect whereof the homage was done) is vanished, and therefore the homage it selfe is also vanished; for the heire in taile is in of a new estate, in respect whereof A. ought to doe a [Page 114] a new homage. So likewise it is, when the Tenant hath done homage, and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat, &c. by a Stranger; In this case also the Tenant shall do homage againe to the Stranger; because the estate of him, that re­ceived the first homage, is defeated by the recovery, &c. It is other­wise when the Mannor is aliened to a Stranger, or descends to the heire 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 néeds the Action it selfe also faile, as if an out-lawed 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 it selfe in barre of that Acti­on, and shall thereby conclude the Plaintife: It is otherwise in real or personal Actions, where the damages are uncertaine (as in trespasse 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 Taile of a Mannor, whereunto a Villain is regardant, No ma [...] sion by [...] brought [...] Lord. enfeoffeth the Villaine of the Mannor and dieth; Here the issue after recovery of the Mannor in a Formedon against the Villaine, may seise the Villaine, and the bringing of that Writ in this case shall worke no manumission, because at the time of the Writ brought he was no Villaine, and the estate, by reason whereof he might claime the priviledge of manumission, being defeated, the manumission it selfe is also defeated.

Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden.8 A man by Déed grants a rent of 40 s. to another out of the Man­nor of D. to have and perceive to him and his heires, Rent o [...] land er [...] and grants over by the same deed (or by another) that if the rent he behind, the Gran­tée shall distraine in the Mannor of S. Here, both the Mannors are charged, the one with the rent, the other with a distresse, the one is­suing out of the land, the other to be taken upon the land; And in this case if the Mannor of D. be evicted by an eigne Title, all the rent is extinct, and so (by consequence) both the Mannors discharged, but if the Mannor of S. be onely evicted, all the rent doth still remain, &c.

Co. ibid. 158. a. 4.9 If a Pannel 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 trie the array of the Tales; for now it is, as if there had been no apparance at all of the Principal Pannel; but if the Triors affirme the array of the Principal; then shall they also trie the array of the Tales, &c.

Co. ibid. 223. b. 1. & 224. a. 3.10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine, this is good, Good co [...] ons. because the Condition is back­ed by a Statute Law; for such Alienations are prohibited by the Sta­tute of Mortmaine: And regularly whatsoever is prohibited by Law, may be prohibited also by Condition, be it malum prohibitum or malum in se. In ancient Déeds of Feofment in Fée, 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 inferiour Courts be barred by the Common Law in some Statute Law, or warranted by some lawfull and reasonable Custome of the place, or are good for the Common-wealth; although there be but a few of the Iury that make them, yet those Orders, or By-lawes will bind all the rest of the inhabitants within that Iurisdiction; by reason of the firme foundation, upon which they are grounded, &c. So like­wise if Tenements be given in taile, 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, &c.

[Page 115] Release to one having onely 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 yeares, 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 Taile, or in Fée, 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 worke: 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 worke, &c. And therefore if lands be given to a man in taile, Litl. §. 455. reser­ving to the Donor and his heires a certaine 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 D [...]nor, 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 taile as he was before. So likewise if there be Lord, and Tenant, and the Tenant makes a Feofment 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, &c.

Releases good and void.12 If a man let his land for terme of yeares, Lit [...]. Sect. 459. Co. ibid 270. a. 3. and the Lessor re­leaseth to the Lessee all his right, &c. before the Lessee entreth into the land by force of the Lease; such a release is void, because before entry he hath but interesse 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 yeares in possession make a Lease to B. for five yeares, 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 yeares, the remainder for yeares, and the first Lessee doth enter, a release to him in the remainder for yeares 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 yeares; for before the Lessee for yeares enter, a release made to him is not good, as aforsaid; 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 heires 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, &c.

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 entreth into Warranty, the Demandant releaseth to him and his heires; 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 worke upon an estate, that is not, or how can his estate be enlarged, that hath not any? So if a Tenanthy the curtesie grant over his estate, he is still Tenant as to an Action of Wast, Attornement, &c. and yet a release to him and his heires cannot enure to enlarge his estate, that hath no estate at all, &c.

Release for a time good for ever.14 When a man is seised of any lands in Fée 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 heires; because he had Fée simple at the time of the [Page 116] 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 heires, &c. as if there be Disseisor and Disseisée, a release by the Disseisée to the Disseisor is good without the word heires, to establish the estate to him and his heires, &c. 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 Feofment 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 law­full.

Littl. § 475. Co ibid. 277. a. 2,16 A man that hath a Sonne 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 heire, and a Stranger abates, and after the Sonne, when he comes to full age, releaseth all his right to the Abator; In this case, the heire of the Disseisor shall not have an Assise of Mortdan­cester against the Abator, but shall be barred; because the Abator is armed with the right of the Sonne of the Disseisee by his release, and the entry of the Sonne 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, &c. for then a release to the Abator, &c. 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 terme of life, Confirmation not good. the remain­der over in Fee, and I confirme the estate of him in the remain­der, without any Confirmation made to the Tenant for terme 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. &c. for in that case neither could I have entred upon Tenant for life, least I should have thereby also destroyed the reversion against my own Confir­mation, &c. And therefore it hath been adjudged, that if a Disseisor make a Lease for life, and after levie a Fine of the reversion, and the five yeares passe, so as the Disseisee is for the reversion barred, he shall not afterwards enter upon the Lessee for life; Reported by Sir John Pop­ham Chiefe Justice. because then the Disseisee by entry upon the Tenant for life should also regaine 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, neverthelesse it faileth in [Page 117] 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 Fée, 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 againe 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 Seigniory to A. for life, Co. [...]bid. 310. a. 1. the re­mainder to B. in fee; A. dieth, and then the Tenant attorns to B. this at­tornement is voide; 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.

Rev [...]rsion void.21 Tenant in taile makes a Lease for life to A. for the life of A. and after grants the reversion to B. in fee, the Tenant in taile dies, Co. ibid. 333. a. 2. and after that A. dies; In this case the entry of the issue in taile is law­full; 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.

Rent, Com­mon, &c. char­ged upon the land, where good or void.22 If Tenant in taile enfeoffe the heire in taile, 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, &c. and after the Tenant in taile dies, whereupon the heire is remitted; In this case by the remitter the grant of the Rent, Common, &c. is determined; because the Grantor had not any right of the estate in taile in him at the time of the grant, but onely the estate in Fee sim­ple gained by the Feofment, which is wholly defeated, and the state of the land, out of which the Rent, Common, &c. issued, being de­feated, the rent is defeated also: But if Tenant in taile make a Lease for life, whereby he gaineth a new reversion in fee (so long as Te­nant for life liveth) and he granteth a rent charge out of the reversi­on, and after Tenant for life dieth, whereby the Grantor becometh Tenant in taile againe, and the reversion in fee defeated; yet because the Grantor had a right in the entaile in him, cloathed with a defea­sible Fée simple, the rent charge remaineth good against him, but not against his issue, &c.

The like.23 If the heire apparent of the Disseisée disseise the Disseisor, Co. ibid. a 3. and grant a rent 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 Grand-father, and granteth a rent charge, and dieth, now is the entry of the Grand-father taken away; if after the Grand-father dieth, the Sonne is remitted, and shall avoid the charge, &c.

A Discontinu­ance defeated as also all that depend [...] there­ [...]pon.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 re-en­try, &c. and because the rent is arreare, the Discontinuee re-enters for this entry, the Baron with the Feme cannot have an Assise of No­vel disseisin, because he is estopped, &c. but the Feme after the death of the Baron, shall have such an Assise against the Discontinuee; be­cause [Page 118] 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. &c. aliens the land belonging to his house, Bishoprick or Deanary, &c. without assent, &c. and after the Alienée chargeth the land; and then the Abbot, Bishop or Deane, &c. by licence resumes an estate again to him and his Successors, and after the Abbot, Bishop or Deane, &c. dies; In this case the Successor shall defeat the charge; because by his remitter he defeats the estate, out of which it was granted, &c.

Littl. § 690. Co. ibid. 361. b. 3.26 If judgement be given against Tenant in taile upon a feigned or false action, and the Tenant in taile die before execution, Tenant in taile. Feigned reco­very. by which the lands descend to the Issue in tail, and then he that recovers sues a Scire facias out of the judgment to have execution thereof against the issue in taile; Here, if the issue plead to the Scire facias, and prove the recovery to be false (which was the ground of the Iudgeme [...]t) he shall thereby barre the Demandant to have execution of that judgement: It is other­wise when the Tenant in taile voucheth and recovereth in value, &c. by reason of the intended recompence, &c.

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 béen Tenant for life, the remainder or reversion to the next heire, and the woman had aliened in fée with warrany, and died, this warranty being colla­terall had barred the heire in remainder or reversion; howbeit in that case if the heire that had the reversion or remainder had by entry in the life of the woman avoyded the estate so aliened, the warranty being annexed unto that estate, had béen avoided also.

Co. ibid. 385. a. 4.28 If a man make a gift in taile at this day, Warranty [...] ­tinct. and warrant the land to him, his heirs and assignes, 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 taile, whereunto it was knit, is spent: It had béen otherwise, if the Feoffment had béen 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 Colledge case, & l. 10. 96. b. Seymors case.

Littl. sect. 741. Co. ibid 389. a. 3.29 If Tenant in taile discontinue the taile in fee, The lik [...] and the Disconti­nuée is disseised, and the brother of the Tenant in taile releaseth by his deed to the Disseisor all his right, &c. with warranty in fee, and dieth without issue, and the Tenant in taile 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 heire in taile well have his action of Formedon, &c. be­cause the warranty is defeated; for when the estate, whereunto a war­ranty is annexed, is defeated, (although it be by a méer stranger, as in the case abovesaid) the warranty it selfe is also defeated: Sublato prin­cipali tollitur adjunctum, Littl. sect. 74 [...]. &c. So likewise if the Discontinuée make feoff­ment in fee, reserving rent, and upon default, &c. a re-entry, &c. and a collateral warranty of an Ancestor is made unto the Feoffee upon con­dition, &c. 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. Paines case.30 If a woman Tenant in taile general taketh an husband and hath issue, which issue dieth, and the wife dieth without any other issue, Tenant by [...] Courtesie. yet the husband shall be Tenant by the Courtesie, albeit the estate taile be determined, because he was entitled to be Tenant per legem Angliae, before the estate taile was spent, and for that the Land it selfe remain­eth. [Page 119] But if a woman make a gift in taile, and reserve a rent to her and to her heirs, and after taketh husband and hath issue, and the Donee dieth without issue, Rent extinct and newly. the wife also dieth; In this case, the husband shall not be Tenant by the courtesie 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 seised in fee of a Rent, and maketh a gift in taile generall 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 Courtesie of the Rent, because the Rent remaineth, &c.

A lease for years determi­ned.31 A. Lessee for the life of B. makes a lease for yeares by deed inden­ted, and after purchaseth the reversion in fee, B. dieth; Co. Inst. pars 1 47. b. 4. In this case A. shall avoyd his own lease, although it be by deed indented; for he may confesse and avoyd 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 it selfe must needs also determine.

Leases for years.32 If a man take a lease for yeares of his own land by deed indent­ed, the estoppel in this case doth not continue after the terme ended; Co. bid. M. 31, 32 Eliz. Lon­dons 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 terme 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 himselfe 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 reall executory, may extend to an estate in futuro having an estate whereupon it may worke in the beginning: But if a man grant a Seigniory 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 déed, 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, &c.

Remainder grants Rent charge voyd­able.34 A. is Tenant in taile, the remainder to B. in taile, Co. lib. 1. 62. b. 4. Caples case. B. grants a rent 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 instante that it determines.35 A. seized of land holden in Socage deviseth it to D. for life, and after to the next heire 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 least eo instante, 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 it selfe must needs be also determined and voyd; 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 [Page 120] 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 taile 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, &c.

Co. l. 2. 52. a. 4. Sir Hugh Cholmleys case.38 If a man make a gift in taile, the remainder in fée, The like. he in the re­mainder grants his remainder to another for life, the remainder to the King in fée, upon condition that if he pay or tender 10 l. at the Rolls, &c. that then the grant shall be void: The tenant in taile suffers a recovery, and thereby destroys not onely the estate taile it selfe, but likewise the remainder in fée, 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, &c.

Co. lib. 2. 55. Bucklers case.39 There is a diversity betwixt a grant made by the agréement 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 agréement 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 voyd, 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 evill one, which wants a foundation whereon the structure may stand, and be built, &c.

Co. lib. 4. 24. a. 1. Copihold ca­ses. Clarke and Penyfathers case.40 If a Disseisor or the feoffée of a Disseisor, or any other, Admittances of copihold. 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 Copi-hold; such voluntary grant shall not bind him that right hath; for when after re-continuance of the Mannor by a­ction or entry, he shall have defeated the title of such Disseisor, &c. he shall also avoyd 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 heire upon descent, such admittances are good, because grounded upon the custome of the [Page 121] Mannor, and therefore such acts are lawfull, and quodam modo judicial, which he may be forced to do in a Court of Equity; and for that cause such admittances will binde those that right have, &c.

Copihold [...]ce leased, [...]e custome is [...]estroyed.41 If a Copihold 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 déed or without déed, 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, &c. In all these cases and the like, the custome which supports the Copi­hold tenure being destroyed, the tenure it selfe is also destroyed, so that it shall never after be granted by Copie, or holden by Copie of Court Roll; Howbeit after it is so forfeited or escheated as aforesaid, the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it; and yet the Custome shall be preserved, because it is all that while demised or demisable, and so it ought to be by the Cu­stome, &c.

[...]ease void [...]on a void [...]nsideration.42 The Kings patentée for years assigns divers parcells of the land to other severall persons, still reserving to himselfe part thereof, Co. l. 5. 94. a. 1. Barwicks case. and takes another lease in reversion for 21 years, the principall 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 thrée 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 néeds be void also.

[...]meys ac­ [...]ats.43 If a Writ abate for Non-tenure of all, Co. l. 6. 10. a. 4. Spencers 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 Mannor being abated for non-tenure of parcell, the Demandant shall have a Writ by Journeyes 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 parcell of the Mannor 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 Bedfords case. shall be ever after avoided, and when not, this difference is taken, viz. when the interest of him that makes the avoydance, is but for part of the terme, so that after his interest determined, a residue of the terme doth still remain; and when he, that makes the avoydance, so avoyds the whole interest, that no part of the terme at all doth remain after such avoidance: As if Te­nant in taile of Lands in Capite make leases not warranted by the Sta­tute of 32 H. 8. 28. and die, his heire 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 Kings 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 rendring rent, and the Parson had died, and the Gran­tée had presented a Clerk, who had béen admitted, instituted, &c. in this case, that lease had béen absolutely destroyed, and the Successor (al­though the Patron, that was party to the lease, present him) shall avoid it, &c.

[Page 122] 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 déed 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 taile, 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 taile, the remainder to the right heirs of the Feme, whereas it should have béen 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 it self 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 Iustice.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 [...] ­cruer. which may serve as a firme foundation, whereon to build the future estate, and not removeable 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 fée; In this case, the estate at will is no such foun­dation as the Law requires to support the encrease of an estate of Franktenement or Inheritance; for the Grantor may determine his will before the performance of the condition, and so avoid his owne grant, and a Lease at Will cannot support a remainder over; So like­wise if a man grant an Advowson, Rent, &c. for years upon condition, if the Lessée within a yeare pay 10 s. he shall have for life; and if he pay 20 s. within another yeare after he shall have fée, 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 encrease; because a possibility cannot encrease upon a possibility, and the estate of Fee-simple cannot encrease 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. Errour. and hath a Writ to the Bishop, and the Bishop refuseth to admit his Clerk; Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit; but if the Defendant reverse the Iudgement 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. Errour. Escape. if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement, and after make an escape, and after the judgement is reversed by a Writ of Error, the action upon the escape is lost, &c.

Ibid. the prin­cipall 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 priviledge in Banco, is arrested in London, Priviledge Supersede [...] 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, &c.

Ibid. 143. a. 1.50 If two Iudgements are given, Two judge­ments. The first d [...] feated. and the last depends meerly 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 Assise and Redisseisin, so of a judgement upon the original, and another judgment in a Scire facias; so also of a judgement against the Tenant, and another against a Vouchee, and the like, &c.

[Page 123] 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 Iudgement 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 reversall of the judgement, because the judgement was onely 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 Chiefe Iustice) 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 reversall of the first judgement, and the first Plaintiff restored to his first action, upon which he may have his first and due re­medie.

Executors have executi­on. The Will an­nulled.52 Executors have judgement in account, Ibid. 143. b. 4. per Coke chief Justice. and for the arrerages have the Defendant in execution, and afterwards the Testament was an­nulled, because the Testator was an Idiot, and the Record spirituall was removed into the Chancery by Writ, and then sent into the Kings 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 Mannor of O. in Soccage of Qu: Co. l. 8. 168. a. Paris Slaugh­ters case. Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded (reciting the former office) to enquire, whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite, &c. whereupon an office was found, that at the time of the death of P. S. the said Mannor of O. was holden of Qu: Eliz. by Knight service as of her Mannor of N. and that at the taking of the in­quisition it was holden of the King, &c. In this case the Melius was re­pugnant in it selfe, because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu: Eliz. for then it must needs be holden of the Queen, King James being then King of Scotland, &c. Now therefore, albeit the Iury by the Inquisition had rightly found the tenure of the Mannor, 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 forbeare till Michaelmas to sue for a debt due by y ^e Testator to the Plaintiff upon lone, 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 ayded; for then (in truth) there was not any considerati­on, upon which the assumpsit might be grounded; because to forbeare a debt, which was not due, or wherewith she was not chargeable, could [Page 124] 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 taile, A marriage dissolved, an [...] so an intaile 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 onely means whereby they might have had heirs inheritable of the e­state taile) being dissolved, the estate taile it selfe 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 procéeds in­versa ordine, or erroneously; there no action will lie, either against the party that sues, or against the Officer that executes the precept or processe of the Court: But when the Court hath not jurisdiction of the cause, there all the procéeding is coram non judice, and actions will lie against them without any regard of the precept or processe, &c. for the rule is Judicium à non suo judice datum nullius est momenti: See the booke at large.

Co. l. 10. 96. a. [...] Edw. Sey­ [...]ors case. 24 E. 3. 28. in Ca­loys case.58 Tenant in taile, Dower det [...] ­mined. the remainder in taile to A. the reversion in fée to himselfe, bargains and sels the land to B. and his heirs; Here, by the déed indented and inrolled, &c. the Bargainée hath an estate descen­dable to his heirs, but determinable upon the death of the Tenant in taile, and hath also the reversion in fée exepctant upon the estate in re­mainder in taile, and here likewise the Feme of the Bargainée will be endowed: but in this case if the Tenant in taile die, the Dower which depended upon that estate, shall determine also.

Co. l. 10. 96. b. 1. Edw: Soy­mors case.59 Tenant in taile, Warranty d [...] ­termined. the remainder in taile to A. the reversion in fée to himself, bargains and sells the land to B. and his heirs, and after­wards also levies a fine to B. & his heirs with warranty, &c. In this case, albeit A. be the next heir to the Tenant in taile, 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 dependancy upon some estate; Now in this case at the time of the fine levyed, the warranty was annexed to the Fée-simple determinable upon the death of the Tenant in taile without issue, and also to the reversion in fée, 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 levyed, and after was seised of his remainder: Now then 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 taile (unto which the warranty was annexed) is determi­ned by the death of the Tenant in taile without issue, the warranty (which hath his essence by dependancy) is also determined; because then there is no estate left to support it, &c.

30 E. 3. casu ultimo in Hen­ry Pigots case. Co. l. 21. 27. b.60 In Assise before Stouffe and others in the Countrey, A man unl [...] ­tered not bound. the Tenant pleads feoffment of the Plaintiff to him by déed 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. &c. and (in truth) the Plaintiff was a lay man not lettered, and the déed 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 déed with the letter of Attorney in it to deliver Seisin: In this case, the déed did not binde the man unlettered, but was adjudged void: And therefore, albeit the déed 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, &c.

[Page 125] Warranty de­feated.61 If a man enfeoffe 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 it selfe 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 heire 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 heire hath an estate of fee, which was in his Ance­stor by right, &c.

Feme not en­dowed of the rents, but of the land.63 If a man make a gift in taile, reserving rent to him and his heirs, F. N. B. 149. g. and after the Donor taketh Feme, and dieth, and the Tenant in taile 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 taile, which is determined: But in this case, albeit the estate taile 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 faile, 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 consequente) 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 re-entreth; Now shall the land be ancient Demesn again; for the estate, whereupon the con­firmation should enure, is defeated. Finch 14.

Abs (que) impetio­ne vasti deter­mined.67 The priviledg of Absque Impetitione vasti is annexed to the privi­ty of the Estate, (3 E. 3. 44. per Shard and Stove) so that if the estate, Co. l. 11. 83. b. 3 Bowles case. un­to which that priviledg is annexed, be changed, the advantage of that priviledge is lost (5 H. 5. 9. a.) And therefore if a man make a lease for years without impeachment of wast, 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 auter vie, without impeachment of wast, the remainder to him for the term of his own life; Now is he punishable of wast, for the first estate, unto which the advantage of Absque impetitione vasti was annexed, is drowned and gone, and therefore that priviledge is gone also: So it is likewise of a Confirmation, &c.

Priviledge 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 taile 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 priviledge 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 wast by the alienee of the heire against tenant in dower.69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower; but if the heire 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 Wast against Tenant in Dower shall recite the Statute of Glocester; and then (by consequent) he shall not have prohibition of Wast at the Common Law, for then he should not recite the Statute. Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b.

[Page 126] Co. Inst. pars 1 12. b. 4.70 If a man be seized of lands as heire of the part of his mother, Priviledg [...] by a purcha [...] 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 it selfe is also destroyed; So likewise if a man so seized mak [...]th a feoffment in fee, re­serving a rent to him and to his heirs, this rent shall goe to the heirs of the part of the father, &c.

Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case.71 If there be Lord and Tenant by Castle-guard, Castle-guard gone by a [...] nation. and the Lord granteth over his Seignory to another; In this case, the Castle-guard 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 Mannor 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 Mannor: 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, untill it be re-e­edified; but ward and marriage belongeth unto the Lord in the meane 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 himselfe 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 Wast for Wast done before, (which consists in privity) is gone also.

Co. l. 5 28. a. 3. in Middletons 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 barre 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 fée of Lands holden by Knight service to the use of the Fe­offée and his heirs, untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited; the Feoffée dyeth, his heire 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 enrolled in Chancery in consideration of money, Use upon an use. bargains and sels to B. the Mannor 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 taile: Here, because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred 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, &c. But Quaere, if such an estate had béen 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 Quéen 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 [Page 127] was thereupon granted in the time of Quéen Eliz. Quaere, whether or no the Extent was returned without warrant.

Errour.78 In debt the Iudgment was reversed, Dyer 130. 58. 6 Eliz. because there was no war­rant of Attorny entred, and this albeit the Writ of Error was brought the same terme, the record remaining still in the breasts of the Iustices, and the Plaintiff had prayed entry thereof: Note, that both the first A­ction and the Writ of Errour were brought in Banco Regis.

Lease void.79 The Provost of Wels being Parson imparsonee of the Parsonage of Winsam, leaseth the tithes for fifty years rendring rent, Dyer 239. 40. 7 Eliz. which was also confirmed by the Deane 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 Deane 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, &c. which were elective, and (be­fore the Statute of 1 Eliz. not printed) might make discontinuance; but if the lease above had béen 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.

Deeds, &c. in whose custody to remain. 1 A man seised 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 onely 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, &c. the Feoffee shall have them, as concomitantia & incidentia to the possession.

Land on the part of the mother. 2 If a man seised ol Lands as heire 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 falle, or a lease for life, reserving a rent, the heire of the part of the Mother shall have the reversion, and the rent al­so, as incident thereunto, shall passe with it; but the heire 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 passe therewith.

The like for service. 3 If a man had been seised of a Mannor, Co. ibid. as heire on the part of his Mother, and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcell, to hold of him by rent and service, albeit they be newly created, yet for that they are parcell of the Mannor, they shall with the rest of the Mannor descend to the heirs of the part of the [Page 128] 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 distresse. and the Te­nant of the land granteth a Distresse to him and his heires, and the Grantee dieth, the Distresse 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 y ^e 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 himselfe 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, &c. 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 mans right heirs is a limitation to himselfe. 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. &c. And therefore at this day, since the Statute of 27 H. 8. cap. 10. If a man seised of lands in fee make a feoffment in fee, and depart with his whole estate, and limit the use to his daughter for life, and af­ter her decease to the use of his sonne in taile, 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 himselfe, 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 heire he cannot have during his life (for, non est haeres viven­tis) the Law doth create an use in him during his life, untill 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 béen to the use of himselfe for life, and after to the use of another in taile, and after to the use of his own right heirs, the reversion of the fée had béen in him, be­cause the use of the fée continued ever in him; And the Statute doth ex­ecute the possession to the use in the same plight, quality, and degrée, as the use was limited.

Co. Inst. pars 1 22. b. 4. 7 If a man make a gift in taile, or a lease for life, Void remain­der. the remainder to his own right heires, 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 estéemed in Law a frée te­nure, till the fourth degrée 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, Rent incident to the rever­sion. and reserve a rent to him and his Executors, the rent shall end by his death, because the heire 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, &c. so Homage and Knight service are incident to Escuage, and by the grant of services Escuage passeth with the rest.

[Page 129] [...]dship of Donee in­ [...]nt to the [...]or. 12 If Tenant by Knight service maketh a gift in taile, Co. ibid. 77. a. 1. in Sir Tho­mas Wiats case. T. 18 Eliz. in C. Ba. per Cur. and the Do­née maketh a Feoffment in fée, and the Donée dieth his heire within age, the Donor shall have the Wardship of him; because he is his Te­nant in right: But if the Feoffée die, his heire within age, the Donor shall not have the Wardship of his heire, but the Lord paramount; be­cause he is Tenant in fait to him: Neither shall the Donor avow upon the Feoffée or his heire, for the services due unto him; because he must in his Avowry shew the reversion in fée 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 séem 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 se­ [...]able. 14 Of Incidents there be two sorts, viz. separable and inseparable; Co. ib. 93. a. 1. Separable, as rents incident to reversions, &c. 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 te­ [...]res, &c. 15 The tenure in Frankalmoigne is an incident to the inheritable bloud 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 bloud: 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, &c. is inci­dent to the rent, there is a distresse 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 taile, 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 himselfe 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 taile 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 yeares; for there if he reserveth nothing, he shall have fealty only, which is an incident inseparable to the reversion.

[...]elease 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 déed reciting the tenure, releaseth all his right in the land, saving his said rent; In this case, the Seignory remains, and he shall have the rent as a rent service, and also the fealty incident unto it; for in saying, the said rent, it is as much as if he had said, the rent 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 passe; because the rent cannot passe but as a rent service, being granted by the name of services: And the fealty cannot passe; because it is an incident inseparable to the reversion: But it seemeth that the rent shall passe as a Rent-secke; because at the time of the grant it was a rent service in the Grantor, and therefore there be words sufficient to passe it to the Grantée; and it is not of necessity, [Page 130] that it shall be a Rent-service in the hands of the Grantée, &c.

Co. ibid. 148. b. 3. 21 If a man maketh a lease for life of Black acre, and White acre, Accrue [...] Rent app [...] oned. reserving two shillings rent, upon condition that if the Lessée doth such an act, &c. that then he shall have fée 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, Distresse i [...] dent 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 déed to another, &c. 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, &c. So it is likewise where the Tenant holds by homage, fe­alty, Littl. §. 226, 227. Co. ibid. 150. b. and rent, and the Lord grants the rent, reserving the Homage, &c. but in this last case, if the Lord grant away the Homage, saving un­to himselfe the rest of the services, and the Tenant attorn, &c. 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 Distresse the like to Fealty, &c.

23 Incidens is a thing appertaining to, Definitio. or following another as a more wrorthy or principall.

Littl. §. 228. Co. ib. 151. b. 3, 4. 24 If a man let lands to another for terme of life, reserving rent, Rent sep [...] bly, fealty [...] separably [...] cident to the reversion. if he grant the rent, &c. saving the reversion, &c. the Grantée hath the Rent as a Rent-seck, for which he cannot distrain; because the fealty (unto which the Distresse 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 di­stresse incident unto it, yet being now by the grant fevered from the reversion and Fealty, it hath lost the priviledg of distresse, which always inseparably adheres to the Fealty, &c. Neverthelesse, in the said case, if the Lessor grant the reversion for life, &c. the rent shall passe therewith as incident to the reversion, and the Grantée shall then have it as a Rent-service, whereunto Distresse is incident, because it then passeth by the grant of the reversion, as with the superiour or principall, and that without using these words in the Grant, cum pertinentiis, &c.

Co. ibid. 192. a. 3. & 214. a. 2. 25 If two Ioyntenants 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 Ioynture; and therefore the rent, which is incident to the re­version shall also enure in joynture, &c. unlesse the reservation be by déed indented; for then he onely to whom it is reserved, shall have it, &c. so also a surrender to one shall enure to both.

Littl. 348. Co. ib. 215. b. 3. 26 If there be Lord and Tenant, Rent incide [...] to the reve [...] on. and the Tenant make a lease for life, reserving to him and his heirs an annual rent, &c. and after the Lessor dies without heire, 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 Rent arrear, Escheat. albeit it was reserved to the Lessor and his heirs; for both Assignees in Déed, & 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 co [...] dition, & [...] not.) a Tenant in taile may by condition be barred from making any alienation and discontinuance of [Page 131] 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. Mary Porting­tons case. Now the incident [...] to an e­state taile 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 Courtesie. 4 That the Tenant in taile may suffer a common recovery: And therefore if a man make a gift in taile, 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 lineall warranty with assets, in respect of the recompence, is not restrained by the Statute of Donis conditionalibus, no more is a common recovery in respect of the intended recompence: And Littleton there to the intent to exclude the common recovery, saith, Tiel alienation & discontinuance, joyning 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, &c. that he may avow, &c. upon the same lands, &c. as in lands, &c. within his Seigno­ry, &c. without naming of any person certaine, and without making avowry upon a person certain: Here, albeit the purview of this act be generall, yet all necessary incidents are to be supplyed, and the scope and end of the Act to be taken; And therefore although he néed not to make his avowry upon a person certain, yet he must alleadge seisin by the hands of some tenant certain within forty years, &c.

Incident servi­ [...]es shal not be discharged without speci­ [...]l 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 Déed confirme the estate of his Tenant to hold for xii d. or for a penny, &c. 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: Neverthelesse, 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 Déed; but o­ther things, notwithstanding the said confirmation, the tenant shall yield to the Lord, as reliefe, aide pur file marier and aide pur faire fitz. Chivalier; because these are incidents to the tenure, which do still re­maine, 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. &c. and I re­lease to him all my right in the Seigniory, excepting the Tenure by Knight-service, or confirme his estate to hold of me by Knight-service onely, for all manner of services, exactions, and demands; yet shall the Lord have Ward, Mariage, Reliefe, Ayde pur file marier, & pur faire fitz Chivalier; for these be incident to the Tenure, which doth still remaine.

[...]he rent pas­ [...]th with the [...]version, but [...]t è converso. 32 Where a Lease for terme of yeares or life, Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man, reserving rent, &c. 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, &c.

[Page 132] Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls 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 yeares, and maketh a Feofment in fée, by this the rent is reserved; upon the Lease for life or yeares is not extinguished; but by the regresse of the Lessée the rent is revived, because it is incident to the reversion; And so it hath béen adjudged: But if a man be seised of a rent in fée, and disseise the Tenant of the land, and make a Feofment in Fée, the Te­nant re-entreth, this rent is not revived: And to note a diversity be­twéen a rent incident, and a rent not incident to a reversion, &c.

Littl. §. 590, 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in ser­vice, and I give certaine acres of land, Rent incident to the revers [...] ­on. A Donor can­not be ousted of it. parcel of the demesnes to a­nother in taile, rendring rent; in this case, if I be disseised of the Mannor, and all the Tenants attorne, and pay their rents to the Dis­seisor, and y ^e Tenant in taile also pay to him y ^e rent by me reserved, and after the Disseisor dies, and his heir is in by descent; yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved; because the rent reserved is incident to the reversi­on; and the reversion of the land given in taile 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, unlesse 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 regresse and regaine his estate and possession, thereby doth he ipso facto revest the reversion in the Donor, &c. There is the same reason of a Lease for life or yeares, rendring rent, &c.

35 He that hath a remainder expectant upon an estate taile, Error may b [...] brought by [...] Reversion [...], or rem [...]ind [...] shall have a writ of Error upon a Iudgment given against the Tenant in taile, Co. l. 3. 3. b. 4. The Marquess of Winchesters 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 taile, all actions which the Common Law gave to privies in estate, are by the same act, as Incidents, impli­citely 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 aide, 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 taile.

Co. l. 4. 8. b. 3. Bevils case. 36 The seisin of a superiour service is seisin of all inferior services, Superiour s [...] vice seisin o [...] inferiour. 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 Seigniory is by Fealty and Rent.

Co. l. 4. 23. a. 1. Deal & Rig­dens case. 37 Where (by the custome of a Copihold Mannor) plaints have béen made in the Court of the Mannor in the nature of reall actions, Plaints in [...] copihold [...] to bar the [...] in taile. if a recovery in such a plaint be had against Tenant in taile (admitting that Copihold land may be intailed) that recovery shall work a discontinu­ance, and shall take away the entry of the issue in taile,; for, in as much as plaints in the nature of reall actions are warranted by the custome, this is an Incident, which the Law annexeth to the said custome, viz. that such a recovery shall make a discontinuance; which agrees with the reason of the principall point in Browns 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.

[Page 133] Copihold se­ [...]ered by cu­ [...]ome, conti­ [...]ue severed, [...]lbeit surren­ [...]red together [...]n one copy. 38 If a Copiholder is seised 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 4d. rent, of White acre by vj d. and of Gréen 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 Gréen 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 severall condition (as an incident) implicitely annexed unto it, so that the forfeiture of one, cannot be the forfeiture of any of the other; because the severall conditions in Law do insue the severall te­nures: So likewise if the Copiholder of the said thrée 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 onely that, and neither of the other; For the said Tenendum (reddendo singula singulis) continues the severall tenures; In like manner, if divers several Copiholds escheat to the Lord, and he re-grant them to another, Tenendum per antiqua servitia, &c. they shall be severally holden, as they were before the Escheat, &c.

Several times for several copies. 39 If a man hath severall Copihold lands holden by several services, Co. l. 4. 28. a. 1. Hubbert and Hamonds case. the Lord ought to assesse and demand fines severally for each parcell so severally holden; For, the Tenant may refuse to pay the fine for one parcell and forfeit it, and may pay the fines for the other; because every severall tenure hath a severall condition in Law (as an in­cident) tacitè annexed unto it; And therefore the Lord ought for every severall tenure, to assesse and demand a severall fine.

The office of Shire-clerk incident to the Sheriffs office. 40 Quéen Eliz. grants to one Mitton the office of Clerk of the Coun­ty Court, or the Shire-Clerk of the County of Somerset with all fées, Co. l. 4. 33. a. 3. Mittons case. &c. for terme of his life, and after the Quéen makes Arthur Hopton High Sheriffe of the same County, who interrupts Mitton, claiming that which was granted to him, as a thing incident to his office of Sheriffe, &c. And it was adjudged, that the County Court, and the entring of all the proceedings in it, are so incident to the office of Sheriffe, that they cannot by Letters Patents be divided from it; and albeit the said grant was made to Mitton, when the office of Sheriffe was void; yet when the Queen makes a new Sheriffe, he shall avoid it, &c.

Exigenter in­cident to the chief Justice. 41 Tempore vacationis, Co. ibid. 2 El. Dy [...]r 175. of the office of Chiefe Iustice of the Common Banke, Queen Mary grants the office of the Exigenter of London to one Scrogges, and it was holden void; because it was incident to the office of Chiefe Iustice of the County, which the Queen could not have; And therefore the next Chiefe Iustice shall avoid it, &c.

Gaoles inci­dent to She­riffs. 42 Grants made (by the King) of the custody of the Gaoles of Coun­ties are void, Co. l. 4. 34. a. 1. in Mittons case, per touts les justices. because the custody of Gaoles of Counties of right do be­long, & are by the Law annexed & incident to the office of Sheriff, as doth very well appeare by the judgement in Parliament, Anno 14 E. 3. cap. 10. by which it is ordained, that all Gaoles of Counties shall be rejoyn­ed to the Sheriffs, and that the Sheriffs shall again have the custody of the same Gaols, as in times past was used, and that they should put in such Gaolers, for which they would answer, &c.

Where a co­venant binds and where not, betwixt Lessor and Lessee. 43 In a demise of Land, when a covenant extends to a thing in esse, Co. l. 5. 16. a. 4. Spencers case. parcell of the Demise, the thing to be done by force of the Covenant, is quodam-modo incident, and appurtenant to the thing demised, and shall runne with the land, and shall also binde the Assignée, although he be not bound by expresse words,; But when the Covenant extends to a thing which hath not essence at the time of the Demise made, that which hath not essence, cannot be said to be incident or annexed to the thing demised, and therefore in that case the Assignée shall not be hound to it, unlesse specially named; As if the Lessée covenant to repaire the [Page 134] houses, &c. this is parcell of the contract, and extends to the supportati­on of the thing demised, and therefore is quodam-modo incident and an­nexed to the houses, and shall binde the Assignée, although he be not ex­presly bound by the covenant; But if the covenant be, to build a brick­wall upon parcell of the land demised, or the like, which was not in esse at the time of the demise made, but was to be done afterwards, this co­venant may binde the Covenantor himselfe, and his Executors or Ad­ministrators, but shall never binde the Assign [...]e, because the Law will never annex a covenant to a thing which hath not essence, &c. It is o­therwise. Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it; for then the Assignes are specially named, &c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case.

Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years, The like. and the Les­sor covenants with the Lessee to repaire the houses during the terme, the Feme takes Baron and dies, the Baron shall have an action of Covenant, as well upon the covenant in Law by force of these words, Demise and grant, as also upon the expresse covenant, because such a co­venant runs with the land, and is incident unto it: There is the same Law of a Tenant by Statute Merchant, or Statute Staple, Ele­git, or of a terme sold by force of an Execution; for, in that case also, the Vendée of the terme shall have an action of Covenant, as a thing incident to the land, albeit all these come to the terme by act in Law, &c. So likewise if a man grant to his Lessee for years, that he shall have so many Estovers, as shall serve to repaire his house, or to burn within his house, or the like, during the term; this covenant is as an incident and appertinent, that runs with the land, in whose hands soever it falls.

Co. l. 5. 47. a. 2. Franklins case. 45 In a general pardon, when an offence is excepted, all the incidents and dependants thereupon are also excepted, whether they be corporall, or pecuniary, &c.

Co. lib. 6. 7. a. 1. Wheelers case. 46 If the King grant lands in fée, Tenendum de nobis, Fealty inci­dent, thoug [...] not named. &c. per servitiū unius rosae rubae annuatim, &c. solummodo pro omnibus & omnimodis aliis servitiis, &c. This tenure is soccage in chief, and in as much as fealty is incident to every Rent-service, the Law annexeth fealty unto the said rent, and then these words, pro omnibus aliis servitiis, are to be understood of other services, which the Law doth not imply, or add unto the rent; so that then the tenure shall be by a Rose and fealty, &c.

Co. l. 6 70. a. 3 Sir Moyle Finches case. 47 If there be Lord and Tenant by Fealty and Rent, Seigniory e [...] ­tinct. and the Lord disseises the Tenant of the land, and makes feoffment in fée, by this the Seignory is extinct; but if a man make a gift in taile, or a lease for life, &c. rendring rent, and disseise the Tenant in taile or for life, &c. and make feoffment in fée; Here, albeit the estate passeth to the Feof­fée, yet when the Donée or Lessée re-enters, he shall revive the rent, as an incident to the reversion: There is the same Law also of a lease for years, &c.

Co. l. 7 4. b. 3. Calvins case. 48 Ligeance is a true and faithful obedience of y ^e 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 birth-right ligeance and obedience to his Sovereign.

Co. l. 7. 18. a. 3. Calvins case. 49 There be regularly (unlesse it be in special cases) thrée 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 Kings Dominion: And 3 The time of his birth is chiefly to be considered, for he cannot be a Subject borne of one Kingdome, that was born under the ligeance of a King of another Kingdome, albeit afterwards one Kingdome descend to the King of the other.

Co. l. 8. 54. a. 3. Syms case. 50 If a man be seised 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 burne [Page 135] 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 heires 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 heire of the part of the Mother.

Imprisonment incident to a Fine. 51 Vnto 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, trespasse, vi & armis, &c. 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, &c.

A rent inci­dent to a re­version. 52 If a man make a lease of thrée acres all of equall value per annum, Co. l. 8. 79. b. 3. Wiat Weilds case. rendring 3 s. rent, and the Lessor grants the reversion of one acre, and y ^e Tenant attorns, the Grantée shall have 12 d. rent; 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 politique is incorporated by prescription by a cer­taine 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 Colledge case. &c. are things incident unto it.

Incidents in­separable. 54 If the Donee in taile holds of the Donor by fealty, and the Do­nor by deed inrolled grants the fealty to the King, that grant is meerly 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 Colledge, &c. will grant his Foundership to the King by deed inrolled, 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 taile, as aforesaid, that Act would not have made such grants good, because such things are not grantable, &c.

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. Faire. 58 A Court Baron is incident to a Mannor, 19 H. 8. Br. In­cidents 34. and a Court of Pipow­ders to a Faire: And therefore one cannot grant the Mannor or Faire, reserving those Courts, Finch 15.

Castle-guard. 59 Where one holdeth of a man to keepe his Castle, 31 E. 3. Assise 441. the Lord can­not grant his Castle-guard, 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 acquitall 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. seised of the Mannor of D. whereof a Chappel was parcell, 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 Chappel weekly, for the Lord of the said Mannor, and his servants, &c. In this case, the [Page 136] 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 Mannor: But if the Covenant had been with a stranger to celebrate Divine Service in the Chappel of A. and his heirs, there the Assignee shall not have an action of Covenant; for the Covenant cannot be annexed to the Mannor, because the Covenantee was not sei­sed of the Mannor.

F. N. B. 138. l. 62 In some case the heire 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 fée; Here, my heire shall have a Writ of Detinue for the déed, by which I was enfeoffed, to the end he may have the advantage of the warranty, &c.

Co. l. 7. 9. b. 1. Calvins case. 63 Ligeance and obedience on the Subjects part to his Prince, Ligeance inse­parably inci­dent in all places to the subject. is an inseparable incident to that power and protection whereby the Prince may command, and ought to defend his Subject; And this ligeance and obedience, which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom, but follows the Subject whethersoever he goeth; And therefore it is truly said, Qui abjurat regnum, amittit regnum, sed non Regem, amittit patriam, sed non patrem patriae, &c. for notwithstanding the abjuration, he still oweth the King his ligeance, and still remaineth within his protection; because the King, if he please, may pardon and restore him to his Coun­trey again, &c.

Littl. §. 366. Co. Inst. pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed, A condition incident to as estate for life. rendring rent with clause of re-entry upon non-payment of the rent, whereupon if the Lessor enter, and the Lessée bring an Assize of Novel Disseisin, the Iurors may finde the matter at large, and the Iustices ought to adjudge it for the Tenant; albeit (regularly) a condition is not valid without deed shewed in Court, and that the Lessor shew no deed; for they that have conusance of a thing, are to have conusance also of all incidents and dependance thereupon, and (in this case) the condition is an incident necessarily depending upon the estate for life, which was perfected by livery. Vide supra 28.

Dyer 2. 1, 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger, Rent & land incident to the person. who was seised of the land, where, &c. pro consilio impendendo, the Plaintiffe pleads in barre, that the Defendant was attainted of Treason and com­mitted to the Tower, & yet the Grantor had néed of Counsel, and could not have accesse, &c. and upon demurrer the Iudgment was, that the Avowant should have return; because the rent being incident to the person of Emson, could not be granted over, or forfeited: So likewise land given by the King to a Duke to support his dignity, cannot be granted over. See Max. 45.

Dyer 45. 35. & 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown, Tenure in Ca­pite. for no Subject can take it of his grant with such a prerogative; And therefore if the King make a release to his Te­nant in Capite to hold by a penny, and not in Capite, this is a void re­lease, for that tenure is méerly incident to the person and Crown of the King, and hath such a prerogative, that it cannot be held of any Sub­ject, as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person, because it is a speciall tenure: Also, if the King at this day make a gift in taile to hold of him in Capite, and after he grant the reversion of that land to another in fée, neither the tenure nor service passe to the Grantée, but remain in the King, because they are not incident to the reversion, but to the person of the King.

Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void, Exigenter of London. and Coke Chief Iu­stice of the C. B. being then also dead, Quéen Mary during the vacation [Page 137] of the said places conferred by her Letters Patents the Exigenters of­fice upon Colshil, and then made Brown Chiefe Iustice of that Court: But Brown refuseth Colshil, and admits Scrogges thereunto; And in this case it was resolved by all the Iudges and others (save the Iustices of the Common Bench) that the said office did not appertain to the Qu. to grant, but onely in the dispose of the Chiefe Iustice for the time be­ing, as an inseparable incident to his person and place, and that by rea­son of common usage and prescription.

[...]ase of De­ [...]esnes. 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent, Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Man­nor; And it was adjudged, that by the name of the Mannor the rent and reversion of the Demesnes passed.

[...]hattel vest­ [...]. 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite, who dies before seisure, yet his Executors shall have it, Dyer 277. 57. 10 Eliz. and not the King or Successor, for it was incident to his person, and a chattel vested in him before his death.

[...]opiholds.1 When custome hath once created Copiholds of Inheritance, Co. l. 4. 22. a. 3. in Brownes case. and that the land shall be descendable, then the Law doth also direct the de­scent according to the Maximes and rules of the Common Law, as in­cidents to every estate descendable: So (5 E. 4. 7.) when uses have gai­ned the eeputation of Inheritances descendable, the Common Law shall direct the descent of them, and that there shall be Possessio fratris of an use, as well as of other Inheritances at the Common Law.

[...]ontract im­ [...]orts an As­ [...]umpsit.2 Every contract executory imports in it selfe an Assumpsit; Co. l. 4. 94. a. 4. Slades case. For when one agrées to pay money or to deliver any thing, he doth thereby assume and promise to pay or deliver it; and therefore when one sells any goods to another, and agrées to deliver them at a day to come, and the other in consideration thereof agrées to pay so much money at such a day; In this case both the parties may have an action of Debt, or an action upon the case upon Assumpsit: For the mutual executory agree­ment of both the parties imports in it selfe, as well a reciprocal action upon the case, as an action of debt; And with this agrées the Iudgment in Reade and Northwoods case, Pl. Co. fol. 128.

[...]xchange im­ [...]orts warran­ [...] and a con­ [...]ition.3 In every exchange rightly made, Co. l. 4. 121 a. 4. Bastards case. this word Excambium imports in it selfe (tacitè) a condition, and also a warranty, the one to give re-entry, the other Voucher and recompence, and all in respect of the re­ciprocal consideration, the one land being given in exchange for the o­ther: but that is onely a special warranty; for upon Voucher by force thereof he shall not recover any other land in value, but that only which was so given in exchange, &c. And as it is in case of warranty, so is it also in case of the condition which the Law implies upon the exchange; for if the exchange be betwixt A. and B. and A. aliens his exchanged land to 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. &c.

[...]edi, & con­ [...]ss [...] implies [...]arranty and [...] covenant.4 If a man make a feoffment by this word, Dedi, Co. l. 5. 117. a. 3. Spencers case. which implies a warranty, the Assignée of the Feoffee shall not vouch: but if a man make a lease for yeares 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 encrease by labour and industry, and if he should lose the land, he should also lose his labour and cost, unlesse he were helped by implicite 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 [Page 138] Chattel reall) imports in it selfe a warranty, &c.

Co. l. 6. 36. b. 1. Bishop of Bathes case.6 A. being Lessee for 60 years if he should so long live, Lessee from Reversion [...] 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, &c. for 60 yeares: 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 terme, 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 implyed 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 terme takes place immediately after such surrender, &c.

Co. l. 7. 34. a. 4. Nevils case.7 If the dignity of an Earldome had been entailed to the heirs male, A dignity [...] feitable for treason befo [...] 26 H. 8. 13. it might have béen 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 Cavalliers: 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 betwéen him and his wife of one part, Bloud is a s [...] ficient cons [...] deration 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 remaine in his blood, covenants to stand seised to the use of himselfe for life, after to his Feme for life, after of the one moity to one son, and of the other moity to the other son; In this case the use accrues to the Feme, although not named in the considerations of the deed; because the expresse limita­tion of the use to her (being his wife) imports in it selfe a sufficient con­sideration, &c. and the rather because it is not repugnant to the déed: So also if I covenant, that in consideration of fatherly love and affection to my eldest son, I will stand seised to the use of my eldest son for life, or in taile, and after to the use of my second son in taile, and after to the use to such an one my cousin in fee; Here, albeit the consideration ex­pressed in words respect onely the eldest son, yet the consideration ap­parent in the déed, 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 seised to the use of my wife, son, or cousin, this shall well raise an use without any expresse words of a consideration; for, in that case, sufficient consideration appears, &c. 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 [...] courtesie. 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 Courtesie; for that is tacitè implyed 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 no award, the Plaintiff pleads, What is to [...] pleaded [...] an arbitre­ment revo [...] that the Defen­dant discharged C. &c. In this case the Bond is forfeit, and the Plain­tiff néed not aver, that C. had notice of the Countermand; for that is implyed in the words of the plea, Revocavit & abrogavit omnem authori­tatem, &c. because without notice it is no revocation of the authority; and therefore, if there had not béen notice, then the Defendant might [Page 139] have taken issue, quòd non revocavit, &c. and if no notice were given to C. it would have béen 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, &c. and when two things are requisite to be performed by several persons, as upon the grant of a reversion, attornment is not implyed 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 implyed in the pleading of the grant; but in the other cases both things are to be done by one and the same party, &c. 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 paine of 5 l. for that he non exist­ens libera persona, &c. usus est manuali occupatione de Tallow-chandler &c. And upon the return of the Habeas Corpus into the Kings Bench, the Court tooke advisement upon that part of it, whereby it was averred, that he non existens, &c. usus est manuali occupatione de Tallow-chandler, &c. and shewed not that he sold any Candles, &c. For if he made them for his owne use, and sold none for gaine, he might well do it, as every one is permitted to bake or brew, &c. for their own use, &c. but it seemed to be implyed by the same averment, that it was his trade, by which he got his living, viz. by selling the commodities of his Trade, and not that he made them onely for his own use; For it is not properly said, that one useth a manual occupation, when he onely doth it for himselfe, as he that brews or bakes for his own use, cannot be properly said to use the occupation of Brewer or Baker, &c.

Malice prae­pence implied in indictments12 If one kill a Minister of Iustice in the execution of his office, Co. lib. 9 67. b. 3. Mackallies case. the Indictment may well be general, viz. that the Prisoner felonicè, volun­tariè, & ex malitia sua praecogitata, &c. percussit, &c. without alleadging a­ny special matter; for the evidence will well maintain the Indictment, inasmuch as in this case the Law implies malice praepence: So if a Thiefe, which offers to to rob a true man, kils the true man, in resist­ing the Thiefe, this is murder of malice praepence; or if one kill ano­ther without any provocation, or without any malice praepence that can be proved, the Law adjudgeth that to be murder, and implies malice; And in both these cases they may be indicted generally, that they killed de malice praepence; for malice implied by the Law, being given in evi­dence, is sufficient to maintaine the generall indictment: And so it was adjudged in Mackalleyes case, for killing Fells a Serjeant of London.

Nuper implies the time past.13 If a man plead, Co. l. 10. 59. b. 1. The Bishop of Sarums case. Co. l. 10. 75. b. 2. The case of the Marshal­sea. that such a grant made per Iohannem nuper Epis­copum Sarum, &c. was void; These words nuper Episcopum, &c. imply and import, that now he is not Bishop of Sarum.

Jurisdiction of a Court pro­hibited.14 When a Court is prohibited by Statute to hold plea of certaine causes, if one be sued there contrary to that Statute, he may not onely have a Supersedeas (in the nature of a prohibition) to cause the Iudge to cease proceeding, but likewise shall have an action upon that Statute against the party, that sues contrary to the same Statute; notwith­standing that it is in course of legal proceeding, and that the words of the Statute do not expressely give any such action to the party; for, that way of reliefe is a benefit, which (as a consequent) is implied in eve­ry such Statute.

[Page 140] Co. lib. 11. 76. a. 4. Magdalen Colledge case.15 By the Statute of 18 Eliz. cap. 2. Good con [...] ration imp [...] ed. no conveyances of the Quéen are confirmed, but such as are for the satisfaction of debts, &c. and other good consideration; for so it is in the preamble, and although (good) is omitted in the body of the Act, yet it is necessarily implyed, not onely by the connexion of the p [...]eamble 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 recompence in Déed or in Law.

Co. lib. 11. 86. b. 3. The case of Monopo­lies.16 It appears by the Writ of Ad quod damnum (in F. N. B. 222. Monopoli [...]) that every gift or grant of the King hath this condition, either expresly or implicitely annexed unto it: Ità quòd patria per donationem illam ma­gis solito non oneretur, sèu gravetur; And therefore every grant, made in grievance, or prejudice of the Subject, is void.

Co. l. 11. 98. a. 4. James Bags case.17 There is a condition in Law tacitè annexed to the fréedome or li­berty of a Citizen, or B [...]rgesse, which if he break, A Freema [...] a Corpora [...] he may be dis-infran­chised, as if he commit any act, which is against the duty and trust of his fréedome, and to the prejudice of the City or Burrough, and against the Oath which he tooke, when he was made Frée-man, these are cau­ses of his removal.

Fitz. N. B. 134. f.18 If the Tenant holds of his Lord by Homage Ancestrel, Homage An­cestrel 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 taile, Warranty a [...] plied. or a lease for life rendring rent, and after he is impleaded in an action, wherein he can­not be vouched; In that case he shall have a Writ of Warrantia cartae against the Donor, or Lessor, or his heire, that hath the reversion; for the reversion, and the rent reserved makes a Warranty in Law by the Statute of Bigamis, cap. ultimo, albeit he hath no déed of it.

Fitz. ibid. h.20 If a man grant land by these words, Dedi, concessi, Dedi implies a warranty. &c. he shall be bound to Warranty during his life (but not his heirs, unlesse he be thereunto especially charged by the Grantor) for these words, Dedi, concessi, &c. imply a Warranty; and if the Feoffée be impleaded, he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed, &c. 4.

Dyer 26. 171. 28 H. 8.21 Russell brings an action upon the case against A. for saying that he was a false Thiefe, An action of the case for words. and that such a night he would have robbed him to his damage, &c. And A. comes, Et defend it vim, &c. & quoad propalatio­nem, &c. querens non fuit damnum in forma qua, &c. to which plea the Plaintiff demurred in Law, and Iudgement was given for him; be­cause (by implication) the words are confessed, and no damage can be more grievous, then taking away a mans good name, and a Writ of Inquiry was awarded.

22 Vide Max. 19. Pl. 1.

Dyer 41. 4. &c. 30 H. 8.23 In a Replevin the Plaintiff is non-suit, Replevin. Second deli­verance. whereupon the Defen­dant had a Returno habendo, but about the same time the Plaintiff prays a Writ of second deliverance, and had it, and both the Writs were in the Sheriffs hands at one time unserved; In this case, the Writ of second deliverance is a Supersedeas to the Returno habendo, by which it is implyed, that the Sheriff ought not to serve the Returno habendo.

Dyer 135. 13. 3, 4 P. M.24 In a Quare Impedit the Plaintiff entitles himselfe to the next a­voydance by the grant of the right Patron to a stranger, An admini­stration in Law. who made two Executors, and died, and for that the Executors granted the next avoi­dance to him, Et hoc absqueta ostentione literarum, without shewing the testament of the first Grantée: And in this case it séems he néed not shew them, because albeit the Executors never proved the testament, yet their grant of the next avoydance was good, for that it was an administration implyed by Law.

[Page 141] Debt for rent.25 A lease for yeares is made of an house with divers Implements rendring rent, the Lessor enters and makes feoffment, Dyer 212. [...]7. 4 Eliz. the Lessée re-enters, and for rent arreare the Feoffée brings debt, and adjudged mainteinable, albeit there w [...] no privity; Howbeit, the regresse of the Lessée is an attornment in L [...], whereupon it seemes the Law cre­ates a privity: For, in this case, the rent was not extinct, but onely suspended, untill the Termor by his regresse revived the reversion.

Ejectione Fir­mae.26 In an Ejectione Firmae, of a lease of a Rectory, Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff, and it was moved in arrest of Iudgement, that it was not shewed that the Parson was in life; Howbeit, because it was averred by Implication in the Court by these words, Fuit & adhuc est seisitus, &c. the Plaintiff had judgement.

Quare Impe­dit.27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen, Dyer 360. 7. 20 Eliz. who presents A. who was admitted, instituted, and inducted, and afterwards the Queen presents B. A. dies, the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà, and that the Queen presented A. who was admitted and instituted, and that the Church is now void by the death of A. And the question was, whether or no this was sufficient without saying Inducted: And it séemed it was, because the Plaintiff alleadged, that the Church was void by the death of A. which implies Induction, and then it was not revocable.

28 Vide Hob. 5. Gardiner against Bellingham. 8. Yardly against Ellill.

Possessio fra­tris. 1 Albeit the Maxime in Law be, Co. Inst. pars 1 15. b. 3. Possessio fratris facit sororem esse hae­redem, yet if the Sister die, living the Brother, her issue shall inherit before the brother of the halfe blood, because he personates the Mother, and therefore shall succeed the brother in the inheritance.

Acceptance of Rent. 2 Tenant in taile makes a lease for forty yeares, reserving a rent, Co. ibid. 46. b. 1. to commence ten years after: Tenant in taile dies, the issue enters and enfeoffs A. the ten yeares expire, the Lessee enters; if A. accepts the rent, the lease is good, for he shall have the fame election, that the issue in taile had, either to make it good, or to avoid it, &c.

Coparceners. 3 If there be two Coparceners of a reversion, Co. ibid. 53. b. 4. and Waste is com­mitted, and the one of them die, the Aunt and the Niece shall joyne in an action of Waste.

Courtesie. Dower. Waste. 4 A Tenant by the Courtesie or in Dower, Co. ibid. 54. a. 1. can hold of none but of the heire, and his heirs by descent; and therefore if they grant over their whole estate, and the Grantee doth Waste, yet the heire shall have an action of Waste against them, and recover the land against the As­signee.

Waste. 5 If Tenant for life grant over his estate upon condition, Co. ib. 54. a. 3. and the Grantée doth Waste, and the Grantor re-entreth for the condition broken, the action of Waste shall be brought against the Grantée, and the place wasted recovered, &c. 21.

Tenant at [...]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 Hu [...]band, this is no countermand of the lease at will; but the Husband and Wife shall have an action of Debt for the rent: And so is it if a lease be made to a woman at will, reserving a rent, and the Lessée ta­keth Husband, this is no countermand of the lease, but the Lessor may have an action of Debt, and distrain them for the rent: So if the Hus­band and Wife make a lease at will of the wives land, reserving a rent, and the husband die, yet the lease continueth: In like manner, if a lease be made by two, to two others at will, and the one of the Lessors [Page 142] and of the Lessées die, the lease at will is not determined in either of these cases, &c.

Co. Inst. pars 1. 58. b. 1. 7 Tenant for years, Tenant by Statute Merchant, Staple, Elegit, Domini pro tempore. at will, Guardian in Chivalry, &c. may be Lords of a customary Man­nor, as well as those that have fée; for [...]eit they be not properly seised, but possessed, yet are they Domini pro tempore, not onely to make ad­mittances, but to grant voluntary copies of ancient Copihold lands, which come into their hands by forfeiture, escheat, or otherwise; Also admittances made by Disseisors, Abators, Intruders, Tenant at suffe­rance, or others that have defeasible titles, stand good against them that right have; because it is a lawfull act, and they are compellable to do it; Howbeit they cannot make voluntary grants of Copies, as aforesaid, to binde the Disseisées, &c. because they come in by wrong, and have e­states that may he defeated.

Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one, Copiholds grantable by an Executor. that is not Dominus pro tempore, nor that hath any thing in the Mannor; As if the Lord of a Mannor by his Will in writing, deviseth that his Executors shall grant the customary Tenements of the Mannor accor­ding to the custome, &c. for the payment of his debts, and dieth, the Ex­ecutor having nothing in the Mannor, may make grants according to the custome of the Mannor.

Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life, Dominus pro tempore, co [...] ­pellable to admit. or for years, Guardian, or any, that hath a particular interest, or Tenant at will of a Mannor (all which are accompted in Law Domini pro tem­pore) do take a surrender into his hands, and before admittance the Lessée for life dieth, or the years, interest, or custodie do end or deter­mine, or the Will is determined, though the Lord cometh in above the lease for life or for years, the custodie, 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 Copihold 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 heire shall be in ward, The Lord that have Ward­ship, though not dying sei­sed. albeit the Tenant di­ed not seised, &c. 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 heire within age entreth for the con­dition broken; In this case the heire shall be in ward, and yet the Feof­for had no estate or right in the land at the time of his death, but onely 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, &c.

Co. ib. 89. b. 4. 11 If a stranger entreth 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 agrée with the writ of ac­compt 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 custodie 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 grosse as of his per­son, and not of any Mannor, Tenure in Capite. &c. and this Seignory escheateth to the King, (yea though it be by attainder of Treason) he holdeth of the per­son [Page 143] son of the King, as he held before of the person of the Subject, and not of the King in Capite; because the originall 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, Mannor, &c. But when the land is holden of the King as of his Crown. Vide Dyer 44. 28. &c. 30 H. 8. & Mag. Car. cap. 31. & 25. 4.

Advowson ap­pendant. 13 An Advowson is appendant to the Mannor of Dale, Co. ib. 122 a. 1. of which Mannor the Mannor of Sale is holden, the Mannor of Sale is made parcel of the Mannor of Dale by way of Escheat; In this case, the Advowson is still onely appendant to the Mannor of Dale.

Common ap­pendant. 14 If Common appendant be claimed to a Mannor, Co. ib. 122. a. 4. yet (in rei veri­tate) it is appendant 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 Assise for [...]ent after dis­ [...]eisin. 15 If the Tenant rescue the Distresse, Co. Inst. pars 1. 160. b. 3. and after is disseised of the tenancy; yet an assise lyeth against him, for the Disseisin done of the rent by the Rescous; &c.

Coparcenary [...]n other [...]ands. 16 If one of the Parceners take Baron and die, Co. ib. 174. b. 4. &c. the Baron being Tenant by the Courtesie is compellable by a writ de partitione facienda, to make partition, and shall be joyntly impleaded with the other Co­parcener; for he doth continue the state of Coparcenary, as the other Parcener doth, &c. So likewise if there be two Coparceners, and one of them doth alien in fée, 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 Courtesie.

The heire in Hotchpot. 17 If the Donées in Frankmarriage die before the lands be put into Hotchpot with the other Coparcener, Littl. §. 270. Co. ib. 178. a. the heire 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 seised, had but a Frée-hold, and heirs in that case were added to prevent an occupant: For an heire in that case shall not have his age, &c. as it was adjudged in Lambs case, P. 16 Eliz. in Co. Ba.

Right left af­ter recovery. 19 If the Disseisée disseise the heire of the Disseisor, Co. ib. 266. a. 4. albeit the heire 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 heire, and he recover the land against her, yet shall he leave the right of Dower in her.

Attornment. 20 If either the Grantor or y ^e Grantée of a Seigniory, rent, reversion, Co. ib. 315. a. 4. remainder, &c. 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 fée 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 re-enters; Here also, an action of Waste shall be maintained against the Lessee, &c. 5.

[Page 144] Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly, Warranty that begins by disseisin. when the disseisin is done immediately to the heire, 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 binde, 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 taile to another, and the Vncle disseise the Donee, and enfeof­feth another with warranty, the Vncle 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 binde the Donor: So likewise if the father, the son, and a third person be Ioyntenants in fee, the father maketh a feoff­ment in fee of the whole with warranty, and dieth, the son dieth, the third person shall not onely 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, &c. Co. l. 5. 79. b. Fitzherberts case.

Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine barres a [...] entail in re­version. a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall barre the estate taile, but not him in the reversion or remainder, if he maketh his claime, and pursue his action within five years after the estate taile spent, &c. How­beit if a gift be made to the eldest son, and to the heires of his body, the remainder to the father and to the heires of his body, the father dieth, the eldest son levieth a fine with proclamations, &c. 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, &c.

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, &c. or if the Lessee sur­render unto the Lessor; Here, the estate and terme 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 booke of 32 E. 3. tit. Barre 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 Water-course 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 shew the nature and qua­lity of it; and (doubtlesse) 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, &c. although he alter 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 it selfe, 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.

[Page 145] [...] corporation [...]ranslated en­ [...]oyes the an­cient priviled­ges. 27 If a Corporation hath Franchises and Priviledges 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 Deane and Chapter, &c. 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, Priviledges, and Hereditaments which the old Corpora­tion had, be it by grant or prescription; for no man can be prejudiced by it, &c.

A stranger [...]ound by a cu­ [...]tome. 28 In debt against an Administrator upon an Obligation, Co. l. 5. 83. a. Snellings case. the De­fendant pleads, that the custome of London is, that the Administrator shall be bound to pay a debt upon a simple contract, as upon an Obliga­tion, &c. and that he had already payd I. S. &c. And in this case it was adjudged, that the Plaintiff being a stranger, was as well bound by that custome, as if he had béen a Citizen. Vide 1 E. 4. 6. accord.

Presentation [...]o an Advow­ [...]on. 29 Winsor 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 Quéen Mary was deprived, quia conjugatus, &c. whereupon the Defendant presents his Clerke, 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 demurres; And in this Quare Impedit judgment 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 againe by force of the first presentation, institution, and induction, and there néeded no new institution, &c. And by force of the second sen­tence the Presentée of the Defendant was removed, and Parry resto­red: And therefore when Parry dyed, 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, &c.

[...]nferiour Courts. 30 When a writ of right is directed to the Lord of a Mannor, Co. l. 6. 11. a. Jentlemans case. or his Bayliffs, or a Iusticies, or other Vicontiel Writs are directed to the Sheriffe, &c. that shall not change the nature or jurisdiction of those Courts, as to make the Lord or Sheriffe (to whom those Writs are directed) to be Iudges of those Courts respectively, which were not so before; but the Sutors do still remaine Iudges thereof; Neither yet shall the direction of those Writs to the Lord or Sheriffe, as aforesaid (albeit they are in themselves matter of Record) constitute the Lord or Sheriffe to be Iudges of Record, or a Court Baron, Hundred Court, or County Court, to be Courts of Record; For upon a Iudg­ment given in any of those Courts, a writ of False judgement lies, and not a writ of Errour, &c.

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 processe, per mort de la Roygne. upon the general resummons by the Kings writ (which begins thus, Manda­mus vobis, quod ad sectam nostram animumque ligeorum populi nostri, &c.) the originall and issue (if any be joyned) is revived; for that is a full record, and ought to be entred; it is otherwise of the processe before issue joyned, voucher, garnishment, &c. yet they shall be also revived upon a special writ, reciting all the special procéeding: And it appeares by the booke of Entries, tit. Reattachment, 499. that if the Issue be joyned, and [Page 147] the Iury returned, and a day given for tryall, before which day the King dies, yet by special resummons all shall be revived, for the Iu­ry was returned of record, and the record thereof was made full and per­fect, &c.

Co. lib. 11. 64. a. 2. Doctor Fosters 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, &c. 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 moneth they so make de­fault, and that of the forfeitures aforesaid, the Queen, &c. shall have the two third parts, viz. the one to her owne use, the other for reliefe of the poore, &c. and the other third part the prosecutor shall and may recover by a­ction of debt, &c. 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 Termes, pay unto the Exchequer twenty pound for every moneths absence from Church, &c. and if default be thereof made, &c. the Queens Majestie, &c. shall and may by processe out of the Exchequer seize all the of­fenders goods, and two parts of his lands, &c. And lastly, by the Statute of 35 Eliz. cap. 1. It is ordained, &c. that for the more speedy recovering, &c. of the forfeitures, &c. payable to the Queen, &c. by vertue of this Act, and of 23 Eliz. 1. all and every such forfeitures, &c. shall be recovered, &c. by acti­on of debt, &c. in the Kings Bench, the Common Pleas, or Exchequer, as other debts may be recovered, &c. Here albeit the Statutes of the 29 and 35. séems 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 Quéen in the other two subsequent Acts: Yet the Act of the 23. remains in full force according to the tenour of the same, notwith­standing y ^e 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 Quéen, &c. 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. &c. As in a Writ of Mesne, the processe at the Common Law was Distresse infinite, and although the Statute of Westm. 2. cap. 9. gives a more speedy processe, and in the end a Fore­judger, yet the Plaintiff may take which processe he will, either at the Common Law, or upon the said Statute, because both are in the affir­mative. Vide ibid. many authorities accordant, &c.

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, &c. he which found himselfe grie­ved, might (within the moneth) after traverse, and to take the lands and tenements to farm, and that then the Chancellour, Treasurer, and other Officer shall demise unto him to farme, untill, &c. (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 moneths: 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 Kings hands: Here, albe­it the last designes another person, yet doth it not utterly take a­way the first: For, if before any lease made by the Master of the Wards, the Chancellour 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 Chancellour, 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, [Page 147] which gives assise 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 appeale of the death of his father, that would not exclude the eldest son of his fuit, be­cause there are no words of restraint, &c.

[...]ncient 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 re [...]ersed, the writ is awarded good, then shall the Demandant hold plea there, and a judiciall 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 assise of Mortdan­cester, the Iustices shall direct a writ to the Sheriff to summon the Iu­rors to come out of the ancient Demesne to the Common Pl. and the whole matter shall be tryed 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.

[...]resentation [...]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 assise De Darrein presentment, notwith­standing those meane presentments.

Disturbance [...] present. 36 If a disturber presents to an Advowson, F.N B. 32. [...]. and the Patron brings an assise 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 assise of Darrein presentment upon the first di­sturbance by Journeys accompts against the heire of the disturber: And so if the disturber present two or thrée times within the six moneths, the true Patron shall have an assise de Darrein presentment upon the first di­sturbance.

Presentation [...]y Coparce­ [...]ers. 37 If two Coparceners make partition to present by turne, F.N.B. 34. i. albeit the one Coparcener usurp upon the other, and presents in her turne, this presentment shall not put her out of possession; but she shall have her turne, 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 avoydance 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 Predecessour, for that puts the succession out of possession, if the six moneths be past.

[...]ction of De­ [...]eipt. 39 If a man loose land by default in a Praecipe quod reddat, and die, F.N.B. 98. q. his heire 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 non-suited 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, &c.

[...]ecogni­ [...]ance. [...]udita quae­ [...]a. 42 Rosse was bound in a Recognizance of 1000 Marks to Pope, Pl. Co. 72. Rosse & Popes 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 Mannor of [Page 148] Burton Constable and other lands in the County of Yorke in fée; 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 Yorke 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 par­cell 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, &c.

Finch 15. 43 The custome 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 custome 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 custome 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 custome 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 y ^e youngest son shall have a Writ of Errour, Burrough [...] ­glish. because the land it self 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 sur­rendring, ill husbandry, or the like, yet the partition remains good.

Co. inst. pars 1. 23. a. 11. 47 Whosoever is seised of land, Feoffment [...] his own [...] the old [...] maines. hath not onely 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 fée 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 seised 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 fée of both acres to the use of himselfe 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 fée of them to the use of himselfe and his heirs, the use shall still goe to the heire 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 custome of Burrough English, Gavelkind, &c.

Fitz. N. B. 1. 156. b. 48 If Tenant by Receipt upon default of Tenant for life appeare, Tenant by [...] ceipt. and to received and pleads, and after loseth by action tried, &c. 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, Rent charg [...] 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 rendring rent, Cesty que [...]s [...] be­fore the Statute of Vses; in this case, Cestuy que use (who now hath the [Page 149] reversion in possession) shall distraine 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 thrée Coparceners of a Mannor, Dyer 30. 203. and the King grants them a Law-day, and they afterwards make feoffment of the Mannor, yet shall they still retain the Law-day: So if a man hath a Mannor, and the King grants him frée Warren within his Mannor, if he afterwards enfeoff the King of his Mannor without the appurtenances, he shall still retain the Warren; For a man may have Warren or a Law-day in anothers 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 Errour 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: Errour. And this matter was pleaded by the Defendant in this action, &c. And the better opinion of the Court was, that the action was maintainable (notwithstanding the writ of Errour) because it was brought upon a new original.

Frankal­moign. 53 Albeit the Lyturgie 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, &c. 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 séeing 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 custome, come into H. 8. Dyer 155. 21. 4, 5 P. M. hands by the dissolution of Abbies, and after the King grants them to hold in chiefe by Knights 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 Assise may, Dyer 163. 54. notwithstanding the death of both the Iustices of Nisi prius, deli [...]er in Court the Records of the Verdicts taken before the same Iustices in the Circuit, &c.

Death of a Defendant. 56 In a Replegiare, or an Assise 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 entred against the Survivor.

Partition. 57 Ioyntenants 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 alters not the Common Law in that case.

Assets. 58 In debt upon an obligation against the heire, it is no plea to say, Dyer 179. 43. Dyer 204. 2. that the Executors have assets. Vide Dyer 207. 15.

[Page 150] Dyer 217. 61. 4 Eliz. 59 A Veni [...]e facias with Proviso was returned, served, Venire facia [...] and pu [...] upon the file, and two hours after a Pluries venire facias, which was after­wards pursued by the Plaintiff was also returned and filed, each par­ty also pursue their Habeas Corpora, which are likewise retur [...]ed; 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 courtesie. Partition. yet (in this case) the Baron shall be Tenant by the Courtesie, and shall sue livery.

Dyer 243. 55. 8 Eliz. 61 If there be thrée 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 lyeth at the Common Law, as it did before the Statute.

Dyer 326. 3. 16 Eliz. 62 The Qu. was seised of Whaddon Chase in Com. Bucks, De malefacto­ribus in pa [...] and the Lord Gray was Lievtenant there in fée, and he and his Ancestors, and their Kéepers had by prescription used to hunt stray Déere in the Demesnes of the Mannor of Salden adjoyning, as in Purlewes, the Mannor of S. comes into the Quéens hands, who grants it to Fortes­cue in fée wi [...]h frée 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 Quéen of the Chase and the Mannor of S. did not extinguish the purlew, and that the clause of Ita quòd, &c. was not to be intended against the Queens Kéepers, but other Subject onely: So that, whereas Fortescues servant killed the servant of the Kéeper for chasing there; it was not justifiable by the Statute de Malefactoribus in pa [...]cis & Warrennis.