III
Maximes
of
Reason
:
taken
out
of
LOGICKE
.
19
Cessante
causa
cessat
effectus
.
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
,
ubi
nullum
matrimonium
,
ibi
nulla
dos
.
See
Dyer
13.
a.
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
.
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
:
Damage
fesant
,
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
.
Ca.
sa
.
and
the
Plaintiffe
releaseth
all
actions
,
Justice
Windhams
case
.
C.
C.
maketh
a
f●ffoment
in
fée
,
and
dieth
without
issue
,
per
Popham
.
The
Lord
Buckhursts
case
.
34
A.
enfeoffes
B.
with
warranty
;
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
;
cessante
causa
,
cessat
effectus
.
38
If
the
Lessée
makes
wast
,
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
,
de
valoremaritagii
,
such
as
in
like
case
is
used
to
be
had
after
the
heires
full
age
of
21
years
.
Everard
Digby
by
act
executed
in
his
life
conveyed
his
lands
to
the
use
of
himselfe
for
life
with
divers
remainders
over
,
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
.
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
.
Assise
de
nusans
,
or
Quod
Permittat
prosternere
,
cessante
causa
cessat
effectus
.
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
,
pur
cause
de
gard
,
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
)
onely
tenant
at
sufferance
.
The
Lo.
Zouches
case
.
20
Remoto
impedimento
emergit
actio
,
&
contra
.
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
,
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
,
in
capite
makes
Leases
,
22
Vide
,
M.
28.
ca.
4.
&
3.
5.
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
.
21
Things
are
construed
according
to
that
,
which
was
the
cause
thereof
.
Vide
31.
9.
[
a
](A66669-e33470-b)
a
13
E.
3.
Tit.
Ass.
19
E
3.
Ass.
83.
12.
Ass.
22.
19
Ass.
2.
But
in
case
of
frankmariage
,
if
they
be
so
divorced
,
the
woman
shall
enjoy
the
whole
land
;
because
she
was
the
cause
of
the
gift
.
So
if
lands
holden
in
[
c
](A66669-e33480-b)
c
Plowd
.
Carzibs
case
.
soccage
be
given
in
special
tail
,
and
the
Donées
die
the
issue
being
within
the
age
of
14
yeares
,
[
e
](A66669-e33500-b)
e
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.
8
A
tenure
of
the
King
in
Capite
,
[
a
](A66669-e33710-b)
a
Bract.
f.
87
as
of
his
Crown
,
that
is
,
as
he
is
King
:
[
c
](A66669-e33720-b)
c
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.
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
,
11
If
there
be
thrée
Coparceners
,
and
they
make
partition
,
s.
viz.
to
the
one
10
s
,
&
to
the
other
●0
s.
yet
shall
they
have
the
rent
in
course
of
coparcenary
,
and
shall
also
joyn
in
action
for
the
same
.
Co.
l.
5.
8.
a.
2.
Cases
of
Leases
,
Justice
Windhams
case
.
de
partitione
facienda
lyeth
betwixt
them
;
and
consequently
shall
have
but
one
Assize
.
C.
l.
4.
124.
b.
2.
Beverleys
Case
.
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
:
Littleton
Sect.
696.
If
A.
and
B.
Ioyn-tenants
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.
A.
de
B.
be
seised
of
an
house
,
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
.
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
.
Popham
Chief
Justice
said
,
that
it
was
adjudged
in
Sands
his
case
,
Sir
Nich.
Bacon
and
Flatman
.
28
Deodands
are
the
goods
,
which
caused
the
death
of
the
party
killed
by
misfortune
,
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
.
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
.
K.
James
tooke
upon
him
the
Crown
of
England
,
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
.
Eliz.
Dyer
.
289.
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
.
Vide
Co.
4.
27.
b.
Taverners
case
,
&
28
b.
Westicks
case
.
Vide
30.
22
,
23.
Agnes
Gores
case
.
38
Gore
(
the
husband
of
Agnes
)
being
sick
,
&
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
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
.
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
,
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
.
damage
fesant
,
de
non
sane
memory
kill
a
man
,
they
shall
be
excused
,
because
their
ignorance
,
and
not
any
wicked
intention
was
the
cause
thereof
.
per
Rede
.
Plowd.
26.
b.
4.
Colthrist
,
and
Bivishams
.
49
If
one
retaine
another
to
serve
a
yeare
for
20
s.
wages
;
here
,
matters
of
the
Crowne
in
the
Commentaries
,
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
:
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
:
[
a
](A66669-e37920-b)
a
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
.
&
è
contrà
.
Tamen
quaere
;
for
one
book
saith
,
that
the
land
shall
be
divided
betwixt
them
.
per
Fitzherbert
.
probis
hominibus
villae
de
Islington
,
rendring
rent
,
22
Cujus
est
dare
ejus
est
disponere
.
provided
alwayes
,
Cujus
est
dare
,
&c.
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
.
Cujus
est
dare
,
&c.
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
.
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.
23
Ultra
posse
non
est
esse
,
&
Vice
Versa
.
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
,
cum
omnibus
profic
.
&c.
(
except
&
semper
reservat
,
sibi
&
haeredibus
suis
toto
benefic
.
&
profic
.
Miner
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
.
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.
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.
In
Colth
.
and
Bivishams
case
.
in
esse
at
the
time
of
the
feofment
made
.
24
Nemo
potest
plus
juris
ad
alium
transferre
quàm
ipse
habet
.
Nemo
potest
plus
juris
,
&c.
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
.
per
Cooke
.
Co.
Inst.
pars
1
332.
b.
4.
6
If
Tenant
in
taile
let
this
land
to
another
for
yeares
,
dum
fuit
infra
aetatem
for
the
moity
onely
;
because
no
more
could
passe
from
him
by
the
feofment
.
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.
Sir
Geo.
Brownes
case
,
Nemo
potest
plus
juris
,
&c.
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
.
In
Trin.
4.
El.
Rot.
1207.
in
Com.
Banco
,
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.
after
the
death
of
his
wife
,
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.
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.
per
my
&
per
tout
,
yet
can
they
not
singly
dispose
of
more
,
then
the
part
,
Sed
non
allocatnr
per
curiam
,
&c.
25
Things
are
construed
according
to
that
,
which
was
the
beginning
of
them
.
Vide
Max.
63.
21.
which
priviledges
you
may
see
,
Co.
In.
part
1.
28.
a.
2.
[
a
](A66669-e41660-b)
a
34
E.
2.
Cui
in
vita
13.
2
E.
2.
Cui
in
vita
26.
10
E.
3.
12.
Dyer
21.
El.
3●3
.
29
E.
3.
27.
the
husband
maketh
a
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
.
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
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.
William
Ocle
,
who
was
attainted
for
murthering
,
E.
2.
Finch
.
41.
Co.
l.
5.
96.
Goodales
case
.
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.
l.
5.
15
,
16.
in
Wisemans
case
.
Vide
21.
8.
Binghams
case
in
the
2
Report
,
Report
fol.
106.
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.
(
being
widdow
)
are
satisfied
.
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.
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
,
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
,
Bona
&
cattalla
felonum
,
fugitivorum
,
utlagatorum
,
&c.
bona
&
cattalla
waviata
,
extrahur'
deodanda
,
wreccum
maris
,
&c.
within
such
possessions
;
Here
,
if
these
come
againe
unto
the
King
,
they
are
drowned
in
the
Crowne
,
and
he
hath
them
againe
in
jure
Coronae
;
but
when
a
Priviledge
,
Libertie
,
Franchise
,
or
Iurisdiction
was
at
the
first
erected
and
created
by
the
King
,
and
was
no
such
flower
before
in
the
Garland
of
the
Crowne
;
here
,
by
the
accession
of
them
againe
to
the
Crown
,
they
are
not
extinct
,
nor
the
appendance
of
them
severed
from
the
possession
:
As
if
a
Faire
,
Market
,
Hundred
,
Léet
,
Parke
,
Warren
,
or
the
like
;
are
appendant
to
Mannors
,
or
in
grosse
,
and
after
they
come
againe
to
the
King
,
they
remaine
(
as
they
were
before
)
in
esse
not
drowned
in
the
Crown
;
for
at
first
they
were
created
,
and
newly
erected
by
the
King
,
and
were
not
in
esse
before
,
time
and
usage
having
made
them
appendant
:
And
this
diversity
was
agréed
per
totam
Curiam
,
11
H.
4
,
5.
15
E.
4.
7.
4
E.
3.
42.
10.
H.
7.
21.
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
.
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
.
26
A
derived
power
cannot
be
greater
than
that
,
from
which
it
is
derived
.
Derivata
potestas
non
potest
esse
major
primitiva
.
(
in
like
manner
as
the
Testator
might
or
ought
to
have
done
.
)
Et
sic
de
similibus
.
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
,
in
as
large
and
ample
manner
as
the
said
Testator
might
or
ought
to
have
recovered
them
,
&c.
Co.
l.
6.
68.
Sir
Moile
Finches
case
.
against
the
opinion
in
Dyer
,
33
Hen.
8.
fol.
48.
)
For
,
Cessante
statu
primitivo
cessat
&
derivativus
.
John
Nedhams
case
.
16
The
Ordinary
hath
not
power
to
give
authority
to
another
to
sell
the
goods
of
the
dead
;
El.
Dyer
255.
Co.
l.
9.
39.
a.
Hensloes
case
.
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
.
27
Things
are
dissolved
,
as
they
be
contracted
.
Unum
quodque
dissolvitur
eo
modo
,
quo
colligatum
est
:
Nihil
tam
conveniens
naturali
aequitati
,
unumquodque
dissolvi
eo
ligamine
quo
ligatum
est
.
a.
John
Webbes
case
.
ea
intentione
,
or
ad
effectum
,
or
ad
propositum
,
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
,
Co.
l.
3.
64.
b.
4.
and
65.
a.
1.
Pennants
case
.
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.
rien
arrere
is
a
good
plea
;
for
this
prescription
is
a
matter
in
fait
:
Co.
l.
4.
57.
a.
4.
In
the
Sadlers
of
Londons
Case
.
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
.
Pierce
Partifields
case
.
12
In
Pierce
Partifields
case
cited
in
the
case
of
the
Sadlers
of
London
in
the
4
Report
,
fol.
55.
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
.
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.
B.
R.
for
the
death
of
a
man
,
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
as
the
King
was
entitled
by
matter
of
Record
,
it
ought
to
be
avoided
by
matter
of
as
high
nature
.
Henry
Petoes
case
.
22
If
a
man
be
bound
in
a
Statute
to
do
any
collaterall
Act
,
Leonard
Loveis
case
.
23
Vses
and
Powers
in
contingencie
and
possibility
may
be
by
mutual
assent
of
the
parties
revoked
and
determined
;
for
,
28
Things
grounded
upon
an
evil
void
beginning
,
cannot
have
good
perfection
.
2
Tenant
for
life
of
a
Carve
of
land
,
the
reversion
to
the
father
in
fée
,
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
.
in
futu●o
,
void
.
7
If
a
Lease
for
yeares
be
made
to
begin
at
Michaelmass
,
in
futuro
;
for
if
it
should
worke
at
all
,
it
must
take
effect
presently
,
and
cannot
expect
.
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
.
Eliz.
Dyer
344.
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
.
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
.
decimarum
&
garbarum
suarum
in
L.
in
Com.
N.
cum
omnibus
aliis
decimis
suis
quibuscunque
in
L.
in
dicto
Com.
N.
tunc
vel
nuper
in
occupatione
I.
C.
and
grants
further
that
those
Letters
Patents
shall
be
of
force
and
effect
against
her selfe
and
her
Successors
,
Non
obstante
male
nominando
.
vel
male
recitando
praedict.
portionem
decimarum
,
&c.
Et
non
obstante
aliquibus
defectis
in
male
recitando
vel
non
nominando
alicujus
tenentis
sive
occupatoris
,
&c.
And
all
this
was
found
by
special
verdict
,
and
besides
,
that
I.
C.
never
had
any
Tithes
in
L.
in
his
occupation
;
and
thereupon
one
question
was
,
whether
the
defect
of
mistaking
?
the
Farmer
was
not
supplyed
by
the
non
obstante
;
and
it
was
resolved
,
that
it
was
not
;
Because
when
the
words
of
the
grant
are
not
sufficient
ex
vi
termini
to
passe
the
thing
granted
,
but
the
grant
is
utterly
void
,
there
a
non
obstante
cannot
make
the
grant
good
;
for
when
the
Queen
grants
Totam
illam
portionem
,
&c.
nuper
in
tenura
I.
C.
here
the
addition
of
I.
C.
is
of
the
substance
of
the
grant
,
and
in
as
much
as
I.
C.
never
had
the
portion
in
his
occupation
,
the
grant
must
néeds
be
void
ex
vi
termini
,
and
therefore
the
non
obstante
,
cannot
make
it
good
.
John
Codwel
Plaintife
,
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
:
because
the
Venire
facias
,
and
Panel
are
the
beginning
and
ground
of
the
other
subsequent
Processe
.
Walter
Tooke
and
William
Curle
Officium
unius
Auditorum
Curiae
suae
Wardorum
,
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.
Edward
Green
and
John
Green
for
their
lives
together
with
the
fee
of
6.
l.
13.
s.
4.
d.
per
annum
,
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.
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
death
,
The
Abbesse
of
Sions
case
,
and
the
Earle
of
Leicesters
case
Plow
.
400
,
&c.
Quae
malo
sunt
inchoata
,
&c.
Quod
initio
non
valet
,
&c.
It
is
otherwise
if
the
Abbot
himselfe
present
,
&c.
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.
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
.
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
.
Cestuy
que
use
(
after
the
Statute
of
1
R.
3.
1.
29
Quod
non
habet
principium
,
non
habet
finem
.
&
contra
.
2
Regularly
,
a
man
shall
not
be
remitted
to
a
Right
remedilesse
,
4
Vide
infra
M.
38.
1.
7.
and
162.
49.
30
He
that
claimeth
Paramount
a
thing
,
shall
never
take
benefit
,
nor
hurt
by
it
.
Dos
de
dote
peti
non
potest
,
although
the
Grandmother
die
,
living
the
Fathers
wife
.
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.
Doct.
&
Stud.
l.
2.
cap
17.
jus
accrescend●
prefertur
oneribus
,
and
Alienatio
rei
praefertur
juri
accrescendi
.
Vide
M.
15.
Pl.
14.
Inst.
part
1.
318.
a.
3.
15
If
there
be
Lord
,
Mesne
,
and
Tenant
,
and
the
Mesne
grant
by
Fine
the
Services
of
his
Tenant
to
another
in
fée
,
Ass.
P.
72.
But
he
that
hath
onely
a
later
Right
,
Title
,
Interest
,
Debt
,
or
Demand
,
shall
not
(
at
the
Common
Law
)
avoid
a
precedent
Grant
or
estate
made
by
fraud
.
to
the
use
of
another
,
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.
I.
S.
and
the
Executors
agrée
and
assent
,
that
I.
S.
and
I.
D.
shall
have
it
,
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
,
Formedon
in
descender
if
the
Demandant
be
barred
by
verdict
or
demurrer
,
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.
Fitz.
N.
Br.
150
q.
I.
S.
Here
,
I.
S.
shall
not
sue
execution
upon
this
recovery
.
causa
qua
suprà
.
Vide
suprà
5.
pur
auter
vie
sow
the
land
,
and
Cestuy
que
vie
die
,
pur
auter
vie
shall
have
the
crop
;
So
if
the
Baron
sow
the
Femes
land
,
and
the
Feme
die
,
the
Baron
shall
reap
the
crop
;
Likewise
if
the
Baron
make
feofment
in
fée
to
the
use
of
himselfe
for
life
,
the
remainder
to
the
use
of
the
Feme
for
life
,
with
remainders
over
,
and
the
Baron
sow
the
land
and
die
,
his
executors
shall
have
the
crop
,
and
not
the
Feme
or
Heire
,
because
death
being
the
Act
of
God
,
it
could
not
be
fore-séen
or
prevented
:
Howbeit
,
if
the
Baron
make
feofment
in
fée
,
to
the
use
of
himselfe
and
his
Feme
for
their
lives
with
remainders
over
,
and
the
Baron
sow
the
land
and
die
,
the
Feme
shall
have
the
crop
,
because
she
was
Ioyn-tenant
with
her
husband
,
and
hath
it
by
Title
paramount
the
executor
;
So
if
the
Baron
sow
the
land
and
die
,
and
the
third
part
is
assigned
to
the
Feme
for
Dower
,
she
shall
have
the
emblements
therewithall
;
because
,
she
is
in
of
her
husbands
estate
paramount
the
Title
of
the
executor
,
and
likewise
shall
be
endowed
de
optima
possessione
of
her
husband
.
31
Things
are
to
be
construed
,
Secundam
subiectam
materiam
.
Marlebridge
cap.
17.
and
likewise
upon
the
original
writ
of
accompt
against
such
a
Guardian
:
The
words
of
the
Statute
are
these
,
Cum
ad
legitimam
aetatem
pervenerit
,
sibi
respondeat
,
&c.
[
a
](A66669-e52780-b)
a
16
E.
3.
Wast
100.
&c
,
And
legitima
aetas
is
21
yeares
:
Also
the
writ
of
accompt
reciting
the
said
Statute
,
saith
,
Quare
cum
de
communi
concilio
,
&c.
provisum
sit
,
quòd
custodes
,
&c.
in
Soccagio
haeredibus
,
&c.
cum
ad
plenam
aetatem
pervenerint
reddant
rationabilem
compotum
,
&c.
[
c
](A66669-e52810-b)
c
16
E.
2.
account
120.
17
E.
2.
ibid.
121.
[
c
](A66669-e52820-b)
c
2
E.
2.
account
.
14
E.
3.
ibid.
3
Mar.
137.
Kelway
131.
Pl.
16
El.
Rot.
436.
Littl.
§
123.
Whereupon
it
was
gathered
,
that
no
action
of
accompt
did
lie
against
the
Guardian
in
Soccage
at
the
Common
Law
,
untill
the
heire
were
of
his
lawfull
and
full
age
of
21
yeares
:
But
legitima
aetas
(
as
the
Statute
hath
it
)
or
plena
aetas
(
as
the
writ
doth
render
it
)
are
to
be
understood
secundam
subjectam
materiam
,
viz.
of
the
heire
of
Soccage
land
,
whose
lawfull
or
full
age
,
as
to
the
Custodie
or
Wardship
,
is
14
:
and
therefore
upon
consideration
had
of
the
said
Statute
and
of
all
the
Books
,
it
was
adjudged
in
the
Court
of
Common
Pleas
P.
16.
El.
rot.
436.
that
the
heire
after
the
age
of
14
yeares
shall
have
an
Action
of
accompt
against
the
Guardian
in
Soccage
,
when
he
will
at
his
pleasure
,
and
with
this
agrées
Littleton
,
Sect.
123.
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.
George
Browns
case
.
7
The
words
of
the
Statute
of
11
H.
7.
cap.
20.
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
.
none
shal
have
any
Avowry
or
Conusance
for
any
rent
suit
,
or
service
,
unlesse
seisin
were
had
within
40
years
before
the
Avowry
made
)
extends
not
to
any
such
Rent
or
Service
,
which
by
common
possibility
cannot
happen
or
become
due
within
60
yeares
;
as
if
the
Seigniory
consists
upon
Homage
and
Fealty
onely
;
for
the
Tenant
may
live
60
yeares
after
he
hath
done
them
:
So
also
if
the
Service
be
to
cover
the
Hall
of
the
Lord
,
or
to
go
to
Warre
with
him
,
when
the
King
maketh
Warre
against
his
enemies
,
such
casual
Services
,
which
by
common
possibility
cannot
happen
within
60
yeares
,
are
not
within
that
Act
,
&c.
Likewise
writs
of
Escheat
,
Cessavit
,
or
Rescous
are
not
within
those
branches
of
the
same
Statute
,
which
limit
the
seisin
of
land
,
because
in
those
writs
the
seisin
is
not
traversable
,
but
the
tenure
,
and
in
those
writs
of
Escheat
and
Cessavit
,
albeit
they
demand
the
land
,
yet
néed
they
not
alleadge
any
seisin
in
the
same
lands
,
&c.
as
the
said
Statute
requires
;
because
that
Act
onely
extends
to
such
a
writ
,
where
the
Demandant
or
his
Ancestors
may
have
seisin
of
the
land
in
demand
within
the
time
of
limitation
prescribed
by
the
Act
,
and
the
Statute
doth
not
force
them
to
any
impossibility
,
&c.
You
like
of
those
that
maintaine
sedition
against
the
Queens
proceedings
,
unto
which
the
Defendant
pleades
special
justification
,
that
the
Plaintife
procured
two
to
preach
in
his
Church
,
which
enveighed
in
their
Sermons
against
the
Book
of
Common
Prayer
,
and
because
the
Defendant
did
prohibit
them
,
the
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.
11
In
Appeal
of
Murder
against
A.
as
principal
,
Dyer
inter
Sir
Anthony
Cook
,
and
Weston
,
in
Justice
Windhams
case
Co.
l.
5.
7.
b.
4.
Subject
matter
,
and
to
make
construction
according
to
the
congruity
of
Reason
,
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.
Tempus
semestre
,
Vide
Dyer
327.
7.
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
.
●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
,
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.
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.
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
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.
Geo.
Reynol●
case
.
20
When
two
distinct
matters
of
Record
amount
to
an
office
,
S●i●●
facias
and
when
not
.
sometimes
there
ought
to
be
a
Scire
facias
,
before
the
King
doth
seise
;
And
sometime
not
according
to
the
several
subject
matter
;
As
if
it
be
found
by
Office
,
that
the
Mannor
of
D.
is
holden
of
the
King
,
and
it
appears
also
by
fine
upon
Record
,
that
the
Mannor
of
D.
is
aliened
in
Mortmaine
;
In
this
case
there
ought
to
be
a
Scire
facias
,
in
which
it
may
appeare
by
averrement
that
it
is
all
one
and
the
same
Mannor
(
for
they
may
be
two
several
Mannors
of
one
name
)
and
that
he
that
aliened
it
was
thereof
seised
;
because
both
those
matters
upon
record
without
such
averrement
will
not
put
the
party
to
answer
;
but
when
the
identity
of
the
thing
appeares
to
the
Court
,
and
that
it
cannot
be
divers
;
there
the
two
matters
shall
then
also
amount
to
an
office
,
and
the
King
may
seise
without
a
Scire
facias
;
As
in
the
case
of
Sir
John
Savage
,
who
was
Sheriffe
of
the
County
of
Worcester
for
life
by
Letters
Patents
under
the
Great
Seal
;
for
he
being
indicted
of
two
voluntary
escapes
of
Felons
,
it
was
holden
per
Curiam
in
B.
R.
that
those
words
amounted
to
an
Office
,
and
that
the
King
was
seised
without
a
Scire
facias
;
And
the
reason
was
,
because
it
appeared
to
the
Court
,
that
there
could
be
but
one
Sheriffe
in
one
County
;
and
therefore
there
was
no
néed
of
any
Scire
facias
in
that
case
,
&c.
23
If
Tenant
in
taile
make
a
Lease
for
yeares
of
lands
,
24
Vide
Max.
101.
Pl.
7.
32
According
to
the
end
.
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
.
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
.
4
If
a
Castle
,
that
is
used
for
the
necessary
defence
of
the
Realme
,
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.
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.
Ejectione
firma
,
is
out
of
the
Statute
of
32
H.
8.
cap.
9.
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
.
Grand
cape
ad
valentiam
,
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
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
.
●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.
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
.
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
.
19
To
let
a
prisoner
in
execution
go
at
large
upon
bond
,
&c.
is
expressely
against
the
Statute
of
23
H.
6.
22
Hob.
8
case
of
Essoines
.
33
Qui
adimit
medium
di
rimit
finem
.
Mirr
.
cap.
2.
Sect.
15.
Britt
.
108.
114.
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
;
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.
non
summons
(
for
,
Beudloes
enter
evesque
de
Londres
&
Hieron
,
Co.
l.
9.
50.
95
,
96.
99.
Co.
l.
3.
43.
b.
4.
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
.
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
.
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
.
C.
A.
before
the
day
of
giving
up
the
award
dischargeth
C.
to
make
any
award
;
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
.
15
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
.
34
According
to
the
effect
.
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.
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
;
Co.
l.
6.
●6
.
Sha●ps
cas●
.
&
l.
9.
137.
secund●m
Flower deluce
cartae
,
5
A
man
hath
issue
a
Sonne
and
dieth
,
and
the
wife
dieth
also
;
6
If
there
be
Lord
,
Feme
mesne
,
and
Tenant
,
7
If
the
husband
alien
his
land
,
8
If
the
Father
convey
his
lands
holden
by
Knight-service
either
of
the
King
or
of
any
meane
Lord
,
Co.
l.
2.
93.
94.
Binghams
case
,
and
Northcots
case
.
Co.
l.
10.
80.
b.
Loveyes
case
.
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
.
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
:
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
both
those
cases
,
the
Feoffees
are
seised
to
the
use
of
the
Feoffor
and
his
heires
in
the
mean
time
.
Whittinghams
case
.
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
.
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
;
si
●ction
.
29
In
all
cases
when
a
Deed
is
onely
voidable
at
the
time
of
the
Action
brought
(
as
for
Infancy
,
Dures
,
Judgement
si
Action
,
and
not
,
non
est
factum
(
1
H.
7.
15.
)
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
:
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
,
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
.
Drue
Druries
case
.
31
When
Tenant
by
Knight
Service
dies
,
his
heire
within
age
,
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.
35.
He
that
cannot
have
or
performe
the
effect
or
consequence
of
a
thing
,
shall
not
have
the
thing
it selfe
.
6
If
the
Lord
mayhim
his
Villaine
,
7
In
a
Quid
juris
clamat
brought
by
two
Executors
,
8
Regularly
when
any
man
will
take
advantage
of
a
Condition
,
if
he
may
enter
he
must
enter
,
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
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.
Ejectione
firma
be
brought
,
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
.
Edward
Seymors
case
.
Co.
Inst.
pars
1.
389.
a.
2.
as
the
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
may
be
Voucher
or
Rebater
.
Alexander
Powlters
case
.
Ibid.
fo.
30.
a.
3.
17
Before
the
Statute
of
Articuli
cleri
cap.
15.
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.
22
One
Commoner
shall
not
bring
a
Writ
de
admensuratione
pasturae
against
another
Commoner
,
sans
number
;
because
such
a
Commoner
cannot
be
admeasured
,
&c.
Tit.
Cessavit
42
,
Causa
frigiditatis
naturalis
&
perpetuae
,
36
Non
officit
conatus
,
nisi
sequatur
effectus
.
Sir
Anthony
Mildmayes
case
in
the
6
Report
(
which
was
a
resolution
against
perpetuities
)
it
was
resolved
,
that
these
words
(
Attempt
,
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
.
I.
S.
for
60
yeares
;
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
.
Sir
James
Bagge
being
a
Capital
Burgesse
of
the
Town
of
Plimouth
behaved
himselfe
contemptuously
towards
the
Major
there
,
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
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
the
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
.
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.
Voluntas
non
reputatur
pro
facto
.
37
Acta
exteriora
indicant
interiora
Secreta
.
3
If
a
Purveyor
take
my
Cattle
for
the
Kings
houshold
by
force
of
his
Commission
,
Peter
Vavasor
,
octabis
Hill
.
suffers
a
recovery
,
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
;
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.
and
with
this
accords
13
E.
4.
6.
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
.
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
.
This
will
serve
,
and
B.
presently
delivers
it
over
to
the
Obligée
then
present
:
This
was
adjudged
a
good
Obligation
;
for
Acta
exteriora
,
&c.
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
.
38
Inutilis
labor
&
sine
fructu
,
non
est
effectus
Legis
,
&
contra
:
And
therefore
nothing
can
be
given
to
a
man
,
which
he
had
before
.
1
If
the
Lord
mayhem
his
Villain
,
he
shall
be
indicted
for
it
at
the
Kings
suit
;
2
In
an
action
brought
by
a
man
or
a
woman
,
that
are
professed
in
Religion
in
Normandy
,
3
If
a
man
enfeoffeth
another
of
an
acre
of
ground
with
warranty
,
4
Counts
and
such
as
be
in
nature
of
Counts
(
as
an
Avowry
,
wherein
the
Defendant
is
an
Actor
)
need
not
to
be
averred
;
per
my
,
&
per
tout
,
&c.
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
.
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
,
The
Lord
Rosses
case
.
9
If
one
recover
against
me
by
a
common
recovery
,
39
Lex
non
Praecipit
inutilia
:
Vide
M.
177.
5.
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.
Note
,
that
this
is
put
as
a
quere
in
Fitz
:
but
hee
seemes
rather
to
favour
this
opinion
,
&c.
40
Where
the
foundation
faileth
,
all
goeth
to
the
ground
,
Debile
fundamentum
fallit
opus
,
&
contrà
.
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
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
.
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
,
Tales
,
&c.
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
:
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.
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
.
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
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
.
Co.
l.
3.
62.
63.
Lincoln
Colledge
case
,
&
l.
10.
96.
b.
Seymors
case
.
Sublato
principali
tollitur
adjunctum
,
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.
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
,
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
possibly
be
afterwards
revived
,
for
this
cause
the
contingent
remainder
is
destroyed
as
aforesaid
,
against
the
opinion
of
Gascoigne
,
7
H.
4.
23.
b.
A.
B.
makes
a
feoffment
to
C.
and
his
heirs
;
Here
,
by
that
feoffment
,
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
.
A.
C.
the
remainder
to
the
right
heirs
of
A.
S.
the
Donee
makes
feoffment
to
B.
in
fee
,
and
after
A.
S.
dies
,
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.
Hugh
Cholmleys
case
.
38
If
a
man
make
a
gift
in
taile
,
the
remainder
in
fée
,
&
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.
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.
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
,
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
,
Vide
Proctors
case
,
5
Eliz.
Dyer
223.
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
,
Exchequer
Chamber
(
an.
35
H.
8.
)
that
the
Audita
quaerela
would
well
lie
.
P.
S.
held
the
Mannor
of
O.
in
Soccage
of
Qu:
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
.
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
.
Will
.
Banes
case
.
that
the
Plaintiff
will
forbeare
till
Michaelmas
to
sue
for
a
debt
due
by
the
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
be
neither
benefit
to
the
Defendant
,
nor
damage
to
the
Plaintiff
.
Judicium
à
non
suo
judice
datum
nullius
est
momenti
:
See
the
booke
at
large
.
Edw.
Sey●●ors
case
.
24
E.
3.
28.
in
Caloys
case
.
58
Tenant
in
taile
,
Edw:
Soymors
case
.
59
Tenant
in
taile
,
Henry
Pigots
case
.
Co.
l.
21.
27.
b.
60
In
Assise
before
Stouffe
and
others
in
the
Countrey
,
(
ex
consequente
)
the
remainder
is
void
also
.
66
A
dissesor
of
Lands
in
ancient
Demesn
,
per
Shard
and
Stove
)
so
that
if
the
estate
,
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.
Ewens
,
M.
28.
tit
.
Aide
in
Statham
.
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.
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
.
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
.
Quindena
Martini
,
and
the
Writ
is
executed
in
the
life
of
the
Qu:
but
before
the
return
she
dies
,
and
yet
it
was
returned
,
and
a
liberate
was
thereupon
granted
in
the
time
of
Quéen
Eliz.
Quaere
,
whether
or
no
the
Extent
was
returned
without
warrant
.
Banco
Regis
.
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
.
41
Things
incident
are
adhaerent
to
their
Superiours
,
or
Principals
.
(
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
.
Westm.
2.
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
:
Ejectione
firmae
between
Cooper
Plaintiff
,
and
Franklin
,
&c.
Defendant
,
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
.
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
.
Mirror
cap.
3.
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
.
Littleton
,
Sect.
139.
18
If
a
man
maketh
a
gift
in
taile
without
any
reservation
,
the
said
rent
,
it
is
as
much
as
if
he
had
said
,
the
rent
service
,
whereunto
fealty
is
incident
.
23
Incidens
is
a
thing
appertaining
to
,
Sect.
362.
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
.
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
.
Vide
64.
21
H.
8.
cap.
19.
it
is
enacted
,
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
.
pur
file
marier
,
&
pur
faire
fitz
Chivalier
;
for
these
be
incident
to
the
Tenure
,
which
doth
still
remaine
.
35
He
that
hath
a
remainder
expectant
upon
an
estate
taile
,
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.
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.
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.
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.
in
esse
,
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.
5.
24.
a.
4.
The
Deane
and
Chapter
of
Windsor's
case
.
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
.
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.
Moyle
Finches
case
.
47
If
there
be
Lord
and
Tenant
by
Fealty
and
Rent
,
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.
Wiat
Weilds
case
.
rendring
3
s.
rent
,
and
the
Lessor
grants
the
reversion
of
one
acre
,
and
the
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
.
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
,
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.
Finch
15.
Finch
15.
Finch
15.
Finch
15.
42
E.
3.
per
Finchden
.
61
A.
seised
of
the
Mannor
of
D.
whereof
a
Chappel
was
parcell
,
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.
65
Emson
avows
for
Rent-charge
granted
to
him
by
a
stranger
,
Max.
45.
C.
B.
being
then
also
dead
,
Quéen
Mary
during
the
vacation
of
the
said
places
conferred
by
her
Letters
Patents
the
Exigenters
office
upon
Colshil
,
and
then
made
Brown
Chiefe
Iustice
of
that
Court
:
But
Brown
refuseth
Colshil
,
and
admits
Scrogges
thereunto
;
And
in
this
case
it
was
resolved
by
all
the
Iudges
and
others
(
save
the
Iustices
of
the
Common
Bench
)
that
the
said
office
did
not
appertain
to
the
Qu.
to
grant
,
but
onely
in
the
dispose
of
the
Chiefe
Iustice
for
the
time
being
,
as
an
inseparable
incident
to
his
person
and
place
,
and
that
by
reason
of
common
usage
and
prescription
.
42
Quod
tacitè
intelligitur
,
deesse
non
videtur
.
V.
64.
11.
Pl.
Co.
fol.
128.
(
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
,
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.
lib.
11.
25.
a.
Henry
Harpers
case
.
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.
James
Wagoner
was
arrested
at
the
suit
of
the
Chamberlain
of
London
,
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
.
per
Iohannem
nuper
Episcopum
Sarum
,
&c.
was
void
;
These
words
nuper
Episcopum
,
&c.
imply
and
import
,
that
now
he
is
not
Bishop
of
Sarum
.
Eliz.
cap.
2.
(
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
.
F.
N.
B.
222.
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
,
false
Thiefe
,
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.
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
.
Ejectione
Firmae
,
of
a
lease
of
a
Rectory
,
Fuit
&
adhuc
est
seisitus
,
&c.
the
Plaintiff
had
judgement
.
B.
A.
dies
,
the
Patron
brings
a
Quare
Impedit
against
B.
and
counts
of
the
avoydance
and
lapse
suprà
,
and
that
the
Queen
presented
A.
who
was
admitted
and
instituted
,
and
that
the
Church
is
now
void
by
the
death
of
A.
And
the
question
was
,
whether
or
no
this
was
sufficient
without
saying
Inducted
:
And
it
séemed
it
was
,
because
the
Plaintiff
alleadged
,
that
the
Church
was
void
by
the
death
of
A.
which
implies
Induction
,
and
then
it
was
not
revocable
.
28
Vide
Hob.
5.
Gardiner
against
Bellingham
.
8.
Yardly
against
Ellill
.
43
Things
by
reason
of
another
are
in
the
same
plight
.
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
.
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.
Vide
Dyer
44.
28.
&c.
30
H.
8.
&
Mag.
Car.
cap.
31.
&
25.
4.
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
.
I.
S.
and
the
Lessée
dieth
,
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.
Co.
l.
5.
79.
b.
Fitzherberts
case
.
32
H.
8.
cap.
36.
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.
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
.
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
.
29
Winsor
Plaintiff
hath
an
Advowson
of
two
parts
,
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.
False
judgement
lies
,
and
not
a
writ
of
Errour
,
&c.
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
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.
1
Eliz.
cap.
2.
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
the
said
subsequent
Acts
;
because
those
two
Acts
do
not
give
the
penalty
to
any
new
person
,
but
to
the
same
person
to
whom
the
Statute
of
the
23.
giveth
it
,
viz.
to
the
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.
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
,
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.
De
Darrein
presentment
,
notwithstanding
those
meane
presentments
.
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
.
42
Rosse
was
bound
in
a
Recognizance
of
1000
Marks
to
Pope
,
23
H.
8.
cap.
6.
and
after
Rosse
and
his
wife
by
fine
give
to
the
Conisées
the
fifth
part
of
the
Mannor
of
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.
Judicis
officium
est
,
ut
res
,
ita
tempora
rerum
Quaerere
,
quaesito
tempore
,
tutus
eris
.
West
.
2.
cap.
4.
for
the
judgement
is
given
against
him
for
his
default
.
Cestuy
que
use
(
who
now
hath
the
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
.
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
:
2
&
3
Edw.
6.
cap.
1.
5
&
6
Edw.
6.
cap.
1.
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
;
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
.
H.
8.
primer
seisin
,
by
reason
of
the
saving
in
the
Statute
of
32
H.
8.
cap.
1.
31
H.
8.
1.
make
partition
by
Parol
,
Vide
Dyer
207.
15.
Veni●e
facias
with
Proviso
was
returned
,
served
,
Jurat
.
continuand
.
yet
this
was
adjudged
no
discontinuance
because
the
continuance
by
the
Defendant
sufficed
,
44
Personal
things
cannot
be
done
by
another
.
Dum
fuit
infra
aetatem
;
because
the
nonage
of
the
one
is
not
the
nonage
of
the
other
.
tit
.
Trespass
253.
that
the
Lord
may
beate
his
Villein
for
cause
or
without
cause
,
and
the
Villein
shall
have
no
remedy
;
but
if
the
Lord
command
another
to
beate
his
Villein
,
the
Villein
shall
have
an
action
of
Battery
against
him
that
so
beats
him
.
Trespass
vi
&
armis
against
the
Lord
;
but
if
the
Lord
in
that
case
command
his
Bailiff
or
Servant
to
distrain
him
,
when
nothing
is
arrear
,
the
Tenant
shall
have
an
Action
of
Trespasse
vi
&
armis
against
the
Bailiffe
or
Servant
,
&c.
2
H.
4.
4.
11
H.
4.
78.
1
H.
6.
6.
9
H.
7.
14.
George
Reynels
case
.
16
The
office
of
Marshal
of
the
Marshalsie
cannot
be
granted
for
years
;
because
it
is
an
office
of
great
trust
annexed
to
the
person
,
John
Talbots
case
.
Carver
,
Butler
,
&c.
to
his
Lord
,
or
when
the
Tenant
is
bound
by
his
tenure
,
Ad
convivandum
Dominum
suum
&
familiam
suam
semel
in
anno
,
or
ad
aequitandum
cum
Domino
suo
,
in
Com.
N.
sumptibus
suis
propriis
(
vide
10
E.
3.
23.
in
John
de
Bromptons
case
)
by
alienation
of
parcel
of
the
land
,
the
service
shall
not
be
apportioned
or
multiplyed
;
because
such
services
are
personal
,
and
are
to
be
personally
performed
by
one
man
only
:
Howbeit
purchase
of
parcel
by
the
Lord
shall
extinguish
them
.
two
false
Knaves
and
Thieves
;
Here
,
the
action
was
not
well
brought
joyntly
,
for
that
the
wrong
done
to
the
one
,
was
not
the
wrong
done
to
the
other
;
and
therefore
they
ought
to
have
severed
in
actions
,
as
in
case
of
false
imprisonment
.
45
They
cannot
be
granted
or
transferred
over
,
as
matters
of
pleasure
,
ease
,
trust
,
and
authority
.
Finch
,
ibid.
Finch
,
ibid.
Finch
,
ibid.
Finch
,
ibid.
George
Reynels
case
.
&c.
cannot
be
transferred
to
another
,
but
ought
alwayes
to
be
granted
for
life
,
and
to
be
executed
by
none
but
the
Grantée
himselfe
;
And
therefore
a
lease
for
yeares
of
that
office
is
void
,
for
then
it
may
fall
into
the
hands
of
Executors
or
Administrators
;
and
in
matters
concerning
the
administration
of
Iustice
,
the
Law
will
not
repose
confidence
in
persons
unknown
,
&c.
Vide
44.
16.
Daniel
Norton
and
Simmes
.
9
A
Sheriffe
in
making
an
Vnder-sheriffe
doth
implyedly
give
him
power
to
execute
all
the
ordinary
offices
of
the
Sheriffe
himselfe
,
46
They
being
once
suspended
,
or
discharged
for
a
time
,
are
for
ever
after
extinct
.
Dyer
fo.
140.
it
séems
to
be
the
better
opinion
,
that
both
the
land
and
person
are
for
ever
after
discharged
thereof
.
Quod
permittat
prosternere
quandam
domum
,
47
They
dye
with
the
person
.
Edw:
Althams
case
,
Co.
l.
8.
148.
So
also
if
the
Disseisor
make
a
lease
for
life
,
and
the
Disseisée
release
all
actions
to
the
Lessée
,
this
enureth
not
to
him
in
the
reversion
,
&c.
Rowland
Heywards
case
.
7
If
a
man
for
good
consideration
bargain
,
sell
,
Cestuy
que
use
die
before
attornment
or
enrollment
,
the
grant
is
in
this
case
void
or
good
at
the
election
of
Cestuy
que
use
,
void
,
if
taken
at
the
Common
Law
by
way
of
grant
,
because
then
there
wants
attornment
,
but
good
,
by
way
of
Bargain
and
Sale
according
to
the
Statute
of
Vses
,
(
27
H.
8.
cap.
10.
)
and
because
the
Statute
of
27
H.
8.
cap.
16.
(
of
Enrolments
)
extendeth
not
unto
it
,
for
that
no
estate
of
Franktenement
p●sseth
,
but
onely
an
estate
for
yeares
;
And
notwithstanding
the
death
of
the
Grantor
,
and
Cestuy
que
use
(
either
one
or
both
)
the
Executors
or
Administrators
of
Cestuy
que
use
have
power
(
as
well
as
Cestuy
que
use
himselfe
)
to
choose
,
by
which
way
they
will
claime
,
whether
by
way
of
grant
at
the
Common
Law
,
or
by
way
of
Bargain
and
Sale
according
to
the
said
Statute
of
Vses
,
because
Cestuy
que
use
had
immediately
upon
the
grant
a
present
interest
in
him
,
which
hee
or
(
in
case
he
had
died
)
his
Executors
before
election
might
have
assigned
over
,
and
for
that
he
claims
one
and
the
same
thing
by
two
several
wayes
,
it
being
in
his
or
his
Executors
power
to
choose
which
of
them
they
please
:
It
is
otherwise
,
where
the
election
is
to
choose
one
of
two
several
things
,
by
one
and
the
same
way
or
title
;
for
then
nothing
passeth
before
election
,
and
that
election
must
be
made
during
the
life
of
the
parties
:
And
therefore
if
I
have
thrée
horses
,
and
I
give
unto
you
one
of
my
horses
,
in
this
case
the
election
ought
to
be
made
in
the
life
of
the
parties
;
for
in
as
much
as
none
of
the
horses
is
given
in
certain
,
the
certainty
(
and
therefore
the
property
)
commenceth
by
election
:
And
with
this
agrées
Bullocks
case
in
the
10
of
Eliz.
281.
The
Bishop
of
Sarum
having
a
great
Wood
of
1000
acres
(
called
Berewood
)
enfeoffs
another
of
an
house
,
and
of
17
acres
parcell
of
the
said
wood
,
and
makes
livery
in
the
house
;
here
,
nothing
passeth
of
the
wood
before
election
,
and
therefore
his
heire
could
not
make
election
,
&c.
Jo:
Trollops
case
.
8
If
the
Bishop
make
Certificate
,
and
die
before
it
be
received
,
De
la
Wares
case
.
10
Of
the
family
of
the
Lord
De
la
Ware
,
there
was
Grandfather
,
De
la
ware
,
Anno
39
Eliz.
was
restored
to
the
place
in
Parliament
originally
belonging
to
his
Family
.
Vide
Stat.
32
H.
8.
34.
Note
,
that
if
the
heire
out
the
termor
of
the
father
,
covenant
lies
against
him
upon
the
demise
for
the
privity
.
Vide
Max.
55.
durante
bene-placito
onely
,
and
that
the
pleasure
determined
by
the
death
of
the
Quéen
,
the
commandment
ceased
also
by
her
death
.
48
Things
do
enure
diversly
according
to
the
diversity
of
the
time
.
strata
Marcella
.
3
When
an
ancient
grant
is
general
,
obscure
,
or
ambiguous
,
Vide
ibid.
many
authorities
in
the
point
.
Vide
suprà
,
25.
22.
Littl.
Sect.
19.
Finch
18.
Diversis
temporibus
.
Co.
l.
7.
24.
b.
3.
Buts
case
.
Cap.
Fee-taile
:
And
albeit
Littleton
saith
(
Sect.
271.
)
that
such
gifts
have
béen
alwayes
since
used
and
continued
;
yet
now
they
are
almost
grown
out
of
use
,
and
serve
now
principally
for
Moot-cases
,
and
questions
in
law
,
that
thereupon
were
wont
to
rise
.
Non
est
fact●●
,
when
a
deed
was
,
and
is
no
deed
.
and
after
before
action
brought
becomes
no
deed
,
either
by
rasure
,
addition
,
or
other
alteration
,
or
by
breaking
the
seale
,
&c.
In
this
case
,
although
it
were
once
a
déed
,
yet
the
Defendant
may
safely
plead
Non
est
factum
;
for
without
question
,
at
the
time
of
the
plea
,
which
is
in
the
present
tense
,
it
was
not
his
déed
.
36
H.
8.
Dyer
59.
in
an
action
of
Debt
upon
an
obligation
against
Hawood
,
the
Defendant
pleads
non
est
factum
,
and
before
the
day
of
apparance
of
the
Inquest
,
the
Mice
had
eaten
the
Label
,
unto
which
the
seale
was
fixed
,
by
the
negligence
of
the
Clerke
,
in
whose
custody
it
was
;
Here
,
the
Iustices
charged
the
Iurors
,
that
if
they
found
the
déed
to
be
déed
of
the
Defendant
at
the
time
of
the
plea
pleaded
,
they
should
then
give
a
special
verdict
,
which
they
did
accordingly
.
Brown
,
Mich.
6
,
&
7
Eliz.
fol.
234
,
235.
Ambrosia
Gorges
case
.
10
If
a
man
marry
an
Inheritrix
of
lands
holden
of
the
King
in
Capite
,
and
hath
issue
by
her
a
Daughter
,
and
afterwards
the
Feme
die
,
13
Distinguenda
sunt
tempora
,
&
concordabis
leges
.
Anna
Bedingfeilds
case
.
Thomas
Bowles
in
consideration
of
marriage
with
Anne
Hide
,
Lewes
Bowles
case
.
covenants
to
stand
seised
of
the
Mannor
of
D.
to
the
use
of
himselfe
and
Anne
for
their
lives
,
and
after
to
their
first
issue
male
,
and
the
heires
male
of
his
body
,
and
after
to
the
heirs
male
of
the
bodies
of
Thomas
and
Anne
,
&c.
In
this
case
,
before
issue
had
,
Thomas
and
Anne
were
seised
of
an
estate
taile
executed
sub
modo
,
viz.
untill
issue
,
and
then
by
operation
of
Law
,
the
estates
were
divided
,
viz.
Thomas
and
Anne
became
Tenants
for
life
,
the
remainder
in
taile
to
the
issue
,
the
remainder
to
the
heirs
male
of
Thomas
and
Anne
,
&c.
Thou
art
an
arrant
Knave
,
a
Cosener
,
&
a
Traitor
,
Ja.
Osborns
case
.
being
all
spoken
together
at
one
and
the
same
time
,
and
upon
not
guilty
pleaded
,
the
Iurors
finde
for
the
Plaintiff
,
and
assesse
damages
generally
for
all
the
words
,
herein
they
did
well
;
for
all
those
words
taken
together
,
make
but
one
scandal
,
and
albeit
no
action
lieth
for
these
words
,
Thou
art
an
arrant
Knave
,
a
Cosener
,
spoken
apart
by
themselves
,
yet
being
spoken
at
one
and
the
same
time
,
and
coupled
with
the
other
words
,
and
a
Traitor
,
which
are
indéed
actionable
,
they
aggravate
them
and
make
them
worse
:
Howbeit
,
if
at
one
time
the
Defendant
calls
the
Plaintiff
Traitor
,
and
at
another
time
he
calls
him
arrant
Knave
and
Cosener
,
and
the
Plaintiff
brings
an
action
upon
the
Case
,
and
alleadgeth
the
said
several
words
spoken
at
several
times
,
as
several
causes
of
action
;
the●e
,
if
upon
not
guilty
pleaded
,
the
Iurors
assesse
damages
intirely
,
judgement
shall
be
arrested
for
all
;
for
he
grounds
his
action
upon
two
several
scandals
,
whereas
one
of
them
is
not
actionable
,
&c.
49
Quod
prius
est
tempore
,
potius
est
jure
.
Vide
Max.
62.
Pl.
10.
19.
En
son
primer
estate
,
or
en
son
melior
droit
,
or
en
son
melior
estate
,
&c.
or
the
like
:
For
,
Quod
prius
est
,
verius
est
,
&
quod
prius
est
tempore
,
potius
est
jure
,
&c.
Inter
Unwel
and
Lodge
,
temps
Eliz.
Com.
Devon
to
repeal
their
Patent
of
Faires
and
Markets
;
But
it
was
held
,
10
Vide
Hob.
7.
Spendlowes
and
Burket
,
concerning
the
grant
of
an
avoydance
,
and
a
lease
of
a
Prebendary
in
Lincoln
.
50
According
to
the
diversity
of
the
same
person
.
Weston
in
Com.
Glocest
.
An.
9
El.
demised
his
Rectory
to
W.
Hodges
,
then
Patron
of
the
same
Rectory
,
for
50
years
,
John
Throgmorton
,
&
the
Bishop
confirms
the
lease
,
Anno
17
Eliz.
in
the
life
of
the
Lessor
;
And
in
this
case
it
was
resolved
,
that
the
assignment
of
the
saidlease
so
granted
by
the
Patron
,
imports
in
it self
both
a
grant
,
and
also
a
confirmation
of
the
terme
;
so
that
a
déed
of
the
same
thing
,
by
the
same
person
,
to
the
same
person
,
and
at
the
same
time
,
shall
enure
to
two
several
purposes
,
viz.
to
a
grant
of
the
interest
,
as
Lessée
,
and
to
the
confirmation
of
the
same
interest
,
as
Patron
:
So
also
if
Tenant
for
life
grant
a
Rent-charge
to
him
in
the
reversion
in
fée
,
and
the
Reversioner
by
his
déed
grant
it
over
to
another
and
his
heires
,
this
is
a
good
grant
and
confirmation
also
to
make
the
rent
good
for
ever
,
in
respect
of
the
several
relations
that
are
in
him
in
the
reversion
,
viz.
as
Grantor
of
the
rent
,
and
as
Reversioner
in
fée
:
In
like
manner
,
if
the
Disseisor
make
a
lease
for
life
,
the
remainder
to
the
Disseisée
,
and
the
Disseisée
grant
the
remainder
over
,
this
is
a
good
grant
and
confirmation
also
,
&c.
Moyle
Finches
case
.
that
issue
in
truth
and
in
Law
beares
the
sirname
of
the
Father
:
but
if
afterwards
the
Baron
and
Feme
be
divorced
causa
praecontractus
,
then
hath
the
issue
lost
the
sirname
of
the
Father
;
because
Cognomen
majorum
est
ex
sanguine
tractum
,
and
then
is
the
issue
a
Bastard
,
and
Nullius
Filius
.
51
According
to
the
diversity
of
severall
persons
.
Vide
infrà
,
86.
primer
seisin
,
as
of
lands
in
possession
,
but
after
livery
the
Lessée
may
enter
:
And
if
the
issue
in
taile
accept
the
rent
,
the
lease
shall
binde
him
,
and
shall
be
good
as
to
him
,
&c.
And
so
it
was
adjudged
in
Austens
case
,
Pa.
2
,
&
3
Ph.
and
M.
as
Mr.
Plowden
reported
to
the
Lord
Coke
.
Grand
Serjeancy
;
so
as
the
royal
dignity
of
the
person
of
the
Lord
maketh
the
difference
of
the
tenure
.
de
facto
,
and
a
feoffment
de
jure
;
And
a
feoffment
de
facto
made
by
them
,
that
have
such
interest
or
possession
as
is
aforesaid
,
is
good
betwéen
the
parties
,
and
against
all
men
,
save
onely
against
him
that
hath
right
,
&c.
Eliz.
cap.
5.
but
as
to
all
other
persons
it
stands
good
.
Vide
M.
30.
c.
8.
B.
B.
dies
,
C.
enters
;
Yet
,
as
to
him
that
hath
the
judgement
,
the
estate
of
A.
(
so
long
as
A.
liveth
)
hath
continuance
.
See
there
many
authorities
in
the
point
;
and
Co.
l.
7.
38.
b.
3.
Lillingstons
case
.
Edward
Phittons
case
.
17
In
the
general
pardon
of
43
Eliz.
there
was
this
proviso
,
Strata
Mercella
.
Co.
l.
11.
50.
a
2
Richard
Liffords
case
.
it
is
not
necessary
to
shew
to
the
Plaintiff
by
what
title
such
a
Franchise
is
claimed
;
but
when
a
Quo
Warranto
is
brought
by
the
King
,
the
Lord
of
the
liberty
ought
to
shew
his
title
.
annorum
,
&c.
The
Lessor
may
sell
the
great
Timber
so
excepted
,
and
then
(
fictione
juris
)
as
to
the
Lessée
the
Trees
are
divided
from
the
franktenement
,
but
as
to
all
others
they
are
parcel
of
the
inheritance
of
the
Lessor
.
(
fictione
juris
)
they
are
severed
from
the
land
;
but
if
Tenant
in
Tail
die
before
actual
severance
,
as
to
the
issue
in
Tail
they
are
parcel
of
his
Inheritance
,
and
shall
go
with
it
,
neither
may
the
Vendee
then
take
them
;
and
yet
as
to
the
Tenant
in
Tail
himself
,
they
were
severed
for
a
time
.
52
Relation
is
of
great
force
in
Law
.
Rich.
Pexhals
case
.
5
If
A.
devise
to
B.
10.
l
per
annum
to
be
paid
quarterly
,
&c.
A.
hath
an
estate
for
life
in
this
annuity
;
for
officium
and
feodum
are
Relatives
,
and
Concomitantia
,
and
he
shall
have
the
like
estate
in
the
Fée
,
that
he
hath
in
the
office
.
in
esse
;
and
therefore
if
the
Array
be
quashed
,
or
all
the
Polls
challenged
and
tried
out
,
no
Tales
shall
be
awarded
;
for
at
that
time
they
were
not
Quales
;
but
in
that
Case
a
new
Venire
facias
shall
be
awarded
:
Howbeit
if
at
the
time
of
granting
the
Tales
the
principal
pannel
did
stand
;
and
after
is
quashed
,
as
aforesaid
;
yet
the
Tales
shall
stand
;
for
it
sufficeth
,
that
they
were
Quales
at
the
time
of
granting
the
Tales
;
and
this
appears
in
34
H.
6.
Tit.
Enquest.
30.
Rob.
Pilfolds
case
.
7
This
word
Damna
is
taken
in
the
Law
in
two
significations
,
Philosophie
,
Omnis
privatio
praesupponit
habitum
;
9
If
a
Feofment
be
made
to
two
,
if
the
Rent
be
behind
and
unpaid
at
Dale
by
the
space
of
40
dayes
,
&c.
yet
it
shall
have
Relation
to
the
place
first
named
,
and
so
the
Law
saith
,
that
the
Rent
shall
be
paid
at
Dale
the
last
of
the
40
dayes
,
although
it
be
not
so
expressed
by
plain
words
,
Vide
131.
5.
See
also
Dyer
22.
b.
139.
28
H.
8.
Per
curiam
.
12
Two
have
a
Term
as
Executors
,
13
A.
by
Indenture
inrolled
demiseth
the
Mannor
of
D.
to
B.
and
his
Heires
in
fee
farm
rendring
Rent
with
clause
of
distresse
,
viz.
come
●eo
quae
B.
habuit
ex
dono
A.
with
release
and
warranty
according
to
the
course
of
Fines
,
&c.
In
this
case
the
Rent
was
not
extinct
or
touched
by
the
Fine
;
because
the
Fine
had
relation
to
the
former
Indenture
.
but
that
have
Relation
to
the
words
of
the
Lessee
,
viz.
that
he
hath
not
done
any
Act
,
and
are
not
absolute
words
;
as
if
the
Assignee
should
enjoy
it
against
all
men
.
53
Verba
posteriora
propter
certitu●inem
addita
,
ad
priora
,
quae
certitudine
indigent
,
sunt
referenda
.
1
Sir
Adam
de
Clydrow
Knight
,
John
de
Clydrow
,
quia
indiget
,
&c.
Vide
3
E.
4.
10.
in
manerio
de
praecipiend
.
in
C.
Acres
of
Land
parcel
of
the
same
Mannor
with
clanse
of
distresse
in
the
C.
Acres
;
Edw.
Althams
case
.
In
this
case
the
Rent
shall
onely
issue
out
of
the
C.
Acres
;
and
the
general
words
shall
be
construed
according
to
the
special
words
,
according
to
the
Rule
in
Margery
Mortimers
case
,
7
E.
3.
fol.
10.
a.
Quando
carta
continet
generalem
clausulam
,
posteaque
descendit
ad
verba
specialia
,
quae
clausulae
generali
sunt
consentanea
;
interpretanda
est
carta
secundum
verba
specialia
.
5
A
Feme
hath
title
of
Dower
in
Lands
in
Wethersfield
,
&
Gosfield
,
Ed.
dw
.
Althams
case
.
and
releaseth
to
the
Reversioner
omnes
actiones
,
&c.
sectas
querelas
,
&
Demand
quaecunque
nec
non
totam
dotem
suam
,
ac
titulum
,
ac
actionem
dotis
sibi
contingent
,
&c.
de
aliquibus
terris
in
Wethersfield
,
&c.
this
is
onely
a
Release
of
her
Dower
in
Wethersfield
,
and
not
in
Gosfield
.
Lewis
Bowles
case
.
the
Lessée
may
cut
down
the
Timber-trees
,
and
convert
them
to
his
own
use
;
but
if
it
be
absque
impetitione
vasti
per
aliquod
breve
de
vasto
;
In
that
case
,
the
Action
onely
shall
be
discharged
,
and
not
the
property
in
the
Trees
,
so
that
the
Lessor
,
after
they
are
felled
,
may
seise
them
,
&c.
For
money
or
other
good
consideration
,
and
likewise
in
the
bodie
of
the
Act
,
For
money
or
other
good
consideration
;
Yet
these
words
,
good
consideration
,
are
to
be
understood
onely
of
valuable
consideration
,
and
this
appears
well
by
the
clause
,
which
concerns
them
,
that
have
power
of
revocation
;
for
there
it
is
said
,
For
money
or
other
good
consideration
paid
or
given
,
and
this
word
,
paid
,
is
to
be
referred
to
,
money
,
and
,
given
,
is
to
be
referred
to
good
consideration
,
so
the
sense
is
,
For
money
paid
,
or
other
good
consideration
given
,
which
words
exclude
all
considerations
,
of
nature
,
bloud
,
or
the
like
,
and
are
to
be
understood
of
valuable
consideration
,
which
may
be
given
;
and
therefore
he
that
makes
the
purchase
of
the
land
for
valuable
consideration
,
is
the
onely
purchaser
within
that
Statute
:
And
this
last
clause
doth
well
expound
these
words
,
other
good
consideration
,
mentioned
before
in
the
preamble
and
bodie
of
that
Act.
54
No
man
can
do
an
act
to
himself
.
De
la
plus
beale
,
without
judgement
;
Damage
fesant
upon
the
Demesnes
of
his
Mannor
,
he
may
detaine
them
,
untill
he
be
satisfied
for
the
damage
at
his
own
will
and
pleasure
;
this
custome
is
repugnant
to
reason
,
and
ought
not
to
be
allowed
by
the
Iudges
:
For
,
Malus
usus
abolendus
est
,
quia
in
consuetudinibus
non
diuturnitas
temporis
,
sed
soliditas
rationis
est
confideranda
.
10
If
there
be
Lord
and
Tenant
,
and
the
Tenant
take
Feme
,
Co.
l.
33.
a.
3.
in
the
Marq.
of
Winchesters
case
.
Hugh
Cholmleys
case
.
18
It
is
holden
in
7
E.
3.
that
if
the
Advowson
of
the
Church
of
Dale
be
granted
to
the
Parson
of
Dale
,
and
to
his
Successors
,
Petition
of
right
(
in
the
nature
of
his
real
action
)
to
be
restored
to
his
Franktenement
and
Inheritance
,
4
H.
6.
12.
24
E.
3.
23.
1
H.
7.
3.
4
E.
4.
21.
9
E.
4.
52.
John
Trollops
case
.
20
If
a
Bishop
himselfe
be
sued
,
Anthony
Lowes
case
.
23
The
Duchie
of
Lancaster
,
before
it
was
united
to
the
Crown
,
in
Capite
;
but
when
they
remained
in
one
and
the
same
person
,
the
ancient
tenures
of
the
Crown
did
sléep
perpetuo
somno
,
because
the
King
could
not
hold
of
himself
.
Rosse
Vens
Sir
Tho.
Pope
.
in
Audita
quaerela
.
F.
N.
B.
104
,
n.
&
105.
c.
Vide
Dyer
193.
30.
2
,
3
Eliz.
and
a
stranger
of
another
parcel
,
and
reserve
parcel
in
his
own
hands
;
Here
,
the
Conisee
shall
not
have
execution
against
the
stranger
:
For
if
one
Feoffee
of
the
Conisor
(
where
his
land
onely
is
put
in
execution
)
may
have
an
Audita
quaerela
,
against
all
the
other
Feoffees
,
to
make
their
lands
also
to
be
put
in
execution
,
and
to
be
contributary
to
the
intire
charge
;
By
the
same
reason
,
if
the
Conisee
himself
be
one
of
the
Feoffees
,
the
lands
in
the
hands
of
the
other
Feoffees
shall
not
be
chargeable
with
the
execution
;
for
that
the
Conisee
himself
cannot
be
contributary
with
them
(
for
his
part
)
towards
the
satisfying
of
the
charge
;
because
he
cannot
contribute
to
himself
,
neither
can
he
be
contributary
for
a
personal
thing
due
to
himself
;
Neither
yet
shall
the
Charge
be
apportioned
,
but
all
shall
be
extinct
as
against
the
other
Feoffees
:
Howbeit
against
the
Conisor
himself
,
the
Conisee
shall
have
execution
for
the
parcel
still
remaining
in
his
hand
,
&c.
Common
Bench
,
Duae
animae
in
carne
una
,
and
he
cannot
be
a
witnesse
to
or
for
himself
in
his
own
cause
.
Nicholas
Bacon
and
two
others
before
Sir
Nicholas
himself
,
being
then
Lord
Kéeper
,
55
The
Law
favoureth
privity
.
Vide
Max.
47.
16.
Co.
Inst.
pars
1.
27.
b.
)
neverthelesse
if
he
grant
over
his
estate
to
another
,
his
Grantee
shall
not
have
them
;
for
he
hath
those
priviledges
in
respect
of
the
privity
of
his
estate
,
and
of
the
inheritance
that
was
once
in
him
:
And
therefore
it
was
adjudged
in
the
case
of
one
Evens
,
Mich.
28
,
&
29
Eliz.
that
where
Tenant
in
tail
after
possibility
of
issue
extinct
granted
over
his
estate
to
another
,
that
the
Grantée
was
compelled
to
atturn
in
a
Quid
juris
clamat
,
as
a
bare
Tenant
for
life
,
Aid
,
Statham
,
29
E.
3.
1.
b.
Co.
l.
11.
fol.
83.
b.
Bowles
case
.
Vide
infrà
116.
Vide
Inst.
116.
Andrews
,
Mich.
14
,
&
15
Eliz.
But
if
the
Tenant
maketh
a
lease
for
life
,
or
a
gift
in
tail
,
this
is
a
continuance
of
the
privity
and
estate
in
the
Tenant
,
in
respect
of
the
reversion
that
remaineth
in
him
;
because
in
that
case
the
sée
was
never
out
of
him
,
&c.
Co.
l.
8.
75.
b.
3.
The
Lord
Staffords
case
.
Et
come
ascun
soit
vouche
per
homage
&
le
Seignior
tende
à
averrer
que
le
tenement
dount
il
est
vouche
,
fuit
translate
hors
del
sanke
del
primer
purchassour
per
feoffment
,
ou
per
ascune
autre
translation
;
en
tiel
cas
,
soit
le
tenant
charge
de
voucher
son
feoffor
,
ou
ses
heires
,
&c.
Howbeit
if
the
land
were
recovered
against
the
Tenant
upon
a
faint
title
,
and
the
Tenant
recover
the
same
again
in
an
action
of
an
higher
nature
;
Here
the
Homage
Ancestrel
remains
;
because
in
that
case
,
the
right
was
a
sufficient
mean
to
preserve
the
privity
and
continuance
:
So
it
is
also
if
he
had
reversed
it
in
a
writ
of
Errour
.
Cestuy
que
use
after
the
Statute
of
1
R.
3.
1.
Co.
l.
10.
48.
a.
3.
Lampets
case
:
Replevin
,
A.
avoweth
for
himself
,
and
maketh
conusance
for
B.A.
dieth
and
B.
surviveth
;
In
this
case
,
B.
shall
not
afterwards
have
a
Writ
of
annuity
;
because
the
election
and
Avowry
for
the
rent
by
A.
barreth
B.
of
any
election
to
make
it
an
annuity
,
albeit
he
assented
not
to
the
Avowry
,
and
this
is
by
reason
of
the
privity
of
their
estate
,
&c.
I.
S.
seised
of
Lands
in
Fee
hath
issue
two
daughters
,
viz.
Rose
bastard
eigne
,
and
Anne
mulier
puisne
and
dieth
,
Rose
and
Anne
do
enter
,
and
make
partition
;
In
this
case
,
Anne
and
her
Heirs
are
concluded
for
ever
;
and
this
is
by
force
of
the
Privity
,
that
is
betwixt
them
.
Co.
l.
4.
fol.
121.
)
both
in
the
case
of
partition
,
as
also
of
an
exchange
.
There
is
likewise
the
same
reason
,
when
any
estate
of
Free-hold
is
evicted
from
the
Coparcener
in
all
or
part
of
her
property
;
for
then
it
shall
be
also
avoyded
in
the
whole
:
As
if
A.
be
seised
in
fee
of
one
acre
of
land
in
possession
,
and
of
the
reversion
of
another
expectant
upon
an
estate
for
life
,
and
he
disseise
the
Lessee
for
life
,
who
makes
continual
claim
;
A.
dieth
seised
of
of
both
acres
,
having
two
daughters
,
partition
is
made
,
so
as
the
one
acre
is
allotted
to
the
one
,
and
the
other
acre
to
the
other
,
the
Lessee
enters
,
the
partition
is
avoyded
for
the
whole
,
and
so
likewise
was
it
resolved
in
the
case
abovesaid
.
Vide
infrà
100.
per
my
&
per
tout
,
of
the
fée
and
inheritance
.
Vide
Littl.
Sect.
337.
Fitz.
N.
B.
45.
40
If
land
be
let
to
a
man
for
term
of
life
,
the
remainder
for
life
,
Edward
Althams
case
.
Co.
ib.
266.
a.
1.
Littl.
§.
490.
a.
Infrà
114.
Co.
ib.
284.
b.
3.
44
In
a
precipe
quod
reddat
,
Co.
l.
1.
87.
b.
Corbets
case
,
per
Walmsley
.
Thomas
Wiats
case
:
Much
more
then
shall
a
release
made
by
the
Donor
to
the
Donée
,
being
disseised
,
extinguish
the
rent
reserved
upon
the
gift
in
tail
;
Interesse
termini
,
and
not
possession
of
the
land
;
but
if
such
a
Lessée
enter
and
have
possession
,
then
such
a
release
unto
him
after
entry
shall
be
avaylable
to
enlarge
his
estate
,
according
to
the
limitation
of
the
same
;
by
reason
of
the
privity
that
is
betwixt
them
,
by
force
of
the
same
lease
:
Howbeit
if
a
man
make
a
lease
for
years
to
begin
presently
,
reserving
a
rent
,
if
before
the
Lessée
doth
enter
,
the
Lessor
releaseth
all
the
right
that
he
hath
in
the
land
,
albeit
this
release
cannot
enlarge
his
estate
,
yet
it
shall
in
respect
of
the
privity
extinguish
the
rent
:
And
so
it
is
also
,
if
a
lease
be
made
to
begin
at
Michaelmas
,
reserving
a
rent
,
and
before
the
day
,
the
Lessor
releaseth
all
his
right
,
&c.
this
cannot
enure
to
enlarge
the
estate
,
neverthelesse
it
shall
extinguish
the
rent
in
respect
of
the
privity
,
as
it
was
resolved
in
the
Exchequer
39
,
&
40
Eliz.
betwéen
Sir
Henry
Woodhouse
,
and
Sir
William
Paston
.
Eliz.
in
Quare
Impedit
,
per
Denuet
vers
l'evesque
de
Norwich
in
Com.
Banco
.
That
he
will
hold
it
at
the
will
of
the
owner
,
cannot
qualifie
his
wrong
,
but
he
must
néeds
be
a
Disseisor
,
and
then
a
release
to
him
is
good
;
or
if
the
owner
consented
thereunto
,
then
is
he
a
Tenant
at
will
,
and
that
way
also
a
release
is
good
:
Howbeit
,
there
is
a
difference
,
when
one
cometh
to
a
particular
estate
in
land
by
the
act
of
the
party
,
and
when
by
act
in
Law
;
for
if
the
Guardian
hold
over
,
he
is
an
abator
,
because
his
interest
came
by
act
in
Law
,
&c.
To
these
also
may
be
added
Privies
in
right
,
as
Prececessor
and
Successor
,
unlesse
you
may
ranke
them
with
Privies
in
Representation
.
Co.
l.
10.
93.
a.
4.
A.
B.
shall
take
advantage
thereof
;
because
of
the
privity
;
for
the
estate
of
A.
which
was
confirmed
,
was
joynt
with
B.
and
in
that
case
the
Disseisee
shall
not
enter
into
the
land
,
and
devest
the
moity
of
B.
So
likewise
,
if
the
Disseisor
enfeoffe
A.
and
B.
and
the
heires
of
B.
if
the
Disseisee
confirme
the
estate
of
B.
for
his
life
,
this
shall
not
onely
extend
to
his
Companion
:
but
also
to
his
own
whole
Fee-simple
,
&c.
F.
N.
B.
55.
e.
56.
a.
f.
Eliz.
in
Brasbritches
case
in
Co.
Ba.
per
Dyer
.
Co.
l.
2.
67.
a.
Tookers
case
.
in
casu
proviso
,
a
Writ
of
Customes
and
Services
,
a
Writ
of
Ward
,
&c.
But
if
a
man
make
a
Lease
for
years
,
and
grant
the
reversion
by
Fine
,
if
the
Lessee
be
ousted
,
and
the
Conusee
disseised
,
the
Conusee
without
attornment
shall
maintaine
an
Assise
:
for
that
Writ
is
maintained
against
a
stranger
,
where
there
needeth
no
privity
:
And
of
such
things
as
the
Lord
may
seise
or
enter
into
without
suing
any
action
,
the
Conusee
before
any
Attornment
may
take
benefit
,
as
to
seise
a
ward
or
heriot
,
or
to
enter
into
the
lands
or
tenements
of
a
ward
,
or
escheated
to
him
,
or
to
enter
for
an
Alienation
of
Tenant
for
life
or
years
,
or
of
Tenant
by
Statute
Merchant
,
Staple
,
or
Elegit
,
to
his
Disherison
.
Eliz.
in
Canc.
in
Withams
case
,
&c.
Riens
en
le
reversion
,
That
the
Lessor
hath
nothing
in
the
reversion
;
but
he
must
shew
how
and
by
what
means
the
reversion
is
devested
out
of
him
;
but
if
the
Grantee
of
a
reversion
bringeth
an
action
of
waste
,
the
Lessee
may
plead
generally
,
that
the
Lessor
hath
nothing
in
the
reversion
,
because
in
that
case
there
wants
privity
,
&c.
F.
N.
B.
211.
c.
Praedictis
A.
&
B.
&
eorum
haeredibus
&
assignatis
;
In
this
case
,
if
A.
dieth
,
and
B.
surviveth
,
and
dieth
,
and
the
heir
of
B.
enfeoffeth
C.
he
shall
vouch
as
Assignee
,
and
yet
he
is
but
the
Assignee
of
the
heire
of
one
of
them
;
for
in
judgement
of
Law
(
and
in
respect
of
the
privity
)
the
Assignee
of
the
heir
is
the
Assignee
of
the
Ancestor
,
and
so
the
Assignee
of
the
Assignee
shall
vouch
in
infinitum
,
within
these
words
(
his
Assignes
.
)
80
If
a
man
enfeoffeth
A.
to
hold
to
him
his
heirs
and
Assignes
,
(
his
Assignes
)
which
séemed
to
be
a
question
in
Bractons
time
:
And
the
Assignée
shall
not
onely
vouch
,
but
also
have
a
Warrantia
cartae
.
(
Heires
)
his
heirs
shall
not
vouch
:
And
,
regularly
,
(
Assignes
)
he
grants
over
the
land
to
another
in
fée
,
Formedon
in
descender
,
the
right
of
action
upon
a
disseisin
,
and
a
descent
cast
,
and
the
like
.
Co.
l.
7.
13.
a.
4.
in
Englefeilds
case
.
B.
C.
and
D.
were
converted
to
méer
rights
,
and
that
the
remainder
could
never
be
remitted
before
the
estate
tail
in
possession
were
re-continued
;
Yet
in
case
of
a
common
recovery
(
which
is
the
common
assurance
of
the
land
)
he
that
comes
in
as
Vouchée
shall
be
in
judgement
of
Law
in
,
in
privity
of
the
estate
,
which
he
ever
had
;
although
the
precedent
estate
,
upon
which
the
estate
of
the
Vouchée
depended
,
were
devested
or
discontinued
,
&c.
Vide
Dyer
4.
b.
1.
24
H.
8.
F.
N.
B.
120
,
122.
30
E.
3.
7.
6
H.
7.
3.
b.
(
against
the
book
of
32
Edw.
3.
Tit.
Barre
262.
which
is
not
law
)
And
this
is
in
respect
of
the
privity
of
the
Contract
,
which
still
remains
between
the
Lessor
and
the
Lessee
,
&c.
J.
S.
of
which
the
Plaintiff
had
notice
,
and
accepted
the
rent
,
by
the
hands
of
the
Assignee
,
due
since
the
assignement
,
and
before
this
rent
now
demanded
was
due
;
Here
,
upon
the
demurrer
of
the
Plaintiff
the
judgement
passed
against
him
;
because
the
privity
of
the
contract
was
determined
by
the
death
of
the
Lessée
,
and
for
that
after
the
assignment
made
by
the
Administrator
,
debt
lyeth
not
for
rent
due
after
such
assignment
.
See
Dyer
4.
b.
1
,
&c.
C.
W.
shall
rebutt
and
maintain
the
lease
of
the
Stable
for
six
years
against
C.
by
way
of
conclusion
;
because
all
parties
and
privies
in
estate
or
interest
are
bound
by
Estoppels
.
tit
.
Form
.
44.
2
E.
2.
Qui
in
vita
,
16.
)
There
is
the
same
law
also
in
case
of
partition
;
and
as
it
is
in
case
of
warranty
,
so
it
is
also
in
case
of
the
condition
,
which
the
Law
doth
also
imply
upon
every
exchange
:
And
therefore
if
A.
exchange
with
B.
and
B.
alien
to
C.
who
is
evicted
by
title
paramount
;
In
this
case
C.
shall
not
enter
upon
the
other
;
for
as
the
warranty
,
so
also
the
condition
runneth
in
privity
to
such
●nely
as
are
parties
to
the
exchange
,
and
to
their
heirs
,
and
doth
not
extend
to
the
Assignée
;
So
likewise
none
shall
have
a
Contra
formam
feoffementi
,
but
the
Feoffée
or
his
heirs
;
Howbeit
the
Assignée
may
rebutt
(
Vide
F.
N.
B.
163.
c.
22
H.
6.
50
b.
30
H.
6
,
7.
a.
10
H.
7.
n.
e.
)
but
in
the
same
case
if
the
title
of
A.
who
aliened
not
,
be
evicted
,
he
shall
enter
into
the
land
which
he
gave
in
exchange
,
albeit
B.
had
aliened
it
over
,
&c.
Vide
suprà
18.
&
78.
Fuit
dit
.
F.
N.
B.
179.
f.
45
E.
3.
26.
11
E.
3.
Tit.
Ass.
86.
In
tempore
H.
8.
Brook
tit
.
Corodie
3.
it
is
holden
,
Dum
fuit
infra
etatem
,
or
shall
enter
into
the
moity
:
But
if
there
be
two
Ioyntenants
within
age
,
and
they
joyn
in
a
feofment
;
in
that
case
a
joynt
right
shall
remaine
in
them
,
and
therefore
if
one
of
them
die
,
the
right
shall
survive
,
and
the
survivor
shall
have
the
right
of
the
land
,
as
from
the
first
Feoffor
;
which
makes
Littleton
seem
to
hold
(
cap.
Discontinuance
fol.
44.
)
that
the
Survivour
may
enter
,
in
respect
of
the
right
accrued
unto
him
;
For
otherwise
(
indeed
)
this
mischiefe
would
ensue
,
that
the
heir
of
that
Feoffor
which
died
,
cannot
enter
;
for
that
the
right
survived
,
nor
yet
the
survivor
,
because
he
shall
not
take
advantage
of
the
infancy
of
his
companion
,
but
shall
be
forced
to
his
writ
of
Right
,
which
without
question
he
may
have
;
for
that
after
the
feofment
,
the
Ioyntenants
might
have
joyned
in
it
,
&c.
Lastly
,
privies
in
Law
,
as
Lord
by
escheat
,
non
same
memory
.
109
A.
grants
lands
to
B.
in
tail
,
xx
s.
that
then
B.
shall
have
an
estate
of
Fee-simple
in
the
lands
to
him
and
his
heirs
;
In
this
case
,
the
privity
of
the
estate
ought
to
be
continued
,
and
the
condition
ought
to
be
performed
by
B.
or
his
heirs
,
Pl.
Com.
)
for
if
the
Lessée
for
life
or
for
yeares
,
or
Donée
in
taile
,
who
hath
such
a
condition
annexed
to
his
estate
,
alien
before
the
Condition
performed
,
or
if
the
Lessée
for
life
or
years
surrender
unto
the
Lessor
,
he
shall
never
after
take
benefit
of
the
Condition
;
because
the
privity
of
the
estate
in
such
case
ought
to
continue
;
for
that
the
encrease
of
estate
ought
to
enure
upon
the
particular
estate
,
as
upon
a
foundation
:
And
therefore
in
this
case
,
if
Lessée
for
life
or
for
years
,
or
the
Donée
alien
all
their
estate
,
and
take
an
estate
again
,
and
after
perform
the
Condition
;
yet
nothing
shall
thereby
increase
unto
him
;
because
by
the
absolute
alienation
the
privity
for
a
time
was
absolutely
destroyed
,
which
by
any
taking
againe
of
the
estate
cannot
be
revived
;
as
if
a
Coparcener
after
partition
makes
feofment
in
fee
,
and
then
takes
againe
an
estate
to
her
and
her
heirs
;
in
that
case
the
privity
of
the
estate
to
have
aid
to
deraigne
the
warranty
paramount
is
destroyed
(
11
H.
4.
22.
Vide
38.
E.
3.
20.
b.
)
but
if
Lessée
for
life
grant
his
estate
upon
Condition
,
and
enter
for
the
Condition
broken
,
and
after
that
performe
the
Condition
annexed
to
his
estate
,
there
peradventure
the
fee
shall
accrue
unto
him
;
for
the
possibility
was
not
absolutely
destroyed
,
and
when
he
enters
for
the
Condition
broken
,
he
is
in
by
his
ancient
estate
;
neither
yet
is
it
necessary
that
the
particular
estate
should
continue
to
all
respects
;
but
,
if
such
privity
of
estate
continue
,
as
is
capable
of
the
increase
of
an
estate
,
it
sufficeth
:
And
therefore
if
such
a
Lessée
for
life
make
a
Lease
for
years
,
or
such
a
Lessée
for
years
make
a
Lease
for
a
lesse
terme
,
or
if
such
a
Donée
make
a
Lease
for
his
own
life
or
for
years
;
yet
for
the
privity
of
estate
,
that
still
continues
in
them
,
they
are
capable
of
a
farther
increase
of
their
estate
:
Howbeit
if
such
a
Tenant
in
taile
make
a
Lease
pur
auter
vic
;
there
he
is
not
capable
of
any
increase
;
because
he
hath
gained
a
new
redersion
in
fee
,
and
the
first
privity
remaineth
not
;
And
yet
in
that
case
if
the
Lessée
for
life
die
,
then
is
the
first
privity
of
the
estate
revived
.
So
if
a
man
make
a
gift
in
special
tail
with
such
a
condition
of
encreaser
,
as
abovesaid
,
and
after
the
Feme
dies
without
issue
:
so
that
he
is
now
become
Tenant
in
tail
after
possibility
of
issue
extinct
;
In
this
case
albeit
the
estate
be
changed
,
yet
in
as
much
as
the
privity
doth
still
remaine
,
he
may
by
the
performance
of
the
Condition
have
fee
afterwards
.
So
also
if
a
Lease
be
made
to
two
with
condition
to
have
fée
,
and
the
one
dies
,
the
survivour
may
performe
the
condition
and
have
fee
;
but
if
the
same
Iointenants
have
made
partition
of
the
terme
,
the
condition
is
destroyed
;
for
the
estate
in
fée
ought
to
increase
to
them
joyntly
,
and
not
in
severalty
,
&c.
Vide
34.
11.
Anne
Bedingfields
case
.
110
There
is
a
greater
privity
,
Vide
in
4
E.
3.
36.
&
6
E.
3.
11.
The
Tenant
in
a
Writ
of
Dower
voucheth
the
heir
of
the
Baron
,
and
the
Demandant
testifies
,
that
he
hath
lands
by
descent
,
&c.
in
the
same
County
,
and
judgement
was
given
against
the
heir
;
but
if
he
had
had
none
there
,
it
should
have
been
given
against
the
Tenant
.
In
6
E.
3.
20.
The
Feme
of
a
stranger
brings
a
Writ
of
Dower
,
and
the
Tenant
voucheth
the
heir
,
&c.
the
Demandant
shall
not
recover
against
the
heir
,
because
there
wants
privity
:
In
18
E.
3.
36.
in
Dower
,
the
Tenant
voucheth
,
and
the
Vouchee
voucheth
the
heir
of
the
Baron
of
the
Demandant
,
the
Demandant
testifies
that
the
heir
hath
assets
by
descent
in
the
same
County
;
here
,
the
Demandant
shall
not
recover
against
the
heir
,
but
against
the
Tenant
onely
;
for
in
this
case
,
there
is
not
immediate
privity
betwixt
the
Demandant
and
the
heir
;
because
the
Demandant
shall
recover
against
the
heir
onely
,
when
the
Tenant
in
Demesne
voucheth
him
,
and
not
when
the
Vouchée
of
the
Tenant
in
Demesne
voucheth
him
.
Deteinment
de
Chartres
;
for
,
this
plea
lies
onely
in
privity
,
viz.
for
the
heir
of
the
Baron
:
And
the
heir
also
in
this
case
may
divers
wayes
be
in
the
degrée
of
a
stranger
,
so
that
he
shall
be
disabled
from
pleading
Deteinment
of
Chartres
;
as
1
If
the
heir
hath
the
land
by
purchase
;
2
If
the
heir
did
deliver
the
Charters
to
the
Feme
(
as
it
is
resolved
7
E.
3.
Dower
101.
)
3
If
the
heir
be
not
immediately
vouched
,
viz.
by
the
Tenant
in
the
Writ
of
Dower
,
but
by
his
Vouchee
(
18
E.
3.
36.
)
4
If
the
heir
comes
in
as
Vouchée
,
having
no
lands
in
the
County
,
where
the
Dow●●
is
demanded
;
5
If
he
comes
in
as
Tenant
by
receit
,
as
appears
in
16
E.
3.
tit
.
Dower
57.
and
by
many
other
bookes
:
And
the
reason
hereof
is
manifest
by
the
true
pleading
of
deteinment
of
Charters
;
for
he
,
who
pleads
that
plea
in
barre
of
Dower
,
ought
to
plead
,
that
he
hath
béen
alwayes
ready
and
yet
is
,
to
render
Dower
,
if
the
Demandant
will
deliver
unto
him
his
writings
;
now
Tenant
by
receit
,
or
such
a
Vouchée
,
as
is
aforesaid
,
cannot
plead
,
that
he
hath
been
alwayes
ready
to
render
Dower
;
for
that
the
Demandant
cannot
recover
against
the
heir
in
such
cases
(
viz.
either
being
Vouchée
,
or
received
)
neither
can
he
render
unto
the
Demandant
the
Dower
,
which
by
the
Law
doth
belong
unto
her
,
&c.
Margaret
Podgers
case
.
The
Guardian
by
nurture
or
in
soccage
may
enter
in
the
name
of
the
infant
,
who
hath
right
to
enter
into
the
same
lands
,
and
this
shall
vest
the
estate
in
the
infant
without
any
commandment
or
assent
;
because
there
is
privity
betwéen
them
:
So
likewise
he
in
the
reversion
expectant
upon
an
estate
for
life
or
years
,
or
the
Lord
of
a
Tenant
by
copy
,
&c.
may
well
enter
(
within
that
Act
)
in
the
name
of
the
Tenant
for
life
,
Lessée
for
years
,
or
Tenant
by
Copy
,
and
also
in
their
own
right
,
as
well
to
save
their
own
Franktenement
and
Inheritance
,
as
also
the
said
particular
interests
;
for
the
Lessor
,
or
the
Lord
are
not
Strangers
,
because
they
are
privies
in
estate
:
And
as
the
entries
of
those
particular
Tenants
shall
availe
the
Lessor
and
the
Lord
in
those
cases
in
respect
of
the
privity
of
their
estates
;
So
the
entry
of
the
Lessor
or
the
Lord
in
the
like
cases
in
the
names
of
the
particular
Tenants
shall
availe
the
same
Tenants
,
in
regard
of
the
privity
of
their
estates
,
and
for
the
salvation
of
their
several
rights
,
without
any
request
precedent
,
or
assent
subsequent
:
for
in
these
cases
the
Lessor
and
the
Lord
pursue
the
title
and
claime
,
which
they
have
to
the
inheritance
,
by
lawfull
entry
within
the
five
years
,
according
to
the
saying
contained
in
the
said
Act
:
Howbeit
he
that
is
a
méer
stranger
,
and
hath
no
right
,
shall
not
by
his
entry
within
the
5
years
in
the
name
of
him
,
that
right
hath
,
avoid
such
a
fine
,
unlesse
he
have
some
request
or
commandment
precedent
,
or
assent
subsequent
to
authorize
him
to
do
it
;
because
the
said
Act
hath
appropriated
the
pursuit
thereof
,
by
way
of
action
or
lawfull
entry
,
unto
him
that
right
hath
,
either
by
interest
,
or
privity
,
or
else
by
request
or
Commandment
precedent
,
or
assent
subsequent
,
&c.
Recovery
in
value
20.
23.
E.
3.
Ass.
pl.
35.
&
5
E.
4.
2.
)
And
the
reason
hereof
is
,
because
the
particular
estate
and
the
estate
in
remainder
(
in
respect
of
the
privity
)
make
but
one
estate
,
and
one
warranty
may
extend
to
both
,
and
therefore
the
recompence
in
value
shall
also
enure
to
both
.
Vide
William
Poles
assise
(
3
H.
6.
20
,
21
,
&
22.
)
which
was
in
effect
this
;
A.
by
indenture
enfeoffes
B.
of
the
Mannor
of
Dale
rendring
unto
A.
and
his
heirs
5
marks
rent
per
annum
,
with
clause
of
distresse
;
A.
grants
to
C.
for
life
xxvi
s.
viii
.
d.
per
annum
,
parcel
of
the
same
rent
,
who
being
first
seised
and
then
disseised
,
brings
an
Assise
of
the
said
parcel
granted
to
him
,
and
because
in
the
same
Assise
the
Plaintife
produced
not
the
original
indenture
of
the
reservation
of
the
whole
rent
made
to
his
Grantor
,
Iudgement
was
given
against
him
,
albeit
he
claimed
but
parcel
of
the
said
rent
,
and
the
reason
thereof
was
in
regard
William
Pole
the
plaintife
was
privy
in
the
estate
of
the
rent
,
and
claimed
by
the
first
grant
.
And
in
the
case
above
put
,
the
reason
holds
against
the
stranger
,
in
regard
the
Lessée
might
have
bound
the
Lessor
by
Covenant
to
have
shewed
forth
the
Déed
,
when
occasion
should
have
required
.
In
35
H.
6.
it
was
agréed
,
that
Guardian
in
Chivalry
shall
not
plead
a
release
made
to
his
Tenant
without
shewing
it
forth
:
So
in
14
H.
8.
4.
It
was
agréed
by
all
,
that
he
,
who
is
privy
in
estate
,
as
Feoffée
,
Lessée
for
years
,
&c.
or
that
justifies
,
as
servant
to
him
,
that
is
privy
,
ought
to
shew
the
Déed
to
the
Court
,
which
they
plead
,
&c.
And
in
Debt
against
the
heir
,
he
shall
not
plead
a
release
made
to
the
Executors
without
shewing
it
;
for
there
is
privity
betwixt
them
;
and
with
this
agrées
the
13
E.
2.
Monstrans
des
faits
4●
.
Howbeit
on
the
other
side
,
where
a
man
is
a
stranger
to
the
Déed
,
and
claimeth
not
the
thing
comprised
in
the
grant
,
nor
any
thing
out
of
it
,
nor
doth
any
thing
in
right
of
the
Grantée
,
as
Bailife
or
Servant
,
there
he
shall
plead
the
Patent
or
Déed
without
shewing
it
:
If
the
Tenant
plead
the
grant
of
the
Lord
with
attornment
,
Lewis
Bowles
case
.
that
priviledge
is
individually
annexed
unto
that
estate
(
3
E.
3.
44.
per
Shard
and
Stone
.
)
If
one
,
that
hath
a
particular
estate
without
impeachment
of
wast
,
change
his
estate
,
he
loseth
that
advantage
(
5
H.
5.
9.
a.
)
If
a
man
make
a
Lease
for
years
without
impeachment
of
wast
,
and
after
he
confirmes
the
land
to
him
for
his
life
,
he
shall
be
afterwards
chargeable
for
wast
(
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
terme
of
his
own
life
;
here
,
he
is
punishable
of
wast
;
for
the
first
is
estate
drowned
and
gone
;
and
so
it
is
also
of
a
Confirmation
.
The
heir
at
the
Common
Law
shall
have
prohibition
of
wast
against
the
Tenant
in
Dower
;
but
if
the
heir
grant
over
the
reversion
,
his
Grantée
shall
not
have
prohibition
of
wast
;
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
therefore
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.
&
suprà
1
&
4.
Error
,
&c.
Sed
quaere
de
hoc
.
Ideo
quaere
de
hoc
.
William
Herberts
case
.
and
dies
,
so
that
the
third
descends
to
his
heir
;
In
this
case
,
if
execution
be
sued
onely
against
the
heir
,
he
shall
not
have
contribution
,
no
more
than
the
father
should
have
had
,
if
he
had
béen
living
;
for
they
are
privies
in
bloud
;
And
therefore
it
is
said
,
that
the
heir
fits
in
the
seat
of
the
Ancestor
,
Et
haeres
est
alter
ipse
;
filius
est
pars
patris
;
mortuus
est
pater
,
sed
quasi
non
est
mortuus
,
quia
reliquit
similem
sibi
,
&c.
in
praesenti
.
And
this
is
because
of
the
privity
of
estate
,
that
is
betwéen
the
Tenant
in
Dower
,
and
him
in
the
reversion
,
&c.
Edward
Phittons
case
.
So
3
Eliz.
Dyer
,
201
upon
the
Statute
of
23
H.
8.
Executors
shall
have
an
Attaint
.
6
E.
6.
Bendloes
,
Executors
shall
have
restitution
upon
the
Statute
of
21
H.
8.
Also
Administrators
shall
have
a
Writ
of
Error
upon
the
27
Eliz.
as
it
was
adjudged
in
36
Eliz.
in
the
Lord
Mordants
case
in
the
Exchequer
Chamber
;
yet
these
thrée
last
Statutes
speak
onely
of
the
partie
,
and
not
of
his
Executors
or
Administrators
.
Vide
28
Ass.
Pl.
7.
11
E.
3.
Executors
77.
Valore
maritagii
,
a
forfeiture
of
marriage
,
arrerages
of
rent
,
a
presentation
to
a
Benefice
,
debts
by
obligation
,
contract
,
or
otherwise
,
which
did
accrue
to
the
wife
before
marriage
;
the
husband
(
I
say
)
shall
not
have
these
or
the
like
,
unlesse
he
and
his
wife
recover
them
,
because
they
consist
in
privity
;
and
therefore
albeit
the
husband
survive
the
wife
,
yet
he
shall
not
have
them
,
but
the
Executors
or
Administrators
of
the
wife
:
So
if
a
Feme
Sole
be
possest
of
a
Chattel
real
,
and
be
thereof
dispossest
,
and
then
taketh
husband
,
and
dieth
,
albeit
the
husband
survive
,
yet
this
right
is
not
given
to
the
husband
by
the
intermarriage
,
but
the
Executors
,
&c.
of
the
wife
shall
have
it
:
So
it
is
likewise
,
where
the
wife
hath
but
a
possibility
,
and
of
Reliefs
,
&c.
Howbeit
now
by
the
Statute
of
32
H.
8.
cap.
37.
if
the
husband
survive
the
wife
,
he
shall
have
the
arrerages
as
well
incurred
before
the
marriage
,
as
after
,
&c.
135
Vide
Max.
114.
c.
58.
&
Hob.
130.
Oates
and
Frith
.
56
Equal
things
cannot
drown
one
another
,
&
contrà
.
Moyle
Finches
case
.
and
the
Lord
disseise
the
Tenant
of
the
land
,
and
make
feoffment
in
fee
to
another
,
hereby
the
Seigniory
is
extinct
.
Vide
Pl.
ibid.
57
Things
are
to
be
construed
,
Secundum
aequalitatem
rationis
.
Will
.
Herberts
case
.
11
H.
7.
12.
b.
2
Vpon
a
recognizance
acknowledged
by
the
Ancestor
,
in
aequali
jure
.
Finch
20.
Co.
l.
2.
25.
b.
4.
The
case
of
Banker
.
7
When
custome
createth
Inheritance
in
Copy-hold
lands
,
Exempla
illustrant
,
non
restringunt
legem
.
And
this
appears
by
the
words
of
the
same
Stat.
Auxi
sont
divers
autres
estates
en
le
taile
,
&c.
And
herewith
also
agreed
Littleton
§
.
21.
Carbonels
case
,
33
Ed.
3.
Taile
5.
3.
E.
●
.
32.
18
Ass.
Pl.
5.
18
E.
3.
46.
1
Ma.
Dy.
46.
The
Lord
Barkleys
case
.
Pl.
Co.
251.
11
By
the
Statute
of
2
E.
6.
cap.
8.
it
is
enacted
,
El.
Dyer
319.
(
as
hath
been
accustomed
of
old
,
&c.
)
it
appeareth
;
but
if
upon
the
Melius
it
be
found
again
as
uncertainly
,
as
before
is
said
,
then
it
is
in
judgement
of
Law
a
tenure
in
Capite
,
Howbeit
if
upon
the
Melius
a
tenure
be
found
for
the
King
,
Ut
de
manerio
,
&c.
sed
per
quae
servitia
,
&c.
it
shall
be
taken
for
Knight-service
.
Magna
Carta
,
and
are
to
pay
such
reliefs
as
other
men
,
that
hold
of
the
King
in
Capite
:
For
as
the
heir
of
a
Knight
shall
not
pay
100
s.
relief
,
unlesse
he
hath
a
Knights
fée
,
&c.
so
neither
the
Earl
nor
Baron
shall
pay
any
relief
by
that
Statute
,
unlesse
he
hath
an
Earldom
or
Barony
intended
by
the
same
Statute
,
&c.
Merton
,
cap.
2.
(
made
20
H.
3.
Justices
Itinerant
are
onely
set
down
there
for
an
example
:
And
albeit
that
Statute
saith
,
Recuperavit
per
Assisam
,
&c.
by
the
verdict
of
the
Assise
,
as
Littleton
in
the
same
Chapter
expoundeth
it
;
or
per
recognitionem
,
&c.
by
confession
;
yet
if
the
recovery
be
upon
a
demurrer
,
or
by
pleading
of
a
record
and
failer
of
it
,
or
by
any
other
manner
,
such
recoveries
are
also
within
the
equity
of
the
same
Statute
;
And
therefore
Littleton
in
the
abovesaid
Section
speaketh
generally
,
Et
recovera
le
seisin
del
rent
,
intimating
,
that
it
ought
to
be
understood
of
all
manner
of
recoveries
in
an
Assise
of
Novel
disseisin
:
Si
autem
post
debita
deducta
,
J●●
utrum
.
or
any
other
such
body
politique
or
corporate
,
which
hath
a
sole
seisin
of
lands
in
fée
in
right
of
their
several
Corporations
,
if
any
such
be
ousted
,
they
shall
(
if
néed
be
)
have
a
remedie
agréeable
to
their
right
,
viz.
a
Writ
of
Right
,
which
is
the
highest
remedy
,
for
that
they
have
the
highest
estate
:
It
is
otherwise
of
a
Parson
;
because
the
intire
fée
and
right
is
not
in
him
;
his
highest
writ
being
a
Juris
utrum
&c.
Glocester
,
cap.
3.
(
made
in
6
E.
1.
Mortdancester
,
Cosenage
,
Aiel
,
and
Besaiel
;
yet
a
Writ
of
Right
,
a
Formedon
,
a
Writ
of
Entry
ad
communem
legem
,
and
all
other
like
actions
are
within
the
purview
of
that
statute
;
for
those
actions
are
but
put
for
examples
.
Again
,
where
it
is
said
in
the
same
Statute
(
if
the
Tenant
by
the
Courtesie
alien
)
yet
his
release
with
warranty
to
a
Disseisor
,
&c.
is
within
the
purview
of
that
Statute
,
because
it
is
in
equal
mischief
;
and
if
that
evasion
might
take
place
,
that
Stat.
should
have
béen
made
in
vain
:
So
also
if
Tenant
by
the
Courtesie
be
of
a
Seigniory
,
and
the
tenancy
escheat
unto
him
,
and
after
he
alieneth
with
warranty
,
this
shall
not
bind
the
issue
,
unlesse
assets
descend
;
for
it
is
in
equal
mischief
,
&c.
(
viz.
hath
given
&
granted
,
&c.
)
and
the
bodie
of
the
Act
referreth
to
the
preamble
(
viz.
that
no
such
feigned
recovery
hereafter
to
be
had
against
such
tenant
in
taile
,
&c.
)
So
as
this
word
(
such
)
may
seem
to
couple
the
bodie
and
the
preamble
together
;
Yet
in
this
case
(
such
)
shall
be
taken
for
such
in
equal
mischief
,
or
in
like
case
;
and
by
divers
parts
of
the
Act
it
appeareth
,
that
the
makers
of
the
Act
intended
to
extend
it
to
future
gifts
,
and
so
is
the
Law
taken
at
this
day
without
question
.
Glocester
,
cap.
3.
the
heritage
of
his
mother
,
to
be
the
lands
which
the
mother
hath
by
descent
:
And
that
construction
is
true
;
but
that
Stat.
(
by
the
authority
of
Littleton
,
Sect.
732.
)
extendeth
also
,
where
the
mother
hath
it
by
purchase
in
Fée-simple
;
for
so
saith
Littleton
himself
,
that
this
word
(
Inheritance
)
is
not
onely
intended
,
where
a
man
hath
lands
by
descent
,
but
likewise
where
a
man
hath
a
Fée-simple
by
purchase
;
because
his
heirs
may
inherit
him
:
And
albeit
it
be
true
,
that
the
Statute
extendeth
to
an
estate
in
Frankmarriage
acquired
by
purchase
,
yet
doth
it
extend
also
to
all
estates
in
tail
,
as
well
by
descent
as
by
purchase
,
Frankmarriage
being
put
there
but
onely
for
an
example
.
Eliz.
cap.
7.
To
every
one
of
the
Creditors
,
&c.
rate
and
rate
like
,
according
to
the
quantity
of
his
or
their
debt
:
So
that
one
shall
not
prevent
the
rest
,
but
all
may
be
in
equali
jure
,
according
to
that
of
Cato
,
Ipsae
etenim
leges
cupiunt
,
ut
jure
regantur
.
Merton
.
cap.
4.
there
is
the
like
case
.
Co.
l.
3.
13.
a.
3.
Sir
Wiliam
Herberts
case
.
William
Herberts
case
.
But
it
is
Sir
John
Lanfords
case
.
29
E.
3.
50
37
Four
men
were
bound
in
a
Recognisance
of
debt
to
A.
and
after
one
of
the
Conusors
dies
,
leaving
his
heir
within
age
,
Kings
Bench
by
a
writ
of
Error
.
tit
.
execution
81.
Willam
Barnerds
and
his
wife
being
seised
of
the
Mannor
of
Hinton
in
tail
,
being
the
wives
joynture
,
and
holden
in
Capite
;
W.
B.
being
also
seised
of
lands
in
Fobing
,
both
which
amounted
to
the
full
third
part
of
all
his
lands
;
And
W.
B.
being
likewise
seised
of
the
Mannor
of
Thoby
(
holden
also
in
Capite
)
which
amounted
to
two
third
parts
,
&c.
W.
B.
devised
to
his
wife
the
Mannor
of
Th.
upon
condition
,
that
she
should
waive
her
former
joynture
,
&c.
W.
B.
dies
,
the
wife
in
pais
refuseth
her
former
joynture
:
In
this
case
,
W.
B.
could
not
by
the
Statutes
of
Wills
(
32
&
34
H.
8.
)
devise
the
whole
Mannor
of
Thoby
;
because
the
Mannor
of
H.
and
the
lands
in
F.
were
not
a
third
part
of
the
cleer
yearly
value
of
all
his
lands
,
as
they
ought
to
be
according
to
the
provision
of
the
said
Statutes
;
for
that
the
cléer
title
and
present
possession
of
the
Mannor
of
H.
was
but
in
possibility
,
and
depended
méerly
upon
the
will
and
pleasure
of
the
wife
;
and
she
could
not
by
a
bare
refusal
in
pais
devest
her
title
to
the
joynture
:
But
in
that
case
,
W.
B.
had
onely
power
by
those
Statutes
to
devise
two
third
parts
of
the
Mannor
of
H.
and
also
two
third
parts
of
the
rest
of
his
lands
;
to
the
end
that
the
King
might
have
an
equal
and
proportionable
third
part
apparelled
with
like
accidents
and
circumstances
,
that
the
other
two
thirds
parts
were
,
according
to
the
true
intent
and
meaning
of
the
same
Statutes
.
Sur
conisance
de
droit
come
ceo
,
&c.
and
thereby
doth
grant
and
render
the
land
for
1000
years
,
George
Browns
case
.
pretending
that
this
is
not
within
the
words
of
the
Statute
of
11
H.
7.
cap.
20.
which
prohibits
discontinuance
,
alienation
,
release
,
&c.
Yet
that
is
alienation
within
the
intention
of
the
same
act
;
because
within
the
same
mischiefe
,
&c.
Sir
Morrice
Dennis
case
8.
Eliz.
Dyer
248.
And
therefore
the
case
of
6
E.
6.
Dower
Br.
69.
(
where
it
is
said
,
that
an
estate
in
Fee
simple
conveyed
to
the
Feme
for
her
joynture
is
not
within
the
Stat.
of
27
H.
8.
)
is
misreported
,
and
ought
to
be
intended
that
such
an
estate
is
not
within
the
Statute
of
11
H.
7.
cap.
20.
which
restraines
the
alienations
of
Femes
,
&c.
Cestuy
que
use
)
the
heir
of
Cestuy
que
use
was
not
in
ward
;
And
yet
it
is
holden
in
27
H.
8.
9.
if
Cestuy
que
use
since
the
Statute
of
4
H.
7.
make
feofment
in
fée
by
Collusion
to
defraud
the
Lord
of
his
ward
,
that
is
taken
within
the
equity
of
the
said
Statute
of
Malbridge
:
Gloucester
cap.
3.
made
6
E.
1.
as
it
is
held
11
E.
2.
tit
.
garranty
Stath
.
&
38
E.
3.
23.
For
a
Formedon
in
descender
was
given
in
lieu
of
a
Mortdancester
:
Likewise
the
Statute
of
Westm.
2
cap.
25.
made
13
E.
1.
gives
a
Certificate
,
but
it
gives
not
adjournment
;
Howbeit
adjournment
is
taken
by
the
equity
of
the
Statute
of
Magna
Carta
cap.
12.
made
9
H.
3.
as
it
is
held
12
H.
4.
9.
So
the
Statute
of
7
R.
2.
cap.
10.
gives
an
Assise
for
rent
in
confinio
Comitatus
,
and
Redisseisin
is
also
taken
in
case
of
rent
by
the
equity
of
the
Statute
of
Merton
cap.
3.
made
20
H.
3.
Vide
1
E.
3.
25.
b.
So
in
Dyer
12
Eliz.
289.
Pl.
60.
The
Bishop
of
London
being
one
of
the
High
Commissioners
by
force
of
the
Statute
of
1
Eliz.
cap.
1.
was
translated
to
the
Arch
Bishoprick
of
Yorke
,
yet
his
authority
(
notwithstanding
that
preferment
remaines
by
force
of
the
Statute
of
1
E.
6.
cap.
7.
So
also
,
albeit
lands
were
not
devisable
till
the
32
H.
8.
yet
if
a
man
devise
lands
to
a
woman
for
terme
of
her
life
,
or
in
tail
,
&c.
for
her
joynture
,
and
in
satisfaction
of
her
Dower
,
that
is
a
joynture
within
the
Act
of
the
27
H.
8.
For
as
an
estate
for
life
made
to
a
Feme
for
her
joynture
before
marriage
,
when
she
is
not
his
wife
,
is
within
the
equity
of
that
Act
,
So
an
estate
for
life
devised
to
a
Feme
for
her
life
,
which
takes
effect
after
his
death
when
the
marriage
is
dissolved
,
is
also
within
the
equity
of
the
same
Act
;
because
such
an
estate
stands
well
with
the
intent
of
the
makers
of
the
same
Act
of
27
H.
8.
inter
Leak
and
Randal
in
Cur.
Gardorum
.
&c.
generally
;
for
that
cannot
be
averred
to
be
for
her
joynture
,
&c.
because
a
devise
imports
a
consideration
in
it selfe
,
and
unlesse
it
be
plainly
exprest
in
the
will
what
it
is
for
,
it
shall
be
taken
onely
as
a
benevolence
;
neither
yet
can
any
averment
be
taken
out
of
the
Will
,
unlesse
it
properly
arise
,
or
may
be
collected
out
of
the
words
contained
in
the
same
Will
,
&c.
Vide
51.
Monstrance
de
droit
from
Lands
seised
into
the
Kings
hands
by
offices
returned
onely
into
the
Chancery
;
yet
by
equity
of
that
Statute
;
if
the
offices
be
returned
into
the
Exchequer
,
and
not
into
the
Chancery
there
also
the
Subject
may
put
in
his
traverse
,
or
Monstrance
de
droit
:
as
appeares
by
a
president
in
Qu.
Eliz.
time
,
betwéen
the
said
Quéen
and
one
Collins
and
Howstead
.
Talis
discretio
discretionem
confundit
,
&c.
Miles
Corbets
case
.
and
that
the
one
ought
to
have
common
with
the
other
because
of
vicinage
,
and
in
the
Town
of
A.
there
are
50
acres
of
Common
,
and
in
the
Town
of
B.
100
acres
of
Common
;
In
this
case
,
the
Inhabitants
of
the
Town
of
A.
cannot
put
more
Cattle
in
their
Common
of
50
acres
,
than
that
will
féed
,
without
having
any
respect
to
the
Common
within
the
Town
of
B.
nec
è
converso
;
for
the
original
cause
of
this
Common
for
cause
of
vicinage
was
not
for
profit
;
but
for
the
preventing
of
Suits
in
a
Champian
Country
,
by
reason
of
the
reciprocal
escapes
out
of
the
one
Town
into
the
other
;
And
therefore
if
the
Common
of
the
Town
of
A.
will
depasture
50
Cattle
,
and
that
of
the
Town
of
B.
100
Cattle
,
it
can
be
no
prejudice
to
the
one
or
to
the
other
,
if
the
Cattle
of
the
one
Town
do
reciprocally
escape
and
depasture
out
of
the
one
Town
into
the
other
;
For
if
all
their
Cattle
depasture
promiscuously
together
,
per
my
&
per
tout
,
that
can
be
no
prejudice
to
the
one
or
to
the
other
,
&c.
The
day
is
ordained
for
man
to
labour
in
,
and
the
night
to
take
his
rest
:
And
the
Poet
saith
,
Ut
jugulent
homines
,
surgunt
de
nocte
latrones
:
And
from
this
resolution
of
the
Common
Law
,
the
Statutes
of
Winchester
13
E.
1.
and
of
27
Eliz.
cap.
13.
are
to
be
expounded
;
For
albeit
no
time
be
specified
in
those
Statutes
,
when
the
robbery
should
be
committed
,
for
which
damages
are
to
be
answered
by
the
Hundred
;
yet
it
is
adjudged
in
29
Eliz.
in
the
case
between
Milborn
,
and
the
Hundred
of
Dunmow
in
Essex
,
that
for
a
Robbery
done
before
day
,
the
Hundred
shall
not
answer
;
but
onely
for
that
,
which
is
committed
in
the
day
time
betwixt
light
and
light
.
And
howbeit
at
the
Common
Law
(
as
is
aforesaid
)
the
Inhabitants
in
great
Towns
were
not
to
be
amercied
,
albeit
the
Man-slayer
escaped
,
when
the
Murther
or
Homicide
was
committed
in
the
night
;
Yet
at
this
day
,
since
the
said
Stat.
of
Winchester
,
by
which
it
is
enacted
,
that
in
Cities
,
and
great
Towns
that
are
enclosed
,
the
gates
shall
be
shut
at
Sunne-set
,
until
Sun-rising
next
morning
.
Now
the
Inhabitants
of
such
Cities
and
Towns
are
amerciable
,
if
such
Man-slayer
escape
,
although
the
Murther
or
Homicide
happen
to
be
committed
in
the
night
,
as
well
as
if
it
were
committed
in
the
day
;
For
now
that
act
hath
changed
the
reason
of
the
Law
,
and
therefore
the
Law
it selfe
is
also
changed
:
Ratio
est
anima
legis
,
&
mutata
legis
ratione
,
mutatur
&
lex
:
For
at
the
Common
Law
before
the
Statute
,
if
a
man
were
slain
in
the
night
(
as
is
said
before
)
there
was
no
fault
to
be
imputed
to
the
Citie
or
Town
,
but
now
if
they
do
not
kéep
their
gates
shut
according
to
the
Statute
,
by
reason
whereof
the
offender
escapes
,
then
is
the
fault
and
negligence
in
them
;
and
this
agrées
with
the
book
in
3
E.
3.
Coronae
299.
which
see
also
in
Co.
pro
ut
in
margine
.
Vide
149.
35.
per
le
Roy.
52
Inasmuch
as
the
King
is
bound
by
the
Stat.
De
donis
conditionalibus
,
as
it
is
adjudged
in
the
Lord
Barleys
case
,
in
Pl.
Co.
240.
De
d●
binds
the
K●
and
there●
he
takes
b●fit
of
4
H.
7.
●
32
H.
8.
by
which
Act
the
King
is
restrained
from
alienation
(
for
it
is
provided
by
the
same
Act
,
Quod
finis
ipso
jure
sit
nullus
)
Reason
requires
,
that
the
King
shall
take
benefit
of
the
Acts
of
4
H.
7.
and
32
H.
8.
which
enable
the
Tenant
in
tail
to
barre
his
●●●es
;
For
it
is
agréed
in
all
our
Books
,
that
the
King
shall
take
benefit
of
any
Act
,
although
he
be
not
named
(
12
H.
7.
21.
35
H.
6.
60.
Pl.
Co.
ubi
supra
)
And
it
would
be
hard
if
the
King
being
issue
in
tail
of
a
gift
made
to
the
Subject
,
should
be
in
worse
condition
than
if
he
were
not
King
.
Virgil
Parkers
case
.
53
The
Kings
Tenant
by
Knight-service
conveyeth
half
his
land
for
the
joynture
of
his
wife
that
shall
be
,
Leonard
Leveis
case
.
as
the
payment
of
his
debts
,
and
the
preferment
of
his
children
;
and
for
that
the
operation
of
that
Statute
doth
principally
take
effect
by
the
death
of
the
Kings
Tenant
:
For
that
cause
,
albeit
the
estate
of
the
Feme
hath
the
precedency
,
yet
the
Kings
third
par●
shall
he
taken
equally
out
of
both
those
halfs
,
and
not
out
of
the
half
so
demised
onely
.
And
so
it
was
also
resolved
,
M.
41
,
&
42
Eliz.
betwéen
Remington
and
Savage
,
and
the
23
Eliz.
in
Thynnes
case
.
And
agrées
also
with
the
common
experience
of
the
Court
of
Wards
.
Matth.
Meves
rase
.
55
A.
seised
of
Gavelkind
land
,
I.
S.
and
of
other
lands
holden
in
Capite
,
devised
part
thereof
to
B.
the
eldest
sonne
of
his
son
(
being
dead
)
and
the
rest
to
his
youngest
son
,
and
dies
,
B.
being
within
age
:
In
this
case
,
it
was
resolved
,
that
the
King
shall
have
his
third
part
out
of
each
several
part
,
so
that
the
charge
shall
be
equal
,
and
shall
not
fall
upon
one
of
the
parts
onely
.
Vide
35
H.
8.
Br.
Testam.
19
E.
3.
Ass.
178.
21
,
&
22
Eliz.
366.
b.
Dyer
.
Will
.
Herberts
case
.
and
after
make
a
feoffment
of
parcel
of
his
lands
to
one
man
,
and
of
another
parcel
of
his
lands
to
another
man
,
and
the
Recognisée
sues
execution
upon
the
Statute
,
and
hath
execution
against
one
of
the
Feoffées
;
Here
,
that
Feoffee
shall
have
an
Audita
quaerela
against
the
other
Feoffee
,
to
shew
cause
why
the
Recognisee
shall
not
have
execution
against
the
lands
of
that
other
Feoffee
,
as
well
as
against
the
lands
which
he
hath
,
&c.
Acton
Burnel
made
before
(
viz.
Anno
11
E.
1.
)
which
saith
,
that
the
goods
praysed
too
high
shall
be
delivered
to
the
Praysers
themselves
at
the
rate
they
set
them
,
&c.
(
Vide
44.
)
And
yet
the
Statute
Merchant
is
a
penal
law
.
Richard
Godfreys
case
.
the
Lord
cannot
demand
or
exact
excessive
or
unreasonable
fines
,
but
if
he
do
the
Copiholder
may
refuse
to
pay
the
fine
,
and
the
reasonablenesse
thereof
shall
be
determined
by
the
Iustices
,
&c.
Quàm
rationabilis
debet
esse
finis
non
definitur
,
sed
omnibus
circumstantiis
inspectis
pendet
ex
justiciariorum
discretione
;
And
so
it
was
adjudged
in
C.
B.
betwéen
Stallon
and
Brady
,
P.
9.
Jac.
Rot.
1845.
Vide
Co.
l.
4.
47.
b.
62
Vide
Max.
178.
22.
Richard
Lifords
case
.
the
Parson
for
the
preservation
of
the
timber
trées
shall
have
a
prohibition
against
him
,
that
he
shall
not
make
Waste
;
and
the
reason
thereof
is
said
to
be
,
for
that
if
the
Parson
of
a
Church
will
waste
the
inheritance
of
his
Church
to
his
private
use
in
felling
the
trées
,
the
Patron
may
have
a
prohibition
against
him
;
for
the
Parson
is
seised
as
in
right
of
his
Church
,
and
the
Glebe
is
the
Dower
of
his
Church
(
for
thereof
it
is
said
to
be
endowed
,
and
so
say
many
ancient
records
)
and
therefore
inasmuch
as
a
prohibition
lyeth
against
him
,
reason
requires
that
he
shall
have
like
remedy
against
him
,
who
holds
with
him
in
common
.
See
likewise
ubi
supra
,
a
notable
case
,
wherein
the
Bishop
of
Duresme
is
inhibited
to
commit
Waste
in
the
Woods
belonging
to
his
Bishoprick
,
at
a
Parliament
holden
at
Carlisle
in
the
35
E.
1.
by
the
ordinary
remedie
at
the
Common
Law
by
prohibition
out
of
the
Chancery
,
&c.
Vide
F.
N.
B.
49.
3.
Co
l.
2.
25.
b.
4.
In
the
case
of
Bankrupts
.
Tr.
T.
there
were
but
two
dayes
dies
juridici
.
W.
Howards
case
.
14
Jac.
67
In
the
Starre-Chanber
in
a
cause
betwéen
the
Lord
William
Howard
Plaintif
,
and
Bell
and
others
Defendants
,
per
Hobert
in
the
Lord
Darcies
case
of
the
North
,
against
Gervase
Markham
.
58.
In
quo
quis
delinquit
,
in
eo
de
jure
,
est
puniendus
.
William
Herberts
case
.
2
At
the
Common
Law
,
Marlbridge
cap.
23.
and
Westm.
2.
cap.
11.
a
Capias
was
given
in
accompt
(
for
at
the
Common
Law
the
process
in
accompt
was
distresse
infinite
)
and
after
by
the
Statute
of
25
E.
3.
cap.
17.
Such
processe
was
given
in
debt
,
as
in
accompt
,
&c.
And
as
concerning
the
other
abovesaid
Writs
of
execution
,
viz.
a
Levari
facias
,
and
a
fieri
facias
,
they
ought
to
be
sued
within
the
year
after
the
Iudgement
,
or
the
Recognisance
acknowledged
,
otherwise
at
the
Common
Law
the
Plaintife
or
Conusée
was
driven
to
his
writ
of
debt
:
Howbeit
now
by
the
statute
of
Westm.
2.
cap.
45.
a
Scire
facias
is
given
,
and
by
the
statute
of
West
.
2.
cap.
18.
Cum
debitum
fuerit
recuperatum
,
&c.
the
Elegit
is
given
for
a
moity
of
the
land
,
&c.
which
was
the
first
Act
,
that
subjected
land
to
the
execution
of
a
Iudgement
or
of
a
Recognisance
,
which
is
in
the
nature
of
a
Iudgement
(
F.
N.
B.
265.
g.
)
And
by
the
Statute
of
13
E.
1.
De
mercatoribus
,
27
E.
3.
cap.
9.
&
23
H.
8.
cap.
6.
upon
a
Statute
Merchant
,
or
Staple
,
all
the
lands
which
the
Conusor
hath
at
the
time
of
the
Conusance
,
shall
be
extended
,
in
whose
hands
soever
they
afterwards
come
,
&c.
Howbeit
in
debt
against
the
heir
upon
an
obligation
made
by
the
Ancestor
,
the
Plaintife
by
the
Common
Law
shall
have
all
the
land
,
which
descends
unto
him
,
in
execution
against
him
,
and
yet
he
shall
not
have
execution
of
any
part
thereof
against
the
father
himselfe
;
but
the
reason
hereof
is
,
because
otherwise
the
Plaintife
would
be
without
remedie
;
for
the
Common
Law
gives
an
action
of
debt
against
the
heir
,
and
then
if
he
might
not
have
execution
of
the
land
against
the
heir
,
he
should
reap
no
fruit
by
his
action
;
because
the
Chattels
of
the
debtor
belong
to
the
Executors
or
Administrators
,
&c.
Partridge
vers
Strange
and
Croker
.
(
called
the
Statute
merchant
)
binds
all
the
lands
of
the
Conisor
to
the
execution
,
and
provides
,
that
they
shall
be
delivered
to
the
Conisée
upon
reasonable
extent
,
and
speaketh
not
a
word
of
the
delivering
them
to
the
extendors
,
in
case
they
extend
them
too
high
;
yet
they
shall
be
delivered
to
the
extendors
,
in
that
case
,
by
the
equity
of
the
Statute
of
Acton
Burnel
made
before
(
viz.
anno
11
E.
1.
)
which
saith
,
that
the
goods
praysed
too
high
shall
be
delivered
to
the
Praysors
themselves
at
the
rate
they
set
them
;
For
reason
requires
,
that
they
should
be
punished
by
the
same
meanes
,
that
they
intended
to
to
punish
others
.
Vide
Max.
57.
44.
and
57.
59
Omne
majus
continet
in
se
minus
.
El.
cap.
10.
Commissimus
de
W.
de
B.
officium
Seneschalliae
,
&c.
quam
diu
nobis
placuerit
,
and
by
that
word
also
he
may
make
a
Lease
;
and
therefore
a
fortiori
a
common
person
may
do
the
same
.
inter
Stanton
&
Barnes
in
B.
R.
&
Co.
l.
3.
9.
a.
3.
Heydons
case
&
l.
4.
23.
a.
Gravenors
case
.
3
A
custome
of
a
Mannor
,
time
out
of
mind
used
,
Negati●
Affirmative
.
so
the
argument
à
majore
ad
minus
,
doth
ever
hold
negatively
,
and
the
reason
hereof
is
this
,
Quod
in
minori
valet
,
valebit
in
majori
;
&
quod
in
majori
non
valet
,
nec
valebit
in
minori
.
Non-claim
(
Anno
34
E.
3.
cap.
16.
)
and
in
the
Stat.
of
4
H.
7.
cap.
24.
in
fait
,
shall
the
entry
of
him
that
is
out
of
the
Realm
at
the
time
of
the
descent
cast
,
&c.
be
preserved
;
so
that
he
may
well
enter
at
his
return
,
notwithstanding
such
descent
,
&c.
Pl.
Co.
83.
&
86.
Partridges
case
.
Vide
40.
I.
S.
is
broken
,
I.
S.
and
I.
D.
Morrice
Denurs
case
.
Dyer
8
El.
248.
Downes
case
.
Kath.
Wrote●
case
.
shall
not
be
meant
onely
of
a
person
that
hath
judgement
of
life
,
but
also
extended
to
a
person
convicted
by
confession
or
verdict
;
for
a
person
attaint
is
a
person
convict
and
more
.
36.
To
the
finding
of
a
Priest
to
have
continuance
for
ever
,
&c.
)
yet
that
Stat.
by
construction
extends
also
to
every
lesse
estate
,
as
to
an
estate
in
taile
for
life
,
&c.
Eliz.
cap.
2.
Eliz.
cap.
2.
there
be
no
such
provision
made
for
them
,
as
for
Bishops
,
&c.
Because
,
Cui
licet
,
quod
majus
est
,
non
debet
,
quod
minus
est
,
non
licere
.
other
then
for
the
terme
of
21
yeares
,
or
three
lives
(
without
saying
,
or
under
)
and
yet
a
lease
for
a
lesse
term
is
good
:
There
is
also
the
same
exposition
of
the
Stat.
of
the
13
Eliz.
cap.
10.
whereof
the
words
(
as
to
that
point
)
are
the
same
.
1.
bo●●
Notabilis
.
that
it
was
adjudged
in
a
case
between
Vere
and
Jeffres
in
tempore
Reg.
Eliz.
That
where
one
had
goods
onely
in
an
inferiour
Diocesse
,
yet
the
Metropolitan
of
the
same
Province
pretending
that
he
had
bona
Notabilia
in
divers
Diocesses
,
committed
the
administration
,
&c.
This
administration
was
not
void
;
but
onely
voidable
by
sentence
;
because
the
Metropolitan
hath
jurisdiction
over
all
the
Diocesses
within
his
Province
:
But
if
an
Ordinary
of
a
Diocesse
commit
the
administration
of
the
goods
,
when
the
party
hath
bona
Notabilia
in
divers
Diocesses
,
such
administration
is
méerly
void
,
as
well
to
the
goods
within
his
own
Diocesse
,
as
elsewhere
;
because
he
can
by
no
means
have
jurisdiction
of
the
cause
.
29
In
the
general
pardon
of
the
28
of
Eliz.
Burglary
was
excepted
;
of
the
reversion
,
Manerium
de
D.
to
another
and
his
heirs
;
In
this
case
albeit
the
King
grants
the
Mannor
of
D.
is
in
possession
,
yet
the
reversion
shall
passe
;
for
the
King
hath
an
estate
(
viz.
the
reversion
in
fée
)
grantable
in
him
,
&
the
estate
taile
of
the
common
person
néed
not
be
recited
,
&c.
pur
auter
vie
,
pur
auter
vie
)
cannot
absolutely
contract
for
a
lease
of
forty
years
;
yet
without
any
recital
or
mention
of
the
estate
for
life
,
the
lease
is
good
;
for
the
lease
for
years
is
in
judgment
of
Law
,
lesse
than
a
lease
pur
auter
vie
,
and
the
King
doth
no
wrong
or
prejudice
to
any
by
such
a
demise
,
neither
yet
is
he
deceived
in
his
grant
,
because
,
in
judgement
of
Law
,
that
is
a
lease
for
forty
years
,
if
Cestuy
que
vie
shall
so
long
live
,
&c.
Quid
in
parochia
Sancti
Martini
Bowyer
Rowe
in
Warda
de
Farringdon
infra
Londinum
praedict.
the
Serjeant
arrested
him
,
and
so
he
pursued
not
the
precept
;
for
the
precept
was
infra
libertates
London
:
But
notwithstanding
that
exception
the
Indictment
was
resolved
to
be
good
;
because
the
said
Parish
and
Ward
in
London
shall
be
intended
to
be
within
the
liberties
of
London
;
For
these
words
,
liberties
of
London
have
a
larger
extent
,
than
the
word
London
,
and
do
include
in
them
the
Citie
of
London
it self
,
&c.
K.
Bench
are
taken
to
be
within
the
words
of
the
stat.
of
2
E.
6.
cap.
24.
(
which
ordains
,
Gaole
delivery
or
of
Oyer
and
Terminer
;
before
whom
the
accessary
is
to
be
tryed
,
&c.
)
for
that
the
Iustices
of
the
K.
Bench
are
the
sovereign
Iustices
of
Gaol
delivery
,
&
of
Oyer
&
Terminer
;
and
therefore
they
are
included
within
the
same
words
;
And
upon
the
same
ground
it
is
holden
,
in
7
E.
4.
18.
&
4
H.
7.
18.
that
if
an
indictment
of
forcible
entry
be
removed
into
the
Kings
Bench
,
the
Iustices
of
that
Bench
shall
award
restitution
,
and
yet
the
S●at
.
of
8
H.
6.
cap.
9.
speaks
onely
of
Iustices
of
Peace
;
but
the
reason
is
,
because
the
Iustices
of
the
Kings
Bench
have
sovereign
and
supream
authority
in
such
cases
:
And
therefore
in
the
Lord
Sanchiers
case
in
the
9
Rep.
the
Iustices
of
the
Kings
Bench
wrote
(
according
to
the
said
Act
of
2
E.
6.
)
to
the
Iustices
of
Gaole
delivery
in
London
,
before
whom
the
Principal
was
tryed
,
&c.
who
thereupon
certified
the
record
accordingly
,
&c.
Eliz.
cap.
1.
which
ordains
,
xx
l.
per
mensem
,
&c.
séems
to
intend
onely
conviction
by
verdict
;
because
that
being
a
penal
Law
shall
not
be
understood
by
equity
;
Yet
in
that
case
he
,
against
whom
any
judgement
is
given
,
either
upon
a
Nihil
dicit
,
or
upon
an
insufficient
plea
pleaded
,
and
demurrer
thereupon
,
is
convict
within
the
purview
of
the
same
Stat.
For
albeit
this
will
not
follow
,
Such
a
man
is
convict
,
therefore
he
is
also
attaint
,
and
judgement
is
given
against
him
;
Yet
this
is
a
good
consequence
,
Such
a
man
is
attainted
,
or
adjudged
,
ergò
,
he
is
convict
:
For
he
that
is
attainted
,
or
against
whom
judgement
is
given
,
is
convict
,
and
more
,
&c.
22.
in
houses
onely
;
yet
is
the
Writ
good
;
For
omne
majus
continet
in
se
minus
,
&c.
Pl.
Co.
86.
b.
3.
per
Hales
,
Partridges
case
.
Vide
suprà
12.
per
Hales
.
42
The
Statute
of
the
1
H.
5.
cap.
3.
recites
,
some
people
do
of
late
use
to
forge
divers
false
deeds
and
muniments
,
&c.
And
therefore
it
ordaines
,
that
the
party
so
grieved
,
may
have
his
suit
in
that
case
,
&c.
Here
,
that
Statute
speaks
of
false
déeds
,
&c.
in
the
plural
number
;
yet
if
a
man
forge
one
false
déed
onely
,
he
shall
incurre
the
penalty
of
that
Statute
:
So
likewise
the
Statute
of
5
R.
2.
cap.
7.
forbids
,
that
none
shall
make
entry
into
any
lands
or
tenements
,
except
in
case
,
where
entry
is
given
by
the
Law
;
Yet
if
one
enter
onely
into
one
tenement
,
he
shall
be
punished
;
notwithstanding
that
Statute
is
in
the
plural
number
;
for
the
plural
number
contains
in
it
the
singular
number
and
more
,
&c.
(
any
)
the
lesse
estate
shall
be
conteined
in
the
greater
:
So
also
the
Statute
of
23
H.
6.
Common
Pleas
by
Dyer
,
Weston
,
I.
S.
I.
N.
and
I.
D.
his
Executors
by
name
,
and
one
of
them
had
died
,
for
then
the
words
of
the
Will
had
not
béen
satisfied
,
which
in
such
case
giving
but
a
bare
power
must
be
thereby
observed
:
so
also
if
he
had
devised
it
to
be
sold
by
his
sons
in
law
(
being
thrée
)
and
one
dies
,
the
other
two
might
have
sold
it
,
but
not
if
there
had
béen
onely
two
,
and
one
die
,
or
refuse
before
sale
.
Vide
Rule
110.
21.
Isabel
Goodcheaps
case
,
49
E.
3.
60
Additio
probat
minoritatem
.
Monsieur
sans
queüe
,
and
Madame
sans
queüe
,
viz.
without
any
other
addition
or
title
:
But
if
there
be
in
France
any
occasion
of
naming
any
other
Lord
or
Lady
,
they
are
always
named
with
their
proper
and
peculiar
title
,
as
Monsieur
de
Longeville
,
Madame
de
Chevreuse
,
&c.
61
A
matter
of
higher
nature
determineth
a
matter
of
lower
nature
,
&
contrà
.
fait
.
Finch
22.
Co.
l.
6.
45.
a.
4.
Higgens
case
.
Vide
ib.
parl.
auth.
Common
Pleas
,
that
suit
in
the
higher
Court
,
which
is
purchased
hanging
the
suit
in
an
inferiour
Court
,
shall
not
abate
,
as
appears
in
7
H.
4
8.
&
3
H.
6.
15.
Vide
43
E.
3.
22.
&
7
H.
4.
44.
Briminghams
case
.
Kings
Bench
is
more
than
an
Eire
,
and
therefore
in
the
Term-time
no
Commissioners
of
Oyer
and
Terminer
,
or
of
Gaole
delivery
,
by
the
Common
Law
,
may
sit
in
the
same
County
,
where
the
Kings
Bench
sits
;
because
in
praesentia
majoris
,
cessat
potestas
minoris
:
And
with
this
accords
the
27
Assises
,
Pl.
1.
But
Carlisle
and
Inweng
,
the
two
Confederates
of
the
Lord
Sanchier
,
were
indicted
and
attainted
in
London
,
where
the
murther
was
committed
,
before
Iustices
of
Oyer
and
Terminer
,
in
the
Term-time
;
because
it
was
in
another
County
,
than
where
the
Kings
Bench
sate
.
Chiefe
Justice
of
England
within
the
Vierge
:
Howbeit
after
that
by
the
Statute
of
28
E.
1.
cap.
5.
the
Iustices
of
the
Kings
Bench
were
enjoyned
to
follow
the
Court
,
the
general
authority
of
that
Court
as
to
those
purposes
vanished
;
because
they
being
onely
the
Vicegerents
of
the
Chief
Justice
,
in
his
presence
their
authority
ought
to
cease
,
for
,
in
presentia
majoris
,
cessat
potestas
minoris
,
&c
,
Thomas
Wyat
being
seised
of
divers
Mannors
in
taile
,
Octabis
Mich.
but
the
writ
of
Exigent
was
returnable
Mense
,
62
The
more
worthy
thing
draweth
unto
it
things
of
lesse
worthinesse
.
(
eo
instante
)
without
any
other
reversal
,
the
attainder
is
utterly
avoided
as
it
fell
out
in
the
case
of
H.
7.
&c.
faelonum
,
&c.
yet
may
they
,
or
the
like
priviledges
be
had
obliquely
(
or
by
a
meane
)
by
prescription
;
For
a
County
Palatine
may
be
claimed
by
prescription
,
and
by
reason
thereof
to
have
bona
&
catalla
Proditorum
,
felonum
,
&c.
Confi●io
Comi●tus
at
the
Common
law
.
8
Before
the
Statute
of
7
R.
2.
cap.
10.
10
In
Law
there
are
thrée
kinds
of
rights
,
Jus
proprietatis
,
Jus
duplicatum
,
or
Droit
,
Droit
:
For
example
,
if
a
man
be
disseised
of
an
acre
of
land
,
the
Disseisée
hath
Jus
proprietatis
,
the
Disseisor
Jus
possessionis
,
and
if
the
Disseisée
release
to
the
Disseisor
,
he
then
hath
Jus
proprietatis
&
possessionis
:
And
regularly
it
holdeth
true
,
that
when
a
naked
right
to
land
is
released
to
one
,
Novel
Disseisin
,
or
in
a
writ
of
Entry
in
the
nature
of
an
Assise
;
Yet
shall
the
Disseisée
afterwards
recover
the
land
again
from
the
heire
in
a
writ
of
Entry
en
le
per
,
of
the
disseisin
made
unto
him
by
his
Father
,
or
otherwise
in
a
writ
of
Right
;
because
the
méer
right
of
the
land
did
still
remaine
in
the
Disseisée
,
&c.
Robert
Chesters
case
:
Howbeit
the
fée
continued
by
a
Proviso
in
the
same
Statute
.
63
Accessarium
Sequitur
Principale
.
Starre
Chamber
;
For
if
costs
and
damages
were
there
recovered
by
the
party
,
they
were
answered
before
the
Kings
fine
,
&c.
Vide
189.
41.
(
reversion
)
because
they
are
incident
unto
it
;
but
by
the
grant
of
the
rent
the
reversion
shall
not
passe
;
because
the
Incident
shall
passe
by
the
grant
of
the
Principal
,
but
not
the
Principal
by
the
grant
of
the
Incident
,
Accessarium
non
d●cit
,
sed
sequitur
suum
principale
.
tortious
,
A
multo
fortiori
the
Feoffée
,
who
cometh
to
his
estate
by
lawful
conveyance
,
shall
have
them
,
as
Incidents
;
And
where
the
entry
of
the
Disseisée
is
lawful
,
he
may
seise
the
Villein
regardant
,
or
present
to
the
Advowson
,
&c.
before
he
enter
into
the
Mannor
;
But
it
is
otherwise
where
his
entry
is
not
lawful
;
And
so
are
our
ancient
Authors
to
be
intended
,
and
a
point
much
controverted
in
our
books
to
be
resolved
.
Vide
Dyer
5
,
6.
9
If
the
reversion
of
Lessée
for
life
be
granted
,
Britton
,
Nul
ne
poit
clamar
droit
en
les
appurtenances
,
ne
en
les
accessories
,
que
nul
droit
ad
en
le
principal
:
And
also
that
of
Bracton
,
Item
,
excipi
potest
,
&c.
quàmvis
jus
habeat
in
tenemento
&
pertinentiis
,
primò
recuperare
debet
tenementum
,
ad
quod
pertinet
advocatio
,
&
tunc
postea
presentet
&
non
ante
,
&c.
Et
de
haec
materia
in
Rotulo
Sancti
.
Mich
3.
H.
3.
in
com
.
Norf.
de
Tho.
Bardolf
,
&c.
But
on
the
other
side
,
if
a
man
be
remitted
to
the
principal
,
he
shall
also
be
remitted
to
the
appendant
,
or
accessory
,
albeit
it
were
severed
by
the
Discontinuée
,
or
other
wrong-doer
:
And
therefore
if
there
be
Tenant
in
taile
of
a
Mannor
,
whereunto
an
Advowson
is
appendant
,
and
he
enfeoffeth
A.
of
the
Mannor
with
the
appurtenances
,
A.
re-enfeoffeth
the
Tenant
in
taile
,
saving
to
himself
the
Advowson
,
Tenant
in
taile
dieth
,
his
issue
being
remitted
to
the
Mannor
,
is
consequently
remitted
to
the
Advowson
,
although
at
that
time
it
was
severed
from
the
Mannor
:
Bona
&
Catalla
felonum
,
Anderson
&
Periam
sur
conference
ewe
ove
divers
auters
Iustices
,
25
Eliz.
in
Bakers
case
.
&
fugitivorum
,
or
utlagorum
,
fines
,
amerciamenta
,
&c.
within
such
a
Town
or
Mannor
;
In
this
case
he
cannot
devise
them
to
another
,
nor
leave
them
to
descend
for
a
third
part
,
according
to
the
Statutes
of
32
and
34
H.
8.
of
Wills
;
because
they
are
of
no
yearly
value
;
For
the
first
branch
of
the
34
H.
8.
ordains
,
that
the
hereditaments
devisable
by
those
Statutes
should
be
of
a
clear
yearly
value
,
&c.
And
therefore
those
Statutes
extend
not
to
such
kind
of
hereditaments
.
Neverthelesse
,
if
a
man
be
seised
of
a
Mannor
,
unto
which
a
Léet
,
or
Waife
and
Stray
,
or
any
other
hereditament
,
which
is
not
of
any
yearly
value
,
is
appendant
or
appurtenant
;
Here
,
by
the
devise
of
the
Mannor
with
the
appurtenances
,
they
shall
passe
as
incidents
to
the
Mannor
:
For
in
as
much
as
those
Statutes
by
expresse
words
enable
him
to
devise
the
Mannor
,
by
consequent
they
enable
him
to
devise
the
Mannor
with
all
incidents
and
appendants
unto
it
:
And
it
was
never
the
intention
and
meaning
of
the
makers
of
those
Statutes
,
that
when
the
Devisor
hath
power
to
devise
the
principal
,
he
shall
not
have
power
to
devise
that
which
is
incident
and
appendant
unto
it
,
but
that
the
Mannor
,
&c.
shall
be
dismembred
,
and
fractions
made
of
things
,
which
by
lawful
prescription
have
béen
united
and
annexed
together
,
&c.
Vide
Max.
25.
24
In
suits
in
the
Star
Chamber
(
before
the
repeal
of
that
Court
)
albeit
the
suit
was
for
the
King
,
(
Inclusivè
)
the
act
preserves
the
reversions
and
remainders
in
tail
of
the
Kings
grant
;
for
they
cannot
be
barred
,
but
when
the
estate
tail
,
upon
which
they
depend
,
is
barred
:
And
this
is
the
reason
,
that
when
Tenant
in
taile
is
in
of
another
estate
,
and
suffers
a
common
recovery
as
Tenant
,
this
shall
not
bar
any
reversion
or
remainder
;
because
it
barreth
not
the
estate
of
the
Tenant
in
taile
,
being
party
to
the
recovery
,
and
upon
whose
estate
such
reversion
or
remainder
depends
:
For
,
quod
non
valet
in
principali
,
in
accessoria
seu
consequenti
non
valebit
,
&
quod
non
valet
in
magis
propinquo
,
non
valebit
in
magis
remoto
.
de
tempore
E.
1.
tit
.
Mortdancester
,
46.
where
the
case
was
this
;
A.
was
indicted
of
felony
,
and
B.
of
of
the
receipt
of
A.
A.
eloigns
himselfe
,
and
is
out-lawed
,
B.
was
taken
,
and
put
himselfe
upon
inquest
,
and
was
found
guilty
,
and
was
thereupon
attainted
and
hanged
,
and
the
Lord
entred
as
in
his
escheat
:
After
which
time
A.
came
in
,
and
reversed
the
Out-lawry
,
and
pleaded
to
the
felony
,
and
was
found
not
guilty
,
wherey
he
was
acquit
;
Hereupon
the
heire
of
B.
brings
a
Mortdancester
against
the
Lord
by
escheat
,
and
therein
sheweth
all
this
matter
,
and
so
upon
a
Demurrer
it
was
awarded
,
that
the
heire
should
recover
seisin
of
the
land
;
For
if
B.
had
béen
living
,
he
should
have
gone
quit
by
the
acquital
of
A.
because
B.
could
not
be
a
receiver
of
a
Felon
,
when
A.
was
no
Felon
.
19.
29.
34
,
35.
P.
&
M.
cap.
4.
Alexander
Powlters
case
.
observing
that
by
the
Statute
of
25
H.
8.
cap.
3.
Clergy
was
taken
from
the
principal
offender
in
the
case
of
house-burning
,
&c.
and
not
from
any
accessary
,
have
provided
that
the
accessary
before
the
fact
(
in
that
and
other
cases
there
provided
for
)
shall
be
also
outed
of
his
Clergy
,
which
was
taken
to
be
a
good
interpretation
,
made
by
that
Parliament
of
all
the
Acts
which
concerned
that
matter
;
For
if
the
Principal
shall
have
his
Clergy
,
it
would
be
absurd
to
take
away
Clergy
from
the
accessary
;
because
if
the
Principal
hath
his
Clergy
before
judgement
,
the
accessary
shall
not
be
arraigned
.
Vide
suprà
19.
Darrein
presentment
,
because
the
Advowson
was
severed
from
the
acre
;
but
if
the
Advowson
were
appendant
to
the
acre
,
then
ought
the
Feme
to
recover
the
acre
,
before
she
can
present
to
the
Advowson
.
Common
Pleas
,
Common
Pleas
,
Kings
Bench
upon
false
verdict
given
in
the
Common
Pleas
,
if
the
record
be
removed
into
the
Kings
Bench
,
&c.
Kings
Bench
,
Common
Pleas
,
and
the
party
sued
an
Attaint
upon
that
record
in
the
Common
Pleas
;
For
the
record
is
the
principal
,
and
the
Attaint
thereupon
is
accessary
,
which
see
in
tit
.
Assise
,
8
E.
2.
Itinere
Canc.
Henry
Pigots
case
.
37
In
30
E.
3.
casu
ultimo
,
a
deed
of
feoffment
,
B.
R.
in
Sayes
case
.
45
Vide
Hob.
4.
Musgrave
against
Wharton
.
64
Things
accessary
are
of
the
nature
of
the
Principal
.
El.
Molins
.
Finch
,
23.
4
Tithe
is
not
payable
of
Oaks
usually
topped
and
lopped
(
though
it
be
every
seven
or
eight
years
)
for
the
branches
are
of
the
nature
of
the
principal
,
viz.
the
Oake
it selfe
,
for
which
no
tithe
is
to
be
paid
.
en
auter
droit
,
as
Executor
,
to
the
use
of
the
dead
,
it
shall
be
assets
in
his
hands
,
as
the
Villein
is
:
And
therefore
note
a
diversity
betwéen
the
quantity
of
the
estate
,
and
the
quality
of
it
;
for
in
this
and
the
lik
cases
,
the
Law
respecteth
not
the
quantity
of
the
estate
(
for
not
onely
Tenant
in
taile
and
Tenant
for
life
of
a
Villein
,
shall
have
the
perquisite
of
the
Villein
in
fée
,
but
Tenant
for
years
,
and
Tenant
at
will
also
shall
have
it
in
fée
)
but
it
principally
respecteth
the
quality
of
the
estate
;
For
in
what
right
the
Executor
hath
the
Villein
,
in
the
same
right
shall
he
have
the
perquisite
:
So
it
is
also
in
the
case
of
a
Bishop
,
that
hath
a
Villein
in
right
of
his
Church
;
Also
if
a
man
hath
a
Villein
in
right
of
his
wife
,
he
shall
have
the
perquisite
also
in
her
right
:
But
if
the
purchase
be
after
issue
had
,
then
the
Baron
shall
have
the
perquisite
to
him
and
his
heirs
;
because
by
the
issue
he
is
entitled
to
be
Tenant
by
the
Courtesie
in
his
own
right
,
&c.
Novel
disseisin
,
s.
viz.
to
the
one
ten
shillings
,
and
to
the
other
ten
shillings
,
yet
shall
they
have
the
rent
in
course
of
coparcenary
,
and
joyne
in
action
for
the
same
.
Vide
Dyer
308.
75.
Winters
case
.
Wiat
Weilds
case
.
21
A
man
is
seised
of
a
Messuage
and
forty
acres
of
land
,
I.
S.
and
his
wife
,
Et
assignatis
suis
,
&
cum
quolibet
,
&
qualibet
eorum
,
that
he
was
sole
seised
of
the
land
,
&c.
And
in
this
case
it
was
adjudged
,
that
the
action
would
not
lie
singly
for
the
Plaintiffs
onely
,
but
I.
S.
and
his
wife
ought
also
to
have
joyned
in
the
action
;
because
as
their
interests
in
the
land
was
joynt
,
so
also
was
the
Covenant
;
And
therefore
these
words
,
cum
quolibet
&
qualibet
eorum
,
were
void
,
and
signified
nothing
:
It
is
otherwise
,
when
the
interests
are
several
;
for
then
the
covenants
,
which
have
relation
thereunto
,
are
also
several
;
As
if
a
man
demise
Black
acre
to
A.
White
acre
to
B.
and
Gréen
acre
to
C.
and
covenant
with
them
,
&
quolibet
eorum
,
that
he
is
right
owner
of
them
,
&c.
Here
,
in
respect
of
the
several
interests
,
by
these
words
(
&
quolibet
eorum
)
the
Covenant
is
made
several
;
whereas
if
he
had
demised
those
acres
unto
them
joyntly
,
the
Covenant
had
béen
joint
in
respect
of
their
joint
interest
,
&c.
23
A
Lord
of
a
Léet
cannot
distrain
for
the
certainty
,
Co.
l.
47.
b.
&
192.
b.
Co.
Inst.
pars
1.
47.
b.
per
amy
&
per
tout
)
and
by
consequent
the
reversion
,
which
is
dependant
and
expectant
upon
such
an
estate
,
is
intire
also
,
&c.
de
facto
charged
,
and
so
became
debtor
,
and
by
the
feoffment
,
surrender
,
or
descent
,
the
land
was
also
discharged
;
because
a
discharge
of
part
of
a
thing
in
execution
is
a
discharge
of
all
,
be
it
by
act
of
the
party
,
or
by
act
of
Law
;
for
the
duty
being
personal
and
intire
,
the
execution
(
as
accessary
thereunto
)
is
intire
also
,
&c.
Dum
fuit
infrà
aetatem
,
because
that
follows
the
nature
of
their
several
persons
,
which
(
in
that
case
)
are
the
principals
,
for
the
nonage
of
the
one
is
not
the
nonage
of
the
other
,
&c.
per
Fitz-herbert
.
65
A
mans
own
words
are
void
,
when
the
Law
speaketh
as
much
,
or
otherwise
.
Vide
M.
41.
6
,
7
,
9.
On
the
part
of
his
Mother
are
void
:
So
if
lands
are
given
to
a
man
,
and
to
his
heirs
male
,
the
law
rejecteth
this
word
,
Male
;
because
there
is
no
such
kind
of
inheritance
,
&c.
Ejectione
Firmae
,
betwéen
John
Cooper
Plaintiff
,
and
Thomas
Franklin
,
and
others
Defendants
.
P.
14.
Ja.
in
B.
R.
cum
plur.
ab
author
.
the
remainder
to
his
own
right
heirs
,
this
remainder
is
void
,
and
he
hath
the
reversion
in
him
;
For
the
Ancestor
during
his
life
,
beareth
in
his
bodie
(
in
judgement
of
Law
)
all
his
heirs
;
and
therefore
it
is
truly
said
,
that
Haeres
est
pars
antecessoris
:
And
this
also
appeareth
in
a
common
case
;
for
if
land
be
given
to
a
man
and
his
heirs
,
all
his
heirs
are
so
totally
in
him
,
as
he
may
give
the
land
to
whom
he
will
;
So
it
is
also
if
a
man
be
seised
of
lands
in
fée
,
and
by
Indenture
make
a
lease
for
life
,
the
remainder
to
the
heirs
male
of
his
own
body
,
this
is
a
void
remainder
;
for
the
Donor
cannot
make
his
own
right
heir
a
purchaser
of
an
estate
taile
without
departing
with
the
whole
estate
out
of
him
,
but
by
departing
with
the
whole
estate
he
may
;
As
if
a
man
make
a
feoffment
in
fée
to
the
use
of
himself
for
life
,
and
then
to
the
use
of
the
heirs
male
of
his
body
,
this
is
a
good
estate
taile
executed
in
himself
,
and
the
limitation
is
good
by
way
of
use
;
because
it
is
raised
out
of
the
estate
of
the
Feoffées
,
which
the
Feoffor
departed
with
,
&c.
(
to
the
heirs
of
the
Lessee
)
are
void
;
Salve
la
foy
,
que
se
doy
,
&c.
&
a
mes
autres
Seigniors
)
is
not
of
necessity
,
but
onely
added
for
explanation
sake
;
For
,
the
homage
is
referred
onely
to
the
Tenements
,
which
the
Tenant
holdeth
of
that
Lord
,
to
whom
he
doth
the
Homage
.
Et
uni
eorum
diutius
viventi
,
Uni
eorum
diutius
viventi
,
are
but
idle
words
;
because
(
without
them
)
the
Iointenant
by
course
of
Law
is
to
have
all
,
in
case
he
survive
.
Finch
24.
per
Anderson
.
8
Ass.
Pl.
33.
that
neither
of
them
should
break
the
joynture
,
but
that
the
Survivor
should
have
all
per
jus
accrescendi
,
added
this
clause
,
sub
hac
forma
,
quòd
illa
,
quae
illarum
diutius
vixerit
,
tenebit
terram
illam
integram
,
&c.
But
in
as
much
as
his
intent
was
contrary
to
Law
;
for
that
cause
,
if
the
joynture
were
severed
by
fine
levied
,
the
Survivor
shall
not
have
the
part
so
severed
,
by
reason
of
the
said
clause
,
which
he
did
insert
of
his
own
conceit
and
imagination
repugnant
to
law
and
reason
,
&c.
to
stand
to
,
abide
,
observe
,
&c.
the
rule
,
arbittement
,
&c.
yet
he
may
countermand
it
;
for
a
man
cannot
by
his
act
make
an
authority
,
power
,
or
warrant
to
be
uncountermandable
,
which
by
the
Law
,
and
of
its
own
nature
is
countermandable
;
As
if
I
make
a
letter
of
Attorney
to
make
Livery
,
or
to
sue
an
action
in
my
name
,
or
if
I
assigne
Auditors
to
take
an
accompt
,
or
make
a
Factor
,
or
submit
my selfe
to
an
arbitrement
,
albeit
these
are
made
by
words
expresly
irrevo●able
,
or
if
I
grant
,
or
am
bound
,
that
all
these
shall
stand
irrevocably
,
yet
they
may
be
revoked
:
So
if
I
make
my
testament
irrevocable
,
yet
may
I
revoke
it
;
for
my
act
or
my
words
cannot
alter
the
judgement
of
the
Law
,
and
make
that
irrevocable
,
which
of
his
own
nature
is
revocable
,
&c.
And
therefore
if
I
be
bound
by
obligation
to
stand
to
the
award
of
I.
S.
albeit
if
I
discharge
that
arbitrement
,
I
shall
forfeit
my
bond
;
Yet
is
my
submission
in
that
case
revocable
;
and
so
is
the
book
in
5
E.
4.
3.
b.
which
séems
to
be
contrary
in
that
point
,
well
reconciled
,
&c.
Qu.
Eliz.
&c.
puts
in
this
barre
,
that
the
City
of
London
is
an
ancient
City
,
and
that
within
it
,
time
out
of
mind
,
&c.
there
hath
béen
a
society
of
Haberdashers
,
and
that
within
the
said
City
there
was
a
custom
,
Quod
quaelibet
persona
de
societate
illa
,
usus
fuit
&
consuevit
emere
,
vendere
&
liberè
m●rchandizare
omnem
rem
&
omnes
res
Marchandizabiles
infra
hoc
regnum
Angliae
de
quocunque
vel
quibuscunque
personis
,
&c.
and
pleaded
farther
,
that
he
was
Civis
&
liber
homo
de
civitate
&
societate
illa
,
and
that
he
sold
playing
Cards
,
&c.
as
was
lawful
for
him
to
do
,
&c.
But
the
Justices
gave
no
regard
to
this
Barre
,
because
it
was
no
more
than
what
the
Common
Law
would
have
said
,
and
then
no
such
particular
custome
ought
to
have
béen
alleaged
;
For
,
in
his
,
quae
de
jure
communi
omnibus
conceduntur
,
Consuetudo
alicujus
patriae
vel
loci
non
est
alleganda
,
and
with
this
accords
8
E.
4
,
5.
&c.
per
Baldwin
and
Fitzherbert
,
the
Lessée
may
take
Hedg-boot
without
assignment
.
Tamen
quaere
,
for
Shelley
is
of
another
opinion
,
because
Cujus
est
dare
ejus
est
disponere
,
&
Modus
&
conventio
vincunt
legem
,
and
the
Lessée
also
séems
to
be
bound
by
the
acceptance
of
the
lease
upon
those
termes
,
Ideo
quaere
.
Howbeit
,
if
I
let
to
one
two
acres
of
Meadow
,
and
that
it
shall
be
lawful
for
the
Lessée
to
cut
the
grasse
by
the
assignment
of
the
Lessor
;
yet
the
Lessée
may
cut
the
grasse
without
my
assignment
.
Burrough
English
since
the
Statute
of
27
H.
8.
makes
a
feoffment
in
fée
to
the
use
of
himself
,
Secundum
cursum
communis
legis
,
and
after
dies
seised
accordingly
,
having
issue
two
sons
;
In
this
case
,
the
youngest
sonne
shall
have
the
land
,
notwithstanding
the
words
before
.
Vide
26
H.
8.
5.
Daniel
Norton
and
Simmes
.
25
If
a
Sheriff
will
make
an
Vnder-sheriff
,
66
Expressio
eorum
,
quae
tacitè
insunt
nihil
operatur
.
Queen
Eliz.
le
ts
for
years
rendring
rent
,
(
growing
and
being
)
are
words
of
abundance
;
because
without
them
the
Law
will
imply
as
much
;
for
by
the
demise
of
wood
and
underwood
upon
the
Mannor
,
it
is
implied
,
that
they
are
growing
;
And
therefore
to
demise
all
the
wood
upon
the
Mannor
,
and
all
the
wood
growing
upon
the
Mannor
,
is
all
one
,
&c.
B.
if
it
shall
become
void
during
the
said
terme
,
&c.
and
dies
intestate
,
his
Administrator
surrenders
the
Rectory
to
him
in
rev●●sion
,
and
then
before
the
expiration
of
the
said
15
years
the
Vicarge
becomes
void
:
In
this
case
,
notwithstanding
the
said
surrend●
,
B.
shall
have
the
next
avoydance
;
because
the
limitation
abovesaid
,
if
it
shall
become
void
,
&c.
imports
no
more
,
than
what
the
Law
would
have
said
if
it
had
béen
omitted
;
For
if
Tenant
for
years
grants
the
next
avoydance
,
the
Law
will
imply
such
a
limitation
,
if
the
Church
shall
become
void
during
the
terme
;
And
therefore
,
Expressio
eorum
quae
tacitè
insunt
nihil
operatur
.
Eliz.
cap.
1.
it
is
provided
,
That
every
person
that
shall
say
or
sing
Masse
,
&c.
shall
forfeit
the
summe
of
200
marks
,
and
that
he
,
which
willingly
hears
Masse
,
shall
forfeit
100
marks
,
&c.
without
limiting
to
whom
the
forfeitures
shall
accrue
;
and
then
follows
the
clause
of
forfeiting
xx
l.
a
moneth
to
the
Queen
,
and
after
10
l.
a
moneth
for
kéeping
a
Schoolmaster
,
&c.
after
which
follows
the
clause
of
the
distribution
of
the
forfeitures
,
viz.
That
all
forfeitures
of
any
summes
of
money
limited
by
that
Act
shall
be
divided
into
three
equal
parts
,
&c.
And
in
Doctor
Fosters
case
in
the
11
Report
,
it
was
objected
,
that
this
last
clause
of
distribution
did
onely
extend
to
the
said
forfeitures
of
200
and
100
Marks
,
&c.
which
were
not
given
to
any
person
in
certain
,
but
indefinitely
and
generally
,
that
they
should
be
forfeit
,
without
naming
to
whom
;
and
therefore
the
said
clause
of
distribution
did
onely
referre
to
them
;
but
the
xx
l.
per
mensem
,
for
Recusancy
was
expresly
given
to
the
Qu:
and
so
was
not
any
of
the
other
forfeitures
;
And
therefore
that
clause
of
distribution
shall
not
extend
unto
that
,
which
was
before
given
to
the
Quéen
,
but
unto
those
penalties
onely
,
which
were
left
indefinitely
,
and
given
to
none
:
Howbeit
it
was
answered
,
and
resolved
,
that
the
said
branch
of
distribution
shall
extend
as
well
to
the
clause
of
the
penalty
for
Recusancy
,
as
to
the
clause
of
saying
or
hearing
Masse
;
because
it
is
all
one
to
say
,
he
shall
forfeit
(
generally
)
or
he
shall
forfeit
to
the
Queen
;
for
the
Quéen
shall
have
them
in
both
these
cases
,
and
Expressio
eorum
,
quae
tacitè
insunt
nihil
operatur
.
67
Parte
quacunque
integrante
sublata
,
tollitur
totum
.
Right
of
bloud
in
that
case
makes
the
female
exclude
the
male
,
according
to
the
Maxime
,
Possessio
fratris
facit
sororem
esse
haeredem
:
And
that
of
Aristotle
,
libro
topicorum
,
parte
quacunque
integrante
sublatur
,
tollitur
totum
;
quod
verum
est
,
si
accipias
partem
integrante
pro
parte
necessaria
,
seu
essentiali
;
As
in
the
case
abovesaid
the
bloud
of
the
father
and
the
mother
,
are
but
one
intire
inheritable
blood
,
and
both
of
them
are
necessary
and
essential
to
the
procreation
of
an
heir
;
And
therefore
,
Deficiente
uno
,
non
potest
esse
haeres
:
And
upon
this
reason
,
it
séems
to
Britton
,
cap.
5.
If
a
man
be
attainted
of
felony
by
judgement
,
that
the
heirs
begotten
after
the
attainder
are
excluded
from
all
manner
of
succession
of
heritage
,
as
well
on
the
part
of
the
mother
,
as
on
the
part
of
the
father
;
&
the
reason
thereof
is
,
because
the
son
begotten
after
the
judgement
had
not
two
inheritable
blouds
in
him
;
For
,
at
the
time
of
his
generation
the
bloud
of
the
father
was
corrupt
;
and
then
,
Ex
leproso
parente
,
leprosus
generatur
filius
:
And
when
the
father
is
attainted
of
Felony
,
the
bloud
on
his
part
being
corrupted
,
the
sonne
(
as
it
séems
to
him
)
hath
but
halfe
the
inheritable
blood
in
him
without
corruption
,
viz.
the
bloud
of
the
mother
,
and
therefore
he
holds
,
that
such
a
sonne
shall
not
be
inheritable
,
no
not
to
his
mother
:
And
with
this
agrées
Bracton
,
lib.
3.
cap.
13.
Non
valebit
felonis
generatio
,
nec
ad
hereditatem
paternam
,
vel
maternam
;
Si
autem
ante
feloniam
generationem
fecerit
,
talis
generatio
succedit
in
haereditatem
patris
,
vel
matris
,
,
a
quò
non
fuerit
felonia
perpetrata
;
because
at
the
time
of
his
birth
he
had
two
lawful
blouds
commixed
in
him
,
which
could
not
be
corrupted
by
the
attainder
subsequent
,
but
onely
as
to
him
that
offended
.
See
more
of
this
matter
.
Co.
Inst.
pars
1.
8.
a.
de
integro
judicio
,
viz.
When
all
the
matter
within
the
original
is
determined
,
as
in
34
H.
6.
18.
in
Humphrey
Bohuns
case
in
a
Quare
Impedit
brought
against
two
,
the
one
pleads
to
issue
,
and
the
other
confesseth
the
action
,
upon
which
confession
,
judgement
is
given
,
and
he
against
whom
the
judgment
was
given
,
sues
his
waie
of
Error
to
remove
the
record
into
the
Kings
Bench
,
but
Prisot
and
the
whole
Court
denied
it
;
because
the
writ
of
Error
was
to
rehearse
all
those
which
were
parties
to
the
original
writ
,
and
then
the
writ
saith
,
Et
si
judicium
inde
redditum
sit
,
tunc
Recordarium
illud
habeatis
,
&c.
By
which
it
appears
,
that
the
record
shall
not
be
removed
by
writ
of
Error
,
before
the
whole
matter
be
determined
.
The
Lord
Cromwels
case
against
Cawary
and
others
,
per
Prisot
,
tempore
H.
6.
Kings
Bench
;
but
the
Court
would
not
grant
it
,
before
the
whole
matter
in
demand
should
be
determined
;
for
the
Iustices
of
the
Kings
Bench
should
procéed
without
warrant
,
if
they
should
procéed
upon
a
matter
which
is
not
determined
,
and
whereupon
no
judgement
is
given
,
and
the
whole
record
ought
to
be
either
in
the
Common
Pleas
,
or
in
the
Kings
Bench
,
also
the
original
is
inti●●
,
and
cannot
be
here
and
there
too
,
&c.
Qu●●e
Impedit
.
the
one
dies
,
this
shall
cause
the
writ
to
abate
.
B.
C.
and
D.
B.
pleads
not
guilty
,
whereupon
issue
was
joyned
:
C.
and
D.
make
a
justification
,
Nolle
prosequi
against
the
Defendant
C.
and
D.
whereupon
Error
was
brought
by
all
the
Defendants
against
the
Plaintiff
;
and
the
Error
assigned
was
,
for
that
the
Nolle
prosequi
had
discharged
all
the
Defendants
;
but
it
was
held
,
that
the
Nolle
prosequi
against
C.
and
D.
had
not
discharged
B.
and
so
no
error
,
neither
yet
should
C.
and
D.
have
joyned
in
this
writ
of
Error
,
because
there
was
no
judgement
against
them
,
nor
they
grieved
,
and
the
writ
of
Error
is
,
Ad
grave
da●●um
,
&c.
68
Ex
tota
materia
emergat
Resolutio
.
And
that
it
shall
be
lawful
for
any
person
.
&c.
to
whom
the
said
Inheritance
,
&c.
shall
appertain
,
to
enter
,
&c.
doth
cléerly
expound
the
generality
of
the
words
of
the
precedent
branch
;
And
therefore
the
sense
of
both
together
is
,
that
they
shall
be
void
and
of
none
effect
,
by
the
entry
of
him
,
unto
whom
the
interest
,
title
or
inheritance
after
the
decease
of
the
Feme
doth
appertain
;
Howbeit
they
shall
not
be
void
,
but
stand
in
force
betwéen
the
parties
themselves
,
and
against
all
others
,
save
onely
against
such
as
have
title
,
&c.
and
they
onely
have
power
to
make
them
void
and
of
none
effect
by
their
entry
,
as
aforesaid
;
For
,
estates
of
Franktenement
or
Inheritance
cannot
be
defeated
without
entry
,
and
therefore
by
entry
they
ought
to
be
made
void
.
to
the
use
of
Aden
,
and
of
the
heirs
male
of
the
said
Aden
lawfully
begotten
,
and
for
default
of
such
issue
,
to
the
use
of
divers
others
in
remainder
,
&c.
Here
,
albeit
there
wants
the
words
(
of
the
bodie
)
yet
is
this
a
good
limitation
of
an
estate
taile
;
For
,
otherwise
it
would
be
against
the
intent
of
the
Donor
,
and
all
the
remainders
over
would
be
void
;
and
if
these
words
should
be
turned
into
Latine
,
they
ought
to
be
rendred
thus
,
Et
haeredum
masculorum
de
praefato
Adeno
legitimè
procreat
.
and
not
haeredum
masculorum
praefati
Adeni
,
which
is
cléerly
proved
by
the
subsequent
clause
,
and
for
default
of
such
issue
,
&c.
For
issue
cannot
be
of
Aden
,
unlesse
the
words
should
be
,
De
dicto
Adeno
,
and
so
in
this
case
the
one
clause
is
well
expounded
by
the
other
,
&c.
damage
fesant
,
I.
S.
being
thereof
seised
in
fée
by
his
last
Will
,
devised
them
unto
him
for
sixty
years
,
if
he
should
so
long
live
,
&c.
Vnto
which
the
Defendant
pleads
,
that
it
was
true
,
there
was
such
a
devise
made
,
but
after
the
said
devise
I.
S.
enfeoffed
certaine
persons
thereof
to
the
use
of
the
Plaintiff
for
sixty
years
,
if
hee
should
so
long
live
,
&c.
whereupon
the
Plaintiff
demurs
:
And
in
this
case
it
was
resolved
,
that
although
it
appeared
,
that
the
title
,
by
which
the
Plaintiff
claimed
in
his
barre
to
the
Avowry
,
was
utterly
destroyed
(
for
the
Plaintiff
claims
by
the
Will
of
I.
S.
which
Will
appears
to
be
afterwards
countermanded
by
the
feoffment
,
which
the
Avowant
afterwards
pleads
,
and
which
the
Plaintiff
confesseth
by
his
demurrer
)
yet
shall
the
Plaintiff
have
judgement
,
because
his
Count
is
good
,
and
the
Avowant
in
his
replication
to
the
barre
of
his
Avowry
,
hath
done
two
things
;
For
first
,
he
hath
destroyed
the
title
,
which
the
Plaintiff
made
by
the
Will
;
And
again
,
he
hath
given
to
the
Plaintiff
another
title
,
viz.
to
have
the
land
for
60
years
by
force
of
the
uses
declared
upon
the
feoffment
;
And
therefore
in
as
much
as
upon
the
whole
record
(
according
to
which
the
Count
ought
to
judge
)
it
plainly
appears
,
that
the
Plaintiff
hath
a
lawful
terme
in
the
Lands
,
and
that
the
Defendant
had
taken
his
Cattel
wrongfully
,
for
that
cause
judgement
was
given
against
the
Avowant
,
and
for
the
Plaintiff
,
albeit
the
title
,
which
the
Plaintiff
made
for
himself
,
was
destroyed
,
&c.
Bone
cas
,
&
nota
ibidem
dictum
Choke
;
Vide
18
E.
3.
34.
b.
44
E.
3.
7.
a.
12
E.
4.
6.
6
H.
7.
10.
17
H.
7.
3.
11
H.
4.
24
,
&c.
But
when
the
Plaintiff
makes
replication
,
sur-rejoynder
,
&c.
and
thereby
it
appears
,
that
upon
the
whole
record
the
Plaintiff
had
no
cause
of
action
,
he
shall
never
have
judgement
,
albeit
the
barre
,
rejoynder
,
&c.
be
insufficient
in
matter
;
for
the
Court
ought
to
make
judgement
upon
the
whole
record
,
and
every
one
shall
be
intended
to
make
the
best
of
his
own
case
:
Vide
Riegeways
case
in
the
third
Report
,
52.
And
these
diversities
were
also
resolved
and
adjudged
between
Kendal
and
Helier
M.
25
,
&
26
Eliz.
in
B.
R.
and
M.
29
,
&
30.
in
the
same
Court
between
Gallis
and
Burbry
.
A.
doth
acknowledge
himselfe
satisfied
and
discharged
of
all
bonds
,
debts
,
&c.
made
by
B.
(
the
Defendant
)
and
it
is
agreed
,
that
A.
shall
deliver
all
such
bonds
as
he
hath
yet
undelivered
unto
B.
except
one
bond
of
40
l.
not
yet
due
,
wherein
B.
and
C.
stand
bound
to
A.
&c.
The
Plaintiff
replies
,
that
the
obligation
excepted
,
and
the
obligation
in
Curia
prolata
are
one
and
the
same
,
whereupon
the
Defendant
demurres
:
And
in
this
case
it
was
resolved
,
that
the
exception
extended
to
all
the
premisses
;
because
all
the
words
before
make
but
one
intire
sentence
,
and
the
one
depends
upon
the
other
;
For
it
is
reason
,
that
when
Bonds
are
satisfied
,
that
they
should
be
delivered
;
and
exceptio
semper
ultimò
ponenda
est
;
It
was
also
reason
,
that
this
bond
of
40
l.
should
be
excepted
,
because
it
was
not
due
when
the
release
was
made
,
&c.
Chester
Mills
case
.
10
Always
such
construction
ought
to
be
made
of
an
Act
af
Parliament
,
that
one
part
thereof
may
agrée
with
the
rest
,
Richard
Godfreys
case
.
11
The
Iustices
shall
assesse
the
Fines
of
Copiholders
upon
the
due
consideration
of
all
circumstances
,
in
Communi
Banco
Inter
Stallon
Plaintiff
,
and
Brady
Defendant
,
P.
9.
Jac.
1845.
Rot.
H.
(
viz.
he
against
whom
the
recovery
was
had
)
for
life
,
Seniori
puero
de
corpore
H.
in
taile
,
&c.
Afterwards
H.
covenants
by
an
English
Indenture
to
levy
a
fine
to
the
use
aforesaid
,
wherein
the
use
was
limited
to
the
use
of
the
eldest
child
of
the
bodie
of
H.
&c.
H.
hath
issue
two
children
,
whereof
the
elder
was
a
daughter
,
and
the
younger
a
sonne
;
And
in
this
case
,
it
was
adjudged
,
that
the
daughter
should
have
the
land
;
for
albeit
the
word
puero
be
indifferent
to
each
sex
;
and
then
the
Male
for
dignity
should
be
preferred
,
yet
because
the
English
indenture
hath
declared
the
construction
to
be
the
eldest
child
,
the
daughter
shall
have
it
.
West
Bodwin
ought
to
have
come
to
E.
6.
69
Partes
simul
sumptae
componunt
totum
:
&
Totum
comprehendit
suas
partes
.
Nient
dedire
of
his
Predecessor
:
where
he
hath
not
prayed
in
aide
of
the
Patron
and
Ordinary
;
but
if
he
pray
in
aide
of
the
Patron
and
Ordinary
,
and
they
joyne
in
aid
,
and
render
the
land
or
do
not
gainsay
the
Demandants
action
;
in
that
case
,
the
Successor
shall
not
have
a
Juris
Utrum
,
because
the
intire
estate
was
in
them
thrée
,
and
they
altogether
had
power
by
Law
to
dispose
of
it
.
W.
B.
&
L.
B.
omnia
&
omnimoda
Utlag
.
versus
praef.
W.
&
L.
vel
versus
eorum
alterum
promulgat
,
&c.
And
exception
was
taken
by
the
Kings
Council
,
because
the
words
of
pardon
were
joynt
,
whereas
they
should
have
béen
Pardonavimus
,
&c.
W.
B.
&
L.
B.
&
eorum
alteri
,
&c.
because
each
felony
was
several
,
and
the
several
contumacies
should
have
had
several
pardons
;
but
the
pardon
was
allowed
,
because
(
as
it
séems
)
it
comprehended
all
that
both
or
either
of
them
were
guilty
of
.
And
such
another
pardon
was
also
allowed
in
22
E.
4.
Term.
Rot.
19.
but
the
book
is
mis-reported
,
and
contrary
to
the
record
.
7
Vide
suprà
27.
9.
70
Intire
things
cannot
be
severed
.
Et
de
tertia
parte
exituum
provenientiam
de
custodia
Gaolae
Abathiae
Westm.
Of
the
third
part
of
the
profits
of
Courts
,
Fines
,
Heriots
,
&c.
Of
the
third
presentation
to
an
Addowson
,
&c.
Edward
Althums
case
,
and
l.
10.
12●
.
in
Cluns
case
.
2
If
a
man
demise
lands
for
years
reserving
rent
,
F.
N.
B.
130.
h.
&
131.
a.
Vide
Bruertons
case
,
Co.
l.
6.
1.
9
A.
hath
a
Common
of
pasture
certain
(
as
for
ten
beasts
)
in
forty
acres
of
land
,
and
twenty
of
those
acres
descend
unto
him
;
in
that
case
,
sans
number
;
for
that
being
intire
and
uncertain
,
cannot
be
apportioned
but
shall
still
remain
:
So
it
is
also
of
common
of
Estovers
,
Turbary
,
Piscary
,
&c.
Vide
infrà
,
r.
114.
c.
45.
Consuetudo
vincit
communem
legem
.
16
If
a
man
be
seised
of
two
acres
of
land
in
two
several
Counties
,
7
R.
2.
West
.
2.
cap.
21.
and
the
form
and
manner
of
that
writ
is
therein
prescribed
;
for
which
cause
it
is
holden
in
our
books
,
that
in
that
case
a
Cessavit
lay
not
at
the
Common
Law
,
&c.
sans
number
,
and
the
like
,
cannot
be
divided
betwéen
Coparceners
and
the
two
last
,
not
onely
because
they
are
intire
,
but
also
because
it
would
be
a
charge
to
the
Tenant
of
the
Soile
,
if
such
hereditaments
should
be
devisible
,
the
interest
in
them
being
unlimited
,
&c.
detinue
of
Charters
,
and
albeit
the
one
be
non-suit
,
yet
the
other
shall
recover
.
Ejectione
Firmae
,
Ejectment
of
Ward
,
Quare
ejecit
infrà
terminum
,
&c.
32
H.
8.
cap.
34.
Novel
disseisin
,
a
writ
of
Annuity
,
Quare
Impedit
,
&c.
de
facto
any
parcel
of
any
of
the
services
to
the
Grantee
,
this
is
a
good
attornment
for
all
the
services
;
although
the
Intent
of
the
Tenant
was
to
attorne
but
for
that
parcell
,
onely
:
because
,
albeit
there
be
divers
manners
of
services
,
which
the
Tenant
ought
to
performe
,
yet
is
the
Signiory
intire
,
and
the
Tenant
having
attorned
for
part
,
it
cannot
be
void
for
that
part
,
and
good
it
cannot
be
,
unlesse
it
be
for
the
whole
,
&c.
Neither
can
the
Tenant
attorne
for
a
time
,
or
upon
Condition
,
&c.
per
my
&
per
tout
,
as
well
as
the
donor
,
&c.
27
H.
8.
Per
Walmasly
.
and
to
the
use
of
B.
and
his
heires
every
Tuesday
,
and
to
the
use
of
C.
and
his
heires
every
Wednesday
,
these
limitations
are
void
;
For
wée
finde
no
such
fractions
of
estates
in
the
Law
,
Rowl
.
Haywards
case
.
part
in
lease
upon
Rent
reserved
,
and
part
in
Copihold
,
and
by
Indenture
in
consideration
of
money
,
&c.
demiseth
,
granteth
,
bargaineth
,
selleth
,
&c.
unto
A.
B.
and
C.
the
said
Mannor
with
the
Appurtenances
,
and
the
reversions
and
remainders
thereof
,
&c.
together
with
all
rents
reserved
upon
any
demise
,
&c.
to
have
and
to
hold
to
them
and
to
their
Assignes
immediately
after
the
decease
of
the
owner
of
the
Mannor
,
for
the
terme
of
seventéen
yeares
;
In
this
case
,
the
grant
ought
to
take
effect
intirely
,
as
a
demise
at
the
Common
Law
,
or
intirely
by
bargain
and
sale
,
by
raising
of
an
use
by
force
of
the
Statute
of
27
H.
8.
and
not
for
part
by
the
Common
Law
,
and
for
another
part
by
raising
of
an
use
;
for
thereby
the
Mannor
may
be
dismembred
,
which
is
against
the
expresse
demise
and
bargain
;
because
both
parties
agréed
,
that
a
Mannor
should
be
intirely
demised
and
bargained
,
and
also
that
a
Man
nor
should
be
accepted
by
the
Lessée
without
any
fraction
or
division
thereof
.
per
my
&
per
tout
)
the
reversion
,
which
is
dependant
and
expectant
,
upon
such
an
estate
is
intire
also
;
and
therefore
the
attornment
by
one
of
them
,
is
attornment
for
both
to
convey
the
whole
reversion
,
&c.
So
if
the
Lessor
disseise
his
two
,
Lessees
for
life
,
and
enfeoff
another
,
and
one
of
the
Lessées
re-enter
this
act
of
one
of
them
is
attornmenf
in
Law
for
both
:
If
one
Iointenant
give
seisin
of
Rent
,
that
shall
binde
his
companion
,
as
it
is
agréed
in
39
H.
6.
2.
If
a
lease
be
made
to
two
,
and
after
the
reversion
is
granted
to
one
of
them
,
this
is
holden
good
attornment
in
Law
for
both
(
Baldwin
28
H.
8.
Dyer
,
12.
b.
)
And
all
this
in
the
respect
of
the
intirenesse
of
their
estate
,
&c.
44
A.
having
an
office
and
power
to
make
Deputies
,
5
E.
6.
cap.
16.
The
bond
which
was
a
thing
intire
being
void
for
those
un-lawfull
Covenants
,
it
was
utterly
void
for
all
:
And
if
the
addition
of
a
Law-full
Covenant
should
make
the
bond
of
force
as
to
it
the
Satute
would
then
serve
to
little
or
no
purpose
,
&c.
C.
S.
the
seisin
of
the
wheate
is
the
seisin
of
the
Rent
,
whereupon
he
may
have
an
Assise
:
for
all
is
but
one
intire
reservation
,
&c.
47
A
possessed
of
an
house
,
whereunto
a
stable
was
adjoyning
,
25
l.
fine
to
be
afterwards
paid
,
demised
the
same
house
and
stable
to
B.
for
21
yeares
,
rendring
unto
A.
24
l.
per
annum
quarterly
,
and
also
5
l.
quarterly
at
the
same
feasts
,
untill
the
saide
25
l.
fine
should
be
paid
,
upon
condition
that
if
the
said
summe
of
25
l.
or
the
said
Rent
should
be
arreare
at
any
Feast
&c.
that
then
it
should
be
Lawfull
for
A.
to
re-enter
:
And
afterwards
and
before
any
day
of
payement
B.
re-demiseth
the
said
stable
unto
A.
for
10
yeares
,
who
entred
,
and
after
the
Rent
of
24
l.
per
annum
is
arreare
,
and
Lawfully
demanded
,
and
also
the
5
l.
parcell
of
the
summe
in
grosse
was
not
paid
:
In
this
case
,
the
whole
Condition
,
as
also
the
re-entry
of
A.
is
suspended
:
For
albeit
the
condition
stands
upon
two
parts
in
the
disjunctive
,
viz.
Either
for
the
payment
of
Rent
,
or
of
a
summe
in
grosse
(
which
was
collaterall
)
yet
in
as
much
as
B.
re-demised
part
of
the
demise
to
A.
(
viz.
the
stable
)
whereinto
A.
entred
,
and
the
Rent
was
hereby
suspended
,
and
hereupon
the
intire
condition
,
both
as
to
the
Collaterall
summe
as
also
to
the
said
Rent
,
was
likewise
suspended
:
because
although
the
condition
comprehend
two
severall
things
in
the
disjunctive
of
two
severall
natures
,
viz.
The
one
a
Rent
issuing
out
of
the
land
,
which
is
incident
to
the
reversion
,
and
may
be
suspended
by
the
inter-medling
with
the
land
:
the
other
matter
collateral
to
the
land
,
which
cannot
be
suspended
by
the
said
re-demise
:
yet
here
there
are
not
several
conditions
,
but
one
intire
condition
,
which
referres
to
two
several
branches
:
and
therefore
being
suspended
in
part
it
is
suspended
in
all
:
And
that
the
condition
was
intire
,
it
appeares
by
the
Conclusion
thereof
,
viz.
that
for
the
non-payment
of
the
one
or
of
the
other
,
it
should
be
Lawfull
for
the
Lessor
to
re-enter
into
all
the
land
:
so
that
it
is
but
one
intire
Condition
and
one
intire
entry
,
which
is
not
by
the
Acts
of
the
Parties
to
be
apportioned
or
divided
&c.
The
like
case
was
adjudged
p.
27
El.
Rot.
185.
inter
Brightman
and
Somerford
.
48
A
,
and
B.
Bargaine
together
,
Pecke
2.
&
3.
P.
&
M.
Dier.
113.
T.
28.
E.
Rot.
256.
in
the
Co.
Pl.
Likewise
if
the
Lessor
Licence
the
Lessée
to
alien
part
of
the
Land
,
he
may
alien
the
rest
or
any
part
thereof
without
Licence
;
because
a
Condition
cannot
be
divided
,
or
apportioned
by
the
Act
of
the
Parties
,
as
it
was
holden
by
Popham
Cl.
Instit
.
against
the
opinion
in
Dier.
16
E.
334.
A.
B.
and
C.
rendring
per
annum
.
for
A.
6.
l.
for
B.
5
l.
and
for
C.
10
l.
to
be
paid
at
a
place
out
of
the
Land
,
(
P.
14
E.
Rot.
1015
)
that
he
could
not
enter
for
the
condition
broken
;
because
the
Condition
being
intire
cannot
be
apportioned
by
the
Act
of
the
Parties
,
but
,
by
the
severance
of
part
of
the
reversion
,
was
utterly
destroyed
,
&c.
13
E.
4.
3.
f.
&
.
42.
Ass.
pl.
22.
in
the
Earle
of
Pembrooks
Case
.
C.
C.
exchanges
the
said
Mannor
of
Dale
with
B.
for
the
Mannor
of
Sale
,
the
Baron
dies
,
the
Feme
enters
into
the
Mannor
of
Dale
;
In
this
case
B.
may
re-enter
into
the
Mannor
of
Sale
;
for
as
when
the
whole
Estate
in
part
is
evicted
,
all
the
exchange
is
defe●ted
,
so
here
,
when
the
Estate
of
the
Frank-tenant
for
the
life
of
the
Feme
,
which
is
but
parcell
of
the
Estate
,
is
evicted
in
all
the
Land
,
or
in
part
,
the
whole
exchange
is
thereby
defeated
,
by
reason
of
the
condition
in
Law
annexed
unto
it
;
for
albeit
a
reversion
expectant
upon
an
Estate
for
life
may
be
given
in
exchange
for
Land
in
possession
,
yet
when
C.
was
seised
of
the
Mannor
of
Dale
in
his
Demesne
as
of
Fée
,
and
gives
that
in
possession
unto
B.
in
exchange
,
as
afore-said
,
after
that
the
Feme
enters
and
evicts
the
Estate
for
life
,
&c.
B.
may
re-enter
into
the
whole
Mannor
of
Sale
,
which
was
so
given
in
exchange
;
because
the
Condition
in
Law
(
annexed
to
the
exchange
)
being
broken
for
part
of
the
Estate
,
is
defeated
for
all
;
&c.
So
likewise
if
he
in
the
reversion
in
Fée
disseiseth
his
Lessée
for
life
,
and
then
gives
that
Land
in
exchange
to
another
for
other
Land
,
and
after
the
Lessée
for
life
enters
;
In
that
case
also
the
other
may
re-enter
into
his
Land
again
,
and
hereby
defeat
the
whole
exchange
;
because
the
implied
Condition
is
in
his
nature
un-severable
and
intire
.
53
A
Lets
to
B.
the
Manor
of
Dale
for
30
yeares
,
in
esse
,
because
that
would
make
fractions
,
of
the
term
,
which
is
in
its
nature
intire
:
Neither
can
he
,
that
hath
a
lease
for
20
yeares
surrender
the
last
ten
yeares
by
any
expresse
surrender
,
saving
unto
him
the
first
ten
yeares
,
&c.
4
l.
Rent
per
annum
the
other
for
20
s.
per
annum
,
with
proviso
,
that
if
the
said
Rent
of
5.
l.
be
behind
in
part
or
in
all
,
then
the
Lessor
shall
re-enter
;
these
Houses
afterwards
escheate
to
the
King
,
who
after
grants
that
,
upon
which
the
●0
.
s
per
annum
is
reserved
,
to
I.
S.
the
Rent
thereof
is
arreare
;
In
this
case
,
the
Patentée
cannot
enter
for
the
Condition
broken
;
because
albeit
the
Rents
were
severall
,
yet
the
Condition
was
intire
by
the
expresse
reservation
,
and
gives
in
intire
re-entry
into
all
for
default
of
payment
of
any
part
of
the
Rent
;
and
therefore
by
the
severance
of
any
part
of
the
reversion
all
the
condition
(
as
to
all
common
persons
)
is
destroyed
;
Howbeit
the
whole
condition
remaines
intirely
in
the
King
with
the
reversion
of
the
other
House
,
and
that
is
in
respect
of
his
prerogative
,
&c.
ejectione
firme
,
Henry
Constables
Case
.
Manerii
de
B.
infrà
fluxum
&
refluxum
maris
,
and
another
parcell
were
floting
super
aquas
maris
refluent
.
ex
arenis
ejusdem
Manerii
infrà
fluxum
,
&c.
The
Patentée
of
the
Mannor
and
Fée
of
Holdernesse
in
Com.
Ebor.
brings
an
Action
of
Trespasse
against
him
,
that
seised
them
to
the
use
of
the
Lord
Admiral
:
And
the
Iurie
assessed
damages
intirely
for
all
;
In
this
case
judgement
was
given
against
the
Plaintife
;
because
the
Goods
so
floting
upon
the
Waters
(
called
Flotsam
)
did
not
of
right
belong
to
him
,
but
to
the
Lord
Admiral
;
And
therefore
the
Verdict
being
intire
,
(
viz.
given
for
both
)
and
so
the
damages
of
the
wrecke
being
thereby
made
un-severable
from
those
of
the
Flotsam
,
the
Plaintife
could
take
nothing
by
his
wort
.
So
in
Trespasse
(
21
H.
7.
34.
b.
)
the
Defendant
justifies
for
part
,
and
Pleads
not
guilty
for
the
residue
,
the
Iury
inquire
of
one
of
the
things
,
and
tax
damages
intirely
;
here
,
the
whole
Court
(
against
Fineux
)
adjudged
it
not
good
,
22
E.
Dier.
369.
accord
.
M.
14
&
15
El.
in
Trespas
by
Pooly
for
his
Servant
beaten
and
his
Close
broken
,
and
said
not
,
per
quod
servitium
amisit
,
upon
non
culp
.
the
Iury
assessed
damages
intirely
,
and
it
was
adjudged
not
good
.
See
9
H.
7.
3.
M.
30
,
&
31
El.
inter
Moore
&
Bedle
in
Assumpsit
,
where
the
Plaintiff
layes
two
breaches
,
whereof
one
was
insufficient
,
upon
non
assumpsit
the
Iury
assessed
damages
intirely
;
And
in
this
case
there
were
two
resolutions
,
1
It
shall
be
intended
,
that
they
gave
damages
for
both
;
2
Because
the
Plaintifs
had
no
cause
for
one
of
the
allegations
,
Exchequer
Chamber
,
&c.
57
Concerning
intire
Services
,
per
tout
,
Co.
l.
6.
1.
and
John
Talbots
Case
in
the
8.
Rep.
fol.
108.
58
Warrantie
is
an
Intire
thing
,
which
will
not
suffer
partition
,
but
shall
always
either
intirely
remaine
,
or
be
intirely
annulled
;
de
partitione
facienda
,
by
force
of
the
Statute
of
31
H.
8.
cap.
1.
in
this
case
,
the
Warrantie
shall
remaine
to
each
of
them
intirely
;
because
upon
the
Kings
writ
they
are
compellable
by
the
Statute
(
unto
which
every
one
is
Partie
)
to
make
partition
,
and
so
the
Partie
persuing
his
remedie
according
to
the
Act
shall
not
receive
any
prejudice
by
the
operation
of
the
same
Act
,
unto
which
every
one
is
partie
:
but
if
they
had
made
partition
by
deed
,
by
consent
(
since
the
said
Act
,
)
albeit
they
were
compellable
by
writ
to
make
partition
,
yet
in
as
much
as
they
did
not
pursue
the
Statute
to
make
partition
by
writ
,
for
that
cause
such
partition
remaines
as
it
was
before
at
the
Common
Law
,
and
(
by
consequent
)
the
Warrantie
is
gone
,
(
as
it
was
agréed
,
in
29
El.
3.
tit
.
Garr
.
)
because
the
Warrantie
is
indivisible
,
and
cannot
be
parted
as
the
Land
may
.
L.
Loyde
and
L.
Loyde
,
in
38
,
&
39
El.
in
the
K.
B.
where
it
was
ruled
accordingly
in
terminis
terminantibus
,
and
that
no
Consultation
should
be
granted
for
any
part
,
untill
the
whole
matter
should
be
tried
in
the
same
Court
.
vide
Pl.
ibid.
&
5
E.
2.
Garr
.
78.
4
H.
7.
18.
b.
6
E.
3.
50.
11
H.
4.
20.
41
E.
3.
3.
10
H.
7.
13.
John
Talbots
Case
.
61
Divers
services
,
6.
Rep.
fol.
1.
So
likewise
homage
and
fealty
by
alienation
of
parcel
shall
intirely
multiply
:
because
when
the
Tenant
makes
homage
or
fealty
,
he
doth
them
for
all
the
tenements
,
which
he
holds
of
the
Lord
,
so
that
those
services
extend
to
the
intire
Tenancie
,
and
to
every
part
thereof
,
and
albeit
the
Lord
purchase
parcel
,
yet
the
homage
and
fealtie
do
still
remaine
for
the
residue
:
also
Knight-service
,
which
is
an
intire
service
to
be
performed
by
the
body
of
a
man
,
shall
be
multiplied
upon
alienation
of
parcel
,
and
albeit
the
Lord
purchase
parcel
,
yet
it
shall
not
be
extinct
,
but
shall
intirely
remaine
for
the
risidue
,
quia
par
bono
publico
,
&
defensione
regni
,
And
the
escuage
shall
be
apportioned
:
But
the
personal
service
to
be
Sewer
,
Carvex
,
Butler
,
&c.
or
when
the
Tenant
is
held
by
his
Tenure
ad
convivandum
Dominum
suum
&
Familiam
suam
semel
in
Anno
;
&
ad
equitandum
cum
Domino
suo
in
Comitatu
N.
sumptibus
suis
propriis
,
&c.
(
vide
10
E.
3.
23.
in
John
de
Bromptons
Case
)
by
alienation
of
parcel
shall
not
be
apportioned
,
or
multiplyed
,
for
such
services
,
which
are
for
the
private
Benefit
of
the
Lord
and
are
personal
:
to
be
done
by
one
man
,
shall
not
be
multiplied
:
Because
they
are
to
be
personally
performed
by
one
man
onely
,
and
multiplication
of
them
would
be
a
charge
and
prejudice
to
the
Lord
:
And
these
also
in
regard
of
their
interinesse
by
the
Lords
purchase
of
parcel
shall
be
totally
extinct
:
So
it
is
also
when
the
Tenure
is
to
performe
some
manual
labour
,
as
to
cover
or
repaire
the
Hall
of
the
Lord
,
to
make
or
repaire
the
Pale
of
his
parke
,
to
plow
or
sow
his
Demesnes
,
to
reape
or
cut
downe
his
graine
,
or
the
like
,
these
services
and
others
like
unto
them
shall
not
be
multiplied
,
albeit
parcel
of
the
Tenancie
be
aliened
,
yet
amongst
all
the
alienées
the
whole
service
shall
be
performed
;
and
if
the
Lord
purchase
parcel
,
the
whole
shall
be
extinct
,
&c.
There
is
the
like
Law
also
in
Heriot-service
:
For
by
alienation
of
parcel
of
the
Tenancie
it
multiplies
,
and
by
the
Lords
purchase
of
parcel
the
whole
service
is
extinct
:
It
is
otherwise
of
Heriot-custome
:
For
in
that
Case
notwithstanding
the
Lords
purchase
of
parcel
,
the
intire
service
remaines
for
the
residue
,
because
such
custome
is
incident
to
the
whole
Land
,
and
also
to
every
Part
thereof
,
&c.
Ejectione
firmae
against
two
or
more
,
Henry
Peytoes
Case
.
an
accord
and
Satisfaction
for
one
shall
also
discharge
all
the
other
Ejectors
and
Trespassors
:
for
that
action
is
intire
,
and
cannot
be
discharged
as
to
one
,
and
yet
prosecuted
against
the
rest
.
in
Capite
,
and
Tenant
paravaile
in
Soccage
:
the
Mesne
Grants
the
Mesnaltie
to
the
use
of
himselfe
for
life
,
and
after
to
the
use
of
the
Tenant
paravaile
in
taile
:
In
this
Case
the
mesnaltie
is
not
suspended
during
the
life
of
the
Mesne
by
force
of
that
remainder
in
taile
:
for
,
a
remainder
in
taile
or
for
life
expectant
upon
an
estate
for
life
,
or
in
taile
,
shall
never
suspend
a
mesnaltie
,
Seigniory
,
Rent
,
&c.
because
albeit
the
remainder
vests
presently
,
yet
that
cannot
suspend
the
present
Frank-tenement
of
the
Rent
during
the
life
of
the
first
Tenant
for
life
,
who
is
indeed
the
true
Tenant
to
the
Lord
or
to
the
reversioner
,
upon
whom
avowry
shall
be
made
,
&c.
and
as
a
Signiory
,
Rent
,
&c.
cannot
be
suspended
in
part
,
and
in
esse
for
part
,
in
respect
of
the
Land
,
out
of
which
it
is
issuing
,
so
neither
can
a
Signiory
,
Rent
,
&c.
be
suspended
in
remainder
,
and
yet
be
in
esse
for
a
particular
Estate
in
possession
,
for
then
necessarily
there
must
insue
fractions
of
Estates
,
and
particular
Estates
shall
be
created
without
Donors
or
Lessors
against
the
Rules
and
Maximes
of
the
Law
,
&c.
It
is
otherwise
,
if
the
mesne
grant
his
mesnaltie
to
one
for
life
,
or
in
taile
,
the
remainder
to
the
Tenant
peravaile
in
Fee
;
for
in
that
case
the
mesnalty
is
totally
extinct
;
because
there
the
Tenant
peravaile
hath
as
high
an
Estate
in
the
inheritance
of
the
Mesnaltie
,
as
he
hath
in
the
Tenancie
,
neither
is
there
,
in
that
case
,
any
possibilitie
of
reviving
the
Mesnaltie
;
and
here
also
the
mesnaltie
is
not
extinct
for
the
Inheritance
,
and
in
esse
for
the
particular
Estate
for
life
or
in
taile
in
possession
,
but
the
mesnaltie
by
the
remainder
in
Fée
is
extinct
in
all
;
for
otherwise
this
absurdity
would
follow
;
that
there
would
be
a
Fée-simple
of
the
Tenancie
peravaile
,
and
also
a
Fée-simple
of
Signiory
perament
,
and
but
an
Estate
for
life
or
in
taile
onely
of
the
mesnaltie
;
and
so
a
Tenancie
in
Fée-simple
shall
be
onely
holden
of
a
mesnaltie
for
life
or
in
taile
,
and
a
Signiorie
in
Fee
shall
be
issuing
out
of
a
mesnaltie
for
life
or
in
taile
onely
,
which
is
impossible
,
and
can
by
no
meanes
be
,
&c.
Vide
3
H.
6.
1.
15
E.
4.
12.
Vide
27
E.
3.
84.
b.
22
H.
8.
cap.
46.
)
cannot
be
granted
in
reversion
;
in
futuro
,
so
neither
may
any
be
admitted
a
judge
in
futuro
,
according
to
the
Rule
,
Officia
judicialia
non
concedantur
antequam
vacent
;
And
besides
,
great
inconvenience
might
insue
thereupon
;
for
he
;
that
is
at
the
time
of
the
grant
sufficient
to
execute
it
,
may
perhaps
,
when
it
falls
,
be
un-capable
and
un-sufficient
for
it
:
And
albeit
that
Office
be
onely
in
part
judicial
and
in
part
ministerial
,
and
ministerial
Offices
may
be
granted
in
reversion
;
yet
in
as
much
as
two
persons
have
both
of
them
but
one
Office
,
&
are
as
one
Officer
,
that
Office
is
by
the
said
Act
made
so
intire
,
that
it
cannot
possibly
be
divided
;
for
,
the
King
cannot
make
two
Auditors
of
the
minister
in●
Office
,
and
other
two
to
execute
the
Iudicial
part
,
because
then
there
would
be
four
persons
,
which
the
Act
restraines
to
two
;
neither
yet
can
the
King
make
one
Person
to
have
the
judicial
voice
,
and
the
other
the
ministerial
Office
;
For
then
there
would
be
two
Officers
,
and
two
Offices
,
whereas
the
Act
makes
but
one
Officer
;
and
then
also
one
of
them
shall
have
a
distinct
Office
and
voice
,
whereas
the
Act
joynes
them
together
in
two
Persons
;
And
therefore
in
as
much
as
the
ministerial
part
is
so
united
with
the
judicial
part
,
and
that
joyntly
in
two
Persons
,
which
make
up
one
intire
Officer
,
that
there
is
no
possibility
of
severing
the
one
from
the
other
,
as
the
judicial
part
cannot
be
granted
in
reversion
,
so
neither
,
can
the
ministerial
,
&c.
John
Heydon
.
Case
.
Ibid.
7.
a.
2.
&
43
El.
Rotulo
1694.
inter
Auste●
Pl.
and
Willar
.
and
Ald.
Ded
fen
.
they
plead
non
culp
.
or
several
pleas
,
and
the
Iury
finds
for
the
Plaintife
in
all
,
the
Iurors
cannot
assesse
several
damages
against
the
Defendants
;
because
it
is
but
one
Trespas
,
and
also
made
joynt
by
the
Plaintifs
writ
and
count
;
And
albeit
one
of
them
be
the
most
malicious
,
and
de
facto
doth
the
greatest
wrong
,
yet
all
coming
forth
to
do
an
unlawful
Act
,
and
being
all
of
one
partie
,
the
Act
of
one
is
the
Act
of
all
,
that
are
present
and
of
the
same
partie
:
And
therefore
in
such
case
if
the
hand
of
one
of
them
onely
gives
a
mortall
wound
,
whereupon
death
followes
,
that
is
murder
in
all
,
that
are
present
and
of
the
same
partie
,
albeit
the
others
intended
not
to
give
a
wound
so
mortal
,
as
appeares
in
Mekallies
Case
in
the
9.
Report
.
M.
46.
3
E.
de
facto
charged
and
so
become
debtor
,
and
by
the
feofment
,
surrender
,
or
descent
the
land
was
also
discharged
;
because
a
discharge
of
part
of
a
thing
in
execution
is
a
discharge
of
all
,
be
it
by
the
Act
of
the
partie
,
or
by
Act
of
Law
;
for
the
duty
being
personal
is
intire
and
so
is
the
execution
intire
also
,
&c.
25
E.
3.
cap.
16.
That
by
the
execution
of
non-tenure
of
parcel
no
writ
shall
abate
,
but
onely
for
the
quantitie
of
the
non-tenure
,
which
is
alledged
;
Neverthelesse
,
in
a
praecipe
quod
reddat
of
a
Mannor
;
if
the
Tenant
plead
non-tenure
of
parcel
,
the
whole
writ
shall
abate
;
because
a
Mannor
is
an
intire
thing
;
And
therefore
the
Iudges
have
taken
it
to
be
against
reason
,
that
by
his
Demand
of
the
whole
Mannor
he
should
recover
against
him
,
that
is
but
tenant
of
parcel
thereof
,
for
which
cause
they
have
expounded
that
Statute
onely
to
extend
to
writs
,
where
things
demanded
are
several
,
as
acres
are
,
and
not
to
extend
to
writts
,
where
the
things
demanded
are
intire
.
9
H.
5.
fol.
15.
Henry
Pigots
Case
.
One
brings
a
writ
of
Debt
of
20
l.
against
another
and
counts
upon
an
obligation
of
the
same
summe
,
the
Defendant
pleads
,
that
he
was
a
lay
man
,
and
knew
not
letters
,
and
he
acknowledged
himselfe
to
be
bound
to
the
Plaintife
by
the
same
deed
in
20
s.
which
he
hath
payd
and
thereof
shewed
an
Acquittance
and
as
to
the
residue
of
the
summe
in
the
said
Obligation
,
obligation
nient
son
fait
;
And
in
this
case
,
the
Obligation
was
adjudged
void
for
all
;
because
,
the
summe
being
intire
,
it
could
not
be
good
for
20.
s.
and
void
for
the
residue
of
20.
l.
but
must
needes
be
void
for
all
.
Henry
Pigots
Case
.
73
If
there
be
two
absolute
and
distinct
Clauses
or
Covenants
in
a
deed
,
and
one
of
them
is
read
to
a
man
not
lettered
,
and
the
other
not
,
14
H.
8.
25
,
26.
)
For
albeit
they
are
severall
Clauses
or
Covenants
,
yet
it
is
but
one
intire
deed
.
3
H.
7.
5.
If
two
be
bound
in
an
obligation
,
and
after
the
seal
of
one
of
them
is
broken
,
this
mis-fensance
ex
post
facto
shall
make
the
obligation
void
against
both
;
because
it
is
an
intire
thing
,
that
will
not
admit
severance
,
&c.
to
have
and
hold
for
three
yeares
from
hence
forth
,
and
they
are
afterwards
delivered
at
4
of
the
Clocke
in
the
after-noone
upon
the
20
day
of
June
then
next
following
;
In
this
Case
,
the
Lease
shall
commence
upon
the
day
of
the
delivery
;
for
,
from
hence
forth
shall
have
reference
to
the
delivery
(
when
the
deed
took
effect
)
and
not
to
the
date
,
and
it
shall
not
begin
immediately
after
the
delivery
,
viz.
at
4
of
the
clocke
in
the
after-noone
,
but
that
whole
day
shall
be
part
of
the
demise
;
because
a
day
is
(
in
judgement
of
Law
)
an
intire
thing
,
that
will
admit
no
fractions
,
to
avoid
un-certainties
,
which
are
always
the
mother
of
contention
.
And
therefore
the
day
of
delivery
is
taken
inclusivè
viz.
to
the
first
day
of
the
demise
;
so
it
is
also
if
a
Lease
be
limited
to
begin
à
confectione
,
It
is
otherwise
,
when
the
lease
is
to
begin
a
die
confectionis
,
or
à
die
datus
;
for
(
in
that
case
)
the
day
it self
is
excluded
,
&c.
And
so
the
doubt
in
12
E.
Dier
286.
is
well
explained
,
and
with
this
resolution
agrées
14
E.
Dier
307.
(
within
six
moneths
after
the
date
of
the
same
writings
,
&c.
)
and
it
was
adjudged
(
T.
21
E.
in
Co.
Ba.
)
that
if
such
writings
have
date
,
the
six
moneths
shall
be
accompted
from
the
date
,
but
if
they
want
date
,
then
from
the
delivery
;
And
therefore
when
the
six
moneths
are
accompted
from
the
date
,
the
day
of
the
date
is
excluded
as
it
was
adjudged
P.
4
E.
Rot.
812.
for
,
from
the
date
,
and
from
the
day
of
the
date
are
all
one
,
because
(
in
that
case
)
the
intire
day
of
the
date
is
excluded
;
But
it
seemes
by
the
resolution
above-said
,
when
they
are
accounted
from
the
delivery
,
the
day
of
the
delivery
is
to
be
totally
included
within
the
accompt
,
causâ
quà
suprà
.
prochien
avoidance
to
another
,
and
after
and
before
the
Statute
of
13
E.
the
Parson
,
Patron
,
Ordinarie
make
a
Lease
for
yeares
rendring
Rent
,
and
the
Parson
dies
,
the
grantée
presents
one
,
who
is
admitted
instituted
and
inducted
and
dies
,
this
Lease
is
avoided
absolutely
in
all
,
and
shall
not
hold
good
against
the
second
successor
:
So
(
●
.
E.
3.
7
H.
4.
23.
yet
if
the
Baron
had
not
entred
,
it
had
bound
the
Feme
and
her
heires
.
Co.
l.
4.
121.
both
in
the
Case
of
exchange
and
partition
.
Anus
Benigfields
Case
.
and
he
voucheth
the
heire
;
In
this
Case
,
the
Demandant
may
testise
that
the
heire
hath
Lands
descended
unto
him
in
the
same
County
(
for
to
another
County
the
originall
doth
not
extend
)
and
may
pray
,
that
he
may
be
endowed
of
his
Estate
:
So
in
4
E.
4.
36.
&
6
E.
3.
11.
The
Tenant
in
a
writ
of
Dower
vouched
the
heire
of
the
Baron
,
and
the
Demandant
testifieth
that
he
hath
Lands
by
descent
,
&c.
in
the
same
County
,
and
judgement
was
given
against
the
heire
:
But
if
he
had
none
there
,
it
should
have
béen
given
against
the
Tenant
.
Vide
suprà
55.
110.
10.
l.
build
an
house
,
and
goe
of
your
errand
to
Pauls
before
such
a
Feast
;
In
such
Case
,
I
may
well
doe
these
Acts
upon
several
dayes
before
the
Feast
,
because
the
Condition
was
not
intire
.
1
,
2.
P.
M.
12.
praedicto
loco
in
Com.
Wilts
,
and
all
held
good
per
Curiam
.
post
fines
under
6
l.
And
for
the
fine
there
were
two
writs
of
Covenant
,
6
l.
but
being
divided
it
was
under
,
which
division
Sank-ford
requested
;
but
the
Concord
being
intire
,
the
Court
adjudged
the
Post-fine
but
one
also
.
40
l.
per
annum
.
In
this
Case
the
Lessor
may
distraine
and
a
vow
for
the
whole
Rent
presently
,
albeit
the
one
Moitie
be
but
terra
revertens
,
and
the
reason
is
for
that
the
reservation
is
intire
.
Vide
Hob.
70
Parkens
Case
.
71
Argumentum
à
Divisione
est
fortissimum
in
Lege
.
pur
auter
vie
;
But
the
Baron
and
Feme
have
not
by
such
a
Grant
,
Fée
,
nor
Fée
taile
,
nor
an
Estate
pur
auter
vie
.
Ergo
,
they
have
an
Estate
for
the
term
of
their
lives
:
Howbeit
that
is
upon
a
Condition
in
Law
,
viz.
If
one
of
them
die
,
or
a
divorce
be
sued
betwixt
them
,
that
then
it
shall
be
Lawfull
for
the
Lessor
or
his
heires
to
enter
,
&c.
And
in
this
Case
if
they
make
wast
the
Feoffor
and
his
heires
shall
have
a
writ
of
wast
against
them
,
supposing
by
his
writ
,
Quod
tenet
ad
terminum
vitae
,
&c.
But
in
his
Count
he
shall
declare
the
special
manner
of
the
Lease
.
Blacke
Prince
the
Dukedome
of
Cornwall
,
&c.
Habendum
&
tenendum
eidem
Duci
,
&
ipsius
&
haeredum
suorum
Regum
Angliae
filiis
primogenitis
,
&
dicti
loci
Ducibus
in
Regno
Angliae
haereditariè
successoris
,
&c.
And
it
was
resolved
in
3
Jac.
in
the
Princes
Case
,
that
that
the
Prince
had
an
estate
of
Fée-simple
in
that
Dukedome
;
because
every
Estate
of
Inheritance
is
either
Fée-simple
,
or
Fee-taile
,
but
that
Estate
could
not
be
Fée-taile
;
for
it
is
not
limited
or
restrained
,
(
either
by
expresse
words
,
or
by
words
which
do
tout
amount
)
to
the
heires
of
the
body
of
the
Prince
;
because
he
that
is
to
inherit
that
Dukedome
,
ought
to
be
the
first
borne
Sonne
of
the
heires
of
the
Blacke
Prince
,
be
it
heir
Lineall
or
Collateral
;
and
such
heire
ought
also
to
the
King
of
England
,
&c.
Vide
infrà
192.
3.
72
The
Generals
must
go
before
,
and
the
Specials
must
follow
after
.
73
The
more
worthy
shall
be
set
before
the
lesser
worthy
.
and
the
Rule
in
the
Register
.
and
the
Rule
in
the
Register
.
that
all
Monasteries
,
&c.
Colledges
,
&c.
which
after
that
Act
should
happen
to
be
dissolved
,
renounced
,
relinquished
,
forfeited
,
given
up
,
&c.
or
by
any
other
mean
should
come
to
the
Kings
highness
,
&c.
should
be
vested
,
deemed
and
judged
by
authoritie
of
Parliament
in
the
very
actual
and
real
possession
of
the
King
,
&c.
And
afterwards
by
the
Act
of
1
E.
6.
cap.
14.
The
Colledge
of
Maid-stone
in
Kent
was
given
to
E.
6.
Now
the
Question
was
,
whether
by
the
General
words
of
the
Statute
of
31
H.
8.
That
Colledge
was
not
to
be
deemed
in
the
Actual
possession
of
E.
6.
because
the
Edict
of
1
E.
6.
was
a
mean
,
by
which
it
came
to
the
Kings
hands
,
and
therefore
fulfilled
these
words
of
that
Statute
,
by
any
other
mean
:
But
it
was
resolved
per
totam
Curiam
,
that
the
Statute
of
31
H.
8.
could
not
be
so
understood
;
For
when
the
Statute
speaks
of
dissolution
,
renouncing
,
relinquishing
,
forfeiture
,
giving
up
,
&c.
which
are
inferiour
meanes
,
by
which
such
Religious
houses
came
to
the
King
:
then
the
said
last
words
(
by
any
other
mean
)
cannot
be
intended
of
an
Act
of
Parliament
,
which
is
the
highest
manner
of
conveyance
,
that
may
be
:
And
therefore
the
makers
of
that
Act
of
31
H.
8.
would
have
put
that
in
the
beginning
,
and
not
in
the
end
after
other
inferiour
conveyances
,
if
they
had
intended
to
have
extended
the
Act
to
that
:
But
these
words
(
by
any
other
mean
)
are
to
be
thus
expounded
,
viz.
by
any
such
inferior
meanes
:
So
likewise
it
hath
adjudged
,
that
Bishops
are
not
included
within
the
Statute
of
13
El.
cap.
10.
For
that
Statute
begins
with
Colledges
,
Deanes
and
Chapters
,
Parsons
,
Vicars
,
and
concludes
with
these
words
,
and
others
having
spiritual
promotions
,
these
last
words
do
not
include
Bishops
,
causa
qua
suprà
:
So
also
in
the
Statute
of
West
.
2.
cap.
41.
The
words
whereof
are
these
:
Statuit
Rex
,
quòd
si
Abbates
,
Priores
,
Custodes
Hospitales
&
aliarum
Domorum
Religiosarum
,
&c.
These
last
words
include
not
Bishops
,
as
it
was
holden
Dier
1
,
&
2.
P.
&
.
M.
fol.
109.
Causa
qua
suprà
.
Vide
Co.
lib.
5.
28.
b.
4.
Harrisons
Case
.
8
Exceptio
semper
altiùs
ponenda
est
.
And
therefore
if
a
release
run
thus
:
A.
doth
acknowledge
himselfe
satisfied
,
&c.
of
all
Bonds
,
&c.
made
by
B.
and
it
is
agreed
that
A
shall
deliver
all
such
Bonds
as
he
hath
un-delivered
to
B
,
except
abond
of
40
l.
wherein
B
&
C
stand
bound
,
&c.
Here
the
exception
extends
to
all
the
premisses
,
and
it
could
not
be
inserted
sooner
,
because
the
proper
place
thereof
is
to
come
last
,
&c.
B
Habendum
pro
uno
anno
,
&c.
&
si
in
fine
anni
both
parties
shall
be
agreed
,
that
the
Demise
shall
be
renued
or
continued
for
a
longer
time
,
tunc
habend.
premissa
for
thrée
years
,
rendering
yearly
durante
termino
praedicto
40
l.
&c.
In
this
case
the
Reservation
shall
extend
as
well
to
the
first
year
,
as
to
the
other
thrée
years
;
because
the
reservation
was
to
be
inserted
after
all
the
Estates
:
so
likewise
if
a
man
by
déed
indented
demise
lands
to
A
,
Habendum
to
him
for
life
,
the
remainder
to
B
,
and
to
the
heirs
of
his
body
;
and
for
default
of
such
issue
to
remain
to
C
,
in
tail
or
for
life
,
Reddendo
inde
to
the
lessor
and
his
heirs
an
annual
rent
,
this
reservation
shall
extend
not
to
the
last
estate
onely
,
but
to
the
two
former
estates
also
:
because
it
could
not
be
conveniently
inserted
,
before
all
the
estates
were
limited
;
for
his
proper
place
is
to
succéed
them
,
&c.
10
There
is
an
order
observed
in
the
Register
,
Mes.
uagium
Tost
.
um
Mol.
endinum
Col.
umbare
Gar.
dinum
Ter.
ra
Pra.
tum
Pas
.
tura
Bos
.
cus
Brue
.
ra
mora
Junca
.
ria
Maris
.
cus
Alve.
tum
Pis
.
caria
Red.
ditus
sectare
priora
.
And
if
a
man
in
his
writ
will
demand
ten
messuages
,
and
ten
acres
of
land
,
and
ten
acres
of
meadow
,
and
ten
of
pasture
,
&c.
and
after
in
his
writ
will
demand
the
moity
or
third
part
of
a
messuage
,
or
of
an
Acre
of
land
,
or
of
meadow
,
or
of
pasture
,
&c.
then
the
form
of
the
writ
is
first
to
set
down
to
whole
,
and
afterwards
the
moity
or
third
part
,
74
Sicut
natura
non
facit
saltum
,
Ita
nec
Lex
.
sur
disseisin
,
if
the
degrées
be
not
duly
observed
,
Entry
sur
disseisin
in
the
Per
,
or
in
the
Per
y
cui
,
or
in
the
Post
,
when
it
ought
to
be
a
writ
of
Entry
sur
disseisin
in
the
nature
of
an
Assize
,
that
is
,
an
error
whereupon
the
writ
shall
abate
,
&c.
right
of
ward
before
he
can
have
a
writ
for
the
ravishment
of
the
ward
,
&c.
H.
N.
B.
143.
k.
12.
H.
4.
13.
b.
33.
H.
6.
16.
per
Priset
.
Pierce
Grimsteads
case
.
James
Baggs
case
.
5
If
a
Major
and
Aldermen
of
a
Town
corporate
,
Vide
Fitz.
Tit.
corpus
cum
causa
,
p.
2.
the
case
of
9.
H.
6.
well
abridged
.
false
Judgment
upon
a
Writ
of
right
patent
,
right
close
the
plaintiffe
shall
not
assign
his
errors
,
before
all
the
Record
be
certified
,
viz.
not
onely
the
original
,
but
likewise
all
the
residue
of
the
Record
.
Co.
Pl.
to
present
by
turn
to
that
advowson
:
in
this
case
a
special
Writ
shall
issue
out
of
the
Chancery
to
the
Bishop
to
admit
the
Clerk
of
him
;
who
ought
by
that
accord
and
composition
to
present
to
the
first
turne
;
but
first
the
King
ought
to
send
a
Certiorare
to
the
Iustices
of
the
Com.
Pl.
to
certifie
him
in
his
Chancery
of
the
accord
there
,
and
upon
that
Certificate
the
King
shall
send
his
Writ
to
the
Bishop
,
as
aforesaid
,
&c.
A
Writ
de
secunda
super
o●eratione
.
10
In
a
Writ
de
admensuratione
pasturae
,
de
secunda
super
oneratione
lieth
not
,
save
onely
against
him
,
against
whom
the
first
Writ
was
sued
,
&c.
11
In
an
Assise
of
Fresh-force
in
London
against
Jekef
Foxley
and
Agnes
his
wife
,
No
such
Agnes
,
the
wife
of
Foxley
in
rerum
natura
,
and
demand
judgment
of
the
plaint
,
&
quod
inquiratur
per
Assisam
,
&
si
,
&c.
Nul
.
tort
.
nul
.
diss
.
&c.
and
the
others
plead
the
same
plea
by
Attorney
:
And
the
Plaintiffes
,
as
to
the
plea
in
abatement
of
the
Plaint
demur
in
law
,
and
as
to
the
other
plea
they
pray
the
Assise
:
And
whether
the
writ
should
abate
or
not
,
was
argued
at
Guild-hall
by
the
Councel
of
both
parts
before
the
Assise
was
taken
:
but
afterwards
the
Councel
of
the
Plaintiffs
perceiving
that
the
matter
was
argued
before
time
,
(
for
the
Assise
ought
first
to
have
inquired
all
the
matter
,
and
if
they
had
found
the
exception
,
and
had
also
found
a
disseisor
and
tenant
,
then
would
it
have
been
time
to
have
disputed
what
the
Law
have
determined
in
that
case
,
and
not
before
)
they
therefore
prayed
the
Court
when
the
Assise
was
sworn
,
that
they
might
first
inquire
of
the
matter
pleaded
in
abatement
of
the
Plaint
,
which
was
done
accordingly
,
&c.
for
the
course
formerly
run
,
was
preposterous
,
and
not
suitable
to
such
orderly
procéeding
,
as
the
Law
requires
:
And
so
it
was
found
,
that
there
was
no
such
Agnes
,
&c.
and
yet
the
writ
did
not
abate
for
the
rest
,
&c.
75
A
digniori
fieri
debet
Denominatio
&
Resolutio
.
West
.
in
cap.
4.
For
some
have
holden
,
that
in
an
Action
of
Waste
.
although
it
be
brought
against
a
tenant
in
Dower
,
or
by
the
Courtesie
,
that
have
a
Frée-hold
;
yet
the
damages
are
the
principal
,
because
they
were
recoverable
against
the
tenant
in
Dower
,
and
by
the
Courtesie
,
by
the
common
Law
;
and
the
Statute
of
Glocester
gave
the
place
wasted
but
for
a
penalty
;
so
as
the
nature
of
the
Action
(
say
they
)
remaineth
still
to
be
personal
;
for
that
the
dammages
are
the
principal
,
&c
But
the
best
opinion
is
conceived
to
be
,
that
albeit
in
that
Action
the
dammages
may
be
the
more
ancient
recompence
,
yet
(
doubtlesse
)
the
place
wasted
(
being
in
the
realty
)
must
néeds
be
the
more
principal
:
And
therefore
upon
a
Recovery
had
by
default
in
an
Action
of
Waste
against
tenant
in
Dower
,
or
by
the
Courtesie
,
a
Quod
ei
deforceat
,
lieth
,
as
well
as
in
any
other
Action
,
&c.
for
à
digniori
fieri
debet
denominatio
&
resolutio
,
&c.
John
Webs
Case
.
by
the
name
of
the
Kings
Tennis-playes
in
Westm
.
&c.
this
grant
shall
be
taken
in
a
reasonable
sence
,
viz.
the
Tennis-playes
for
the
Kings
Houshold
,
and
not
onely
for
the
Tennis-play
,
when
the
King
himself
playes
in
his
Royal
Person
;
for
the
King
is
the
Head
of
his
Houshold
,
and
therefore
à
digniori
parte
the
Tennis-playes
for
his
houshold
may
be
well
called
,
The
Kings
Tennis-plays
,
&c.
Eliz.
Dier.
236.
when
a
penalty
is
inflicted
by
Act
of
Parliament
to
be
recovered
in
any
of
the
Kings
Courts
of
Record
,
it
shall
be
intended
of
the
Principal
Courts
at
Westm.
20.
H.
6.
23.
In
accompt
,
supposing
the
Defendant
to
be
his
Receiver
from
the
feast
of
St.
Michael
,
this
shall
be
intended
the
principal
Feast
of
St.
Michael
the
Archangel
,
and
not
of
St.
Michael
de
Monte
Tumbe
,
so
13.
H.
4.
4.
21.
H.
6.
8.
&
37.
H.
6.
29.
If
the
father
and
son
are
of
one
name
,
viz.
I.
S.
if
I.
S.
be
named
generally
in
a
Writ
,
Count
,
or
other
Record
,
this
shall
be
intended
of
the
father
,
for
he
is
the
more
worthy
:
Likewise
,
10.
E.
4.
11.
7.
R.
2.
Tit.
Barr.
241.
A
man
is
bound
to
prove
a
thing
,
or
a
thing
is
to
be
tried
;
this
shall
be
by
the
most
principal
proof
and
trial
in
law
,
viz.
by
a
Iury
;
so
if
it
be
spoken
of
fée
,
it
shall
be
intended
fée-simple
;
Litt.
fol.
21.
And
fée
a
notable
case
to
this
purpose
in
5
E.
2.
Resceit
165.
were
the
Case
was
this
:
In
admeasurement
of
Pasture
against
a
man
and
his
wife
,
Iudgment
was
given
,
that
the
admeasurement
should
be
made
,
and
after
it
was
made
in
pais
,
and
returned
in
Banco
15.
Hillar.
at
which
day
the
Baron
made
default
,
and
the
Feme
came
in
Court
before
the
judgment
rendred
in
the
principal
,
and
the
prayed
to
be
received
:
In
this
case
,
albeit
it
was
moved
,
that
she
came
too
late
,
viz.
after
the
admeasurement
awarded
,
which
is
a
judgment
:
yet
thereunto
Herle
said
,
that
it
was
no
judgment
upon
the
principal
:
And
where
the
Statute
of
West
.
cap.
3.
is
;
Si
uxor
ante
judicium
venerit
,
&c.
Statutum
debet
intelligi
de
principali
judicio
.
So
also
in
2
E.
3.
Resceit
139.
In
an
Assise
of
Mortd
.
against
Baron
and
Feme
,
the
Assise
was
awarded
by
default
,
and
the
Assise
remained
alwayes
pro
defectu
Juratorum
,
&
then
the
Feme
prayed
to
be
received
;
and
it
as
objected
,
that
judgement
was
given
,
that
the
Assise
should
be
taken
:
neverthelesse
the
Feme
comming
in
before
final
judgment
,
was
received
;
and
with
this
accords
17.
E.
2.
ibid.
173.
and
22.
Ass.
pl.
22.
After
the
Assise
awarded
,
the
Feme
was
received
,
24.
E.
3.
29.
and
divers
other
Books
accord
,
&c.
de
integro
Judicio
,
viz.
when
all
the
matter
within
the
original
is
determined
,
as
in
34.
H.
6.
18.
in
Humphrey
Bohuns
Case
in
Quare
impedit
brought
by
two
;
the
one
pleads
to
the
Issue
,
and
the
other
confesseth
the
Action
,
upon
which
confession
Iudgment
is
given
;
and
he
against
whom
the
Iudgment
was
given
,
sues
a
writ
of
Error
to
remove
the
Record
into
the
Kings
Bench
:
Here
Prisot
&
tota
Curia
say
,
this
cannot
be
;
for
the
writ
of
Error
shall
rehearse
all
those
,
that
are
parties
to
the
original
writ
,
and
then
the
writ
saith
,
Et
si
Judicium
inde
redditum
sit
,
tunc
recordum
illud
habeatis
,
&c.
which
proves
that
it
cannot
be
removed
,
before
the
whole
matter
be
determined
,
&c.
76
The
Law
requireth
decencie
and
order
.
Ordine
placitandi
servato
,
servatur
&
jus
,
&c.
And
therefore
first
,
in
good
order
of
Pleading
,
a
man
must
plead
to
the
jurisdiction
of
the
Court
:
Secondly
,
to
the
person
,
and
therein
first
to
the
person
of
the
Plaintiffe
,
and
then
to
the
person
of
the
Defendant
:
Thirdly
,
to
the
Court
:
Fourthly
,
to
the
Writ
:
Fifthly
,
to
the
Action
,
&c.
which
order
and
form
of
Pleading
you
shall
read
in
the
ancient
Authors
,
agréeable
to
the
Law
at
this
day
:
and
if
the
Defendant
misorder
any
of
these
he
loseth
the
benefit
of
the
former
:
Again
,
the
Count
must
be
agréeable
,
and
conform
to
the
Writ
,
the
Bar
to
the
Count
,
&c.
and
the
Iudgment
to
the
Count
;
for
none
of
them
must
be
narrower
or
broader
then
the
other
,
&c.
4
If
the
King
make
a
Lease
for
years
,
rendring
Rent
,
6
Amongst
other
reasons
produced
to
prove
,
Aula
Regis
,
(
where
that
Court
was
originally
kept
)
absque
vestimentis
aulicis
;
for
those
that
appear
in
Court
use
to
wear
garments
suitable
to
that
place
:
And
therefore
it
is
recorded
by
Luke
the
Evangelist
,
cap.
7.
vers.
25.
Coepit
de
Johanne
dicere
ad
turbam
,
&c.
Quid
existis
visuri
,
hominem
mollibus
vestibus
amictum
?
Ecce
qui
vestitu
magnifico
utuntur
,
&c.
sunt
in
Palatiis
Regis
,
&c.
And
the
Common
Law
regards
conveniency
,
and
altogether
dis-allowes
indecorum
,
and
every
thing
done
contra
bonos
mores
.
77
Negatio
Conclusionis
est
error
in
Lege
.
ancient
Demesne
,
and
that
the
Land
in
demand
is
parcel
of
the
Mannor
,
and
so
ancient
Demesne
,
there
the
Demandant
cannot
say
,
that
the
Land
in
demand
is
not
ancient
Demesne
;
because
that
is
the
Conclusion
upon
the
two
first
preceding
Propositions
,
viz.
1.
That
the
Mannor
is
ancient
Demesne
.
2.
That
the
Land
in
demand
is
parcel
of
the
Mannor
;
for
sequitur
conclusio
ex
praemissis
;
and
therefore
it
cannot
be
denied
,
and
with
this
agrées
41.
E.
3.
22.
48.
E.
3.
11.
and
many
other
Books
.
78
The
Law
respecteth
the
Bonds
of
Nature
.
George
Cursors
Case
.
and
after
had
enfeoffed
and
conveyed
the
Land
to
his
heir
,
and
had
died
,
his
heir
within
age
,
his
heir
should
not
have
béen
in
ward
,
neither
was
it
Collusion
upon
the
Statute
of
Marlbr
.
cap.
6
,
&c.
because
he
was
bound
by
the
law
of
Nature
and
Nations
to
provide
for
them
;
but
now
by
force
of
those
Statutes
he
shall
be
in
ward
for
his
body
,
and
for
a
third
part
of
the
Land
,
&c.
Quare
consanguinem
&
haeredem
coepit
;
and
albeit
the
words
be
cujus
maritagium
ad
ipsum
pertinet
;
because
the
wel
:
-
bestowing
of
his
heir
apparent
in
marriage
is
a
great
establishment
of
his
house
;
yet
that
is
to
be
understood
as
against
a
wrong-doer
;
but
not
against
a
Guardian
in
Chivalry
,
and
the
mother
shall
have
the
like
writ
for
taking
away
of
her
son
and
heir
apparent
;
and
yet
the
mother
shall
not
bar
the
Lord
by
Knight-service
of
his
wardship
of
his
body
,
as
Littleton
saith
,
§
114.
Qui
ex
filia
tua
nascitur
,
in
potestate
tua
non
est
,
sed
patris
sui
,
Fleta
l.
5.
cap.
6.
4
If
the
Sheriff
or
other
Officer
be
of
kindred
or
affinity
to
the
Plaintiffe
or
Defendant
,
5
If
a
Iuror
be
of
blood
or
kindred
to
either
party
,
(
Consanguineus
,
quasi
eodem
sanguine
natus
)
this
is
a
principal
Challenge
to
the
Polles
,
because
the
Law
presumeth
that
one
kinsman
doth
favour
another
before
a
stranger
;
and
how
remote
so
ever
he
is
of
kindred
,
yet
the
Challenge
is
good
;
And
if
the
Plaintiffe
challenge
a
Iuror
for
kindred
to
the
Defendant
,
it
is
no
Counter-plea
to
say
,
that
he
is
of
kindred
also
to
the
Plaintiffe
,
though
he
be
so
in
a
néerer
degrée
;
for
the
words
of
the
venire
facias
forbiddeth
the
Iuror
to
be
of
kindred
to
either
party
.
6
If
a
Body
politique
or
incorporate
(
sole
or
aggregate
of
many
)
bring
an
Action
that
concerns
their
Body
politique
or
incorporate
,
Martha
Wilcocks
,
William
Wilcocks
,
and
then
the
wife
of
Ralph
Ratcliffe
)
dwelling
in
her
mothers
house
at
Hitchin
,
(
being
then
under
the
age
of
sixtéen
years
,
and
about
fourtéen
,
went
from
thence
at
two
of
the
clock
in
the
morning
(
with
the
consent
of
the
said
Ralph
)
to
Bramfield
,
(
being
eight
miles
distant
from
Hitchin
)
and
there
married
Edw.
Ratcliffe
:
And
in
an
Ejectione
firmae
brought
by
Luke
Norton
upon
the
demise
of
the
said
Edw.
the
issue
was
,
whether
Eliz.
the
mother
had
the
custody
of
Martha
at
the
time
of
the
said
marriage
;
for
if
she
had
,
then
the
Land
of
the
said
Martha
,
(
being
in
soccage
)
was
to
be
lost
for
her
life
,
by
force
of
the
Statute
of
4
&
5.
P.
&
M.
cap.
8.
which
prohibiteth
the
conveying
of
a
maid
,
&c.
out
of
the
custody
,
and
contracting
Matrimony
with
her
,
without
the
consent
of
her
father
,
if
he
be
living
;
or
of
her
mother
,
in
case
her
father
be
dead
,
&c.
in
pain
for
the
man
to
suffer
imprisonment
,
&c.
and
for
the
maid
to
lose
her
land
,
as
aforesaid
,
&c.
And
in
that
Case
it
was
resolved
,
that
Eliz.
the
mother
had
the
custody
of
the
said
Martha
at
the
time
of
the
Marriage
,
within
the
provision
of
the
said
Act
;
for
that
Statute
hath
ordained
two
manner
of
new
custodies
,
viz.
by
reason
of
nature
,
and
by
assignation
;
And
here
the
father
of
Martha
being
dead
,
she
is
by
nature
left
in
the
custody
of
her
mother
;
neither
yet
was
the
assent
of
Ralph
Ratcliff
(
the
husband
)
any
thing
at
all
material
;
for
the
Statute
hath
annexed
the
custody
to
the
person
of
the
mother
,
jure
naturae
,
which
is
inseparable
,
and
cannot
by
the
marriage
be
transferred
to
the
Baron
,
but
after
the
marriage
remains
onely
in
the
mother
,
&c.
Ambrosia
Gorges
Case
.
10
Viscount
Bindon
being
seised
of
land
in
capite
,
had
issue
,
Arthur
Gorge
,
had
issue
by
him
Ambrosia
a
daughter
,
Douglas
dies
,
and
likewise
Viscount
Bindon
,
Ambrosia
being
under
age
,
afterwards
Sir
Arthur
Gorge
takes
another
wife
,
and
hath
Issue
a
son
,
Ambrosia
remaining
still
under
age
.
In
this
case
,
Ambrosia
was
not
in
ward
,
during
the
time
she
remained
heir
apparent
to
her
father
;
but
after
her
father
had
a
son
,
so
that
she
remained
no
longer
heire
apparent
;
then
had
Queen
Eliz.
the
Wardship
both
of
her
body
and
Lands
,
&c.
Bracton
lib.
1.
cap.
5.
and
Doct.
and
Student
cap.
5.
&
6.
For
example
,
Doct.
&
Stud.
in
the
places
before
quoted
do
hold
:
And
therefore
if
he
that
is
attainted
of
treason
or
felonie
be
slaine
by
one
,
that
hath
no
authoritie
,
or
executed
by
one
,
that
hath
authoritie
,
but
pursueth
not
his
Warrant
;
In
this
Case
,
Litt.
fol.
43.
for
the
Parliament
could
not
take
away
that
protection
,
which
the
Law
of
Nature
giveth
unto
him
;
and
therefore
notwithstanding
that
Statute
the
King
may
protect
and
pardon
him
:
And
although
by
that
Statute
it
was
farther
enacted
,
that
it
should
be
done
with
him
as
with
an
enemie
,
by
which
words
any
man
might
have
slaine
such
a
person
(
as
it
is
holden
in
24
H.
8.
Coron.
Br.
197.
)
until
the
Statute
made
in
5
E.
cap.
1.
Yet
the
King
might
protect
and
pardon
him
.
A
man
out-lawed
is
out
of
the
benefit
of
the
Municipal
Law
;
for
so
saith
Fitz.
N.
B.
161.
Ut
legatus
est
quasi
extra
legem
positus
;
And
Bracton
(
l.
3.
tract.
2.
cap.
11.
saith
that
caput
gerit
lupinum
,
&c.
yet
is
he
not
out
either
of
his
natural
ligeance
,
or
of
the
Kings
natural
protection
;
for
neither
of
them
is
tied
to
municipal
lawes
,
but
is
due
by
the
law
of
Nature
,
which
was
long
before
any
judicial
or
municipal
lawes
:
And
therefore
if
a
man
were
out-lawed
for
felonie
,
yet
was
he
within
the
Kings
natural
protection
:
for
no
man
but
the
Sheriffe
could
execute
him
,
as
it
is
adjudged
in
2.
Ass.
Pl.
3.
Every
subject
is
by
his
natural
ligeance
bound
to
obey
and
serve
his
Soveraigne
,
&c.
It
is
enacted
by
the
Parliament
in
23
H.
6.
cap.
8.
that
no
man
should
serve
the
King
as
Sheriffe
of
any
County
above
one
yeare
,
and
that
,
notwithstanding
any
clause
of
non
obstante
to
the
contrary
,
that
is
to
say
,
notwithstanding
that
the
King
should
expressy
dispence
with
the
said
Statute
;
howbeit
it
is
agréed
in
2
H.
7.
that
against
the
expresse
purview
of
that
Act
,
the
King
may
by
a
special
non
obstante
dispence
with
that
Act
;
for
that
the
Act
could
not
barre
the
King
of
the
service
of
his
subject
,
which
the
law
of
nature
did
give
unto
him
:
One
of
the
Chiefest
grounds
,
according
to
which
the
Case
of
the
post-nati
was
resolved
in
6
Jac.
was
,
because
obedience
and
ligeance
of
the
subject
to
the
Soveraigne
is
due
by
the
law
of
Nature
;
for
if
they
be
due
by
that
law
,
and
the
same
law
be
parcel
of
the
lawes
of
England
as
well
,
as
of
all
other
Nations
,
and
is
immutable
,
and
that
post-nati
&
we
of
England
are
united
by
birth-right
in
obedience
and
ligeance
(
which
is
the
true
cause
of
natural
subjection
)
by
the
law
of
Nature
,
It
cleerly
followed
,
that
Calvin
(
the
Plaintiffe
in
that
cause
)
being
borne
under
one
ligeance
to
one
and
the
same
King
,
could
not
be
an
alien
borne
:
And
there
is
great
reason
(
as
it
was
then
alledged
)
that
the
law
of
Nature
should
direct
that
Case
,
wherein
five
natural
operations
were
remarkable
,
1
The
King
had
the
Crowne
of
England
by
birth-right
,
being
naturally
procreated
of
the
bloud
Royal
of
this
Realme
;
Secondly
,
Calvin
the
Plaintiffe
,
was
naturalized
by
procreation
and
birth-right
,
since
the
descent
of
the
Crowne
of
England
;
Thirdly
,
Ligeance
and
obedience
of
the
subject
to
the
Soveraigne
due
by
the
Law
of
Nature
;
Fourthly
,
Protection
and
government
also
due
by
the
Law
of
Nature
:
Fiftly
,
It
was
presently
said
,
that
this
Case
of
Calvin
in
the
opinion
of
divers
was
more
doubtfull
in
the
beginning
,
but
the
farther
it
procéeded
the
cleerer
and
stronger
it
grew
,
and
therefore
that
the
doubt
did
arise
from
some
violent
passion
,
and
not
from
any
reason
grounded
upon
the
Law
of
Nature
,
quia
quantò
violentus
motus
(
qui
sit
contra
naturam
)
appropinquat
ad
suum
finem
tantò
debiliores
&
tardiores
sunt
ejus
motus
,
sed
naturalis
motus
,
quantò
magis
appropinquat
ad
suum
finem
,
tanto
fortiores
&
velociores
sunt
ejus
motus
:
And
for
as
much
as
in
case
of
an
alien
Borne
,
you
must
of
necessitie
have
two
federal
ligeances
to
two
several
persons
,
but
in
this
Case
one
person
alone
is
head
of
both
,
and
the
post-nati
,
and
we
now
joyned
in
ligeance
so
that
one
head
,
(
which
was
copula
,
&
tanquam
oculus
of
that
Case
)
And
ligeance
of
the
subjects
of
both
Kingdomes
being
due
to
their
Soveraigne
by
one
and
the
same
Law
,
viz.
by
the
Law
of
Nature
,
the
post-nati
cannot
be
aliens
of
either
Kingdome
,
but
ad
invicem
naturalized
subjects
of
both
;
for
,
Non
adversatur
diversitas
regnorum
,
sed
regnantium
;
non
patriarum
,
sed
patrum
patriarum
;
non
coronarum
,
sed
coronatorum
:
non
legum
municipalium
,
sed
Regum
Majestatum
,
&c.
Articuli
sup.
cartas
cap.
11.
provides
,
in
a
writ
of
Champertie
(
see
it
also
in
Fitz.
Champertie
10.
)
and
the
reason
of
this
is
,
for
that
the
Sonne
cannot
be
said
a
Maintainer
of
the
Father
;
because
he
is
bound
to
aide
and
assist
his
Father
,
when
and
as
often
as
he
may
,
being
enjoyned
so
to
do
by
the
Law
of
nature
,
&c.
17
Brothers
or
Cofins
shall
not
wage
Battel
in
a
writ
of
right
,
Gavelkind
,
Borough-English
,
&c.
It
is
otherwise
of
privies
in
Estate
,
and
in
Law
;
And
therefore
if
the
Donée
in
tale
within
age
make
feoffment
in
Fée
and
die
without
issue
,
the
Donor
shall
not
enter
;
Because
there
was
onely
privitie
in
Estate
betwée
them
,
and
no
right
accrued
to
the
Donor
by
the
death
of
the
Donée
:
So
if
there
be
two
Iointenants
in
Fée
within
age
,
and
the
one
makes
Feoffment
in
Fée
of
his
moitie
,
and
dies
,
the
sur-vivor
cannot
enter
by
reason
the
Infancie
of
his
Companion
;
Because
by
his
Feoffment
the
joyntenure
was
severed
,
so
long
as
the
Feoffment
remaines
in
force
;
and
therefore
in
such
Case
the
Heire
of
the
Feoffor
shall
have
a
dum
fuit
infra
aetatem
,
or
shall
enter
into
the
moitie
:
In
like
manner
Privies
in
Law
(
as
the
Lord
by
escheate
,
&c.
)
shall
never
take
advantage
of
the
Privitie
of
Infancie
;
because
they
are
strangers
to
it
:
And
in
that
Case
if
an
Infant
Tenant
make
Feofment
and
die
without
Heire
,
the
Feofment
is
un-avoidable
:
here
is
the
same
Law
of
Coverture
and
non
sanae
memoriae
,
&c.
Geo.
Cursons
Case
.
19
It
is
said
,
that
one
of
the
Chiefest
reasons
,
Will
.
Herberts
Case
.
22
If
a
man
seised
of
three
Acres
of
Land
,
per
amount
,
but
never
to
recover
per
rata
against
her
by
force
of
the
Warrantie
in
Law
upon
the
partition
;
For
(
as
Littleton
saith
)
by
her
alienation
she
hath
dismissed
her selfe
to
have
any
part
of
the
Land
as
parcener
,
but
if
there
be
two
Coperceners
and
they
make
partition
,
and
the
one
of
them
enfeoffs
her
Sonne
and
heire
apparant
and
dieth
,
and
after
the
Sonne
is
impleaded
;
Here
,
albeit
he
be
in
by
the
Feoffment
of
his
Mother
,
yet
shall
he
pray
in
ayde
of
the
other
Copercener
to
have
the
Warrantie
per
amount
,
and
to
recover
per
rata
,
not
onely
because
the
Warrantie
betwixt
his
Mother
and
him
is
by
Law
annulled
,
but
likewise
for
that
he
is
alter
idem
with
his
Mother
.
27
Vide
Hob.
Rep.
pag.
1.
The
Earle
of
Clanrichards
Case
10.
Grisley
against
Lother
F.
N.
B.
●10
.
Also
in
a
Formedon
in
Reverter
,
wherein
nothing
is
already
revested
,
but
the
right
onely
returnes
,
there
the
right
may
be
laid
to
return
,
either
to
the
Wife
alone
,
or
to
the
Husband
and
Wife
,
as
Douby
resolves
it
33
H.
6.
54.
See
also
18
H.
8.
20.
5
H.
3.
13.
38
E.
3.
16.
and
18
E.
3.
3.
where
it
was
sometimes
to
the
Wife
,
sometimes
to
the
Husband
and
Wife
:
But
in
a
Formedon
in
descender
upon
a
descent
to
the
Wife
,
there
the
descent
must
be
made
in
the
writ
to
the
Wife
alone
,
because
the
descent
followeth
the
bloud
,
and
to
that
the
Husband
is
a
stranger
,
and
so
are
the
Bookes
in
19
H.
6.
46.
and
53
H.
6.
10.
where
a
Formedon
in
descender
was
brought
by
two
Husbands
and
their
Wives
,
and
made
the
descent
in
bloud
to
the
Wives
onely
,
and
yet
concluded
,
that
the
right
ought
to
descend
to
the
Husbands
and
Wives
:
And
exception
was
taken
to
it
,
and
ordered
by
the
Court
,
that
it
should
be
amended
,
and
the
descent
made
onely
to
the
Wives
.
79
Nemo
praesumitur
alienam
posteritatem
suae
praetulisse
.
Primer
seisin
.
Vide
Dier
307.
71.
80
The
Law
esteemeth
and
judgeth
of
all
things
according
to
their
nature
and
quality
.
John
Baptist
,
if
such
a
tenant
die
in
winter
,
the
Lord
shall
forbear
to
distrain
for
the
Relief
,
untill
the
season
of
Roses
;
for
Lex
spectat
naturae
ordinem
,
Lex
non
cogit
ad
impossibilia
.
And
therefore
it
is
observed
by
my
Lord
Cook
,
that
Littleton
puts
a
diversity
betwéen
Corn
and
Roses
;
for
Corn
will
last
,
and
therefore
the
tenant
must
deliver
the
Corn
presently
before
the
time
of
growth
,
and
so
of
saffron
,
&c.
but
Roses
and
other
flowers
that
are
fructus
fugaces
cannot
be
kept
,
and
therefore
are
not
to
be
delivered
,
until
the
time
of
growing
;
neither
is
the
tenant
driven
by
law
artificially
to
preserve
Roses
;
for
the
Law
in
these
cases
respected
nature
,
and
the
course
of
the
year
,
&c.
7
If
there
be
two
Ioynt-tenants
,
Common
Pleas
,
in
Andrews
case
:
for
which
see
Dier
.
14.
Eliz.
311.
England
,
&c.
for
in
case
of
an
Obligation
the
Law
was
alwayes
clear
,
and
in
case
of
a
feofment
,
although
it
hath
béen
sometimes
controverted
,
yet
at
this
day
that
doubt
is
setled
,
it
having
béen
oftentimes
resolved
,
that
séeing
the
money
to
be
paid
is
a
sum
in
grosse
and
collateral
to
the
title
of
the
land
;
the
feoffor
must
tender
the
money
to
the
person
of
the
feoffée
;
and
it
is
not
sufficient
for
him
to
to
tender
it
upon
the
land
:
otherwise
it
is
of
a
rent
,
that
issueth
out
of
the
land
:
Howbeit
,
if
the
condition
of
a
bond
or
feoffment
be
to
deliver
twenty
Quarters
of
wheat
,
or
twenty
loads
of
timber
,
or
the
like
,
the
Obligor
or
Feoffor
is
not
bound
to
carry
the
same
about
,
and
to
séek
the
Feoffée
or
Obligée
;
but
the
Feoffor
or
Obligor
before
the
day
must
go
to
the
Feoffée
or
Obligée
,
and
know
where
he
will
appoint
to
receive
it
,
and
there
it
must
be
delivered
.
And
so
note
a
diversity
betwéen
money
and
things
ponderous
,
or
of
great
weight
:
Likewise
if
the
Condition
of
a
Bond
or
Feoffment
be
to
make
a
Feoffment
,
there
it
is
sufficient
for
him
to
tender
it
upon
the
Land
,
because
the
State
must
passe
by
livery
,
&c.
John
Goffe
,
the
brother
and
heir
of
R.
Goffe
,
R.
Goffe
against
Bibithe
,
as
principal
,
and
against
Hoell
David
,
as
accessarie
before
,
and
against
David
&
Thomas
,
as
accessarie
after
:
The
principal
pleads
not
guilty
,
and
by
nisi
prius
in
the
County
of
Manmouth
he
was
found
guilty
of
man-slaughter
and
not
guilty
of
murder
:
and
in
this
Case
it
was
resolved
per
Popham
Chiefe
Iustice
&
totam
Curiam
in
the
Kings
Bench
,
that
Hoell
David
was
discharged
:
because
there
could
not
be
any
accessory
before
the
fact
in
Case
of
man-slaughter
:
for
man-slaughter
ought
to
Insue
upon
a
suddaine
debate
of
effray
,
because
,
if
it
be
premeditate
,
it
is
murder
.
16
A
Feme
sole
deviseth
land
to
A.
and
his
heirs
;
in
Solo
ratione
commorantiae
,
And
it
was
adjudged
per
totam
Curiam
,
that
this
Custome
was
against
Law
for
divers
reasons
,
amongst
which
this
was
one
,
that
such
a
claim
of
a
Common
is
against
the
nature
and
quality
of
a
Common
;
for
every
Common
may
he
suspended
or
extinguished
;
but
such
a
Common
as
that
shall
be
so
incident
to
the
person
,
that
no
certain
person
shall
be
able
to
extinguish
it
:
for
so
soon
as
he
which
releaseth
,
&c.
removes
,
the
new
Inhabitant
shall
have
it
again
,
71.
3.
s.
&c.
(
without
any
cohertion
of
distresse
)
there
,
because
the
tenancy
is
charged
with
service
of
such
nature
and
quality
,
and
for
that
it
is
not
to
be
presumed
,
that
the
tenant
would
willingly
pay
more
rent
,
then
he
ought
,
the
seisin
is
traversable
,
and
not
the
tenure
,
&c.
22
A
tenant
holdeth
of
his
Lord
certain
Lands
in
soc●age
,
uncore
prist
,
because
although
it
be
parcel
of
the
Condition
,
yet
they
being
bona
peritura
,
if
will
be
a
charge
for
the
Obligor
to
kéep
them
;
and
therefore
(
in
such
case
)
he
is
not
bound
to
say
,
he
is
alwayes
ready
to
pay
the
same
100
quarters
,
&c.
Vide
Dier.
150.
84.
Uncore
prist
,
neither
hath
the
Obligée
or
Counsée
any
remedy
by
law
to
recover
the
sum
contained
in
such
defeasance
:
so
likewise
it
is
,
if
a
man
make
an
Obligation
of
100
l.
with
condition
for
the
delivery
of
corn
or
timber
,
&c.
or
for
the
performance
of
an
Arbitrement
,
or
the
doing
of
any
Act
,
&c.
This
differing
in
nature
from
the
sum
contained
in
the
Obligation
,
and
being
no
parcel
thereof
is
collateral
thereunto
;
And
therefore
in
such
Case
also
,
a
tender
and
refusal
is
a
perpetual
bar
.
The
like
Law
it
is
of
tender
and
refusal
of
money
upon
a
Mortgage
of
Land
;
because
the
money
is
collateral
,
and
differeth
in
nature
from
the
land
.
26
In
debt
against
Executors
brought
in
the
County
of
Middlesex
,
30
There
being
thrée
Coperceners
of
land
in
Gavelkind
in
reversion
,
81
In
persons
,
the
Law
looketh
at
the
excellency
of
some
,
and
giveth
them
singular
Priviledges
,
and
preheminences
above
others
,
as
to
the
King
,
the
Queen
his
Wife
,
Noblemen
,
and
Peeres
of
the
Realme
;
also
unto
persons
of
holy
Church
.
Chose
in
action
.
Petie
Serjeancie
,
&c.
Si
autem
servus
vendiderit
feodum
,
Quia
nullum
tempus
occurrit
Regi
;
And
yet
after
Office
found
,
the
King
shall
not
have
the
mean
profits
;
because
the
title
commenceth
by
the
seisure
.
Al
Roy
quant
al
droit
de
la
Corone
,
on
á
franch
Estate
ne
poet
nul
temps
accurre
,
and
another
speaking
in
the
Person
of
the
King
,
saith
,
Nul
temps
nest
limit
quant
á
mes
droits
,
&c.
Feme
covert
is
,
and
may
sue
and
he
sued
without
the
King
;
for
the
wisedome
of
the
Common
Law
would
not
have
the
King
(
whose
continuall
care
and
study
is
for
the
Publique
,
&
circa
ardua
Regni
)
to
be
troubled
and
disquited
for
such
private
,
and
petty
causes
:
So
as
the
wife
of
the
King
of
England
is
of
ability
and
capacity
to
grant
and
to
take
,
to
sue
and
to
be
sued
,
as
a
Feme
sole
by
the
Common
Law
;
Also
the
Quéen
of
England
hath
many
other
prerogatives
,
viz.
She
shall
find
no
pledges
,
for
such
is
her
dignity
as
she
shall
not
be
amerced
:
de
onerando
per
rata
portione
:
Ayde
prayer
of
the
Quéen
,
Ayde
prayer
shall
not
be
counterpleaded
no
more
then
in
the
Kings
Case
:
And
see
where
the
ayde
shall
be
granted
of
the
King
and
Quéen
:
and
where
,
of
the
Quéen
onely
,
and
she
of
the
King
:
14
E.
3.
Voucher
110.
21
E.
3.
53.
22
E.
3.
3.
b.
17
E.
3.
65.
10
E.
3.
17.
5
E.
3.
4.
15
E.
3.
Ayde
del
Roy
,
66.
10
E.
3.
18.
26
H.
6.
Ayde
le
Roy
24.
over
fact
the
very
intent
is
treason
,
as
in
the
Case
of
the
King
:
No
man
may
marry
the
Quéen
Dowager
without
the
Kings
licence
.
a
Rule
in
Law
,
that
none
but
the
King
can
write
to
the
Bishop
to
certifie
;
And
therefore
no
Inferiour
Court
,
London
,
Norwich
,
Yorke
,
or
and
other
Incorporation
can
write
to
the
Bishop
:
but
in
those
Cases
the
Plea
must
be
removed
into
the
Court
of
Common
Pleas
,
and
that
Court
must
write
to
the
Bishop
,
Lordships
Marchers
could
not
write
to
the
Bishop
:
Neither
shall
Conusance
be
granted
in
a
Quare
Impedit
,
because
the
Inferior
Court
cannot
write
to
the
Bishop
:
And
herewith
agréeth
Antiquity
:
Ass.
Pl.
49.
Note
,
That
this
present
Parliament
,
which
commenced
Anno
16.
Can.
Bishops
were
by
Act
of
Parliament
excluded
the
house
of
Lords
:
and
therefore
Quere
,
whether
at
this
day
this
Law
holds
in
their
Case
or
no
;
Howbeit
it
seemes
still
to
hold
,
because
they
still
retaine
their
Baronies
,
in
respect
whereof
they
enjoyed
Places
and
had
votes
in
that
house
,
and
(
doublesse
)
shall
still
retaine
divers
other
Priviledges
,
which
of
right
belong
to
Temporall
Peeres
,
that
have
Baronies
:
Tamen
quaere
.
How
the
Common
Law
hath
been
altered
concerning
peremptorie
Challenges
,
see
Co.
ubi
in
margine
.
magna
Carta
it
is
provided
,
Quòd
nec
super
eam
ibimus
,
ea
intentione
,
or
ad
effectum
,
or
ad
propositum
,
that
the
Feoffée
shall
do
or
not
do
such
an
Act
,
none
of
these
words
make
the
State
in
the
Land
conditional
;
For
in
judgement
of
Law
they
are
no
words
of
Condition
,
and
so
was
it
resolved
,
Hill.
18
E.
in
Co.
Banco
:
But
this
is
to
be
understood
in
the
Case
of
a
common
person
;
for
in
the
Kings
case
,
these
or
the
like
words
do
create
a
Condition
:
and
so
it
is
also
in
the
Case
of
the
will
of
a
Common
person
,
&c.
entry
sur
disseisin
an
estate
made
to
the
King
makes
no
degrée
;
Entry
in
●e
per
&
cui
,
but
in
le
post
,
&c.
nullum
tempus
occurrit
Regi
,
and
therefore
the
King
shall
alleadge
,
that
he
or
his
Progenitor
was
seised
without
shewing
any
time
;
It
is
otherwise
in
the
Case
of
a
common
person
;
for
then
the
Tenant
shall
tender
a
Di.
Mark
against
him
,
that
brings
the
writ
,
to
inquire
of
the
seisin
alleadged
in
the
Court
,
&c.
Darreine
presentment
:
Howbeit
at
the
Common
Law
,
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
,
Pl.
Co.
263.
b.
)
s.
per
an
.
is
reserved
to
I.
S.
the
Rent
thereof
is
arreare
;
In
this
Case
,
the
Patentée
cannot
enter
for
the
Condition
broken
;
because
by
the
severance
of
any
part
of
the
reversion
all
the
Condition
(
as
to
a
Common
person
)
is
intirely
destroyed
:
It
is
otherwise
in
the
Kings
Case
:
for
the
Condition
remaines
intirely
in
the
King
with
the
reversion
of
the
other
House
,
and
that
is
in
respect
of
his
prerogative
,
&c.
I.
S.
and
his
heires
,
when
in
truth
I.
S.
is
the
Kings
Villein
,
this
shall
not
enfranchise
the
Villein
by
Implication
:
There
is
the
same
Law
of
an
alien
nee
:
17
E.
3.
39.
An
Advowson
of
a
Prebendarie
holden
of
the
King
was
aliened
to
an
Abbot
and
his
successors
,
and
the
King
grants
to
the
Abbot
and
his
successors
,
that
they
shall
hold
the
Prebnedary
in
proper
use
;
neverthelesse
he
shall
seise
the
Advowson
for
alienation
in
Mortmaine
,
and
shall
destroy
the
Appropriation
:
for
he
shall
not
be
outed
of
his
right
to
the
Advowson
by
Implication
:
Fitz.
tit
.
gard.
27
,
47.
Non
omittas
propter
aliquam
libertatem
;
and
therefore
the
libertie
or
priviledge
of
an
house
shall
not
hold
out
against
the
King
:
&
besides
it
concernes
the
Common
Wealth
that
felons
be
apprehended
,
and
in
that
respect
also
the
King
hath
a
special
Interest
,
being
the
head
of
that
body
,
&c.
E.
in
B.
R.
in
Ejectione
firmae
,
it
was
resolved
,
Henry
Constables
case
.
41
Originally
the
Common
Law
gave
unto
the
King
all
such
things
,
as
were
In
nullius
bonis
,
as
Wrecke
,
viz.
Goods
,
liu●
bo●i
.
quae
naufragio
ad
terram
appelluntur
:
Flotsan
,
viz.
When
the
Ship
is
drowned
or
otherwise
perished
,
and
the
Goods
flote
upon
the
Sea
:
Lagan
(
vel
potius
Figan
)
as
when
the
Goods
so
cast
out
are
so
ponderous
,
that
they
sinke
,
and
the
Mariners
to
the
end
they
might
find
them
again
fasten
a
piece
of
Corke
or
a
Boye
to
them
,
that
will
not
sinke
,
and
therefore
this
séemes
to
be
called
Ligan
à
Ligando
:
It
gave
also
to
the
King
Estrayes
(
which
Bracton
calles
Animalia
vagantia
,
and
others
Animalia
vacantia
,
quia
Domino
vacari
debent
:
Also
treasure
trove
,
and
the
like
;
Because
by
the
Rule
of
the
Common
Law
,
when
none
could
claime
a
property
in
any
Goods
,
the
King
was
to
have
them
by
his
prerogative
:
And
therefore
Bracton
saith
,
Sunt
alia
quaedam
,
quae
in
nullius
bonis
esse
dicuntur
,
sicut
Wreccum
maris
,
Flotsan
,
Jetsan
,
and
Lagan
by
his
prerogative
,
as
well
as
wrecke
;
Albeit
they
be
,
in
or
upon
the
Sea
:
for
the
Sea
is
of
the
Kings
Ligeance
,
and
parcel
of
this
Crowne
of
England
,
as
it
is
holden
in
6
R.
1.
protection
46.
and
Britton
cap.
33.
agrées
well
with
the
opinion
of
Bracton
,
that
wrecke
,
&c.
are
things
in
nullius
bonis
,
and
come
into
the
hands
of
the
subject
Originally
by
Kings
grant
,
his
words
are
these
;
Et
ausi
purchas
lou
per
franchise
grantee
par
nous
de
choses
trowes
en
nulluy
biens
,
si
come
de
wrecke
de
neer
,
&
bestes
estrayantes
,
of
Conies
,
Levres
,
&
pessons
,
&
Fesants
,
&
Pertris
,
&
autres
Bestes
sauvages
,
par
franchise
de
aver
wrecke
de
meer
trouve
en
son
soil
,
&
waife
&
estray
trouve
en
son
fee
,
garrennes
en
ses
demesnes
terres
,
&c.
Rien
luy
doit
,
and
is
ready
to
make
his
Law
,
and
prayes
by
force
of
the
Statute
of
5
H.
4.
cap.
8.
that
the
Parliament
might
be
examined
,
which
Act
is
generall
,
viz.
that
examination
shall
be
made
,
which
is
alwayes
intended
upon
oath
:
And
there
Cokein
,
who
gave
the
Rule
,
said
,
La
Dame
d'Aburgavenie
est
un
Peere
del
Realme
,
&
ne
sera
bien
fait
de
luy
faire
venir
d'estre
examine
:
Car
par
mesme
la
reason
nous
Dames
faire
venir
chescun
Duke
on
Countee
d'Angliterre
.
Rolfe
Serjeant
,
purquoy
nou
?
Sr.
Le
dit
Statute
est
general
,
&
est
fait
pur
chescun
home
haut
&
base
;
A
que
Cokein
dit
,
le
ley
voit
over
diversity
pur
enter
Seignior
ou
Dame
,
&c.
&
auter
Common
Person
:
By
which
book
it
may
be
observed
,
that
a
Lady
,
which
is
but
the
wife
of
a
Baron
is
a
Péere
of
the
Realme
,
and
is
in
equipage
(
as
to
Nobility
and
priviledges
incident
to
their
dignities
)
with
Dukes
,
44
In
48
E.
3.
30.
Sir
Ralfe
Everden
Knight
brings
a
writ
to
the
Chancery
and
also
a
writ
of
the
Privy
seale
to
the
Iustices
,
rehearsing
,
that
he
was
a
Baron
,
and
commanding
them
to
discharge
him
of
his
oath
in
juratis
accessis
&
recognitionibus
quibuscunque
;
because
the
Barons
ought
not
to
be
sworne
upon
Inquests
and
Recognitions
against
their
wills
;
and
by
good
advise
he
was
cleerly
discharged
thereof
.
See
more
examples
to
the
same
purpose
,
ubi
in
marg.
pur
auter
vie
,
and
also
to
a
Confirmation
in
respect
of
his
Condition
(
whereby
otherwise
he
might
defeat
all
)
as
shall
be
also
in
Case
of
a
Common
Person
:
For
the
Kings
grant
shall
always
be
taken
according
to
his
expresse
intention
comprehended
in
his
grant
,
and
shall
not
extend
to
any
other
thing
by
Construction
or
Implication
,
when
it
appeares
not
by
his
grant
,
that
his
Intent
extended
unto
it
:
and
therefore
in
such
Cases
,
the
King
ought
to
be
truly
informed
,
and
he
ought
to
make
a
special
and
particular
grant
,
which
by
expresse
words
may
enure
to
all
such
several
intents
,
as
are
desired
,
&c.
Bracton
,
lib.
2.
cap.
1.
fol.
9.
Si
autem
animalia
fera
fuerint
mansueta
,
&
ex
consuetudine
eunt
&
redeunt
,
volant
&
revolant
,
(
ut
sunt
Cervi
,
Cigni
,
Pavones
,
Columbae
,
&
hujusmodi
)
eo
usque
nostra
intelligantur
,
quamdiu
habuerint
animum
revertendi
.
But
if
they
once
gain
their
natural
liberty
,
and
do
swim
in
open
and
common
Rivers
,
the
Kings
Officer
may
seise
them
in
the
open
and
common
River
for
the
King
;
because
one
white
Swan
without
such
pursuit
(
as
is
aforesaid
)
cannot
be
known
from
another
.
And
when
the
property
of
a
Swan
cannot
be
known
,
(
it
being
of
its
nature
a
Royal
Fowl
)
it
belongs
to
the
King
,
&c.
Co.
l.
8.
fol.
28.
a.
)
It
was
resolved
,
Duke
of
Cornwall
,
was
such
an
Act.
whereof
the
Iudges
and
all
the
Realm
ought
to
take
Conusance
;
because
it
concerned
the
King
,
and
his
first-born
son
and
heir
apparent
to
the
Crown
for
the
time
being
,
perpetuis
futuris
temporibus
;
Pl.
Co.
231.
F.
N.
B.
31.
f.
47.
c.
101.
a.
18
E.
3.
2.
Br.
amerciament
53.
Tit.
Amendment
63.
tit
.
Variance
59.
and
29
E.
3.
Amendment
68.
But
in
the
Kings
Case
in
a
Quare
Impedit
,
where
the
Quare
Impedit
was
praesentere
for
praesentare
,
and
after
exception
taken
to
it
,
and
before
answer
,
by
the
advice
of
the
Chancellor
,
(
out
of
which
Court
that
writ
issued
)
and
of
the
Iustices
of
the
Kings
Bench
,
the
writ
was
amended
in
the
Chancery
,
and
the
defendant
was
made
to
answer
thereunto
by
award
,
Vide
4
H.
6.
16.
&
40.
Ass.
Pl.
26.
Robert
de
Clifford
in
tail
,
and
H.
6.
grants
to
Thomas
Lord
Clifford
(
Cosin
and
Heir
of
the
body
of
Robert
the
reversion
of
the
said
Castle
,
necnon
Castrum
,
&c.
Here
,
the
Kings
intent
appeared
to
be
,
that
Thomas
Lord
Clifford
should
have
all
his
Estate
in
the
Castle
:
And
therefore
whether
it
be
taken
to
be
a
grant
of
the
Reversion
,
in
case
the
former
grant
in
tail
was
good
,
or
of
the
possession
,
in
case
that
former
grant
was
void
,
it
is
not
material
,
in
regard
it
appears
clearly
by
the
expresse
words
of
the
Charter
,
that
the
King
intended
,
he
should
have
it
in
possession
,
either
the
one
way
or
the
other
:
So
if
the
King
grant
Totum
illud
Manerium
,
sive
firmam
de
D.
or
totam
illam
Rectoriam
sive
Advocationem
de
D.
In
this
Case
also
,
whether
the
King
hath
a
Mannor
,
or
else
a
Farm
and
no
Mannor
,
or
a
Rectory
Impropriate
,
or
else
an
Advowson
,
and
no
Rectory
,
that
which
the
King
hath
,
passeth
;
for
the
effect
of
the
Grant
is
,
that
be
it
Mannor
or
Farm
,
Rectory
,
Impropriate
,
or
Advowson
,
that
which
the
King
in
truth
hath
,
passeth
by
the
Grant
.
Pl.
Co.
280.
in
Greisbrooks
Case
;
And
therefore
the
Ordinary
was
in
that
respect
appointed
in
loco
parentis
,
And
this
appears
also
by
the
construction
of
John
Stratford
,
Arch
Bishop
of
Canterbury
,
at
a
Synod
in
London
,
Anno
Domini
1380.
where
he
confessed
,
that
the
Administration
of
the
goods
of
an
Intestate
was
granted
to
the
Ordinaries
,
Consensu
Regis
&
Magnatum
Regni
,
&c.
Per
nomen
charissimi
consangninei
nostri
,
for
which
causes
the
Law
giveth
unto
them
high
and
great
priviledges
:
And
therfore
their
bodies
shall
not
be
arrested
for
debt
,
trespasse
,
&c.
because
the
Law
intends
,
that
they
assist
the
King
with
their
Counsel
pro
bono
publico
,
and
kéep
the
Realm
in
safety
by
their
prowesse
and
valour
:
And
for
the
same
reason
it
is
,
that
they
shall
not
be
put
upon
Iuries
,
albeit
that
be
for
the
service
of
the
County
:
Also
if
issue
be
taken
,
whether
the
Plaintiffe
be
an
Earl
,
or
no
,
it
shall
not
be
tried
by
the
Countrey
,
but
the
Kings
writ
:
Also
the
Defendant
shall
not
have
a
day
of
grace
against
a
Lord
of
the
Parliament
;
because
he
is
conceived
to
attend
the
publique
:
And
all
these
and
many
other
do
appear
in
our
Books
:
48
E.
3.
30.
Regist.
179.
F.
N.
B.
247.
48.
Ass.
Pl.
c.
23.
Ass.
Pl.
24.
32
H.
6.
27.
35
H.
6.
46.
So
that
,
as
when
such
an
Office
descends
to
an
infant
,
or
to
a
man
de
non
sanae
memoriae
,
they
of
necessity
ought
to
exercise
it
by
Deputy
:
so
likewise
an
Earl
for
the
necessity
of
his
attendence
(
which
the
Law
intends
)
upon
the
King
and
the
Common-wealth
,
that
Stewardship
of
a
base
Court
shall
be
executed
by
Deputy
:
Also
if
a
Parkership
be
granted
to
an
Earl
,
without
words
to
make
a
Deputy
,
yet
he
may
keep
it
by
his
servants
:
And
if
a
Duke
have
licence
to
hunt
in
a
Park
,
the
Law
will
allow
him
attendance
suitable
to
his
condition
,
&c.
George
Reynel
had
forfeited
the
Office
of
Marshal
of
the
Marshalsie
,
George
Reynels
Case
.
by
divers
voluntary
escapes
;
and
it
was
resolved
,
that
the
King
might
seise
that
Office
,
without
suing
out
a
Scire
facias
:
And
in
that
Case
it
was
observed
,
1
That
the
King
in
some
cases
shall
be
in
possession
by
seisure
without
Office
,
as
in
21
H.
7.
and
Stamf.
in
case
of
temporalties
of
a
Bishop
,
and
of
Priors
aliens
;
because
the
certainty
of
them
appears
in
the
Exchequer
.
2
He
shall
sometimes
be
in
possession
by
Office
without
seisure
,
as
of
Lands
,
Tenements
,
Offices
,
&c.
which
are
local
,
o●
whereof
continual
profit
may
be
taken
,
as
upon
condition
,
attainder
,
wardship
,
&c.
(
Vide
2
H.
7.
8.
Stamf.
55.
Dowries
case
in
Rep.
3.
and
the
Sadlers
,
Rep.
5.
)
And
the
Office
albeit
false
,
yet
cannot
be
avoided
without
traverse
;
for
he
cannot
traverse
the
Kings
title
in
the
information
,
absque
aliquo
inde
reddendo
,
or
the
like
,
Anthony
Lowes
Case
.
the
Land
by
operation
of
Law
shall
be
holden
of
the
King
in
capite
by
knights-service
,
according
to
the
rate
and
proportion
of
Land
holden
by
knights-service
,
viz.
more
or
lesse
,
according
to
the
quantity
of
the
Land
,
&c.
58
When
any
thing
is
due
to
the
King
,
in
capite
by
Knight-service
in
capite
,
and
the
residue
of
other
Lords
,
&c.
And
the
Grandfather
conveys
all
the
Lands
holden
of
other
Lords
,
and
part
of
the
capite
Lands
to
the
Father
for
life
;
the
remainder
to
the
Son
in
tail
,
the
remainder
to
the
right
heirs
of
the
Grandfather
;
And
the
residue
of
the
capite
Lands
to
four
younger
Sons
(
successively
)
for
life
,
the
remainer
to
the
right
Heirs
of
the
Grandfather
:
the
Grandfather
dies
,
the
Father
tenders
his
livery
,
and
dies
before
livery
sued
,
or
office
found
,
the
Son
being
of
full
age
and
all
this
is
found
by
office
,
and
the
Son
continues
the
livery
,
the
four
younger
Sons
being
still
in
life
.
In
this
Case
,
albeit
by
the
death
of
the
father
before
livery
sued
,
the
King
hath
lost
the
priviledge
of
having
primer
seisin
after
the
death
of
the
Grandfather
(
as
it
was
adjudged
in
Northcots
case
,
and
in
Hales
case
,
in
the
8
Rep.
&c.
)
for
here
the
Son
shall
not
sue
livery
,
nor
pay
primer
seisin
,
because
they
were
due
by
the
Father
,
after
the
death
of
the
Grandfather
:
and
the
Son
(
living
the
Father
)
is
not
within
the
Statutes
of
32
&
34
H.
8.
for
the
Lands
conveyed
unto
him
;
Neverthelesse
,
in
the
same
Case
,
the
King
shall
have
primer
seisin
for
the
Lands
conveyed
to
the
younger
Sons
,
because
they
are
within
the
thrée
Cases
,
in
which
wardship
and
primer
seisin
are
given
unto
the
King
,
by
the
said
Acts
,
viz.
Advancement
of
his
wife
,
preferment
of
his
children
,
and
payment
of
his
debts
:
And
the
reason
hereof
is
,
because
when
the
said
Acts
give
unto
the
King
primer
seisin
,
it
is
intended
of
an
actual
and
effectual
primer
seisin
,
and
not
of
one
which
is
onely
Mathematical
and
Imaginary
:
for
(
as
before
is
said
)
the
King
ought
alwayes
to
have
a
full
and
compleat
effect
of
the
thing
,
which
is
due
unto
him
.
So
also
if
the
King
hath
title
to
present
by
lapse
hâc
vice
,
and
he
present
,
and
his
Clerk
is
admitted
and
instituted
,
but
dies
before
induction
:
In
this
Case
,
the
King
shall
present
again
;
for
he
had
not
the
full
and
compleat
effect
of
his
presentation
,
as
it
was
resolved
by
Sir
James
Dyer
&
rotam
Curiam
,
in
Gyles
.
his
Case
,
18
Eliz.
in
Co.
Ba.
Likewise
if
the
King
marry
a
daughter
,
Ambrosia
Gores
case
in
the
6
Rep.
fol.
22.
quod
nullum
tempus
occurrit
Regi
,
and
therefore
the
general
Acts
of
Limitations
,
or
of
Plenarty
shall
not
extend
unto
him
:
Ass.
Pl.
75
)
If
goods
be
devised
to
the
King
,
in
whose
hands
soever
they
come
,
the
possessor
shall
be
charged
in
accompt
to
the
King
,
and
the
King
shall
not
be
put
to
his
Action
of
Trespasse
;
for
then
by
the
death
of
the
party
the
King
should
be
without
remedy
:
but
the
King
by
his
Prerogative
may
have
an
Action
of
accompt
against
the
executors
of
the
party
,
as
appears
in
Littleton
,
fol.
28.
And
the
King
is
not
constrained
to
charge
the
Defendant
,
as
Bailiff
or
Receiver
,
as
a
common
person
ought
;
but
the
King
may
alledge
in
his
Information
generally
,
that
he
ad
compotum
Domino
Regi
reddend
.
tempore
mortis
suae
tenebatur
in
such
sums
of
money
due
to
the
King
,
&c.
as
appears
by
many
presidents
in
the
Exchequer
,
and
in
the
Kings
Bench
;
And
therefore
if
the
Earl
was
in
his
life-time
bound
to
render
an
accompt
unto
the
King
,
his
executors
shall
do
it
after
his
decease
,
&c.
If
one
by
Letters
Patents
,
or
by
vertue
of
his
Office
,
hath
power
to
assesse
Fines
upon
grants
or
admittances
made
to
Copiholders
within
such
a
Mannor
of
the
Kings
,
and
he
assesseth
little
fines
for
the
King
,
and
under-hand
takes
great
summes
,
or
other
rewards
of
the
Copiholders
to
his
own
use
,
in
deceit
and
prejudice
of
the
King
:
In
this
case
he
shall
be
charged
to
the
King
in
accompt
for
all
;
for
in
truth
all
was
due
to
the
King
;
and
if
he
die
,
his
executors
in
the
Kings
Case
shall
be
charged
;
for
it
is
holden
in
39
Ass.
Pl.
18.
that
the
Officers
and
Ministers
of
the
King
may
advantage
him
,
but
can
never
do
any
thing
to
his
dis-advantage
.
Walter
Mildmay
,
Knight
,
Chancellor
of
that
Court
,
to
render
an
accompt
of
1525
l.
of
the
Quéens
treasure
by
him
converted
to
his
own
use
,
&c.
the
Defendants
plead
,
that
Sir
Walter
Mildmay
non
recepit
,
&c.
ad
computandum
,
nec
die
mortis
tenebatur
Reginae
in
Compoto
,
&c.
And
the
special
Verdict
was
,
that
the
Treasurer
and
Vnder-treasurer
of
the
Exchequer
made
a
warrant
to
four
Tellors
or
two
,
to
pay
to
Sir
Walter
Mildmay
100
l.
per
annum
,
for
his
diet
,
and
40
l.
per
annum
for
his
Attendance
in
the
Vacation
(
by
reason
that
by
the
annexing
of
the
Court
of
first-fruits
and
Augmentation
the
Chancellor
was
constrained
to
attend
more
than
other
Chancellors
had
formerly
done
)
And
in
2
Eliz.
the
Quéen
directs
a
Privy
Seal
to
the
Treasurer
,
Chamberlaines
,
and
Vnder-treasurer
of
the
Exehequer
,
commanding
them
or
some
of
them
to
pay
to
such
as
should
be
imployed
by
her
,
&c.
for
their
labours
and
expences
,
at
their
discretions
,
according
to
their
merits
,
in
as
large
manner
,
as
any
Treasurer
,
Chamberlains
,
or
Vnder-treasurer
had
done
before
:
And
in
this
Case
it
was
resolved
,
that
no
Officer
nor
all
of
them
together
can
ex
officio
dispose
of
the
Kings
treasure
without
the
Kings
warrant
,
although
it
be
for
the
honour
and
profit
of
the
King
;
because
the
Kings
treasure
is
the
ligament
of
peace
,
and
the
sinews
of
war
,
and
of
so
high
a
nature
,
that
the
imbezeling
of
treasure
trove
(
although
not
found
in
the
Kings
Coffers
)
was
treason
;
And
treasure
and
other
valuable
chattels
are
so
necessary
and
incident
to
the
Crown
,
that
,
in
the
Kings
Case
,
they
shall
go
with
the
Crown
to
the
successor
,
and
not
to
executors
,
as
in
case
of
common
persons
,
as
appears
in
7
H.
4.
43.
and
44
E.
3.
42.
Neither
yet
doth
every
warrant
serve
for
the
issuing
of
the
Kings
treasure
;
for
it
cannot
be
done
by
Parol
,
or
by
the
privy
Signet
;
but
ought
to
be
done
under
the
Great
Seal
,
or
Privy
Seal
:
It
was
also
further
resolved
in
this
Case
,
that
albeit
Sir
Walter
had
thus
received
the
Quéens
treasure
to
his
own
use
;
yet
inasmuch
as
he
received
it
without
lawful
warrant
(
he
knowing
that
it
was
the
Quéens
treasure
)
the
Law
makes
privity
in
the
Quéens
Case
;
and
therefore
she
might
charge
him
as
an
Accomptant
:
And
so
it
was
also
adjudged
in
the
Exchequer
in
Jurdens
Case
,
P.
31.
Eliz.
Rot.
150.
Neither
yet
is
it
of
necessity
,
that
the
Kings
money
or
goods
should
come
into
the
hands
of
the
Testator
;
for
if
he
were
onely
a
mean
or
Instrument
,
whereby
the
King
was
put
to
loss
or
damage
,
he
shall
be
charged
with
so
much
as
he
hath
so
endamaged
the
King
,
and
shall
be
compelled
at
the
Kings
Suit
reddere
rationem
thereof
,
which
is
in
nature
of
an
Accompt
,
for
which
there
is
a
notable
president
in
M.
30.
E.
3.
Rot.
6.
Porters
Case
,
which
sée
in
Co.
l.
11.
92.
b.
in
the
Earl
of
Devonshires
Case
.
And
therefore
it
was
also
resolved
in
Sir
Walter
Mildmayes
Case
,
that
the
Quéen
might
either
charge
the
executors
of
Sir
Walter
,
or
those
that
made
such
unlawful
warrant
,
at
her
election
:
And
if
they
were
dead
,
their
executors
,
&c.
for
in
as
much
as
they
were
in
their
life-time
chargeable
by
the
Law
;
in
that
Case
,
if
they
die
before
judgement
against
them
,
without
question
their
executors
shall
be
charged
;
because
where
the
Testator
is
by
the
Law
chargeable
to
satisfie
the
King
for
losse
or
dammage
done
unto
him
,
his
death
shall
not
dispence
therewith
but
that
his
Executors
shall
be
also
chargeable
to
the
King
,
&c.
petit
Cape
returned
,
make
default
,
that
before
judgment
upon
that
default
the
King
may
command
such
a
writ
to
the
Iustices
rehearsing
,
that
the
tenant
was
in
his
service
,
&c.
and
commanding
them
that
his
default
should
not
turn
to
his
prejudice
:
And
it
stands
with
reason
,
that
the
King
may
do
it
;
because
every
one
is
bound
to
serve
the
King
in
his
affairs
,
&c.
Rex
vice
comiti
,
&c.
praecipe
R.
de
C.
quod
justè
,
&c.
permittat
nos
&
P.
de
T.
praesentare
,
&c.
But
Fitz.
saith
in
his
N.
B.
that
the
common
opinion
in
his
time
was
,
that
the
King
should
have
the
whole
presentment
sole
,
and
should
have
a
sole
Action
,
&c.
although
he
séems
to
hold
the
contrary
himself
,
Ideò
quaere
.
Ne
admittas
,
after
the
six
moneths
past
,
Assise
de
Darrein
presentment
depending
,
because
Nullum
tempus
occurrit
Regi●
;
It
is
otherwise
in
the
Case
of
a
common
person
;
because
the
Bishop
may
then
present
by
laps
,
the
title
of
presentment
being
devolved
to
him
,
&c.
Jac.
cap.
1.
that
Clause
of
that
Statute
was
repealed
:
So
that
at
this
day
it
séems
,
that
the
Subject
hath
the
same
liberty
that
he
had
at
the
Common
Law
:
Ideo
quaere
de
hoc
.
But
now
matters
,
that
concerne
Sewers
,
are
regulated
by
direct
late
Statute
,
viz.
23
H.
8.
5.
&
13
El.
9.
&c.
Assise
de
Novel
disseisin
,
if
the
King
send
his
writ
to
the
Iustices
that
the
Defendant
holds
the
Land
put
in
view
of
the
Kings
gift
for
term
of
life
,
by
the
Kings
Charter
,
commanding
them
not
to
procéed
,
Rege
Inconsulto
here
,
although
the
Tenant
will
not
plead
this
,
yet
it
séemes
that
the
Iustices
ought
to
cease
by
that
writ
:
So
if
the
King
rehearse
in
the
writ
,
that
the
Tenant
is
in
his
service
in
warre
beyond
Sea
,
or
in
Scotland
,
and
that
he
holds
by
Charter
of
the
Kings
grant
for
term
of
life
commanding
,
that
they
shall
not
procéed
,
Rege
Inconsulto
,
but
to
continue
the
Assise
,
untill
a
certain
day
;
there
also
it
séems
,
they
shall
surcease
;
Because
the
Tenant
cannot
plead
it
;
for
if
the
Escheator
will
say
,
that
he
seised
the
Land
into
the
Kings
hand
,
in
an
Assise
brought
by
any
person
,
the
Court
shall
surcease
for
that
saying
,
and
by
force
of
the
Kings
Certificate
,
&c.
De
exoneratione
sectae
,
&c.
out
of
the
Chancery
,
to
discharge
themselves
of
such
service
,
&c.
De
exoneratione
sectae
,
&c.
to
discharge
themselves
of
it
,
&c.
Coronatoribus
in
Com.
L.
this
is
to
be
understood
(
in
the
Kings
Case
)
Coronatoribus
de
Com.
L.
for
the
Kings
writs
,
in
such
Cases
,
91
The
particular
prerogatives
due
to
the
King
by
the
Common
Law
may
be
(
for
that
most
part
)
referred
to
one
of
the
eight
heads
hereafter
following
,
notified
in
the
outward
margent
by
their
several
and
respective
letters
,
as
followeth
,
-
1
Divine
perfection
.
A
-
2
Infinitenesse
.
B
-
3
Majesty
.
C
-
4
Soveraignity
&
power
.
D
-
5
Perpetuity
.
F
-
6
Justice
.
G
-
7
Truth
.
H
-
8
Omniscience
.
I
A.
de
B.
Bishop
of
N.
and
to
a
secular
man
,
96
When
an
Earldome
or
Baronie
descends
to
one
Daughter
or
other
heire
Female
,
she
shall
solely
enjoy
both
the
Dignity
and
Lands
,
97
If
the
King
grant
his
owne
recognisance
,
the
suit
shall
be
in
the
name
of
the
grantée
;
but
if
he
grant
an
obligation
forfeited
for
outlawrie
,
Fuit
dit
.
98
Bruerton
,
who
was
attained
28
H.
8.
had
certaine
obligations
,
Notwithstanding
any
Statute
to
the
contrary
,
otherwise
it
is
not
good
,
as
the
Statute
of
23
H.
6.
8.
ordaines
,
that
the
Kings
grant
to
be
Sheriffe
of
any
County
longer
then
a
yeare
shall
be
void
,
notwithstanding
that
his
Patent
shall
have
a
Clause
of
Non
obstante
,
yet
with
a
Clause
of
Non
obstante
such
Patent
shall
be
good
,
Cesty
que
use
should
enter
upon
him
,
for
it
is
not
for
the
Common
Wealth
,
neither
yet
is
the
King
named
therien
.
Vide
Fitzh
.
Tit.
Qu.
Impedit
151.
8
E.
3.
and
M.
16
&
Trin.
38
E.
3.
&
Stat.
Westm.
2.
c.
5.
106
The
Kings
Certificate
under
his
signet
Manual
was
received
as
evidence
in
Chancery
without
exception
,
82
Likewise
the
Law
giveth
greater
priviledges
to
men
,
then
to
Women
.
Fitz.
title
Villein
32.
36
,
&
37.
83
The
Law
tendreth
the
weaknesse
and
debility
of
other
persons
,
as
those
out
of
the
Realme
,
in
Prison
,
Femes
covert
,
and
other
Women
also
:
Likewise
Infants
,
Lunatiques
,
Ideots
,
and
such
as
have
other
imperfections
.
Feme
covert
after
she
becomes
sole
,
do
assent
unto
the
partition
it
shall
bind
her
for
ever
:
and
therefore
in
that
Case
the
partition
is
not
void
but
onely
voidable
:
There
is
the
same
Law
of
an
Infant
,
that
assents
after
he
attaines
his
full
age
,
&c.
privement
enseinte
)
the
descent
was
cast
before
his
birth
:
for
then
there
was
not
cause
of
entry
at
the
time
of
the
descent
cast
,
&c.
Feme
Covert
,
5
If
a
descent
be
cast
during
the
life
of
one
that
is
non
compos
mentis
,
albeit
he
himselfe
cannot
enter
(
because
he
cannot
disable
himselfe
)
yet
his
heire
may
well
enter
notwithstanding
such
descent
,
in
salva
,
7
A
man
out
of
the
Realme
in
the
Kings
service
,
E.
e.
cap.
6.
or
that
of
making
proclamations
after
a
fine
,
12
If
Husband
and
Wife
be
both
within
age
,
Dum
fuit
infra
aetatem
:
But
if
she
were
of
full
age
,
she
shall
not
have
a
Dum
fuit
infra
aetatem
,
for
the
non-age
of
her
Husband
;
Albeit
they
be
but
one
person
in
Law
.
13
If
two
joyntenants
being
within
age
,
make
enfeoffment
in
Fée
,
Dum
fuit
infra
aetatem
,
but
for
the
moity
onely
.
15
If
Tenant
in
taile
enfeoffe
his
heire
apparent
,
16
If
tenant
in
taile
enfeoffe
a
Feme
in
Fée
,
and
die
,
and
his
issue
within
age
takes
the
same
Feme
to
Wife
,
17
If
a
Feme
seised
of
lands
in
fée
take
Baron
,
Feme
,
&c.
yet
in
such
an
Action
if
the
Baron
make
default
to
the
great
distresse
,
and
the
Feme
pray
to
be
received
,
and
is
received
accordingly
,
she
may
well
shew
the
whole
matter
,
and
how
she
is
in
her
remitter
,
and
so
shall
she
bar
the
Lessor
of
his
Action
,
&c.
for
regularly
in
every
Case
,
where
the
Feme
is
received
for
default
of
the
Baron
,
she
shall
in
pleading
have
the
same
advantage
that
a
Feme
sole
hath
,
&c.
There
is
the
same
Law
,
if
the
Alienée
had
made
the
Lease
by
Déed
indented
,
or
by
Fine
,
because
in
taking
a
thing
by
Fine
,
the
Feme
is
never
examined
,
&c.
Feme
covert
be
received
in
an
Assise
,
and
plead
a
Record
,
Feme
covert
onely
levy
a
Fine
executory
,
and
a
Scire
facias
is
brought
against
her
and
her
husband
,
if
she
be
received
upon
the
default
of
the
husband
,
she
shall
bar
the
Conusée
,
which
if
she
had
béen
sole
,
she
could
not
do
,
&c.
Feme
covert
,
viz.
whether
she
be
content
to
levy
a
Fine
of
such
lands
(
naming
them
particularly
and
distinctly
,
and
the
state
that
passeth
by
the
Fine
)
of
her
own
voluntary
free
will
,
and
not
by
threats
,
menaces
,
or
any
other
compulsory
means
.
22
At
the
Common
Law
(
before
the
Statute
of
11
H.
7.
cap.
20.
23
Albeit
Laches
of
a
man
non
compos
mentis
may
prejudice
him
for
his
entry
(
as
if
he
be
disseised
,
de
modo
levandi
Fines
,
made
Anno
18.
E.
1.
which
was
nothing
else
but
a
Declaration
of
the
Common
Law
:
There
is
the
same
Law
of
an
Infant
,
one
in
prison
,
or
not
within
the
four
Seas
,
or
of
a
woman
not
duly
examined
;
for
in
all
these
Cases
a
Fine
was
not
binding
at
the
Common
Law
,
although
claim
was
not
made
within
a
year
and
a
day
,
as
appears
by
the
same
Statute
,
&c.
There
is
also
the
like
exception
of
such
persons
in
the
later
Statute
of
Fines
,
with
Proclamations
made
,
4
H.
7.
cap.
24.
which
proves
,
that
the
Law-makers
had
in
all
Ages
a
special
care
to
provide
for
persons
that
had
such
defects
and
imperfections
,
&c.
Britton
.
fol.
16.
and
likewise
by
Prerogativa
Regis
,
cap.
9.
made
17
E.
2.
which
was
nothing
else
but
a
Declaration
of
the
Common
Law
:
And
albeit
that
Statute
onely
saith
,
Quòd
Rex
habebit
custodiam
terrarum
fatuorum
naturalium
,
&c.
yet
the
King
shall
have
as
well
the
custody
of
their
bodies
and
goods
,
as
of
their
lands
,
and
also
of
all
other
hereditaments
,
as
well
those
which
they
have
by
purchase
,
as
others
which
they
have
by
inheritance
at
the
Common
Law
,
&c.
And
the
reason
of
this
is
,
because
(
as
Fitz.
N.
B.
saith
,
232.
)
the
King
is
bound
of
right
by
his
Laws
to
defend
his
Subjects
,
their
Goods
and
Chattels
,
Lands
and
Tenements
:
And
therefore
every
Subject
being
by
the
Law
in
the
Kings
protection
,
an
Ideot
who
cannot
defend
or
govern
himself
,
nor
order
his
Estate
,
ought
of
right
to
have
both
his
person
and
estate
protected
and
ordered
by
the
King
,
&c.
pro
bono
&
commodo
of
the
Infant
,
and
not
for
his
prejudice
;
Also
such
an
Administrator
cannot
assent
to
any
legacy
,
unlesse
there
be
Assets
to
pay
debts
,
&c.
and
generally
,
he
can
do
nothing
to
the
prejudice
of
the
Infant
;
for
the
words
of
the
letters
of
Administration
are
,
Administrationem
omnium
&
singulorum
bonorum
ad
opus
,
commodum
,
&
utilitatem
executoris
durante
sua
minore
aet●te
,
&
non
alitèr
,
nec
alio
modo
committimus
,
&c.
27
Generally
in
all
Actions
real
,
Entry
sur
disseisin
,
of
a
disseisin
made
to
the
Infant
himself
:
And
41
E.
3.
tit
.
Age
39
in
a
Writ
of
Right
of
a
deforcement
done
to
the
Infant
himself
of
land
,
which
he
had
by
descent
:
So
likewise
in
Escheat
and
Cessavit
,
and
a
writ
of
Right
sur
disclaimer
brought
by
an
Infant
,
because
he
hath
the
Seigniory
in
possession
,
which
by
Escheat
,
Cesser
,
or
Disclaimer
he
might
lose
:
and
in
that
Case
also
his
Ancestor
had
no
right
to
the
land
,
and
therefore
the
Parol
shall
not
stay
for
his
non-age
:
In
like
manner
in
a
writ
of
Mesne
brought
by
an
Infant
,
because
the
cause
of
Action
,
and
the
wrong
begins
in
the
time
of
the
Infant
himself
,
the
Parol
shall
not
stay
,
&c.
21
E.
3.
Age
85.
Temp.
E.
1.
Age
119.
7
E.
2.
Age
140.
Also
in
a
Formedon
in
remainder
,
albeit
the
Infant
demands
Fee-simple
,
yet
because
his
Ancestor
,
whose
Heir
he
is
,
was
never
in
seisin
,
nor
took
explees
,
(
and
therefore
in
such
Case
he
shall
alledge
explees
onely
in
the
particular
tenant
,
who
had
the
estate
upon
which
the
remainer
depended
)
for
this
cause
the
tenant
(
without
plee
)
cannot
pray
,
that
the
Parol
may
stay
,
in
as
much
as
the
remainder
was
never
in
the
possession
of
any
of
his
Ancestors
,
and
the
Demandant
himself
is
the
first
,
in
whom
it
will
vest
,
and
that
shall
have
seisin
of
the
land
in
demand
,
&c.
It
is
otherwise
in
a
Form
.
in
reverter
,
causa
qua
suprà
.
Ass.
Pl.
45.
44
E.
3.
tit
.
Amerc.
10.
3
E.
3
Enfant
14.
14
Ass.
Pl.
17.
41
Ass.
Pl.
14.
17
E.
3.
75.
Bracton
.
fol.
254.
F.
N.
B.
195
h.
Richard
Letchfords
cas
.
31
A
Custome
(
that
the
Lord
shall
seise
Copiholds
after
thrée
Proclamations
at
thrée
Courts
,
and
non-claim
by
the
heir
,
(
extra
Maria
)
at
the
time
of
the
Proclamations
made
;
so
it
is
also
of
an
Infant
,
non
compos
mentis
,
or
one
in
prison
;
because
(
in
judgment
of
Law
)
they
are
not
bound
to
make
claim
,
neither
yet
(
by
intendment
)
can
they
have
notice
thereof
;
for
,
if
these
four
persons
were
excused
(
by
the
Common
Law
)
though
they
made
not
claim
within
a
year
and
a
day
after
a
Fine
levied
,
or
a
Recovery
in
a
writ
of
Right
(
being
matters
of
record
,
and
of
extraordinary
high
esteem
)
in
the
Law
)
so
that
they
were
not
barred
of
their
right
,
notwithstanding
their
non-claim
:
A
Fortiori
,
shall
not
Proclamations
made
in
a
base
Court
,
and
in
a
private
corner
be
any
bar
unto
them
,
&c.
Vide
5
E.
3.
222.
and
7
E.
3.
335.
Also
,
if
in
a
real
Action
a
Recovery
by
default
be
had
against
a
man
in
prison
,
it
shall
not
binde
him
,
but
he
may
reverse
it
by
writ
of
Errour
,
as
appears
5
E.
3.
50.
b.
4
E.
2.
Disceit
51.
Littleton
102.
b.
Attorney
,
Vide
11
H.
4.
33.
in
pais
,
the
Attornment
is
good
;
yet
in
a
writ
of
Customes
and
Services
,
(
which
is
a
writ
of
Right
in
his
nature
,
Attornment
Br.
per
Coke
,
Ch.
Justice
,
l.
9
85
b.
2.
in
Connys
Case
.
that
he
holds
the
land
for
term
of
life
of
a
Lease
of
the
Infants
Ancestor
,
who
granted
that
he
should
not
be
impeached
of
waste
by
déed
,
which
he
shewed
forth
to
the
Court
:
Mary
Portingtons
Case
,
per
Coke
Ch.
Justice
.
that
if
she
should
apparently
and
willingly
conclude
and
agree
to
dis-continue
the
Estate
,
&c.
that
then
the
land
should
from
thenceforth
remain
to
another
,
&c.
the
Feme
takes
husband
,
and
they
two
conclude
and
agrée
with
J.
S.
to
suffer
a
recovery
of
the
Land
,
with
intention
to
make
void
the
Estate
,
and
thereupon
a
common
recovery
was
suffered
accordingly
,
&c.
And
in
this
Case
Coke
Chief
Iustice
was
of
opinion
,
Feme
covert
was
of
no
force
:
neither
yet
could
be
any
cause
of
forfeiture
:
for
no
Feme
covert
shall
be
barred
(
by
her
confession
)
of
her
inheritance
or
frank-tenement
;
but
when
she
is
examined
by
due
course
of
Law
(
15
E.
4.
8.
44
E.
3.
28.
Vide
14
E.
4
,
5.
)
And
none
hath
power
to
examine
a
Feme
covert
without
writ
(
Vide
21
E.
3.
43.
John
de
Holbornes
Case
.
)
And
this
is
the
cause
,
that
if
Baron
and
Feme
acknowledge
a
Statute
or
Recognizance
,
this
is
void
,
as
to
the
Feme
,
albeit
she
survive
her
Baron
,
as
it
was
holden
P.
17
Eliz.
in
the
Countesse
of
Lennox
Case
:
So
if
Baron
and
Feme
acknowledge
a
Déed
to
be
enrolled
,
and
it
is
enrolled
accordingly
,
this
also
is
void
,
as
to
the
Feme
,
(
Vide
29
H.
8.
Faits
enroll
.
Br.
14.
and
7
E.
4
,
5.
16
H.
7.
5.
and
21
E.
3.
43.
)
And
the
reason
is
,
because
no
such
writ
is
depending
against
the
Baron
and
Feme
,
upon
which
the
Feme
may
by
the
Law
be
examined
:
El.
cap.
2.
El.
in
B.
R.
per
Wray
Chief
Iust.
&
totam
Curiam
in
Vaughans
Case
;
feme
covert
is
dis-abled
to
convey
her
Land
,
unlesse
it
be
by
fine
upon
due
examination
,
and
so
also
was
it
holden
in
the
aforesaid
Case
of
Vaughan
.
37
If
an
infant
hath
a
Mannor
by
descent
,
38
If
a
Lease
be
made
to
Baron
and
Feme
for
life
or
yeares
,
39
A
man
may
have
a
Writ
of
accompt
against
a
Feme
,
40
Women
shall
not
be
compelled
nor
distrained
to
come
to
the
Sherifs
turne
,
de
exoneratione
sectae
,
&c.
to
excuse
themselves
of
that
service
,
and
thereupon
they
may
also
have
alias
plura
and
attachment
,
&c.
And
for
as
much
as
Femes
shall
not
be
sworne
in
Léets
to
the
King
,
as
men
of
the
age
of
twelve
yeares
or
upwards
shall
be
,
when
a
Woman
is
out-lawed
she
is
said
to
be
waived
and
not
out-lawed
;
for
she
was
never
put
nor
sworne
to
the
Law
,
but
a
man
is
said
to
be
out-lawed
,
because
he
is
,
or
ought
to
be
sworne
to
the
Law
,
and
then
for
contumacy
he
is
put
out
of
the
Law
,
and
so
is
said
to
be
ut
lagatus
,
quasi
extra
legem
positus
:
And
by
the
Rule
of
the
Register
two
Women
may
joyne
in
such
a
writ
,
&c.
41
If
an
infant
of
tender
age
(
viz.
under
the
yeares
of
discretion
)
kill
a
man
,
de
non
sanae
memoriae
kill
another
,
albeit
he
hath
broken
the
words
of
the
Law
,
yet
he
hath
not
broken
the
Law
:
because
he
hath
not
any
memory
,
or
understanding
,
but
mere
ignorance
,
which
falls
upon
him
by
the
hand
of
God
:
and
therefore
the
Law
imputes
it
to
involuntary
ignorance
and
not
to
him
,
so
that
he
shall
be
excused
for
the
doing
of
it
,
&c.
per
Hales
.
in
consideration
of
the
frailty
and
inconstancy
of
Women
,
ordained
that
Law
to
restraine
them
from
the
alienation
of
the
Lands
of
their
deceased
Husbands
:
and
because
they
did
conceive
that
they
might
(
by
flattering
words
)
be
easily
deluded
and
inticed
to
covin
,
therefore
they
ordained
in
that
Act
a
penalty
against
them
,
as
a
bridle
of
their
inconstancy
,
to
prevent
them
from
being
(
in
that
manner
)
seduced
.
&c.
Jo.
S.
per
iij.
d.
who
held
over
of
an
other
by
xx
.
d.
and
Jo.
S.
release
to
the
Husband
(
so
as
now
the
Husband
holds
by
xx
.
d.
)
the
wife
being
endowed
of
this
land
,
shall
hold
onely
by
the
third
part
of
iij.
d.
and
not
of
xx
.
d.
prochiene
amy
.
Minor
verò
,
non
summons
,
neither
shall
his
default
in
such
Case
grieve
him
:
for
séeing
the
mean
to
excuse
the
default
is
taken
away
by
Law
;
the
default
it self
shall
not
prejudice
him
:
Howbeit
,
an
Infant
at
the
age
of
12
yeares
shall
take
the
oath
of
Allegiance
to
the
King
,
an
this
was
(
as
Bracton
saith
)
Secundum
leges
Sancti
Edwardi
,
but
indéed
such
was
the
Law
in
the
time
of
King
Arthur
.
Howbeit
,
an
Infant
cannot
wage
his
Law
in
an
Action
of
debt
,
no
more
then
make
oath
of
non
summons
,
as
afore-said
.
47
In
Trespass
by
Will
.
de
Walton
against
John
Martin
judgement
was
given
,
&
quod
praedict.
Joannes
capiatur
.
And
the
Record
saith
,
quod
praedict
Joannes
venit
coram
Domino
Rege
&
reddidit
se
prisonae
,
&
quia
constat
Curiae
per
inspectionem
corporis
ipsius
Joannis
,
quod
idem
Joannes
est
talis
aetatis
quod
poenam
imprisonamenti
subire
non
potest
,
idem
dictum
est
ei
,
quod
eat
inde
sine
die
.
Also
Allen
Abbot
brought
an
appeale
of
Robbery
against
John
Boskiseleke
Clerk
and
others
,
who
pleaded
Not-guilty
,
and
were
not
found
guilty
,
whereupon
judgement
was
given
,
that
they
should
go
quit
,
&
praedict
Elena
pro
falso
appello
suo
committatur
prisonae
,
&c.
(
for
by
the
Statute
of
Westm.
2.
cap.
12.
she
ought
to
be
imprisoned
in
that
Case
for
a
yeare
)
but
the
Record
saith
,
Quia
cadem
Elena
pregnans
fuit
,
&
in
periculo
mortis
,
ipsa
dimittitur
per
manucaptionem
,
&c.
ad
habendum
corpus
usque
Quind
.
Mich.
&c.
48
Vide
Max.
135.
1.
and
for
Infants
sée
Dier
104
:
a.
10
,
&c.
and
Max.
149.
55.
Dier
148.
75.
&
338.
41.
84
The
Law
(
in
some
Cases
)
tendreth
the
ignorance
of
men
un-lettered
.
(
volo
)
to
be
a
good
confirmation
for
term
of
his
life
;
Benignae
enim
faciendae
sunt
interpretationes
cartarum
propter
simplicitatem
Laicorum
,
ut
res
magis
valeat
quàm
pereat
.
Co.
lib.
5.
55.
b.
2.
in
Knights
Case
.
Latin
,
French
,
or
any
other
Language
)
which
the
partie
,
that
should
seale
the
writing
,
understandeth
not
(
in
that
Case
if
the
partie
desire
one
to
read
it
and
expound
it
,
and
there
is
none
present
,
that
can
or
will
do
it
in
a
language
,
that
the
party
sealing
doth
understand
he
may
well
then
refuse
to
deliver
it
:
So
likewise
,
albeit
a
man
can
read
,
yet
if
the
déed
be
written
in
Latin
,
French
,
or
some
other
language
,
that
he
understand
not
,
and
he
demand
to
have
it
expounded
,
but
can
not
have
it
done
accordingly
:
In
that
Case
also
he
may
refuse
to
deliver
it
:
For
,
Ignorantia
est
duplex
,
viz.
facti
&
juris
,
&
rursum
ignorantia
facti
(
quoad
rem
nostram
attinet
)
est
duplex
,
viz.
Lectionis
&
linguae
:
Now
ignorance
in
reading
or
of
the
language
,
quae
sunt
ignorantiae
facti
,
may
excuse
:
but
as
it
is
commonly
said
,
ignorantiae
Juris
non
excusat
.
Thorough
goods
Case
.
Co.
l
4.
44.
b.
3.
in
Sanches
Case
.
Co.
l.
9
51.
b.
in
the
Earle
of
Shroesburys
Case
.
3
A
writing
read
or
expounded
in
another
forme
then
it
purports
,
to
one
not
Lettered
,
is
not
his
déed
,
though
be
seal
and
deliver
it
.
4
An
Indictment
ought
to
be
full
expresse
and
certaine
,
5
Pleading
ought
to
be
precise
,
exact
,
and
certain
:
In
the
Earle
of
Shroesburys
Case
.
6
If
three
distinct
obligations
are
written
upon
one
and
the
same
piece
of
Parchement
,
Henry
Pigots
Case
.
and
one
of
them
onely
is
read
to
the
obligée
,
xx
l.
against
another
and
counts
upon
an
obligation
of
the
same
summe
,
the
defendant
pleads
that
he
was
a
Lay-man
,
and
knew
not
letters
,
and
he
acknowledged
himselfe
to
be
bound
to
the
Plaintife
by
the
said
déed
in
20
shillings
,
which
he
hath
paid
,
and
thereof
sheweth
an
acquitance
,
and
as
to
the
residue
of
the
summe
in
the
said
Obligation
,
nient
son
fait
:
And
in
this
Case
,
for
as
much
as
the
déed
consisted
upon
an
intire
summe
,
it
was
adjudged
void
for
all
:
The
same
is
also
agréed
in
14
H.
8.
26.
&
30
E.
3.
31.
in
pais
,
Hear
.
Pigots
Case
.
the
Tenant
pleads
feoffement
of
the
Plaintifs
to
him
by
déed
of
the
Land
in
plea
,
to
have
and
hold
to
him
and
his
Heires
,
comprehending
a
letter
of
Attorney
to
deliver
seisin
,
&c.
And
in
truth
the
Plaintiffe
was
a
Lay-man
,
ignorant
of
Letters
,
and
the
déed
with
the
letter
of
Attorney
was
read
unto
him
according
to
the
forme
of
an
Estate
taile
,
and
for
the
same
intent
he
sealed
and
delivered
the
déed
with
the
letter
of
Attorney
in
it
to
deliver
seisin
;
And
in
this
Case
,
the
feoffment
was
adjudged
void
,
and
the
letter
of
Attorney
also
(
albeit
it
were
truly
read
)
because
it
depended
upon
the
feoffment
,
and
had
relation
to
the
Estate
in
fée
:
Starre-chamber
,
M.
9
Jac.
who
was
a
man
of
115
yeares
of
age
at
the
time
of
his
death
.
Vide
John
Pinchons
Case
in
37
E.
3.
3.
cited
in
Cooke
ubi
supra
.
Vide
63.
35.
85
The
Law
favoureth
Strangers
,
that
are
neither
parties
nor
privies
.
in
esse
for
another
part
;
So
it
is
also
,
if
the
Lessor
enter
upon
the
Lessée
for
life
or
yeares
into
part
,
and
thereof
disseise
or
put
out
the
Lessée
,
the
Rent
is
suspended
in
the
whole
;
C.
A.
tenders
to
C.
and
he
refuseth
it
;
In
this
Case
the
bond
is
forfeited
,
whereas
,
if
the
feoffée
or
obligée
refuse
it
upon
tender
,
the
bond
is
not
forfeit
,
in
respect
of
the
privity
of
the
Condition
,
&c.
Tamen
quaere
.
Vide
supra
6.
Baron
,
&c.
In
this
Case
,
the
son
may
immediatly
enter
upon
the
second
Baron
,
for
betwéen
the
Lessée
and
the
second
Baron
the
Estate
for
life
is
determined
,
and
so
likewise
for
the
benefit
of
the
issue
it
shall
be
adjudged
in
Law
to
be
:
Also
,
if
he
in
the
Reversion
after
an
Estate
for
life
make
a
lease
for
years
,
or
grant
a
rent-charge
,
&c.
and
then
the
Lessée
for
life
surrenders
:
In
this
Case
,
the
lease
or
rent
shall
commence
presently
,
because
it
is
for
the
benefit
of
the
Lessée
for
years
,
or
the
Grantée
of
the
rent
(
who
are
strangers
,
&c.
)
that
it
should
so
do
.
But
if
a
Reversion
be
granted
with
warranty
,
and
the
tenant
for
life
surrender
:
In
this
Case
,
the
Grantée
shall
not
have
execution
in
value
against
the
Grantor
,
who
is
a
stranger
,
during
the
life
of
the
tenant
for
life
,
for
as
to
the
Grantor
,
the
Estate
for
life
(
notwithstanding
such
surrender
)
shall
(
in
consideration
of
Law
)
be
conceived
to
have
continuance
,
lest
such
a
surrender
might
work
a
prejudice
to
the
Grantor
that
is
a
stranger
:
So
if
tenant
for
life
surrender
to
him
in
Reversion
,
being
within
age
,
he
shall
not
have
his
age
;
for
that
would
be
a
prejudice
to
a
stranger
,
who
is
to
become
Demandant
in
a
real
action
,
&c.
Also
,
if
tenant
for
life
grant
a
rent-charge
,
and
after
surrender
,
yet
the
rent
shall
remain
,
during
the
life
of
the
tenant
for
life
;
for
otherwise
it
would
work
a
prejudice
to
the
Grantée
of
the
rent
,
who
is
a
stranger
.
&c.
and
as
to
that
purpose
the
reversioner
cometh
in
under
the
charge
.
If
a
Bishop
be
seised
of
a
rent-charge
in
fée
.
the
tenant
of
the
Land
enfeoffes
the
Bishop
and
his
successors
,
the
Lord
enters
for
the
Mortmain
,
he
shall
hold
it
discharged
of
the
rent
;
for
the
Lord
claimeth
under
the
Mortmain
,
and
it
is
for
his
benefit
that
the
rent
should
be
extinct
,
&c.
If
a
man
maketh
a
lease
to
A.
for
life
,
reserving
a
rent
of
40
s.
per
annum
to
him
and
his
heirs
,
the
remainder
to
B.
for
life
,
the
Lessor
grants
the
reversion
to
B.
in
fée
,
A.
attornes
:
In
this
Case
B.
shall
not
have
the
rent
,
because
although
the
fée-simple
do
drown
the
remainder
for
life
betwéen
them
,
yet
as
to
a
stranger
it
is
in
esse
,
&c.
and
therefore
B.
shall
not
have
the
rent
,
but
his
heir
shall
have
it
.
El.
Rot.
2458.
in
C.
B.
Marrow
&
Turpins
Case
.
86
Res
inter
alios
acta
alteri
nocere
non
debet
,
sed
quando
que
prodesse
potest
.
Vide
supra
,
Max.
51.
&
43
,
62.
Feme
covert
be
tenant
for
life
,
(
buy
,
obtain
,
get
,
or
have
by
any
reasonable
way
or
mean
)
and
that
is
not
by
promise
or
covenant
to
convey
the
land
after
entry
or
recovery
;
because
that
is
neither
lawful
,
being
against
the
expresse
purview
of
the
body
of
the
Act
,
neither
yet
reasonable
,
because
it
is
to
the
prejudice
of
a
third
person
.
Baron
,
&c.
In
this
Case
,
the
son
of
the
Feme
may
immediately
enter
,
which
he
could
not
have
done
,
if
the
tenant
for
life
had
not
surrendred
;
And
therefore
here
,
Res
inter
alios
acta
liberis
prodest
,
&c.
ut
res
magis
valeat
,
shall
have
relation
(
by
fiction
of
Law
)
to
passe
the
services
ab
initio
;
yet
this
relation
shall
not
charge
the
tenants
for
the
arrerages
in
the
mean
time
:
So
if
Feoffée
upon
condition
grant
a
Rent-charge
of
the
land
,
and
after
the
Grantée
brings
a
writ
of
Annuity
;
here
ab
initio
this
was
an
Annuity
betwéen
the
Grantor
&
the
Grantée
;
but
as
to
the
feoffor
,
who
is
a
stranger
,
and
is
entituled
to
enter
for
the
Condition
broken
,
it
shall
have
no
relation
to
his
prejudice
:
Likewise
in
30
E.
3.
17.
in
a
Dum
fuit
infra
aetatem
(
against
Richard
Spellow
)
the
tenant
saith
,
that
his
father
was
seised
,
and
died
seised
and
so
prayeth
his
age
,
the
Demandant
counterpleads
the
age
,
because
the
tenant
and
his
father
were
joyntly
enfeoffed
and
to
the
heirs
of
the
father
:
And
it
was
adjudged
that
the
tenant
should
not
have
his
age
;
for
albeit
this
refusal
(
of
taking
the
land
by
purchase
)
shall
have
relation
,
as
to
himself
;
yet
as
to
the
Demandant
,
who
is
a
stranger
,
it
shall
not
have
relation
to
delay
his
Action
,
when
in
truth
the
tenant
had
the
frank-tenement
by
purchase
.
W.
B.
and
his
wife
were
seised
in
tail
of
the
Mannor
of
Hinton
,
W.
B.
was
also
seised
of
land
in
Fobbing
,
which
Mannor
and
Lands
did
amount
to
a
full
third
part
of
all
his
lands
;
he
was
likewise
seised
of
the
Mannor
of
Thoby
in
Capite
,
which
amounted
to
the
other
two
parts
:
W.
B.
dev●seth
Thoby
to
his
wife
,
upon
condition
,
that
she
should
take
no
former
I●ynture
,
and
dies
,
the
Feme
in
pais
refuseth
the
Mannor
of
H.
Here
the
question
was
,
whether
the
will
was
good
for
the
whole
Mannor
of
Th.
or
but
for
a
part
,
by
the
32
&
34
H.
8.
And
it
was
adjudged
,
that
this
refusal
shall
have
onely
relation
as
to
the
Mannor
of
H.
and
not
to
the
Mannor
of
Th.
and
to
the
intent
onely
that
the
Feme
should
not
be
prejudiced
by
any
thing
concerning
the
Mannor
of
Hinton
;
Howbeit
that
relation
shall
not
prejudice
the
heir
,
which
is
a
third
person
,
and
upon
whom
,
by
the
death
of
the
devisor
,
part
of
the
Mannor
of
Thoby
descended
,
&c.
tit
.
Extinguishment
6.
Res
inter
alios
acta
,
&c.
Assise
de
darrien
presentment
purchased
within
the
six
moneths
,
unlesse
the
incumbent
be
named
in
the
writ
,
quia
res
inter
alios
acta
alteri
nocere
non
debet
;
Although
the
incumbe●t
be
in
by
defeasible
title
:
And
with
his
accords
9.
H.
6.
32.
For
,
quicunque
aliquid
statuerit
,
parte
inaudita
altera
,
aequum
licet
statuerit
,
haud
equus
fuerit
.
Rep.
fol.
97.
b.
Presentment
by
the
grantée
for
yeares
of
the
procheine
avoydance
is
a
sufficient
title
in
a
Quare
Impedit
for
the
Grantor
:
There
is
the
same
Law
of
Lessée
for
life
,
tenant
in
Dower
,
by
the
Courtesie
,
Guardian
,
Tenant
by
Statute
Merchant
,
staple
,
&c.
And
this
agrées
with
divers
opinions
in
7
E.
4.
20.
22
E.
4.
9.
b.
16
H.
7.
18.
a.
9
H.
7.
23.
Br.
Quare
Impedit
,
1
22.
13
El.
Dier
300.
But
sicut
beatius
est
,
ita
majus
est
dare
quam
accipere
,
for
the
termor
cannot
give
seisin
of
the
Rent
(
as
in
the
Case
alone
put
)
because
that
would
trench
to
the
dis-advantage
of
the
Terre-tenant
,
who
is
a
stranger
:
Howbeit
he
may
take
seisin
,
&c.
for
his
benefit
,
according
to
the
Rule
,
Res
inter
alios
acta
alteri
nocere
debet
,
sed
quandoque
prodesse
potest
.
John
Hall
brings
a
Quare
Impedit
against
the
Bishop
of
Bath
and
Wells
,
Thomas
Maunton
Clerk
defendant
for
disturbing
him
from
presenting
to
the
Vicarage
of
W.
And
it
was
resolved
,
that
the
writ
should
abate
;
because
the
Patron
was
not
named
in
the
writ
;
for
so
the
Patronage
might
be
recovered
against
him
,
that
hath
nothing
in
it
:
And
it
is
no
reason
,
that
he
,
who
is
Patron
,
should
be
dis-possessed
and
outed
of
his
Patronage
,
when
he
is
a
stranger
and
no
partie
to
the
writ
,
and
especially
in
this
Case
,
when
he
may
be
made
partie
to
the
writ
,
&c.
So
in
42
E.
3.
fol.
7.
One
brings
a
Quare
Impedit
against
another
,
the
Defendant
saith
,
that
he
claimes
nothing
in
the
Patronage
,
but
saith
that
the
Bishop
presenteth
him
by
laps
,
Judgment
si
tort
.
&c.
And
there
Belknap
prayd
a
writ
to
the
Bishop
,
because
he
dis-claimed
in
the
Patronage
,
but
the
Court
could
not
grant
it
:
because
neither
the
Patron
nor
the
Bishop
(
who
in
that
Case
was
in
lieu
of
the
Patron
)
were
named
in
the
writ
:
And
therefore
it
was
adjudged
,
that
the
writ
should
abate
:
For
,
if
such
a
writ
should
be
mainteinable
,
every
Patron
by
covin
betwéen
a
stranger
and
the
incumbent
might
be
outed
of
his
advowson
:
And
with
this
agréed
,
9
H.
6.
30
,
31.
&c.
3
H.
4.
2
,
&
3.
13
H.
8.
13.
Howbeit
in
a
Quare
Impedit
,
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.
as
it
was
adjudged
in
7
H.
4.
25.
37.
Com.
Bedd
.
the
Conusées
render
a
rent
:
charge
of
30
l.
per
an
.
to
several
for
life
to
commence
after
his
wives
deceise
,
proviso
,
quod
non
extendit
ad
onerandum
personas
les
Conusees
,
&c.
and
then
also
render
the
Rectory
to
Dixwell
during
his
wifes
life
,
the
Remainder
to
Lillingston
,
&c.
acknowledgeth
a
recognisance
to
Duncombe
of
500
l.
in
the
nature
of
a
Statute
staple
according
to
the
Statute
of
23
H.
8.
the
Wife
Dixwel
dies
,
Lillingston
enters
,
Dixwel
releaseth
to
Lillingston
,
Duncombe
,
sues
a
Cerciorari
to
the
Clerk
of
the
Stat.
who
certifies
the
recognisance
,
whereupon
the
rent
was
extended
,
and
upon
a
liberate
was
delivered
unto
Duncombe
,
who
brings
an
Action
of
debt
against
Lillingston
(
who
all
that
while
was
Tenant
of
the
Rectory
)
and
Duncombe
averred
the
life
of
Dixwell
:
And
it
was
adjudged
,
that
as
to
Duncombe
(
who
is
a
stranger
)
notwithstanding
such
release
the
Rent
remaines
in
esse
;
for
,
to
some
purposes
by
the
Common
Law
a
rent
extinct
shall
be
in
esse
,
as
to
a
stranger
,
&c.
as
if
the
Baron
be
seised
of
a
rent
in
fée
,
and
release
to
the
terre-tenant
;
yet
the
Feme
shall
be
endowed
,
&c.
Co.
lib.
5.
96.
&
supra
R.
85.
ex
8.
John
Nedhams
case
.
26
If
the
obligée
make
the
obligor
his
Executor
,
b.
&c.
But
if
the
Archbishop
Grant
letters
of
Administration
to
the
obligor
,
this
shall
not
extinguish
the
debt
,
but
it
shall
still
remaine
;
for
,
the
Act
of
the
Archbishop
and
the
obligor
shall
not
wrong
the
dead
,
who
is
(
in
that
Case
)
as
a
third
person
.
Francis
Barringtons
Case
.
27
It
appeares
by
the
preamble
of
the
Statute
of
22
E.
4.
cap.
7.
in
esse
for
part
,
as
it
is
holden
in
32
H.
8.
Extinguishment
,
Br.
48.
neverthelesse
,
habet
haec
regula
plures
fallentias
;
as
if
there
be
two
Coperceners
of
a
Seigniory
,
and
one
of
them
dissieseth
the
Terre-tenant
,
or
comes
to
the
Land
by
defensible
title
,
the
other
may
distraine
her
for
her
moity
of
the
Signiory
:
for
the
practise
of
her
Copercener
against
the
Terre-tenant
cannot
prejudice
her
in
that
Case
.
quòd
partes
finis
nihil
habuerant
:
But
it
shall
not
barre
by
the
disseisée
:
because
the
fine
as
to
him
was
void
:
So
that
(
in
this
Case
)
as
to
the
heires
in
taile
the
fine
shall
bind
,
but
not
as
to
the
disseisée
,
who
is
a
stranger
:
So
likewise
in
Beaumonts
Case
in
the
9
Rep.
fol.
141.
the
fine
levied
by
the
Baron
,
as
to
the
Issues
in
taile
,
was
a
barre
,
but
not
as
to
the
Feme
,
who
was
a
stranger
unto
it
:
And
therefore
if
there
be
Baron
and
Feme
tenants
in
special
taile
,
the
Reversion
to
the
Donor
,
they
have
issue
,
the
Baron
levies
a
fine
with
proclamations
to
a
stranger
and
dies
,
the
Feme
enters
;
In
this
Case
the
Feme
hath
devested
the
whole
Estate
out
of
the
Conusee
,
and
revested
the
Estate
taile
in
herselfe
,
the
immediate
reversion
to
the
Donor
,
and
hath
left
nothing
but
a
possibility
in
the
Conusée
:
for
the
practise
between
the
Baron
and
the
Conusée
shall
not
barre
the
Feme
,
of
her
right
,
who
is
a
third
person
.
Isabel
,
quousque
,
&c.
so
that
by
the
purchase
of
the
Fée-simple
,
the
interest
of
Isabel
was
extinct
,
yet
that
shall
not
defeat
the
executory
Interest
of
B.
but
that
after
the
marriage
of
Isabel
,
and
not
before
,
he
may
well
enter
,
&c.
Hammington
and
Rudyars
Case
,
Tr.
28.
Eliz.
rot.
1674.
cite
per
Co.
Ch.
Just.
ubi
in
margine
.
Court
of
Wards
,
who
shall
be
accounted
as
one
Officer
;
In
this
Case
,
the
King
cannot
appoint
onely
one
to
execute
that
Office
;
for
that
would
be
a
wrong
to
the
subject
,
who
by
force
of
that
Act
are
concerned
in
the
appointment
of
that
Officer
,
according
to
the
same
Act
,
&c.
Ulterius
non
vult
prosequi
,
or
if
the
Defendant
plead
a
special
plea
(
wherein
the
Attorney-General
useth
to
reply
alone
)
albeit
the
Attorney
will
not
reply
or
prosecute
for
the
King
,
yet
the
Informer
may
prosecute
for
his
part
;
because
the
Informer
by
commencing
that
Sult
hath
made
that
Action
,
which
was
popular
,
to
become
his
private
Action
,
which
neither
the
King
nor
any
other
can
release
,
as
to
the
Interest
of
the
Informer
,
Tr.
31
Eliz.
Stretton
and
Taylers
Case
,
cite
ubi
in
margine
.
Praecipe
in
C●●ite
of
lands
●ot
holden
●tayed
.
34
If
the
tenant
will
sue
a
Praecipe
in
Capite
in
the
Kings
Court
for
such
Lands
as
are
holden
of
another
Lord
,
the
Law
will
not
suffer
it
,
Assise
de
darrein
presentment
,
if
he
be
disturbed
:
It
is
otherwise
,
if
his
own
tenant
,
to
whom
he
himself
was
Lessor
,
suffer
an
Vsurpation
;
for
then
he
shall
not
have
such
an
Assise
,
&c.
because
(
as
it
séems
)
it
will
be
then
imputed
to
the
Lessors
folly
that
he
would
not
restrain
the
tenent
from
so
doing
,
by
the
Covenant
,
&c.
Darrein
presentment
betwéen
two
strangers
,
Quis
advocatus
ultimò
praesentavit
,
&c.
40
If
two
Parsons
claim
under
one
and
the
same
Patron
one
of
them
may
sue
spoltation
against
the
other
in
the
Court
Christian
,
albeit
the
profits
amount
to
a
fourth
part
or
more
:
because
the
title
of
the
Patronage
comes
not
in
debate
:
But
if
they
claim
by
several
Patrons
,
and
the
tithes
,
or
profits
,
or
pension
spoiled
amounts
to
a
fourth
part
or
more
;
then
forasmuch
as
the
Patron
of
the
Parson
grieved
(
being
a
stranger
)
may
suffer
prejudice
,
he
shall
(
in
that
Case
)
have
an
Indicavit
or
Prohibition
to
remove
the
Suit
into
the
Kings
Court
,
there
to
be
tried
at
the
Common
Law
;
because
then
the
title
of
the
Patronage
will
come
in
debate
,
&c.
Vide
Statute
West
.
2.
cap.
5.
Sans
number
,
the
Lord
shall
not
have
it
;
for
the
Lord
may
surcharge
the
same
,
and
that
would
trench
to
the
prejudice
of
the
terre-tenant
,
who
is
a
third
person
;
there
is
the
same
Law
also
of
a
Corodie
uncertain
,
granted
to
a
Villain
,
and
of
all
other
such
like
uncertain
inheritances
.
44
Admittances
made
by
Disseisors
,
Abators
,
Intruders
,
come
ceo
,
&c.
to
a
Disseisor
:
87
Nemo
punitur
pro
alieno
delicto
.
Nemo
punitur
pro
alieno
delicto
.
Arthur
Hopton
,
Eliz.
in
Com.
Banco
,
Rot.
820.
tenuit
,
&c.
30
E.
3.
16.
accord
.
that
if
one
of
the
Enquest
escape
,
after
that
they
are
sworn
;
so
that
they
cannot
give
their
verdict
,
although
the
rest
did
not
assent
thereunto
,
yet
all
should
be
fined
,
was
utterly
denied
to
be
law
;
for
Nemo
debet
puniri
pro
alieno
delicto
,
whereunto
he
was
neither
party
,
privy
,
assenting
,
nor
consenting
;
because
then
it
might
be
said
,
Rutillius
fecit
,
Aemilius
plectitur
:
And
it
was
said
,
that
that
Case
was
either
ill
reported
,
or
ill
printed
.
〈◊〉
audita
que●●l●
.
Non-suit
no
●●ejudice
.
8
In
an
Audita
querela
brought
by
two
,
quòd
acquiete●
the
Plaintiff
versus
the
Creditor
of
the
sum
and
damages
assessed
by
the
Court
,
&c.
Vide
F.
N.
B.
137.
c.
sed
non
quoad
poenam
prisonae
,
for
Nemo
pro
alieno
facto
est
puniendus
:
It
is
so
likewise
for
husband
and
wife
:
For
albeit
the
wife
be
onely
guilty
,
yet
the
husband
shall
answer
the
dammages
,
but
shall
not
be
subject
to
abjuration
,
or
immediate
Imprisonment
,
which
is
to
be
perpetual
.
Howbeit
,
to
the
mediate
Imprisonment
,
viz.
upon
a
writ
of
Execution
for
the
dammages
and
the
value
of
the
Marriage
,
he
shall
be
liable
,
as
in
other
trespasses
,
where
the
wife
onely
is
guilty
of
the
fact
.
88
The
Law
favoureth
things
done
in
anothers
Right
.
Femes
covert
,
Cestuy
que
use
had
devised
,
that
his
Wife
should
fell
his
Land
,
and
had
made
her
Executrix
,
and
died
,
she
had
taken
another
husband
:
In
that
Case
,
she
might
have
sold
the
Land
to
her
husband
;
for
she
doth
it
in
auter
droit
,
and
her
husband
would
have
béen
in
by
the
Devisor
,
&c.
auter
droit
;
And
the
Feoffée
shall
be
in
by
the
Devisor
:
So
likewise
if
a
man
deviseth
that
a
Reversion
or
other
thing
that
lieth
in
grant
,
shall
be
sold
by
his
Executors
,
they
may
sell
the
same
without
Déed
;
for
the
Vendée
shall
be
in
by
the
Devisor
,
and
not
by
the
Executors
,
Causa
qua
suprà
.
auter
droit
,
viz.
In
the
right
of
the
Testator
and
not
in
his
owne
right
:
And
for
the
same
a
Mayor
and
Cominalty
shall
have
no
Action
,
though
the
Mayor
be
out-lawed
,
&c.
So
it
is
also
of
one
excommunicated
.
auter
droit
,
and
otherwise
their
house
might
be
prejudiced
,
and
other
men
also
of
their
lawfull
actions
:
And
this
is
the
ancient
Law
of
England
,
as
appeares
by
the
Mirrour
(
c.
2.
§.
14.
)
in
these
words
Des
biens
des
gents
de
Religion
,
appent
l'action
al
Chiese
en
fon
nosme
par
luy
&
son
Covent
:
Also
if
a
Monke
,
&c.
be
wounded
,
beaten
,
imprisoned
,
&c.
the
Abbot
and
the
Monke
shall
(
in
that
Case
)
joyne
in
an
Action
against
the
wrong
doer
;
and
if
the
writ
be
ad
Damnum
ipsius
Prioris
,
the
writ
is
good
,
or
if
it
be
ad
Damnum
ipsorum
,
it
is
good
also
:
Likewise
if
a
Monk
be
falsely
and
maliciously
indicted
of
Felony
and
Robery
,
and
afterwards
is
lawfully
acquited
his
Soveraigne
and
he
shall
joyne
in
a
writ
of
conspiracy
,
or
the
like
:
And
what
is
here
spoken
of
a
man
professed
in
Religion
,
is
also
to
be
understood
of
a
Nunne
sanctimonialis
,
mutatis
mutandis
.
D.
A.
is
professed
a
Monk
in
the
same
Abbey
,
and
after
is
made
Abbot
thereof
,
auter
droit
:
but
(
in
that
Case
)
a
release
without
payment
is
void
,
&c.
Feme
covert
,
that
hath
power
to
sell
Land
by
will
,
may
sell
the
same
to
her
Husband
;
because
they
are
but
instruments
for
others
,
and
the
Estate
passeth
from
the
feoffor
or
devisor
.
auter
droits
,
the
Law
doth
adjudge
them
to
be
severally
seised
:
So
it
is
also
of
a
secular
body
politique
or
corporate
,
as
if
Lands
be
given
to
two
Bishops
,
to
have
and
to
hold
to
them
two
and
their
Successors
:
Albeit
the
Bishops
were
never
any
dead
persons
in
Law
,
but
alwayes
of
capacity
to
take
;
yet
séeing
they
take
this
purchase
in
their
politique
capacity
,
as
Bishops
,
they
are
presently
Tenants
in
Common
;
because
they
are
seised
in
several
rights
,
&c.
The
like
Law
is
of
two
Parsons
,
and
their
Successors
,
or
of
any
other
such
like
Ecclesiastical
body
Politique
,
or
Incorporate
,
&c.
John
Over-all
Doctor
of
Divinity
and
his
heires
,
being
one
and
the
same
Person
:
In
this
Case
,
he
is
Tenant
in
Common
with
himselfe
.
Mortmaine
,
viz.
that
it
should
for
ever
continue
in
that
sea
or
house
:
for
that
they
had
it
in
auter
droit
,
for
religious
and
good
uses
,
as
was
pretended
,
&c.
John
Nedhams
Case
.
Et
issint
riens
inter
manis
,
if
it
be
proved
,
that
he
hath
goods
in
his
hands
,
which
were
the
Testators
,
he
may
give
in
evidence
that
he
hath
payd
to
that
vaine
of
his
owne
money
,
and
ne●●
not
plead
it
specially
:
because
what
he
did
in
that
case
,
was
in
anothers
right
.
auter
droit
to
consist
together
(
as
if
a
man
Lessée
for
yeares
take
a
Feme
Lessor
to
Wife
,
&c.
)
But
a
man
may
have
a
frée-hold
in
his
owne
right
,
auter
droit
:
And
therefore
if
a
man
Lessor
take
a
Feme
Lessée
to
Wife
,
the
term
is
not
drowned
,
but
he
is
possessed
of
the
term
in
her
right
during
the
coverture
:
So
if
the
Lessor
made
the
Lessée
his
Executor
the
term
is
not
drowned
:
Causa
qua
supra
:
Howbeit
in
the
case
first
put
,
if
it
had
béen
a
corporation
aggregate
of
many
,
the
making
of
the
Lessée
master
had
not
extinguished
the
term
,
no
more
then
if
the
Lessée
had
béen
made
one
of
the
Brethren
of
the
Hospital
:
because
he
then
had
the
frée-hold
in
auter
droit
together
with
others
,
&c.
Causae
Ecclesiae
publicis
causis
acquiparantur
,
and
summa
ratio
est
,
quae
&
Religione
facit
,
auter
droit
,
auter
droit
,
as
Executrix
,
or
Administratrix
,
&c.
the
marriage
is
no
gift
of
them
to
the
Husband
,
although
he
survive
his
Wife
.
And
as
to
personal
goods
(
in
Case
of
Baron
and
Feme
)
there
is
a
diversity
worthy
of
observation
,
betwéen
a
property
in
personall
goods
(
as
is
afore-said
,
)
and
a
bare
possession
:
for
if
personal
goods
be
bailed
to
a
Feme
,
or
if
she
find
goods
,
o●
if
goods
come
to
her
hands
as
Executrix
to
a
Bailife
,
and
she
taketh
an
Husband
,
this
bare
possession
is
not
given
to
the
Husband
,
but
the
action
of
detinue
must
be
brought
against
the
Husband
and
Wife
:
because
the
Possession
which
she
hath
,
is
in
auter
droit
,
&c.
Juris
utrus
,
or
Assise
.
that
in
all
Cases
which
Littleton
putteth
in
the
chapter
of
Warranty
,
concerning
lineal
and
collateral
Warranty
,
the
heire
is
still
mentioned
to
be
bound
by
them
,
be
never
making
once
mention
of
the
Successor
:
from
whence
it
may
be
inferred
,
that
the
Successor
clayming
in
another
right
,
shall
not
be
bound
by
the
Warranty
of
any
natural
Ancestor
:
And
therefore
in
a
Juris
utrum
brought
by
a
Parson
of
a
Church
,
the
collateral
Warranty
of
his
Ancestor
is
no
barre
,
because
he
demandeth
he
Land
in
the
right
of
his
Church
in
his
politique
capacity
,
and
the
warranty
descendeth
on
him
in
his
natural
capacity
;
And
albeit
some
have
holden
,
that
if
a
Parson
bring
an
Assise
,
that
a
collateral
Warranty
of
his
Ancestor
shall
bind
him
:
because
the
Assise
is
brought
of
his
owne
possession
and
seisin
,
and
he
shall
recover
the
mean
profits
to
his
owne
use
:
yet
séeing
he
is
seised
of
the
Frée-hold
,
whereof
the
Assise
is
brought
,
in
Jure
Ecclesiae
,
which
is
in
another
right
then
the
Warranty
,
it
séemeth
to
be
no
barre
in
the
Assise
:
And
of
this
opinion
my
Lord
Cooke
séems
to
be
:
because
he
produceth
it
last
,
according
to
his
owne
Rule
,
&c.
The
like
Law
is
of
a
Bishop
,
Arch-deacon
,
Deane
,
master
of
an
Hospital
,
and
the
like
,
of
their
sole
poss●ssions
;
and
of
a
Prehend
,
Vicar
,
&c.
auter
droit
,
to
the
use
of
the
dead
,
John
Nedhams
Case
.
32
The
Bishop
who
is
an
Executor
appointed
by
the
Law
,
●rante
●lia●tate
.
is
not
permitted
by
the
Law
to
make
a
release
of
debt
or
gift
of
goods
:
For
he
hath
a
special
property
in
the
goods
of
the
dead
for
the
benefit
of
the
dead
,
and
nothing
to
his
owne
use
;
and
it
appeares
in
9
El.
Dier
253.
that
the
Ordinary
hath
not
power
to
give
authority
to
another
to
sell
the
goods
of
the
dead
;
because
he
hath
not
any
such
authority
himselfe
;
And
the
Statute
of
West
.
2.
is
,
Bona
deveniunt
ad
manus
Ordinarii
disponenda
,
viz.
for
the
good
of
the
dead
:
And
he
is
not
much
unlike
(
as
to
that
purpose
)
an
Administrator
durante
minore
aetate
,
who
hath
special
power
committed
unto
him
to
dispose
of
the
goods
of
the
dead
,
and
nothing
in
prejudice
of
the
Executor
,
as
it
is
holden
in
Princes
in
the
5
Rep.
fol.
29.
So
likewise
the
Lord
of
a
Copi-hold
Mannor
,
who
takes
a
surrender
to
the
use
of
another
,
hath
onely
power
to
grant
if
according
to
the
use
of
the
surrender
,
and
not
to
the
use
of
any
stranger
,
as
it
is
holden
in
the
4.
Rep.
fol.
28.
in
Westwickes
Case
.
John
Nedhams
Case
this
is
a
release
(
in
Law
)
of
the
debt
;
because
that
is
the
Act
of
the
Obligée
himselfe
,
but
if
a
Commission
of
Administration
be
granted
by
the
Archbishop
to
the
Obligor
,
that
shall
not
extinguish
the
debt
:
because
then
he
hath
the
debt
in
anothers
right
,
and
for
the
good
of
the
dead
,
&c.
Assise
de
darrien
presentment
:
because
the
Tenant
for
yeares
presents
in
his
owne
right
:
but
if
a
Guardian
presente
in
right
of
the
heire
,
and
after
the
incumbent
die
;
In
that
Case
,
the
heire
shall
present
,
and
if
he
be
disturbed
,
he
shall
have
an
Assise
de
darrein
presentment
:
because
the
Guardian
did
it
in
auter
droit
,
Report
fol.
97.
in
the
Countesse
of
Northumberlands
Case
,
that
the
presentation
of
the
Grantée
of
the
prochiene
avoydance
is
sufficient
title
in
a
Quare
Impedit
for
the
Grantor
and
his
heires
:
because
he
doth
it
in
the
right
and
title
of
the
Grantor
;
So
it
is
also
of
Lessee
for
yeares
,
life
,
Tenant
in
Dower
,
Courtesie
,
Guardian
,
Tenant
by
Statute
,
&c.
And
with
this
agrées
divers
opinions
in
our
Books
,
viz.
7
L.
4.
20.
22
E.
4.
9.
b.
16
H.
7.
18.
a.
9.
H.
7.
23.
Br.
Quare
Impedit
,
122.
13
El.
Dier
300.
35
In
debt
brought
by
two
Executors
the
one
is
summoned
and
severed
,
and
afterwards
he
,
that
was
severed
,
dies
,
Read
&
Redmans
Case
and
the
Defendant
pleads
this
in
abatement
;
In
this
Case
,
the
writ
shall
not
abate
;
because
either
of
them
Act
in
an
others
right
.
89
The
Law
dis-favoureth
other
persons
,
as
Villeins
,
Bond-men
,
Out-lawes
,
Ex-leges
,
men
in
Exile
,
Aliens
,
and
especially
Aliens
,
that
are
enemies
.
Utlage
pur
felonie
seigne
lien
pour
Loup
,
&
est
criable
Walfeshead
,
pur
ceo
que
Loup
est
beasts
hay
to
touts
gents
,
&
de
ceo
en
avant
list
a
ascun
de
le
occire
ou
foer
del
Loup
,
dout
custome
soloit
este
de
porter
les
testes
al
Chiefe
lien
del
County
,
or
de
la
Franchise
,
&
sol
oit
tou
avoir
d'un
Marke
del
County
pur
chescun
teste
de
utlage
&
de
Loup
.
And
this
agréeth
with
the
Law
before
the
Conquest
,
Utlagatus
Lupinum
gerit
caput
,
quod
Anglicè
,
Wolfeshead
,
dicitur
:
Et
haec
est
lex
communis
&
generalis
de
omnibus
utlegatis
:
Accompt
,
debt
,
detinue
,
annuity
,
Covenant
,
Action
upon
the
Statute
of
5
R.
2.
Action
upon
the
Case
,
&c.
Robert
Belknap
,
Common
Pleas
;
for
,
during
his
banishment
:
being
yet
alive
,
she
brought
a
writ
in
her
owne
name
,
whereupon
one
said
,
Ecce
modò
mirum
,
quòd
foemina
fert
breve
Regis
,
Non
nominando
virum
conjunctim
robore
Legis
.
So
likewise
E.
3.
Sibill
B.
during
the
exile
of
her
Husband
:
The
like
was
also
adjudged
at
the
Parliament
holden
in
Crastinum
Epiphanum
Ann.
19
E.
1.
in
the
Case
of
Margery
de
Mose
Wife
of
Th.
of
Weyland
,
being
the
yeare
before
abjured
the
Realme
for
felony
,
&c.
Howbeit
if
the
Husband
by
Act
of
Parliament
have
judgement
to
be
exiled
but
for
a
time
(
which
some
call
a
Relegation
)
that
is
no
civil
death
:
)
but
abjuration
(
in
8
E.
2.
Coron.
425.
)
is
called
a
divorce
betwéen
the
Husband
and
the
Wife
:
And
therefore
in
that
Case
the
Wife
may
sue
and
be
sued
,
&c.
Alien
vee
,
and
this
exception
holds
good
in
all
Actions
both
reall
and
personal
against
an
Alien
enemy
,
but
not
absolutely
against
other
Aliens
:
for
the
Law
doth
distinguish
betwéen
an
Alien
,
that
is
a
subject
to
one
,
who
is
an
enemy
to
the
King
,
and
one
that
is
subject
to
one
,
who
is
in
league
with
the
King
:
And
true
it
is
,
that
an
Alien
Enemy
shall
maintaine
neither
Reall
nor
Personal
Action
,
Donec
terrae
fuerint
communes
,
viz.
till
both
Nations
be
in
peace
:
But
an
Alien
,
that
is
in
league
,
shall
maintain
personal
Actions
;
For
,
such
an
Alien
may
trade
and
traficke
,
buy
and
sell
:
And
then
of
necessity
he
must
be
of
ability
to
have
personal
Actions
:
but
he
cannot
maintaine
either
reall
or
mixt
actions
:
So
also
an
Alien
,
that
is
condemned
in
an
information
,
shall
have
a
writ
of
Error
to
relieve
himselfe
,
Et
sic
de
similibus
.
Si
il
sera
respondue
:
But
if
an
Alien
Enemy
bring
a
suit
,
he
shall
conclude
to
the
Action
by
saying
,
Judgement
si
action
.
nec
Coelum
,
nec
Solum
,
Contra
ligeantiae
suae
debitum
,
&c.
Onely
in
the
middle
these
words
shall
be
omitted
,
naturalem
Dominum
suum
,
&c.
as
it
was
resolved
in
Hill.
36.
Eliz.
in
the
Case
of
Stephano
Ferrara
de
Gama
,
and
Emanuel
Ludovico
Tinoco
,
two
Portugals
born
,
who
comming
into
England
under
the
safe
Conduct
of
Quéen
Elizabeth
,
and
living
here
under
her
protection
,
joyned
with
Doctor
Lopez
,
in
treason
against
her
Majesty
:
But
if
an
alien
enemy
come
to
invade
this
Land
,
and
be
taken
in
war
,
he
cannot
be
indicted
of
treason
for
it
;
because
the
indictment
cannot
conclude
,
Contra
ligeantiae
suae
debitum
;
for
he
never
was
in
the
Kings
protection
,
nor
ever
ought
any
manner
of
ligeance
unto
him
,
but
malice
and
enmity
;
and
therefore
in
that
Case
such
an
Alien
shall
be
put
to
death
by
Martial
law
:
And
so
it
was
in
15
H.
7.
in
the
Case
of
Perkin
Warbeck
,
who
being
an
Alien
born
in
Flanders
,
feigned
himself
one
of
the
sons
of
E.
4.
and
invaded
this
Kingdome
,
with
intent
to
take
upon
him
the
Royal
Dignity
:
but
being
taken
in
war
,
it
was
resolved
by
the
Iustices
,
that
he
could
not
be
punished
by
the
Common
Law
;
but
before
the
Constable
and
Marshal
,
according
to
Martial
Law
,
and
so
he
was
,
according
to
that
Law
,
adjudged
to
be
hanged
,
drawn
,
and
quartered
;
and
was
in
that
manner
executed
accordingly
.
90
As
concerning
the
ages
of
Infants
,
the
Law
ordereth
them
in
this
manner
;
Seven
,
for
the
Lord
to
have
aid
for
the
marriage
of
his
eldest
daughter
of
that
age
.
Nine
,
Twelve
for
a
man
to
take
the
Oath
of
Allegiance
in
a
Turn
or
Leet
;
and
also
to
binde
a
woman
in
matter
of
Marriage
.
Fourteen
,
the
age
of
discretion
;
and
therefore
that
a
competent
age
to
binde
the
man
in
matter
of
Marriage
,
for
a
Ward
in
Soccage
to
chuse
his
Guardian
,
and
for
a
woman
to
be
out
of
Ward
to
the
Lord
by
Knight-service
.
Fifteen
,
for
the
Lord
to
have
Aid
to
make
his
eldest
Son
(
of
that
a●e
)
a
Knight
.
Seventeen
,
for
an
Infant
Executor
to
be
out
of
the
tuition
of
Administrators
.
Eighteen
,
for
an
Infant
to
have
power
to
make
a
Will
.
One
and
twenty
,
their
full
age
to
make
good
any
Act
they
do
,
and
for
a
man
to
be
out
of
Ward
to
the
Lord
by
Knight-service
.
de
facto
,
de
jure
)
if
she
be
of
the
age
of
nine
years
at
the
time
of
the
death
of
her
husband
,
shall
be
indowed
of
what
age
soever
her
husband
be
,
viz.
although
he
be
but
four
years
old
,
&c.
And
she
must
be
so
old
(
at
least
)
to
have
Dower
;
Quia
junior
non
potest
dotem
promereri
,
neque
virum
sustinere
;
hec
obstabit
mulieri
petenti
minor
aetas
viri
,
wherein
it
is
to
be
observed
,
that
albeit
Consensus
non
concubitus
facit
Matrimonium
,
and
that
a
woman
cannot
consent
before
twelve
,
nor
a
man
before
fourteen
,
yet
this
inchoate
and
unperfect
marriage
(
from
which
either
of
the
parties
at
the
age
of
consent
may
dis-agree
)
after
the
death
of
the
husband
shall
give
Dower
to
the
wife
;
and
therefore
it
is
to
be
accounted
in
Law
after
the
death
of
the
husband
,
legitimum
matrimonium
,
a
lawful
marriage
quoad
dotem
:
And
(
in
that
Case
)
the
Bishop
upon
an
Issue
joyned
in
a
writ
of
Dower
,
So
that
she
passe
the
age
of
9
years
at
the
death
of
her
husband
;
because
by
his
death
the
possibility
of
Dower
is
consummate
:
So
likewise
if
the
Son
endow
his
wife
at
her
age
of
seven
years
ex
assensu
patris
,
if
she
before
the
death
of
her
husband
attain
to
the
age
of
nine
years
,
the
Dower
is
good
,
&c.
viz.
Pur
ceo
que
les
heires
females
de
nostre
terre
ne
se
mariassent
a
nos
enemys
,
&
donc
il
nous
convica
droit
lour
homage
prendre
,
si
elles
se
pussent
marier
a
lour
volunte
,
&c.
This
is
a
special
age
for
an
heir
female
to
be
out
of
Ward
,
if
she
attain
to
it
in
the
life-time
of
her
Ancestor
;
for
at
that
age
she
may
have
a
husband
able
to
do
Knight-service
,
&c.
pur
fair
fife
Chivaler
;
under
21
to
be
in
Ward
to
the
Lord
by
Knight-service
;
pur
file
marier
;
nine
to
deserve
Dower
;
twelve
to
consent
to
Marriage
;
until
fourtéen
to
be
in
Ward
;
fourtéen
to
be
out
of
Ward
,
if
she
attained
thereunto
in
the
life
of
her
Ancestor
;
sixtéen
for
to
tender
her
Marriage
,
if
she
were
under
fourtéen
at
the
death
of
her
Ancestor
,
which
was
granted
by
the
Statute
of
West
.
1.
cap.
2●
.
)
and
21
years
to
alienate
her
Lands
,
Goods
,
and
Chattels
,
Fitz.
82
b.
&
149
l.
secundum
leges
sancti
Edvardi
,
But
(
indéed
)
such
was
the
Law
in
the
time
of
King
Arthur
,
&c.
Dum
fuit
infra
aetatem
:
But
if
she
were
of
full
age
,
she
shall
not
have
a
Dum
fuit
infra
aetatem
for
the
non-age
of
her
husband
;
albeit
they
be
but
one
person
in
law
.
Merton
cap.
6.
Anno
20.
H.
3.
&
ultra
,
and
ultra
terminum
aetatis
suae
de
21
,
&c.
which
words
must
be
understood
of
the
heir
male
,
and
not
of
the
heir
female
;
because
twelve
is
the
age
limited
for
the
heir
female
to
give
consent
to
marriage
:
but
fourtéen
for
the
heir
male
;
and
therefore
that
Statute
gives
a
forfeiture
in
case
of
refusal
of
Marriage
upon
tender
to
the
heir
male
,
&c.
91
In
things
,
the
Law
respecteth
every
thing
,
according
to
Worthinesse
.
1
Littleton
saith
,
§
.
2.
If
a
man
be
seised
of
Lands
in
Fée-simple
,
Son
prochein
Cosein
collateral
del
entire
sanke
,
&c.
his
next
Collateral
Cosen
of
the
whole
Blood
,
&c.
shall
have
it
,
as
heir
unto
him
;
whereupon
my
Lord
Cook
puts
this
Case
;
One
hath
issue
two
Sons
,
A.
and
B.
and
dieth
:
B.
hath
two
Sons
,
C.
and
D.
and
dieth
,
A.
purchaseth
Lands
in
Fée-simple
,
and
dieth
without
issue
;
In
this
Case
,
D.
is
his
next
Cosen
,
and
yet
shall
not
inherit
,
but
the
issue
of
C.
because
albeit
D.
be
his
next
Cosen
,
jure
propinquitatis
,
yet
the
issue
of
C.
shall
inherit
,
being
the
more
worthy
,
viz.
his
next
Cosen
,
Jure
repraesentationis
:
And
Littleton
there
meaneth
of
the
right
of
representation
:
for
legally
,
in
course
of
Descents
,
he
is
the
next
of
Blood
inheritable
,
because
the
most
worthy
:
In
such
sort
,
that
all
that
Line
of
C.
be
they
never
so
remote
,
shall
inherit
before
D.
or
his
Line
:
And
therefore
Littleton
saith
well
,
de
quel
pluis
long
degree
que
il
soit
,
&c.
And
yet
in
the
Case
abovesaid
,
if
a
Lease
for
life
were
made
to
A
,
the
remainder
to
his
next
of
Blood
in
fée
:
In
that
Case
,
D.
shall
take
the
remainder
,
because
he
is
next
of
Blood
,
and
capable
to
take
by
purchase
,
though
he
be
not
legally
next
to
take
as
heir
by
Descent
:
And
D.
takes
the
purchase
by
the
special
limitation
of
the
party
,
but
the
Law
casts
the
Descent
upon
the
issue
of
C.
as
the
more
worthy
,
Vide
Finch
,
page
116.
)
So
likewise
,
the
Blood
of
the
Fathers
side
is
more
worthy
then
that
of
the
Mothers
;
the
male
then
the
female
;
the
eldest
Son
then
the
younger
,
&c.
And
therefore
those
shall
inherit
before
these
,
and
the
female
on
the
Fathers
side
,
before
the
male
or
female
on
the
Mothers
,
&c.
Quod
priùs
est
,
dignius
est
,
&
qui
prior
est
,
tempore
potior
est
jure
:
Si
quis
plures
filios
habuerit
,
jus
proprietatis
primò
descendit
ad
primogenitum
,
eò
quòd
inventus
est
primò
in
rerum
natura
.
4
It
is
holden
,
that
if
there
be
Bastard
eygne
and
mulier
puisat
,
viz.
Homage
as
the
most
honorable
and
the
most
humble
service
of
reverence
(
as
Littleton
saith
.
)
And
Fealty
,
the
most
sacred
,
being
performed
by
an
oath
;
And
therefore
the
Law
makes
more
accompt
of
them
,
then
of
other
inferiour
services
:
for
the
seisin
of
them
is
seisin
of
all
other
services
whatsoever
,
and
no
distresse
for
them
of
any
goods
or
chattels
(
of
what
value
soever
)
shall
in
judgement
of
Law
be
déemed
excessive
:
And
albeit
the
Lord
distraine
for
them
oftentimes
,
so
that
the
Tenant
cannot
manure
his
land
,
yet
the
Tenant
shall
not
therefore
have
an
Assise
de
sovent
distresse
,
as
he
shall
have
for
Rent
and
other
profits
:
Vide
28
Ass.
Pl.
50.
11
H.
4.
2.
42
E.
3.
26.
Br.
distresse
80.
Pl.
Co.
263.
b.
in
le
per
,
he
shall
be
now
in
le
post
:
Also
,
when
the
Common
Law
and
Statute
Law
concurre
,
the
Common
Law
shall
be
preferred
,
&c.
10
When
land
is
given
to
any
expresse
superstitious
use
,
Oustre
que
il
mad
biens
,
&c.
the
Plaintife
replies
,
that
there
were
Indentures
of
defeasance
for
the
performance
of
covenants
,
which
are
performed
huc
usque
,
the
Defendant
demurres
;
And
in
this
Case
judgement
was
given
for
the
Plaintiffe
;
for
,
an
Obligation
shall
be
paid
before
a
Statute
to
performe
covenants
,
which
per-adventure
will
never
be
broken
,
but
are
things
in
contingency
and
futuro
,
and
shall
never
barre
any
present
debt
upon
an
Obligation
or
other
specially
:
And
it
was
adjudged
in
B.
R.
Per
totam
Curiam
H.
42.
Co.
Ba.
in
Pemberton
and
Bartams
Case
,
Pl.
32
El.
Rot.
235
Which
see
in
the
end
of
the
Sadlers
Case
in
the
4.
Rep.
Dier
80.
53.
16
At
the
Common
Law
if
Cestuy
que
use
and
his
Feoffées
joyne
in
a
feofment
grant
or
demise
generally
,
Rowland
Heywards
Case
.
this
shall
be
by
construction
of
Law
the
feoffement
grant
or
demise
of
the
feoffées
,
who
were
owners
of
the
land
,
and
passed
the
Estate
by
the
Common
Law
,
not
by
Cestuy
que
use
,
who
had
nothing
but
a
trust
and
confidence
,
and
derived
onely
his
authority
by
the
Statute
of
1
R.
3.
as
it
is
agréed
in
21
H.
7.
and
the
Common
Law
in
such
Cases
shall
be
by
its
owne
construction
preferred
before
the
power
of
Cestuy
que
use
,
given
onely
by
Statute
.
17
Vide
M.
44.
ex
12.
C.
B.
be
removed
into
the
K.
B.
for
error
,
C.
B.
cannot
write
to
the
K.
B.
to
send
it
,
because
the
K.
B.
is
an
higher
Court
then
the
C.
B.
but
the
Record
ought
to
be
first
certified
into
the
Chancery
by
Certiorare
,
and
then
to
be
sent
from
the
Chancery
into
the
C.
B.
by
a
mittimus
:
Howbeit
,
if
it
were
an
inferiour
Court
,
the
C.B.
may
writ
to
it
for
any
Record
,
&c.
19
If
a
man
be
entitled
to
have
a
writ
of
escheate
,
92
The
Law
respecteth
life
and
liberty
most
,
and
the
Person
above
his
possessions
.
Fortescue
cap.
42.
nat.
hab
.
〈◊〉
so
in
a
lib.
p●
non-suite
after
apparence
is
peremptory
;
for
thereby
the
Villein
is
enfranchised
:
And
so
it
is
if
two
be
Plaintiffes
in
nativo
habendo
,
if
one
be
non-suite
,
that
is
the
non-suit
of
both
and
no
summons
and
severance
doth
lye
in
that
Case
,
although
it
is
a
Real
Action
:
And
this
is
in
favorem
libertatis
;
for
,
in
a
libertate
probanda
non-suit
after
apparence
is
not
peremptory
,
neither
is
the
non-suit
of
one
,
the
non-suit
of
both
.
Ph.
&
M.
cap.
10.
the
Common
Law
was
revived
;
So
that
now
for
any
Treason
the
Prisoner
shall
have
his
challenge
to
the
number
of
thirty
five
,
as
before
.
And
so
it
was
resolved
by
the
Iustices
,
upon
conference
betwéen
them
in
the
Case
of
Sir
Walter
Raleigh
,
and
George
Brooks
.
in
favorem
vitae
,
&c.
in
favorem
vitae
,
&c.
Will
.
Herberts
case
.
16
The
liberty
of
a
man
is
of
such
high
estéeme
in
the
consideration
of
Law
,
that
he
could
not
(
at
the
Common
Law
)
he
imprisoned
,
cum
debitum
fuerit
recuperatum
,
&c.
an
Elegit
of
the
moity
of
the
land
,
which
was
the
first
Act
,
that
subjected
land
to
the
execution
of
a
judgement
;
or
recognisance
,
and
with
this
agrées
F.
N.
B.
265.
q.
And
then
by
the
Statute
of
13
E.
1.
de
Mercatoribus
,
27
E.
3.
cap.
9.
and
23
H.
8.
cap.
6.
In
case
of
a
Statute
Merchant
or
staple
all
the
lands
,
which
the
Conusor
had
the
day
of
the
conusance
,
shall
be
extended
,
in
whose
hands
soever
they
come
,
&c.
Also
by
the
Statute
of
Malbridge
cap.
23.
and
of
West
.
2.
cap.
11.
A
capias
was
given
in
accompt
(
for
at
the
Common
Law
processe
in
accompt
was
distresse
infinite
)
and
after
by
the
Statute
of
25
E.
3.
17.
the
like
processe
was
given
in
the
debt
,
as
in
accompt
before
which
two
last
recited
Statutes
the
body
of
the
Defendant
was
not
liable
to
the
execution
in
accompt
or
debt
&c.
neither
yet
was
the
land
liable
in
debt
as
afore-said
,
save
in
the
Kings
case
,
and
in
the
case
of
an
heire
in
by
descent
,
and
chargeable
by
the
Obligation
of
his
Ancestor
,
&c.
E.
Wotherel
brings
an
appeal
against
Dorley
of
murder
the
Defendant
pleads
not
guilty
,
and
he
was
found
guilty
of
homicide
,
Co.
l.
4.
45.
a.
de
non
sanae
memoriae
doth
,
Mar.
cap.
9.
made
,
which
commands
the
Goaler
to
receive
them
upon
a
penalty
,
&c.
And
yet
the
receit
of
the
Goaler
(
in
that
case
)
séemes
to
be
a
necessary
incident
to
the
power
given
them
to
imprison
;
but
in
regard
it
concerned
the
liberty
of
the
subject
,
and
they
had
not
the
authority
of
any
Court
to
commit
any
;
the
Goaler
could
not
receive
such
as
they
should
commit
without
an
expresse
provision
by
Act
of
Parliament
for
that
purpose
,
&c.
Magna
Carta
c.
29.
Nullus
liber
homo
imprisonetur
,
&c.
Malbridge
cap.
23.
De
facto
,
De
●●re
shall
one●
bring
an
appeal
.
or
De
Jure
;
De
facto
,
until
both
of
them
have
attained
the
yeares
of
Consent
(
viz.
24
for
the
Man
,
and
12
for
the
Woman
)
De
Jure
,
when
at
those
ages
,
they
have
not
dis-assented
:
Now
,
albeit
a
Wife
De
facto
onely
,
who
is
nine
yeares
old
at
her
husbands
death
(
though
he
be
but
foure
yeares
old
,
when
he
dies
)
shall
be
endowed
:
yet
(
as
some
hold
)
such
a
Wife
De
facto
shall
not
have
an
appeale
of
the
death
of
her
Husband
,
but
onely
she
that
is
a
Wife
De
Jure
,
and
that
is
in
favorem
vitae
.
Vide
Pl.
ibid.
per
Cur.
in
re
militari
,
one
Souldier
happen
to
hurt
another
,
he
shall
be
answerable
in
Trespasse
,
because
it
extends
no
farther
then
to
his
goods
to
sati●●e
dammages
;
yet
if
the
accident
were
inevitable
,
he
shall
be
excused
,
&c.
93
Things
in
the
Realty
more
then
those
in
the
Personalty
.
per
Popham
.
but
if
the
personalty
be
mixed
with
the
realty
,
it
is
otherwise
;
as
in
an
Assise
by
two
,
the
release
of
all
actions
personal
by
the
one
,
is
no
bar
against
the
other
;
for
albeit
an
Assise
is
an
action
mixt
in
the
realty
and
personalty
,
yet
omne
majus
trahit
ad
se
minus
,
as
it
is
adjudged
30
H.
6.
Bar
59.
Also
a
Ioynt-tenant
shall
not
prejudice
his
Companion
,
as
to
any
matter
of
Inheritance
of
Frank-tenant
,
but
as
to
the
profit
of
the
Frank-tenant
,
the
one
may
prejudice
the
other
:
for
there
is
a
privity
and
trust
betwixt
them
;
and
therefore
if
one
of
them
take
all
the
profits
of
the
Land
,
or
all
the
Rent
,
the
other
hath
no
remedie
,
&c.
Ass.
Pl.
12.
and
7
E.
6.
1.
the
Office
of
the
fourth
part
of
the
Serjeant
of
the
Common
Pleas
is
liberum
tenementum
,
and
therefore
may
be
entailed
:
In
18
E.
3.
27.
the
Office
of
the
kéeping
of
the
Church
of
our
Lady
of
Lincoln
was
intailed
,
and
a
Formedon
brought
thereupon
by
the
issue
intail
.
In
5
E.
4
3.
and
10
E.
4.
14.
The
Office
of
Marshal
of
England
was
intailed
.
In
11
E.
4.
1.
the
Office
of
one
of
the
Chamberlains
of
the
Exchequer
intailed
.
In
1
H.
7.
28.
the
Office
of
a
Fostership
intailed
:
In
4
H.
7.
10.
and
9
E.
4.
56
b.
Charters
intailed
.
In
19
H.
8.
3
,
An
Vse
intailed
.
In
1
H.
5.
1.
The
nomination
to
a
Benefice
intailed
,
&c.
Ass.
Pl.
2.
if
the
issue
in
tail
in
a
Formedon
in
a
Descender
be
barred
by
false
Verdict
,
his
release
is
no
bar
to
his
issue
,
albeit
the
action
is
at
the
Common
Law
:
The
like
Law
is
of
a
writ
of
Error
,
3
Eliz.
Dier.
188.
If
a
gift
in
tail
be
made
with
warrantie
,
the
Donée
releases
the
warranty
,
this
shall
not
binde
the
issue
in
tail
;
for
to
all
these
Cases
and
the
like
the
said
Statute
doth
extend
:
But
if
I
grant
to
a
man
,
and
to
the
heirs
of
his
body
to
be
Kéeper
of
my
Hounds
,
or
Master
of
my
Horse
,
or
to
be
my
Faulconer
or
the
like
,
with
a
fée
therefore
;
yet
these
cannot
be
intailed
within
the
said
Statute
:
for
that
they
be
not
issuing
out
of
Tenements
,
nor
annexed
to
,
nor
exercisable
within
,
or
concerning
Lands
or
Tenements
of
Fréehold
or
Inheritance
,
but
concerning
Chattels
,
and
savour
nothing
of
the
realty
:
So
it
is
likewise
,
if
I
,
by
my
Déed
,
for
me
and
my
Heires
,
grant
an
Annuity
to
a
man
and
the
Heires
of
his
body
,
because
this
onely
chargeth
my
Person
,
and
concerneth
no
Land
,
nor
laboureth
of
the
Realty
.
in
auter
droit
,
as
Executrix
or
Administratrix
,
&c
,
Vide
R.
55.
ex.
129.
Novel
disseisin
,
yet
upon
shewing
a
descent
,
or
other
special
matter
,
he
may
have
an
Assise
of
Mortdancestor
,
Aiel
,
Besaiel
,
&c.
Vide
infrà
1.
78
,
14.
94
Freehold
and
Inheritance
more
then
it
doth
Chattels
.
(
inter
vicines
,
&c.
)
of
the
Villeins
goods
,
ea
intentione
,
or
ad
effectum
,
or
ad
propositum
,
&c.
that
the
Feoffée
or
Lessée
shall
do
,
or
shall
not
do
such
an
Act
,
none
of
these
words
make
the
state
in
the
land
conditional
;
for
(
in
the
Case
of
a
common
person
,
and
not
of
a
will
)
they
are
in
judgment
of
Law
no
words
of
Condition
,
and
so
it
was
resolved
,
H.
18
Eliz.
in
Com.
Banco
:
Howbeit
for
the
avoiding
of
a
Lease
for
years
,
no
such
precise
words
of
condition
are
required
,
as
in
Lease
of
Fréehold
or
Inheritance
;
for
,
if
a
man
by
Déed
make
a
Lease
of
a
Mannor
for
years
in
which
there
is
a
clause
.
(
And
the
said
Lessée
shall
continually
dwell
upon
the
Capital
Messuage
of
the
said
Mannor
,
upon
pain
of
forfeiture
of
the
said
Term
)
these
words
amount
to
a
Condition
:
So
it
is
also
if
such
a
Clause
be
in
such
a
Lease
,
Quod
non
licebit
to
the
Lessée
,
dare
,
vendere
,
vel
concedere
Statum
,
&
sub
poena
foris-facturae
,
this
amounts
to
make
the
Lease
for
years
defeasible
:
And
so
it
was
also
adjudged
,
H.
40.
Eliz.
Rot.
1610.
inter
Brown
&
Ayel
.
And
the
reason
of
the
Court
was
,
because
a
Lease
for
years
was
but
a
Contract
,
which
may
begin
by
word
,
and
by
word
may
be
dissolved
.
Feme
covert
may
be
drowned
;
So
note
a
diversity
betwéen
a
Lease
for
life
,
and
a
lease
for
years
,
made
to
a
Feme
covert
;
for
her
Estate
of
Fréehold
cannot
be
altered
by
the
confirmation
made
to
her
husband
and
her
,
as
the
term
for
years
may
,
whereof
her
husband
may
make
disposition
at
his
pleasure
.
in
futuro
,
having
an
Estate
whereupon
it
may
work
in
the
beginning
:
but
if
a
man
grant
a
Seigniory
for
years
,
upon
condition
to
have
fée
,
with
a
warranty
in
forma
praedicta
,
and
after
the
Condition
is
performed
,
this
shall
not
extend
to
the
fée
,
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
Fée
,
and
warrant
the
land
in
forma
praedicta
,
he
in
the
remainder
cannot
take
benefit
of
the
warrantie
;
because
he
is
not
party
to
the
Déed
,
and
immediately
he
cannot
take
,
if
he
were
party
to
the
Déed
;
because
he
is
named
after
the
habendum
,
and
the
Estate
for
years
is
not
capable
of
a
warranty
,
&c.
per
Popham
.
Assise
de
novel
disseisin
,
yet
he
may
have
,
upon
shewing
a
descent
,
or
other
special
matter
,
an
Assise
of
Mortdancestor
,
Aiel
,
Besaiel
,
Entry
sur
disseisin
,
to
his
Ancestor
,
&c.
So
if
a
man
be
barred
in
a
Formedon
in
descender
,
he
may
have
a
Formedon
in
reverter
or
remainder
,
for
that
is
an
Action
of
an
higher
nature
;
because
in
it
the
Fée-simple
is
to
be
recovered
according
to
the
opinion
in
Robinsons
Case
in
the
5.
Report
,
fol.
33.
Wil.
Herberts
case
.
(
which
gave
an
Elegit
against
the
moity
of
the
Debtors
Lands
)
upon
a
Recognisance
or
Iudgment
sued
,
lands
were
not
chargeable
in
execution
,
but
onely
Goods
and
Chattels
,
or
else
grain
or
other
present
profit
increasing
upon
the
land
,
viz.
Goods
and
Chattels
by
Fieri
facias
and
such
present
profit
by
Levari
facias
,
&c.
(
Vide
suprà
,
Ru.
92.
ex.
16.
)
Howbeit
in
the
Kings
Case
,
by
reason
of
his
Prerogative
,
and
in
Case
of
an
Heir
,
in
by
Descent
,
and
chargeable
by
the
act
of
his
Ancestor
,
&c.
(
because
otherwise
(
in
such
Case
)
the
Creditor
was
without
remedy
,
&c.
)
lands
were
chargeable
in
execution
,
&c.
ubi
in
margine
,
viz.
fol.
58.
b.
Matt.
Mannings
Case
.
&
Co.
l.
10.
48.
b.
3
in
Lampets
ca.
that
if
the
Lessée
doth
not
such
an
act
,
that
the
Lease
shall
be
void
,
and
after
the
Lessor
grants
the
Reversion
over
,
the
condition
is
broken
,
the
Grantée
shall
take
advantage
of
that
Condition
by
the
Common
Law
;
for
the
lease
is
thereby
absolutely
void
:
But
if
a
lease
for
life
had
béen
made
upon
such
Condition
,
the
grantée
shall
not
take
benefit
of
the
breach
of
the
Condition
:
because
a
frank-tenant
(
whereof
a
praecipe
lies
)
cannot
so
easily
cease
,
but
it
is
voidable
by
entry
after
the
Condition
broken
,
which
cannot
by
the
Common
Law
be
transferred
to
a
stranger
,
&c.
and
with
this
agrées
11
H.
7.
17.
&
Br.
Condit.
245.
2.
Mar.
per
Bromley
Rule
27.
Littleton
l.
2.
cap.
Attornment
,
fol.
128.
If
land
be
let
to
a
man
for
term
of
yeares
,
the
remainder
to
another
for
term
of
life
,
and
after
the
Lessor
grants
over
the
reversion
,
and
he
in
the
remainder
for
life
attornes
,
this
is
a
good
attornment
,
and
shall
binde
the
Lessée
for
yeares
without
any
attornment
made
by
him
:
For
,
he
was
Tenant
of
the
frank-tenement
:
and
at
the
Common
Law
the
termor
for
yeares
was
subject
and
under
the
power
of
the
Tenant
of
the
frank-tenement
:
for
he
shall
not
falsifie
a
recovery
at
the
Common
Law
against
the
Tenant
of
of
the
frank-tenement
,
because
he
hath
but
a
Chattel
,
&c.
Leonard
Loveis
Case
.
22
If
a
term
be
devised
to
one
and
to
the
heires
males
of
his
body
,
Eliz.
in
B.
R.
in
Peacocks
Case
,
and
21
Eliz.
resolved
by
Anderson
and
Walmesly
,
being
referred
unto
them
out
of
the
Chancery
betwéen
Higgins
,
and
Milles.
Sée
also
Dier
7.
28
H.
8.
Pl.
8.
Title
Jointenance
,
that
this
dis-agréement
by
parol
in
pais
could
not
divest
the
frank-tenement
out
of
him
,
And
Thorpe
in
53
E.
3.
Tit.
Disclaimer
,
saith
,
that
in
such
Case
the
tenancy
remaines
in
all
,
until
dis-agréement
in
Court
of
Record
:
But
if
A.
make
an
Obligation
to
B.
and
deliver
it
to
C.
to
the
use
of
B.
this
is
the
déed
of
A.
presently
;
Howbeit
if
C.
offer
it
to
B.
there
B.
may
refuse
it
in
pais
,
and
by
such
refusal
the
Obligation
shall
be
his
force
:
There
is
the
same
Law
of
a
gift
of
goods
and
Chattels
,
if
the
déed
be
delivered
to
the
use
of
the
Donée
,
the
goods
and
Chattels
are
immediately
in
the
Donée
before
notice
or
agréement
:
but
the
Donée
may
make
refusal
of
such
gift
in
pais
,
and
thereby
the
property
and
Interest
shall
be
divested
,
and
such
dis-agréement
is
not
necessary
to
be
made
in
a
Court
of
Record
,
as
in
Case
of
a
frée-hold
,
&c.
Mathew
Mannings
Case
.
that
if
he
do
not
such
an
Act
the
Lease
shall
be
void
,
and
afterwards
he
grants
the
reversion
over
,
the
condition
is
broken
,
the
grantée
shall
take
benefit
of
this
Condition
by
the
Common
Law
,
for
the
lease
is
thereby
absolutely
void
:
but
if
the
lease
had
béen
for
life
with
such
Condition
,
the
grantée
shall
not
take
benefit
of
the
breach
of
the
Condition
:
for
a
Frank-tenement
(
up
on
with
a
praecipe
lies
)
cannot
so
easily
determine
,
but
is
voidable
by
entry
after
the
Condition
broken
,
which
cannot
be
by
the
Common
Law
transferred
to
a
stranger
.
John
Overall
Doctor
of
Divinity
and
his
heires
,
95
Matter
of
Record
more
then
other
transactions
.
de
non
sane
memoriae
or
an
Infant
make
a
feofment
or
other
conveyance
of
his
land
in
pais
,
the
heire
of
the
non
sane
memoriae
,
Vide
R.
55.
e.
69.
&
R.
55.
e.
69.
Tittle
Advowry
232.
it
was
adjudged
,
that
if
a
man
take
a
distresse
for
one
thing
,
yet
when
he
comes
into
a
Court
of
Record
,
he
may
make
Avowry
for
what
thing
he
pleaseth
:
Also
in
13
R.
2.
Joint-tenancy
,
A
Charter
of
feofment
was
made
to
four
,
and
seisin
was
delivered
to
thrée
in
name
of
all
,
and
the
fourth
comming
and
viewing
the
déed
,
dis-agrées
,
and
saith
by
parol
,
he
will
have
nothing
to
do
with
the
Land
;
and
it
was
adjudged
,
that
this
disagréement
by
parol
in
pais
shall
not
devest
the
frank-tenement
out
of
him
:
And
Thorpe
in
35
E.
3.
Tittle
Disclaimer
,
saith
,
that
in
such
Case
the
tenancy
remaines
still
,
until
his
dis-agréement
thereunto
in
a
Court
of
Record
,
and
therefore
in
such
a
Court
he
may
dis-agrée
and
not
otherwise
,
&c.
erronice
emanavit
,
so
long
as
the
award
of
exigent
(
which
is
there
called
a
judgement
)
stands
in
force
:
because
the
fore-said
averments
of
imprisonment
,
or
being
beyond
Sea
,
&c.
are
but
matters
in
fuit
.
But
(
as
it
is
said
in
the
same
Booke
)
if
such
an
out-lawed
person
have
a
charter
of
pardon
of
an
older
date
then
that
of
the
Exigent
,
the
goods
are
saved
,
for
that
the
cause
of
saving
them
appeares
upon
Record
,
&c.
Feme
covert
or
an
Infant
,
Feme
covert
with
their
husband
,
Alien
by
Charter
of
feofment
in
Mortmaine
,
this
is
no
barre
to
the
Infant
or
Feme
covert
:
But
if
a
recovery
be
had
against
an
Infant
or
Feme
covert
in
an
Action
of
wast
,
there
they
are
bound
and
barred
for
ever
:
because
that
is
matter
of
record
unto
which
the
Law
gives
high
respect
:
and
therefore
it
is
to
be
observed
,
that
a
condition
in
law
by
force
of
a
Statute
,
which
giveth
a
recovery
,
is
in
some
Case
more
strong
,
then
a
Condition
in
Law
without
a
recovery
:
For
if
Lessée
for
life
make
a
lease
for
yeares
,
and
after
enter
into
the
land
,
and
make
wast
,
and
the
Lessor
recover
in
an
Action
of
wast
,
he
shall
avoid
the
lease
made
before
the
wast
done
:
But
if
the
Lessée
for
life
make
a
lease
for
yeares
,
and
after
enter
upon
him
,
and
make
a
feofment
in
fée
,
this
forfeiture
shall
not
avoid
the
lease
for
yeares
,
&c.
Eliz.
cap.
8.
concerning
this
matter
.
in
fait
;
in
fait
he
shall
avoid
either
within
age
,
or
at
full
age
;
but
matters
of
Record
,
as
Statutes
Merchant
and
of
the
Staple
,
Recognisaances
acknowledged
by
him
,
and
a
Fine
levied
by
him
,
or
a
Recovery
against
him
by
default
in
a
real
action
,
(
saving
in
Dower
)
must
be
avoided
by
him
,
viz.
Statutes
,
&c.
by
Audita
querela
,
and
the
Fine
and
Recovery
by
writ
of
Error
,
during
his
minority
,
and
the
like
:
And
the
reason
thereof
is
,
because
they
are
judicial
acts
,
and
taken
by
a
Court
or
a
Iudge
,
&c.
de
partitione
facienda
against
the
Lessor
,
and
partition
is
thereupon
made
:
In
this
Case
,
albeit
the
part
allotted
to
the
Lessor
be
lesse
then
the
part
of
the
other
,
yet
the
Termor
is
without
remedie
:
But
if
the
partition
were
without
writ
,
it
séemes
to
be
otherwise
.
in
pais
;
Howbeit
in
an
Assise
brought
by
tenant
by
Elegit
,
ancient
Demesne
is
a
good
Plea
,
(
as
it
is
held
in
22
Ass.
Pl.
45.
)
because
there
the
Plaintiffe
shall
recover
the
possession
of
the
land
by
Iudgement
upon
Record
.
96
Conveyances
by
Livery
,
or
which
passe
Estates
of
the
Land
,
more
then
those
that
passe
by
Grant
,
or
onely
passe
things
belonging
to
,
or
issuing
out
of
the
Land
.
3
Vide
suprà
M.
94.
Pl.
25.
M.
●o
.
Pl.
8.
97
A
matter
in
the
right
,
more
then
a
matter
in
possession
.
in
Banco
,
B.
R.
in
specie
,
and
it
was
objected
first
,
that
the
Issue
was
found
against
the
Plaintiff
,
for
that
the
prescription
was
general
for
all
the
time
of
prescription
,
and
20
years
did
fail
thereof
.
Secondly
,
that
the
party
by
payment
of
tithes
in
specie
had
waved
the
prescription
or
custome
:
But
it
was
adjudged
for
the
Plaintiffe
in
the
prohibition
:
for
albeit
the
modus
decimandi
had
not
béen
paid
by
the
space
of
20
years
,
yet
the
prescription
being
found
,
the
substance
of
the
Issue
is
found
for
the
Plaintiff
:
in
pais
.
Entry
,
&c.
may
regain
the
possession
from
the
Disseisée
,
yet
shall
the
Disseisée
still
retain
his
ancient
right
,
and
thereupon
may
again
recover
the
possession
of
the
land
from
the
heir
in
a
writ
of
Entry
in
the
per.
for
the
disseisin
made
unto
him
by
the
ancestor
of
the
heir
,
98
Yet
it
favoureth
Possession
,
where
the
right
is
equal
.
99
The
Law
respecteth
matters
of
profit
,
and
Interest
,
largely
;
Of
pleasure
,
skill
,
ease
,
trust
authority
,
and
limitation
,
strictly
.
Eliz.
Rot.
492.
inter
Sharton
&
Barns
in
an
ejectione
firme
in
B.
R.
)
that
the
grant
and
remainder
ever
was
good
;
because
the
Lord
having
authority
by
Custome
,
and
an
Interest
withall
might
grant
any
lesser
Estate
:
for
in
this
Case
,
the
Custome
that
enableth
him
to
the
greater
,
enableth
him
to
the
lesser
,
Omne
majus
continet
in
se
minus
,
&c.
So
also
if
one
as
Procurator
or
attorney
to
another
present
to
his
own
Benefice
,
he
thereby
puts
himselfe
out
of
possession
;
because
of
his
Interest
coupled
with
his
authority
,
and
for
that
the
presentée
commeth
in
by
the
Institution
and
Induction
of
the
Ordinary
;
If
the
Lord
or
a
Grantée
of
a
Rent-charge
had
béen
also
Cestuy
que
use
of
the
land
,
and
after
the
Stat.
of
R.
3.
and
before
the
Stat.
of
27
H.
8.
Cestuy
que
use
had
made
a
feofment
in
fée
of
the
land
,
albeit
(
in
this
Case
)
the
land
passeth
from
the
feoffées
,
and
his
feofment
is
warranted
by
the
power
given
to
him
by
the
Statute
,
yet
the
Seigniory
or
Rent-charge
is
extinct
by
his
feofment
,
for
that
he
had
not
a
bare
authority
as
an
Attorny
hath
,
but
also
an
interest
coupled
therewith
:
But
he
that
hath
but
a
bare
authority
to
do
a
thing
is
so
farre
from
doing
more
then
which
he
is
expressely
authorised
to
do
,
that
if
he
strictly
pursue
not
his
authority
,
the
Law
adjudged
that
which
he
doth
to
be
absolutely
void
:
As
if
a
man
be
disseised
of
Black-acre
and
White-acre
,
and
a
warrant
of
attorney
is
made
to
enter
into
both
,
and
to
make
livery
;
there
,
if
the
attorney
enter
into
Black-acre
onely
and
makes
livery
secundum
formam
cartae
,
In
this
Case
the
livery
of
seisin
is
void
:
because
he
doth
lesse
then
his
warrant
;
for
,
the
Estate
in
White-acre
cannot
be
divested
without
an
entry
:
So
likewise
,
albeit
the
warrant
be
general
,
viz.
to
deliver
seisin
;
yet
the
attorney
cannot
deliver
seisin
within
the
view
:
for
his
warrant
is
intendable
in
Law
of
an
Actual
and
expresse
livery
,
and
not
of
a
livery
in
Law
;
and
so
it
was
resolved
in
Yarhams
Case
,
P.
3.
El.
in
Co.
Banco
.
In
like
manner
,
albeit
the
warrant
of
Attorney
be
indefinite
,
without
limitation
of
any
time
,
yet
the
Law
prescribeth
a
time
,
which
the
attorney
is
bound
to
observe
,
viz.
in
the
life
time
of
the
Feoffor
and
Feoffée
;
for
,
if
either
of
them
die
before
Livery
made
,
that
is
a
countermand
of
the
Letter
of
attorney
,
and
also
the
Déed
it self
is
become
of
none
effect
,
because
in
that
case
nothing
doth
passe
before
Livery
of
seisin
;
for
,
if
the
Feoffor
dieth
,
the
land
descends
to
the
heir
,
and
if
the
Feoffée
dieth
Livery
cannot
be
made
to
his
heir
,
because
then
he
should
take
by
purchase
,
whereas
heires
were
named
by
way
of
limitation
:
And
herewith
agréeth
Bracton
,
Item
,
Oportet
,
quòd
donationem
sequatur
rei
traditio
,
etiam
in
vita
donatoris
&
donatorii
,
&c.
Feme
covert
,
and
the
conditions
in
Law
annexed
to
that
Office
(
which
require
skill
and
confidence
,
)
be
not
observed
and
fulfilled
,
the
Office
is
lost
for
ever
;
because
(
as
Littleton
saith
§.
379.
)
that
implicite
condition
of
skill
,
&c.
is
as
strange
as
an
expresse
condition
,
but
if
a
lease
for
life
be
made
to
a
feme
covert
,
or
an
infant
,
and
they
by
Charter
,
of
feofment
alien
in
fée
,
the
breach
of
this
condition
in
law
,
that
is
without
skill
,
&c.
is
no
absolute
forfeiture
of
that
estate
:
So
it
is
likewise
of
a
condition
in
law
given
by
Statute
,
which
giveth
an
entry
onely
;
As
if
an
Infant
,
or
feme
covert
with
her
husband
aliens
by
Charter
of
feofment
in
Mortmain
,
this
is
no
bar
to
the
Infant
or
feme
covert
;
because
these
conditions
endeavour
to
defeat
an
Interest
onely
,
but
the
other
an
Interest
mixed
with
a
trust
and
confidence
.
I.
S.
upon
condition
,
and
the
Attorney
delivereth
it
absolute
,
this
is
void
;
Cesty
que
use
had
devised
,
that
his
feoffées
should
have
sold
his
land
,
Albeit
they
had
made
a
feoffment
over
,
yet
might
they
sell
the
use
;
for
their
authority
in
that
case
is
not
given
away
by
the
livery
;
because
in
these
cases
the
power
or
authority
extendeth
onely
to
the
use
of
a
stranger
,
and
nothing
for
the
benefit
of
him
that
makes
such
release
or
feoffment
:
It
is
otherwise
where
the
power
or
authority
doth
also
respect
the
benefit
of
the
releasor
,
as
in
the
case
of
the
usual
powers
of
revocation
,
when
the
feoffor
,
hath
power
to
alter
,
change
,
determine
,
or
revoke
the
uses
,
being
intended
for
his
benefit
;
for
in
that
case
he
may
release
,
and
where
the
estates
before
were
defeasible
,
he
may
by
his
release
make
them
absolute
,
and
seclude
himself
from
any
alteration
,
or
revocation
,
as
it
was
resolved
in
Albanies
case
in
the
1
Rep.
112
,
113.
Cesty
que
use
might
after
the
Statute
of
1
R.
3.
and
before
the
Statute
of
27
H.
8.
For
Cesty
que
use
had
absolute
authority
to
dispose
of
the
Land
at
his
pleasure
,
without
any
confidence
reposed
in
him
,
as
appears
in
11
Eliz.
Dyer
283.
and
there
also
a
Iudgement
in
25
H.
8.
is
cited
,
which
agrées
with
it
,
against
the
opinion
of
some
Iustices
in
9
H.
7.
fol.
24.
So
likewise
a
Copiholder
,
Eliz.
per
Wray
and
Anderson
,
then
Iustices
of
Assise
in
Suffolk
.
George
Reynols
Case
.
and
concerns
the
administration
of
Iustice
,
and
the
life
of
the
Law
,
which
is
to
kéep
such
as
are
in
Execution
in
salva
&
arcta
custodia
,
to
the
end
they
might
the
sooner
pay
their
debts
,
&c.
And
this
trust
is
individual
and
personal
,
so
that
it
shall
not
be
extended
to
Executors
or
Administrators
;
for
the
Law
will
not
repose
confidence
in
matters
concerning
the
administration
of
Iustice
in
persons
unknown
.
pro
termino
vitae
suarum
(
without
more
)
by
the
death
of
one
of
them
he
grant
shall
be
void
;
20
If
the
Sheriff
behead
one
,
that
should
be
hanged
,
it
is
felony
.
Finch
ibid.
Indented
to
be
inrolled
,
are
to
be
understood
,
Indented
and
Inrolled
.
100
And
therefore
these
may
be
countermanded
,
so
cannot
those
.
That
if
I
be
bound
to
stand
to
the
award
,
that
I
S.
shall
make
,
I
cannot
discharge
that
Arbitrament
,
because
I
have
bound
my self
to
stand
to
his
award
,
and
that
if
it
were
without
Obligation
,
it
would
be
otherwise
;
Neverthelesse
,
in
the
one
case
and
in
the
other
,
the
authority
of
the
arbitrator
may
be
countermanded
;
but
then
in
the
one
case
,
he
shall
forfeit
his
Obligation
,
and
in
the
other
case
he
shall
lose
nothing
;
for
,
ex
unda
submissione
non
oritur
actio
;
And
with
this
agrées
Brooke
,
in
abridging
the
said
Book
of
5
E.
4.
Vide
21
H.
6.
30.
28
H.
6.
6.
49
E.
3.
9.
18
E.
4.
9.
8
E.
4.
10.
J.
S.
or
to
bestow
in
Almes
,
a
letter
of
Attorney
to
deliver
seisin
;
all
these
may
be
countermanded
before
they
be
done
:
But
if
I
present
J.
S.
to
a
Church
,
I
cannot
after
varie
and
present
a
new
;
for
a
kind
of
Interest
passeth
out
of
me
:
So
if
I
deliver
an
Obligation
as
a
sorowle
into
a
strangers
hand
,
to
be
delivered
to
the
Obligée
upon
a
Condition
to
be
performed
,
this
cannot
be
countermanded
:
for
upon
the
delivery
there
passeth
an
Interest
to
the
Obligée
,
he
being
(
as
it
were
)
party
and
privy
to
the
delivery
.
Finch
32.
J.
S.
hath
enfeoffed
me
of
certaine
land
,
and
in
recompence
thereof
I
give
him
this
money
,
and
withall
deliver
it
to
a
stranger
to
be
delivered
over
:
In
that
Case
I
cannot
countermand
it
,
because
this
gift
doth
not
take
effect
as
a
frée
gift
,
but
as
a
satisfaction
and
interest
,
&c.
Charles
Brandon
Duke
of
Suffolke
deceased
,
provided
,
7
Hob.
1●
.
Sir
Dan.
Norton
against
Simmes
,
the
under-shrivewick
revocable
.
101
Matter
of
substance
more
then
matter
of
circumstance
.
B.
R.
that
albeit
the
Verdict
was
found
against
the
letter
of
the
Issue
,
yet
for
that
the
substance
of
the
Issue
was
found
,
viz.
a
sufficient
title
by
prescription
,
the
Plaintisse
should
recover
his
acquital
:
in
specie
:
In
this
Case
,
albeit
the
Iury
finds
not
the
prescription
,
as
it
is
alleadged
,
viz.
for
the
whole
time
;
yet
for
as
much
as
the
substance
of
the
Issue
is
found
,
viz.
the
prescription
,
that
shall
not
be
preiudiced
by
such
cesser
for
20
years
,
which
is
but
a
circumstance
,
&c.
For
if
the
matter
and
substance
of
the
Issue
be
found
,
it
is
sufficient
.
without
impeachment
of
wast
,
it
is
good
:
because
the
Estate
for
life
is
the
substance
of
the
grant
,
and
the
priviledge
to
be
without
impeachement
of
wast
is
a
collateral
circumstance
,
and
onely
for
the
benefit
of
the
Wife
,
and
the
omission
of
it
onely
for
the
benefit
of
the
heire
:
So
likewise
,
if
the
Wife
(
in
that
Case
)
take
Husband
before
request
made
,
and
then
they
make
request
,
and
the
state
is
made
to
the
Husband
and
Wife
,
during
the
life
of
the
Wife
,
this
is
a
good
performance
of
the
Condition
,
albeit
the
Estate
be
made
to
the
Husband
and
Wife
,
where
Littleton
saith
it
is
to
be
made
to
the
Wife
,
but
it
is
alone
in
substance
,
séeing
that
the
limitation
is
,
during
the
life
of
the
Wife
,
&c.
●●do
&
for●●
words
of
●orme
,
not
of
●●●stance
.
7
These
words
,
modo
&
forma
,
prout
,
&c.
are
in
many
Cases
but
words
of
form
in
pleading
,
and
not
words
of
substance
;
in
casu
proviso
,
of
an
alienation
made
by
the
Tenant
in
Dower
to
his
dis-inheritance
,
and
counts
of
the
alienation
made
in
fée
;
and
the
Tenant
saith
,
that
he
aliened
not
modo
&
forma
prout
,
the
Demandant
hath
declared
,
and
thereupon
they
are
at
Issue
,
and
it
is
found
by
Verdict
that
the
Tenant
aliened
in
taile
,
or
pur
d'auter
vie
:
In
this
Case
,
the
Demandant
shall
recover
,
yet
the
alienation
was
not
in
manner
as
the
Demandant
had
declared
:
And
this
Rule
holds
alwayes
true
,
when
the
Issue
taken
goeth
to
the
point
of
the
writ
or
Action
:
for
then
modo
&
forma
are
but
words
of
forme
:
But
otherwise
it
is
,
when
a
collateral
point
in
pleading
is
traversed
,
as
if
a
feofment
be
alleadged
by
two
,
and
this
is
traversed
modo
&
forma
,
and
it
is
found
the
feofment
of
one
,
there
modo
&
forma
,
is
material
:
So
if
a
feofment
be
pleaded
by
déed
,
and
it
is
traversed
,
absque
hoc
quod
feoffavit
modo
&
forma
,
upon
this
collateral
Issue
modo
&
forma
are
so
essential
,
that
the
Iury
cannot
find
a
feofment
without
déed
.
8
Lord
and
Tenant
by
fealty
onely
,
and
the
Lord
distraines
the
Tenant
for
Rent
,
B.
A.
pleads
,
that
he
is
not
guilty
modo
&
forma
,
yet
the
Iury
may
find
the
Defendant
guilty
of
man-slaughter
without
malice
prepensed
;
because
the
killing
of
B.
is
the
matter
and
malice
prepensed
is
but
a
Circumstance
.
darrien
presentment
,
and
all
other
places
,
saving
in
the
towne
,
whereof
he
is
Constable
:
So
it
is
also
in
an
Action
for
taking
of
goods
:
for
,
in
that
Case
also
,
if
the
Defendant
justifie
for
damage
feasant
in
another
County
,
he
may
traverse
,
as
before
:
But
where
the
cause
of
the
justification
is
not
restrained
to
a
certain
place
,
which
is
so
local
,
that
it
cannot
be
alleadged
in
any
other
towne
(
as
in
the
Cases
before
alleadged
,
and
the
like
)
then
albeit
the
Action
be
brought
in
a
forraigne
County
,
yet
he
must
alleadge
his
justification
in
the
County
,
where
the
Action
is
brought
:
As
if
a
man
be
beaten
in
the
County
of
Middelsex
,
and
he
bringeth
his
Action
in
the
County
Buck.
the
Defendant
cannot
plead
,
that
the
Plaintiffe
assaulted
him
in
the
County
of
Middelsex
,
&c.
and
traverse
the
County
,
but
he
must
plead
his
justification
in
the
County
of
Buck.
for
that
the
cause
of
his
justification
is
good
in
any
place
:
So
it
is
likewise
in
Case
of
Bailement
of
goods
,
and
other
Cases
for
transitory
things
,
as
for
example
:
In
an
Action
upon
the
Case
the
Plaintiffe
declared
for
speaking
of
slanderous
words
,
which
is
transitory
,
and
layd
the
words
to
be
spoken
in
London
,
the
Defendant
pleaded
a
concord
for
speaking
of
words
in
all
the
Counties
of
England
,
saving
in
London
,
and
traversed
the
speaking
of
the
words
in
London
;
the
Plaintiffe
in
his
replication
denied
the
concord
,
whereupon
the
Defendant
demurred
,
and
judgement
was
given
for
the
Plaintiffe
;
for
,
the
Court
said
,
that
if
the
concord
in
that
Case
should
not
be
traversed
,
it
would
follow
,
that
by
a
new
and
subtile
invention
of
pleading
,
an
ancient
principle
in
Law
(
that
for
transitory
causes
of
Action
the
Plaintife
might
alleadge
the
same
in
what
place
or
County
he
would
)
should
be
subverted
,
which
ought
not
to
be
suffered
:
And
therefore
the
Iudges
of
both
Courts
allowed
a
traverse
upon
a
traverse
in
that
Case
,
&c.
Now
the
ground
that
ruleth
all
these
Cases
is
this
,
because
the
Law
respects
more
the
cause
of
the
Action
,
which
is
the
substance
of
the
suit
,
then
the
place
where
the
Act
was
done
,
which
is
but
circumstance
,
&c.
Co.
l.
8.
120.
b.
D.
Bouch.
Case
.
In
Alton
woods
Case
.
Ass.
Pl.
23.
of
a
Plaint
in
Assise
;
So
likewise
if
a
man
have
estovers
either
by
grant
or
by
prescription
to
his
house
,
albeit
he
alter
the
roomes
,
or
chambers
of
the
house
(
as
to
make
that
the
Hall
which
was
the
Parler
,
or
that
the
Parler
,
which
was
the
Hall
,
or
make
the
like
alteration
of
the
qualities
and
not
of
the
house
it selfe
,
and
without
making
new
Chimneys
,
whereby
no
prejudice
may
acrue
to
the
owner
of
the
wood
)
this
is
no
destruction
of
the
prescription
;
for
then
many
prescriptions
would
be
destroyed
:
And
although
he
build
new
Chimneys
,
or
make
a
new
addition
to
the
old
house
,
he
shall
not
thereby
lose
his
prescription
;
Howbeit
he
must
not
imploy
or
spend
any
of
the
estovers
in
the
new
Chimneys
,
or
in
the
part
newly
added
;
There
is
the
same
Law
of
Conduits
and
Water-pipes
,
or
the
like
:
So
if
a
man
have
an
ancient
Window
in
his
Hall
,
and
after
covert
the
Hall
to
a
Parler
or
any
other
use
,
yet
shall
it
not
be
Lawfull
for
the
Neighbour
at
his
pleasure
to
stop
it
;
For
he
may
prescribe
to
h●ve
a
light
in
such
a
part
of
his
House
,
&c.
Eliz.
cap.
14.
It
is
otherwise
if
it
be
deficient
in
matter
of
substance
;
As
in
Trespass
,
if
the
Plaintiffe
declare
,
Quare
clausum
suum
fregit
,
&
pisces
suos
cepit
,
&c.
without
shewing
the
number
or
nature
of
the
fish
:
In
this
Case
,
that
omission
is
matter
of
substance
,
and
not
of
forme
to
be
remedied
by
that
Statute
,
&c.
John
Webbes
Case
.
Vid.
Stat.
W.
2.
c
24
in
13
E.
1.
27
In
ancient
time
,
Brevia
Magistralia
,
and
they
(
by
reason
of
their
profound
learning
)
called
Masters
of
the
Chancery
,
the
other
making
Brevia
de
causa
,
and
therefore
called
Cursitori●
)
writs
were
by
them
exactly
formed
without
fault
or
error
:
But
now
when
such
learned
Clerks
faile
,
the
Iudges
in
many
Cases
give
allowance
to
ancient
formes
of
writ
,
and
puts
the
partie
to
make
a
special
Count
:
and
in
such
Case
,
when
the
writ
warrants
the
Count
in
substance
,
they
adjudge
it
sufficient
,
although
there
be
variance
in
circumstance
:
Tit.
Assise
de
darreine
praesentm.
20.
&c.
F.
N.
B.
53.
h.
Also
the
writ
of
Warr.
Cartae
is
formed
in
these
words
,
Quòd
justè
,
&c.
warrantized
B.
unum
mesuagium
in
D.
&c.
unde
cartam
habet
,
&c.
yet
if
he
be
bound
to
warranty
by
force
of
an
exchange
,
or
by
homage
ancestrel
,
the
form
of
the
writ
shall
not
be
altered
,
Vide
9.
E.
4.
49.
21
H.
6.
8.
&c.
F.
N.
B.
134.
I.
S.
for
life
,
with
Condition
that
if
I.
S.
pay
at
the
Exchequer
such
a
day
xx
s.
to
the
Kings
use
,
that
then
he
shall
have
fée
,
and
I.
S.
payes
the
xx
s.
accordingly
:
Although
it
be
regularly
true
,
that
the
King
by
reason
of
the
Majesty
of
his
person
)
cannot
take
or
depart
with
any
thing
,
but
by
matter
of
Record
,
(
yet
in
this
Case
)
I.
S.
shall
have
fée
in
the
Land
,
and
the
fée-simple
shall
be
out
of
the
King
immediately
upon
the
payment
of
the
xx
s.
without
petition
,
monstrance
de
droit
,
or
any
other
such
circumstances
,
for
if
the
Estate
shall
not
vest
before
such
circumstance
,
then
it
cannot
vest
presently
,
and
if
it
vests
not
presently
,
it
shall
never
vest
:
because
if
the
Estate
be
not
enlarged
:
and
therefore
(
in
such
Case
)
the
fée-simple
(
for
necessities
sake
)
shall
passe
out
of
the
King
without
any
such
circumstance
;
for
(
as
is
said
before
)
the
Law
never
requires
circumstance
,
when
it
may
subvert
the
substance
:
And
with
this
agrées
the
reason
in
the
Lo.
Love●●
Case
in
Pl.
Co.
and
in
Isabel
Good-cheapes
Case
in
49
E.
3.
16.
A.
B.
and
C
,
be
indicted
for
killing
of
I.
S.
and
that
A.
struck
him
,
and
that
the
other
were
present
,
procuring
,
abetting
,
&c.
and
upon
the
evidence
it
appeared
that
B.
struck
him
,
and
that
A.
and
B.
were
present
&c.
In
this
case
the
indictment
is
not
pursued
in
the
circumstance
,
and
yet
this
is
sufficient
to
maintain
the
indictment
;
for
the
evidence
agrées
with
the
effect
of
the
indictment
,
and
so
the
variance
of
the
circumstances
of
the
indictment
is
not
material
:
because
it
shall
be
adjudged
in
Law
the
stroke
of
each
of
them
,
and
it
is
as
strongly
the
act
of
the
other
two
,
as
if
all
thrée
had
struck
with
the
Staffe
,
&c.
together
,
and
all
had
killed
him
,
that
was
slain
;
And
with
this
agrées
Pl.
Com.
98.
a.
So
if
one
be
indicted
for
murdering
another
upon
malice
prepense
,
and
he
is
found
guilty
of
Man-slaughter
,
he
shall
have
judgment
upon
that
verdict
;
for
the
killing
is
the
substance
,
and
the
malice
prepense
is
the
manner
of
it
;
and
when
the
matter
is
found
,
judgment
shall
be
given
thereupon
,
although
the
manner
be
not
precisely
pursued
;
and
with
this
also
agrées
Pl.
Com.
101.
where
it
is
farther
said
,
that
,
when
the
substance
of
the
fact
,
and
the
manner
of
the
fact
are
put
in
issue
together
,
if
the
Jurors
find
the
substance
,
and
not
the
manner
;
judgment
shall
be
given
upon
the
substance
.
And
this
is
the
reason
,
that
in
case
of
killing
a
Minister
of
Iustice
in
the
execution
of
his
Office
,
the
indictment
may
be
general
,
viz.
that
the
prisoner
felonicè
,
voluntariè
,
&
ex
malicia
sua
praecogitata
&c.
percussit
,
&c.
without
alleadging
any
special
matter
;
for
(
in
that
case
)
the
evidence
will
well
maintain
the
indictment
;
because
the
Law
implies
malice
prepense
,
&c.
Robert
Maryes
Case
.
the
plaintiffe
saith
,
that
the
Defendant
put
his
Cattle
upon
the
Common
,
and
that
they
depastured
there
,
from
the
1
of
May
till
Michaelmas
,
the
Defendant
pleads
not
guilty
,
and
it
was
found
by
special
verdict
,
that
the
Cattle
depastured
there
,
&c.
but
that
the
Defendant
put
them
not
upon
the
Common
:
And
(
in
this
case
)
albeit
it
was
argued
by
the
Defendants
Council
,
that
the
Iury
had
not
found
the
wrong
,
whereof
the
plaintiff
complained
;
because
he
complained
of
a
Misfeasance
,
and
they
had
found
a
Non-feasance
;
for
the
plaintiffe
counted
that
the
Defendant
posuit
averia
sua
,
&c.
and
the
Iurors
found
quod
non
posuit
,
&c.
but
that
the
Cattle
did
depasture
,
&c.
which
might
be
by
escap●
,
which
is
a
Non-feasance
,
&c.
Howbeit
(
notwithstanding
that
allegation
)
the
action
was
adjudged
maintainable
enough
:
For
Iudges
in
finding
of
verdicts
rather
respect
substance
than
circumstance
,
&c.
de
omnimodis
deciminis
,
&c.
whereas
(
in
truth
)
by
the
unity
of
possession
the
land
was
not
discharged
of
tythes
,
but
of
the
payment
of
tythes
,
&c.
and
therefore
the
conclusion
in
that
p●int
was
not
formal
:
Neverthelesse
(
in
this
case
)
in
as
much
as
the
prescription
it selfe
was
well
alleadged
in
substance
,
so
that
the
foundation
thereof
was
good
,
the
mistake
of
the
conclusion
and
consequent
thereupon
(
which
is
but
a
circumstance
)
shall
be
no
cause
of
granting
a
Consultation
,
&c.
El.
cap.
2.
(
for
confirmation
of
Patents
or
Grants
made
by
or
to
the
Quéen
)
because
that
act
makes
the
conveyance
good
,
according
to
the
true
intent
and
purport
thereof
,
which
is
the
substance
,
and
therefore
in
such
case
want
of
circumstance
shall
not
prejudice
,
&c.
Monst
.
de
faits
10.
19
H.
6.
29.
De●ceit
,
11.
B.
Bell
9.
whereby
he
became
tenant
by
Elegit
,
as
it
was
adjudged
in
34
H.
6.
48.
because
that
is
but
a
circumstantial
conveyance
to
the
matter
of
the
suit
,
&c.
Also
in
19
H.
6.
29.
A
bill
of
Desceit
was
sued
against
two
attorneys
of
the
Co.
Pleas
for
imbezelling
,
&c.
a
Writ
of
Habeas
corpora
in
placito
terrae
,
upon
a
Formedon
betwixt
the
Plaintiff
and
another
,
and
judgment
was
demanded
of
the
bill
,
because
the
whole
Record
was
not
received
in
certain
;
but
the
bill
was
awarded
good
,
notwithstanding
it
did
not
recite
it
certainly
;
because
the
Record
was
but
circumstance
,
and
a
conveyance
to
the
suit
of
Desceit
,
&c.
which
see
in
the
Book
at
large
,
&c.
Bon.
Case
.
The
Dean
and
Canons
of
the
Kings
free
Chappel
of
St.
George
the
Martyr
within
his
Castle
of
Windsor
;
and
in
the
Raigne
of
P.
and
M.
they
made
a
Lease
of
certain
lands
by
this
name
,
The
Dean
and
Canons
of
the
King
and
Queens
Frée
Chappel
of
S.
George
within
the
Castle
of
Windsor
:
And
in
this
case
three
variances
were
observed
,
1
Because
it
was
named
the
King
and
Queenes
Frée
Chappel
,
whereas
it
should
have
béen
onely
named
the
Kings
.
2
It
ought
to
have
béen
S.
George
the
Martyr
,
whereas
Martyr
was
omitted
;
3
It
was
said
within
the
Castle
,
whereas
it
should
have
béen
within
the
Kings
Castle
.
In
this
case
,
the
first
onely
was
adjudged
a
material
exception
,
and
of
substance
,
but
the
other
two
onely
matter
of
circumstance
,
and
not
material
,
and
so
the
Lease
adjudged
void
for
the
first
.
ejectione
firmae
,
the
Defendant
pleads
,
that
the
Parson
was
deprived
,
the
Plaintiffe
saith
,
to
the
Archbishop
of
Canterbury
being
Words
of
substance
were
sufficient
to
maintain
the
Plea
,
and
that
the
other
Words
being
but
circumstantial
and
surplussage
should
not
prejudice
the
Plaintiffe
.
Petri
&
Pauli
and
adjudged
not
good
because
of
substance
.
Vide
Hob.
76.
Parker
and
Parker
117.
Napper
and
Jasper
133.
Moon
and
Andrews
.
102
Yet
for
memory
and
solemnity
substances
are
to
be-exprest
under
Ceremonies
.
&
praedictus
C.
D.
defendit
vim
&
injuriam
quando
,
&c.
&
damna
&
quicquid
quod
ipse
defendere
deber
,
&c.
)
judgement
shall
be
given
against
him
.
A
fortiori
in
Case
of
a
feofment
,
which
passeth
by
Livery
of
seisin
,
there
must
be
a
re-entry
by
force
of
the
Condition
before
the
State
be
void
.
9
All
Déeds
and
Writings
ought
to
be
made
in
Parchment
,
de
facto
.
I
here
demise
unto
you
my
house
as
long
as
I
live
,
paying
20
li.
per
annum
to
me
,
&
you
finding
me
bord
,
horse
,
&c.
this
amounts
not
to
a
demise
for
life
:
Because
there
wants
livery
,
or
some
Act
,
which
the
Law
adjudged
livery
,
or
at
least
apt
words
,
which
amount
thereunto
;
For
delivery
of
a
Charter
is
an
Act
:
but
the
Law
doth
not
adjudge
that
livery
,
because
it
hath
another
effect
,
viz.
to
make
the
Charter
his
déed
,
as
it
hath
béen
adjudged
,
but
delivery
of
a
turfe
,
twig
,
or
any
thing
else
,
which
comes
from
the
land
,
or
of
the
ring
of
the
doore
is
good
livery
:
So
if
he
saith
enter
and
enjoy
it
,
&c.
that
is
good
,
although
out
of
the
land
,
if
within
view
;
for
,
that
is
a
delivery
of
the
land
it selfe
:
27
Ass.
61.
after
delivery
of
the
déed
upon
the
land
,
to
say
,
have
and
enjoy
the
land
according
to
the
deed
,
this
is
good
livery
:
so
41
E.
3.
17.
after
delivery
,
&c.
upon
the
land
he
saith
,
enter
,
God
give
you
joy
,
this
is
good
.
37
H.
8.
Feofments
Br.
103
Things
executed
and
done
more
,
then
executorie
,
and
to
do
.
Vide
40.
51.
Jac.
in
Com.
Ba.
So
likewise
if
the
King
licence
to
alien
in
Mortmaine
and
dieth
,
the
licence
remaineth
good
,
notwithstanding
the
Kings
death
,
&c.
sur
grant
and
render
)
to
a
man
and
his
heires
,
and
he
,
to
whom
the
land
is
granted
and
rendred
,
Habere
facias
seisinam
,
Elegit
,
execution
upon
a
Statute
,
Capias
ad
satisfaciendum
,
fieri
facias
,
and
the
like
,
no
protection
can
be
cast
for
the
Defendant
,
for
then
the
suit
is
ended
;
Neither
hath
the
Defendant
then
any
farther
day
in
Court
,
and
the
protection
extendeth
onely
ad
placita
&
quaerelas
,
and
must
be
allowed
by
the
Court
,
which
cannot
be
but
upon
a
day
of
apparance
,
Qua●e
I●pedit
non-s●●●
or
discontin
.
a
good
barr●
the
Defendant
shall
make
a
title
,
and
have
a
Writ
to
the
Bishop
:
And
this
is
peremptory
to
the
Plaintiffe
,
and
a
good
barre
in
another
Quare
Impedit
;
And
the
reason
is
,
for
that
the
Defendant
had
by
judgment
of
the
Court
a
Writ
to
the
Bishop
,
which
is
a
judicial
Writ
,
and
in
the
nature
of
an
execution
:
And
therefore
the
Incumbent
that
cometh
in
by
that
Writ
shall
never
be
removed
,
which
is
a
flat
barre
as
to
that
presentation
;
And
of
this
opinion
is
Littleton
in
our
Books
:
And
the
same
Law
and
for
the
same
reason
it
is
,
in
case
of
a
discontinuance
.
pro
una
acra
terrae
,
or
pro
decimis
,
&c.
cessante
causa
cessat
effectus
:
But
if
A.
pro
consilio
impenso
,
&c.
make
a
feoffment
or
a
Lease
for
life
of
an
acre
,
or
pro
una
acra
terrae
,
albeit
he
denyeth
Councel
,
or
that
the
acre
be
evicted
,
yet
A.
shall
not
re-enter
,
because
in
this
case
there
ought
to
be
legal
words
of
condition
or
qualification
;
for
,
the
cause
or
consideration
shall
not
avoid
the
State
of
the
Feoffée
;
And
the
reason
of
this
diversity
is
,
for
that
the
state
of
the
land
is
executed
,
and
the
annuity
is
onely
executory
.
I.
S.
In
that
case
,
albeit
the
performance
of
the
Condition
be
malum
in
se
,
and
therefore
the
Condition
it self
méerly
void
,
yet
the
estate
is
absolute
,
because
executed
,
and
setled
,
&c.
But
if
a
man
make
a
Bond
upon
Condition
,
that
he
shall
kill
I.S.
the
Condition
being
unlawful
,
as
before
,
and
the
Bond
a
thing
onely
in
action
and
executory
,
they
are
both
void
,
&c.
Ejectione
firmae
against
E.
for
ejecting
him
out
of
land
,
C
,
E.
pleads
that
B.
gave
the
land
to
P.
and
K.
his
wife
in
tail
,
who
had
issue
E.
the
Defendant
,
and
after
the
Donées
enfeoffed
C.
upon
condition
to
demise
the
land
to
R.
for
years
,
the
remainder
to
P.
and
K
,
&c.
C.
did
demise
the
land
to
R.
but
kept
the
reversion
;
wherefore
K.
the
wife
after
her
husbands
decease
entred
upon
R
,
&c.
for
the
Condition
broken
,
and
died
,
after
whose
decease
the
Land
descended
to
E.
now
Defendant
;
Judgment
si
Action
:
Here
,
exception
was
taken
to
this
plea
,
because
E.
maintained
his
entry
by
force
of
a
Condition
broken
,
and
shewed
forth
no
Déed
;
But
the
plea
was
ruled
to
be
good
,
because
the
thing
was
executed
,
and
therefore
he
had
no
Déed
to
shew
forth
any
Déed
:
for
(
indéed
)
he
being
issue
in
tail
was
remitted
.
Mar.
Brook
Feoffments
,
al
uses
59.
It
is
covenanted
betwixt
A.
and
B
,
that
the
Sonne
of
A.
shall
marry
the
Daughter
of
B
,
for
which
B.
gives
to
A.
100
l.
and
A.
covenants
with
B
,
that
if
the
marriage
take
not
effect
,
that
A.
and
his
heires
will
stand
seised
of
150
acres
in
D.
to
the
use
of
B.
and
his
heires
,
until
A.
his
heires
,
&c.
pay
to
B.
100
l.
after
B.
hath
issue
under
age
and
dies
,
the
marriage
takes
not
effect
;
In
this
case
,
the
estate
is
executed
in
the
heir
of
B.
and
shall
have
relation
to
the
making
of
the
Indenture
,
&c.
But
if
the
Grantée
of
a
Reversion
die
,
no
attornment
can
be
done
to
his
heir
;
So
it
is
also
where
the
Devisée
dies
before
the
Devisor
,
&c.
Pl.
Co.
Brets
and
Rigdens
case
,
345.
Vide
Shelleys
case
,
where
the
Indenture
bound
the
land
,
albeit
execution
was
not
taken
out
till
after
his
death
;
for
the
estate
was
executed
by
the
Indenture
and
Recovery
before
execution
,
which
shall
have
a
retro-spect
to
the
Indenture
;
And
11
H.
7.
12.
Where
the
heir
shall
have
execution
upon
a
fine
:
But
if
the
Feoffor
or
Feoffée
die
before
entry
,
feoffment
by
livery
within
view
shall
not
take
effect
:
So
also
,
in
the
Rector
of
Cheddingtons
Case
,
Co.
l.
1.
155
,
156
,
by
the
death
of
Tho.
the
term
is
not
certaine
,
nor
can
vest
in
his
executors
.
B.
R.
and
assignes
it
by
Déed
inrolled
to
Queen
El.
in
satisfaction
of
a
due
Debt
,
as
Collector
of
the
Fifteens
,
no
such
Record
:
Vide
26
E.
3.
75.
per
Willy
and
Hill
.
So
if
A.
in
execution
at
the
suit
of
B.
upon
erronious
judgment
,
and
after
escapes
,
and
after
the
judgment
is
reversed
by
Error
,
the
action
upon
the
escape
is
gone
;
for
he
may
plead
no
such
Record
,
because
without
a
Record
the
action
is
not
maintainable
but
in
that
case
if
the
Plaintiffe
bring
an
action
of
Debt
against
the
Sheriffe
or
Gaoler
upon
the
escape
,
and
hath
judgment
and
execution
,
and
after
the
first
judgment
is
reversed
;
yet
this
judgment
upon
that
Collateral
matter
being
executed
shall
remaine
in
force
;
take
an
Assise
,
in
Waste
to
inquire
of
the
Wasts
,
in
trespasse
to
inquire
of
damages
;
In
partitione
facienda
,
quod
partitio
fiat
;
In
admeasurement
:
quod
admensuratio
fiet
,
that
a
man
shall
be
ousted
of
aide
,
and
the
like
:
upon
which
the
Defendant
shall
not
bring
a
Writ
of
Error
;
but
after
judgment
in
these
cases
he
may
.
de
Donis
giveth
remedy
to
the
Issues
of
the
Donée
that
have
capacity
and
power
to
take
and
retaine
such
a
gift
,
&c.
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
,
in
this
Case
also
the
King
shall
detaine
the
land
against
the
Issue
,
&c.
Mathew
Manuings
Case
.
albeit
the
judgment
afterwards
reversed
,
and
the
Plaintiffe
in
it
restored
to
the
value
.
Dier
363.
24.
grossement
ensuit
with
a
Son
and
dieth
,
the
Daughter
is
remitted
,
and
albeit
the
Son
be
afterwards
borne
,
he
shall
not
devest
the
remitter
;
because
it
was
executed
.
Qu.
Imp.
brought
after
amongst
them
,
it
is
not
necessary
to
shew
the
composition
,
because
it
was
executed
:
it
is
otherwise
in
Case
it
were
not
executed
:
And
such
composition
cannot
be
without
writing
,
it
is
otherwise
of
coperceners
,
for
such
composition
may
be
by
parol
amongst
them
,
because
they
are
privies
and
as
one
heire
,
and
are
compellable
to
make
partition
.
●render
in
〈◊〉
.
38
Cestuy
que
use
after
the
Statute
of
1
R.
3.
1.
the
1
of
May
,
Cestuy
que
use
make
a
lease
of
the
same
Land
to
the
same
Lessée
for
34
yeares
to
begin
also
at
Mid-sommer
;
In
this
Case
,
the
acceptance
of
the
last
lease
is
not
a
surrender
of
the
first
,
but
rather
a
confirmation
of
the
20
yeares
and
a
new
Lease
for
the
14
yeares
;
for
albeit
the
Lessée
had
such
an
Interest
,
which
he
might
grant
or
forfeit
,
yet
in
regard
the
Lessée
having
not
possession
,
his
Estate
was
onely
to
begin
and
executorie
,
and
not
already
begun
and
executed
,
such
acceptance
could
not
be
a
surrender
in
Law
,
and
the
rather
,
for
that
the
feoffees
had
a
lawfull
and
ordinary
authority
in
the
Land
to
make
a
lease
in
such
Case
.
Quind
.
Pasc
.
)
was
directed
to
the
Shetiffe
of
Middlesex
who
returnes
,
quòd
cepit
bona
&
catalla
to
the
value
of
part
of
the
debt
,
&
quòd
remanent
in
custodia
sua
pro
defectu
emptorum
,
de
non
molestando
was
awarded
in
Banco
by
reason
of
a
writ
of
Error
there
brought
by
the
Defendant
,
but
the
Record
was
not
yet
removed
,
because
the
returne
of
the
writ
of
Error
was
Crast
.
Ascent
.
and
not
before
:
In
this
Case
,
the
Question
was
whether
or
no
the
writ
de
venditioni
exponend
.
should
be
awarded
,
because
the
writ
of
execution
was
not
served
,
nor
the
propertie
of
the
goods
altered
,
notwithstanding
the
seisure
,
yet
at
last
the
writ
de
venditioni
exponend
.
was
awarded
by
Sanders
and
Browne
,
notwithstanding
the
supersedeas
,
because
(
as
it
séemes
)
the
writ
of
Error
,
upon
which
the
supersedeas
was
founded
,
was
but
executorie
,
being
not
then
returnable
.
ded.
potest
.
the
Feme
being
then
but
19
yeares
of
age
;
Crast
.
Pur.
and
the
ded.
potest
.
bare
teste
thrée
dayes
after
the
original
,
and
the
Quéens
silver
was
entred
upon
Hillary
Term
four
dayes
before
the
death
of
the
Feme
,
viz.
die
Venetis
in
Septinaria
Pasch.
But
yet
the
fine
was
not
engrossed
until
Wednesday
after
;
whereupon
the
heire
of
the
Feme
in
Easter
Term
prayes
,
that
the
fine
should
not
be
delivered
to
the
party
,
nor
recorded
,
yet
it
was
,
notwithstanding
the
undue
practises
of
the
Baron
,
because
after
the
entry
of
the
Quéens
silver
before
the
death
of
the
Feme
,
and
the
engrossing
of
the
fine
before
Easter
Term
,
the
fine
was
perfectly
executed
.
104
Possibility
of
things
.
ex
as●s●
by
any
〈◊〉
a
constant
●it
appa●●
not
good
.
4
The
youngest
son
and
heire
apparent
cannot
endow
his
wife
ex
assensu
patris
,
,
Borough
English
,
in
respect
of
the
possibility
that
the
Father
may
have
another
Son
;
for
then
the
husband
is
not
heire
apparent
:
For
the
same
reason
it
is
that
Dower
ex
assensu
fratris
or
consanguinei
is
not
good
:
because
albeit
he
is
heire
apparent
at
that
time
,
yet
for
the
common
possibility
that
the
Brother
or
Cousin
may
have
Issue
,
and
every
Issue
that
he
shall
so
have
will
exclude
the
husband
from
being
heire
apparent
,
he
is
no
such
heire
apparent
as
the
Law
intendeth
,
for
the
Law
intendeth
a
constant
and
perpetual
apparence
,
&c.
inte●
Maria.
as
under
eight
years
,
or
under
the
age
of
procreation
,
the
Issue
,
which
his
Wife
hath
,
is
a
Bastard
,
albeit
he
was
then
within
the
four
seas
,
that
is
,
within
the
jurisdiction
of
the
King
of
England
;
but
when
the
parties
are
both
of
full
lawful
age
:
if
the
Husband
be
within
the
four
seas
,
as
afore-said
,
when
the
wife
hath
Issue
,
albeit
he
never
came
neer
her
,
yet
is
the
Child
Legitimate
,
for
the
possibility
that
they
might
méete
together
:
For
,
(
in
that
Case
)
Filiatio
non
potest
probari
,
&c.
So
it
is
also
if
the
Issue
be
borne
within
a
moneth
or
a
day
after
marriage
,
for
(
in
such
Case
)
the
Law
will
not
judge
of
any
impossibility
,
&c.
I.
S.
(
the
same
I.S.
being
then
in
rerum
natura
)
it
is
good
,
Hugh
Cholmeleys
Case
.
for
the
common
possibility
,
that
I.
S.
may
die
during
the
life
of
the
Tenant
for
life
.
Co.
Inst.
p.
1.
378.
a.
3.
ventre
s●●●re
.
16
Albeit
Filius
in
utero
matris
is
part
viscerum
matris
(
vide
3.
Ass.
Pl.
2.
22
Ass.
Pl.
94.
22
E.
3.
Tit.
Corone
180.
Stanford
fol.
21.
vide
temps
E.
1.
Tit.
Guard
153.
&
31
E.
1.
Tit.
briefe
873.
for
the
Guard
of
such
an
infant
;
vide
38
E.
3.
7.
&
41
E.
3.
&
11
E.
3.
Tit.
voucher
,
that
he
shall
be
vouched
in
ventresa
mere
3
El.
Dier
186.
An
adulterer
counsels
the
Feme
to
murder
the
Infant
,
when
it
should
be
borne
,
who
doth
it
accordingly
,
in
this
Case
the
adulterer
is
accessory
,
yet
at
the
time
of
the
counsel
given
the
Infant
was
in
ventre
sa
mere
,
&c.
Cestuy
que
use
good
.
17
If
Cestuy
que
use
after
the
Stat.
of
1
R.
3.
and
before
the
Statute
of
27
H.
8.
had
disseised
the
Disseisor
of
his
feoffées
;
covenants
performed
,
the
Plaintiffe
assignes
for
breach
the
devise
to
I.
and
afterwards
to
R.
and
that
after
I.
entring
into
that
covenant
I.
had
maried
O.
upon
whom
R.
entred
,
and
thereupon
the
Plaintiffe
demurres
:
And
the
great
Question
in
the
Case
was
,
whether
(
R.
at
the
time
of
the
making
of
the
covenant
having
onely
a
possibility
)
the
covenant
did
extend
unto
it
,
or
no
:
And
it
was
resolved
,
that
the
covenant
did
extend
to
that
possibility
,
and
that
the
possibility
had
being
for
that
purpose
,
and
might
be
forfeited
.
19
Vide
infra
M.
105.
in
all
.
105
And
therefore
nothing
to
be
void
,
which
by
possibility
may
be
good
.
1
Vide
supra
R.
104.
e.
1.
Pur
terme
de
certaine
ans
;
Neverthelesse
,
although
before
the
time
it
should
take
effect
in
possession
or
interest
it
do
depend
upon
an
incertainty
,
viz.
upon
a
possibile
contingent
before
it
begin
in
possession
or
interest
,
or
upon
a
limitation
or
condition
subsequent
;
yet
is
it
not
void
for
that
uncerrainty
;
as
if
A.
seised
of
lands
in
fée
grant
to
B.
that
when
B.
payes
to
A.
xx
shillings
,
that
from
thenceforth
he
shall
have
and
occupy
the
land
for
21
yeares
,
and
after
B.
payes
the
twenty
shillings
,
this
is
a
good
Lease
for
21
yeares
,
from
thence-forth
,
notwithstanding
that
uncertainty
;
because
it
was
at
first
possible
the
twenty
shillings
should
be
paid
,
and
that
being
paid
,
the
Lease
had
from
thence-forth
a
certaine
beginning
,
and
therefore
was
not
void
but
good
ab
initio
,
&c.
So
if
A.
leaseth
his
land
to
B.
for
so
many
yeares
as
B.
hath
in
the
Mannor
of
Dale
,
and
B.
hath
then
a
term
in
the
Mannor
of
Dale
for
10
yeares
,
this
is
a
good
Lease
by
A.
to
B.
of
the
land
of
A.
for
10
yeares
;
for
albeit
there
appear
no
certainty
of
yeares
in
the
Lease
,
yet
because
by
reference
to
a
certainty
it
may
be
made
certaine
it
sufficeth
.
If
the
Parson
of
D.
make
a
Lease
of
his
Glebe
for
so
many
yeares
as
he
shall
be
Parson
there
,
this
cannot
be
made
certaine
by
any-meanes
,
for
nothing
is
more
uncertaine
than
the
time
of
death
,
Terminus
vitae
est
incertus
,
&
licet
nihil
certius
sit
morte
,
nihil
tamen
incertus
est
hora
mortis
:
but
if
he
make
a
Lease
for
three
yeares
,
and
so
from
thrée
yeares
to
thrée
yeares
,
so
long
as
he
shall
be
Parson
,
this
is
a
good
lease
for
6
years
;
for
it
is
possible
he
may
so
long
continue
Parson
there
,
and
then
it
is
good
for
so
long
,
viz.
first
,
for
thrée
yeares
,
and
then
for
thrée
yeares
more
;
but
for
the
residue
it
is
uncertaine
;
If
a
man
maketh
a
Lease
to
I.
S.
for
so
many
yeares
as
I.
N.
shall
name
,
this
is
not
void
for
the
uncertainty
;
for
when
I.
N.
hath
named
the
yeares
,
then
is
it
a
good
Lease
for
so
many
yeares
,
;
A
man
maketh
a
Lease
for
21
yeares
,
if
I.
S.
shall
so
long
live
;
Here
,
albeit
the
end
of
his
Lease
depends
upon
an
uncertainty
,
viz.
upon
the
time
of
the
death
of
I.
S.
which
is
uncertaine
,
yet
because
it
is
possible
at
last
to
know
the
certaine
time
of
his
death
,
and
(
by
consequent
)
the
determination
of
the
Lease
thereupon
,
the
Lease
is
good
ab
initio
;
Notwithstanding
that
uncertainty
,
&c.
Videl
.
6.
fol.
34
,
35.
in
the
Bishop
of
Bath
and
Wels
Case
.
I.
S.
(
I.
S.
being
then
alive
)
it
sufficeth
,
that
the
inheritance
passeth
presently
out
of
the
Lessor
,
but
cannot
vest
in
the
heir
of
I.
S.
For
that
(
living
his
father
)
he
is
not
in
rerum
natura
,
for
non
est
haeres
viventis
,
neverthelesse
,
the
remainder
is
good
for
the
possibility
that
I.
S.
may
die
during
the
life
of
the
Lessée
:
So
if
a
man
make
a
Lease
for
life
to
A.
B.
and
C.
and
if
B.
survive
C.
then
the
remainder
to
B.
and
his
heires
:
here
,
albeit
the
remainder
is
not
at
the
time
of
the
Livery
certainly
in
B.
neverthelesse
the
remainder
is
good
for
the
possibility
that
C.
may
die
before
B.
it
being
but
a
common
possibility
,
that
one
may
die
before
another
.
I.
S.
for
life
,
I.
S.
shall
by
the
advise
of
Learned
Counsel
,
settle
the
same
Lands
within
convenient
time
for
certaine
Vses
,
which
(
indéed
)
are
prohibited
by
the
Statute
of
23
H.
8.
cap.
10.
Albeit
such
Vses
are
by
that
Act
prohibited
,
yet
if
that
Condition
be
not
performed
,
I.
S.
forfeits
his
estate
because
they
might
have
béen
setled
by
the
advice
of
Learned
Counsel
,
and
by
purchasing
an
Incorporation
and
a
licence
to
settle
Lands
thereupon
,
&c.
I.
S.
that
in
consideration
of
fatherly
affection
,
and
for
the
advancement
of
my
bloud
,
I.
S.
shall
nominate
;
In
this
Case
upon
the
nomination
the
use
shall
be
raised
:
For
the
consideration
is
certaine
,
and
the
person
by
matter
ex
post
facto
may
be
made
certaine
.
I.
S.
for
so
many
yeares
as
I.
N.
hath
in
the
Mannor
of
S.
and
I.
N.
hath
10
yeares
in
S.
I.
S.
shall
have
so
many
in
D
:
So
if
a
Lease
be
made
to
another
during
the
minority
of
I.
D.
and
he
is
ten
yeares
old
,
that
is
a
good
Lease
for
11
yeares
,
if
I.
D.
so
long
live
;
for
these
two
last
Leases
are
by
reference
reduceable
to
a
certainty
:
In
like
manner
,
if
a
man
make
a
Lease
from
St.
Michaelmas
for
so
many
yeares
as
I.
S.
shall
name
,
and
I.
S.
names
a
certaine
term
(
in
the
life
of
the
lessor
,
)
this
is
a
good
lease
for
the
possibility
of
rendring
to
a
certainty
,
by
matter
ex
post
facto
,
viz.
by
the
nomination
,
&c.
106
Id
certum
est
,
quod
certum
reddi
potest
.
Math.
Mannings
Case
,
&
Lampets
Case
.
Co.
l
10.
47.
a.
4
2
If
lessée
for
yeares
deviseth
his
lease
to
A.
for
life
,
Stata
M●rcellaes
Case
.
3
When
a
Charter
hath
onely
a
general
reference
to
other
Charters
,
which
are
upon
Record
,
it
is
as
much
in
law
,
Qu.
Eliz.
grants
to
the
Earle
of
Shrewsbury
,
Senesch
Dominiorum
sive
Maneriorum
suorum
de
Mansfield
Bolsover
,
&
Harfley
,
and
no
County
is
mentioned
,
where
they
lie
;
yet
is
not
the
grant
for
this
uncertainty
void
;
because
albeit
the
Quéen
might
have
divers
Mannors
in
the
same
or
other
Counties
of
the
same
Name
,
yet
because
by
some
of
the
Clauses
of
the
Patent
,
or
by
other
circumstances
,
it
might
be
understood
what
Stewardships
she
meant
to
grant
,
the
letters
patents
were
adjudged
good
,
notwithstanding
such
uncertainty
:
If
the
King
by
his
letters
patents
grant
to
another
all
the
Mannors
and
Advowsons
,
which
were
Priors
of
A.
being
a
Prior
Alien
,
or
which
were
I.
S.
who
was
attaint
,
&c.
such
Grants
are
good
,
albeit
the
County
is
not
named
,
because
upon
inquiry
they
may
be
certainly
known
,
as
it
is
adjudged
32
H.
6.
20
,
21.
So
if
the
King
grant
to
the
Abbot
and
his
Sucessors
,
that
the
Monkes
during
the
vacations
shall
have
all
the
Temporalties
of
the
Abbey
,
this
is
a
good
Grant
,
notwithstanding
the
uncertainty
of
not
naming
the
County
or
Counties
where
they
lie
,
as
it
was
adjudged
39
E.
3.
21.
&
F.
N.
B.
33.
T.
So
likewise
in
23
E.
3.
21.
b.
The
King
grants
unto
the
Quéen
all
the
possessions
of
a
Baronie
(
escheated
)
until
Jo.
of
Gaunt
might
be
able
to
govern
himself
,
and
it
was
adjudged
good
,
&c.
For
in
all
such
cases
,
if
it
may
be
discovered
by
any
Clause
of
the
Patent
,
by
any
circumstance
,
(
as
the
Tenants
Name
,
in
whose
possession
it
was
,
or
the
like
,
)
by
the
Particular
,
or
otherwise
,
what
it
is
,
that
the
King
intended
to
grant
,
it
suffiseth
;
And
if
such
Patentée
be
impleaded
,
and
the
Plaintiff
by
reason
of
such
uncertainty
plead
non
concessit
,
and
demanding
Oyer
of
the
Letters
Patents
demurres
thereupon
,
it
shall
be
adjudged
against
the
Plaintiffe
;
For
it
is
matter
in
fact
,
what
Mannors
,
&c.
passe
,
and
for
p●oof
thereof
such
Clauses
and
circumstances
,
as
aforesaid
,
shall
be
given
in
evidence
,
&c.
Vide
the
Case
de
Strata
Mercella
,
Co.
l.
9.
24.
&
18
El.
Dier
.
351.
I.
S.
for
yeares
,
rendring
for
every
acre
12
d.
the
Lease
is
good
,
because
the
certainty
of
the
Rent
may
be
known
by
a
Survey
of
the
Acres
,
whereby
the
Lessor
may
be
entitled
to
an
action
of
Debt
for
the
Rent
,
if
it
be
arrear
.
If
one
give
two
acres
to
another
,
Habendum
the
one
for
life
,
and
the
other
in
Fée
;
it
is
uncertaine
which
of
them
he
hath
for
life
,
and
which
in
Fée
;
but
if
afterwards
the
Grantée
make
feoffment
of
one
of
them
,
he
shall
be
said
to
have
Fée
in
that
ab
initio
.
So
if
one
let
black-acre
,
and
white-acre
to
another
for
life
,
the
remainder
of
one
of
them
in
Fée
;
here
,
it
is
uncertaine
,
in
which
of
them
he
hath
fée
:
but
if
afterwards
he
licence
the
Tenant
for
life
to
fell
Trees
in
white-acre
,
it
shall
be
adjudged
,
that
he
had
the
remainder
of
that
Acre
ab
initio
.
In
Wheelers
Case
,
14
H.
8.
I.
S.
shall
arbitrate
,
was
good
,
when
the
condition
was
fulfilled
:
and
the
second
Grant
was
adjudged
void
:
And
there
it
is
holden
fol.
21.
that
if
one
make
a
Lease
for
so
many
yeares
as
I.
S.
shall
name
,
here
this
is
uncertaine
at
the
beginning
;
but
if
afterwards
I.
S.
name
20
years
,
it
shall
be
good
for
20
years
from
the
beginning
.
York
,
quondam
Insulam
,
&c.
cum
omnibus
exitibus
amerciamentis
&
proficuis
omnium
gentium
residen
,
&c.
de
&
infra
Insulam
praedict.
in
quibuscunque
curiis
nostris
emergentibus
,
and
there
this
grant
is
holden
good
,
for
albeit
the
King
knew
not
at
first
what
issues
or
amerciaments
would
be
forfeited
;
yet
because
when
they
were
forfeited
,
per
Choke
.
as
came
to
him
by
Attainder
,
&c.
This
Grant
contained
no
certainty
,
yet
it
was
held
good
,
because
it
might
be
reduced
to
a
certainty
:
So
if
the
King
will
pardon
all
Riots
;
here
,
nothing
is
named
in
certaine
,
yet
is
the
pardon
good
.
It
is
holden
in
21
H.
6.
that
,
I.
S.
one
of
these
Horses
,
this
is
uncertaine
;
yet
it
is
a
good
Grant
;
because
by
the
Election
of
I.
S.
it
may
be
made
certaine
.
107
Res
non
per
se
invicem
,
sed
per
pecuniam
estimantur
,
&
non
pecunia
per
Res.
Nummus
est
mensura
rerum
commutandarum
,
which
agrées
with
the
Rule
above
;
And
in
this
sence
it
is
true
,
quòd
pecuniae
obediunt
omnia
.
But
so
it
is
not
of
other
things
:
And
it
matters
not
,
whether
the
money
mentioned
in
the
Condition
be
a
Collateral
summe
,
or
parcel
of
the
Obligation
,
or
not
:
for
if
a
man
be
bound
by
Obligation
in
200
Quarters
of
Wheat
,
upon
Condition
to
pay
20
l.
the
Obligor
may
by
agréement
betwixt
them
give
unto
him
a
Horse
,
Gold-ring
,
&c.
in
satisfaction
of
the
money
,
albeit
(
in
that
case
)
the
money
be
Collateral
to
the
Obligation
:
And
therefore
if
a
man
enfeoff
another
by
Déed
upon
Condition
,
that
the
Feoffor
shall
pay
a
certaine
summe
of
money
,
&c.
the
Feoffor
may
(
by
agréement
betwixt
them
,
)
give
the
Feoffée
a
Horse
,
Gold-ring
,
or
the
like
,
in
satisfaction
,
and
yet
the
money
(
in
this
case
)
is
Collateral
,
having
regard
to
the
land
:
for
if
tender
be
made
,
and
refusal
,
he
shall
never
be
compellable
to
pay
the
money
;
and
therefore
it
is
méer
Collateral
,
Quia
reprobata
pecunia
(
in
hoc
casu
)
liberat
solventem
;
And
with
this
agrées
Littl.
fol.
79
,
in
the
Chapter
of
Conditions
.
So
also
if
a
man
be
bound
by
Obligation
in
100
Quarters
of
Wheat
upon
Condition
to
pay
50
Quarters
,
he
cannot
give
money
or
any
other
thing
in
satisfaction
thereof
,
because
the
original
Contract
was
not
for
money
:
So
as
when
money
is
to
be
paid
,
any
other
thing
may
be
paid
in
satisfaction
;
but
so
it
is
not
of
any
other
things
;
for
then
neither
money
,
nor
any
other
thing
can
be
given
in
liew
thereof
.
108
It
favoureth
mutual
Recompence
.
(
in
Frank-marriage
)
according
to
the
Rules
of
Law
,
then
do
these
words
create
an
estate
of
inheritance
in
special
tail
;
For
the
consideration
of
Marriage
is
(
in
that
case
)
more
favoured
in
Law
then
any
other
consideration
,
in
respect
of
the
mutual
recompence
.
b●●●
fide
a
voideth
Wardship
.
or
any
of
his
younger
Sonnes
,
or
others
for
the
making
of
his
Wife
a
Ioynture
,
advancement
of
his
Daughters
,
payment
of
his
Debt
of
the
like
,
and
die
,
his
heir
within
age
,
the
heir
shall
be
in
Ward
for
his
body
,
and
a
third
part
of
the
land
,
by
construction
of
the
Statutes
of
32
&
34
of
H.
8.
but
if
his
eldest
Sonne
or
any
of
his
younger
Sonnes
purchase
Lands
of
the
Father
,
which
are
holden
by
Knight-service
,
bona
fide
for
a
reasonable
value
,
the
heir
shall
neither
be
in
Ward
,
nor
pay
Primer
seisin
,
Leonard
Loveys
Case
,
Co.
l.
10.
83.
per
Newton
.
9
H.
3.
Voucher
277.
8
If
the
Lord
grant
the
Services
of
his
Tenant
by
Homage
Ancestrel
,
Sequatur
sub
suo
particulo
,
Warra●
Cartae
,
or
vo●cher
after
a
recovery
in
value
.
both
Tenant
and
Vouchée
make
default
,
and
the
Demandant
hath
judgment
against
the
Tenant
,
and
after
brings
a
Scire
facias
to
have
Execution
,
the
Tenant
may
have
a
Warrantia
Cartae
,
or
if
he
were
impleaded
by
a
stranger
,
he
may
vouch
again
;
but
if
he
had
judgment
to
recover
in
value
,
he
shall
never
have
a
Warrantia
Cartae
,
or
vouch
again
;
for
by
this
judgment
to
recover
,
in
value
,
he
hath
benefit
of
the
Warranty
.
Mirror
cap.
4.
v.
5.
Sect.
18.
Britton
cap.
25.
fol.
144
;
145.
Fleta
lib.
1.
cap.
38.
A.
B.
&c.
covenants
with
I.
S.
and
others
that
in
consideration
of
the
discharge
of
his
funerals
,
and
payment
of
his
debts
and
legacies
out
of
the
profits
of
his
land
,
and
for
the
advancement
of
his
Sonne
and
others
of
his
bloud
,
he
and
his
heires
would
stand
seised
of
the
said
Mannors
to
the
use
of
the
said
I.
S.
&c.
for
the
life
of
the
said
Lord
Paget
,
and
after
his
death
to
the
use
of
Ch.
P.
and
others
for
the
term
of
24
yeares
,
and
after
the
expiration
or
end
of
that
term
,
then
to
the
use
of
Sir
William
Paget
his
Son
in
taile
with
divers
remainders
over
,
and
after
the
Lord
Paget
was
attainted
of
treason
;
In
this
Case
it
was
adjudged
,
that
the
term
to
Ch.
P.
&c.
was
void
,
because
there
wanted
good
consideration
,
in
as
much
as
Ch.
P.
&c.
were
strangers
to
the
consideration
aforesaid
:
But
if
he
had
made
them
executors
,
so
that
they
might
have
béen
chargable
towards
the
payment
of
his
debts
,
and
so
made
privy
to
the
consideration
,
then
had
such
consideration
béen
good
,
and
the
Estate
made
to
them
had
also
béen
good
.
for
other
good
considerations
,
are
too
general
to
raise
an
use
,
without
special
averment
that
some
good
consideration
was
given
;
And
that
the
land
shall
continue
in
his
name
and
bloud
is
no
consideration
to
raise
an
use
to
the
Quéen
:
for
there
wants
quid
per
quo
,
&c.
And
contractus
dicitur
quasi
Actus
contra
Actum
.
M.
L.
suffers
a
recovery
erroneously
and
dies
without
Issue
,
and
N.
also
dies
;
Here
,
albeit
the
recovery
is
erroneous
(
and
by
consequent
not
void
but
voidable
by
writ
of
error
)
yet
so
long
as
it
continues
in
force
,
N.
hath
no
right
in
the
moity
of
the
Remainder
in
respect
of
the
intended
recompence
:
So
also
if
Tenant
in
tail
suffer
a
common
recovery
erroneously
,
and
after
disseise
the
recover
or
and
die
,
his
Issue
shall
not
be
remitted
;
for
so
long
as
the
recovery
remaines
in
force
the
Estate
taile
is
barred
,
by
reason
of
the
recompence
by
recovery
in
value
.
Will
.
Fite-Williams
Case
the
Remainder
to
the
husband
in
tail
,
the
husband
suffers
a
recovery
as
vouchée
,
this
harres
the
Remainder
,
albeit
the
Feme
joynes
not
;
for
here
was
a
lawful
Tenant
to
the
praecipe
,
and
the
husband
comming
in
as
vouchée
comes
in
in
privity
of
the
Estate
,
and
the
recompence
goes
to
the
Issue
in
tail
,
but
if
the
Femes
inheritance
had
béen
joint
with
the
Baron
,
it
might
be
doubled
whether
the
Issue
bad
béen
barred
,
yet
then
(
it
séemes
)
he
had
béen
barred
for
the
moity
,
in
respect
of
the
recovery
in
value
of
the
moity
.
Vide
55.
90.
William
Herberts
Case
.
the
one
of
the
nature
of
Borough-English
,
and
binds
himselfe
in
a
Statute
or
recognisance
,
or
if
judgment
in
debt
be
given
against
him
,
and
he
die
having
Issue
two
daughters
,
who
make
partition
:
In
this
Case
if
the
one
be
onely
charged
,
she
shall
have
contribution
and
recompence
against
the
other
;
for
as
one
purchasor
shall
have
contribution
against
the
rest
,
upon
good
consideration
,
&
bona
fide
,
shall
not
be
understood
,
of
Nature
or
Bloud
,
but
of
some
consideration
of
money
,
or
other
thing
of
value
:
for
if
one
being
indebted
to
5
several
persons
,
to
each
party
in
20
l.
in
consideration
of
natural
affection
gives
all
his
goods
to
his
Son
or
Cosin
,
in
this
Case
,
in
as
much
as
the
Creditors
shall
lose
their
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
defeats
others
,
shall
be
of
as
high
and
good
consideration
as
the
things
,
that
are
so
defeated
by
it
.
(
tacitè
)
a
condition
and
also
a
warranty
,
in
futuro
,
and
23
El.
upon
consideration
of
surrender
the
Quéen
grants
to
the
said
B.
for
21
yeares
,
and
26
El.
upon
consideration
of
the
surrender
of
the
letters
Patents
of
23
El.
she
grants
to
him
for
thrée
lives
from
the
day
of
the
making
:
Here
,
the
demise
for
thrée
lives
is
void
,
being
made
upon
consideration
of
the
surrender
of
the
letters
Patents
of
23
El.
which
were
void
,
they
being
upon
consideration
of
the
whole
Estate
,
which
was
not
performed
,
part
being
leased
out
to
divers
before
.
Com.
Bucks
is
,
Mary
Porting●ons
Case
.
36
Iudgment
given
against
Tenant
in
taile
with
voucher
and
recompence
in
value
shall
bind
the
Estate
taile
,
de
donis
,
13
E.
1.
and
by
such
recovery
in
value
the
Tenant
in
taile
shall
have
a
formedon
of
the
land
so
recovered
in
value
,
as
it
was
holden
15
E.
3.
Briefe
324
vide
plus
in
the
Book
at
large
:
And
there
is
observed
,
that
albeit
the
docking
of
an
Estate
taile
was
never
thought
of
by
the
Sages
of
the
Law
until
12
E.
4.
yet
long
before
that
time
the
opinion
of
the
Iudges
was
that
it
might
be
so
barred
in
respect
of
the
recompence
of
recovery
in
value
.
Tenant
peravaile
,
because
the
Law
presumes
,
that
he
hath
benefit
and
availe
above
the
services
that
he
doth
and
the
Rent
that
that
he
payes
to
the
Lord
;
And
therefore
it
is
against
Reason
,
that
when
the
heire
hath
the
Tenancy
peravaile
by
descent
,
that
he
shall
not
pay
the
yearly
Rent
,
&c.
which
was
reserved
upon
the
creation
of
the
tenancy
:
And
therefore
Attornment
by
an
Infant
is
good
,
which
was
the
principal
Case
there
resolved
,
he
being
compellable
to
attourn
in
a
per
quae
servicia
(
as
before
is
said
)
upon
the
reason
afore-said
.
nient
distraine
in
his
default
,
is
a
good
plea
in
a
writ
of
Mesne
.
de
facto
,
nether
is
there
any
Action
given
thereupon
to
compel
the
party
to
make
recompence
,
and
so
he
is
without
recompence
,
and
destitute
of
means
to
recover
any
:
But
upon
an
Arbitrament
where
the
summe
is
awarded
in
recompence
to
be
payd
at
a
day
to
come
,
that
is
a
good
barre
,
because
he
may
have
an
Act
of
debt
is
for
at
the
day
limited
,
and
so
the
Trespass
is
converted
into
another
thing
by
the
Arbitrators
,
who
are
judges
thereof
,
and
so
it
is
answered
with
Action
,
which
countervails
satisfaction
in
déed
.
sequatur
sub
suo
periculo
,
the
Tenant
and
the
vouchée
make
default
,
whereupon
the
Demandant
hath
judgment
against
the
Tenant
;
And
afterwards
the
Demandant
brings
a
scire
facias
against
the
Tenant
to
have
execution
,
in
this
Case
the
Tenant
may
have
a
Warrantia
Cartae
;
And
if
in
that
Case
a
Stranger
had
brought
a
praecipe
against
the
Tenant
he
might
have
vouched
again
,
for
by
the
iudgment
given
against
the
Tenant
the
Warranty
lost
not
his
force
:
But
in
such
Case
if
the
Tenant
had
judgment
to
recover
in
value
against
the
vouchée
,
he
shall
never
vouche
again
by
reason
of
that
Warranty
,
because
he
hath
had
recompence
by
taking
advantage
of
the
Warranty
.
43
If
an
Executor
redeeme
goods
pawned
by
the
Testator
to
the
value
of
the
goods
,
P.
Fitzherbert
&
Baldwin
,
sed
Shelley
è
contrà
.
46
The
servant
of
A.
was
arrested
in
London
upon
Trespass
,
Vide
Hob.
4.
Lané
&
Malorie
in
Assumpsit
,
Nichols
&
Raynored
,
the
consideration
was
a
promisse
for
promisse
,
which
must
be
at
the
same
time
,
otherwise
they
are
nuda
pacta
:
Likewise
88
Brinsley
and
Partridge
,
the
consideration
a
former
debt
promised
upon
accompt
.
modus
decimand
.
109
De
minimis
non
curat
Lex
.
Anth.
Mildmays
Case
.
2
The
Law
favours
Estates
taile
in
possession
but
gives
no
regard
to
Remainders
or
Reversions
expectant
upon
an
Estate
in
taile
,
C.
Pl.
in
Copwoods
Case
,
that
if
there
be
tenant
in
taile
,
the
remainder
to
the
right
heirs
of
I.S.
and
Tenant
in
taile
suffer
a
common
recovery
,
I.S.
being
then
in
life
,
this
shall
barre
the
remainder
,
albeit
it
were
in
abeyance
and
consideration
of
Law
,
which
the
Law
usually
favours
:
but
de
minimis
non
curat
lex
.
pur
part
upon
the
entailed
Lands
:
And
so
it
is
also
if
the
youngest
Daughter
had
granted
her
part
to
another
in
taile
:
For
the
Reversion
expectant
upon
an
Estate
taile
is
of
no
account
in
Law
,
because
it
may
be
cut
off
by
tenant
in
tail
.
John
Daccombe
,
110
In
Actions
the
Law
yeeldeth
favour
,
when
for
the
doing
of
them
there
is
,
1
Necessity
.
dammage
fesant
one
may
distraine
in
the
night
,
otherwise
it
may
be
the
beasts
will
be
gone
before
he
can
take
them
:
And
with
this
accords
10
E.
3.
21.
See
Mackallies
Case
Co.
l.
9.
66.
a.
2.
Vide
infra
R.
128.
E.
2.
Cestuy
que
use
after
the
Statute
of
R.
3.
and
before
the
Statute
of
27
H.
8.
had
made
a
feofment
in
fée
upon
condition
,
and
after
had
entred
for
the
condition
broken
;
In
this
Case
,
he
had
but
an
use
,
when
the
feofment
was
made
,
but
now
he
shall
be
seised
of
the
whole
Estate
of
the
land
,
And
this
is
for
necessity
,
because
by
the
feofment
in
fée
of
Cestuy
que
use
,
the
whole
Estate
and
right
was
devestes
out
of
the
feoffées
,
and
therefore
of
necessity
the
feoffor
must
gaine
the
whole
Estate
by
his
entry
for
the
condition
broken
.
le
languisant
or
a
Release
,
so
that
he
cannot
claime
the
tenements
himselfe
.
B.
,
E.
enters
as
heir
of
A
,
and
B.
enters
for
the
Condition
broken
;
In
this
Case
it
was
objected
,
that
the
conusance
of
B.
had
extinguished
the
Condition
,
but
one
reason
amongst
the
rest
against
that
was
this
,
that
the
render
of
the
Rent
could
not
have
been
made
to
him
;
And
albeit
a
Fine
be
of
so
high
a
nature
,
that
it
will
not
permit
a
naked
Averrement
against
the
purport
and
conusance
thereof
,
yet
when
the
Law
requires
one
for
necessity
or
conformity
to
joyne
with
another
in
a
Fine
,
it
permits
him
also
to
shew
the
truth
of
the
matter
to
avoid
prejudice
and
conclusion
.
Vide
ibid.
plus
upon
the
same
ground
.
in
remotis
aagendis
,
viz.
beyond
Sea
in
the
Kings
Service
,
but
the
Court
must
be
acquainted
therewith
by
matter
of
Record
,
viz.
by
Writ
out
of
the
Chancery
to
direct
them
,
and
not
by
the
surmise
of
the
party
,
and
then
for
necessity
(
which
is
alwayes
the
Law
of
time
,
for
necessitas
est
lex
temporis
)
the
Certificate
of
the
Vicar
General
shall
be
allowed
because
no
other
can
then
do
it
;
for
he
onely
ought
to
certificate
,
to
whom
the
Court
may
write
to
absolve
the
party
,
as
the
Bishop
,
or
the
Chancellor
of
the
Vniversities
.
Monstrance
de
droit
,
or
other
thing
should
be
requisite
,
that
would
make
the
Quéens
Grant
void
,
and
would
dis-able
the
Quéen
to
make
such
a
Grant
;
And
with
this
agrées
the
Lord
Lovels
Case
in
the
Commentaries
;
for
there
it
is
said
,
when
the
Condition
is
performed
,
the
Fée-simple
shall
be
immediately
out
of
the
King
,
without
Petition
,
Monstrance
de
droit
,
or
other
circumstance
,
for
if
he
must
tarry
such
circumstances
,
then
can
it
not
vest
presently
,
and
(
by
consequent
)
shall
never
vest
;
because
if
the
estate
be
not
enlarged
at
the
time
of
the
enlargement
appointed
,
then
shall
it
never
be
enlarged
;
And
therefore
in
such
Cases
for
necessity
the
Fée-simple
passeth
out
of
the
Quéen
without
any
such
circumstances
:
with
this
also
agrées
Isabel
Goodcheaps
Case
,
(
49
E.
3.
)
who
being
seised
in
Fée
of
an
House
in
London
,
holden
of
the
King
;
deviseth
it
to
Richard
Goodcheap
,
and
the
heires
of
his
body
,
and
for
want
of
such
issue
to
be
sold
by
her
Executors
,
and
she
makes
W.
D.
W.
W.
and
I.
de
T.
her
Executors
,
and
dies
without
heir
,
Rich.
Goodch
.
dies
without
issue
,
whereby
the
House
escheates
to
the
King
,
and
after
one
of
the
Executors
dies
,
W.
W.
refuseth
,
and
W.
D.
sels
the
House
,
and
here
the
question
was
whether
or
no
the
Sale
by
one
Executor
was
good
,
but
it
was
agréed
by
all
,
that
if
the
Sale
were
good
,
it
shall
devest
the
House
out
of
the
King
,
and
the
cause
thereof
is
by
necessity
of
Law
;
for
if
the
Sale
did
not
devest
the
House
at
the
time
of
such
sale
,
then
could
there
be
no
Sale
at
all
,
and
the
Executors
,
who
had
but
a
power
,
could
not
have
any
petition
,
Monstrance
de
droit
,
or
other
remedy
.
Qui
malè
agit
odit
lucem
,
and
if
the
Officer
do
not
then
do
it
,
the
Plaintiff
may
have
an
Action
upon
the
Case
against
him
and
recover
his
losse
in
damages
;
Therefore
by
necessity
an
arrest
in
the
night
is
lawfull
.
bonum
est
benefacere
in
Sabbato
.
uncore
prist
:
But
if
a
man
be
bound
by
Obligation
in
100
quarters
of
Graine
to
pay
50
quarters
:
here
,
if
the
Obligor
tender
them
at
the
day
,
and
the
other
refuse
,
he
shall
plead
it
,
without
saying
uncore
prist
,
because
the
Graine
is
bonum
periturum
,
which
cannot
be
kept
any
time
,
and
would
be
chargeable
for
the
Obligée
to
kéepe
.
Ass.
P.
3.
Bract.
Verdict
,
19.
Stamford
cap.
7.
fol.
15.
The
Iurors
,
who
were
sworne
upon
an
Issue
for
feare
of
a
great
tempest
forsake
the
house
where
they
were
,
and
dispersed
themselves
,
and
it
was
there
held
,
that
they
should
not
be
amercied
for
it
;
but
their
Verdict
afterwards
was
held
good
for
the
necessity
of
the
occasion
,
whereas
otherwise
they
should
have
béen
●rievou●●y
amercied
.
Ass.
Pl.
56.
Christs
Apostles
to
pull
the
Eares
of
other
mens
Corne
,
and
to
eat
them
:
And
in
our
Law
an
Obligation
per
d●●●s
or
minas
shall
be
avoided
,
because
it
is
done
by
compulsion
.
damage
fesant
,
and
so
the
diversity
is
held
16
E.
4.
fol.
10.
yet
H.
6.
R.
2.
abr
.
per
Fitz.
Rescous
11.
it
is
held
also
justifiable
for
damage
fesant
;
and
all
this
is
allowed
for
the
necessity
of
the
occasion
,
and
in
favour
of
right
and
justice
.
Briefe
de
droit
patent
in
the
Kings
Court
,
and
the
Lord
shall
not
have
any
Action
against
him
for
it
,
nor
by
any
meanes
annul
his
Action
,
because
he
hath
not
any
Court
to
hold
plea
thereof
;
And
therefore
he
is
compelled
by
necessity
to
sue
immediately
in
the
Kings
Court.
Feme
covert
present
not
within
6
moneths
,
42
Ubi
aliud
suader
necessitas
,
cessat
humanae
constitutionis
,
cessat
&
voluntas
Nomothetae
.
Erasm
.
in
Coll.
Conv.
Proph.
per
Hobart
concerning
the
Masters
impawning
of
another
mans
Ship
at
Sea
for
necessity
of
fact
,
or
other
provision
.
111.
2
Conveniencie
.
Sub-vice-comes
,
viz.
a
Deputy
,
who
was
in
times
past
Seneschallus
Vice-comitis
,
and
by
West
.
2.
cap.
39.
Sub-vice-comes
,
and
by
11
H.
7.
cap.
15.
Shire-Clerk
.
Qu.
Eliz.
by
Patent
granted
to
the
Earle
of
Shrewsbury
,
Seneschal
Dominiorum
sive
Maneriorum
de
Mansfield
,
Bolsover
,
&
Hotsley
,
Fitz.
Tit.
Distresse
,
1.
)
that
where
a
Mannor
extends
into
two
Counties
,
the
Lord
may
distrain
in
one
County
,
and
bring
the
Distresse
into
the
other
County
where
the
Mannor
is
,
and
this
is
to
avoid
the
mischief
and
inconvenience
,
that
would
insue
,
if
the
Lord
should
be
restrained
from
bringing
the
Distresse
to
his
Mannor
.
But
see
the
contrary
adjudged
in
30.
E.
3.
5.
I
become
your
man
,
for
that
were
inconvenient
,
because
he
hath
professed
himself
the
man
of
God
;
yet
shall
he
do
Homage
,
and
say
,
I
do
unto
you
Homage
,
and
will
be
unto
you
Faithful
and
Loyal
,
&c.
And
this
Homage
of
Ecclesiastical
persons
in
the
old
Books
and
Records
of
the
Law
is
called
Fealty
,
for
that
it
wanteth
these
Words
,
I
become
your
man
,
yet
in
judgment
of
Law
it
is
Homage
,
because
he
saith
,
I
do
to
you
Homage
,
&c.
There
is
the
same
Law
also
of
a
feme
sole
,
for
it
is
not
fit
that
the
should
say
to
her
Lord
,
I
become
your
woman
,
but
shall
say
,
I
do
you
Homage
,
&c.
Argumentum
ab
inconvenienti
plurimum
valet
in
lege
:
Non
solum
quod
licet
,
sed
quid
est
conveniens
,
est
considerandum
;
Nihil
,
quod
est
inconveniens
,
est
licitum
.
Co.
Inst.
part
1.
309.
a.
3.
&
Max.
121.
cap.
3.
112.
3
Conformity
.
B.
E.
enters
as
Heir
to
A.
B.
enters
,
and
without
any
request
for
the
Advowson
,
bargaines
and
sells
to
the
Lord
Cromwel
,
for
whom
it
is
adjudged
:
And
in
this
Case
it
was
resolved
,
that
albeit
the
Fine
was
not
acknowledged
by
B.
to
A.
to
a
stranger
was
adjudged
a
good
performance
of
the
Covenant
,
because
B.
and
A.
joyned
in
the
Fine
for
conformity
,
to
the
end
(
by
that
meanes
)
A.
might
take
the
Mannor
,
and
B.
the
Rent
,
but
B.
had
the
Mannor
again
,
because
the
Condition
was
not
performed
.
Vide
Pl.
ibid.
El.
Dyer
271.
In
Debt
against
the
Heir
,
he
pleads
riens
per
discent
generally
,
in
this
Case
the
Plaintiff
cannot
reply
in
such
a
general
manner
,
for
then
there
could
be
no
trial
of
it
,
but
in
such
Case
for
conformity
and
necessity
of
a
Trial
,
he
ought
to
name
a
certaine
place
,
as
he
did
there
in
a
Parish
and
Ward
in
London
,
neverthelesse
there
the
Iurors
might
find
Assets
in
any
other
County
of
England
,
&c.
113.
4
Colour
.
mulier
puisne
,
if
the
Bastard
enter
,
and
is
peaceably
seised
all
his
life
,
and
die
,
and
his
issue
enter
,
the
Mulier
shall
not
enter
;
for
he
hath
more
colour
to
kéep
it
as
eldest
Sonne
,
then
in
the
aforesaid
Cases
;
And
therefore
the
Mulier
in
such
Case
,
is
left
without
remedy
;
and
hath
lost
the
Land
for
ever
,
whereas
the
other
are
left
in
their
Action
:
And
it
is
holden
,
that
albeit
the
heir
be
under
age
at
the
time
of
the
discent
cast
,
yet
that
shall
not
help
it
,
for
the
Law
preferres
Legitimation
before
Infancy
;
because
there
being
no
Claim
all
his
life-time
,
the
Law
implies
Legitimation
;
And
when
the
Discent
is
cast
,
Justum
non
est
aliquem
post
mortem
facere
bastardum
,
qui
toto
tempore
vitae
suae
,
pro
Legitimo
habebatur
.
See
more
in
the
first
Part
of
the
Institutes
,
fol.
242
,
243
,
244.
&
Littl.
§
.
400.
I
,
A.
pleadeth
not
guilty
modo
&
forma
,
yet
the
Iury
may
find
him
guilty
of
Man-slaughter
without
Malice
praepense
,
for
if
in
truth
it
was
but
Man-slaughter
,
they
had
colour
enough
to
find
it
so
.
Mulier
puisne
,
and
die
seised
,
and
they
both
enter
generally
,
the
Sole
Possession
shall
not
be
adjudged
onely
in
the
Mulier
,
because
they
both
claime
by
one
and
the
same
Title
,
and
the
Bastard
hath
as
well
colour
to
claime
it
as
the
Mulier
.
Moile
Finches
Case
.
7
In
41
E.
3.
19.
Rich.
Tompson
had
Issue
by
Joan
(
before
mariage
)
one
Agnes
,
and
after
he
marries
Joan
,
and
makes
feofment
in
fée
,
remanere
inde
Agnetae
filiae
praedict.
Rich.
&
Johanne
:
and
it
was
agréed
that
this
was
a
good
remainder
,
without
any
averment
,
that
she
was
known
to
be
their
Daughter
:
for
albeit
by
the
Common
Law
she
was
not
their
Daughter
,
yet
in
as
much
as
she
had
colour
by
the
Ecclesiastical
law
(
which
saith
,
subsequens
matrimonium
tollit
peccatum
procedens
)
this
colour
is
sufficient
in
Case
of
a
conveyance
to
make
the
remainder
good
,
and
so
note
the
diversity
betwixt
descent
and
purchase
,
&c.
per
tout
in
Sir
R.
Lechfords
Case
.
The
better
opinion
per
Coke
.
8
If
there
be
Bastard
eigne
and
Mulier
puisne
,
&
contra
.
being
coram
non
judice
:
But
if
the
Court
of
the
Common
Bench
in
a
plea
of
Debt
award
a
Capias
against
a
Duke
,
Earle
,
or
,
&c.
which
by
the
Law
lyeth
not
against
them
,
and
that
appeares
in
the
writ
it selfe
,
here
if
the
Sheriffe
arrest
them
upon
the
Capias
,
albeit
the
writ
be
against
Law
,
yet
because
that
Court
hath
jurisdiction
of
the
cause
,
the
Sheriffe
hath
colour
to
do
it
,
and
shall
be
excused
;
and
herewith
accords
Dier
60.
b.
38
H.
8.
So
also
if
a
Iustice
of
Peace
make
a
warrant
to
arrest
one
for
Felony
,
who
is
not
indicted
,
albeit
the
Iustice
erre
in
granting
the
warrant
,
yet
he
that
makes
the
arrest
by
force
of
that
warrant
shall
not
be
panished
by
writ
of
false
imprisonment
,
because
the
Iustice
is
Iudge
of
the
Cause
.
Mulier
puisne
,
and
the
Bastard
before
claime
enter
into
Religion
,
it
is
said
such
a
discent
shall
toll
the
entry
of
the
Mulier
,
by
reason
of
the
colour
of
title
that
the
Bastard
had
to
the
land
,
and
such
an
heire
shall
also
have
his
age
.
114
It
prizeth
the
Acts
of
God
and
of
the
Law
more
then
those
,
that
are
done
by
the
party
.
A.
A.
dieth
,
the
heire
female
can
take
nothing
,
because
she
is
not
heire
,
for
she
must
be
both
heire
&
heire
female
,
which
she
is
not
,
because
the
brother
is
heire
,
and
therefore
the
will
of
the
giver
cannot
be
observed
,
because
here
is
no
gift
,
and
therefore
the
Statute
cannot
work
thereupon
,
so
it
is
,
if
a
man
hath
a
son
and
a
daughter
and
dieth
,
&
lands
are
given
to
the
daughter
and
the
heirs
female
of
the
body
of
her
father
,
the
daughter
shall
take
nothing
but
an
Estate
for
life
,
because
there
is
no
such
person
,
she
being
not
heire
,
but
where
a
gift
is
made
to
a
man
,
and
to
the
heirs
female
of
his
body
,
there
the
Donée
,
being
the
first
taker
,
is
capable
by
purchase
,
and
the
heire
female
by
discent
,
secundam
formam
doni
.
Lewes
Bowles
Case
,
Co.
l.
11.
fol.
80.
for
(
as
there
is
said
)
the
Estate
of
the
Feme
(
in
such
Case
)
is
created
by
the
act
of
God
,
and
not
by
the
limitation
of
the
party
,
ex
dispositione
legis
,
and
not
ex
provisione
hominis
:
but
if
land
be
given
to
Baron
and
Feme
,
and
the
heirs
of
their
two
bodies
,
and
after
they
are
divorced
causa
praecontractus
,
consanguinitatis
or
affinitatis
;
their
Estate
of
inheritance
is
turned
to
a
joint
Estate
for
life
,
and
albeit
they
had
once
an
inheritance
in
them
,
yet
for
that
the
Estate
is
altered
by
their
own
Act
,
and
not
by
the
Act
of
God
,
after
the
death
of
either
of
them
without
issue
,
the
other
shall
not
be
Tenant
in
tail
after
possibility
of
issue
extinct
.
8
There
is
a
diversity
betwéen
particular
Estates
made
by
the
Terre-tenant
,
pour
autre
〈◊〉
continueth
in
possession
after
the
decease
of
Cesty
que
vie
,
or
Tenant
for
yeares
holdeth
over
his
terme
,
the
Lessor
cannot
have
an
Action
of
Trespas
before
entry
:
but
if
a
Guardian
after
the
full
age
of
the
heire
continueth
in
possession
,
he
is
no
Tenant
at
sufferance
,
but
an
Abator
,
and
against
him
an
Assise
of
Mortancestor
,
doth
lie
before
entry
.
Cesty
que
vie
dieth
,
the
rent-charge
is
determined
,
and
yet
the
grantée
may
have
during
the
years
a
writ
of
annuity
for
the
Arrerages
incurred
after
the
death
of
cesty
que
vie
,
because
the
rent-charge
did
determine
by
the
Act
of
God
and
by
course
of
law
,
Actus
legis
nulli
facit
injuriam
:
The
like
law
is
,
if
the
land
,
out
of
which
the
rent-charge
is
granted
be
recovered
by
an
Eigne
title
,
and
thereby
the
rent-charge
is
voided
,
yet
the
grantée
shall
have
a
writ
of
annuity
,
for
that
the
rent-charge
is
avoided
by
the
course
of
law
.
in
esse
for
another
:
or
vice
versa
,
if
the
father
vs
grantée
of
a
rent
,
and
the
son
purchase
part
of
the
land
charged
,
and
the
father
dieth
,
after
whose
death
the
rent
descends
to
the
son
,
here
also
the
rent
shall
be
apportioned
,
causa
quà
suprà
.
dum
flrit
infra
aetatem
,
or
entreth
,
in
this
Case
the
Act
of
Law
is
mixt
with
the
Act
of
the
party
,
and
yet
the
rent
shall
be
apportioned
,
for
after
the
recovery
or
entry
the
son
hath
the
land
by
descent
:
so
it
is
also
where
the
son
recovereth
part
of
the
land
upon
an
alienation
by
his
father
,
dum
non
fuit
compos
mentis
,
for
the
cause
afore-said
.
Enitia
part
of
Eigne
,
or
Eldest
,
but
this
priviledge
is
personal
to
her
alone
,
and
shall
not
discend
to
her
heire
(
for
then
the
next
sister
hath
it
)
because
this
partition
is
made
personally
by
the
Act
of
the
parties
,
but
where
the
law
doth
give
the
eldest
any
priviledge
with●ut
her
Act
there
that
priviledge
shall
discend
:
As
if
there
be
divers
coperceners
of
an
advowson
and
they
cannot
agrée
to
present
,
the
law
doth
give
the
first
presentation
to
the
eldest
,
and
this
priviledge
shall
discend
to
her
issue
,
nay
,
her
assigne
shall
have
it
,
and
so
shall
her
husband
that
is
Tenant
by
the
courtesie
have
it
also
.
22
A
partition
betwéen
jointenants
is
not
good
without
déed
,
de
partitione
facienda
,
Feme
Covert
,
this
partition
(
albeit
it
be
not
by
Fine
)
being
equal
,
shall
charge
the
part
of
the
Feme
Covert
for
ever
,
causa
qua
,
&c.
partitione
facienda
;
And
though
the
Partion
be
un-equal
,
and
the
Infant
hath
the
Lesser
part
,
yet
is
not
the
Partition
void
,
but
voidable
by
his
entry
;
for
if
he
take
the
whole
profits
of
the
un-equal
part
for
his
full
age
,
the
Partition
is
made
good
for
ever
;
And
therefore
Littleton
(
Sect.
258.
)
giveth
him
a
Caveat
,
that
in
that
Case
he
take
not
the
whole
profits
of
his
un-equal
part
,
neither
shall
a
unequal
part
in
the
Chancery
bind
an
Infant
:
but
a
Partition
made
by
the
Writ
of
Partitione
facienda
,
by
the
Sheriff
upon
the
Oath
of
12
men
,
and
judgment
thereupon
given
,
shall
bind
the
Infant
,
though
his
part
be
unequal
,
S.
Michael
,
next
coming
shall
give
the
Land
to
the
Feoffor
and
his
Wife
in
tail
,
ut
supra
,
and
before
the
day
the
Feoffée
dieth
,
the
State
of
the
Heir
of
the
Feoffée
shall
be
absolute
,
because
a
certaine
time
is
limited
by
the
mutual
agréement
of
the
parties
,
within
which
time
the
Condition
becometh
impossible
by
the
Act
of
God
:
And
therefore
it
is
necessary
in
such
Case
when
a
day
is
limited
,
to
add
to
the
Condition
,
that
the
Feoffée
or
his
Heires
shall
performe
the
Condition
.
I.
S.
pay
20
s.
at
such
day
to
the
Mortgagée
,
that
then
he
shall
re-enter
;
Here
,
if
the
Mortgageor
being
in
full
life
,
will
not
pay
the
Money
,
but
refuse
to
pay
it
,
and
I.
S.
alone
tenders
it
,
the
Mortgage
may
refuse
it
:
But
if
the
Mortgageor
die
before
the
day
,
and
I.
S.
payes
the
Money
to
the
Mortgagée
,
this
is
a
good
performance
of
the
Condition
,
and
yet
the
Letter
of
the
Condition
is
not
performed
;
but
because
the
Mortgageor
dies
by
the
Act
of
God
,
that
shall
not
dis-able
I.
S.
to
pay
the
Money
;
So
also
it
I.
S.
had
died
before
the
day
,
the
Mortgageor
might
have
paid
it
.
in
fine
.
Co.
l.
10.
94.
b.
and
a
re-entry
for
a
Condition
broken
,
without
shewing
the
Déed
;
for
albeit
his
Estate
is
also
created
by
Law
,
yet
because
the
Law
presumes
that
he
had
the
Possession
of
the
Déeds
and
Evidences
belonging
to
his
Wife
,
it
will
not
allow
him
that
Priviledge
.
Vide
infra
Ru.
56.
droit
,
droit
:
For
example
,
if
a
man
be
disseised
of
an
acre
of
land
,
the
Dissisée
hath
Jus
proprietatis
,
the
Disseisor
Jus
possessionis
,
and
if
the
Dissiesée
release
to
the
Disseisor
then
hath
he
Jus
proprietatis
&
possessionis
:
Now
regularly
it
holdeth
true
,
&
contra
.
that
when
a
naked
right
to
land
is
released
to
one
that
hath
Jus
possessionis
,
and
another
by
a
mean
Title
recover
the
land
from
him
,
the
Right
of
Possession
shall
draw
the
naked
Right
with
it
,
and
shall
not
leave
a
Right
in
him
,
to
whom
the
Release
is
made
;
So
the
Heir
of
the
Disseisor
being
in
by
Discent
,
A.
doth
disseise
him
,
and
the
Disseisée
releaseth
to
A.
now
hath
the
méer
Right
of
the
land
;
but
if
the
Heir
of
the
Disseisor
enter
into
the
land
,
and
regaine
the
Possession
,
that
shall
draw
with
it
A
the
méer
Right
to
the
land
,
and
shall
not
regaine
the
Possession
onely
,
and
leave
the
méer
Right
in
A.
but
by
the
continuance
of
the
Possession
,
the
méer
Right
is
therewith
vested
in
the
Heir
of
the
Disseisor
;
And
the
Reason
of
this
is
,
because
the
Right
is
conveyed
by
Release
,
which
is
the
act
of
Party
:
but
when
the
méer
Right
is
subsequent
,
and
transferred
by
act
in
law
;
there
albeit
the
Possession
be
re-continued
,
yet
that
shall
not
draw
the
naked
Right
with
it
;
but
shall
leave
it
in
him
:
As
if
the
,
Heir
of
the
Disseisor
be
disseised
,
and
the
Dissesor
enfeoff
the
Heir
apparent
of
the
Disseisée
being
of
full
age
,
&
then
the
Disseisée
dieth
,
&
the
naked
right
discends
to
his
Heir
,
and
the
Heir
of
the
Disseisor
recovers
the
land
against
him
,
yet
doth
he
leave
the
naked
right
in
the
heir
of
the
Disseisée
;
So
if
the
Discontinuée
of
Tenant
in
Tail
enfeoff
the
issue
in
Tail
of
full
age
,
and
Tenant
in
Tail
die
,
and
then
the
Discontinuée
recovers
the
Land
against
him
,
yet
he
leaveth
the
naked
right
in
the
issue
.
pur
terme
d'auter
vie
,
and
the
Lessée
doth
waste
,
and
then
Cestuy
que
vie
dieth
,
In
this
Case
an
action
of
waste
shall
lie
for
damages
onely
,
because
the
other
is
determined
by
act
in
Law
:
So
likewise
if
an
action
of
wast
be
brought
against
Tenant
pur
auter
vie
,
and
hanging
the
writ
Cestuy
que
vie
dieth
,
the
writ
shall
not
abate
but
the
Plaintife
shall
recover
damages
onely
,
because
if
Cestuy
que
vie
had
died
before
any
action
brought
,
the
Lessor
might
have
had
an
action
of
waste
for
the
damages
,
as
afore-said
.
Vid.
sup
.
17.
l.
per
an
.
and
the
other
of
10
l.
per
an
.
and
he
demiseth
them
both
together
by
one
Indenture
,
reserving
30
l.
per
an
.
In
these
and
the
like
Cases
,
such
demises
will
onely
hold
farme
during
the
life
of
the
Tenant
in
taile
,
and
after
his
death
his
issue
shall
avoid
them
:
for
here
the
true
and
ancient
rent
is
not
reserved
,
and
being
thus
altered
by
the
act
of
the
party
,
they
shall
not
bind
the
issue
in
taile
:
But
if
there
be
two
Coperceners
seised
of
land
in
tail
,
which
was
formerly
let
at
10
l.
per
an
.
one
of
them
may
demise
her
part
or
moity
at
5
l.
per
an
.
and
it
shall
bind
her
issue
;
so
likewise
if
a
Mannor
hath
béen
always
demised
at
10
l.
per
an
.
and
after
a
tenancy
,
escheats
,
yet
it
may
be
still
demised
at
10
l.
per
an
.
and
yet
it
may
be
said
,
that
now
the
10
l.
per
an
.
is
not
verus
&
antiquus
redditus
,
for
no
rent
was
ever
yet
reserved
out
of
the
land
escheated
:
But
these
two
last
Cases
differ
from
the
former
,
in
as
much
as
Coperceners
,
and
the
Lord
by
escheate
are
in
by
act
of
Law
and
of
God
,
which
shall
not
prejudice
any
:
But
if
the
Lord
had
purchased
the
tenancy
,
it
had
béen
otherwise
,
for
then
he
had
béen
in
by
his
owne
Act
,
and
not
by
Act
of
Law
.
Henry
Knivets
Case
.
44
Tenant
for
life
lets
for
yeares
,
the
Tenant
sowes
the
land
,
Malbridge
c.
9.
)
one
is
to
do
the
service
,
and
the
rest
are
to
contribute
(
the
same
Law
being
also
of
their
vendées
by
equity
)
there
if
any
part
come
to
the
Lord
either
by
Act
of
the
party
or
of
Law
,
yet
the
whole
service
is
gone
,
for
there
contribution
failes
,
and
the
Law
will
rather
suffer
things
against
the
principles
of
the
Lord
,
then
a
man
shall
be
without
remedy
,
according
to
Rule
144.
Moyle
Finches
Case
.
so
as
there
was
no
transmutation
of
any
possession
,
yet
the
demesnes
being
once
by
Act
of
the
party
absolutely
severed
in
the
fée-simple
from
the
services
of
the
Mannor
,
the
Mannor
is
destroyed
for
ever
:
So
likewise
if
a
man
hath
a
Mannor
and
he
grants
part
of
the
demesnes
and
part
of
the
services
to
another
he
shall
not
have
a
Mannor
,
for
a
man
by
his
owne
Act
cannot
create
a
Mannor
at
this
day
:
But
if
there
be
two
Coperceners
of
a
Mannor
,
and
upon
partition
the
demesnes
are
allotted
to
one
,
and
the
services
to
another
,
here
albeit
in
this
Case
there
is
an
absolute
severance
,
yet
if
one
of
them
die
without
issue
,
and
the
demesnes
descend
to
her
,
that
hath
the
services
,
the
Mannor
is
again
revived
;
because
upon
the
partition
they
were
in
by
Act
in
Law
,
and
the
demesnes
and
services
were
again
revicted
by
the
Act
in
Law
:
So
also
if
upon
the
partition
an
advowson
appendant
be
allotted
to
one
,
and
the
Mannor
,
unto
which
it
is
appendant
,
be
allotted
to
the
other
,
and
after
one
of
them
dies
without
issue
,
whereby
the
Law
unites
them
again
,
in
this
Case
,
the
advowson
which
was
once
severed
,
shall
be
again
appendant
to
the
Mannor
:
Also
if
two
Coperceners
have
a
Mannor
,
and
upon
the
partition
each
hath
parcel
of
the
demesnes
,
and
parcel
of
the
services
:
here
,
because
each
of
them
is
in
by
Act
of
Law
,
each
of
them
hath
a
Mannor
.
Geo.
Requols
Case
.
because
being
then
a
Chattel
and
an
Office
of
trust
,
by
the
death
of
the
Lessée
it
may
happen
to
fall
into
the
hands
of
such
persons
as
are
not
fit
to
be
trusted
with
that
place
:
but
yet
,
by
Act
of
Law
,
a
term
(
which
is
but
a
Chattel
)
may
be
in
such
an
Office
,
as
appeares
in
5
E.
4.
3.
for
the
Duke
of
Norfolke
had
an
Estate-taile
in
an
Office
holden
of
the
King
in
Capite
,
and
dies
,
his
heire
within
age
and
it
was
found
by
Office
:
In
this
Case
the
King
had
a
Chattel
in
that
Office
,
viz.
during
the
minority
,
and
in
that
Case
if
the
King
die
,
it
shall
discend
to
the
next
King
,
and
shall
not
go
to
his
Executors
or
Administrators
,
for
an
Act
in
Law
shall
not
introduce
any
inconvenience
:
And
the
King
having
such
an
Office
during
the
minority
,
it
séemes
he
cannot
grant
it
for
life
,
or
yeares
,
or
during
the
minority
,
because
that
may
prove
inconvenient
for
the
reasons
above
alleadged
,
but
at
will
he
may
grant
it
,
for
that
is
no
certaine
Estate
.
Alfridus
Deubawdes
Case
.
50
A
Tales
ought
not
to
be
granted
after
a
full
Iury
appeares
and
is
sworne
,
and
yet
if
a
Iury
be
charged
,
55
In
real
Writs
original
,
if
one
be
summoned
and
severed
,
Vide
Max.
148.
21.
58
An
Action
of
Debt
for
a
rent
reserved
upon
a
Lease
for
yeares
is
alwayes
grounded
upon
a
privity
,
and
if
the
privity
fail
,
Quia
Emptores
terrarum
,
Anno
18.
E.
2.
had
made
a
Feoffment
in
Fée
of
part
of
the
Tenancy
,
the
Lord
might
distrain
in
that
part
,
for
all
the
rent
,
but
at
the
Common
Law
if
a
man
had
made
a
Lease
for
yeares
of
two
acres
of
Land
(
the
one
in
Borough
English
,
and
the
other
in
Gavelkind
,
)
and
had
issue
two
Sonnes
and
died
;
In
this
Case
,
this
rent
should
be
apportioned
,
because
this
rent
discended
to
them
by
Course
of
Law
.
So
if
Lessée
for
years
make
a
Feoffment
of
parcel
of
the
Land
leased
,
and
the
Lessée
enter
for
the
Forfeiture
into
that
parcel
;
In
this
Case
also
the
rent
shall
be
apportioned
,
because
this
Title
of
Entry
is
given
to
the
Lessor
by
the
Law
.
115
Utique
fortior
,
est
dispositio
Legis
,
quam
hominis
.
Vide
Pl.
Co.
483.
a.
1.
Moile
Finches
Case
.
Co.
l.
6.
96.
b.
3.
And
in
the
Church-wardens
Case
of
S.
Saviour
.
Co.
l.
10.
67.
b.
Co.
ib.
354.
b.
3.
Litt.
§.
673.
than
a
Surrender
in
Déed
;
As
if
a
man
make
a
Lease
for
yeares
to
begin
at
Michaelmas
next
,
this
future
interest
cannot
be
surrendred
,
because
there
is
no
reversion
,
wherein
it
may
be
drowned
;
but
by
a
Surrender
in
Law
it
may
be
drowned
;
As
if
the
Lessée
before
Michaelmas
take
a
new
Lease
for
yeares
,
either
to
begin
presently
,
or
at
Michaelmas
,
this
is
a
Surrender
in
Law
of
the
former
Lease
:
Fortior
&
aequior
est
dispositio
legis
,
quàm
hominis
.
vice
versa
,
if
a
man
bind
himself
to
warranty
,
and
bind
not
his
heires
,
they
are
not
bound
;
Ego
&
haeredes
mei
warrantizantibinius
:
And
Fleta
saith
,
Nota
,
quod
haeres
non
tenetur
in
Anglia
ad
debita
antecessoris
reddenda
,
nisi
per
antecessorem
ad
hoc
fuerit
obligatus
,
praeterquam
debita
Regis
tantum
;
A
Fortiori
,
in
Case
of
warranty
,
which
is
in
the
realty
:
Howbeit
,
the
warranty
in
Law
may
bind
the
heir
,
although
it
never
bound
the
ancestor
,
and
this
also
may
be
created
by
a
last
will
and
testament
;
As
if
a
man
devise
lands
to
another
for
life
,
or
in
tail
reserving
a
rent
,
the
Devisée
for
life
or
in
tail
shall
take
advantage
of
this
warranty
in
Law
,
albeit
the
antestor
was
not
bound
,
and
such
a
Devise
shall
also
bind
his
heires
to
warranty
,
albeit
they
are
not
named
.
per
Walmesley
.
and
from
thence-forth
to
be
in
another
:
For
if
a
man
make
a
Lease
for
life
,
upon
condition
,
that
if
he
do
not
pay
20
l.
such
a
day
,
that
another
shall
have
the
Land
,
this
future
limitation
is
void
,
also
if
a
man
make
a
feoffment
in
Fée
of
Land
to
the
use
of
A.
and
his
heires
every
Monday
,
and
to
the
use
of
B.
and
his
heires
every
Tuesday
,
and
to
the
use
of
C.
and
his
heires
every
Wednesday
,
these
limitations
are
void
,
and
we
find
no
such
fractions
of
Estates
in
the
Law
;
And
if
Co-perceners
agrée
to
present
by
Turn
,
this
is
a
partition
as
to
the
Possession
,
yet
neverthelesse
they
shall
in
a
writ
of
Right
;
So
also
partition
,
that
one
of
them
shall
have
the
land
from
Easter
to
Lammas
,
and
the
other
from
Lammas
to
Easter
,
in
severalty
,
this
is
good
,
as
to
the
possession
and
taking
of
the
profits
,
but
it
is
no
severance
of
the
Estate
of
Inheritance
:
Howbeit
,
an
act
of
Parliament
or
the
Common
Law
may
make
an
Estate
void
as
to
one
,
and
good
as
to
another
,
but
a
man
by
his
words
,
and
the
breath
of
his
mouth
cannot
do
it
:
As
if
Land
be
given
to
Baron
and
feme
,
and
the
heires
of
their
two
bodies
,
and
the
Baron
levie
a
fine
with
Proclamations
,
and
hath
issue
and
dies
,
now
this
fine
by
force
of
the
Statute
of
32
H.
8.
36.
shall
barre
the
issue
in
tail
;
but
shall
not
bind
the
feme
,
and
so
in
respect
of
one
it
is
a
good
barre
,
and
in
respect
of
another
no
b●rre
:
Also
in
a
Praecipe
,
if
one
be
vouched
,
here
as
to
the
Demandant
the
Vouchée
is
Tenant
,
and
a
Release
to
him
by
the
Demandant
is
good
,
but
as
to
a
stranger
he
is
not
Tenant
;
and
therefore
a
Release
to
him
by
a
stranger
is
void
;
in
like
manner
if
one
hath
a
Term
for
yeares
as
Executor
,
and
surrender
it
,
here
,
in
one
respect
the
Term
is
extinct
,
but
in
another
it
is
Assets
:
So
that
an
act
of
Parliament
or
the
Law
may
do
that
in
such
Cases
,
which
a
man
by
his
words
cannot
do
.
partitione
facienda
)
do
make
a
partition
by
déed
with
consent
,
albeit
they
are
now
compellable
by
that
Statute
to
make
partition
,
yet
because
they
do
not
pursue
the
Stat.
to
make
partition
by
the
writ
,
such
partition
remaines
at
the
common
law
,
and
so
(
by
consequent
)
the
warranty
originally
annexed
to
their
Estate
is
gone
,
but
if
they
make
partition
by
writ
provided
by
the
Stat.
(
to
which
every
one
being
party
none
can
have
any
wrong
by
the
operation
thereof
)
the
warranty
shall
remaine
notwithstanding
such
partition
in
severalty
:
because
the
first
is
by
the
act
of
the
parties
,
but
the
other
is
operation
of
the
Statute
which
is
an
act
in
law
,
so
also
if
there
be
two
joint-tenants
with
warranty
,
and
the
one
disseise
the
other
,
and
the
disseisée
brings
an
Assise
:
here
albeit
the
Plaintiff
pray
recovery
in
severalty
,
yet
he
shall
recover
generally
,
and
in
this
Case
also
the
warranty
shall
be
preserved
,
because
he
recovers
by
course
of
Law
,
and
with
this
agrées
28
lib.
Ass.
Pl.
35.
and
Sir
Edw.
Coke
also
ubi
suprà
:
albeit
there
be
some
Bookes
,
that
he
shall
have
judgment
to
hold
in
severalty
,
as
10
E.
3.
40.
&
10.
Ass.
Pl.
17.
&
●●●a
.
13
When
a
déed
is
requisite
to
be
had
ex
institutione
juris
,
I.
S.
if
(
in
this
Case
)
the
Major
and
Cominalty
attorne
to
the
grantée
of
the
reversion
,
the
law
requires
,
that
it
shall
be
by
déed
:
for
,
notwithstanding
that
the
grantée
comes
not
in
by
them
that
attorne
,
and
that
the
attornment
is
but
a
bare
consent
,
yet
in
pleading
,
the
déed
of
Attornment
ought
to
he
shewed
,
for
in
such
Case
the
déed
is
requisite
ex
constitutione
Legis
:
but
when
a
déed
is
onely
requisite
ex
provisione
hominis
,
in
such
Case
the
provision
of
a
man
shall
not
charge
the
judgement
of
the
law
;
as
if
a
man
make
a
lease
for
years
of
land
to
A.
upon
condition
,
that
he
shall
not
assigne
it
over
but
by
déed
,
and
not
by
parol
:
in
this
Case
ex
provisione
hominis
the
assignement
ought
to
be
by
déed
,
yet
because
,
ex
constitutione
legis
,
the
déed
is
not
necessary
for
the
assignée
,
he
may
plead
the
assignement
without
shewing
the
déed
.
M●ile
Finches
Case
.
and
therefore
he
that
hath
a
future
interest
cannot
surrender
it
by
any
expresse
surrender
but
by
taking
of
a
new
lease
(
which
is
an
Act
and
amount
to
a
surrender
in
law
)
it
may
be
surrend●ed
and
determined
,
as
it
is
held
in
35
H.
6.
&c.
vide
suprà
cap.
5.
So
if
the
father
be
enfeoffed
in
Fée
,
and
the
Feoffor
warrant
the
land
to
him
and
his
heires
,
here
the
assignée
shall
not
vouch
,
but
if
the
father
enfeoffe
his
sonne
and
heire
apparent
with
warranty
and
die
,
in
this
Case
the
heire
(
being
in
truth
assignée
)
shall
vouch
:
for
the
law
,
which
hath
determined
the
warranty
of
the
father
to
the
son
,
will
give
the
son
benefit
of
the
first
warranty
,
as
it
was
adjudged
in
43
E.
3.
5.
by
which
it
appeareth
,
that
the
act
in
law
is
both
more
strong
and
more
equal
,
St.
Saviour
in
South-warke
having
a
Lease
of
the
Rectory
almost
expired
,
contracted
,
Lewes
Bowles
Case
.
17
The
Estate
of
a
Tenant
in
Taile
after
possibility
,
Vid.
sup.
Case
4.
Edw.
Althams
Case
.
18
If
the
Disseisée
release
all
Actions
to
the
heire
of
the
disseisor
,
thereby
his
right
is
gone
in
judgment
of
Law
,
116.
It
reputeth
that
a
man
will
deal
for
their
own
best
advantage
.
ad
terminum
qui
praeteriit
,
pur
terme
de
auter
vie
continue
in
Possession
after
the
decease
of
Cesty
que
vie
,
or
Tenant
for
years
holdeth
over
his
term
,
in
this
Case
the
Lessor
cannot
have
an
action
of
Trespasse
before
Entry
;
but
he
may
have
a
Writ
of
Entry
,
if
he
will
thereby
admit
himself
to
have
a
Frée-hold
;
And
the
Law
suffers
him
so
to
do
,
because
the
Law
presumes
that
he
will
not
so
admit
himself
without
some
hope
of
advantage
,
that
may
redound
to
himself
thereby
.
Rome
,
Jerusalem
,
&c.
In
such
or
the
like
Cases
,
the
feoffor
,
feoffée
,
obligor
,
or
stranger
have
time
during
their
lives
to
do
it
,
and
cannot
be
hastened
by
request
;
for
in
such
Cases
the
Law
gives
them
credit
,
that
they
will
take
the
most
convenient
time
for
the
doing
thereof
.
Ideo
utlagetur
,
per
Judicium
Coronatorum
,
or
(
in
London
)
per
Judicium
Recordatoris
;
And
then
upon
the
Return
of
the
Exigent
he
is
out-lawed
:
Howbeit
,
in
this
Case
the
Plaintiff
recovers
nothing
,
but
the
King
taketh
the
whole
benefit
thereof
,
which
is
the
forfeiture
of
all
his
Goods
;
for
the
Law
intends
,
that
the
Defendant
will
rather
appear
and
answer
the
Plaintiff
,
&c
,
than
to
forfeit
all
his
Goods
and
Chattels
,
Debts
,
and
Duties
to
the
King
,
by
his
default
and
contumacy
.
Rowland
Heywards
Case
.
12
Vpon
this
ground
also
it
is
,
by
all
the
Justices
.
b.
Dyer
,
for
the
Law
gives
her
power
to
take
which
of
them
she
will
.
El.
Rot.
442.
in
Tawes
Case
,
reported
by
Serjeant
Benlowes
,
and
by
Dyer
167.
But
in
this
Case
it
séemes
upon
an
action
brought
for
it
he
cannot
plead
non
est
factum
,
because
it
was
once
his
Déed
:
de
donis
but
it
shall
barre
the
issue
in
tail
because
of
the
intended
recompence
,
John
Nedhams
Case
6
In
Debt
to
Administrators
upon
Administration
committed
by
the
Bishop
of
R.
the
Defendant
pleads
Administration
committed
to
himselfe
by
the
Arch-Bishop
of
Canterbury
,
I.
S.
with
this
clause
,
quae
quidem
praemissa
,
&c.
à
nobis
concelata
&
detenta
fuerunt
,
&c.
This
in
judgement
of
Law
is
the
suggestion
of
the
Patentée
,
and
shall
make
the
grant
void
:
So
in
19
E.
3.
tit
.
Grant
58.
the
King
by
his
Letters
Patents
grants
licence
to
appropriate
the
Advowson
of
D.
to
the
Prior
of
C.
quae
quidem
advocatio
non
tenetur
de
nobis
,
and
in
truth
the
Advowson
was
held
mediately
of
the
King
;
here
,
the
licence
was
held
void
,
for
(
the
Booke
saith
)
the
suggestion
was
falfe
:
vide
plus
ibid.
vieu
,
essoine
,
and
the
like
,
but
immediately
appeares
,
and
suffers
the
Demandant
to
recover
by
nihil
dicit
:
For
the
Law
presumes
(
unlesse
there
be
covin
,
or
other
neglect
or
restraint
which
cannot
be
avoided
)
that
the
party
interessed
will
take
all
advantages
,
that
the
Law
allowes
,
to
make
good
his
owne
cause
,
which
advantages
are
the
birth-right
of
the
subject
,
as
Lands
or
other
Inheritance
,
and
when
they
are
waved
or
neglected
,
the
Law
implies
covin
,
or
some
other
miscarriage
.
primer
seisin
,
as
of
land
in
possession
:
but
after
livery
the
Lessée
may
enter
,
and
then
if
the
issue
in
taile
accept
the
Rent
,
the
leafe
shall
bind
him
,
for
the
Kings
primer
seisin
shall
not
take
away
the
Election
of
the
issue
in
taile
:
because
it
may
be
the
Rent
was
better
then
the
land
,
and
so
the
Law
will
presume
,
that
his
acceptance
tended
to
his
advantage
,
and
therefore
he
shall
be
bound
thereby
:
Nul
tort
,
the
fourth
takes
upon
the
intire
tenancy
of
all
,
without
that
,
&c.
and
pleads
also
barre
at
large
:
In
this
Case
,
the
Plaintiffe
at
his
peril
is
to
choose
his
Tenant
,
because
the
law
presumes
,
that
he
will
do
it
for
his
best
advantage
.
117
And
therefore
the
Law
believeth
against
the
party
whatsoever
is
to
his
prejudice
.
Caveat
Emptor
.
quia
multi
per
malitiam
,
&c.
In
summe
,
wheresoever
the
Lord
giveth
to
the
Villein
a
just
cause
of
Action
,
he
is
enfranchised
;
and
therefore
if
the
Lord
kill
his
Villein
,
his
son
and
heire
shall
have
an
appeale
,
and
thereby
the
heire
shall
be
enfranchised
,
because
the
offence
of
the
Lord
gave
to
the
heire
a
just
cause
of
Action
against
the
Lord
.
Feme
covert
.
Infant
.
yet
it
is
not
void
,
but
voidable
;
For
if
after
the
decease
of
the
husband
,
the
wife
entreth
into
the
unequal
part
,
and
agreeth
thereunto
,
this
shall
bind
her
and
her
heires
for
ever
:
There
is
the
same
Law
of
an
Infant
,
when
his
part
is
unequal
,
paramont
,
viz.
from
the
first
feoffor
,
and
not
by
his
companion
:
but
here
,
if
after
the
land
is
charged
with
the
rent
,
the
other
joint-tenant
accept
of
a
release
from
his
ompanion
,
that
so
charged
the
land
,
in
such
case
,
he
shall
hold
the
land
charged
with
the
rent
,
for
now
by
acceptance
of
such
release
he
is
not
in
by
survivorship
,
but
from
his
companion
.
C.
A.
tenders
to
C.
without
impeachment
of
wast
,
it
is
good
.
which
see
,
&c.
Co
l.
3.
85.
a
In
the
Cases
of
Fines
.
I.
S.
seised
of
lands
in
fée
hath
issue
two
daughters
,
Rose
bastard
eigne
,
and
Anne
,
mulier
puisne
,
who
enter
and
make
partition
,
in
this
Case
,
Anne
and
her
heirs
are
concluded
for
ever
.
B.
B.
tenders
a
writing
unto
them
,
the
sonne
being
not
lettered
destres
time
to
be
advised
of
it
,
per
Popham
in
Tookers
Case
.
and
therefore
if
one
of
them
take
all
the
profits
of
the
land
,
or
all
the
Rent
,
the
other
hath
no
remedy
;
for
the
Law
imputeth
it
to
his
folly
to
joine
himselfe
in
Estate
with
such
a
person
,
as
will
breake
his
trust
:
So
likewise
if
there
be
two
Lords
and
a
Tenant
of
land
holden
by
Knight-service
,
and
the
Tenant
die
his
heire
within
age
:
here
,
the
Lords
have
Election
either
to
seise
the
Ward
,
or
to
distraine
for
the
services
,
and
so
to
waive
the
Ward
,
as
it
is
agréed
in
1
E.
3.
But
in
this
Case
if
one
of
them
seise
the
Ward
,
and
the
other
distraine
for
the
services
,
he
that
first
seiseth
or
distraines
shall
bind
the
other
.
La.
da.
in
this
Case
the
feoffée
hath
not
time
during
his
life
to
make
this
grant
,
but
ought
to
do
it
before
Mich.
for
otherwise
he
shall
not
have
the
Annuity
or
Rent
during
his
life
,
and
it
may
be
collected
upon
the
Booke
of
14
E.
3.
tit
.
Debt
138.
that
in
Case
of
the
grant
of
a
rent
he
shall
not
have
time
during
his
life
:
Likewise
if
two
not
married
be
enfeoffed
upon
Condition
to
re-enfeoffe
the
Donor
or
feoffor
,
&c.
and
one
of
them
die
:
yet
the
other
may
perform
the
Condition
;
but
if
he
that
survives
hath
a
wife
,
then
is
the
Condition
broken
:
for
if
he
made
the
re-enfeofment
,
yet
shall
his
wife
be
endowed
:
And
in
all
these
Cases
and
the
like
the
Law
imputeth
it
to
the
Laches
and
folly
of
the
grantée
,
that
he
will
not
perform
the
Condition
,
while
he
may
,
and
believeth
against
him
these
and
the
like
things
done
to
his
owne
prejudice
.
H.
Rot.
950.
Vide
10
El.
Dier
271.
But
there
the
Case
is
left
at
large
;
with
this
also
agrées
11
H.
4.
24.
&
1
H.
5
,
7
,
6.
But
note
,
that
the
barre
to
the
avowrie
ought
to
be
with
conclusion
of
judgment
,
Si
encounter
cest
fait
d'acquittance
il
doit
faire
Avowry
,
as
appeares
by
the
Record
of
10
El.
and
he
ought
not
to
demand
judgment
si
action
.
Malbridge
cap.
6.
making
such
feofment
by
Collusion
void
and
of
no
effect
as
to
the
Lord
,
if
the
Lord
will
affirm
the
feofment
and
waive
the
benefit
of
that
act
by
acceptance
of
the
feoffée
for
his
Tenant
,
he
shall
thereby
purge
the
collusion
,
and
therefore
deserveth
to
lose
the
ward
.
Andrew
Ogwels
Case
.
and
the
Rent
is
arreare
,
and
after
A.
grants
over
the
Rent
to
another
,
and
the
Tenant
attornes
,
and
after
A.
dies
,
his
Executors
are
not
within
the
branch
of
the
Statute
of
32
H.
8.
37.
which
gives
power
to
Executors
,
&c.
to
recover
Debt
due
to
the
Testator
at
the
time
of
his
death
,
for
by
the
grant
over
the
arrecages
were
lost
,
and
were
not
due
to
the
Testator
at
the
time
of
his
death
:
And
therefore
when
the
Testator
by
his
own
Act
in
his
life
time
had
dispenced
with
the
arrerages
,
the
said
Act
gives
no
remedy
to
recover
them
.
Andrew
Corbets
Case
.
and
enters
:
In
this
Case
,
B.
shall
have
allowance
for
the
time
,
that
the
Will
was
concealed
,
and
that
time
shall
not
be
accompted
parcel
of
the
time
for
the
levying
of
the
money
:
But
if
B.
had
surrendred
to
C.
upon
Condition
,
and
had
entred
for
the
Condition
broken
,
Glocester
cap.
5.
6
E.
1.
)
no
remedy
lay
for
waste
(
either
voluntary
or
permissive
)
against
Lessée
for
life
or
yeares
,
because
the
Lessée
hath
Interest
in
the
Land
by
the
Act
of
the
Lessor
,
and
it
was
his
folly
to
make
such
a
lease
,
and
not
to
restraine
him
(
by
covenant
,
condition
,
or
otherwise
)
from
making
waste
:
And
for
the
same
reason
it
is
,
that
at
this
day
Tenant
at
will
shall
not
be
punished
for
permissive
waste
:
but
for
voluntary
waste
,
he
may
according
to
Littleton
fol.
15.
I.
D.
I.
D.
be
it
sufficient
or
not
,
or
lawful
or
not
lawful
,
yet
he
saves
the
Obligation
:
for
if
it
be
in
sufficient
or
unlawful
,
the
Obligée
may
thanke
himselfe
,
to
make
choice
of
such
a
man
,
as
could
give
no
better
direction
.
Fuit
dit
.
Vide
Dier
166.
10.
1.
El.
&
Dier
173.
15.
Et
judicium
redditur
in
invitum
,
but
if
a
lease
be
made
to
one
until
he
make
waste
,
and
he
sow
the
grain
,
Vide
Max.
30.
34.
Journeys
accounts
;
but
if
the
first
writ
abate
by
the
default
of
the
Demandant
himselfe
,
as
by
his
mis-infirmation
of
the
name
of
the
Tenant
,
or
of
the
Towne
,
&c.
there
the
Demandant
shall
never
have
a
writ
by
Journeys
accounts
.
Vide
Dier
55.
7.
34
,
&
35
H.
8.
Hugh
Portmans
Ca.
or
mis-naming
of
the
Plaintiffe
or
Defendant
(
if
the
Plaintiffe
confesse
it
)
the
Defendant
shall
not
have
a
writ
to
the
Bishop
but
the
Plaintiffe
may
have
a
new
writ
of
Quare
Impedit
,
for
that
may
be
the
Clerks
fault
;
Howbeit
,
in
such
Case
,
if
the
Plaintiffe
be
non-suit
after
appearance
,
discontinue
his
suit
,
or
be
made
Knight
,
hanging
the
writ
,
these
are
peremptory
,
and
thereupon
the
writ
shall
abate
,
and
the
Plaintiffe
shall
not
have
a
new
writ
,
because
they
are
done
by
his
own
Act
:
and
in
such
Cases
the
Defendant
shall
have
a
writ
to
the
Bishop
,
&c.
I.
S.
and
I.
S.
makes
the
arbitrament
.
In
this
Case
,
I.
S.
hath
made
an
arbitrament
or
no
,
and
for
want
of
such
inquiry
omits
to
performe
it
,
the
Obligation
is
forfeit
;
for
the
Obligor
ought
to
take
notice
thereof
at
his
peril
,
because
he
hath
bound
himselfe
to
it
,
and
in
such
Case
no
notice
is
requisite
to
be
given
unto
him
,
as
it
is
held
in
1
H.
7.
5.
Brian
,
Vavasor
,
and
Catesby
,
Iustices
agréed
it
for
Law
;
and
said
it
had
béen
formerly
so
adjudged
in
the
B.
R.
John
Nedhams
Ca.
57
A
Commission
of
Administration
granted
by
the
Bishop
to
the
Obligor
shall
not
extinguish
the
Debt
,
but
the
Debt
shall
remaine
:
58
If
a
recovery
be
suffered
without
consideration
or
limiting
to
what
uses
,
it
shall
enure
to
the
use
of
the
recovery
and
his
heirs
;
Anne
Bedingf●ilds
Case
.
59
In
a
writ
of
Dower
the
heire
of
the
Baron
may
plead
detainer
of
the
evidences
,
John
Heydons
Case
.
61
In
Trespass
against
two
,
Ne
injuste
vepes
,
grounded
upon
the
Statute
of
Magna
Carta
cap.
10.
but
before
that
Statute
he
had
no
remedy
,
as
it
séemes
.
Entry
sur
disseisin
,
darrein
presentment
,
darrein
presentment
,
if
he
be
disturbed
;
But
if
a
man
presents
and
after
grants
the
Advowson
for
life
to
another
,
who
suffers
an
usurpation
(
or
two
,
or
thrée
usurpations
)
and
dies
;
In
this
Case
,
at
the
next
avoidance
he
in
the
reversion
shall
not
have
an
Assise
of
darrein
presentment
,
if
he
be
disturbed
to
present
,
because
the
Lessée
was
in
by
his
own
Act
:
Howbeit
his
heire
may
have
it
,
but
that
is
by
the
provision
of
West
.
2.
cap.
5.
So
likewise
if
a
man
present
to
an
Advowson
,
and
after
let
if
for
term
of
years
,
and
then
the
Church
becomes
void
,
and
the
Tenant
for
yeares
presents
,
and
after
the
Incumbent
dies
;
and
the
Lessor
presents
and
is
disturbed
;
in
this
Case
it
séemes
the
Lessor
shall
not
have
an
Assise
of
darrein
presentment
,
causa
quà
suprà
:
And
the
termer
for
years
presented
in
his
own
right
.
warrantia
●●
;
and
●●cher
.
68
If
a
man
be
impleaded
in
any
Action
,
Liberata
pecunia
non
liberat
ofterendum
;
yet
if
the
Defendant
plead
the
tender
and
refusal
(
wherein
he
must
also
say
,
uncore
prist
,
and
tender
the
money
in
Court
(
if
the
Plaintiffe
will
not
then
receive
it
,
but
take
issue
upon
the
tender
,
and
the
same
be
found
against
him
,
he
hath
lost
the
money
for
ever
,
because
he
hath
made
two
refusals
,
when
he
might
have
had
it
.
sur
conusance
de
droit
come
ceo
,
&c.
to
C.
of
the
same
land
,
and
C.
accepts
the
Rent
of
B.
In
this
Case
it
séemes
,
that
by
the
acceptance
of
the
Rent
of
B.
the
Copihold
of
C.
is
gone
;
So
if
a
Disseisor
make
a
lease
for
life
reserving
Rent
,
and
after
grant
the
reversion
to
the
Disseisée
,
and
he
accept
the
Rent
of
the
Lessée
,
he
shall
never
after
oust
him
;
Quod
fuit
concessum
per
quosdam
.
C.
B.
and
proces
continued
till
the
exigent
,
Ne
unque
seisie
que
Dower
luy
puit
,
ne
unque
seisie
,
&c.
the
Iustices
were
of
opinion
,
that
the
Iury
ought
to
find
for
the
Demandant
,
&c.
vide
Co.
l.
1.
88.
a.
2.
in
Corbets
Case
.
Vide
Dier
279.
11.
quòd
una
pars
sit
alienigena
,
and
by
the
Common
Law
the
trial
was
by
all
English
:
Howbeit
Treason
shall
not
be
tried
per
medietatem
linguae
.
Vide
Dier
266
,
9.
Ejectione
firmae
against
two
,
Tollard
Royal
,
W.
E.
of
Salisbury
was
seised
of
Cranborne
Chase
,
And
so
prescribed
in
liberty
of
Chase
,
and
that
the
said
Chase
did
extend
it selfe
as
well
in
and
thorough
the
said
8
acres
,
as
the
said
Towne
of
Tollard
Royal
,
and
●ustifies
the
Trespass
for
use
of
the
chase
:
The
Plaintiffe
maintains
his
declaration
,
and
traverseth
,
that
the
Chase
extends
not
it selfe
as
well
to
the
8
Acres
,
as
to
the
whole
Towne
;
And
this
issue
being
found
for
the
Plaintiffe
,
it
was
moved
in
arrest
of
judgment
,
that
this
issue
and
Verdict
were
faulty
,
because
if
the
Chase
did
extend
to
the
8
Acres
onely
,
it
was
enough
for
the
Defendant
,
and
therefore
the
finding
of
the
Iury
,
that
it
did
not
extend
as
well
to
the
whole
Towne
,
as
to
the
8
Acres
,
did
not
conclude
against
the
Defendants
right
in
the
8
Acres
,
which
was
onely
in
question
:
But
it
was
answered
by
the
Court
,
that
there
was
no
fault
in
the
issue
,
much
lesse
in
the
Verdict
,
which
was
according
to
the
issue
;
but
the
fault
was
in
the
Defendants
plea
,
who
takes
the
exception
,
for
he
put
in
his
plea
more
thou
he
néeded
,
viz.
the
whole
Towne
,
which
being
to
his
owne
dis-advantage
,
and
to
the
advantage
of
the
Plaintiffe
,
there
was
no
reason
for
the
Plaintiffe
to
demurre
upon
it
,
but
rather
to
admit
as
he
did
,
and
so
to
put
it
in
issue
:
And
so
judgement
was
given
for
the
Plaintiffe
.
118
When
several
remedies
are
given
,
the
party
,
to
whom
the
Law
giveth
them
,
hath
thereby
also
election
given
him
to
take
which
he
will
.
Electio
semel
facta
&
placitum
testatum
non
patitur
regressum
.
Quod
semel
placuit
in
electionibus
amplius
displicere
non
potest
.
replevin
,
A.
avoweth
for
himselfe
and
maketh
conusance
for
B.
A.
dieth
and
B.
surviveth
:
Here
,
B.
shall
not
have
a
writ
of
Annuity
;
for
in
that
Case
,
the
Election
and
avowry
for
the
Rent
of
A.
bar●eth
B.
of
his
election
to
make
it
an
Annuity
,
albeit
he
assented
not
to
the
avowry
.
And
here
,
is
a
diversity
to
be
observed
betwéen
the
Case
above-said
where
the
grantée
makes
it
either
real
or
personal
at
his
Election
,
real
,
when
he
distraines
,
or
personal
,
when
he
brings
his
writ
of
Annuity
,
and
where
a
man
may
have
Election
to
have
several
remedies
for
a
thing
that
is
méerely
personal
or
méerely
real
from
the
beginning
:
As
if
a
man
may
have
an
Action
of
account
or
an
Action
of
Debt
at
his
pleasure
,
and
he
bringeth
an
Action
of
account
,
and
appeare
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
,
and
of
a
writ
of
entry
in
nature
of
an
Assise
,
and
the
like
.
Novel
disseisin
for
the
rent
arrere
,
or
enter
for
the
Condition
broken
:
but
after
a
recovery
in
Assise
he
cannot
have
recourse
to
his
re-entry
,
because
by
bringing
the
Assise
he
affirmes
the
continuance
of
the
Estate
.
dum
fuit
infra
aetatem
,
or
a
writ
of
right
against
the
alienée
:
or
otherwise
he
may
make
his
entry
into
the
land
without
any
suit
or
recovery
:
And
so
it
is
to
be
observed
,
that
many
times
the
Law
doth
give
a
man
several
remedies
and
of
several
kinds
,
as
in
this
Case
by
action
and
by
entry
,
by
action
,
either
by
writ
of
right
,
or
dum
fuit
infra
aetatem
.
Rowland
Heywards
Case
.
the
interest
of
the
thing
granted
passes
presently
,
and
the
grantée
,
his
heires
,
or
executors
may
make
their
election
when
and
in
what
manner
they
will
take
it
:
And
therefore
if
a
man
seised
of
a
Mannor
part
in
demesne
and
part
in
lease
demiseth
,
bargaines
,
and
sels
it
to
another
for
yeares
,
the
Lessée
may
make
his
election
,
whether
he
will
take
it
by
demise
at
the
Common
Law
,
or
by
bargaine
and
sale
:
So
also
in
Sir
Rowlands
Heywards
Case
in
the
second
Report
it
was
said
,
if
a
man
give
two
Acres
of
land
,
habendum
the
one
acre
in
fée
and
the
other
in
taile
,
and
he
alien
both
,
and
hath
Issue
and
dies
,
in
this
Case
,
the
Issue
may
bring
a
Formedon
in
descender
,
for
which
Acre
he
pleaseth
;
for
the
election
was
not
determined
by
the
grantées
death
because
the
Estate
past
presently
by
the
livery
,
and
the
issue
takes
by
discent
.
Per
Popham
.
Tit.
Counterplea
de
Garrantie
7.
Andrew
Corbets
Case
.
17
If
a
man
deviseth
demiseth
or
limiteth
by
way
of
use
land
to
another
untill
800
l.
be
raised
for
the
perferment
of
his
daughters
,
and
dies
,
See
Dier
20.
118.
28
H.
8.
Gore
&
Woddeys
Case
.
Register
:
F.
N.
B.
94.
g.
&
Register
103.
b.
So
if
a
man
hath
a
Mannor
within
an
Honor
,
and
hath
a
Léet
within
his
Mannor
for
his
owne
Tenants
,
if
he
or
his
Tenants
are
distrained
by
the
Lord
of
the
Honor
to
come
to
the
Léet
of
the
Honor
,
he
that
is
so
distrained
may
have
a
general
writ
of
Trespas
,
or
a
special
writ
upon
his
Case
;
So
if
an
Officer
take
toll
of
him
,
who
ought
to
be
quit
of
toll
,
he
shall
have
a
general
writ
of
Trespas
,
or
an
action
upon
his
Case
,
as
appeares
by
Fizt
.
ibid.
If
a
Prior
or
other
Prelate
be
riding
upon
his
journey
,
and
one
distraines
the
horse
,
upon
which
he
rides
,
when
he
might
distraine
other
of
his
goods
,
in
this
Case
,
he
may
have
a
general
action
of
Trespass
,
or
an
action
upon
his
Case
,
as
appeares
by
the
Register
fol.
100.
&
F.
N.
B.
93.
b.
So
if
a
Sheriffe
suffer
one
in
execution
upon
a
Statute
Marchant
to
escape
,
the
Conusée
may
have
an
Action
of
debt
,
or
an
action
upon
the
Case
,
as
appeares
by
the
Register
98.
b.
&
F.
N.
B.
93
B.
C.
So
if
a
man
●ust
the
Executors
of
his
Lessée
for
yeares
from
their
terme
,
they
may
have
a
special
writ
upon
their
Case
,
as
appeares
F.
N.
B.
92.
g.
Register
97.
and
yet
they
may
also
have
an
Ejectione
firmae
,
or
Trespass
:
for
in
all
Cases
,
when
the
Register
hath
two
writs
for
one
and
the
same
Case
,
it
is
at
the
election
of
the
party
to
take
either
the
one
or
the
other
.
Walter
Mildmayes
ca.
cited
in
the
E.
of
Devons
Ca.
it
is
in
the
Kings
Election
to
charge
the
party
that
receives
them
,
or
(
in
Case
he
die
)
his
Executors
,
or
otherwise
to
charge
the
Treasurer
and
Vnder-treasurer
,
that
issued
out
such
unlawful
warrant
.
Ra●
parte
,
●
a
Nuper
〈◊〉
.
24
If
the
Ancestor
die
seised
,
xx
s.
Rent
onely
,
without
that
,
that
he
holds
by
Homage
,
Fealty
,
and
Rent
in
manner
and
forme
as
the
Avowry
is
made
:
Or
otherwise
he
may
bring
a
writ
of
Ne
injustè
vexes
,
if
he
please
,
at
his
Election
.
in
vita
.
if
the
Baron
die
,
the
Feme
may
have
a
writ
of
defeit
,
or
a
Cui
in
vita
,
at
her
Election
.
Deceit
or
Quod
ei
d●ceat
.
or
for
life
lose
by
default
(
where
they
were
not
summoned
,
or
the
like
)
they
may
have
a
writ
of
deceit
,
or
a
Quod
ea
deforceat
,
(
upon
the
Statute
of
W.
2.
c.
4.
)
at
their
pleasure
.
viz.
Quoad
decem
libras
,
&c.
&
quoad
alias
decem
libras
,
&c.
&
sic
deinceps
;
at
his
election
.
Vide
M.
17
E.
3.
in
debt
against
Executors
two
writs
of
fieri
facias
,
were
awarded
into
several
Counties
for
the
whole
debt
:
And
in
waste
in
29
H.
6.
Rot.
103.
the
Plaintiffe
for
the
treble
damages
had
thrée
writs
of
Elegit
in
thrée
several
Counties
for
the
whole
.
119
Cujus
est
divisio
,
alterius
est
Electio
.
120
Nemo
prohibetur
pluribus
desensionibus
uti
.
Novel
disseisin
,
yet
upon
shewing
a
discent
or
other
special
matter
,
he
may
have
an
Assise
of
Mortdancester
,
Aiel
,
Besaiel
,
a
writ
of
Entry
sur
disseisin
of
his
Ancestor
,
&c.
or
the
like
:
Besaiel
,
Cosinage
,
because
they
are
ancestral
and
of
the
same
nature
:
yet
in
a
Formedon
in
descender
,
albeit
the
D●mandant
be
barred
by
verdict
or
demurrer
,
yet
the
issue
in
taile
may
have
a
now
formedon
in
descender
;
But
this
is
by
the
construction
of
W.
2.
c.
2.
So
likewise
,
if
the
Ancestor
be
barred
in
a
writ
of
Error
upon
a
release
,
by
him
made
to
the
Tenant
,
yet
the
issue
shall
have
a
new
writ
of
Error
;
For
he
claimes
in
not
onely
as
heire
,
but
per
formam
doni
;
And
by
the
Statute
he
shall
not
be
barred
upon
a
feined
or
false
plea
of
his
Ancestor
,
so
long
as
the
Right
of
the
intaile
remaines
,
and
with
this
accords
10
H.
6.
5.
and
3
Eliz.
188.
Dier
Sir
Ralfe
Rowlets
Case
.
A.
W.
A.
W.
was
seised
,
and
yet
that
a
discent
was
cast
to
the
Plaintiffe
,
therefore
the
lease
is
most
material
to
be
traversed
:
Howbeit
it
séemes
,
that
either
the
one
,
or
the
other
may
be
traversed
.
So
in
Trespas
the
Defendant
pleads
,
that
A.
was
seised
,
who
enfeoffed
B.
who
enfeoffed
C.
who
enfeoffed
D.
whose
Estate
the
Defendant
hath
;
here
,
the
Defendant
may
traverse
which
of
them
he
please
.
Edw.
Althams
Case
.
7
Where
a
man
releaseth
totum
Jus
generally
,
Litt.
fol.
115.
b.
&
19
Ass.
Pl.
3.
19
H.
6.
4.
21
H.
6.
23.
21
H.
7.
23.
Co.
lib.
4.
fol.
8.
and
divers
other
Bookes
(
which
sée
in
the
Case
of
Avowry
,
Co.
lib.
9.
23.
a.
4.
)
Or
otherwise
,
he
may
have
an
Action
of
Trespass
against
the
Lord
,
or
Bailiff
.
Vide
sup.
Max.
118.
R.
24.
suprà
,
Maxime
118.
Rot.
25.
Grand
Cape
the
Baron
appeares
in
proper
person
,
and
the
Feme
by
an
Attorney
,
who
hath
not
sufficient
warrant
,
and
thereupon
judgment
was
given
upon
the
default
of
the
Feme
against
Baron
and
Feme
,
&c.
yet
if
they
were
not
duely
summoned
,
they
may
bring
their
writ
of
Error
to
reverse
that
judgment
.
habere
facias
ad
valentiam
,
&c.
maintainable
within
a
yeare
after
the
recovery
to
recover
in
value
according
to
his
losse
.
121
Consensus
tollit
Errorem
.
Ejectione
firmae
upon
the
issue
joyned
the
Plaintiffe
makes
suggestion
to
the
Court
,
that
he
,
the
Sheriffe
,
Title
Office
de
Court
,
12.
If
12
be
sworne
and
one
departs
,
another
of
the
Panel
(
by
consent
)
may
be
sworne
,
and
with
the
11
give
the
Verdict
,
11
H.
6.
13.
The
Court
in
a
Quare
Impedit
may
(
by
consent
)
give
longer
day
,
then
is
limited
by
the
Statute
of
Marlebridge
H.
4.
The
Statutes
of
2
E.
3.
&
20
E.
3.
provide
,
that
neither
for
the
great
Seal
,
nor
little
Seal
,
Iustice
shall
be
delayed
,
yet
when
the
matter
concernes
the
King
onely
,
if
he
command
it
,
it
may
be
stayd
.
F.
N.
Br.
21.
b.
27
H.
8.
A
Tenure
may
be
created
at
this
day
by
consent
of
all
,
notwithstanding
the
Statute
of
quia
emptores
terrarum
,
6
E.
6.
Dier
78.
By
special
consent
of
the
Parties
re-entry
may
be
for
default
of
payment
of
Rent
,
without
demand
thereof
.
El.
inter
Norreys
and
Braybrooke
.
A
writ
of
Error
was
brought
to
reverse
a
recovery
in
19
H.
8.
and
the
Teste
was
a
day
after
the
return
;
neverthelesse
,
because
it
appeared
to
be
but
a
mistake
of
the
Clerke
,
and
was
in
the
Case
of
a
Common
recovery
(
which
passeth
by
consent
)
it
was
amended
.
Moyle
Finches
Case
.
7
There
is
a
diversity
betwixt
brevia
adversaria
,
Diversity
betwixt
brevia
adversaria
,
〈◊〉
brevia
ami●●
bilia
.
vix
.
brought
as
adversary
to
recover
the
land
,
&c.
And
brevia
amicabilia
,
viz.
brought
by
consent
and
agréement
amongst
friends
;
for
true
it
is
in
brevibus
adversariis
the
processe
of
the
Common
Pleas
shall
not
pursue
the
custome
or
reputation
of
the
Country
,
as
in
6
E.
3.
11.
the
Demandant
in
a
writ
of
Entry
demands
the
Mannor
of
C.
the
Tenant
saith
,
that
the
tenements
put
in
view
are
a
Messuage
and
a
Carve
of
land
called
,
&c.
and
not
a
Mannor
,
&c.
whereby
it
appeares
,
that
if
it
were
not
a
Mannor
in
truth
,
albeit
it
was
so
in
Common
Appellation
,
the
writ
should
abate
;
but
it
was
adjudged
in
Sir
Jo.
Bruyns
case
in
the
beginning
of
Quéen
El.
Raigne
,
that
in
Common
Recovery
(
which
is
had
by
the
consent
and
agréement
of
the
parties
)
of
acres
of
land
,
they
shall
be
accounted
according
to
the
accustomable
and
usual
measure
of
the
Country
,
and
not
according
to
the
Statute
de
terris
mensurandis
made
in
33
E.
1.
So
likewise
it
is
agréed
in
47
E.
3.
18.
if
a
man
bargaine
and
sell
so
many
acres
of
wood
,
that
shall
be
measured
according
to
the
use
of
the
County
,
viz.
according
to
20
foot
to
the
Pole
,
and
not
according
to
the
said
Act
;
for
in
such
Case
consuetudo
loci
est
observanda
;
also
if
a
fine
be
acknowledged
of
a
Mannor
,
which
(
in
déed
)
is
a
Mannor
in
reputation
onely
and
not
in
truth
,
yet
is
the
fiue
good
,
because
done
by
consent
of
parties
.
122
Volenti
non
fit
injuria
.
Hony
Lanes
ca.
1
If
the
Tenant
in
an
Assise
of
an
house
desire
the
Plaintiffe
to
dine
with
him
in
the
house
,
which
the
Plaintiffe
doth
accordingly
,
123
Quilibet
potest
renunciare
juri
per
se
introducto
.
A
forciori
of
a
right
of
Action
.
Quod
nota
.
Anne
Mayōes
Case
.
In
this
Case
,
it
was
objected
that
this
grant
enured
,
as
the
grant
of
B.
and
the
confirmation
of
A.
which
confirmation
could
not
alter
the
quality
of
the
Estate
:
Howbeit
,
it
was
resolved
and
adjudged
,
that
the
land
was
chargable
with
the
Rent
,
and
one
of
the
reasons
alleadged
for
it
was
,
that
every
fée
may
be
charged
one
way
or
other
,
and
when
both
joyne
in
the
grant
,
that
have
the
whole
interest
in
the
land
,
it
must
néeds
be
charged
with
the
Rent
,
for
if
it
cannot
be
done
by
their
joint
grant
,
there
is
no
other
way
to
do
it
.
cap.
Discout
.
fol.
144.
that
it
is
a
Maxime
in
the
Law
,
that
land
in
fée-simple
may
be
charged
one
way
or
other
:
So
also
it
is
a
Maxime
in
the
Law
,
that
every
right
,
title
,
or
interest
in
praesenti
or
futuro
by
the
joyning
of
all
,
that
may
claime
any
such
Right
,
Title
,
or
Interest
,
may
be
barred
or
extinct
;
And
therefore
at
the
Common
Law
if
the
Donor
and
Donée
had
joyned
in
the
grant
of
a
rent-charge
,
and
after
the
Donée
had
died
without
issue
,
and
the
fée
had
reverted
to
the
Donor
,
that
he
should
have
held
it
charged
,
and
yet
he
had
but
a
possibility
at
the
time
of
the
charge
made
;
Because
all
those
who
had
any
Estate
or
interest
therein
in
praesenti
or
in
futuro
did
joyne
in
the
charge
:
So
likewise
(
à
fortiori
)
if
they
had
joyned
in
a
lease
for
yeares
,
and
the
Donée
had
died
without
issue
,
the
lease
had
béen
good
against
the
Donor
.
In
like
manner
,
Lessée
for
400
yeares
devises
for
life
to
his
executor
,
Fuit
tenus
per
Montague
,
Hales
,
Molineux
,
&
Browne
.
Reasonable
suerty
of
sufficient
persons
,
do
not
so
restraine
the
Sheriffe
,
but
that
he
may
(
if
he
please
)
take
suerty
of
one
single
person
;
for
the
Statute
leaves
it
to
his
discretion
to
take
such
security
as
he
thinks
fit
;
because
he
is
to
be
amercied
,
if
the
party
appeare
not
at
the
day
in
the
writ
,
and
therefore
it
is
at
his
peril
,
if
he
take
not
good
security
of
the
party
arrested
,
and
he
hath
liberty
to
waive
that
power
by
taking
lesse
security
,
then
the
Statute
mentioneth
:
for
those
words
import
rather
an
advice
then
a
command
,
and
Quilibet
potest
renunciare
,
&c.
Cestuy
que
use
shall
be
déemed
in
possession
of
such
an
Estate
as
he
had
in
the
use
;
Here
,
the
Question
was
whether
or
no
the
Feme
should
be
remitted
:
And
(
by
Shelley
)
it
séemes
she
is
remitted
,
because
she
comes
in
not
by
her
owne
Act
,
but
by
an
Act
in
Law
,
viz.
by
the
Statute
,
and
there
is
none
against
whom
she
may
bring
her
Cui
in
vita
;
But
Baldwin
and
Knightly
è
contra
,
because
she
comes
in
by
Act
of
Parliament
,
to
which
every
one
is
party
,
and
the
Statute
saith
,
Cestuy
que
use
shall
be
adjudged
in
such
Estate
as
he
had
in
the
use
;
for
if
Tenant
in
taile
make
a
feofment
in
fée
to
his
owne
use
in
fée
or
fée
taile
,
the
issue
is
not
remitted
,
because
he
had
a
fée-simple
in
the
use
,
and
the
Statute
conveyes
unto
him
such
an
Estate
as
he
had
in
the
use
.
Ideo
quaere
.
124
Omnis
Ratihabitio
retró-trahitur
,
&
mandato
seu
licentiae
aequiparatur
.
Mulier
puisne
;
B.
R.
per
Curiam
:
Quia
omnis
Ratihabitio
,
&c.
Marg.
Podgers
Case
.
and
the
last
Case
standeth
well
with
the
words
of
the
Statute
,
So
that
they
pursue
their
title
,
&c.
by
way
of
Action
or
entry
,
&c.
and
so
also
is
the
Booke
in
31
H.
8.
Br.
Entry
Congreg
.
123.
Co.
B.
per
Cur.
But
where
an
Infant
or
a
man
of
full
age
is
disseised
,
an
entry
by
a
stranger
(
of
his
own
head
)
is
good
and
vesteth
presently
the
Estate
in
the
Infant
or
other
disseisée
:
So
it
is
also
if
Tenant
for
life
make
a
feofment
in
fée
,
and
a
stranger
enter
for
a
forfeiture
in
the
name
of
the
Reversioner
(
but
without
his
privity
)
for
in
that
Case
also
the
Estate
shall
be
thereby
vested
in
the
Reversioner
.
Co.
l.
9.
fol.
106.
a.
in
the
Lord
Awdleys
Case
:
And
that
resolution
was
grounded
upon
the
construction
of
the
Statute
of
4
H.
7.
24.
Howbeit
a
assent
subsequent
within
the
5
years
is
sufficient
,
as
is
afore-said
.
Eliz.
inter
Harris
and
Jay
in
B.
R.
125
Nemo
tenetur
accusare
seipsum
.
judgment
si
action
,
and
ought
not
to
say
,
that
he
returned
,
non
est
inventus
,
because
that
makes
against
him
,
that
is
,
makes
him
a
trespassor
ab
initio
:
but
the
false
returne
ought
to
be
alleadged
by
the
Plaintiffe
,
who
is
to
take
advantage
thereof
.
126
Nec
se
infortuniis
&
periculis
exponere
.
1
In
making
continual
claime
,
if
the
adverse
party
lie
in
waite
in
the
way
with
Weapons
,
or
by
words
menace
to
beat
,
mayhem
,
or
kill
the
party
,
that
would
enter
;
in
such
Case
,
the
Law
allowes
a
claime
,
made
as
néere
the
land
as
he
dare
approach
for
feare
of
death
,
or
other
bodily
hurt
:
Howbeit
(
saith
Bracton
)
Talis
debet
esse
metus
,
qui
cadere
potest
in
virum
constantem
;
&
qui
in
se
continet
mortis
periculum
,
&
corporis
cruciatum
;
Et
nemo
tenetur
se
infortuniis
&
periculis
exponere
.
And
therefore
every
doubt
or
feare
is
not
sufficient
;
for
it
must
concerne
the
safety
of
the
person
of
the
man
,
and
not
his
houses
or
goods
,
for
the
feare
of
burning
his
houses
,
or
taking
away
or
spoiling
his
goods
,
is
not
sufficient
,
because
he
may
recover
the
same
,
or
damages
to
the
value
thereof
without
any
corporal
hurt
;
But
if
the
Iury
upon
a
special
Verdict
do
find
,
that
the
disseisée
did
not
enter
for
feare
of
corporal
hurt
,
this
is
sufficient
,
and
it
shall
be
intended
,
that
they
had
evidence
to
prove
the
same
:
Also
it
séemeth
that
feare
of
imprisonment
is
sufficient
;
because
such
a
feare
sufficeth
to
avoid
a
bond
,
or
a
Déed
;
for
the
Law
hath
a
special
regard
to
the
salfety
and
liberty
of
a
man
,
and
imprisonment
is
a
corporal
damage
,
a
restraint
of
liberty
,
and
a
kind
of
captivity
.
For
the
time
of
doing
things
it
countenanceth
more
.
127
Things
done
in
time
of
Peace
,
than
in
time
of
Warre
.
(
nam
inter
arma
silent
Leges
)
then
it
is
said
to
be
a
time
of
Warre
:
And
the
trial
thereof
is
by
the
records
and
Iudges
of
the
Courts
of
Iustice
:
for
by
them
it
will
appeare
,
whether
Iustice
had
her
equal
course
of
procéeding
at
that
time
,
or
no
:
And
this
shall
not
be
tried
by
Iury
,
but
by
them
,
as
afore-said
:
And
therefore
albeit
during
these
late
troubles
the
Courts
of
Iustice
sate
duly
at
Westminster
,
as
in
other
times
of
Peace
,
yet
quaere
,
whether
an
occupation
and
discent
at
that
time
within
the
Kings
Quarters
would
barre
the
disseisée
,
for
although
they
sate
,
yet
had
they
no
power
there
to
execute
their
judgment
.
3
The
Law
countenanceth
more
the
procéeding
against
a
Felon
in
time
of
peace
,
then
in
time
of
Warre
:
And
therefore
if
a
man
commit
Felony
in
time
of
Peace
,
he
shall
by
judgment
forfeit
his
lands
,
thrée
manner
of
wayes
,
1
quia
suspensus
per
collum
,
2
quia
abjura
vit
regnum
,
3
quia
utlagatus
est
;
but
they
,
who
are
hanged
by
Martial
Law
,
(
in
favorem
belli
)
forfeit
no
lands
.
128
Things
done
in
the
day
more
then
those
done
in
the
night
.
Abusion
est
que
lon
tient
pleas
par
Dimenches
(
v.
Sondayes
)
ou
par
outres
jours
defenders
,
or
devant
le
Soleil
levy
,
ou
nectanter
,
&c.
damage
fesant
a
man
may
distraine
in
the
night
,
The
day
is
made
for
man
to
labour
in
,
and
the
night
to
rest
.
Note
that
the
Statute
of
27
El.
13.
hath
altered
this
Law
.
Tit.
Corone
238.
Dum
quis
Felonicè
occisus
fuit
per
diem
;
nisi
felo
captus
fuit
,
tota
Villata
illa
oneretur
;
and
with
this
agrées
3
E.
3.
But
if
such
a
Murder
or
Homicide
be
committed
in
the
night
,
the
Towne
shall
not
be
a
amercied
by
the
Common
Law
,
because
no
laches
or
neglect
can
be
attributed
to
them
.
Vide
plus
ibid.
When
things
are
fit
to
be
straightned
to
a
certaine
time
,
it
esteemeth
,
according
to
the
nature
of
the
things
.
129
Sometimes
a
whole
day
sufficient
.
130
Sometimes
a
whole
yeare
.
Essoine
de
service
le
Roy
:
If
a
protection
beare
date
7
die
Januarii
,
and
have
allowance
pro
uno
anno
,
the
re-summons
,
re-attachment
,
or
re-garnishment
may
be
sued
8
Januarii
the
next
year
:
howbeit
Britton
(
fol.
280
,
282
,
&
283.
)
treating
of
an
Estoine
beyond
the
Grecian-sea
in
a
Pilgrimage
,
&c.
saith
thus
,
Ascun
gent
ne
quident
se
purchasent
nous
letters
de
protection
patents
durable
a
1
an
.
ou
2
,
ou
3
ans
,
&
Jalumeyus
font
attorneys
generals
ausi
par
nous
letters
patents
:
Et
ceux
font
bien
&
sagement
;
car
nul
grand
Seignior
ne
Chevaler
de
nostre
Realme
ne
droit
prender
chimin
sans
nostre
conge
,
car
issuit
poet
le
Realme
remainer
disgarnae
de
fort
gente
.
Henry
Constables
Case
.
&
Co.
l.
8.
100.
a.
F.N.B.
79.
a.
As
at
the
Common
Law
upon
a
fine
or
final
judgment
,
and
execution
in
a
writ
of
right
,
the
party
grieved
had
a
yeare
and
a
day
to
make
his
claime
;
So
the
Wife
or
heire
hath
a
yeare
and
a
day
to
bring
an
appeale
of
death
:
If
a
Villain
remained
a
yeare
and
a
day
in
ancient
demesne
,
he
was
priviledged
:
If
a
man
be
wounded
,
poysoned
,
or
,
&c.
and
dieth
thereof
within
the
yeare
and
the
day
,
it
is
felony
:
By
the
ancient
Law
if
the
Feoffée
of
a
disseisor
had
continued
a
yeare
and
a
day
,
the
entry
of
the
disseisée
for
his
negligence
had
béen
taken
away
:
After
judgment
given
in
a
real
Action
,
the
Plaintiffe
within
the
yeare
and
the
day
may
have
a
Habere
facias
seisinam
,
and
in
an
Action
of
Debt
,
&c.
a
Capias
,
fieri
facias
,
or
a
levari
facias
.
And
in
many
other
Cases
:
But
this
time
of
a
yeare
and
a
day
in
Case
of
continual
claime
is
since
altered
by
the
Statute
of
32
H.
8.
33.
Henry
Const
.
Case
.
Dog
,
or
Cat
escape
alive
out
of
the
ship
,
nothing
,
which
was
therein
,
shall
be
adjudged
wrecke
;
but
that
the
things
shall
be
kept
safe
by
the
view
of
the
Sheriffe
,
Coroner
,
or
other
Bailiffe
of
the
King
,
&c.
So
as
if
any
come
in
and
prove
,
that
they
are
his
Lords
,
or
perished
in
his
custody
,
they
shall
be
rendred
unto
him
without
delay
;
and
this
is
but
a
declaration
of
the
Common
Law
;
for
Bracton
(
who
wrote
before
this
Statute
,
viz.
Tempore
H.
3.
)
delivers
the
same
in
substance
;
and
if
the
right
owner
die
,
his
Executors
or
Administrators
may
make
the
like
proofe
wihtin
the
same
time
:
So
it
is
also
of
Flotfan
,
Jetsan
,
and
Lagan
:
And
if
any
living
creature
come
a
shore
,
or
the
goods
may
be
known
by
the
marke
or
cocket
,
if
seaseth
.
scire
facias
,
&c.
Vide
infrà
189.
41.
131
Sometimes
the
last
part
of
the
last
day
.
Vide
Dier
130.
b.
70.
&
222.
22.
4
If
Rent
be
granted
payable
upon
Michaelmas
day
or
within
20
dayes
after
;
it
séems
the
grantée
must
demand
it
a
convenient
time
before
Sun-setting
both
upon
Michaelmas
day
,
and
the
last
of
the
20
dayes
;
for
in
this
Case
,
it
séemes
to
be
in
the
election
of
the
grantor
to
tender
and
pay
it
upon
Michaelmas
day
,
or
the
twentieth
day
at
his
pleasure
.
Tamen
quaere
.
132
When
no
time
is
limited
,
the
Law
appointeth
the
most
convenient
,
and
in
some
Cases
,
the
immediate
time
.
Rome
.
Jerusalem
,
&c.
In
such
and
the
like
Cases
,
the
Obligor
,
Feoffor
,
or
Feoffée
hath
time
during
his
life
to
performe
it
,
and
cannot
be
hastned
by
request
:
And
so
it
is
also
if
a
stranger
to
the
obligation
or
feofment
were
to
do
such
an
Act
,
he
also
hath
time
to
do
it
at
any
time
during
his
life
.
ubi
sup
.
that
the
Feoffée
shall
make
a
gift
in
taile
to
the
Feoffor
:
the
Remainder
to
a
stranger
in
Fée
;
there
the
Feoffée
hath
time
during
his
life
,
as
is
afore-said
;
because
the
Feoffor
who
is
party
and
privy
to
the
Condition
,
is
to
take
the
first
Estate
:
But
if
the
Condition
were
to
make
a
gift
in
taile
to
a
stranger
.
the
Remainder
to
the
Feoffor
in
Fée
;
In
this
Case
,
the
Feoffée
ought
to
do
it
in
convenient
time
;
For
that
the
stranger
is
not
privy
to
the
Condition
,
and
he
ought
to
have
the
profits
presently
,
De
servientibus
,
Balivis
,
Pl.
Com.
17.
viz.
that
the
generalty
of
the
time
shall
be
restrained
to
the
present
for
the
benefit
of
him
,
upom
whom
the
paine
shall
be
inflicted
,
and
with
this
also
agrées
Pl.
Com.
in
Stradlings
Case
206.
b.
pro
consilio
impenso
&
impendendo
,
Vide
Ho.
207
,
208.
Judicis
officium
est
,
ut
res
,
ita
tempora
rerum
Quaerere
,
quaesito
tempore
,
tutus
eris
.
12
Vide
183.
1.
133
The
third
offence
is
esteemed
most
heynous
.
Finch
.
fol.
10.
b.
134
The
place
also
ought
to
be
convenient
.
Littl.
fol.
40.
and
the
Book
in
15
Ass.
Pl.
12.
is
good
Law
,
that
a
Distresse
upon
the
Land
after
the
Condition
broken
,
amounts
to
a
Claim
of
the
Seigniory
,
unto
which
it
was
annexed
.
valore
maritagii
,
and
Quare
Impedit
:
But
Ravishment
of
Ward
,
where
the
Ravishment
was
,
and
a
Quare
non
admisit
,
where
the
refusal
was
.
Before
the
Statute
of
7
R.
2.
cap.
10.
An
Action
for
Land
in
divers
Counties
,
or
for
Common
in
one
County
appendant
to
Land
in
another
,
was
brought
by
several
Writs
n
both
Counties
;
but
since
that
Statute
by
on
Writ
in
Confinio
Comitatum
;
A
per
que
servitia
shall
be
brought
,
where
the
note
of
the
fine
was
levied
.
K.
B.
but
this
Law
is
altered
by
2
&
3
E.
6.
24.
England
.
Vide
Max.
186
,
32.
&
191
,
3.
verus
possessor
of
certaine
Lands
in
the
County
of
Bedford
,
at
the
time
of
the
Indenture
;
and
it
was
the
opinion
of
the
Court
that
the
most
apt
place
for
that
trial
was
in
Com.
Bedford
,
and
not
in
London
.
Vide
Dyer
305
,
58.
19
Vide
Hob.
78.
Don
Diego
,
&c.
concerning
Causes
triable
in
the
Admiralty
,
&c.
79.
Palmer
against
Pope
.
Maximes
of
Reason
taken
out
of
Morality
.
135
The
Law
favoureth
Charity
.
all
like
uses
:
but
the
intention
of
the
Makers
of
that
Statute
was
onely
to
take
away
Superstitious
Vses
,
and
not
Good
and
Charitable
Vses
.
Br.
Tenures
53.
)
or
to
find
a
Preacher
,
or
Ornaments
for
such
a
Church
(
as
you
have
it
in
35
H.
6.
6.
)
in
such
cases
,
albeit
the
Lord
purchase
part
,
yet
the
intire
service
shall
remain
.
Ass.
p.
3.
And
this
in
charity
to
him
,
that
hath
suffered
such
losse
.
Vide
28
H.
8.
Dyer
29.
b.
Pl.
199.
appointed
:
See
there
also
the
next
Case
,
a
Devise
for
the
repaire
of
an
High
way
;
where
albeit
the
Devise
be
void
,
yet
the
Statute
of
43
,
by
reason
of
the
said
words
(
limited
and
appointed
)
doth
reach
it
.
Collisons
Case
.
136
De
mortuis
nil
nisi
bonum
.
Rich.
Lechfords
case
.
1
If
there
Bastard
eigne
and
Mulier
puisne
,
Mulier
puisne
,
and
she
be
covert
at
the
time
of
the
Discent
,
yet
is
she
barred
;
Also
if
the
Bastard
die
not
,
but
enter
into
Religion
,
by
which
a
Discent
is
cast
,
that
shall
also
barre
the
Mulier
for
ever
:
Likewise
discent
of
Services
,
Rents
,
Reversions
upon
an
Estate
tail
,
or
for
life
,
&c.
which
barre
not
the
entry
of
those
,
that
right
have
,
shall
barre
the
Mulier
for
ever
:
So
if
the
Bastard
die
,
and
his
issue
endow
the
Bastards
wife
,
the
Mulier
cannot
enter
upon
the
widdow
,
but
is
barred
causa
qua
suprà
.
Rich.
Lechfords
case
.
3
If
a
Bastard
eigne
enter
,
and
die
seised
,
137
And
therefore
,
it
hateth
malice
and
oppression
.
Title
Corone
,
367.
3
Albeit
a
man
in
Prison
by
processe
of
Law
ought
to
be
kept
in
salva
&
arcta
custodia
,
and
by
the
Law
ought
not
to
go
out
;
Mirrour
(
cap.
2.
§.
17.
)
Nul
charter
,
nul
vende
,
ne
nul
done
vault
pro
penaltment
,
si
le
Donor
nest
seisie
al
temps
de
contracts
de
deux
droits
,
viz.
Del
droit
de
possession
,
Et
del
droit
de
propertie
:
Howbeit
such
a
right
or
thing
in
Action
may
be
released
,
because
that
quiets
and
confirmes
the
present
possession
and
property
,
and
causeth
no
disturbance
,
or
injustice
,
but
rather
prevents
them
.
138
It
favoureth
Vertue
.
139
Hateth
Vice
.
Jane
S.
whether
the
same
Issue
be
legitimate
or
illegitimate
,
B.
hath
Issue
a
Bastard
on
the
body
of
Jane
S.
this
Sonne
or
Issue
shall
not
take
the
Remainder
,
causa
qua
suprà
;
And
it
séemeth
also
,
if
after
the
birth
of
the
Issue
B.
had
maried
Jane
.
S.
so
as
thereby
the
Issue
becomes
Bastard
eigne
,
and
had
a
possibility
to
inherit
,
yet
shall
he
not
take
the
Remainder
by
the
word
Issue
.
Sponte
virum
mulior
fugiens
;
&
adultera
facta
,
Dote
sua
careat
,
nisi
sponsi
sponte
retracta
.
And
if
she
goeth
willingly
with
or
to
the
Avowterer
,
this
a
departure
and
a
tarrying
,
albeit
she
remaineth
not
continually
with
the
Avowterer
,
or
tarrieth
with
him
against
her
will
,
or
he
turne
her
away
;
also
if
she
co-habit
with
her
Husband
by
the
Censures
of
the
Church
:
In
all
these
Cases
she
loseth
her
Dower
;
See
more
of
this
matter
in
the
exposition
upon
the
Statute
of
West
.
2.
34.
13.
E.
1.
Vide
Co.
Inst.
part
.
2.
Robert
Radwel
deceased
was
borne
per
undecim
dies
post
ultimum
tempus
legitimum
mulieribus
constitutum
,
and
thereupon
it
was
and
judged
,
quod
dictus
Henricus
dici
non
debet
filius
praedicti
Roberti
secundum
Legem
&
Consuetudinem
Angliae
constitutam
,
that
being
nine
moneths
,
according
to
that
of
Esdras
,
Vide
&
interroga
pregnantem
,
si
quando
impleverit
novem
menses
suos
,
adhuc
poterit
matrix
ejus
retinere
partum
in
semetipsa
?
&
dixi
non
potest
,
Domine
;
Howbeit
the
Prince
of
Conde
(
father
of
the
Pri●ce
now
living
,
and
in
Rebellion
against
the
King
of
France
this
present
yeare
1652
)
was
borne
14
moneths
after
the
death
of
his
father
,
and
it
was
adjudged
possible
by
the
unanimous
opinion
of
the
Physicians
of
Montpeller
,
by
reason
of
the
excessive
griefe
,
which
the
Lady
was
conceived
to
take
at
the
death
of
her
husband
.
cap.
Rape
.
J.
S.
the
bond
is
void
:
So
if
a
man
make
a
feofment
,
upon
Condition
,
that
the
Feoffée
shall
kill
I.
S.
the
Estate
is
absolute
and
the
Condition
void
:
so
as
he
,
who
intends
any
unlawful
Act
,
is
still
by
the
Law
crost
in
the
designe
,
or
purpose
,
he
aimes
at
.
140
Interest
Reipublicae
,
ne
maleficia
remaneant
impunita
.
Autre
fois
acquite
,
or
convict
is
no
good
plea
;
because
that
plea
is
allowed
upon
that
Maxime
of
the
Common
Law
,
viz.
that
the
life
of
a
man
shall
not
be
put
in
jeopardy
twice
for
one
and
the
same
offence
;
Howbeit
this
is
intended
upon
a
lawfull
acquital
or
Condition
,
for
otherwise
his
life
was
never
put
in
jeopardy
:
but
when
the
Indictment
or
other
procéeding
against
him
are
insufficient
,
he
may
be
re-indicted
:
For
the
Law
doth
abhorre
,
that
great
offences
should
passe
un-punished
,
according
to
these
ancient
Maximes
of
the
Law
and
State
,
Maleficia
non
debent
remanere
impunita
,
&
impunitus
continuum
affectum
tribuit
delinquendo
,
&
minatur
innocentes
,
qui
parcit
nocentibus
.
Howbeit
if
upon
an
insufficient
Indictment
of
felony
a
man
hath
had
judgment
,
quod
suspendatur
&
collum
,
and
so
is
attainted
,
which
is
the
judgment
and
end
,
that
the
Law
hath
appointed
for
felony
,
in
this
Case
,
he
shall
not
be
again
indicted
and
arraigned
,
until
that
judgment
be
reversed
by
Error
.
Alexander
Pollers
Case
.
and
not
according
to
the
expresse
words
thereof
,
especially
,
when
it
is
to
remedy
a
mischiefe
,
in
advancement
of
Iustice
,
and
for
the
suppressim
of
Crimes
and
heinous
offences
,
of
which
sée
many
examples
in
the
book
at
large
quoted
in
the
margent
.
de
frangend
.
prison
.
albeit
the
party
,
that
escaped
,
be
not
indicted
for
felony
.
In
Banco
Reg.
in
the
Case
of
one
Tripcony
the
Iury
to
the
Nisi
prius
gave
the
Plaintiffe
but
40
l.
damages
for
the
cutting
of
his
right
hand
,
John
Bonham
against
the
Lo.
Sturton
for
slander
,
where
the
damages
were
500
Marks
the
Iustices
said
they
could
not
lessen
them
.
By
the
better
opinion
,
albeit
the
Statutes
of
27
H.
8.
4.
&
28.
H.
8.
15.
141
It
favoureth
Justice
and
right
.
tout
temps
prist
is
a
good
plea
(
before
demand
)
to
barre
the
woman
of
the
meane
values
and
damages
,
because
the
heire
holdeth
by
title
,
El.
cap.
6.
priviment
enseint
with
an
issue
,
and
after
the
issue
is
borne
,
who
entreth
into
the
land
;
In
this
Case
,
he
hath
the
land
by
discent
,
and
yet
thereby
the
Entry
of
the
Disseisée
shall
not
be
taken
away
,
because
(
as
Littleton
saith
)
the
issue
cometh
not
to
the
lands
immediately
by
discent
after
the
decease
of
his
father
:
Likewise
,
if
a
Disseisor
make
a
gift
in
taile
,
the
remainder
in
Fée
,
and
the
Donée
dieth
without
issue
,
leaving
his
Wife
priviment
enseint
with
a
sonne
,
and
he
in
the
remainder
enter
,
and
after
the
sonne
is
borne
,
who
entreth
into
land
,
this
discent
shall
not
take
away
the
entry
of
the
Disseisée
,
causa
qua
suprà
.
Dormit
aliquando
vis
moritur
nunquam
;
(
by
default
.
)
as
for
example
,
whether
a
recovery
being
had
by
default
in
an
Action
of
waste
against
Tenant
in
Dower
or
by
the
Courtesie
,
a
Quod
ei
deforceat
lyeth
by
the
said
Statute
;
but
(
doubtlesse
)
it
doth
:
for
albeit
the
Defendant
may
give
in
evidence
,
if
he
knoweth
it
,
yet
when
he
makes
default
the
Law
presumeth
he
knoweth
not
of
it
,
and
it
may
be
,
that
he
in
truth
knew
not
of
it
;
and
therefore
it
is
reason
,
that
séeing
the
Statute
,
which
is
a
beneficial
Statute
,
hath
given
it
him
that
he
be
admitted
to
his
Quod
ei
deforceat
,
in
which
writ
the
truth
and
right
shall
be
tried
:
Ind
so
it
is
also
of
a
Recovery
by
default
in
an
Assise
,
albeit
the
Recognitors
of
the
Assise
give
a
Verdict
,
a
Quod
ei
deforceat
lyeth
;
and
all
this
,
as
to
this
point
was
resolved
in
P.
33
El.
Rot.
1125.
And
so
the
doubt
in
41
E.
3.
8.
is
well
resolved
:
if
Tenant
for
life
make
default
after
default
,
and
he
in
reversion
is
received
and
pleads
to
issue
,
and
it
is
found
by
Verdict
for
the
Demandant
,
the
default
and
Verdict
are
causes
of
the
judgment
,
and
yet
the
Tenant
shall
have
a
Quod
ei
deforceat
,
in
favour
of
Right
and
Iustice
,
especially
when
the
Statute
intends
him
as
much
.
Grossement
enseint
with
a
Sonne
,
in
this
Case
also
,
the
Daughter
is
remitted
,
and
albeit
the
Sonne
be
afterwards
borne
;
he
shall
not
revest
the
Remitter
.
Tit.
Ancient
demesne
,
16.
an
infant
levied
a
fine
,
36
H.
6.
24.
Pl.
19.
A
fine
levied
of
the
reversion
of
land
holden
in
Capite
without
licence
,
45
E.
3.
6.
or
where
Tenant
in
taile
of
a
reversion
or
remainder
(
before
the
Statutes
of
fines
,
4
H.
7.
&
32
H.
8.
)
had
levied
a
fine
thereof
;
in
all
these
cases
and
the
like
,
the
Tenant
was
not
compellable
to
attorn
,
because
the
Estate
that
passed
by
the
fine
was
not
lawful
,
but
either
prohibited
by
the
Common
Law
,
or
by
some
Statute
,
and
for
the
most
part
were
voidable
.
Ejectione
firmae
g●anted
to
a
Copiholder
.
for
a
yeare
may
maintaine
an
Ejectione
firmae
,
for
in
as
much
as
his
term
is
warranted
by
the
Law
by
force
of
the
general
Custome
of
the
Realme
,
it
is
reason
,
that
,
if
he
be
ejected
,
he
should
have
an
Ejectione
firmae
,
for
that
it
is
a
spéedy
course
for
a
Copi-holder
to
gaine
the
possession
of
the
land
against
a
stranger
;
being
no
more
,
then
what
right
requires
to
be
yielded
unto
him
for
the
recovery
of
his
Estate
.
b.
Greysbrockes
Case
,
Plowd.
277
,
278.
21
E.
4.
24.
To
Executors
prove
the
will
,
and
the
third
refuseth
,
yet
he
may
afterwards
release
,
for
the
ancient
right
,
that
remaines
in
him
,
Litt.
fol.
117.
If
one
be
bound
to
pay
a
summe
at
the
day
to
come
,
before
the
day
he
cannot
bring
an
Action
of
debt
,
yet
a
release
of
all
actions
before
the
day
barres
him
,
because
of
the
present
right
and
duty
that
he
then
had
in
him
.
ad
custodiendum
Recorda
Domini
Regis
,
as
the
Abbot
of
St.
Barthelm
.
in
Smithfield
held
(
as
appeares
in
the
Records
of
the
Tower
in
7
R.
2.
membr.
15.
in
Dorss
.
)
in
these
and
the
like
cases
,
if
the
Lord
purchase
parcel
of
the
tenancy
,
yet
the
whole
service
remaines
,
quia
ista
concernunt
administrationem
Justitiae
.
Alfrid
Denbawds
ca.
albeit
the
title
thereof
is
usually
decem
Tales
,
yet
the
Sheriffe
(
although
there
be
but
one
)
Iuror
appeare
or
all
be
challenged
but
one
)
may
at
first
return
11
to
that
one
,
because
it
is
for
the
spéeding
of
trials
,
and
that
Statute
being
ordained
for
the
furtherance
and
advancement
of
expedition
in
Iustice
shall
have
a
benigne
and
favourable
interpretation
.
31
If
the
King
write
to
the
Iustices
to
prorogue
the
Assise
,
Judgment
si
action
,
whereas
he
ought
to
have
pleaded
non
est
factum
(
Dive
the
Sheriffe
having
taken
a
bond
of
a
man
in
execution
to
secure
himselfe
,
which
was
void
by
the
expresse
words
of
the
Statute
of
23
H.
6.
10.
)
notwithstanding
such
default
in
right
pleading
,
the
Iudges
finding
the
Sheriffe
to
have
no
iust
cause
of
action
(
because
that
Statute
made
the
bond
cléerely
void
)
gave
judgment
against
Dive
the
Plaintiffe
.
So
H.
7.
E.
4.
31.
Fitz.
Title
judgment
,
50.
where
an
action
of
trespass
was
brought
against
T●lly
and
Woddy
for
five
boxes
with
writings
taken
,
&c.
Tilly
pleads
not
guilty
,
and
Woddy
makes
title
to
him
by
a
gift
,
and
the
Plaintiffe
traverseth
the
gift
,
and
upon
these
matters
they
were
at
issue
,
and
Tilly
was
found
guilty
,
and
the
issue
was
found
for
Woddy
and
against
the
Plaintiffe
:
And
here
albeit
the
Issue
was
found
against
Tilly
,
yet
by
the
cléere
opinion
of
the
Court
the
Plaintiffe
shall
not
have
judgment
against
him
,
for
it
was
found
betwixt
the
Plaintiffe
and
Woddy
;
that
the
Plaintiffe
had
no
title
,
and
therefore
the
Iudges
(
ex
officio
)
ought
to
give
judgment
against
him
,
vide
plus
ibid.
Daniel
Nortons
Case
.
37
If
the
Vnder-Sheriffe
Covenant
with
the
High
Sheriffe
,
142
That
,
which
is
not
tortious
in
it selfe
,
cannot
be
tortious
to
any
.
Edw.
Seymers
Case
.
1
If
there
be
Tenant
in
taile
,
Remainder
in
taile
,
I.
S.
in
this
Case
,
by
the
feofment
of
the
bargainée
to
I.
S.
the
Remainder
in
tail
is
not
displaced
or
put
to
a
right
;
for
the
bargainée
had
an
Estate
in
Fée-simple
determinable
upon
the
death
of
the
Tenant
in
taile
without
issue
,
and
when
he
made
the
feofment
his
determinable
Fée-simple
in
possession
and
his
absolute
Fée-simple
expectant
upon
the
Estate
taile
in
remainder
did
pass
and
did
not
devest
the
remainder
:
for
the
feofment
,
which
is
not
tortious
in
it selfe
,
cannot
be
tortious
to
another
.
143.
Interest
Reipublicae
,
ne
Curia
Domini
Regis
deficeret
in
Justicia
exhibenda
.
20
s.
Rent
,
Ne
Curia
Dom.
regis
,
&c.
And
Lex
non
debet
deficere
conquerentibus
in
justicia
exhibenda
;
besides
,
if
they
should
not
joyne
,
they
should
have
damnum
&
injuriam
,
and
yet
should
have
no
remedy
by
Law
,
which
would
be
inconvenient
,
for
the
Law
will
that
in
every
case
where
a
man
is
wronged
and
endamaged
,
that
he
shall
have
remedy
:
Aliquid
conceditur
ne
injuria
remanent
impunita
,
quod
alias
non
concederetur
:
Vide
plus
ibidem
.
Ejectione
firme
,
for
in
as
much
as
hi●
terme
is
warranted
by
the
Law
,
Ejectione
firme
,
for
otherwise
he
should
be
without
remedy
:
And
Interest
reipublicae
,
ne
Curia
,
&c.
Westm
2.
ca.
28
provides
,
Quod
quotiescunque
de
cetero
exercerit
in
Cancelleria
,
Replevin
(
alias
or
pluries
)
that
he
hath
sent
to
the
Bailiff
of
the
Franchise
,
who
hath
made
him
no
return
,
Non
omittas
shall
issue
forth
(
alias
&
pluries
)
to
cause
the
Sheriff
to
enter
the
Liberty
,
and
to
make
returne
;
or
if
the
Bailiff
make
no
return
,
or
will
not
make
deliverance
,
it
seemes
that
by
the
Statute
of
West
.
1.
ca.
27.
upon
such
returnes
the
Sheriff
may
(
without
Writ
)
enter
the
Liberty
and
make
deliverance
of
the
Cattell
,
in
like
manner
as
the
Sheriff
may
do
by
the
Statute
of
Marlebridge
ca.
21.
where
a
plea
De
vetit
.
Nav.
is
in
the
County
by
plaint
before
the
Sheriff
,
and
the
Sheriff
sends
to
the
Bailiff
of
the
Liberty
to
make
deliverance
,
and
he
doth
nothing
,
in
this
case
also
the
Sheriff
may
(
without
Writ
)
enter
the
Liberty
and
do
it
.
Likewise
if
the
Sheriff
upon
a
Pluries
returne
,
that
the
Defendant
hath
conveyed
the
Cattell
into
another
County
,
or
that
he
hath
commanded
the
Bailiff
of
the
Franchise
,
who
returnes
that
the
Cattell
are
eloined
into
divers
Liberties
,
so
that
he
cannot
have
the
view
of
the
cattell
to
make
deliverance
,
or
that
the
Defendant
hath
eloyned
the
Cattell
into
divers
places
unknown
,
or
that
the
Defendant
hath
imparked
them
in
the
Rectory
of
the
Church
of
O.
that
hee
cannot
make
deliverance
,
&c.
Vpon
these
returnes
of
the
Sheriff
the
Plaintiff
shall
have
a
Writ
of
Withernam
,
to
take
so
many
of
the
Defendants
Cattell
,
and
detaine
them
in
Pound
,
untill
the
Defendant
produce
the
Plaintiffes
:
And
all
this
is
,
Ne
Curia
Domini
Regis
,
&c.
Ne
Curia
Regis
,
&c.
Vide
Rule
145.
15.
If
the
Sheriff
returne
Rescous
,
the
party
shall
have
Trovers
,
by
the
word
Convincatur
,
in
West
.
2.
ca.
40.
for
t
&
dure
,
by
the
Statutes
of
27
H.
8.
4.
and
28
H.
8.
15.
Howbeit
,
he
might
have
had
his
Clergy
,
if
he
had
demanded
it
,
by
the
Statute
of
1
E.
6.
12.
where
Piracy
is
not
mentioned
.
144.
It
favoureth
Common
Right
.
Common
Droit
:
In
primes
voet
le
Roy
&
commande
,
que
le
pais
de
saincte
Eglise
,
&
de
la
terre
soit
bien
garde
&
maintaine
en
touts
points
,
&
que
Common
droit
soit
fait
a
touts
,
anxibien
aux
povres
,
come
aux
riches
sans
regard
de
nullus
:
which
agreeth
with
the
ancient
law
of
King
Edgar
,
Porro
autem
has
populo
,
quas
servet
,
proponimus
leges
,
primum
publici
Juris
beneficio
quisquam
fruitur
idque
ex
aequo
&
bono
,
sive
is
dives
sive
inops
fuerit
,
jus
Redditur
.
And
Fleta
saith
,
Item
quod
pax
Eccles●ae
&
terrae
inviolabiliter
observetur
,
&
quod
communis
Justicia
singulis
pariter
exhibeatur
.
Also
all
the
Comissions
and
Charters
for
execution
of
Iustice
,
are
,
Facturi
quod
ad
justiciam
pertinet
secundum
Legem
&
consuetudinem
Angliae
:
So
as
in
truth
Iustice
is
the
Daughter
of
the
law
or
common
right
,
for
the
law
bringeth
her
forth
;
and
in
this
sense
being
largely
taken
,
as
well
the
Statutes
and
Customes
of
the
Realme
,
as
that
which
is
properly
the
common
law
,
is
included
within
Common
Right
.
Wiat
Weilds
case
.
6.
There
is
difference
between
Common
appendant
and
Common
appurtenant
,
for
Common
appendant
may
be
apportioned
,
John
Talbots
case
.
8.
In
most
cases
where
the
Lord
purchaseth
part
of
the
tenancy
(
especially
if
the
tenant
hold
by
an
Intire
service
)
the
whole
service
is
extinct
,
Thomas
Tregors
case
,
upon
the
Statute
of
Westm.
2.
c.
38.
and
Artic.
super
Car.
cap.
9.
Herle
saith
,
Some
Statutes
are
made
against
Law
and
right
,
which
those
that
made
them
,
perceiving
,
would
not
put
them
in
execution
.
The
Statute
of
Westm.
2.
cap.
21.
gives
a
Writ
of
Cessavit
heredi
petenti
super
heredem
tenentem
,
&
super
eos
,
quibus
alienatum
fuerit
hujusmodi
tenementum
.
And
yet
where
in
33
E.
3.
tit
.
Cessavit
42.
there
were
two
Coparceners
Lords
and
Tenant
by
fealty
and
certaine
rent
,
the
one
Coparcener
had
issue
and
dyes
,
the
other
and
the
Neece
could
not
joyne
in
a
Cessavit
,
because
the
heire
could
not
have
a
Cessavit
for
the
Lessee
in
the
time
of
her
Ancestor
(
F.
N.
B.
209.
f.
and
with
this
accords
Plowd
.
Com.
110.
)
and
the
reason
hereof
is
,
because
in
Cessavit
the
tenant
before
judgment
may
render
the
arrerages
and
damages
,
&c.
and
retaine
his
Land
,
and
this
he
cannot
do
when
the
heire
brings
Cessavit
for
the
Lessee
in
the
time
of
his
Ancestor
,
for
the
arrerages
occurred
in
the
life
of
his
Ancestor
belong
not
to
him
;
and
thereupon
,
because
the
sayd
Act
was
against
common
right
and
reason
,
the
common
Law
(
as
to
that
point
)
adjudged
it
voyd
.
Vide
plus
ibidem
.
Quota
pars
,
viz.
decima
pars
(
which
we
call
dismes
or
tythes
)
is
an
Ecclesiasticall
Inheritance
,
collaterall
to
the
estate
of
the
Land
,
a.
Vide
Hob.
107.
The
Bishop
of
Carliles
case
.
Rich.
Godfreys
case
.
and
for
the
private
profit
of
the
Lord
of
the
Leet
,
which
the
Lord
cannot
have
without
prescription
,
and
therefore
as
he
ought
to
prescribe
in
the
principall
,
so
ought
he
to
prescribe
in
the
distresse
:
Howbeit
although
for
an
amerciament
in
a
Court
Baron
the
Lord
cannot
distraine
without
prescription
(
Vide
44
E.
3.
13.
)
yet
for
a
Fine
and
all
amerciaments
in
a
Court
Leet
,
distresse
is
incident
of
common
right
:
And
therefore
if
the
certainty
be
not
duely
payd
,
the
Deciver
or
Capitall
pledge
,
that
collects
it
,
may
first
be
amerced
,
and
then
distrained
for
his
negligence
.
Novel
disseisin
for
Land
,
145.
And
therefore
it
suffereth
things
against
principles
of
Law
,
rather
then
the
party
should
be
without
remedy
.
John
de
Mandevile
by
his
Wife
Roberge
had
issue
Robert
and
Mawde
,
Michael
de
Morvile
gave
certaine
Lands
to
Roberge
,
John
Mandevile
her
late
Husband
on
her
body
begotten
,
and
it
was
adjudged
that
Roberge
had
an
estate
but
for
life
,
and
the
fee-taile
vested
in
Robert
(
heires
of
the
body
of
his
Father
being
a
good
name
of
purchase
)
and
that
when
he
dyed
without
issue
,
Mawde
the
Daughter
was
tenant
in
taile
as
heire
of
the
body
of
her
Father
,
per
formam
doni
,
and
the
Formedon
,
which
shee
brought
supposed
,
Quod
post
mortem
prefatae
Robergiae
,
&
Roberti
filii
&
heredis
ipsius
Johannis
Mandevile
,
&
heredis
ipsius
Johannis
de
prefata
Robergia
per
prefatum
Johannem
procreat
,
prefatae
matildae
filiae
predict
Johannis
de
prefato
de
Robergia
per
prefatum
Johannem
procreatae
sorori
&
heredi
predicti
Roberti
descendere
debet
performam
donationis
predictae
.
And
yet
in
truth
the
land
did
not
descend
unto
her
from
Robert
,
but
because
shee
could
have
no
other
Writ
,
it
was
adjudged
to
be
good
:
In
which
case
it
is
to
be
observed
,
that
albeit
Robert
being
heire
,
tooke
an
estate
by
purchase
,
and
the
Daughter
was
no
heire
of
his
body
at
the
time
of
the
gift
,
yet
shee
recovered
the
land
per
formam
doni
,
by
the
name
of
Heire
of
the
body
of
her
Father
,
which
(
indeed
)
her
brother
was
,
and
was
also
capable
at
the
time
of
the
gift
,
whereas
when
the
gift
was
made
,
shee
tooke
nothing
but
in
expectancy
,
when
shee
should
become
heire
per
forman
doni
:
And
yet
the
law
permits
her
to
have
a
Writ
in
forme
aforesaid
,
least
otherwise
she
should
have
been
without
remedy
.
Quod
tenet
ad
terminum
annorum
,
but
he
shall
have
a
speciall
Declaration
upon
the
truth
of
the
matter
,
and
the
Count
shall
not
abate
the
Writ
;
and
the
reason
is
,
because
he
can
have
no
other
Writ
,
whereby
the
wrong
done
him
may
be
remedied
:
And
therefore
albeit
the
Statute
of
Glocester
ca.
S.
167.
)
Yet
,
besides
,
the
Law
ordained
a
Writ
for
him
called
Ex
gravi
querela
,
and
this
Writ
without
any
particular
usage
was
incident
to
the
custome
to
devise
;
because
otherwise
,
if
a
discent
had
been
cast
before
the
devisee
had
entred
,
the
devisee
had
been
without
remedy
,
there
being
no
other
way
provided
for
him
to
recover
his
land
.
Vide
infr
.
35.
S.
200.
)
because
he
is
a
dead
person
in
Law
:
but
here
the
Law
gives
a
remedy
,
for
in
that
case
the
Abbot
and
Monke
shall
joyne
in
an
Action
against
the
wrong
doer
,
and
if
the
Writ
be
Ad
damnum
ipsius
Priores
,
the
Writ
is
good
,
or
if
it
be
Ad
damnum
ipsorum
,
it
is
good
also
:
yet
in
this
case
the
Abbot
or
Pryor
(
in
his
person
)
was
not
wronged
.
Also
if
a
Monk
were
by
Conspiracy
falsely
and
maliciously
indicted
of
Felony
and
Robbery
,
and
afterwards
was
lawfully
acquitted
,
his
Soveraign
and
he
should
have
joyned
in
a
Writ
of
Conspiracy
,
and
the
like
:
There
is
the
same
Law
also
of
a
Nunne
,
Sanctimonialis
,
mutatis
mutandis
:
And
if
the
Law
did
not
provide
such
a
course
,
they
might
have
been
injured
and
left
without
remedy
.
Feme
Covert
is
disabled
to
sue
without
her
Husband
,
Rob.
Belknap
(
one
of
the
Iustices
of
the
Court
of
Common
Pleas
)
who
was
banished
beyond
Sea
,
did
sue
a
Writ
in
her
own
name
,
without
her
Husband
,
he
being
alive
,
whereof
one
said
:
Ecce
modo
mirum
,
quod
foemine
fert
breve
Regis
Non
nominando
virum
conjunctim
robore
Legis
.
Also
E.
3.
brought
a
Quare
Impedit
against
the
Lady
Maltravers
,
Vide
infr
.
32.
de
medietate
unius
librae
piperis
,
but
not
of
ten
shillings
,
or
de
dimidio
librae
piperis
.
)
And
for
that
these
things
are
in
themselves
severable
:
Howbeit
,
for
an
Hawk
,
Horse
,
or
the
like
,
which
are
intire
,
albeit
they
be
tenants
in
common
,
yet
shall
they
joyne
in
an
Assise
,
because
,
otherwise
,
they
should
be
without
remedy
;
for
,
one
of
them
cannot
make
his
plaint
in
Assise
of
the
moity
of
a
;
Hawk
,
Horse
,
&c.
that
were
against
the
order
of
nature
,
which
the
Law
will
not
suffer
:
and
if
they
should
not
joyne
,
they
should
have
Damnum
&
injuriam
,
and
yet
should
have
no
remedy
by
Law
,
which
would
be
inconvenient
:
for
the
Law
will
,
that
in
every
case
,
where
a
man
is
wronged
and
endamaged
,
that
he
shall
have
remedy
,
Aliquid
conceditur
,
ne
injuria
remaneret
impunita
,
quod
alias
non
concederetur
:
so
also
shall
they
joyne
in
a
Quare
impedit
,
in
a
Writ
of
right
ward
,
or
ravishment
of
ward
for
the
body
,
for
the
same
reason
.
Martin
Trotte
,
32
Eliz.
in
Communi
Banco
,
and
accordingly
was
the
Opinion
of
the
Court
of
Common
Pleas
,
Pasch.
1.
Jac.
To
this
may
be
added
as
a
like
Case
,
The
Kings
Patentee
before
he
enter
,
&c.
by
all
which
you
may
observe
a
diversity
betwixt
a
right
,
for
which
the
Law
giveth
a
remedy
by
action
,
and
a
Title
,
for
the
which
the
Law
giveth
no
remedy
,
but
by
entry
onely
.
de
Minimis
non
curat
Lex
.
20.
Where
a
man
cannot
have
advantage
of
the
speciall
matter
by
way
of
pleading
,
26.
It
is
against
a
Rule
in
Law
,
Vide
R.
54.
Ex.
14.
)
And
yet
if
a
man
be
enfeoffed
with
warranty
to
him
and
his
heires
of
greene
acre
,
Viz.
54.
before
cited
)
that
a
man
should
doe
an
act
to
himselfe
:
And
all
this
least
the
Husband
or
Wife
,
in
their
severall
cases
,
should
be
without
remedy
.
Wil.
Harberts
case
.
29.
Lands
pay
no
debts
.
13
H.
4.
1.
a.
21
E.
3.
55.
and
20
E.
3.
Nonability
8.
And
albeit
before
the
Statute
of
25
E.
3.
ca.
Capias
did
not
lye
in
debt
,
nor
the
body
of
the
Defendant
before
that
Statute
was
subject
to
execution
for
debt
;
yet
in
these
cases
if
the
Defendant
be
taken
by
Capias
ut
lagatum
at
the
Kings
suit
(
no
Laches
being
in
the
Plaintiff
in
continuance
of
his
processe
)
he
shall
be
in
execution
for
the
Plaintiff
,
if
he
will
:
for
albeit
the
property
of
all
the
Defendants
goods
and
profits
of
his
Lands
are
by
the
Outlawry
vested
in
the
King
,
yet
rather
then
the
Plaintiff
should
be
without
remedy
,
he
shall
hold
him
in
execution
for
his
debt
,
and
for
that
reason
he
shall
(
in
such
case
)
participate
of
the
benefit
as
well
as
the
King
.
Anthony
Mildmays
case
.
&
Co.
l.
7.
39.
b.
in
Lillingstons
case
.
32.
If
a
man
by
Deed
grant
a
rent
to
another
for
his
life
,
9
H.
6.
6.
Trevils
Case
.
M●●le
Finches
case
.
34.
Moyle
Finches
case
.
and
part
in
Lease
for
yeares
,
and
he
levies
a
Fine
to
A.
to
the
use
of
B.
in
taile
,
with
divers
remainders
over
:
In
this
case
B.
shall
avow
for
the
rent
,
and
have
an
action
of
Waste
without
any
attornement
:
for
,
when
a
reversion
is
setled
in
any
in
judgement
of
Law
,
and
he
hath
not
any
possible
meanes
to
compell
the
Tenant
to
attorne
,
and
no
Laches
or
default
is
in
him
,
in
such
case
he
shall
avow
and
have
an
action
of
Waste
without
attornement
,
for
the
Rule
is
,
Quod
remedio
destituitur
,
ipsa
re
valet
si
culpa
absit
.
So
in
20
E.
3.
Contra
formam
Collat.
because
the
founder
cannot
have
the
Writ
of
Contra
formam
Collationis
of
an
Advowson
,
he
shall
present
without
any
suit
,
because
otherwise
he
should
be
without
remedy
Likewise
in
7
E.
3.
and
3
H.
7.
A
man
shall
be
Tenant
by
the
Curtesie
,
of
a
rent
or
Advowson
,
albeit
the
woman
dye
before
the
day
incurr
,
or
the
avoydance
fall
:
Also
the
Lord
in
Mortmain
or
of
a
Villaine
claimes
a
reversion
,
by
such
claime
the
Law
vests
the
reversion
in
him
,
and
he
shall
avow
and
bring
an
action
of
Waste
without
attornement
,
because
he
hath
no
meanes
to
compell
the
Tenant
to
attorne
:
There
is
the
same
law
of
Letters
Patents
,
and
of
a
demise
of
a
reversion
,
as
appeares
in
34
H.
6.
for
in
all
these
cases
,
abest
culpa
,
and
the
party
should
be
(
otherwise
)
left
without
remedy
,
Vide
supra
6.
Quare
Impedits
.
Vide
Co.
l.
10.
134.
b.
4.
in
Read
and
Redmans
case
.
the
death
of
the
Patron
shall
not
abate
the
Writ
,
as
it
is
adjudged
in
9
H.
6.
31.
For
here
are
two
mischeifs
,
the
one
if
the
Writ
shall
abate
the
disturbance
shall
be
left
unpunished
,
and
albeit
the
Writ
be
well
commenced
,
yet
the
Plaintiff
shall
be
without
remedy
,
for
there
will
want
a
disturber
:
and
the
other
mischiefe
is
,
if
the
Writ
do
not
abate
,
but
the
Piaintiffe
proceeds
to
Iudgement
and
Execution
,
the
true
Patron
shall
be
out
of
possession
:
And
therefore
in
as
much
as
in
the
one
case
,
if
the
right
Patron
be
put
out
of
possession
,
he
hath
remedy
by
a
Writ
of
right
to
recontinue
the
Advowson
and
in
the
other
case
,
if
the
Writ
shall
abate
,
the
Plaintiff
shall
be
without
remedy
,
which
(
of
the
two
)
is
the
greater
mischiefe
,
for
this
cause
the
Writ
shall
stand
and
shall
not
be
abated
:
with
which
accords
7
H.
4.
20
b.
13
H.
8.
13.
9
H.
6.
57.
For
the
same
reason
it
is
,
that
a
Quare
impedit
brought
by
Coparceners
or
Ioyntenants
shall
not
abate
by
the
death
of
one
of
them
,
or
brought
by
Baron
and
Feme
shall
not
abate
by
the
death
of
the
Feme
:
because
,
otherwise
,
the
Plaintiff
(
if
the
six
moneths
are
past
)
shall
be
without
remedy
,
as
the
Books
are
in
F.
N.
B.
35.
b.
38
E.
3.
43.
37
H.
6.
11.
7
H.
4.
19.
14
H.
4.
12.
9
H.
6.
30.
57.
1
H.
5.
13.
17
E.
3.
11.
7
E.
3.
304.
1
E.
6
7.
was
ordained
,
yet
since
that
Statute
if
an
Originall
were
not
returned
before
the
death
of
the
King
,
it
was
lost
,
for
the
words
of
that
Statute
are
,
Depending
in
any
Court
:
Howbeit
(
at
the
Common
Law
before
that
Statute
)
in
an
Appeale
of
death
,
if
the
Writ
were
delivered
to
the
Sheriff
within
the
yeare
,
and
before
the
returne
thereof
,
or
that
the
Sheriff
doth
any
thing
in
it
,
the
King
dyes
,
and
the
yeare
is
expired
before
the
day
of
the
returne
:
In
this
case
the
common
Law
gave
remedy
to
the
Plaintiff
,
viz.
a
Certiorari
out
of
the
Chancery
returnable
in
the
Kings
Bench
,
and
thereupon
the
Plaintiff
had
re-attachment
,
although
it
came
not
in
by
the
returne
of
the
Sheriff
,
but
by
the
Certiorari
:
And
the
reason
is
,
for
the
necessity
of
the
matter
,
for
(
otherwise
)
the
Plaintiff
,
who
lawfully
purchased
his
Writ
within
the
yeare
without
any
default
in
him
,
shall
lose
his
appeale
,
the
yeare
being
past
:
And
therefore
in
as
much
as
by
act
in
Law
the
Writ
is
discontinued
,
the
Law
gives
a
meane
to
revive
it
,
to
the
end
the
party
should
not
be
without
remedy
:
So
if
a
man
purchase
a
Formedon
against
the
Parnor
of
the
profits
within
a
yeare
after
the
title
accrued
,
if
before
the
returne
of
the
Writ
,
&c.
the
King
demiseth
his
Crowne
,
the
Writ
shall
be
removed
into
the
Common
Bench
by
Certiorari
,
and
thereupon
he
shall
have
a
Resummons
for
the
mischiefe
,
&c.
for
otherwise
he
should
be
left
without
remedy
,
as
is
holden
in
10
E.
4.
13.
b.
and
14.
a.
John
Webs
case
.
39.
It
seemes
incongruous
and
against
reason
,
Novel
disseisin
concerning
the
same
Land
:
And
yet
in
some
cases
(
rather
then
hee
should
be
left
without
remedy
)
he
shall
have
it
:
As
if
the
Lord
,
&c.
distraine
his
tenant
so
often
,
that
he
cannot
manure
his
Land
,
in
this
case
the
ter-tenant
may
have
an
Assise
,
and
the
Writ
shall
be
generall
,
but
he
shall
make
a
speciall
Plaint
,
that
the
Lord
,
&c.
Sovent
fois
distraines
,
&c.
And
the
Iudgement
shall
not
be
,
Quod
querens
recuperabit
seisinam
tenementorum
praedictorum
,
for
the
Plaintiff
himselfe
is
seised
of
the
Land
,
but
the
judgement
shall
be
,
that
he
shall
have
and
hold
the
Land
,
absque
multiplici
districtione
,
&c.
So
likewise
,
in
casu
quo
quis
poscit
alterius
separale
,
The
ter-tenant
shall
have
an
Assise
by
the
common
Law
:
And
the
Statute
of
West
.
2.
ca.
25.
that
gives
an
Assise
of
Novel
disseisin
de
libero
tenemento
in
such
cases
,
is
but
an
affirmance
of
the
common
Law
:
for
in
like
manner
he
shall
have
an
Assise
for
fishing
in
his
severall
Piscary
,
or
for
Turbary
,
Common
,
&c.
and
the
Writ
shall
be
generall
,
as
appeares
by
that
Statute
,
but
the
Plaintiff
in
his
plaint
ought
to
shew
that
the
Defendant
claiming
common
of
pasture
in
his
severall
,
with
his
Cattell
disturbs
him
,
&c.
And
the
Iudgement
shall
not
be
,
that
he
shall
recover
the
seisin
of
the
tenements
,
&c.
but
that
he
shall
have
and
hold
them
in
severalty
,
for
the
Plaintiff
himself
is
already
in
seisin
of
the
frank
tenement
:
In
which
cases
,
and
the
like
,
it
may
be
observed
,
that
the
Iudgement
doth
not
pursue
the
Writ
,
which
(
regularly
)
it
should
,
for
then
it
should
adjudge
him
the
Land
it selfe
,
which
is
needlesse
,
because
he
hath
it
already
:
Howbeit
least
he
should
be
without
remedy
,
it
gives
him
the
Writ
,
by
which
Land
is
usually
recovered
.
Quia
Dominus
remisit
curiam
suam
.
Co.
B.
without
licence
.
viz.
Quia
B.
Capitalis
Dominus
,
&c.
be
put
in
the
Writ
;
yet
because
the
Lord
hath
one
by
a
seignorie
in
grosse
,
and
hath
not
any
demesne
land
to
hold
a
Court
,
and
albeit
the
Lord
never
remitted
his
Court
,
nor
that
there
is
any
matter
apparant
,
or
demurrer
in
Chancery
to
prove
the
assent
and
will
of
the
Lord
to
remit
his
Court
,
yet
the
Writ
returnable
in
the
common
Bench
before
the
Iustices
there
,
is
good
,
and
they
shall
proceed
thereupon
,
if
the
Lord
hath
not
any
Court
to
hold
plea
upon
that
matter
:
And
it
seemes
,
that
the
Lord
shall
not
have
an
Action
against
the
Demandant
for
the
suit
of
that
writ
in
the
Co.
Ba.
if
he
hath
not
a
court
to
hold
plea
thereupon
,
and
to
do
right
to
the
party
,
for
if
the
party
might
not
have
liberty
to
sue
in
the
Co.
Ba.
in
that
case
,
she
should
be
left
without
remedy
:
Howbeit
(
indeed
)
if
the
Lord
had
a
court
to
hold
plea
,
then
he
might
sue
a
Writ
of
Prohibition
to
the
Iustices
of
the
Co.
Ba.
that
they
should
not
proceed
upon
that
Plea
:
but
otherwise
not
.
Quod
permittat
ipsum
praesentare
;
albeit
,
he
had
but
the
nomination
,
for
(
otherwise
)
he
should
be
without
remedy
:
upon
the
same
reason
it
is
,
that
upon
disturbance
to
one
to
present
to
a
priory
or
chantery
donative
to
the
King
or
a
Bishop
,
or
the
like
,
a
Quare
Impedit
lyeth
,
and
the
Writ
shall
be
,
Quod
permittat
ipsum
praesentare
:
and
yet
those
words
are
not
proper
in
such
cases
,
but
because
there
is
no
other
Writ
,
hereby
the
party
may
have
right
done
him
,
rather
than
he
should
be
without
remedy
,
the
Law
permits
that
Writ
to
be
used
.
West
.
2.
And
if
they
have
nothing
,
&c.
then
shall
he
have
Withernam
against
the
Plaintiff
for
the
beasts
of
the
Plaintiff
:
because
(
otherwise
)
he
should
be
without
remedy
.
Vide
Sup.
31.
48.
Next
to
life
,
(
Vide
Max.
92.
)
so
as
at
the
common
Law
a
Capias
lay
not
but
in
case
of
Trespasse
,
vi
&
armis
,
Felony
,
&c.
yet
if
an
English
Merchant
hath
his
goods
taken
away
from
him
beyond
Sea
by
a
Merchant
stranger
,
and
there
he
prosecutes
the
Law
to
have
Iustice
done
him
and
restitution
,
and
cannot
have
it
,
and
this
matter
is
testified
to
the
King
in
his
Chancery
by
credible
witnesses
:
upon
such
bare
testimony
(
parte
in
audita
altera
)
if
such
Merchant
stranger
come
afterwards
into
England
with
goods
,
both
body
and
goods
shall
be
arrested
and
detained
,
untill
the
party
greived
be
satisfied
all
his
damages
,
by
Writ
out
of
the
Chancery
,
to
be
directed
to
the
Officers
or
Merchants
strangers
of
the
place
where
he
is
,
or
hath
goods
:
for
(
otherwise
)
the
English
Merchant
should
be
without
remedy
:
And
such
Writs
may
issue
to
the
severall
Ports
,
where
the
Merchant
stranger
hath
any
goods
,
to
each
of
them
one
,
&c
,
31
E.
3.
11.
and
the
Ordinary
may
commit
the
Administration
of
the
goods
and
credits
,
when
he
pleaseth
:
but
before
that
Statute
Fitzharbert
seemes
to
be
of
opinion
,
that
he
might
,
because
it
is
requisite
,
some
person
should
have
that
power
:
for
(
otherwise
)
the
intestates
debts
could
never
have
been
recovered
.
50.
If
the
Lessor
let
the
terme
by
Deed
pol
,
and
afterwards
out
the
Lessee
,
Westm.
2.
cap.
3.
yet
ancient
Authors
,
who
wrote
before
that
Statute
,
do
speake
of
such
a
kinde
of
receipt
at
the
Common
Law
;
for
otherwise
the
Feme
would
be
without
remedy
.
8
Ed.
3.
Judgement
225.
the
Defendant
in
an
appeale
of
death
did
wage
Battell
and
was
slaine
in
the
Feild
,
yet
Iudgement
was
afterwards
given
that
he
should
be
hanged
,
and
the
Iustices
sayd
,
such
Iudgement
was
necessary
;
because
otherwise
the
Lord
could
not
have
a
Writ
of
Escheate
,
and
so
would
be
without
remedy
.
Vide
Max.
149.
41.
57.
Vide
143.
15.
Cestuy
que
use
,
so
as
the
Feoffees
held
the
land
,
and
not
B.
Here
,
this
variance
is
no
Error
,
because
the
Statute
of
4
H.
7.
which
gives
the
wardship
of
Cestuy
que
use
appoints
no
speciall
Writ
for
it
,
and
therefore
the
generall
Writ
and
speciall
Count
suffiseth
;
for
otherwise
the
Lord
should
be
without
remedy
,
which
the
Law
will
not
permit
:
So
in
a
Warrantia
Cartae
,
the
words
of
the
Writ
are
Unde
cartam
habet
,
and
yet
the
Count
may
be
upon
warranty
for
Homage
Ancestrel
.
(
Quia
Dominus
remisit
Curia
,
Procheine
amie
,
who
was
admitted
by
the
Court
,
and
upon
the
Tenants
voucher
and
default
of
the
Vouchee
shee
had
judgement
finall
,
&c.
without
her
Husbands
appearing
in
the
action
.
Vide
supra
10.
See
the
Book
at
large
.
Quare
impedit
,
7
H.
6.
35.
because
they
cannot
write
to
the
Bishop
:
And
the
reason
is
,
because
the
Common
Law
being
as
ancient
as
their
priviledge
is
,
will
not
endure
that
by
pretence
of
Priviledges
there
should
be
a
Failer
of
Originall
Right
,
as
that
case
is
:
Howbeit
,
of
new
rights
or
remedies
brought
in
by
Statutes
(
which
are
not
presumed
to
intend
their
prejudice
)
it
is
otherwise
.
146.
It
hateth
Wrong
.
Merton
,
cap.
6.
being
but
an
affirmance
of
the
Common
Law
.
&c.
50
E.
3
,
2.
The
Demandant
and
others
in
a
Precipe
did
disseise
the
Tenant
to
the
use
of
the
others
,
and
the
Writ
did
not
abate
,
for
the
Demandant
was
a
Disseisor
,
though
not
Tenant
of
the
land
,
but
onely
a
Coadjutor
,
and
therefore
an
Assise
lyeth
against
him
,
in
respect
of
the
wrong
done
by
him
,
as
aforesaid
.
A
man
disseiseth
Tenant
for
life
to
the
use
of
him
in
the
reversion
,
and
after
the
Reversioner
agreeth
to
the
disseisin
:
In
this
case
it
is
sayd
,
That
the
Reversioner
is
a
Disseisor
in
fee
,
because
by
the
disseisin
made
by
the
stranger
,
the
reversion
was
devested
,
which
(
say
they
)
cannot
be
reversed
by
the
agreement
of
the
Reversioner
,
for
that
makes
him
a
wrong
doer
,
and
therefore
no
relation
of
an
estate
by
wrong
can
helpe
him
.
per
my
&
per
tout
,
is
thereby
capable
of
the
whole
estate
:
It
is
so
also
of
two
joynt
Abators
or
Intruders
,
which
come
in
meerely
by
wrong
;
for
by
operation
of
Law
,
presently
upon
the
delivery
of
the
Release
,
the
whole
Freehold
and
Inheritance
is
vested
in
the
Releasee
,
and
all
the
estate
that
the
other
Disseisor
,
Abator
,
or
Intruder
hath
who
hath
devested
;
because
right
and
wrong
cannot
consist
together
,
but
the
wrongfull
estate
giveth
place
to
the
rightfull
.
Vide
141.
13.
Entry
in
the
per
&
cui
,
but
it
ought
to
be
upon
a
lawfull
descent
or
alienation
;
And
therefore
an
Abatement
,
intrusion
,
or
disseisin
upon
disseisin
make
no
degree
.
forcible
Entry
upon
the
Statute
8
H.
6.
9.
Glocester
cap.
3.
6
E.
1.
tort
.
viz.
by
disseisin
:
For
(
regularly
)
the
Conveyance
,
whereunto
such
warranty
is
annexed
,
doth
worke
a
disseisin
:
As
if
the
Father
or
other
Ancestor
be
Tenant
of
the
Sons
or
Heires
Land
for
years
,
at
will
,
by
Elegit
,
Statute-merchant
,
or
Statute-staple
,
and
the
Father
or
other
Ancestor
makes
a
Feoffment
in
fee
of
the
Land
to
a
stranger
with
warranty
,
this
warranty
shall
not
bar
the
Heire
,
unlesse
he
have
other
Lands
,
that
may
be
assets
,
by
descent
from
the
same
Father
or
other
Ancestor
respectively
,
in
all
which
cases
the
disseisin
is
immediately
to
the
heire
:
Howbeit
in
some
cases
,
albeit
the
disseisin
be
not
done
immediately
to
the
heire
,
yet
the
warranty
shall
not
bar
him
:
As
if
the
Father
be
Tenant
for
life
,
the
Remainder
to
the
Son
in
fee
,
the
Father
by
covin
and
consent
maketh
a
Lease
for
years
,
to
the
end
that
the
Lessee
shall
make
a
Feoffment
in
fee
,
to
whom
the
Father
shall
release
with
warranty
,
and
all
is
executed
accordingly
,
the
Father
dyeth
,
this
warranty
shall
not
binde
,
albeit
the
dis●eisin
was
not
done
immediatly
to
the
Son
,
for
the
Feoffment
of
the
Lessee
is
a
disseisin
to
the
Father
,
who
is
particaps
criminis
:
So
it
is
,
if
one
brother
make
a
gift
in
tail
to
another
,
and
the
Vncle
disseise
the
Donee
,
&
enfeoffeth
another
with
warranty
,
the
Vncle
dyeth
,
and
the
warranty
descendeth
upon
the
Donor
,
and
the
Donee
dyeth
without
issue
:
here
,
albeit
the
disseisin
was
done
to
the
Donee
,
and
not
to
the
Donor
,
yet
the
warranty
shall
not
bind
him
.
The
Father
,
the
Son
,
and
a
third
person
,
are
Ioynt-tenants
in
fee
,
the
Father
maketh
a
Feoffment
in
fee
of
the
whole
with
warranty
&
dyeth
,
the
Son
dyeth
,
the
3.
person
shall
not
only
avoid
the
Feoffment
for
his
own
part
,
but
also
for
the
part
of
the
son
,
&
he
shall
take
advantage
that
the
warranty
commenced
by
disseisin
,
though
the
disseisin
be
done
to
another
.
If
a
man
commit
a
disseisin
to
the
intent
to
make
a
Feoffment
in
fee
with
warranty
,
albeit
he
make
the
Feoffment
many
years
after
the
disseisin
,
yet
because
the
warranty
was
done
to
that
intent
and
purpose
,
the
Law
shall
adjudge
upon
the
whole
matter
,
and
by
the
intent
couple
the
disseisin
and
warranty
together
:
And
all
this
,
because
such
disseisins
commence
by
wrong
:
So
it
is
also
of
a
warranty
that
commenceth
by
abatement
or
intrusion
(
that
is
when
the
abatement
or
intrusion
is
made
of
intent
to
make
a
Feoffment
in
fee
with
warranty
)
for
neither
shall
that
bind
the
right
heire
no
more
then
a
warranty
that
commenceth
by
disseisin
,
because
they
do
also
commence
by
wrong
:
Likewise
,
if
the
Tenant
dyeth
without
heire
,
and
the
Ancestor
of
the
Lord
enter
before
the
entry
of
the
Lord
,
and
make
a
Feoffment
in
fee
with
warranty
,
and
dyeth
,
this
Warranty
shall
not
bind
the
Lord
,
because
it
commenceth
also
by
wrong
,
being
in
the
nature
of
an
Abatement
,
Et
sic
de
similibus
.
Glocester
cap.
3.
6
E.
1.
(
whereof
no
Fine
is
levied
in
the
Kings
Court
)
are
to
be
understood
lawfully
levied
;
And
therefore
if
the
Baron
will
levy
a
Fine
of
the
Femes
Land
without
the
Feme
,
the
Iudges
(
being
conusant
thereof
)
ought
not
to
take
it
;
because
it
worketh
a
wrong
to
the
Feme
,
and
if
it
be
with
warranty
to
the
heire
also
:
Neither
(
indeed
)
ought
the
Iudges
to
take
a
Fine
,
which
worketh
a
wrong
to
a
third
person
.
Eliz.
inter
Rouse
and
Arteis
.
who
are
in
by
lawfull
title
,
though
it
be
onely
for
years
,
by
Statute
Merchant
,
Staple
,
or
Elegit
,
at
will
,
for
wardship
in
Chivalry
,
&c.
may
hold
Courts
,
make
admittances
,
and
grant
voluntary
Copies
of
antient
Copyhold
lands
,
which
come
into
their
hands
,
and
such
voluntary
grants
by
Copy
made
by
such
particular
Tenants
,
as
aforesaid
,
shall
bind
him
that
hath
the
Freehold
and
Inheritance
,
because
all
these
be
lawfull
Lords
pro
tempore
:
Also
Disseisors
,
Abators
,
Intrudors
,
Tenants
at
sufferance
,
&c.
of
such
Mannors
,
who
come
in
by
tort
,
and
hold
by
defeasible
titles
,
may
hold
Courts
,
and
make
admittances
of
ancient
Copyhold-lands
which
shall
stand
good
against
them
that
right
have
:
because
these
are
lawfull
acts
,
and
they
are
compellable
to
do
them
:
But
voluntary
Grants
by
Copy
made
by
Disseisors
,
Abators
,
Intrudors
,
Tenants
at
sufferance
,
or
others
,
that
have
defeasible
titles
,
shall
not
bind
the
Disseisee
,
or
others
,
that
right
have
,
because
they
come
in
by
tort
,
as
aforesaid
.
Rowland
Heywa●ds
case
.
to
have
and
hold
the
one
for
life
,
and
the
other
in
tail
:
In
this
case
,
the
Feoffee
hath
election
to
chose
,
which
he
shall
have
for
life
,
and
which
in
tail
:
Howbeit
,
if
before
his
election
he
makes
Feoffment
in
fee
of
both
the
acres
:
In
such
case
,
the
Feoffor
shall
enter
into
which
of
the
acres
he
pleaseth
for
the
Forfeiture
,
for
the
Feoffee
by
his
own
act
and
the
wrong
done
to
the
Feoffor
hath
lost
his
election
.
Estopell
to
plead
partes
finis
nihil
habuerunt
.
for
life
from
a
day
to
come
,
the
Lessee
for
years
atturnes
after
the
day
,
the
terme
expires
,
and
A.
enters
and
leases
at
will
,
the
Lessee
for
life
levies
a
Fine
Come
ceo
,
&c.
to
the
Tenant
at
will
,
and
then
the
Remainder
enters
for
the
Forfeiture
:
In
this
case
,
the
Fine
levyed
to
the
Tenant
at
will
is
a
Forfeiture
,
and
the
Remainder
may
thereupon
well
enter
upon
the
Tenant
at
will
,
and
thereby
charge
the
disseisin
;
And
here
,
albeit
neither
the
Tenant
for
life
,
nor
the
Tenant
at
will
have
any
thing
in
the
Land
(
for
the
interest
of
the
Tenant
for
life
is
past
away
to
A.
and
the
title
of
the
Tenant
at
will
,
is
of
little
or
no
consideration
in
Law
,
and
also
vanisheth
,
because
derived
from
A.
who
had
no
interest
,
because
granted
in
futuro
,
and
therefore
void
)
yet
both
of
them
are
estopt
to
say
,
Quod
partes
finis
nihil
habuerunt
;
And
of
such
estoppels
,
which
are
by
matter
of
Record
,
and
trench
to
the
wrong
and
disherision
of
those
in
Remainder
or
Reversion
,
they
shall
take
advantage
,
albeit
they
are
not
parties
thereunto
;
as
of
an
Ayde
prier
of
a
stranger
,
or
by
acceptance
of
a
Fine
Sur
conusans
de
droit
come
ceo
,
&c.
albeit
the
Reversioner
or
Remainder
be
not
partie
to
the
Record
,
yet
he
is
privy
in
estate
to
take
advantage
of
a
Forfeiture
by
any
matter
of
Record
done
to
his
disherison
.
(
Vide
Litt.
fol.
15.
)
for
when
Tenant
at
will
takes
upon
him
to
do
unlawfull
Acts
,
and
such
as
none
may
do
but
the
owner
of
the
Land
,
they
amount
to
a
determination
of
the
will
,
and
of
his
possession
,
and
the
Lessor
(
in
such
case
)
shall
have
a
generall
Action
of
Trespasse
without
any
Entry
:
Religion
,
Justice
,
and
Truth
are
the
sure
supporters
of
the
Diadems
of
Kings
:
And
therefore
it
is
agreed
in
35
H.
6.
60.
that
the
King
shall
be
bound
by
the
Statute
of
West
.
2.
cap.
5.
which
makes
provision
against
tortious
usurpations
,
although
the
King
be
not
named
in
the
Act
:
So
in
the
Lord
Barkleys
case
(
reported
by
Master
Plowden
)
if
a
gift
in
tail
be
made
to
the
King
,
he
shall
not
alien
to
defraud
him
in
the
Reversion
or
his
Issues
,
but
is
bound
by
the
Statute
of
West
.
2.
de
donis
conditionalibus
.
Anthony
Mildmays
cases
.
Co.
Inst.
pars
1.
223.
b.
4.
upon
condition
that
he
shall
not
alien
,
this
condition
to
some
intent
is
good
,
and
to
other
some
void
;
for
if
he
make
a
Feoffment
in
fee
,
or
any
other
estate
,
whereby
the
Reversion
is
discontinued
tortiously
,
the
Donor
shall
enter
for
the
condition
broken
;
for
every
act
,
that
is
prohibited
by
Law
,
or
maketh
a
tort
,
a
man
may
prohibit
by
condition
(
Vide
10
H.
7.
11.
)
Howbeit
if
in
such
case
the
Donee
suffer
a
common
Recovery
,
the
condition
cannot
by
the
Law
extend
to
it
,
because
that
is
lawfull
,
whereas
the
other
is
tortious
and
against
Law
:
So
if
Feoffment
be
made
to
Baron
and
Feme
in
fee
,
upon
condition
,
that
they
shall
not
alien
:
in
this
case
,
they
are
not
thereby
restrained
to
alien
by
levying
a
Fine
both
of
them
together
,
because
that
is
lawfull
and
incident
to
their
estate
;
but
they
cannot
alien
by
Deed
,
because
that
is
tortious
and
against
Law
:
likewise
,
if
a
man
enfeoff
an
Infant
in
fee
,
upon
condition
,
that
he
shall
not
alien
,
this
shall
not
restraine
him
to
alien
at
his
full
age
,
for
that
were
repugnant
to
the
liberty
,
that
the
Law
gives
in
case
of
Fee-simple
(
according
to
Litt.
fo.
84.
a.
)
Howbeit
such
a
condition
shall
restraine
him
from
aliening
during
his
non-age
,
for
that
is
tortious
and
against
Law
,
and
thereupon
the
Feoffor
shall
enter
,
&c.
Moyle
Finches
case
.
Rich.
Lifords
case
.
and
the
Feoffee
cuts
down
Trees
,
Grasse
,
grain
,
growing
upon
the
ground
,
&c.
if
the
Disseisee
re-enter
,
he
shall
not
have
an
Action
of
trespass
vi
&
armis
against
the
Feoffee
,
that
came
in
by
title
;
so
it
is
also
if
he
had
made
a
gift
in
tail
or
a
lease
for
life
or
years
of
the
Land
,
because
they
come
in
by
title
,
but
in
such
case
the
Disseisee
shall
recover
all
the
meane
profits
against
the
Disseisor
,
as
the
Disseisee
(
in
such
cases
)
should
have
recovered
damages
against
the
Disseisor
in
an
Assise
at
the
common
Law
before
the
Statute
of
Glocester
cap.
1.
There
is
the
same
Law
also
,
if
the
Disseisor
be
disseised
,
an
Action
of
Trespasse
doth
not
lye
against
the
second
Disseisor
,
for
he
may
come
in
by
title
,
and
if
he
should
be
charged
,
he
might
then
be
doubly
charged
,
viz.
both
by
the
Disseisee
and
also
by
the
first
Disseisor
;
and
this
fiction
of
Law
,
that
the
Frank-tenement
hath
alwayes
continued
in
the
Disseisee
(
which
ought
to
be
the
ground
of
the
Action
of
Trespass
)
shall
not
have
relation
to
make
him
,
that
comes
in
by
title
,
or
upon
a
second
Disseisin
to
be
a
wrong-doer
,
against
whom
an
Action
of
Trespass
may
be
brought
:
Howbeit
,
if
one
disseise
me
,
and
during
the
Disseisin
he
cuts
down
the
Trees
,
Grass
,
graine
,
&c.
and
after
I
re-enter
;
in
this
case
,
I
shall
have
an
Action
of
Trespass
vi
&
armis
against
him
for
the
Trees
,
Grass
,
Graine
,
&c.
for
after
my
regress
the
Law
(
by
fiction
)
as
to
the
Disseisor
and
his
Servants
supposeth
that
the
Frank-tenement
hath
alwayes
continued
in
me
,
and
he
onely
(
by
construction
of
Law
)
shall
be
adjudged
the
wrong-doer
,
which
fiction
cannot
extend
to
him
that
comes
in
by
title
,
or
upon
a
second
Disseisin
,
&c.
Magdalen
Colledge
case
.
21.
The
Statute
of
West
.
2.
cap.
5.
24
E.
3.
41.
That
the
Law
is
reason
and
equity
to
doe
right
to
all
,
and
to
preserve
men
from
wrong
and
mischeif
,
for
the
Law
will
never
make
construction
against
Law
,
Equity
and
Right
.
23
H.
6.
10.
M.
2.
H.
4.
fol.
9.
Fitz.
Obligation
13.
and
Br.
20.
)
the
Obligation
is
void
,
for
the
Writ
of
Withernam
is
,
Capias
in
Withernam
,
&c.
et
ea
detineas
quousque
,
&c.
so
as
the
Sheriff
ought
to
have
kept
the
Cattell
,
and
not
to
have
delivered
them
to
the
party
,
for
that
was
a
wrong
,
and
therefore
the
Obligation
made
to
defend
him
for
that
wrong
is
void
.
147.
So
as
none
shall
take
benefit
or
advantage
of
their
own
wrong
.
the
Donees
and
their
issues
shall
do
to
the
Donor
and
his
heires
such
services
,
as
the
Donor
doth
to
his
Lord
Paramont
:
And
yet
if
a
man
seised
in
right
of
his
wife
of
Land
holden
by
Knight-service
in
tail
,
that
Land
generally
,
the
Donee
shall
not
hold
of
him
by
Knight
service
;
because
his
wife
held
the
land
,
and
he
had
nothing
but
in
her
right
,
and
(
in
that
case
)
the
Baron
having
gained
a
new
Reversion
by
wrong
shall
not
take
advantage
of
his
owne
wrong
,
but
such
a
Donee
shall
only
hold
by
Fealty
,
which
is
incident
to
all
tenures
.
per
Thorpe
.
which
he
seeth
then
within
his
fee
,
and
the
Tenant
or
any
other
(
in
his
behalfe
)
to
prevent
the
Lord
to
distrain
,
drive
the
Cattell
out
of
the
Lords
fee
into
some
other
place
,
yet
may
the
Lord
freshly
follow
,
and
distraine
the
Cattell
,
and
the
Tenant
cannot
make
rescous
,
albeit
the
place
,
in
which
the
Distress
is
taken
,
is
out
of
his
fee
:
for
if
by
such
a
shift
the
Tenant
might
prevent
the
Lord
of
his
Distress
,
he
should
take
advantage
of
his
own
wrong
And
therefore
in
such
case
in
Iudgment
of
Law
the
Distresse
is
taken
within
his
fee
,
and
so
shall
the
Writ
of
Rescous
suppose
,
in
case
the
Cattell
be
rescued
:
but
it
is
otherwise
of
cattell
to
be
distrained
for
Damage-feasant
,
for
they
must
be
Damage-feasant
at
the
time
of
the
Distress
.
J.
S.
shall
marry
J.
G.
before
such
a
day
,
and
before
the
day
B.
marry
with
J.
he
shall
never
take
advantage
of
the
Bond
,
for
that
he
himself
is
the
mean
,
that
the
Condition
could
not
be
performed
.
Voluntarius
Daemon
,
then
non
compos
mentis
.
S.
525.
)
or
(
as
others
call
it
)
by
way
of
Reversion
;
but
however
it
enures
to
him
by
way
of
encrease
or
inlargement
of
estate
,
or
otherwise
,
he
is
seised
of
an
estate
for
life
in
the
Land
:
And
yet
in
this
case
,
if
the
Husband
commit
waste
,
an
Action
of
waste
shall
lye
against
Husband
and
Wife
,
notwithstanding
the
meane
Remainder
,
because
the
Husband
himselfe
committeth
the
waste
and
doth
the
wrong
,
and
therefore
shall
not
excuse
himselfe
for
his
committing
of
waste
,
in
respect
he
himselfe
hath
the
Remainder
,
no
more
then
if
a
man
leaseth
to
A.
during
the
life
of
B.
the
Remainder
to
him
during
the
life
of
C.
if
he
commit
waste
,
an
Action
of
waste
shall
lye
against
him
.
16.
A.
Tenant
for
life
,
the
Remainder
to
B.
for
life
,
B.
A.
and
B.
joyne
in
a
Feoffment
by
Deed
;
here
,
albeit
it
may
be
said
,
that
this
is
the
Feoffment
of
A.
and
the
confirmation
of
B.
and
consequently
he
in
the
Remainder
in
tail
cannot
enter
for
the
forfeiture
during
the
life
of
B.
yet
because
B.
joyned
in
the
Feoffment
,
which
was
tortious
to
him
in
the
Remainder
in
taile
,
and
is
particeps
criminis
,
they
have
both
forfeited
their
estates
,
and
he
in
the
Remainder
in
tail
shall
enter
for
the
forfeiture
.
18.
A.
and
B.
Ioynt-tenants
are
entitled
to
a
reall
Action
against
the
Heire
of
the
Disseisor
,
A.
causeth
the
heire
to
be
disseised
,
19.
A.
deviseth
Land
to
his
Wife
,
23.
A.
possessed
of
divers
parcells
of
Land
within
the
Mannor
of
S.
for
years
,
at
will
,
and
by
copy
,
and
also
of
others
there
in
fee
,
B.
&c.
of
so
many
acres
as
amount
to
the
whole
Land
,
continues
possession
,
and
payes
the
rents
to
the
Lord
:
In
this
case
,
albeit
five
yeares
passe
,
yet
the
Lord
is
not
barred
:
for
it
is
unreasonable
to
give
the
Lessee
benefit
(
in
this
case
)
of
the
Lessors
non-claime
,
when
the
tort
and
covin
of
the
Lessee
is
the
cause
of
his
non-claime
,
for
a
man
shall
not
take
advantage
of
his
owne
covin
or
wrong
.
Anthony
Corbe●s
case
.
24.
A.
deviseth
his
Land
to
B.
till
eight
hundred
pounds
be
raised
for
the
preferment
of
his
Daughters
,
and
dyes
,
25.
A.
demiseth
a
Close
to
B.
wherein
there
is
a
Colemine
un-opened
,
26.
If
A.
grants
to
B.
one
hundred
cords
of
wood
to
be
cut
downe
and
taken
by
the
assignment
of
A.
If
A.
in
convenient
time
after
request
by
B.
do
not
assigne
them
,
B.
may
take
them
himselfe
without
any
assignment
,
Thomas
Palmers
case
.
for
the
Grantor
(
in
such
case
)
by
his
own
act
or
default
shall
not
derogate
from
his
grant
,
nor
take
advantage
by
such
his
neglect
of
non-assignment
;
there
is
the
same
Law
of
Estovers
,
&c.
to
be
assigned
by
the
Bayliff
of
a
Mannor
,
&c.
29.
A.
hath
Iudgement
in
an
Action
of
debt
upon
an
Obligation
,
30.
A.
and
B.
are
Ioynt-tenants
for
life
,
31.
A.
recovers
against
B.
in
the
Common
Pleas
,
and
dyes
,
London
,
die
lunae
proximum
post
festum
Simonis
&
Judae
,
and
thereupon
P.
is
taken
by
a
Capias
Utlagatum
in
Norfolke
,
and
there
imprisoned
,
whereupon
B.
brings
an
Action
upon
the
case
against
C.
Quia
maliciose
&
deceptive
machinatus
est
,
&c.
And
in
this
case
it
was
objected
,
that
the
Capias
Utlagatum
was
erronious
,
because
the
Outlawry
was
therein
recited
to
be
proximum
ante
festum
,
&c.
but
that
exception
was
not
allowed
,
because
the
error
in
the
Writ
,
which
the
Defendant
C.
had
tortiously
pursued
,
shall
give
no
advantage
to
himselfe
:
but
in
as
much
as
B.
the
Plaintiff
was
imprisoned
and
molested
thereby
,
he
had
thereupon
good
cause
of
Action
.
6.
Rep.
fo.
55.
But
if
he
make
resistance
,
and
obey
not
their
warrant
,
they
are
not
bound
to
shew
it
,
nor
,
&c.
and
if
then
any
of
them
be
killed
,
it
is
murder
:
for
the
Prisoner
shall
not
in
such
case
take
advantage
of
his
own
wrong
.
Lewes
Bowles
case
.
37.
If
a
Tenant
for
life
or
years
fell
Timber
Trees
,
Judgement
f●action
,
and
this
was
held
a
good
Plea
,
because
the
reason
why
the
Plaintiff
did
not
enjoy
the
Land
was
caused
by
his
own
act
,
which
in
this
case
shall
not
worke
to
his
advantage
:
So
if
the
Obligee
had
been
Tenant
at
the
Common
Law
,
and
had
ceased
,
the
Obligation
had
been
saved
,
for
that
it
was
the
act
of
the
Plaintiff
himselfe
.
148.
And
therefore
the
Law
of
it self
prejudiceth
none
.
Vide
M.
128.
E.
2.
)
Howbeit
for
rent
,
nothing
can
be
distrained
in
the
night
time
,
or
which
cannot
be
rendred
in
as
good
plight
,
as
it
was
in
at
the
time
of
the
Distresse
taken
,
as
sheaves
or
shocks
of
Corne
,
or
the
like
,
cannot
be
distrained
for
rent
,
because
when
a
Distresse
is
made
for
rent
it
is
in
the
custody
of
the
Law
,
and
repliviable
,
and
during
the
time
it
so
remains
,
the
Law
will
not
suffer
the
owner
thereof
to
suffer
prejudice
by
the
detainer
,
and
(
in
such
case
)
there
is
no
such
necessity
,
but
that
the
Distresse
may
be
made
in
a
seasonable
time
,
and
of
convenient
goods
:
Howbeit
Wagons
or
Carts
loaden
with
graine
(
Horses
and
all
)
may
be
distrained
for
rent
,
because
they
may
be
restored
in
the
same
condition
they
were
in
,
when
they
were
taken
:
And
yet
Beasts
belonging
to
the
Plough
(
averria
carucae
)
shall
not
be
distrained
,
nor
any
Vtensils
or
Instruments
of
a
mans
Trade
or
Profession
,
as
the
Axe
of
the
Carpenter
,
the
Books
of
a
Scholler
,
&c.
while
other
Beasts
or
Goods
(
which
Bracton
calls
animalia
,
or
catalla
otiosa
)
may
be
distrained
,
for
that
were
un-charitable
and
an
injury
to
the
publique
,
whereof
the
Law
(
if
possibly
it
may
be
otherwise
)
will
not
be
guilty
.
Vide
plus
ubi
supra
.
Anic
.
super
carta
,
cap.
15.
28.
E.
1.
6.
Before
the
Statute
of
Articuli
super
cartas
,
Cesty
que
vie
dyeth
,
Cesty
que
vie
,
because
the
Rent
charge
did
determine
by
the
act
of
God
and
the
course
of
law
,
Actus
Legis
nemini
facit
injuriam
:
So
it
is
also
,
if
land
,
out
of
which
a
Rent-charge
is
granted
,
be
recovered
by
an
eyent
title
,
and
thereby
the
Rent-charge
is
avoyed
,
yet
the
Grantee
shall
have
a
Writ
of
Annuity
,
because
the
Rent-charge
is
avoyded
by
the
course
of
law
,
and
so
it
was
holden
in
Wards
case
,
cited
in
Co.
l.
2.
fo.
36.
in
Heywards
case
,
against
an
opinion
obiter
in
6
H.
6.
42.
a.
Vide
Max.
114.
Ex.
13.
sans
number
in
twenty
Acres
of
land
,
sans
number
not
apportioned
.
and
ten
of
these
Acres
descend
to
A.
the
common
sans
number
is
intire
and
uncertaine
,
and
cannot
be
apportioned
,
but
shall
remaine
,
but
if
it
had
been
a
Common
certaine
(
as
for
ten
Beasts
)
in
that
case
the
Common
●●●dition
shall
be
apportioned
;
And
so
it
is
also
of
common
of
Estovers
,
Turbary
,
Piscary
,
&c.
And
it
is
to
be
observed
,
that
in
none
of
these
cases
,
or
the
like
,
the
descent
,
which
is
an
act
in
Law
,
shall
worke
any
wrong
to
the
Ter-tenant
;
for
(
neverthelesse
)
he
shall
have
thereby
that
which
belongeth
to
him
,
for
the
Act
in
Law
shall
never
worke
any
wrong
.
sans
number
:
for
(
in
these
cases
and
the
like
)
if
Estovers
,
Common
,
Piscary
,
or
Corody
uncertaine
should
be
partable
amongst
Sisters
,
such
partition
would
worke
a
wrong
to
the
Ter-tenant
,
&c.
vide
pl.
ibid.
Legis
Constructio
nunquam
facit
injuriam
.
pur
anter
vie
,
bring
an
Assize
,
and
Cestuy
que
vie
dyeth
,
Ejectione
fi●me
.
hanging
the
Writ
,
here
albeit
the
Writ
were
well
commenced
,
yet
the
Writ
shall
abate
because
no
Assize
can
be
maintainable
for
damages
only
:
but
where
an
Action
is
begun
,
and
part
of
the
Action
determineth
by
Act
in
Law
,
and
yet
the
like
Action
for
the
residue
is
given
,
there
the
Writ
shall
not
abate
but
proceed
;
As
if
an
Action
of
Waste
be
brought
against
Tenant
per
anter
vie
,
and
hanging
the
Writ
Cestuy
que
vie
dyeth
,
the
Writ
shall
not
abate
,
but
the
Plaintiff
shall
recover
damages
,
because
if
Cestuy
que
vie
had
dyed
before
any
Action
brought
,
the
Lessor
might
hade
had
an
Action
of
Waste
for
the
damages
,
and
the
Act
in
Law
shall
not
prejudice
him
:
So
in
an
Ejectione
firme
,
if
the
terme
incur
,
hanging
the
Action
,
yet
shall
the
Action
proceed
for
damages
,
because
an
Ejectione
lyeth
after
the
terme
for
damages
,
which
he
shall
recover
,
notwithstanding
the
terme
be
by
Law
determined
.
If
a
Conspiracy
be
brought
against
two
,
24.
Vide
33.
5.
&
●●tra
.
27.
If
a
man
having
Rent-service
or
Rent-charge
,
accept
the
Rent
due
at
the
last
day
,
and
thereof
make
an
acquittance
,
thereby
all
the
arrearages
due
before
are
discharged
,
as
it
was
adjudged
in
Hopkins
and
Mortons
case
,
Hill
.
Rot.
950.
in
C.
B.
Vide
10.
Eliz.
271.
Dyer
,
but
if
a
man
make
a
Lease
for
life
rendring
Rent
,
or
if
there
be
Lord
and
Tenant
by
Fealty
and
Rent
,
and
the
Rent
is
arreare
by
2.
years
,
and
after
the
Lessor
or
Lord
disseise
the
Ter-tenant
,
and
then
the
Tenant
recovers
in
an
Assize
,
and
the
rent
which
incurred
,
is
recouped
in
damages
,
yet
the
Lord
or
Lessor
shall
recover
in
Assize
the
arrearages
incurred
before
the
Disseisin
,
and
the
bar
of
the
last
years
rent
shall
not
be
a
bar
of
the
former
arrearages
.
Br.
Avowry
111.
Howbeit
,
In
such
case
,
if
the
Feoffor
dye
,
although
the
Lord
accept
the
Rent
or
Service
by
the
hand
of
the
Feoffee
,
yet
shall
he
not
lose
the
arrearages
;
for
now
the
Lord
can
avow
upon
none
but
the
Feoffee
,
and
that
whereunto
the
Law
compells
a
man
shall
never
prejudice
him
:
So
if
there
be
Lord
,
Mesne
,
and
Tenant
,
and
the
Rent
due
by
the
Mesne
is
arreare
,
and
after
the
Tenant
fore-judges
the
Mesne
,
and
the
Lord
receives
the
Services
of
the
Mesne
,
which
now
issue
immediately
out
of
the
Tenancy
,
yet
shall
he
not
be
barred
of
the
arrearages
,
which
issue
out
of
the
Mesnalty
:
likewise
,
if
the
Rent
be
arreare
,
and
the
Tenant
dye
,
the
acceptance
of
the
Services
by
the
hand
of
the
Heire
shall
not
bar
him
of
the
arrearages
,
causa
qua
supra
:
For
in
all
these
cases
,
albeit
the
person
be
altered
,
yet
the
Lord
accepts
the
Rent
and
Services
of
him
,
who
onely
ought
by
the
Law
to
doe
them
:
Vide
4
E.
3.
22.
7
E.
3.
4.
7
E.
4.
27.
9
H.
8.
Br.
Avowry
111.
before
cited
.
Neither
shall
acceptance
of
Rent
bar
a
releife
,
because
that
is
as
a
blossome
fallen
from
the
Tree
,
and
a
fruit
or
improvement
of
the
Services
.
30.
If
since
the
Statute
of
31.
H.
8.
1.
Ioynt-tenants
make
partition
with
consent
by
Deed
,
the
Warranty
annexed
to
their
estate
is
gone
:
lib.
Ass.
Pl.
35.
because
the
Recovery
is
an
Act
in
Law
,
which
prejudiceth
none
;
albeit
some
Books
are
against
it
,
as
10
E.
3.
40.
&
10.
lib.
Ass.
17.
Margaret
Podgers
case
.
32.
P.
Copy-holder
for
life
,
Remainder
for
life
,
Cestuy
que
use
:
In
this
case
,
the
gift
passes
from
the
Feoffees
to
Cestuy
que
use
by
the
Parliament
,
because
the
consent
of
the
Feoffees
is
involved
in
that
Act
of
Parliament
,
and
it
cannot
be
said
,
that
the
Parliament
gave
it
to
Cestuy
que
use
:
for
if
it
should
be
said
the
gift
of
another
then
of
the
Feoffees
,
then
should
the
Parliament
do
the
Feoffees
wrong
in
taking
a
thing
from
them
,
and
making
another
the
Donor
thereof
,
which
an
Act
of
Parliament
cannot
doe
.
See
there
also
the
Rector
of
Edingtons
case
,
19
H.
6.
62.
Fitz.
Grant
10.
&
Br.
40.
&
Parl.
88.
to
the
like
purpose
.
Vide
pl.
ibid.
&
infra
Max.
156.
149.
Vide
M.
150.
Ex.
9.
Especially
for
things
that
cannot
be
imputed
to
their
own
folly
,
or
neglect
.
pur
anter
vie
,
or
any
other
un-certaine
estate
,
viz.
when
the
terme
will
determine
;
and
if
such
Tenant
happen
to
dye
,
his
Executors
,
&c.
shall
enjoy
the
crop
:
If
Tenant
by
Statute
Merchant
sow
the
ground
,
and
then
a
sudden
and
casuall
profit
falleth
,
by
which
he
is
satisfied
,
Apres
lembleer
&
devant
que
les
blees
sant
matures
.
Vide
pl.
ibid.
El.
inter
Southcote
and
Bennet
in
detinue
.
and
taketh
away
the
key
with
him
,
and
acquainteth
not
B.
what
is
in
the
Chest
,
and
the
Chest
,
together
with
the
goods
of
B.
are
stollen
away
,
B.
shall
not
be
charged
therewith
;
because
A.
did
not
trust
B.
with
them
,
as
this
case
is
,
neither
were
they
lost
by
the
default
or
negligence
of
A.
And
in
all
such
cases
,
what
is
said
of
stealing
is
also
to
be
understood
of
Shipwrack
by
Sea
,
fire
by
lightning
,
and
other
like
enevitable
accidents
.
And
therefore
when
a
man
receives
anothers
goods
to
keep
,
it
is
good
to
receive
them
with
this
caution
,
To
keep
them
as
his
owne
,
or
at
the
perill
of
the
Owner
.
sequatur
sub
suo
periculo
,
the
Sheriff
returne
,
Vide
pl.
which
see
ubi
supra
.
Note
,
that
this
is
a
Quere
in
Litt.
but
since
resolved
to
be
Law
.
nul
wast
fait
,
nul
wast
fait
,
bring
in
evidence
that
the
wast
was
done
by
tempest
,
lightning
,
enemies
,
or
the
like
,
and
he
shall
be
thereupon
excused
,
&c.
A.
B.
and
C.
and
Livery
is
made
to
A.
and
B.
but
C.
was
not
at
the
Livery
,
nor
agrees
to
the
Feoffment
,
nor
takes
any
profit
of
the
Land
,
and
after
A.
and
B.
dyes
,
and
C.
survives
them
,
and
the
Disseisee
brings
his
Writ
Sur
disseisin
in
the
per
against
C.
who
shewes
all
the
matter
,
how
he
never
agreed
to
the
Feoffment
,
and
so
he
shall
be
discharged
of
the
damages
,
albeit
he
was
Tenant
of
the
Frank
tenement
of
the
Land
,
and
that
the
Statute
of
Glocester
will
,
that
the
Disseisee
shall
recover
damages
in
a
Writ
of
Entry
grounded
Sur
disseisin
against
him
that
is
found
Tenant
;
yet
here
,
because
C.
was
in
no
default
,
the
Disseisee
shall
not
recover
damages
against
him
.
Com.
Banco
,
Mich.
39
,
&
40
El.
which
Plea
begins
Term.
Hill
.
38
El.
Rot.
1302.
in
Trespasse
inter
March
&
Curteis
.
D
D.
was
onely
named
in
the
Indenture
,
B.
after
such
Delivery
makes
an
escape
,
C.
brings
an
Action
of
debt
against
the
old
Sheriffs
upon
this
escape
,
and
recovers
;
because
here
,
the
default
was
in
the
old
Sheriffs
,
for
that
they
did
omit
the
execucution
of
C.
in
their
Indenture
;
and
therefore
albeit
B.
was
within
the
Walls
of
the
Prison
after
such
Delivery
over
by
Indenture
,
yet
was
he
not
Prisoner
to
the
new
Sheriffs
,
but
it
was
an
escape
from
such
Delivery
:
Neverthelesse
there
was
no
reason
that
C.
should
be
without
remedy
in
this
case
;
for
that
no
default
or
negligence
could
be
imputed
to
him
in
that
mis-carryage
.
as
first
shall
grow
,
remaine
,
&c.
And
there
,
the
right
first
accrued
to
the
Lessor
after
the
Fine
in
the
Forfeiture
:
Neverthelesse
,
the
Lord
(
in
this
case
)
shall
not
be
barred
,
because
A.
having
Lands
within
the
same
Mannor
,
and
still
continuing
the
Possession
and
paying
the
Rents
,
the
Lord
could
not
possibly
take
notice
of
the
Covin
:
So
if
Lessee
for
life
(
having
Lands
in
the
same
Towne
)
levy
a
Fine
,
the
Statute
shall
be
construed
against
the
words
,
and
the
Lessor
shall
be
allowed
five
years
after
the
death
of
the
Lessee
for
life
,
and
in
that
case
Non-claime
shall
not
prejudice
him
;
because
he
was
forced
to
it
by
the
Lessee
,
whose
Conveyance
was
so
close
,
that
he
could
have
no
notice
,
that
any
Fine
was
levied
of
his
Land
.
I.
S.
hath
heire
of
his
body
,
and
sixty
years
passe
,
and
I.
S.
dye
without
heire
of
his
body
;
in
this
case
also
,
albeit
the
sixty
years
passe
,
yet
the
Lord
may
distraine
for
them
when
he
pleaseth
,
because
they
are
not
within
the
purview
of
the
Statute
,
causa
qua
supra
.
Andrew
Ognels
case
.
28.
When
a
thing
is
due
in
right
and
truth
,
That
it
shall
be
lawfull
for
the
Executor
,
&c.
to
distrain
for
the
arrearages
,
&c.
upon
the
Lands
so
long
(
onely
)
as
they
remain
in
the
Seisin
or
Possession
of
the
Tenant
in
Demesne
,
who
ought
immediatly
to
have
paid
the
Rent
,
or
of
any
other
claiming
by
and
from
him
,
&c.
Here
,
by
the
words
of
this
Statute
the
Executors
may
onely
distrain
the
Grantor
or
his
immediate
Grantee
(
by
and
from
being
in
the
Conjunctive
;
)
Yet
in
the
case
above
they
may
distraine
the
Tenant
at
will
,
and
the
word
and
shall
be
taken
for
or
:
to
the
end
the
Lessee
at
will
may
be
understood
to
derive
his
estate
from
him
,
and
so
to
be
comprehended
within
the
purview
of
that
Statute
,
for
the
reason
above
alleadged
.
If
any
parson
having
one
benefice
with
cure
,
&c.
accept
and
take
one
other
,
&c.
and
he
that
is
instituted
to
a
benefice
is
sayd
in
Law
to
accept
and
have
a
benefice
:
Howbeit
,
although
by
such
institution
to
the
second
benefice
,
the
first
is
void
by
the
ecclesiasticall
Law
without
any
deprivation
or
sentence
declaratory
,
yet
no
laps
shall
(
in
this
case
)
incur
against
the
Patron
without
giving
notice
to
him
,
Henry
Knivets
case
.
the
Tenant
for
life
lets
for
years
,
the
Lessee
for
years
is
ousted
,
and
the
Tenant
for
life
disseised
,
the
Disseisor
lets
for
years
,
and
his
Lessee
sowes
the
Land
,
the
Tenant
for
life
dyes
,
the
Remainder
in
fee
enters
,
the
Lessee
of
the
Disseisor
carries
away
the
graine
,
and
the
Remainder
in
fee
brings
an
action
of
Trespasse
:
And
in
this
case
it
was
adjudged
,
that
because
the
Lessee
of
Tenant
for
life
could
not
know
the
end
of
his
terme
,
he
had
right
to
the
Land
,
and
(
by
consequence
)
to
the
graine
,
as
things
annexed
to
the
Land
,
and
albeit
by
the
death
of
the
Tenant
for
life
his
Interest
to
the
Land
determined
,
yet
the
Land
being
sowen
before
the
death
of
the
Tenant
for
life
,
his
right
to
the
emblements
remaines
.
Journeys
accounts
,
Journeys
accounts
,
as
the
Books
are
in
48
E.
3.
21.
14
H.
4.
23.
22
H.
6.
62.
13
H.
4.
Executors
118.
But
if
the
Writ
abate
by
the
default
of
the
Clerk
,
as
where
it
abates
for
false
Latine
,
or
variance
,
or
for
default
of
forme
,
&c.
there
,
the
Demandant
shall
have
the
benefit
of
a
new
Writ
by
Journeys
accounts
,
because
it
was
the
default
of
the
Clerk
of
the
Chancery
,
and
not
the
default
of
the
Demandant
himselfe
,
as
the
Books
are
agreed
in
26
E.
3.
Quare
Impedit
163.
25
E.
3.
54.
48
E.
3.
5.
14
H.
4.
23.
&c.
So
likewise
,
when
the
Writ
abates
for
want
of
due
Summons
,
for
that
is
the
default
of
the
Sheriff
,
and
no
default
in
the
Demandant
:
and
therefore
in
such
case
also
the
Demandant
shall
have
a
new
Writ
by
Journeys
accounts
.
Vide
Max.
57.
Ex.
51.
35.
For
a
Robbery
done
in
the
morning
ante
lucem
,
Ut
jugulent
homines
surgunt
de
nocte
latrones
.
Hugh
Portmans
case
.
37.
Bar
in
Quare
Impedit
,
&
contra
.
If
the
Plaintiff
in
a
Quare
Impedit
be
non-suited
after
apparance
,
that
is
peremptory
,
and
a
good
bar
in
another
Quare
Impedit
,
albeit
that
it
be
brought
within
the
six
moneths
;
because
in
such
case
the
Defendant
upon
title
made
shall
have
a
Writ
to
the
Bishop
to
admit
his
Clerke
,
which
is
a
good
bar
in
another
Quare
Impedit
,
and
with
this
accords
19
E.
4.
9.
22
H.
6.
44
,
45.
33
H.
6.
1.
55.
20
E.
4.
14.
21
E.
4.
2.
b.
&c.
F.
N.
B.
38.
b.
So
if
the
Plaintiff
in
a
Quare
Impedit
discontinue
his
suit
,
the
Defendant
upon
title
made
shall
have
a
Writ
to
the
Bishop
,
and
therefore
this
is
also
peremptory
,
and
with
this
accords
31
H.
6.
15.
Likewise
,
if
the
Plaintiff
be
made
a
Knight
,
hanging
the
Writ
,
the
Writ
shall
abate
,
and
the
Defendant
shall
in
that
case
also
have
a
Writ
to
the
Bishop
:
and
(
by
consequence
)
that
is
also
peremptory
:
for
,
all
these
are
the
Acts
of
the
Plaintiff
,
and
he
doth
them
in
his
own
wrong
:
But
if
the
Writ
of
Quare
Impedit
within
the
six
moneths
abate
for
false
Latine
,
or
insufficiency
of
the
forme
,
that
is
the
default
of
the
Clerk
,
and
shall
not
be
peremptory
to
the
Plaintiff
,
neither
shall
the
Defendant
thereupon
have
a
Writ
to
the
Bishop
,
but
the
Plaintiff
may
in
such
case
have
a
new
Writ
,
because
(
in
these
cases
)
no
default
can
be
imputed
to
the
Plaintiff
,
and
with
this
agrees
3
H.
6.
3.
31.
H.
b.
15.
F.
N.
B.
38.
b.
&
h.
Vide
34.
Ass.
Pl.
9.
So
likewise
it
is
,
if
the
Writ
abate
for
the
mis-naming
of
the
Plaintiff
or
Defendant
,
if
the
Plaintiff
confesse
it
,
the
Defendant
shall
not
have
a
Writ
to
the
Bishop
:
for
this
may
be
also
the
default
of
the
Clerke
in
writing
it
,
and
with
this
accords
F.
N.
B.
38.
See
also
31
H.
6.
15.
Vide
the
case
at
large
.
Formedon
,
Aiel
,
Entry
,
&c.
Precipe
quod
permittat
,
as
to
have
Estovers
,
Common
,
&c.
or
Precipe
quod
faciat
,
as
Writs
of
Customes
,
Services
,
&c.
if
the
Demandant
be
barred
,
or
non-suited
,
or
his
Writ
abate
for
being
vicious
in
matter
or
forme
,
he
shall
be
amercied
:
but
if
there
be
two
Demandants
,
and
the
Writ
abates
by
the
death
of
one
of
them
,
the
other
shall
not
be
amercied
,
48
E.
3.
23.
46
E
3.
Account
40.
5
E.
3.
3.
22
H.
6.
7.
38.
E.
3.
31.
7
H.
6.
36.
41
Ass.
14.
Prerogativa
Reg.
cap.
3.
and
the
King
is
to
receive
the
profits
of
his
land
untill
he
do
his
homage
,
and
that
cannot
be
untill
he
have
sued
out
his
Livery
:
And
if
at
his
full
age
he
tender
his
Livery
,
he
is
to
have
three
moneths
to
perfect
it
:
Howbeit
,
if
after
such
tender
,
by
the
Act
of
God
(
viz.
death
)
he
is
prevented
to
perfect
it
,
the
King
shall
not
receive
the
profits
after
such
tender
:
but
the
next
heire
shall
have
them
,
and
after
such
tender
he
might
in
that
case
sell
the
Land
or
any
part
thereof
,
and
the
sale
shall
be
good
,
notwithstanding
the
Kings
hands
upon
it
.
&
contra
:
because
that
advantage
is
lost
by
the
act
of
God
(
viz.
by
death
)
and
therefore
shall
not
be
imputed
to
any
default
of
his
:
So
debt
lyeth
not
against
Executors
for
the
dyet
of
their
Testator
,
because
he
might
(
in
that
case
)
have
waged
his
Law
,
and
so
have
freed
himselfe
thereof
,
which
advantage
being
lost
by
his
death
(
and
no
fault
of
his
)
his
Executors
,
who
represent
his
person
,
shall
not
be
prejudiced
thereby
:
Howbeit
,
if
a
Prisoner
in
the
Tower
for
treason
receive
his
diet
of
the
Lievtenant
,
and
dye
,
the
Lievtenant
shall
have
an
Action
of
debt
against
his
Executors
for
such
diet
of
the
Testator
;
and
the
reason
is
,
because
(
in
that
case
)
the
Testator
could
not
in
his
life
time
have
waged
his
Law
,
as
it
is
adjudged
in
27
H.
6.
4.
b.
in
Thomas
Bodulgats
case
:
And
the
reason
why
no
wager
of
Law
lyeth
in
such
case
is
,
because
every
Goaler
ought
to
keep
his
Prisoner
,
in
salva
&
arcta
custodiae
,
and
so
must
of
necessity
finde
him
victualls
,
&c.
Vide
pl.
ibid.
b.
R.
G.
brings
a
Writ
of
debt
of
ten
marks
against
T.T.
and
others
,
Executors
of
W.
W.
and
counted
,
&c.
Vide
pl.
ibid.
False
Imprisonment
,
because
is
is
not
his
fault
,
but
the
Iustices
,
who
is
Iudge
of
the
cause
:
and
with
this
agrees
14
H.
4
16.
Henry
Pigots
case
.
46.
If
the
Obligee
himselfe
alter
the
Obligation
in
any
point
materiall
or
not
materiall
by
interlining
,
addition
,
racing
,
or
the
like
,
Vicecom.
Comit.
Oxon
,
are
interlined
by
a
stranger
without
the
privity
of
the
Sheriff
,
yet
the
Obligation
remaines
good
,
notwithstanding
such
interlining
by
a
stranger
without
the
Obligees
privity
,
in
regard
it
was
not
conceived
to
be
a
point
materiall
,
Benedicto
Winchcombe
,
his
name
and
sirname
being
there
inserted
before
,
and
being
done
by
a
stranger
it
shall
not
in
that
case
prejudice
the
Obligee
.
48.
If
one
sell
another
a
peice
of
Cloath
and
warrant
it
to
be
of
a
certaine
length
;
in
this
case
,
if
the
peice
be
not
of
that
length
,
See
also
Dyer
29.
195.
28
H.
8.
Fitz.
and
Shelley
,
the
Lessee
shall
be
excused
from
the
Penalty
,
as
if
it
had
been
of
an
House
,
that
had
been
burnt
by
lightning
or
thrown
down
by
tempest
,
which
are
the
act
of
God
and
cannot
be
resisted
:
Howbeit
,
in
this
case
he
ought
to
repaire
the
Banks
in
convenient
time
.
Tres
Trin.
being
not
served
,
the
Solicitor
of
the
Plaintiff
takes
it
againe
of
the
Sheriff
,
and
one
of
the
Prothonotaries
Clerks
makes
the
Tres
Trin.
Tres
Mich.
and
then
the
Solicitor
re-delivers
it
to
the
Sheriff
unsealed
,
viz.
to
the
Sheriff
of
London
,
who
makes
Warrant
thereupon
to
a
Serjeant
,
who
arrests
the
Defendant
,
and
afterwards
the
Writ
is
sealed
;
And
in
this
case
,
albeit
the
offenders
for
this
undue
practise
were
committed
to
the
Fleet
,
yet
afterwards
it
appearing
upon
examination
,
that
the
Plaintiff
was
ignorant
of
the
practise
,
the
Writ
was
received
,
and
the
Defendant
committ●d
also
to
the
Fleet
in
execution
.
Nisi
prius
(
quod
nota
)
and
so
the
Iury
taken
.
150.
Nemo
debet
rem
suam
sine
facto
vel
def●ctu
suo
amittere
.
This
is
also
a
Quaere
in
Litt.
It
is
so
likewise
of
Dean
and
Chapter
,
Mayor
and
Comonalty
,
Master
and
Fellowes
of
a
Colledge
,
or
any
other
Corporation
aggregate
of
many
,
where
such
a
Descent
happens
when
they
want
their
head
,
viz.
Dean
,
Mayor
,
Mastor
,
&c.
for
then
they
are
not
in
a
capacity
to
make
claime
:
Also
if
an
Vsurpation
to
a
Church
be
had
in
time
of
Vacation
,
this
shall
not
prejudice
the
Successor
to
put
him
out
of
Possession
,
but
that
at
the
next
avoydance
he
shall
present
.
Jo.
Molyns
case
.
and
B.
Tenant
of
the
Mannor
of
D.
B.
commits
treason
,
and
after
Attainder
an
Office
is
found
,
and
the
Mannor
seised
into
the
Kings
hand
,
afterwards
the
King
grants
the
Mannor
to
C.
and
his
heirs
,
Tenendum
de
nobis
,
heredibus
&
successoribus
nostris
,
&
aliis
capitalibus
dominis
feodi
illius
per
servicia
vide
debita
&
de
jure
consueta
:
These
are
sufficient
words
to
create
a
tenure
in
the
Mesne
as
it
was
before
the
Attainder
and
Forfeiture
,
and
the
tenure
of
the
Mesne
is
thereby
preserved
;
for
,
it
is
against
reason
and
equity
,
that
the
Mesne
,
who
did
no
wrong
,
should
lose
his
services
.
Moyle
Finches
case
.
and
other
part
in
Lease
for
years
,
and
he
levy
a
Fine
to
A.
to
the
use
of
B.
in
taile
,
with
divers
Remainders
over
:
In
this
case
,
B.
shall
avow
for
rent
,
or
have
an
Action
of
Waste
without
Attornement
:
for
when
a
Reversion
is
setled
in
any
in
Iudgement
of
Law
,
and
he
hath
no
possible
meanes
to
compell
the
Tenant
to
atturne
,
and
no
Laches
or
default
in
him
,
in
such
case
,
he
shall
avow
or
have
Action
of
Waste
without
Attornment
:
for
the
Rule
is
,
Quod
remedio
destituitur
,
ipsa
re
valet
,
si
culpa
absit
.
inter
Beconshaw
Plaintiff
,
and
Southcote
,
and
others
Defendants
.
So
likewise
the
Bargainee
of
a
Mannor
by
Deed
indented
and
inrolled
shall
not
take
advantage
of
a
Forfeiture
of
a
Copy-holder
for
denyall
of
payment
of
rent
without
notice
to
him
given
of
the
bargaine
and
sale
;
for
the
Law
will
never
compell
a
man
to
take
notice
of
acts
done
amongst
strangers
,
Kings
B.
the
Iudges
of
the
Common
Place
amended
the
Record
,
because
it
appeared
to
them
,
that
the
Kings-Silver
was
paid
for
the
Mannor
:
and
whereas
the
Writ
of
Covenant
was
,
Dede
meipso
,
for
Teste
meipso
,
they
amended
that
also
,
and
certified
it
into
the
K.
B.
upon
Diminution
,
and
it
was
allowed
;
for
it
was
against
reason
,
that
the
Misprision
of
the
Officer
or
Clerk
should
prejudice
the
Conusee
,
when
it
hapned
not
by
any
default
or
neglect
in
him
.
Vide
Dyer
225.
34.
Nifi
prius
the
Iury
after
departure
come
againe
,
and
said
,
151.
It
driveth
not
a
man
to
shew
,
take
notice
of
,
or
do
that
which
by
intendment
he
knoweth
not
,
or
should
or
cannot
do
.
Penrud
docks
case
.
10.
Per
Popham
,
and
not
denyed
by
the
rest
of
the
Iustices
.
maliciose
&
deceptive
machinatus
fuit
,
&c.
without
alleadging
particulars
;
because
such
passages
are
so
secret
and
uncertaine
,
that
they
cannot
be
known
or
tryed
.
Quia
de
alieno
facto
:
So
if
one
deny
a
Recovery
or
other
Record
,
whereunto
he
is
party
,
he
shall
not
be
fined
;
for
it
is
not
his
act
but
the
Act
of
the
Court
,
and
he
doth
not
deny
the
Record
absolutely
,
but
,
non
habetur
tale
recordum
.
Et
quae
post
mortem
,
but
he
shall
say
,
Et
quae
post
mortem
le
Donee
ad
ipsum
reverti
debet
,
eo
quod
le
Donee
obiit
without
Issue
;
because
the
Demandant
is
a
stranger
to
the
pedigree
of
the
Donee
,
and
therefore
(
by
intendment
)
knoweth
it
not
.
Meriel
Treshams
case
.
the
Defendant
pleads
one
Recognizance
of
eight
hundred
pounds
,
and
another
of
one
thousand
pounds
,
the
Plaintiff
replies
,
that
the
eight
hundred
pounds
Recognizance
was
for
the
payment
of
400
l.
which
is
paid
,
&
that
the
1000
l.
Recognizance
was
for
the
performance
of
Covenants
,
which
are
not
broken
,
yet
both
kept
on
foot
uncancelled
by
Covin
of
the
Defendant
:
In
this
case
,
the
replication
of
the
Plaintiff
is
good
notwithstanding
the
uncertainty
;
for
albeit
he
neither
pleads
a
Defeasance
for
the
payment
of
the
foure
hundred
pounds
,
nor
what
Covenants
in
particular
they
were
,
for
which
the
one
thousand
pounds
Recognizance
was
entred
into
,
yet
the
replication
is
good
;
because
the
Creditor
is
a
stranger
to
them
,
and
hath
no
meanes
by
Law
to
know
the
particular
certainties
.
Robert
Pilfords
case
.
wherein
damages
are
to
be
recovered
,
for
in
personall
Actions
the
Plaintiff
shall
count
for
damages
:
because
he
may
know
in
certaine
what
damage
he
hath
suffered
before
the
Writ
purchased
,
and
those
he
shall
onely
recover
,
but
in
reall
Actions
the
Demandant
shall
never
count
for
damages
,
because
he
is
to
recover
damages
,
hanging
the
Writ
,
which
being
uncertaine
,
he
shall
not
count
for
them
,
but
shall
have
them
assessed
after
by
Writ
of
Inquire
,
as
in
a
Writ
of
Entry
sur
Disseisin
,
or
in
the
nature
of
Assize
,
as
it
was
held
in
33
H.
6.
47.
a.
Richard
Binkleys
case
.
24.
In
an
action
brought
against
the
Sheriff
upon
the
Statute
of
23
H.
6.
15.
for
making
an
untrue
returne
of
the
Knights
of
Parliament
,
ne
unques
executor
,
ne
administer
come
executor
,
to
this
the
Plaintiff
may
say
,
that
at
such
a
place
he
administered
,
without
shewing
what
things
he
there
administred
,
because
he
cannot
come
to
the
knowledge
or
number
of
them
,
being
not
privie
thereunto
:
And
so
it
is
also
of
things
of
an
infinite
number
,
as
if
a
man
be
bound
to
save
the
Sheriff
harmelesse
of
all
things
concerning
his
office
,
he
shall
alledge
,
that
he
hath
discharged
him
generally
,
without
shewing
the
things
in
certaine
,
because
the
things
are
of
so
great
a
number
,
that
the
certainty
thereof
cannot
(
by
intendment
)
be
remembred
or
knowne
:
Also
,
if
a
man
be
bound
to
sheere
yearly
the
sheepe
of
the
Obligee
going
in
such
a
pasture
,
he
shall
say
that
he
hath
shorne
them
without
shewing
the
number
,
for
peradventure
some
years
there
were
more
,
some
years
fewer
,
so
as
he
cannot
(
by
intendment
)
remember
the
certaine
number
.
25.
A.
brings
an
action
of
debt
against
B.
upon
an
Obligation
by
the
father
,
wherein
he
bound
himselfe
and
his
heires
,
riens
per
descent
,
A.
maintaines
that
assets
at
D.
in
com
.
S.
descended
unto
him
:
And
upon
a
Nisi
prius
before
Sir
Christopher
Wray
the
descent
was
proved
,
and
agreed
;
whereupon
B.
the
defendant
gives
in
evidence
,
that
long
before
the
action
commenced
,
he
enfeoffed
one
C.
of
the
Land
,
which
was
also
confessed
;
but
A.
the
plaintiff
proves
likewise
,
that
that
feofment
was
made
by
fraud
to
deceive
him
of
his
action
,
and
therefore
voide
by
the
Statute
of
13.
Eliz.
5.
Now
it
was
strongly
urged
,
that
this
ought
to
have
been
pleaded
,
and
could
not
upon
the
issue
(
Riens
per
descent
Jour
del
breife
purchase
)
be
brought
in
evidence
:
But
it
was
resolved
that
it
might
be
brought
in
evidence
without
pleading
;
because
fraud
and
covin
(
for
that
they
are
odious
)
are
so
privily
hatched
in
an
hollow
tree
(
in
arbore
cava
&
opaca
)
and
so
artificially
covered
and
concealed
,
that
the
partie
grieved
hath
no
meanes
to
find
or
know
them
,
and
then
to
force
the
Plaintiff
to
plead
the
feoffment
(
whereof
he
hath
no
notice
)
and
also
that
it
was
done
by
fraud
,
is
both
against
Law
and
reason
,
being
indeed
very
mischievous
to
creditors
,
and
tending
much
to
the
maintenance
and
increase
of
fraud
and
covin
.
D.
&c.
B.
dies
,
A.
payes
the
100
l.
to
the
heire
of
B.
In
this
case
,
the
condition
is
performed
,
albeit
the
heire
was
then
a
stranger
to
the
Land
,
because
the
heire
is
the
person
expressely
named
in
the
condition
,
to
whom
the
payment
shall
be
made
,
and
the
feoffor
is
a
stranger
to
the
conveyances
,
which
the
feoffee
and
his
assignes
have
made
,
and
therefore
the
feoffor
shall
not
take
notice
at
his
perill
of
the
validitie
thereof
,
nor
of
the
conditions
or
limitations
annexed
thereunto
.
Qu.
Eliz.
to
the
reversion
of
his
terme
by
the
grant
of
his
lessor
(
who
was
Sir
Richard
Sackvile
)
of
the
reversion
to
the
Duke
of
Northumberland
with
his
attornement
to
the
said
Duke
,
and
after
the
Duke
grants
it
over
to
E.
6.
in
fee
,
by
deed
enrolled
,
and
doth
not
alleadge
expressely
,
that
Sir
Richard
Sackvile
granted
the
reversion
by
deed
,
but
generally
,
quod
concessit
reversionem
hadendam
in
feodo
,
ad
quam
quidem
concessionem
idem
querens
se
inde
Atturnavit
:
And
in
this
case
the
Count
(
per
Dyer
)
was
good
without
saying
per
cartam
,
and
without
producing
it
into
Court
;
because
the
Farmer
was
a
stranger
to
the
deed
or
grant
,
and
had
not
the
power
of
it
,
for
that
it
belonged
not
to
him
,
neither
did
he
convey
any
title
to
him
under
it
;
discender
;
Quaete
in
Remainder
.
Ejectione
firmae
,
Canterbury
in
Curia
sua
prerogativa
de
Arcubus
,
and
because
the
words
of
the
Statute
of
24.
H.
8.
12.
are
,
the
appeal
that
shall
be
to
the
Arch-bishop
of
the
Province
,
or
,
&c.
without
limiting
any
Court
in
certaine
,
the
Defendant
demurred
;
And
these
words
to
the
Arch-Bishop
of
Canterbury
were
held
sufficient
,
because
of
substance
,
&c.
And
in
this
argument
although
it
appeared
by
the
Civilians
that
the
Arches
were
not
the
Praerogative
Court
,
yet
because
the
Defendant
did
not
shew
it
,
but
demurred
generally
,
the
Temporall
Iudges
were
not
bound
to
take
notice
of
their
Iurisdictions
.
Cestuy
que
use
,
and
therefore
might
not
be
in
his
power
to
produce
.
Jac.
Rot
1758.
152.
Nor
to
do
that
,
which
were
in
vain
for
him
to
do
.
sapiens
incipit
a
fine
,
And
the
law
never
giveth
an
action
,
where
the
end
of
it
can
bring
no
profit
or
benefit
to
the
Plaintiff
.
a
Proviso
of
revocation
,
&c.
The
Father
makes
a
Revocation
according
to
the
Proviso
;
In
this
case
,
the
whole
estate
is
immediately
(
upon
the
Revocation
)
revested
in
him
without
Entry
or
Claime
,
causa
qua
supra
.
Co.
l.
3.
fol.
86.
Lastly
,
if
an
alienation
be
in
Mortmaine
,
the
Tenant
shall
not
be
compelled
to
attorne
;
because
the
Lord
Paramont
may
defeate
it
.
Anthony
Maines
case
.
15.
A.
Leases
for
one
and
twenty
years
to
B.
and
is
bound
to
make
a
new
Lease
to
B.
upon
surrender
of
the
old
,
A.
B.
viz.
to
surrender
,
and
albeit
he
never
surrender
:
for
by
the
Fine
levyed
for
eighty
years
,
A.
hath
disabled
himselfe
both
to
take
the
Surrender
and
to
make
a
new
Lease
;
And
the
Law
will
not
enforce
a
man
to
doe
a
thing
which
will
be
vain
and
fruitlesse
,
I.
S.
of
them
upon
request
,
and
after
he
makes
Feoffment
in
fee
of
the
said
Lands
;
in
this
case
,
I.
S.
shall
have
an
Action
of
Covenant
without
request
,
because
it
would
be
in
vaine
for
I.
S.
to
make
request
,
when
the
other
hath
disabled
himselfe
to
do
it
.
Margaret
Podgers
case
.
18.
A.
being
Copy-holder
for
life
,
Remainder
for
life
,
&c.
vide
pl.
ibid.
Colthrist
versus
Bevishin
.
a
man
shall
not
shew
the
death
of
the
particular
Tenant
,
because
it
is
but
a
Conveyance
,
and
not
traversable
nor
issuable
:
So
in
Colthrist
and
Bevishins
case
,
the
Defendant
shall
not
shew
the
deaths
of
Henry
and
Elenor
Bevishin
,
because
the
Plaintiff
Colthrist
should
have
traversed
it
,
and
said
,
that
they
were
alive
,
he
should
confesse
,
that
he
had
not
title
to
the
Land
before
their
lives
,
and
would
have
destroyed
his
own
Action
;
And
therefore
in
regard
their
deaths
were
not
traversable
,
it
was
in
vaine
for
the
Defendant
to
shew
it
,
(
by
consequent
)
he
shall
not
be
compelled
to
do
it
.
153.
Non
licet
,
quod
dispendio
licet
.
Antohny
Maines
▪
case
.
M.
Leases
to
another
for
eighty
years
by
Fine
,
and
S.
brings
an
Action
of
debt
upon
the
Bond
:
In
this
case
,
albeit
S.
may
surrender
and
ought
to
do
the
first
act
,
viz.
to
surrender
,
yet
M.
hath
forfeited
his
Bond
,
although
S.
never
surrender
,
for
S.
shall
not
now
be
forced
to
surrender
;
because
if
he
should
surrender
,
M.
cannot
now
make
him
a
new
Lease
,
which
w
s
the
effect
and
end
of
the
Surrender
:
for
by
such
Surrender
S.
will
lose
his
old
terme
,
without
possibility
of
having
a
new
one
:
And
,
Non
licet
quod
dispendio
licet
.
C.
s.
yet
the
Parson
refused
to
resigne
;
And
14
H.
4.
19.
a.
it
was
the
opinion
of
all
the
Court
,
that
albeit
they
were
agreed
of
the
Pension
,
yet
the
Parson
was
not
bound
to
resigne
,
untill
he
might
be
sure
of
his
Pension
,
and
that
could
not
be
without
Deed
;
And
therefore
(
in
such
case
)
the
Parson
was
not
bound
to
resigne
,
untill
the
Prior
should
●ender
a
Deed
of
the
Pension
,
whereby
he
might
be
sure
〈◊〉
it
.
154.
It
favoreth
Truth
,
Faith
,
and
Certainty
.
Vide
Max.
41.
●9
.
Novel
Disseisin
,
the
jurors
may
find
the
matter
at
large
,
and
the
Iudges
ought
to
adjudge
it
for
the
tenant
,
albeit
regularly
a
condition
is
not
available
without
Deed
shewed
,
and
although
the
lessor
shew
no
Deed.
De
fidelitate
,
and
the
eleven
De
credulitate
.
viz.
certainty
and
verity
,
for
that
it
is
the
foundation
of
the
suite
,
whereunto
the
adverse
pertie
must
answer
,
and
whereupon
the
Court
is
to
give
judgment
,
Certa
debet
esse
intentio
&
narratio
,
&
certum
fundamentum
&
certa
res
,
quae
deducitur
in
Judicium
.
Bract.
lib.
2.
140.
Howbeit
,
it
must
be
understood
,
that
there
are
three
kinds
of
certainties
;
First
,
to
a
common
intent
,
and
that
is
sufficient
in
a
Barre
,
which
is
to
defend
the
partie
and
to
excuse
him
;
Secondly
a
certaine
intent
in
generall
,
as
in
Counts
,
Replications
,
and
other
pleadings
of
the
Plaintiff
,
Nul
wast
fait
,
for
that
is
not
true
;
but
he
ought
to
plead
the
speciall
matter
,
as
the
truth
of
his
case
doth
import
.
Vide
M.
166.
Variance
.
vide
Dyer
28
H.
29.
b.
pl.
199.
)
And
so
it
is
also
of
other
originall
Deeds
,
which
are
not
Letters
patents
.
Vide
Dyer
171.
9.
C.
B.
If
a
man
enfeoffe
divers
,
and
make
livery
to
one
in
the
name
of
all
,
this
is
not
good
without
Deed
of
feoffment
;
because
as
(
it
seemes
)
their
names
being
exprest
in
a
Deed
of
feoffment
,
it
may
be
certainly
knowne
who
are
the
feoffees
,
unto
whom
the
feoffor
intended
to
convey
the
estate
.
I.
S.
and
a
man
will
convey
the
lands
unto
himselfe
by
such
a
grant
,
he
ought
to
averre
,
that
I.
S.
had
such
lands
:
So
in
case
of
a
Common
person
,
who
makes
a
release
of
all
such
Lands
as
discended
unto
him
on
the
part
of
his
mother
in
D.
there
ought
to
be
an
averment
,
what
lands
descended
unto
him
there
on
his
mothers
part
;
for
otherwise
the
release
is
voide
by
reason
of
the
generaltie
and
uncertainty
thereof
,
&c.
Michaelmas
,
&c.
the
Plaintiff
saith
,
that
the
Arbitrators
by
arbitrement
in
writing
factum
&
partibus
before
the
day
deliberat
.
make
an
award
,
&c.
and
assignes
the
breach
,
the
Defendant
demurres
,
and
the
Court
gave
it
against
the
Plaintiff
;
Because
1.
it
is
no
direct
but
onely
an
argumentative
affirmance
,
that
the
Arbitrators
delivered
the
award
.
2.
He
should
have
pleaded
the
deliverie
according
to
the
condition
,
viz.
that
it
was
delivered
at
or
before
,
&c.
and
not
before
onely
:
3.
Redditum
had
been
a
more
apt
word
to
answer
to
yeilded
,
then
deliberatum
.
Thomas
Puckerings
case
.
255.
It
Disfavoureth
Impossibilities
.
sans
number
,
Christmas
comes
but
once
a
year
.
Saint
Peters
in
Westminster
,
to
the
Church
of
Saint
Peters
in
Rome
within
3
houres
,
that
then
the
Obligation
shall
be
voide
;
In
this
case
,
the
condition
is
voyde
and
impossible
,
and
the
Obligation
standeth
good
.
So
likewise
,
if
a
feoffment
be
made
,
upon
condition
,
that
the
feoffee
shall
go
,
as
is
aforesaid
,
the
state
of
the
feoffee
is
absolute
,
and
the
condition
impossible
and
voide
:
In
like
manner
,
if
a
man
make
a
lease
for
life
upon
condition
,
that
if
the
lessee
go
to
Rome
,
as
aforesaid
,
that
then
he
shall
have
fee
;
Here
,
the
condition
precedent
is
Impossible
and
voide
,
and
therefore
no
Fee-simple
shall
(
in
this
case
)
accrue
to
the
lessee
.
Anthony
Mildmayes
case
.
12.
If
Coparceners
agree
to
present
by
turne
,
halfe
alive
and
halfe
dead
.
Vide
pl.
ibid.
Hugh
Chomleys
case
.
13.
If
there
be
Tenant
in
tail
,
I.
S.
is
a
perjured
old
knave
,
and
that
is
to
be
proved
by
a
stake
parting
the
Land
of
A.
and
B.
These
words
by
reason
of
the
insensibility
,
and
impossibility
of
them
are
not
actionable
;
for
it
is
impossible
,
15.
Regularly
,
if
Land
be
granted
to
two
and
their
heirs
,
of
Cornewall
.
17.
One
cheife
reason
,
Vide.
pl.
ibid.
I.
S.
held
of
King
James
at
the
time
of
his
death
,
Paris
Sloughters
case
.
being
in
the
40
year
of
Queen
Eliz.
shall
be
quasht
for
the
impossibility
thereof
;
for
it
is
impossible
,
that
I.
S.
should
hold
any
Land
of
King
James
in
the
40
yeare
of
Queen
Eliz.
he
being
then
King
of
Scotland
.
156.
Non
cogit
ad
Impossibilia
,
&
Impotentia
excusat
Legem
.
in
Wymarks
case
.
157.
It
disfavoureth
Falshood
,
Fraud
,
and
Covin
,
Vide
Dyer
294.
8.
In
Dominico
ut
feodo
;
because
that
Inheritance
,
savouring
not
De
domo
,
cannot
either
serve
for
the
sustentation
of
him
or
his
Houshold
,
neither
can
any
thing
be
received
for
the
same
for
defraying
of
charges
;
and
therefore
he
cannot
say
,
that
he
is
seised
thereof
,
In
Dominico
suo
de
feodo
:
Whereby
it
appeareth
how
the
Common
Law
doth
detest
Symmony
and
all
corrupt
Bargaines
for
Presentation
to
any
Benefice
,
but
that
Idonea
persona
for
the
discharge
of
the
cure
should
be
presented
freely
without
Expectation
of
any
thing
;
nay
the
Common
Law
is
so
cautelous
in
this
point
,
that
the
Plaintiff
in
a
Quare
Impedit
,
should
recover
no
Damages
for
the
losse
of
his
Presentation
,
untill
the
Statute
of
Westminster
2.
cap.
5.
And
that
is
the
reason
,
that
Guardian
in
Soccage
shall
not
present
to
an
Advowson
,
because
he
can
take
nothing
for
it
,
whereof
to
make
Account
,
for
by
the
Law
he
can
meddle
with
nothing
,
that
he
cannot
account
for
:
So
in
a
Writ
of
Right
of
Advowson
,
the
Patron
shall
not
alledge
the
Explees
in
himselfe
,
but
in
the
Incumbent
:
For
which
Reasons
,
of
an
Advowson
a
man
shall
plead
,
that
he
is
seised
,
De
advocatione
ut
de
feodo
&
jure
.
Rowle
,
Mich.
8
,
&
9.
Eliz.
Rot.
904.
in
Com.
Ba.
In
which
Suite
,
the
Tenant
as
to
parcell
pleads
non
tenure
,
and
for
the
residue
detainer
of
Charters
,
upon
which
Pleas
they
were
at
Issue
,
and
both
Issues
found
by
the
Iury
against
the
Tenant
,
and
found
further
,
that
the
Husband
dyed
seised
such
a
day
and
yeare
,
and
had
Issue
a
Son
,
and
that
the
Demandant
and
the
Son
for
six
yeares
,
after
the
decease
of
the
Husband
,
together
took
the
profits
of
the
Land
,
and
after
the
Son
such
a
day
and
yeare
dyed
without
Issue
,
after
whose
decease
the
Land
discended
to
the
Tenant
,
as
Vncle
and
Heire
to
him
,
by
force
whereof
he
entred
and
took
the
profits
,
untill
the
purchasing
of
the
Originall
Writ
,
and
found
the
value
of
the
Land
by
the
yeare
,
and
assessed
damages
for
the
detaining
of
the
Dower
,
and
costs
of
Suit
;
upon
which
Verdict
(
after
much
debating
)
the
Demandant
had
Iudgement
to
recover
her
damages
for
all
the
time
from
the
death
of
her
Husband
,
without
any
defalcation
:
And
this
was
cheifely
caused
by
his
false
Plea
,
whereas
he
might
have
avoyded
the
answering
of
the
damages
for
the
six
yeares
,
if
he
had
truly
pleaded
according
to
the
truth
of
his
case
.
Bredi
mans
case
.
Co.
l.
6.
58.
a.
1.
Intrudor
,
or
any
wrong
doer
,
in
Lands
and
Tenements
,
if
they
came
to
that
estate
by
collusion
and
covin
between
the
Widow
and
them
;
albeit
the
Widow
hath
just
cause
of
Action
,
and
the
Assignment
be
indifferently
made
after
Iudgement
by
the
Sheriff
of
an
equall
third
part
,
yet
shall
the
Disseisee
,
&c.
avoid
it
;
for
,
covin
(
in
this
case
)
shall
suffocate
the
right
,
that
●●pertained
to
her
,
and
so
the
wrongfull
manner
shall
avoid
the
matter
,
that
is
lawfull
.
See
Pl.
Co.
51.
a.
If
the
Lord
distraine
upon
the
Lands
and
Tenements
holden
,
yet
if
the
Lord
come
to
distrain
,
and
the
Tenant
chase
away
his
Beasts
,
which
were
within
view
,
out
of
the
Land
holden
,
and
there
the
Lord
distraine
;
Albeit
the
Distresse
be
(
in
that
case
)
taken
out
of
his
fee
and
Seigniory
,
yet
it
is
within
the
said
Statute
;
for
in
Iudgement
of
Law
the
Distress
is
lawfull
,
and
as
taken
within
his
fee
and
Seigniory
;
because
that
Statute
being
made
to
prevent
fraud
and
covin
admits
an
equitable
interpretation
,
as
aforesaid
:
So
it
is
also
,
if
his
Bayliff
do
it
,
tamen
quaere
de
hoc
,
but
for
Damage-feasant
the
Distresse
must
be
taken
upon
the
Land
,
&c.
Corpora
sua
carceri
mancipentur
.
And
the
Law
esteemed
perjury
in
this
kind
the
more
odious
,
and
afflicteth
the
greater
punishment
thereupon
,
because
the
tryalls
of
all
Actions
,
reall
,
personall
,
and
mixt
,
depend
upon
the
oath
of
twelve
men
,
and
prudent
Antiquity
inflicted
a
strange
and
severe
punishment
upon
them
,
if
they
were
attainted
of
falsehood
and
perjury
,
ut
poena
ad
paucos
,
metus
ad
omnes
perveniat
;
for
,
there
is
miserecordia
puniens
,
and
there
is
also
crudelitas
paucens
.
But
this
punishment
is
altered
by
the
Statute
of
23
H.
8.
cap.
3.
See
the
Statute
of
14
Eliz.
cap.
8.
concerning
this
matter
,
and
Co.
l.
1.
15.
Sir
William
Pethams
case
,
&
l.
3.
60.
&c.
in
invitum
;
but
if
it
be
by
consent
and
covin
,
such
Imprisonment
shall
not
avoid
an
Outlawry
,
because
upon
the
matter
it
is
his
own
act
.
to
which
Grant
he
attorned
,
and
therefore
if
he
hath
not
notice
of
the
Grant
,
or
(
which
is
all
one
)
true
notice
thereof
,
the
assent
,
which
he
gives
to
it
(
which
in
truth
is
but
part
of
the
Grant
)
the
Law
(
which
abhors
falsehood
)
will
not
construe
to
be
Attornment
to
the
true
Grant
.
Margaret
Podgers
case
.
Co.
l.
9.
105.
b.
1.
and
some
also
in
fee
,
demiseth
the
whole
to
another
for
life
,
and
then
levies
a
Fine
to
the
Tenant
for
life
and
his
Heires
of
so
many
Acres
as
amount
to
the
whole
Land
,
continues
Possession
,
and
payes
the
rents
to
the
Lord
,
five
years
passe
;
yet
(
in
this
case
)
the
Lord
is
not
barred
by
the
Statute
of
4
H.
7.
cap.
24.
For
the
makers
of
that
Statute
did
never
intend
that
such
a
Fine
levyed
by
fraud
and
practice
of
Tenant
for
years
,
at
will
,
or
by
copy
,
which
pretend
no
title
to
the
Inheritance
,
but
intend
the
disherison
of
their
Lessors
or
Lords
,
should
bar
them
of
their
Inheritance
,
and
this
appeares
by
the
preamble
of
the
said
Act
,
where
it
is
said
,
that
Fines
ought
to
be
of
greatest
strength
to
avoid
strifes
and
debates
:
but
when
Tenant
for
years
,
at
will
,
or
by
copy
,
make
Feoffment
by
assent
and
covin
,
that
a
Fine
should
be
levyed
,
this
is
not
to
avoid
strife
and
debate
,
but
by
assent
and
covin
,
to
begin
and
stir
them
up
;
And
therefore
that
Statute
did
not
intend
to
establish
any
such
estate
made
and
created
by
such
fraud
and
practice
,
which
(
being
fraudulent
)
is
(
upon
the
matter
)
no
estate
at
all
,
&c.
vide
pl.
ibid.
Vide
pl.
in
that
case
to
the
like
purpose
.
Queritur
ut
crescunt
tot
magna
volumina
Legis
;
In
promtu
causa
est
,
crescit
in
orbe
dolus
.
If
any
bargaine
,
buy
,
or
sell
,
&c.
any
right
or
title
in
or
to
any
Lands
,
or
Tenements
,
&c.
and
Copyholds
are
Lands
,
in
and
to
which
right
or
title
may
be
had
and
made
,
and
they
are
included
in
that
act
to
avoid
Suites
,
Maintenance
,
and
Champerty
,
and
(
by
consequent
)
fraud
and
deceit
,
per
Wray
.
And
note
,
that
in
Partridge
and
Crokers
case
in
Pl.
Co.
76.
A
Lease
for
years
is
adjudged
within
that
Act.
In
the
case
of
Ecclesiasticall
persons
.
Com.
S.
the
Defendant
saith
,
that
before
the
action
commenced
he
had
enfeoffed
A.
of
those
lands
;
against
which
the
Plaintiff
alleadged
and
proved
,
that
the
feoffment
was
by
fraud
,
unto
which
it
was
urged
,
that
the
fraud
ought
to
have
been
specially
pleaded
,
and
could
not
be
brought
in
evidence
:
but
it
was
adjudged
per
totam
Curiam
,
that
it
might
be
given
in
evidence
,
and
needed
not
to
be
specially
pleaded
;
1.
because
the
Statute
of
13.
Eliz.
5.
provides
generally
,
that
the
estate
,
as
to
the
creditor
shall
be
void
,
and
Acts
of
Parliament
made
for
prevention
and
Suppression
of
fraud
ought
to
have
a
benigne
interpretation
:
2.
If
that
matter
ought
to
be
pleaded
,
it
would
prove
mischievous
to
Creditors
,
and
would
tend
much
to
the
mainteinance
and
increase
of
fraud
and
covin
;
for
fraud
and
covin
(
because
they
are
odious
)
are
so
privily
hatched
in
an
hollow
tree
(
in
arbore
cava
&
opaca
)
and
so
artificially
contrived
and
concealed
,
that
the
partie
grieved
hath
no
meanes
to
find
or
know
them
,
and
then
to
force
the
Plaintiff
(
who
is
a
stranger
to
it
)
to
plead
the
feoffment
(
whereof
he
hath
no
notice
)
and
that
it
was
done
by
fraud
,
&c.
would
be
mischievous
,
and
against
Law
and
reason
;
and
thereupon
Iudgment
was
given
for
the
Plaintiff
.
per
Wray
;
but
see
the
like
case
agreed
and
resolved
per
totam
Curiam
P.
3.
Jac.
in
the
case
of
one
Standen
.
viz.
Divisibilias
in
indivisibilia
.
where
Tenant
for
life
or
yeares
have
demised
or
granted
,
to
the
intent
,
that
those
in
Reversion
,
(
viz.
their
Lessors
,
their
Heires
or
Assignes
)
should
not
know
their
names
,
and
afterwards
the
first
Tenants
continually
occupy
the
Lands
,
&c.
and
make
Wast
,
&c.
It
is
ordained
,
&c.
that
he
in
Reversion
(
in
such
case
)
shall
maintain
a
Writ
of
Wast
against
the
said
Tenants
for
life
or
yeares
;
yet
every
Assignee
of
the
first
Lessee
mediate
or
immediate
is
within
the
sayd
Act
,
albeit
not
therein
mentioned
:
Also
he
in
Remainder
is
within
the
Act
,
as
well
as
he
in
Reversion
,
albeit
both
in
the
Preamble
and
Body
of
the
Act
,
there
is
only
mention
made
of
him
in
Reversion
.
quia
de
alieno
delicto
,
&c.
But
if
the
Tenant
or
Defendant
plead
a
false
Deed
made
to
him
,
or
deny
his
own
Deed
,
and
it
is
found
against
him
,
or
if
he
relicta
verificatione
cognoscit
actionem
,
he
shall
be
fined
for
his
falsity
,
quia
certi
debemus
esse
de
proprio
facto
.
Mary
Shipleys
case
.
34.
If
an
Executor
plead
pleni
administravit
,
Ann
Bedingfeilds
case
.
Co.
ibid.
19.
a.
3.
35.
If
a
Feme
having
title
of
Dower
do
deceitfully
detaine
the
Charters
which
concerne
the
Lands
,
Arthor
Legats
case
.
35.
A
false
suggestion
in
the
Kings
Grant
(
being
the
words
of
the
Patentee
)
makes
the
Patent
void
:
tit
.
grant
58.
The
King
by
his
Letters
Patents
gives
licence
to
appropriate
the
Advowson
of
D.
to
the
Prior
of
C.
Quae
quidem
advocatio
non
tenetur
de
nobis
,
&c.
and
in
truth
the
Advowson
was
held
of
the
King
,
and
the
licence
was
held
void
,
for
the
Book
saith
,
that
the
suggestion
was
false
:
And
in
21
E.
4.
48.
if
the
King
grant
the
Mannor
of
D.
&c.
Quod
quidem
manerium
ad
manus
nostras
devenit
ratione
eschaet
.
&c.
and
in
truth
the
Mannor
did
not
come
to
the
King
by
escheat
,
in
this
case
also
the
Grant
was
void
,
and
the
reason
that
Hussey
cheife
Iustice
there
gives
is
,
for
that
,
the
falsehood
comes
of
the
surmise
of
the
party
.
Magdalen
Colledge
case
.
36.
A
Grant
to
the
Queen
by
the
Master
and
Fellowes
of
Magdelen
Colledge
in
Cambridge
,
Benedict
Spinola
Merchant
D●nizen
,
and
his
heires
,
was
adjudged
void
,
because
they
made
use
of
the
Queens
Prerogative
to
alien
the
Lands
of
the
Colledge
,
which
they
were
prohibited
to
do
by
the
Statute
of
13
Eliz.
within
which
Statute
the
Queen
is
included
:
So
if
one
intending
to
sell
his
Land
,
had
by
Fraud
conveyed
it
by
Deed
inrolled
to
the
Queene
,
with
purpose
to
deceive
the
Purchasor
,
and
after
he
sels
the
Land
for
a
valuable
consideration
,
and
makes
conveyance
accordingly
,
in
this
case
,
the
Purchasor
shall
enjoy
the
Land
against
the
Queen
by
the
Statute
of
27
Eliz.
4.
for
albeit
the
Queen
is
not
excepted
,
yet
the
act
being
generall
,
and
made
for
suppressing
of
fraud
,
shall
bind
the
Queen
,
&c.
vide
pl.
ibid.
Br.
Remitter
1.
Com.
Eliz.
Talbois
joyning
by
covin
with
W.
Talbois
in
being
taken
by
nihil
dicit
,
he
was
to
lose
her
estate
by
force
of
the
Stat.
of
11
H.
7.
and
the
Issue
in
tail
might
before
that
Statute
falsifie
a
feined
Recovery
by
covin
.
38.
The
11
H.
7.
20.
Marlebridge
cap.
6
are
,
de
his
,
qui
primogenitos
&
haeredes
suos
infra
aetatem
existentes
feoffare
solent
,
and
yet
if
the
first
be
dead
,
and
he
enfeoff
his
second
Son
,
which
is
his
heire
,
that
is
within
the
equity
of
the
Statute
,
or
if
he
levy
a
Fine
to
him
,
which
is
matter
of
Record
,
that
is
also
within
the
equity
of
the
Statute
,
albeit
the
Statute
speaks
of
Feoffment
:
And
the
reason
is
,
because
covin
is
alwayes
abhorred
in
our
Law
,
and
Statutes
made
for
the
suppression
thereof
,
are
made
for
the
publick
good
,
and
therefore
shall
be
extended
by
equity
:
In
like
manner
,
1
H.
7.
cap.
1.
which
gives
a
Writ
of
Formedon
in
Remainder
against
the
perner
of
the
profits
,
was
made
for
the
suppression
of
covin
,
for
a
Feoffment
made
to
persons
unknown
to
defraud
those
that
right
had
,
&c.
vide
pl.
ibid.
41.
The
Statute
of
31
Eliz.
6.
158.
Jus
&
Fraus
numquam
Cohabitant
.
Eliz.
cap.
8.
For
avoiding
of
Recoveries
suffered
by
collusion
by
Tenant
for
life
,
&c.
but
a
Recovery
cannot
be
said
to
be
by
collusion
,
where
Tenant
in
tail
is
in
the
Recovery
,
either
Tenant
in
Fait
or
Tenant
in
Law
,
as
Vouchee
;
for
the
Law
(
as
an
incident
to
his
estate
)
hath
made
the
Land
and
all
Remainders
and
Reversions
subject
to
his
pleasure
,
and
he
hath
right
and
power
to
bar
them
all
,
and
Jus
&
Fraus
numquam
Cohabitant
;
And
therefore
the
title
of
the
Act
being
,
For
avoyding
of
Recoveries
by
collusion
,
&c.
it
cannot
extend
to
a
Recovery
,
where
Tenant
in
tail
is
party
or
privy
.
159.
Quando
aliquid
prohibetur
fieri
,
ex
directo
prohibetur
&
per
obliquum
.
I.
S.
or
any
of
his
Heires
or
Issues
,
&c.
this
is
good
;
for
he
doth
not
restraine
the
Feoffee
of
all
his
power
;
howbeit
if
he
enfeoff
I.
N.
with
intent
and
purpose
,
that
he
should
enfeoff
I.
S.
some
held
,
that
it
is
a
breach
of
the
Condition
:
So
if
a
Feoffment
be
made
upon
Condition
,
that
the
Feoffee
shall
not
alien
in
Mortmaine
,
this
is
good
,
because
such
alienation
is
prohibited
by
Law
,
and
(
regularly
)
whatsoever
is
prohibited
by
Law
,
may
be
prohibited
by
Condition
;
but
(
in
this
case
)
if
the
Feoffee
enfeoff
I.
S.
with
intent
,
that
he
shall
alien
the
Land
in
Mortmaine
,
it
seemes
to
be
a
breach
of
the
Condition
:
In
ancient
Deeds
of
Feoffment
in
fee
there
was
usually
this
clause
,
Quod
licitum
sit
donatorio
rem
datam
dare
vel
vendere
cui
voluerit
,
exceptis
viris
religiosis
&
Judaeis
.
Magdalen
Colledge
case
.
grant
an
House
in
London
to
Queen
Eliz.
upon
Condition
that
she
within
three
moneths
should
convey
it
to
Benedict
Spinola
and
his
Heirs
,
who
doth
so
accordingly
;
this
Grant
of
the
Colledge
is
void
by
the
Statute
of
the
13
Eliz.
10.
and
was
not
helped
by
the
Statute
of
Confirmation
of
the
18
Eliz.
2.
for
it
appeared
,
that
the
intent
of
the
Master
and
Fellowes
was
,
that
they
should
convey
the
said
House
to
Benedict
.
Spinola
and
his
heires
;
and
therefore
that
which
they
could
not
do
de
directo
,
they
attempt
to
do
ex
obliquo
,
to
grant
it
to
the
Queen
and
her
Successors
,
but
upon
Condition
contained
in
the
same
Grant
,
that
the
Queen
within
three
moneths
should
grant
the
House
to
B.
Sp.
and
his
Heires
,
so
as
it
was
by
this
device
endeavoured
,
that
the
Queen
,
who
was
the
Fountaine
of
Iustice
,
should
be
made
an
Instrument
of
injury
and
wrong
,
and
of
the
violation
of
a
pious
and
excellent
Law
,
which
she
her selfe
had
made
for
the
maintenance
of
Religion
,
advancement
of
learning
,
and
sustenance
of
poore
people
.
John
Merite
,
who
was
seised
of
ten
Acres
of
Meadow
holden
of
the
Bishop
of
Winchester
,
to
have
the
said
ten
Acres
of
Meadow
,
for
a
place
of
habitation
for
them
,
and
because
John
Merite
could
not
grant
unto
them
the
ten
Acres
by
reason
of
the
Statute
of
Mortmaine
,
by
covin
contrived
betwixt
Merite
and
the
Fryers
to
oust
the
Bishop
of
his
Seigniory
,
Merite
(
to
evade
the
Statute
of
Mortmaine
)
grants
the
ten
Acres
to
the
King
,
his
Heirs
and
Successors
,
whereby
the
Bishops
Seigniory
might
be
extinct
,
to
the
end
that
the
King
should
grant
them
over
to
the
Fryers
,
which
he
did
accordingly
:
Howbeit
,
because
here
there
was
a
practice
betwixt
Merite
and
the
Fryers
to
take
away
the
Bishops
Seigniory
,
it
was
adjudged
,
that
the
Charter
should
be
repealed
,
and
that
the
Carmelites
should
be
distrained
to
deliver
it
to
be
cancelled
.
Term.
Trin
:
24.
E.
3.
Rot.
4.
in
the
Exchequer
,
Walter
Chirton
,
the
Kings
Customer
,
had
purchased
certaine
Lands
with
the
Kings
money
,
and
by
covin
had
caused
the
Vendor
to
enfeoff
his
freinds
in
fee
to
defraud
the
King
,
and
yet
neverthelesse
took
the
Issues
and
profits
of
the
Land
to
his
own
use
,
and
those
Lands
were
by
inquisition
returned
with
the
values
into
the
Exchequer
,
and
there
by
Iudgement
were
seised
into
the
Kings
hands
,
untill
,
&c.
for
albeit
the
estate
of
the
Land
was
never
in
Chirton
,
yet
the
taking
of
the
estate
in
the
name
of
others
,
and
he
in
the
meane
time
receiving
the
profits
thereof
,
was
all
one
,
as
if
he
had
taken
the
estate
in
his
own
name
,
especially
in
the
Kings
case
,
and
the
lands
being
bought
with
the
Kings
money
.
Kings
Bench
;
Howbeit
the
King
having
notice
of
the
Fraud
,
by
a
privy
Seale
commands
the
Iustices
to
stay
the
Araignment
,
&c.
160.
Rectum
est
index
sui
&
Obliqui
.
Suttons
Hospitall
Sir
Edward
Coke
excuseth
himselfe
from
answering
the
Objections
in
that
case
at
large
,
(
being
,
Formedon
in
Descender
,
Nul
tiel
Record
,
at
the
day
the
Tenant
had
the
Record
,
but
in
the
Proclamations
,
viz.
5
,
6
,
7
,
8.
made
in
Trin.
Terme
,
the
yeare
of
the
King
was
omitted
;
Howbeit
because
in
Easter
Terme
before
,
and
Michaelmas
Terme
after
,
30
H.
8.
was
exprest
,
of
necessity
it
did
follow
,
that
the
said
foure
Proclamations
were
also
made
in
the
same
yeare
,
for
they
being
right
,
by
consequence
the
others
were
right
also
;
And
thereupon
it
was
held
,
that
he
had
not
failed
of
the
Record
.
161.
It
disfavoureth
Improbabilities
.
Hugh
Cholmelies
case
.
in
Magdalen
Colledge
case
.
Co.
l.
11.
70.
b.
3.
2.
A
remote
possibility
is
never
intended
by
Law
;
B.
B.
grants
all
his
Estate
to
C.
for
the
life
of
A.
this
Grant
is
void
,
because
it
is
impossible
it
should
ever
take
effect
;
and
whereas
(
in
that
case
)
it
was
objected
that
A.
might
enter
into
Religion
and
be
profest
,
whereupon
the
Grantee
might
enter
and
enjoy
the
Land
,
during
the
naturall
life
of
A.
it
was
answered
and
resolved
,
That
that
was
a
Forraigne
possibility
,
and
not
probable
nor
imaginable
in
Law
;
for
a
possibility
which
makes
a
Remainder
good
,
must
be
Potentia
propinqua
a
common
possibility
;
and
not
Potentia
remota
:
And
therefore
a
Remainder
will
not
vest
in
a
thing
or
person
that
is
not
in
Esse
,
at
the
time
of
the
Grant
made
,
unless
at
the
same
time
there
be
Potentia
propinqua
,
or
a
pregnant
probability
that
it
may
take
effect
;
as
a
Remainder
granted
to
a
Corporation
,
not
in
being
at
the
time
of
the
Grant
made
,
is
void
,
albeit
the
Corporation
be
erected
afterwards
during
the
particular
Estate
,
because
that
is
Potentia
remota
,
and
improbable
;
But
if
a
Lease
be
made
for
life
,
the
Remainder
to
the
right
Heires
of
I.
S.
this
is
good
;
for
by
common
possibility
that
I.S.
may
dye
,
during
the
life
of
Tenant
for
life
,
and
untill
he
dye
,
his
Heires
are
in
him
;
Howbeit
if
at
the
time
of
the
limitation
of
the
Remainder
,
there
be
no
such
person
as
I.S.
but
during
the
life
of
Tenant
for
life
I.S.
is
borne
and
dyes
,
his
Heir
shall
never
take
it
,
&
Futuro
,
and
therefore
such
a
possibility
,
which
peradventure
will
never
happen
,
shall
not
barre
present
and
due
debts
by
Obligation
,
or
other
specialties
.
Leonard
Lovies
his
case
.
Remainder
to
another
in
taile
,
Remainder
to
his
right
Heirs
with
power
to
make
Leases
for
Life
,
Lives
,
or
Yeares
,
without
any
restraint
of
Lives
or
Yeares
,
and
further
to
the
uses
to
be
exprest
in
his
last
Will
,
or
to
the
use
of
such
person
or
persons
,
unto
whom
he
shal
by
his
last
Will
devise
any
Estate
or
Estates
thereof
:
In
this
case
,
the
Estate
in
Taile
is
incontingency
,
for
by
those
or
the
like
words
he
may
devise
the
Land
to
any
person
in
Taile
or
in
Fee
:
And
therefore
,
because
it
is
very
improbable
,
that
the
Estate
tail
may
ever
take
effect
,
it
shall
not
(
in
this
case
)
presently
vest
by
the
statute
of
27
H.
8.
but
shall
be
said
to
be
in
contingency
,
so
as
,
if
he
by
such
power
alter
not
the
Estates
so
limited
,
it
may
happen
to
take
effect
,
but
if
otherwise
,
it
will
vanish
and
come
to
nothing
,
Vide
pl.
ibidem
.
162.
Uncertainties
,
by
which
the
truth
may
be
inveigled
.
Cum
tota
sequela
sua
,
Fleta
,
lib.
3.
cap.
8.
So
likewise
,
the
Law
useth
peculiar
words
for
Tenures
,
Persons
,
Offences
,
Formes
of
Originall
Writs
,
Warranty
,
Exchange
,
&c.
and
all
this
to
procure
certaine
expressions
,
and
to
prevent
uncertainty
for
the
reason
aforesaid
.
B.
In
forma
predicta
,
this
is
a
good
Estate
Taile
to
B.
for
that
the
words
,
In
forma
predicta
,
do
include
the
other
;
but
if
a
man
let
Lands
to
A.
for
life
,
the
Remainder
to
B.
in
Taile
,
the
Remainder
to
C.
In
forma
predicta
,
this
Remainder
is
void
for
the
uncertainty
.
12
d.
before
Assignment
,
because
the
demand
was
uncertain
:
So
it
is
if
two
Tenants
in
Common
be
,
and
the
wife
of
one
of
them
bring
a
Writ
of
Dower
to
be
endowed
of
a
third
part
of
a
moiety
,
and
have
Iudgement
to
recover
,
yet
cannot
she
enter
without
assignment
,
35
H.
6.
29.
That
a
Plow
may
till
more
Land
in
one
yeare
in
one
Country
,
then
in
another
.
super
salva
custodia
Caliciae
,
&c.
and
not
to
Carlile
or
Wales
,
which
are
within
the
Realme
,
or
the
like
,
but
it
may
be
to
Ireland
or
Scotland
,
because
they
are
distinct
Kingdomes
,
or
to
Calice
,
Aquitaine
,
or
the
like
,
but
a
Protection
granted
to
one
,
&c.
untill
he
returne
from
Scotland
was
in
1
E.
3.
25.
disallowed
for
the
uncertainty
of
the
time
;
So
likewise
a
Protection
,
Quia
moratur
super
altum
mare
,
will
not
serve
,
not
onely
because
(
as
some
think
)
that
Mare
non
moratur
,
or
for
that
a
great
part
of
the
Sea
is
within
the
Realme
of
England
,
but
likewise
for
the
uncertainty
of
the
place
.
Sampson
Leonards
case
,
who
marryed
Margaret
the
onely
Sister
and
Heire
of
Gregory
Fines
Lord
Dacre
of
the
South
,
and
in
the
case
of
William
Lord
Rosse
;
for
in
such
case
there
can
be
no
uncertainty
,
when
there
is
but
one
Daughter
,
or
Sister
:
Howbeit
,
where
there
are
more
Daughters
then
one
,
the
eldest
shall
not
have
the
Dignity
and
power
of
the
Earle
,
viz.
to
be
a
Countesse
;
but
(
in
such
case
)
the
King
,
who
is
the
Soveraigne
of
honor
and
dignity
,
may
for
the
uncertainty
confer
the
dignity
upon
which
of
the
Daughters
he
please
;
Howbeit
the
Lands
shall
be
divided
betwixt
them
,
as
amongst
Parceners
,
for
they
are
divisible
and
certaine
.
Nullum
medicamentum
is
idem
omnibus
,
so
in
the
state
and
assurance
of
a
mans
Lands
,
Nullum
exemplum
est
idem
omnibus
.
utile
per
inutile
non
vitiatur
,
and
necessary
incidents
required
by
Law
,
the
Iury
may
find
:
Howbeit
,
a
Verdict
finding
matter
uncertainly
or
ambiguously
is
insufficient
,
and
no
Iudgement
shall
be
given
thereupon
;
as
if
an
Erecutor
plead
plene
administravit
,
and
Issue
is
joyned
thereupon
,
and
the
Iury
finde
,
that
the
Defendant
hath
goods
in
his
hands
to
be
administred
,
but
find
not
to
what
value
,
this
is
uncertaine
and
therefore
insufficient
:
so
a
Verdict
,
that
finds
part
of
the
Issue
,
and
nothing
for
the
residue
,
is
insufficient
for
the
whole
;
because
they
have
not
tryed
the
whole
Issue
,
whereby
they
are
charged
:
As
if
an
Information
of
Intrusion
be
brought
against
one
for
intruding
into
a
Messuage
,
and
one
hundred
Acres
of
land
,
upon
the
generall
Issue
,
the
Iury
find
against
the
Defendant
for
the
Land
,
but
say
nothing
for
the
House
,
this
is
insufficient
for
the
whole
,
and
so
it
was
twice
adjudged
,
viz.
H.
25
Eliz.
in
a
Writ
of
Error
in
the
Exchequer
Chamber
inter
Brace
and
the
Queene
,
and
M.
28
,
&
29
Eliz.
inter
Gomersall
and
Gomersall
in
account
in
Banco
Regis
.
27
H.
8.
for
money
bargaineth
and
selleth
the
Land
to
C.
and
his
Heirs
,
A
Fortiori
,
if
the
Lord
by
one
Deed
grant
his
Seigniory
to
I.
Bishop
of
London
and
to
his
heirs
,
and
by
another
Deed
to
I
Bishop
of
London
,
and
to
his
Successors
,
and
the
Tenant
attorne
to
both
Grants
,
this
Attornment
is
void
for
both
Grants
;
for
albeit
the
Grantee
be
but
one
person
,
yet
he
having
severall
capacities
,
and
the
Grants
being
severall
,
the
Attornment
is
not
according
to
either
of
the
Grants
,
and
(
by
consequent
)
void
for
the
uncertainty
.
&
heredibus
,
it
is
void
for
the
insensibility
and
incertainty
;
And
although
it
hath
a
clause
of
Warranty
to
them
and
their
heires
,
this
shall
not
make
the
first
words
which
are
incertaine
and
insensible
,
to
be
of
force
and
effect
in
Law
,
albeit
his
intent
appeare
;
but
his
intent
ought
to
be
declared
by
words
certaine
and
consonant
to
Law
.
24.
In
an
Indenture
of
bargaine
and
sale
for
twenty
pounds
,
40
l.
payment
of
the
20
l.
is
no
Plea
without
an
Acquittance
;
albeit
,
proofe
may
be
made
of
the
payment
of
the
20
l.
yet
without
an
Acquittance
it
remaines
uncertaine
whether
the
Covenants
were
performed
,
and
what
other
agreements
there
were
betwixt
the
parties
by
Spilman
,
Fitzherbert
,
and
Shelley
,
and
28
H.
8.
25.
accords
,
Tamen
Quaere
,
for
Dyer
seemes
to
be
of
another
opinion
.
negative
pregnant
is
disfavoured
in
Law
,
for
the
uncertainty
;
de
proxim
.
hundred
.
adjacente
,
&
non
potuit
habere
;
for
the
Court
are
not
to
beleive
the
Councels
suggestion
for
the
uncertainty
thereof
,
but
ought
to
have
it
ascertained
by
the
returne
of
the
Sheriff
,
who
is
a
sworn
Officer
.
M.
34.
&
35
Eliz.
But
if
a
man
possest
ef
a
Lease
for
forty
years
grants
to
B.
so
many
of
the
yeares
as
shall
be
behind
,
tempore
mortis
suae
,
this
is
void
for
the
uncertainty
,
as
it
is
agreed
in
7
E.
6.
Br.
Grants
154.
and
in
Pl.
Com.
520.
b.
So
if
a
man
have
a
Lease
for
life
by
Deed
indented
with
Proviso
,
that
if
the
Lessee
dye
within
sixty
yeares
,
that
the
Executors
of
the
Lessee
shall
have
it
for
so
many
years
as
shall
be
behind
at
the
time
of
his
death
,
this
is
but
a
Covenant
,
and
not
a
Lease
for
the
uncertainty
:
Vide
3
,
&
4
,
P.
&
M.
Gravenors
case
,
Dyer
150.
a.
&
22.
Ass.
Pl.
37.
not
damnified
,
it
had
been
well
enough
.
2.
because
the
Defendant
did
not
shew
,
that
the
Release
concerned
the
Land
.
omnia
illa
messuagia
in
tenura
Johannis
Browne
scituate
in
Wells
,
Merleston
cum
pertin
.
and
the
Writ
of
Error
was
to
remove
a
Recovery
of
the
Mannor
of
Merleston
in
Merleston
cum
pertin
.
this
is
no
good
removall
of
the
Record
for
the
uncertainty
,
because
the
true
Record
was
not
removed
,
Tamen
quaere
.
32.
&
34
H.
8.
of
Wills
,
because
the
yearly
value
of
such
Hereditaments
is
altogether
uncertaine
,
and
therefore
they
are
usually
called
casualties
.
I.
S.
and
one
of
them
saith
,
he
is
a
notorious
theife
;
in
this
case
,
I.
S
in
his
count
may
shew
,
that
there
was
speech
of
him
betwixt
them
,
and
that
the
one
said
of
him
,
He
(
innuendo
pred
.
I.S.
is
a
notorious
Theif
;
for
the
Office
of
an
Innuendo
is
to
design
the
same
person
which
was
named
in
certaine
before
,
and
in
effect
standeth
in
the
place
of
a
Predict
.
But
an
Innuendo
cannot
make
that
person
certain
which
was
uncertaine
before
,
as
if
one
say
without
any
precedent
Communication
,
that
one
of
the
Servants
of
I.S.
(
he
having
divers
)
is
a
notorious
Felon
or
Traitor
,
&c.
here
,
for
the
uncertainty
of
the
Person
,
no
Action
lies
,
and
an
Innuendo
cannot
make
it
certaine
;
so
if
one
say
generally
,
I
know
one
neer
about
I.S.
who
is
a
notorious
Theife
,
and
the
like
:
And
as
an
Innuendo
cannot
make
the
person
certain
which
was
uncertain
before
,
so
an
Innuendo
cannot
alter
the
matter
or
sense
of
the
words
themselves
,
as
if
one
speaking
of
I.S.
saith
,
He
is
full
of
the
Pocks
,
here
the
Plaintiff
cannot
say
Innuendo
,
the
French
Pocks
,
for
thereby
he
strives
to
extend
the
generall
words
,
The
Pocks
to
the
French
pocks
by
imagination
of
an
Intent
,
which
was
not
apparent
by
any
precedent
words
,
which
the
Law
will
not
suffer
for
the
uncertainty
,
for
it
would
be
inconvenient
,
that
Actions
should
be
maintained
upon
a
meer
imagination
of
an
intent
,
which
appears
not
by
the
words
,
upon
which
the
Action
is
grounded
,
but
is
altogether
uncertaine
,
and
subject
to
a
loose
conjecture
.
Totam
illam
portionem
decimorum
,
&c.
in
D.
nunc
vel
nuper
in
tenura
Io.
Corbet
,
and
Corbet
never
had
Tithes
there
,
this
Grant
is
void
for
the
uncertainty
in
the
case
of
a
common
person
,
A
fortiori
,
in
the
Queens
.
Unam
plagam
mortalem
circiter
pectus
,
and
it
was
adjudged
insufficient
for
the
uncertainty
;
for
it
might
be
in
the
neck
,
in
the
arme
,
or
in
the
belly
,
and
an
Indictment
ought
to
expresse
in
certaine
as
well
in
what
part
the
mortall
wound
is
,
as
the
depth
and
breadth
of
it
,
to
the
end
it
may
appeare
to
the
Court
to
be
mortall
;
and
because
it
was
said
that
he
dyed
De
vulueribus
&
plagis
praedict
.
and
one
of
them
was
uncertainly
alledged
,
that
made
the
Indictment
insufficient
as
to
all
.
M.
32.
&
33.
Eliz.
In
scaccario
.
Barth
.
Reads
case
.
42.
If
Land
of
the
yearly
value
of
20
l.
per
ann
,
10
l.
thereof
for
his
Salary
,
and
shall
distribute
other
ten
pounds
to
certain
poor
people
;
in
this
case
by
the
Statute
of
1
E.
6.
14.
the
King
shall
have
but
the
10
l.
limited
to
the
Priest
,
and
not
the
Land
;
howbeit
if
the
same
Land
were
given
to
finde
the
Priest
,
and
for
the
maintenance
of
20
poor
men
,
in
this
case
the
King
shall
have
all
the
Land
,
albeit
the
Preist
hath
10
l.
thereof
,
and
the
poor
men
the
other
10
l.
And
the
reason
of
this
diversity
is
,
because
in
the
first
case
there
was
a
good
use
separate
and
distinct
in
certain
from
the
superstitious
use
,
but
in
the
other
case
it
was
left
altogether
uncertaine
how
much
the
Priest
,
and
how
much
the
poor
men
should
have
,
and
therefore
in
such
case
the
King
shall
have
all
.
4
l.
6
s.
8
d.
devised
them
upon
Condition
to
finde
an
Obit
,
spending
thereat
so
much
as
the
devisees
should
in
their
discretions
think
fit
,
the
Devisees
expend
only
upon
the
Obit
,
6
s.
8
d.
per
annum
,
and
it
was
adjudged
that
the
Queen
Elizabeth
,
should
have
all
the
houses
,
because
the
appointment
was
uncertain
,
albeit
the
imployment
was
certaine
.
May
,
Anno
25.
Eliz.
to
have
and
to
hold
for
three
years
from
henceforth
,
June
anno
praed
.
In
this
case
the
Lease
shall
end
upon
the
19
day
of
Iune
in
the
third
yeare
;
for
the
Law
in
this
computation
rejecteth
all
Fractions
and
Divisions
of
a
day
for
the
uncertainty
,
which
is
alwaies
the
Mother
of
contention
.
Et
cum
quolibet
eorum
,
they
cannot
sue
severally
,
unlesse
their
interests
were
severall
;
as
if
a
man
by
Indenture
deviseth
Black
Acre
to
A.
White
Acre
to
B.
and
Green
Acre
to
C.
and
covenants
with
them
,
Et
quolibet
eorum
,
that
he
is
lawfull
owner
of
the
said
Acres
;
in
this
case
in
respect
of
their
severall
Interests
,
by
the
words
,
quolibet
eorum
,
the
Covenant
is
made
severall
;
but
if
he
demise
the
acres
to
them
joyntly
,
then
the
words
,
Cum
quolibet
eorum
are
void
for
the
uncertainty
;
for
albeit
diverse
persons
may
bind
themselves
,
&
quolibet
eorum
,
and
so
the
Obligation
shall
be
joynt
or
severall
,
at
the
election
of
the
Obligee
,
yet
a
man
cannot
bind
himselfe
to
three
,
and
to
each
of
them
to
make
it
joynt
or
severall
at
the
election
of
severall
persons
for
one
and
the
same
cause
,
for
the
Court
will
be
in
doubt
for
which
of
them
to
give
judgement
,
which
the
Law
will
not
suffer
:
As
it
was
held
in
3
H.
6.
44.
where
one
brought
a
Replevin
for
one
beast
against
two
,
who
made
several
avowries
,
each
of
them
by
himself
in
his
own
right
,
and
there
(
by
the
advise
of
all
the
Iustices
)
both
the
Avowries
abated
for
the
inconvenience
and
uncertainty
;
because
,
if
both
the
Issues
should
have
been
found
for
the
Avowants
,
the
Court
could
not
have
given
Iudgment
to
them
severally
of
the
same
thing
.
48.
M.
is
Baile
for
C.
in
an
Action
where
H.
is
Plaintiff
,
Co.
l.
10.
51.
a.
1.
in
Lampets
case
.
13
Eliz.
12.
but
from
the
Ordinary
himselfe
,
Notitia
non
debet
claudicare
.
I.
S.
for
so
many
yeares
,
I.
N.
hath
in
the
Mannor
of
S.
and
he
hath
ten
years
in
it
,
such
Term
shall
I.
S
have
in
the
Mannor
of
D.
so
if
a
Lease
be
made
to
another
during
the
minority
of
I.
S.
and
he
is
of
the
age
of
ten
yeares
,
this
is
a
good
Lease
for
11
years
,
if
I.S.
so
long
live
,
because
such
Leases
have
a
certaine
commencement
and
a
certaine
end
;
but
if
the
wife
of
I.S.
be
great
with
childe
,
and
a
Lease
be
made
untill
the
issue
in
ventre
sa
mere
,
shall
come
to
full
age
,
this
is
no
good
Lease
for
the
uncertainty
;
for
at
the
time
when
the
Lease
is
to
take
effect
,
it
is
uncertain
when
the
child
will
be
borne
,
and
(
by
consequent
)
the
commencement
,
continuance
,
and
end
,
of
that
Lease
is
uncertaine
,
and
therefore
void
:
So
if
a
man
let
Land
of
the
value
of
20
s.
per
annum
,
untill
21
l.
be
levied
of
the
Issues
and
profits
,
without
Livery
,
this
is
but
a
Lease
at
Will
for
the
uncertainty
,
for
it
is
not
certain
that
the
Land
will
hold
to
be
every
yeare
of
one
and
the
same
yearely
value
,
vid.
plus
ibidem
.
52.
Vide
Max.
36.
1.
John
Nedhams
case
.
57.
An
Administrator
cannot
plead
uncertainly
and
in
generall
,
Bona
notabilia
;
but
he
ought
to
plead
them
in
certain
,
for
otherwise
it
will
be
intended
that
the
Intestate
had
not
Bona
notabilia
,
in
severall
Diocesses
.
Edw.
Althams
case
.
58.
If
a
man
by
Deed
gives
goods
to
one
of
the
sons
of
I.
S
who
hath
divers
Sons
;
here
,
he
shall
not
take
averment
which
son
he
meant
,
for
by
judgement
of
Law
upon
this
Deed
,
this
gift
is
void
for
the
uncertainty
,
which
cannot
be
supplyed
by
averment
,
Vide
11
E.
4.
2.
Ann
Bedingfeilds
case
.
59.
In
Dower
,
upon
plea
of
detainer
of
Charters
,
in
bar
thereof
,
Co.
l.
9.
110.
a.
2.
Strata
Mercella
.
60.
In
the
case
of
the
Abbot
De
Strata
Mercella
,
Quod
pred
.
Abbas
licite
habuit
bona
felonum
,
&c.
And
yet
shewed
not
his
case
in
so
certain
and
speciall
manner
that
the
Court
might
adjudge
whether
the
Abbot
by
the
Law
had
Felons
goods
or
no
;
And
thereupon
his
plea
was
adjudged
insufficient
for
the
Vncertainty
:
So
also
it
is
agreed
in
22
E.
4.
40.
The
Lord
Lisles
case
,
where
one
was
bound
in
an
Obligation
upon
Condition
that
he
should
come
to
B.
such
a
day
and
shew
the
Obligee
or
his
Councill
a
sufficient
discharge
of
an
Annuity
of
40
s.
which
he
claimed
out
of
two
houses
,
&c.
And
in
Debt
upon
this
Obligation
,
the
Defendant
pleaded
,
that
he
came
to
B.
at
the
day
aforesaid
,
and
there
offered
to
shew
to
the
Plaintiff
and
his
Councill
a
sufficient
discharge
,
and
that
they
refused
to
see
it
,
upon
which
the
Plaintiff
demurred
in
Law
;
And
it
was
adjudged
that
the
plea
was
insufficient
,
for
the
plea
ought
to
have
alledged
what
manner
of
discharge
in
certain
he
offered
to
shew
,
viz.
a
Release
,
unity
of
possession
,
or
other
matter
of
discharge
,
whereupon
the
Court
might
have
adjudged
whether
it
had
been
sufficient
,
or
no.
61.
In
Ravishment
de
Gard
,
Westm.
2.
35.
)
The
Iurors
found
generally
,
that
the
Ward
was
married
,
and
that
at
the
time
of
his
marriage
,
he
was
eighteen
years
old
and
upwards
,
&c.
and
this
was
adjudged
an
insufficient
Verdict
;
because
it
is
not
only
thereby
left
uncertain
who
procured
him
to
be
married
,
viz.
Whether
the
Ravishor
,
a
stranger
,
or
the
Plaintiff
himselfe
,
or
that
the
Ward
of
his
own
accord
married
himselfe
;
but
also
it
is
uncertaine
in
the
time
when
he
was
married
,
whether
before
or
after
the
Ravishment
;
And
therefore
it
is
well
sayd
in
30
E.
3.
23.
That
the
Verdict
ought
to
be
such
that
the
Iudges
may
cleerly
proceed
to
Iudgement
,
and
(
by
consequent
)
ambiguous
and
uncertaine
Verdicts
are
insufficient
and
void
,
as
in
40
E.
3.
15.
in
Debt
against
Executors
,
they
plead
fully
administred
,
&c.
the
Iurors
finde
that
they
have
goods
in
their
hands
,
but
do
not
say
to
what
value
,
and
for
this
uncertainty
their
Verdict
was
held
insufficient
and
void
,
See
more
authorities
,
ut
supra
62.
A.
seised
of
the
Mannor
of
D.
levies
a
Fine
to
uses
with
power
of
Revocation
,
upon
payment
of
40
s.
to
the
Conusee
,
Marg.
Podgers
case
.
&
being
likewise
seised
of
the
Mannor
of
S.
levies
another
Fine
thereof
to
the
same
Conusee
,
but
to
other
uses
,
with
like
power
of
Revocation
upon
payment
of
40
s.
to
the
said
Conusee
;
Afterwards
A.
payes
40
s.
to
the
Conusee
for
revocation
of
all
the
uses
raised
upon
both
the
Fines
,
and
this
payment
was
testified
in
writing
under
the
Seales
of
the
parties
;
In
this
case
none
of
the
uses
are
revoked
,
but
the
Revocation
is
utterly
void
for
the
uncertainty
;
because
two
severall
summs
of
40
s.
should
have
been
tendred
,
and
not
one
summ
onely
,
for
they
were
severall
Indentures
,
and
severall
Mannore
,
and
could
not
be
satisfied
by
one
summ
,
because
it
was
thereby
left
uncertain
,
which
uses
,
and
of
which
Mannor
the
Revocation
was
meant
.
Menel
Treshams
case
.
Quod
ipse
non
habet
,
&c.
aliqua
bona
,
&c.
praeter
bona
,
&c.
quae
non
sufficiunt
ad
satisfacienda
debita
predicta
;
but
he
ought
to
plead
,
Quod
non
habet
,
&c.
bona
,
&c.
praeterquam
bona
&
cattalla
ad
valentiam
of
a
certaine
summe
,
Et
non
ultra
,
quae
eiisdem
debitis
obligata
,
&
onerabilia
existunt
,
&c.
for
the
first
plea
is
insufficient
for
the
uncertainty
,
because
the
Plaintiff
cannot
reply
thereupon
,
so
as
a
certain
Issue
may
be
taken
.
I.
S.
and
the
Lessee
is
disseised
,
and
the
eldest
Son
of
I.S.
releaseth
to
the
disseisor
,
and
after
I.
S.
dyes
;
In
this
case
the
Release
is
voyd
for
the
uncertainty
,
whether
or
no
he
shal
be
right
heir
at
the
death
of
his
Father
:
So
likewise
in
17
Eliz
a
man
lets
to
Baron
and
Feme
for
21
years
,
the
Remainder
to
the
survivor
of
them
for
21
yeares
,
and
the
Baron
grants
over
this
term
,
here
also
the
grant
is
void
for
the
uncertainty
of
the
person
,
for
albeit
of
all
Chattels
reall
,
which
are
the
Femes
,
the
Baron
may
dispose
,
yet
in
this
case
neither
the
Baron
nor
Feme
had
any
thing
untill
the
Survivor
,
&c.
Entre
sur
disseisin
,
Rob.
Pi●folds
case
.
66.
In
Trespasse
the
Plaintiff
counts
for
damages
twenty
marks
,
Hen.
Harpers
case
.
67.
An
Ejectione
firmae
brought
de
omnibus
&
omnimodis
decimis
in
W.
without
saying
garborum
,
faeni
,
lavae
,
&c.
7
E.
6.
Dyer
84.
prosalute
animae
,
without
expressing
any
cause
in
speciall
,
are
against
Law
,
for
which
the
party
greived
may
sue
a
prohibition
against
the
Bishop
,
and
thereupon
an
Attachment
,
if
the
prohibition
be
not
obeyed
;
And
such
cause
ought
to
be
onely
Matrimoniall
or
Testamentary
.
Que
estate
,
without
shewing
how
he
comes
by
the
estate
,
yet
in
a
Replication
if
he
plead
Que
estate
generally
,
it
is
not
good
,
as
it
is
held
in
2
E.
4.
but
he
ought
to
shew
how
he
comes
by
the
estate
for
the
cause
aforesaid
.
22
E.
4.
in
a
Scire
facias
to
have
execution
of
two
hundred
acres
of
Land
,
the
Tenant
pleads
that
since
the
Scire
facias
sued
,
I.S.
brought
a
Formedon
of
one
hundred
Acres
inter
alia
,
and
recovered
and
had
execution
,
Iudgement
of
the
Writ
for
that
parcell
,
and
this
Plea
was
not
held
good
,
for
it
is
not
the
right
forme
of
pleading
such
a
Recovery
,
because
a
Recovery
ought
to
be
certainly
pleaded
to
every
intent
,
and
these
words
inter
alia
are
certaine
to
no
intent
;
but
there
it
is
held
,
that
he
ought
to
have
pleaded
,
that
I.
S.
brought
a
Formedon
of
two
hundred
Acres
,
whereof
those
one
hundred
Acres
now
in
demand
are
parcell
,
and
hath
recovered
,
and
hath
had
execution
.
3
E.
4.
A
man
retained
in
Husbandry
brings
an
Action
of
debt
against
a
Prioresse
for
his
salary
,
and
declares
,
that
he
was
retained
with
his
Predecessor
,
and
shewes
not
the
person
that
retained
him
,
this
count
abated
for
the
uncertainty
;
for
it
might
be
,
that
one
,
who
had
not
Warranty
,
retained
him
for
the
Predecessor
:
Sometimes
the
Count
and
Writ
also
may
be
generall
without
certainty
,
as
in
Assizes
,
but
there
the
certainty
ought
to
be
shewed
by
the
Replication
:
sometimes
the
Writ
,
Count
,
and
Replication
may
be
uncertaine
,
but
then
the
certainty
ought
to
appeare
by
the
Verdict
,
as
in
a
Quare
Impedit
,
the
value
appeares
not
in
the
Count
,
nor
in
the
Replication
,
but
it
will
appeare
by
the
Verdict
,
for
they
shall
assesse
double
damages
,
or
damages
by
halfe
a
yeare
according
to
the
value
of
the
Church
;
so
in
a
Writ
of
Ward
the
Iury
shall
find
whether
the
heire
be
marryed
or
not
,
and
shall
assesse
damages
for
it
,
and
yet
in
the
Count
or
Replication
no
such
matter
appeares
;
So
likewise
in
a
Detinue
the
value
of
the
goods
shall
appeare
by
the
Verdict
,
&c.
so
as
certainty
ought
alwayes
to
appeare
to
the
Court.
Quod
non
fuit
requisitus
.
terrae
sive
prati
in
campo
vocat
.
N.
the
Defendant
pleads
not
guilty
,
but
for
the
uncertainty
,
whether
Land
or
Meadow
,
and
also
because
there
was
no
abuttalls
,
the
Iury
were
discharged
.
This
is
John
Thomas
his
writing
,
innuendo
the
Plaintiff
,
and
he
innuendo
,
&c.
hath
forged
this
Warrant
,
the
Sheriffs
Warrant
at
the
Suit
of
M.
Hog
against
the
Defendant
,
Innuendo
:
And
in
this
case
it
was
held
,
that
the
Innuendo
would
not
support
the
Action
,
the
word
Warrant
alone
being
of
an
uncertaine
sense
,
and
the
matter
of
the
Action
shall
not
be
enlarged
or
ascertained
by
the
Innuendo
;
as
Pox
,
innuendo
,
the
French
Pox.
Vide
Hob.
6.
Miles
case
,
&
45.
Harvies
case
.
William
Dawtry
,
whereupon
a
Melius
Inquirendum
went
forth
and
recited
,
but
thus
,
Cum
per
quandam
Inquisitionem
captam
apud
Chichester
,
&c.
and
doth
not
say
,
that
it
was
either
by
Commission
or
Writ
,
or
before
whom
:
and
it
was
held
void
for
the
uncertainty
,
and
the
office
also
,
that
was
taken
upon
the
Melius
,
for
by
the
Melius
it
ought
to
appeare
,
that
the
first
office
was
by
warrant
,
&c.
Ejectione
firmae
the
Plaintiff
counts
of
a
Messuage
,
&c.
not
guilty
,
whereupon
the
Plaintiff
had
Iudgement
;
And
the
Defendant
assignes
for
Error
,
that
the
Plaintiff
had
not
shewed
in
what
Towne
,
Parish
,
Hamlet
,
or
place
the
Messuage
lay
,
but
in
the
generall
County
,
and
thereupon
the
Iudgement
was
reversed
in
the
Exchequer
Chamber
,
13.
Jac.
for
here
was
a
tryall
without
a
Visne
.
81.
Vide
Hob.
90.
Keere
and
Owen
upon
an
Elegit
,
Vide
Hob.
ibid.
for
an
Inrolment
of
a
Deed
,
&
129.
Wilton
,
for
an
Amerciament
in
a
Leet
.
163.
Impersonalitas
non
concludit
nec
ligat
.
The
Earle
of
Leycesters
case
in
Plowd
.
164.
Generale
nihil
certi
implicat
.
omnia
illa
messuagia
in
tenura
l.
B.
scituate
in
W.
whereas
in
truth
they
lye
in
D.
In
this
case
,
because
the
grant
is
generall
,
and
is
restrained
to
a
certaine
Towne
,
the
Patentee
or
Grantee
shall
not
have
any
Lands
out
of
that
Towne
,
unto
which
the
generalty
of
the
Grant
refers
.
I
arrest
you
,
but
they
ought
upon
the
arrest
to
shew
at
whose
Suit
,
out
of
what
Court
,
for
what
cause
they
do
it
,
and
when
the
Processe
is
returnable
;
to
the
end
that
if
it
be
upon
an
Execution
,
he
may
pay
it
and
free
his
person
from
Imprisonment
,
and
if
upon
a
meane
Processe
,
either
to
agree
with
the
party
,
or
to
put
in
bail
according
to
Law
.
165.
Dolosus
versatur
in
generalibus
.
all
his
Goods
and
Chattells
,
but
continues
the
Pessession
and
imployes
them
to
his
own
use
,
to
prevent
the
execution
of
a
Fieri
facias
at
the
Suit
of
C.
Here
one
of
the
badges
of
Fraud
alleadged
in
that
Grant
,
was
,
for
that
it
was
generall
,
viz.
of
all
his
Goods
,
&c.
166.
Variance
.
Non
wast
fait
,
for
by
reason
of
the
Variance
between
the
Evidence
and
such
a
Plea
,
the
Issue
wil
be
found
against
him
;
but
he
must
plead
the
speciall
matter
according
to
the
truth
of
his
case
.
Not
guilty
is
a
good
Issue
,
not
guilty
;
for
then
upon
the
Evidence
it
shall
be
found
against
him
;
because
by
such
a
Plea
he
confesseth
the
Battery
,
and
upon
the
Issue
cannot
justifie
it
;
but
he
must
plead
the
speciall
matter
,
and
confesse
and
justifie
the
Battery
;
for
otherwise
the
Variance
of
the
Evidence
from
his
Plea
will
cause
the
Iury
to
find
him
guilty
.
The
like
Law
is
in
many
other
cases
;
and
therefore
it
is
a
learning
necessary
to
be
known
,
because
the
losse
of
many
causes
dependeth
thereupon
:
As
in
Battery
if
the
Defendant
can
justifie
the
same
to
be
done
of
the
Plaintiffs
own
assault
,
he
must
plead
it
specially
,
and
must
not
plead
the
generall
Issue
.
Co.
Inst.
ubi
supra
,
&c.
And
here
note
,
that
in
matter
of
pleading
(
to
prevent
variance
)
each
party
must
be
very
circumspect
in
the
ordering
thereof
,
least
his
Replication
depart
from
his
Count
,
or
his
Rejoynder
from
his
Bar
,
Et
sic
de
cetaeris
.
Likewise
what
is
departure
in
pleading
and
what
not
,
See
Co.
Inst.
1.
304.
per
totam
paginam
,
&
pl.
Co.
105.
b.
K.
B.
the
Iudgement
was
reversed
by
reason
of
that
variance
;
for
the
Statute
of
18
Eliz.
14.
gives
remedy
where
there
is
no
Originall
Writ
,
but
not
where
there
is
a
Writ
and
a
materiall
variance
betwixt
the
Writ
and
Count
,
&c.
Vide
plus
ubi
supra
.
Linne
Regis
case
.
Win●ates
case
.
29.
&
30.
Eliz.
Hob.
124.
were
incorporate
by
the
Statute
of
22
E.
4.
by
this
name
,
The
Dean
and
Cannons
of
the
Kings
free
Chappell
,
&c.
And
in
the
Raigne
of
P.
and
M.
they
made
a
Lease
of
certain
Lands
by
this
name
,
The
Dean
and
Cannons
of
the
King
and
Queens
free
Chappell
,
&c.
And
in
an
Ejectione
firmae
,
brought
by
Wingate
against
Hall
,
M.
29.
and
30.
Eliz.
the
Lease
for
that
variance
was
adjudged
void
.
M.
Per
nomen
Guardiani
&
Scholarium
Domus
sive
Collegii
Scholarium
de
Merton
,
&c.
And
they
made
a
Lease
,
per
nomen
domus
sive
Collegii
de
Merton
,
omitting
Scholarium
;
Ejectione
firmae
,
H.
30.
Eliz.
This
omission
was
agreed
to
be
a
variance
in
substance
to
quash
the
Lease
;
for
the
sayd
Act
hath
Baptized
the
Colledge
by
the
name
of
the
Colledge
of
the
Schollars
of
Merton
,
and
they
made
the
lease
by
the
name
of
the
Colledge
of
Merton
himselfe
,
who
,
(
in
truth
)
was
the
Founder
.
Aprill
anno
32
H.
8.
whereas
it
did
begin
the
28
of
Aprill
anno
31
H.
8.
and
was
continued
by
prorogations
untill
32
H.
8.
and
for
that
variance
the
Count
was
adjudged
defective
.
Thomas
Smith
,
and
the
Fellowes
,
Per
nomen
Praepositi
&
sociorum
Collegii
Regalis
de
Eaton
,
and
adjudged
void
for
the
variance
.
Quod
nullum
Denarium
inde
debet
,
So
in
Detinue
of
a
chain
of
three
ounces
,
where
it
weighed
but
two
ounces
,
the
Law
lay
22
E.
4
:
T.
West
,
Miles
dominus
de
la
Warre
non
demisit
,
and
in
truth
he
was
then
Dominus
,
but
at
the
time
of
the
demise
he
was
but
Knight
,
yet
it
seemed
to
three
Justices
that
the
dignity
was
parcell
of
the
Issue
,
so
it
could
not
be
found
with
him
,
that
pleaded
his
Lease
.
I.
S.
of
M.
&c.
Cheif
Justices
held
,
That
albeit
there
were
another
I.S.
in
another
County
,
if
it
were
not
in
the
same
County
,
where
the
Town
of
M.
is
,
or
if
he
were
dead
before
the
Writ
purchased
,
the
Plea
sufficeth
;
and
there
also
it
was
held
,
that
in
Favorem
vitae
,
a
man
might
traverse
the
Sheriffs
Return
.
exam.
3.
yet
the
Proviso
is
repugnant
,
because
the
Land
is
expressely
charged
with
the
Rent
,
but
the
Writ
of
unity
is
but
implyed
in
the
Grant
,
and
therefore
that
may
be
restrained
without
any
repugnancy
,
and
sufficient
Remedy
besides
left
for
the
Grantee
,
Rerum
suarum
quilibet
est
moderator
&
arbiter
:
Take
also
this
Rule
,
Regulariter
non
valet
pactum
de
re
mea
non
alienanda
.
Littleton
(
Sect.
360.
)
and
also
against
the
height
and
purity
of
a
Fee
simple
:
Howbeit
,
the
examples
aforesaid
are
to
be
understood
of
Conditions
annexed
to
the
Grant
or
Sale
it self
,
Mary
Portingtons
case
.
Co.
l.
5.
40.
Sir
Anthony
Mildmayes
case
.
11.
If
a
gift
in
Taile
be
made
upon
Condition
,
that
the
Donee
,
&c.
Sect.
362.
)
or
are
against
the
Statute
of
Westminster
2.
the
Condition
is
good
without
question
;
but
as
to
a
common
Recovery
,
the
Condition
is
voyd
,
because
this
is
no
discontinuance
but
a
Bar
,
and
this
common
Recovery
is
not
restrained
by
the
said
Statute
of
Westminster
2.
and
therefore
such
a
Condition
is
repugnant
to
the
Estate
Taile
;
for
it
is
to
be
observed
,
That
to
this
Estate
Taile
there
be
diverse
incidents
;
First
,
To
be
dispunishable
of
Wast
.
Secondly
,
The
Wife
of
the
Donee
in
Taile
shall
be
endowed
.
Thirdly
,
That
the
Husband
of
the
Feme
Donee
after
Issue
shall
be
Tenant
by
the
Curtesie
.
Fourthly
,
That
Tenant
in
Taile
may
suffer
a
common
Recovery
:
And
therefore
if
a
man
make
a
gift
in
Taile
upon
condition
to
restraine
him
of
any
of
these
incidents
,
the
condition
is
repugnant
and
void
in
Law
:
And
it
is
further
to
be
observed
,
That
a
collaterall
Warranty
or
lineall
without
assets
in
respect
of
the
recompence
is
not
restrained
by
the
Statute
De
donis
,
no
more
is
a
common
Recovery
in
respect
ot
the
intended
recompence
:
And
Littleton
ubi
supra
,
to
the
intent
to
exclude
the
Common
Recovery
,
saith
,
Tiel
alienation
&
discontinuance
,
joyning
them
together
.
Do
donis
,
had
made
a
gift
to
a
man
,
14.
It
is
sayd
,
that
if
a
man
enfeoff
an
Infant
in
Fee
,
upon
condition
,
En
autor
droit
,
for
religious
and
good
dses
:
And
note
,
That
whatsoever
is
prohibited
by
the
intent
of
any
Act
of
Parliament
,
may
be
prohibited
by
Condition
,
and
shall
cause
no
repugnancy
.
&c.
Vide
infra
32.
Vide
Dyer
272.
30.
18.
John
de
Marre
made
a
Charter
to
John
de
Burford
of
Fee-simple
and
the
same
day
it
was
covenanted
between
them
,
John
de
Burford
should
hold
the
same
Tenements
for
eight
years
,
and
if
Jo.
de
Marre
did
not
pay
to
Jo.
de
Burford
one
hundred
markes
at
the
end
of
the
terme
,
that
then
the
Land
should
remaine
to
Jo.
de
Burford
and
his
heires
:
In
this
case
,
the
subsequent
Covenant
was
repugnant
and
void
;
for
first
,
the
Charter
of
the
Fee-simple
was
absolute
,
and
the
Covenant
being
made
after
the
Charter
,
could
neither
alter
the
absolute
Charter
,
nor
upon
a
Condition
precedent
give
him
a
Fee-simple
,
that
had
a
Fee-simple
before
.
19.
I.S.
being
seised
of
certaine
Land
in
Fee
,
Alton
Woods
case
.
the
same
Land
is
given
by
Act
of
Parliament
to
the
King
in
Fee
,
saving
the
Estates
,
Rights
,
&c.
of
all
persons
;
In
this
case
,
the
Estate
of
I.
S
(
the
owner
of
the
Land
)
is
not
saved
;
for
that
would
be
repugnant
,
and
make
the
expresse
gift
void
,
and
vaine
.
Alton
Woods
case
.
as
in
Plowdens
Commentaries
fol.
563.
b.
where
the
supposed
Attainder
of
the
Duke
of
Norfolke
was
by
Act
of
Parliament
in
primo
Mariae
declared
to
be
void
and
null
,
ab
initio
,
saving
the
Estates
and
Leases
made
by
E.
6.
This
saving
was
void
,
for
when
the
Attainder
was
declared
to
be
void
,
the
said
saving
was
against
the
body
of
the
Act
,
and
therefore
repugnant
and
void
.
31
H.
8.
cap.
13.
that
all
Houses
of
Religion
,
(
Mich.
6.
&
7.
Eliz.
Dyer
231.
)
that
the
Grant
was
void
,
and
the
saving
repugnant
to
the
body
of
the
Act
,
for
if
the
Advowson
were
in
the
King
in
the
same
estate
and
condition
,
as
it
was
at
the
time
of
the
making
of
the
Act
,
then
a
Grant
made
after
cannot
be
saved
.
22.
If
Land
escheat
to
the
King
by
Forfeiture
of
Treason
,
14
Eliz.
Dyer
313.
1
E.
6.
of
Chanteries
,
all
Services
,
Rents
,
14
Eliz.
Dyer
313.
a.
24.
In
the
case
of
Alton
Woods
,
28
H.
8.
the
generall
saving
cannot
extend
to
save
the
estate
,
Anthony
Mildmayes
case
.
25.
C.
covenants
to
stand
seised
to
his
own
use
for
life
,
Vide
pl.
ibid.
8
Assis
.
Pl.
33.
A
man
gives
Land
to
Mary
and
Johan
his
Sisters
,
6
R.
2.
(
which
see
tit
.
Quid
juris
clamat
,
Vide
Pl.
Com.
32.
a.
4.
Colthirst
and
Bevish
.
2
Report
,
Et
praed.
A.
&
B.
tempore
feloniae
&
murdri
praed.
fact
.
viz.
4
:
Aug.
&c.
Felonice
fuerunt
presentes
,
&c.
ad
feloniam
&
murdrum
praed.
in
forma
praed:
faciend
:
And
this
Indictment
as
to
A.
and
B.
the
Abbettors
,
was
adjudged
insufficient
for
the
Repugnancy
,
because
no
Felony
was
committed
untill
the
death
of
the
party
,
and
none
shall
be
adjudged
a
Felon
by
relation
,
which
is
but
a
Fiction
in
Law
.
Et
sic
praed.
L.O.
apud
Weetwood
praed.
modo
&
forma
praed.
the
said
A.
H.
Felonice
,
&c.
Murdravit
.
And
it
was
resolved
,
that
the
Count
was
repugnant
and
insufficient
,
for
it
cannot
be
said
that
he
murdred
him
at
the
place
where
the
wound
was
given
,
but
where
the
party
dyed
.
The
like
is
adjudged
in
Wrotes
case
,
Co.
l
:
4
:
a
:
4.
dimisionem
praed
.
in
the
Forme
aforesayd
,
for
one
and
fifty
yeares
,
and
no
farther
,
this
confirmes
the
entire
Terme
;
for
after
the
Terme
is
confirmed
,
one
and
fifty
yeares
are
repugnant
and
void
:
It
had
been
otherwise
if
they
had
recited
the
Lease
for
seventy
yeares
,
and
then
confirmed
the
Land
for
one
and
fifty
yeares
.
vide
supra
,
16.
Anthony
Mildmayes
case
.
If
a
man
make
a
gift
in
Taile
upon
Condition
that
he
shall
not
make
Feoffment
,
this
is
a
good
Condition
,
but
if
the
Condition
be
,
that
he
shall
not
make
a
Charter
of
Feoffment
,
this
is
not
good
,
for
this
without
Livery
(
as
Littleton
saith
,
fo.
15.
)
amounts
but
to
a
Tenancy
at
Will
,
which
Tenant
in
Taile
cannot
be
restrained
to
do
:
So
if
a
man
make
a
gift
in
Taile
,
upon
Condition
that
he
shall
not
make
a
Lease
for
his
owne
life
,
this
is
void
and
repugnant
;
for
when
a
man
makes
a
gift
in
Taile
(
which
is
an
Estate
of
Inheritance
,
and
by
possibility
may
continue
for
ever
)
and
thereby
makes
the
Donee
the
Principall
owner
of
the
land
,
he
cannot
restraine
him
from
doing
any
lawfull
Act
,
or
making
any
Estate
,
which
is
no
Wrong
to
any
,
and
which
by
the
Law
he
may
lawfully
do
or
make
:
Howbeit
,
if
a
man
make
a
Lease
for
Life
or
Yeares
,
with
Condition
that
he
shall
not
alien
or
demise
,
this
is
good
,
because
the
Lessor
hath
the
Reversion
,
whereby
he
hath
power
to
restraine
the
Lessee
;
so
if
a
man
demise
a
Copy-hold
Mannor
for
Life
or
Yeares
,
with
Condition
,
that
hee
shall
make
no
voluntary
Grant
of
any
Copy-hold
Lands
,
according
to
the
Custome
of
the
Mannor
,
this
is
good
:
but
if
a
man
grant
in
tail
a
Copy-hold
Mannor
with
such
a
Condition
,
the
Condition
is
void
for
the
repugnancy
.
35.
A.
seised
of
black
Acre
in
fee
,
West
.
2.
cap.
21.
gives
a
Writ
of
Cessavit
heredi
petenti
super
heredem
tenementum
,
&
super
eos
,
quibus
alienatum
fuerit
hujusmodi
tenementum
,
and
yet
it
is
adjudged
in
33
E.
3.
Tit.
Cessavit
42.
that
the
Heire
should
not
have
a
Cessavit
:
The
case
was
this
,
there
were
two
Coparceners
Lords
,
and
Tenant
by
Fealty
and
certaine
Rent
,
the
one
Coparcener
hath
Issue
and
dyes
,
in
this
case
the
Aunt
and
the
Neice
shall
not
joyne
in
a
Cessavit
,
because
the
heire
cannot
have
it
for
the
Cesser
in
the
time
of
her
Ancestors
,
in
regard
the
arrearages
do
not
belong
to
her
,
&c.
(
See
F.
N.
B.
209.
F.
&
.
Pl.
Com.
110.
)
besides
in
a
Cessavit
the
Tenant
before
Iudgement
may
render
the
arrearages
and
damages
,
&c.
and
retaine
the
Land
,
and
that
cannot
be
done
,
when
such
an
heire
brings
a
Cessavit
for
the
Cesser
in
the
time
of
his
Ancestor
,
because
the
arrearages
then
incurred
belong
not
to
him
,
as
aforesaid
.
Qui
male
agit
odit
lucem
,
&
omnia
delicta
in
aperto
leviora
sunt
,
See
11
H.
6.
19.
The
Prior
of
Dunstables
case
.
William
Aldreds
case
.
38.
When
a
man
hath
lawful
easement
or
profit
by
prescription
time
out
of
mind
,
another
Custome
which
is
also
time
out
of
mind
,
&c.
A.
cannot
alledge
Prescription
or
Custome
to
stop
the
sayd
way
.
Meriel
Treshams
case
.
39.
In
Debt
against
an
Administratrix
,
she
pleads
in
Bar
,
Quod
ipsa
plene
administravit
omina
bona
,
&c.
quae
fuerunt
,
&c.
&
quod
illa
nulla
habet
bona
,
&c.
quae
fuerunt
,
&c.
nec
habuit
die
impetrationis
brevis
,
&c.
praeter
bona
&
catalla
ad
valentiam
,
of
the
Kings
debt
,
and
of
severall
Recognizances
,
by
which
plea
she
confesseth
,
that
she
had
sufficient
in
her
hands
to
satisfie
the
sayd
Debt
and
Recognizances
;
And
then
she
pleads
further
,
Quod
ipsa
nulla
alia
sive
plura
habet
bona
,
&c.
quae
fuerunt
,
&c.
Praeterquam
bona
&
catalla
,
quae
non
sufficiunt
ad
satisfaciendum
Praed.
seperalia
debita
:
Which
is
clearly
and
Ex
diametro
repugnant
to
what
she
had
confest
before
;
and
thereupon
the
sayd
Bar
was
adjudged
insufficient
.
Lewes
Bowles
case
.
40.
A
Feme
brings
a
Cui
in
vita
,
quod
clamat
tenere
ad
vitam
,
Vide
18
E.
3.
37.
Littleton
,
S.
720.
for
when
he
had
once
made
a
Feoffment
and
vested
the
estate
in
one
,
he
could
not
make
that
estate
cease
as
to
him
,
and
cause
it
to
remaine
to
another
:
So
if
Land
be
given
to
a
man
and
his
heires
,
so
long
as
I.
S.
shall
have
heirs
of
his
body
,
and
if
I.
S.
die
without
heire
of
his
body
,
that
then
it
shall
remaine
to
another
in
fee
,
this
Remainder
is
void
for
the
contrariety
;
because
the
first
estate
was
Fee-simple
determinable
,
upon
which
a
Remainder
cannot
depend
.
44.
C.
makes
B.
and
a
Feme
his
Executors
,
Saint
Bartholm
.
and
their
Successors
should
have
the
Land
,
Ita
quod
reddant
annuatim
Decano
&
Capitulo
Sancti
Pauli
16.
Marc.
And
if
they
failed
of
payment
,
that
their
estate
should
cease
,
and
that
then
the
said
Deane
and
Chapter
should
have
it
,
and
for
the
Condition
broken
those
of
Pauls
entred
;
and
it
seemed
clear
to
Baldwin
and
Fitzh
.
that
the
Condition
was
void
,
for
no
estate
could
remaine
after
the
Fee-simple
given
away
,
because
the
Feoffor
had
determined
his
Interest
and
Right
,
and
then
a
stranger
could
not
enter
for
the
Condition
broken
,
but
the
heire
ought
to
do
it
.
Vide
Plowd
.
Sanders
against
Freeman
,
and
Plesintons
case
,
6
R.
2.
ad
proprium
opus
&
usum
,
the
Feme
enters
into
the
Shops
,
and
then
brings
Ejectione
firmae
,
and
per
Curiam
the
exception
is
but
temporary
to
the
Baron
himselfe
,
there
being
no
mention
of
Executors
or
Assignes
,
and
also
the
exception
is
void
for
the
Shops
,
because
repugnant
to
the
demise
of
the
Shops
.
Vide
Max.
81.
103.
Daniel
Nortons
case
.
51.
If
an
Vnder-Sheriff
covenant
with
his
High-Sheriff
,
Vi.
65.
25.
John
Ion's
case
.
52.
An
Office
was
found
,
168.
It
will
not
drive
a
man
to
justifie
or
shew
that
,
which
he
goeth
about
to
defeate
,
or
which
makes
against
him
.
Vide
15
H.
7.
fol.
1.
Br.
Annuity
22.
&
Count
43.
&
Co.
l.
7.
10.
b.
Vghtreds
case
.
Colth
.
and
Bevishams
case
,
Pl.
Com.
The
Grange
was
to
remain
to
Peter
Bevisham
for
life
,
Si
vellet
inhabitare
,
&c.
durante
termino
,
which
was
the
whole
Terme
,
and
immediatly
after
the
death
of
Henry
and
Elianor
,
and
therefore
it
was
alleadged
,
that
he
should
have
shewed
in
his
bar
the
time
of
his
entry
,
and
his
abode
thereupon
;
but
it
was
resolved
,
that
the
bar
was
good
notwithstanding
that
exception
,
because
by
common
intendment
it
shall
be
taken
,
that
his
entry
was
immediatly
after
the
Remainder
fell
,
and
if
it
were
not
so
,
the
Plaintiff
ought
to
have
shewed
it
,
and
not
the
Defendant
in
his
Bar
,
because
it
made
against
him
,
being
in
Defeasance
of
his
Estate
,
&c.
169.
Non
potest
adduci
exceptio
ejusdem
rei
,
cujus
petitur
dissolutio
.
Et
non
potest
adduci
,
&c.
Disclaimer
.
Vide
6
E.
3.
7.
&
F.
N.
B.
22.
c.
170.
None
shall
take
exception
to
an
Error
or
Act
,
which
operateth
to
his
own
advantage
.
per
Herle
,
8
H.
5.
2.
11
H.
4.
8.
F.
N.
B.
21.
f.
Eliz.
Dyer
369
,
370.
Where
in
a
Writ
of
Ejectione
Custodiae
terrae
&
haeredis
,
the
Iurors
assessed
damages
intirely
,
which
was
insufficient
,
for
it
lyeth
not
for
the
heire
,
yet
the
Plaintiff
released
his
damages
and
had
Iudgment
for
the
Land
:
Note
,
that
insufficient
Assessment
of
damages
and
no
Assessment
is
all
one
.
171
Nemo
tenetur
armare
adversarium
suum
contrase
.
2
The
Plaintif
in
a
Replevin
pleads
in
barr
of
an
Avowrie
for
damage
fesant
,
172
It
favoureth
Diligence
;
And
therefore
hateth
Folly
and
Negligence
.
Vide
Co.
l.
4.
62.
b.
3.
in
Herlakendens
case
,
&
Co.
l.
5.
13.
b.
3.
in
the
Countess
of
Salops
case
.
Magnum
Cape
ad
valentiam
is
awarded
,
when
if
he
make
default
again
,
then
Iudgement
is
to
be
given
against
the
tenant
;
Also
if
the
vouchee
do
appear
,
and
after
make
default
,
then
a
Parvum
Cape
ad
valentiam
is
awarded
,
and
if
he
thereupon
make
default
again
,
then
judgment
is
to
be
given
,
as
before
.
nullum
tempus
occurrit
Regi
.
Innotescimus
.
See
the
Statute
of
13
R.
2.
16.
Vide
Max.
80.
case
24.
Mulier
puisne
,
covert
baron
at
the
time
of
the
descent
cast
,
or
that
after
the
death
of
the
Bastard
the
Mulier
entred
before
the
heir
of
the
Bastard
,
yet
none
of
these
cases
shall
aid
or
help
the
Mulier
.
Vide
infra
25.
Feme
covert
have
title
of
entry
into
lands
,
Ignorantia
Juris
non
excusat
.
El.
Dyer
330.
d.
And
the
reason
is
,
because
it
shall
be
imputed
to
the
folly
of
the
Lord
,
that
he
did
not
obtain
seisin
of
that
,
which
was
yearly
due
unto
him
;
and
besides
,
it
would
be
mischievous
to
the
tenant
,
for
peradventure
in
antient
time
the
work-days
were
discharged
,
which
now
cannot
be
shewed
,
whereupon
might
ensue
sutes
and
trouble
.
S●nd
ls
case
.
20
If
a
man
be
robbed
in
his
house
in
the
day
time
or
in
the
night
,
Vide
Max.
114.
case
52.
Winsors
case
.
173
Negligentia
semper
habet
infortunium
Comitem
.
Merton
cap.
5.
Non
current
usurae
contra
aliquem
infra
aetatem
existen
.
&c.
but
before
that
Statute
he
could
not
have
avoided
such
a
penalty
;
neither
yet
doth
that
Statute
extend
to
a
feme
covert
,
or
to
a
condition
of
a
re-entry
,
which
an
Infant
ought
to
perform
,
because
the
breach
thereof
cannot
be
properly
called
usura
.
H●ge
s
case
.
6
In
17
E.
3.
24.
In
debt
upon
an
obligation
of
20
l.
judgement
was
obtained
before
the
Maior
of
Newcastle
,
Rich.
Lechfords
case
.
that
the
heir
within
three
Courts
and
proclamations
made
,
shall
be
barred
,
if
he
claims
not
)
dies
,
his
heir
being
then
beyond
sea
,
and
until
the
three
Courts
and
proclamations
be
past
,
but
then
returns
and
claims
his
right
;
In
this
case
,
he
shall
not
be
barred
,
no
more
than
by
non-claim
upon
a
fine
:
but
if
he
went
beyond
sea
after
the
death
of
his
ancestor
,
he
shall
be
barred
,
because
of
his
neglect
to
take
admittance
of
his
Copyhold
before
he
went
his
Iourney
.
libertate
probanda
,
&
obtulit
se
at
the
fourth
day
against
the
Lord
,
who
did
not
appear
but
make
default
,
upon
which
default
the
Villein
was
enfranchised
,
&
had
a
writ
to
the
Sheriff
,
that
the
Sheriff
should
not
suffer
the
Lord
to
vex
him
afterwards
:
so
if
the
Lord
be
non-sute
after
appearance
,
the
Villein
or
Nief
shall
be
infranchised
.
Curia
Wardorum
,
for
it
was
his
folly
and
negligence
not
to
tender
a
Marriage
.
Nihil
dicit
,
non
sum
informatus
,
or
confession
,
the
heir
comes
too
late
to
plead
riens
,
&c.
but
he
ought
at
first
to
plead
or
shew
the
certainty
,
when
,
&c.
And
per
Dyer
,
if
the
profits
received
after
the
death
of
the
ancestor
until
the
writ
purchased
,
were
sufficient
to
satisfie
the
debt
,
that
then
the
plaintif
should
have
general
judgement
against
the
heir
.
174
Vigilantibus
non
Dormientibus
Leges
subveniunt
.
Andrew
Corbets
case
.
2
A.
deviseth
land
to
B.
till
800
l.
be
raised
for
the
preferment
of
his
daughters
,
&
dies
,
C.
the
heir
of
A
conceals
the
will
,
enters
,
&
dieth
;
Hugh
Portmans
case
.
4
In
a
Quare
impedit
if
the
plaintif
be
nonsute
after
appearance
,
Scire
facias
ad
audiendum
errores
against
the
defendant
returnable
the
same
term
or
the
next
term
following
,
all
the
matter
is
discontinued
.
C.
B.
or
the
Clerk
of
the
Treasorie
there
,
this
is
a
Supersedeas
in
Law
,
175
It
favoureth
speeding
of
mens
Causes
;
And
therefore
bien
et
sagement
fait
,
fol.
282.
Novel
disseisin
a
Protection
is
not
allowable
,
Jehu
Webbs
case
.
nor
yet
in
a
Certificate
upon
an
Assise
,
because
an
Assise
is
festinum
remedium
to
restore
the
disseisee
to
his
freehold
,
whereof
he
is
wrongfully
and
without
Iudgement
disseised
:
And
therefore
in
this
action
the
defendant
shall
not
be
essoined
,
nor
pray
in
aid
but
only
of
the
King
,
nor
vouch
a
stranger
,
nor
any
party
to
the
writ
,
unless
he
will
immediately
enter
into
the
warranty
;
there
is
the
same
Law
also
of
receipt
;
neither
shall
the
Paroll
stay
for
the
non-age
either
of
the
plaintif
or
defendant
,
and
in
many
other
respects
an
Assise
is
remedium
maximè
festinum
.
Strata
Mercella
.
or
in
appeal
brought
by
the
feme
of
the
death
of
her
husband
,
or
in
an
Assise
brought
by
a
feme
,
which
was
the
wife
of
B.
if
the
tenant
or
defendant
plead
,
that
the
baron
is
in
full
life
,
the
tryal
thereof
shall
not
be
by
the
Iury
,
but
by
the
Iustices
upon
examination
made
before
them
,
and
that
course
is
taken
for
the
greater
expedition
.
demurr
,
&c.
In
both
these
cases
,
if
the
demandant
reply
,
that
he
is
in
full
age
,
this
shall
not
be
tried
by
the
Country
for
the
great
delay
of
the
demandant
,
but
a
writ
of
Venire
facias
shall
issue
to
the
Sherif
to
bring
A.
before
the
Iustices
to
be
inspected
by
them
,
whether
he
be
of
age
or
no.
Vide
Dyer
84.
b.
83.
176
Hateth
Delayes
.
Nul
tort
,
&c.
177
Unnecessary
Circumstances
;
And
therefore
,
Frustrafit
per
plura
,
quod
fieri
potest
per
Pauciora
.
Formedon
in
descender
,
and
the
like
,
there
he
cannot
averr
him
tenant
,
but
pray
his
judgement
and
enter
;
for
thereby
he
hath
the
effect
of
his
fute
,
and
Frustra
fit
per
plura
,
&c.
And
therefore
if
tenant
in
tail
discontinue
,
Geo.
Reynolds
case
.
the
King
shall
be
in
possession
thereof
by
seisure
without
office
;
so
it
is
also
of
the
Temporalties
of
a
Bishop
,
or
of
a
Prior
Alien
;
because
the
certainty
of
these
appear
in
the
Exchequer
,
&
frustra
fit
,
&c.
In
some
cases
also
the
King
shall
be
in
possession
by
office
without
seisure
,
as
of
lands
,
tenements
,
offices
,
&c.
which
are
local
,
and
whereof
continual
profit
may
be
taken
,
as
where
it
is
found
by
office
,
that
a
condition
is
broken
,
or
that
one
attainted
of
felony
is
seised
of
land
,
&c.
or
in
case
of
the
ward
of
land
,
&c.
In
all
these
cases
the
King
is
in
possession
by
office
without
any
seisure
.
Anthony
Maines
case
.
5
M.
leases
for
21
years
unto
S.
and
covenants
to
make
a
new
lease
to
S.
upon
the
surrender
of
the
old
,
averia
elongata
per
Querentem
,
and
thereupon
Withernam
is
awarded
,
and
the
defendant
hath
delivered
unto
him
as
many
of
the
plaintifs
goods
,
whereupon
the
Plaintif
is
to
sue
a
second
deliverance
;
In
this
case
,
he
shall
sue
the
second
deliverance
for
the
first
distress
,
and
not
for
the
Cattel
delivered
upon
the
Withernam
,
for
the
Cattel
of
the
first
distress
(
being
the
cause
of
the
Withernam
)
being
delivered
,
the
other
upon
the
Withernam
will
be
also
discharged
.
Cap.
satisfac
.
&
an
attachment
.
and
likewise
a
Capias
ad
satisfaciendum
against
him
at
the
same
plaintifs
sute
,
both
returnable
the
same
term
into
the
C.
B.
but
the
attachment
was
returnable
first
;
upon
which
he
brings
his
body
into
Court
,
and
said
he
would
return
the
Ca.
sa
.
at
the
day
of
return
thereof
:
Howbeit
,
upon
motion
of
one
of
the
Protonotaries
,
the
Iustices
sent
the
defendant
to
the
Fleet
,
and
discharged
the
Sherif
of
him
,
and
would
not
stay
untill
the
return
of
the
Ca.
Sa.
there
being
a
former
judgement
against
him
upon
Record
.
Vide
Dyer
214.
47.
178
Expedit
Reipublicae
,
ut
sit
finis
Litium
.
1
Regularly
,
an
Abbot
,
Prior
,
Bishop
,
Res
judicata
pro
veritate
accipitur
.
Dyer
P.
1
Mar.
98.
b.
pl.
52.
Quia
finis
finem
litibus
imponebat
:
but
this
is
now
helped
by
the
Statute
of
4
H.
7.
24.
which
gives
5.
years
after
the
fine
and
proclamations
.
for
which
see
Co.
ibid.
fol.
289.
&
290.
Vide
supra
,
32
,
21.
Demy
mark
,
that
the
grand
Assise
may
also
inquire
,
whether
the
demandants
ancestor
were
seised
in
the
time
of
the
King
,
as
he
had
Counted
In
this
case
,
albeit
the
verdict
of
the
Grand
Assise
be
given
only
upon
this
last
point
,
yet
judgement
final
shall
be
had
thereupon
:
so
it
is
likewise
if
the
tenant
after
the
Mise
joyned
make
default
,
or
confess
the
action
,
or
if
the
demandant
be
non
sute
,
and
yet
in
none
of
these
cases
they
of
the
Grand
Assise
give
their
verdict
upon
the
méer
right
;
but
the
reason
is
,
because
the
Law
aims
at
peace
and
quiet
,
and
that
there
might
be
an
end
of
sutes
and
controversies
.
Vide
F.
N
B.
5.
n.
Ejectione
firmae
,
the
Sherif
may
break
open
the
house
,
and
deliver
the
seisin
or
possession
thereof
to
the
demandant
or
plaintif
,
(
for
the
words
of
the
writ
are
Habere
facias
seisinam
,
or
possessionem
,
&c.
)
because
otherwise
there
would
be
no
end
of
such
sutes
:
and
after
judgement
it
is
not
(
in
right
and
judgement
of
Law
)
the
house
of
the
tenant
or
defendant
.
Expedit
Reipublicae
,
&c.
Vide
supra
,
93
,
9.
quod
sit
finis
litium
,
and
that
he
that
right
had
should
not
be
negligent
,
but
take
his
remedy
by
writ
of
Entry
before
there
should
be
more
than
two
alienations
.
Iourneys
accompts
upon
a
former
writ
of
the
same
nature
,
for
so
they
might
be
had
infinitely
.
sac
.
rot.
1033.
that
an
Accord
with
satisfaction
was
a
good
plea
in
barr
,
in
Eden
and
Blakes
case
.
Magdalen
College
case
.
Formedon
in
descender
recover
the
intailed
lands
again
,
which
would
beget
a
new
sute
,
and
no
way
answer
the
Intention
of
the
said
Act
,
being
(
indéed
)
a
good
provision
for
féesimple
lands
,
but
not
for
lands
entailed
,
without
such
a
construction
by
equity
,
as
aforesaid
;
And
therefore
in
case
of
entailed
lands
so
aliened
with
warranty
,
the
tenant
shall
have
a
Scire
facias
out
of
the
Rolls
of
the
Iustices
,
before
whom
the
sute
depends
,
to
recover
the
lands
descended
according
to
the
provision
of
the
said
Act
of
Glocester
;
which
in
just
and
proportionable
equity
agrées
with
the
case
of
the
feesimple
lands
,
and
the
Intention
of
the
same
Act.
Vide
supra
15.
9.
&
infra
186.
8.
179
Circuit
of
Action
.
Finch
.
fol.
14.
Fr.
Edit
.
in
Coulters
case
.
180
Matter
of
Vexation
;
And
therefore
(
per
Popham
)
if
the
Lord
of
a
Manor
hath
probate
of
testaments
within
his
Manor
,
if
any
will
prove
such
a
will
in
the
Ecclesiastical
Court
,
a
prohibition
lies
,
because
the
jurisdiction
thereof
belongs
to
another
:
And
the
reason
of
this
is
,
for
that
otherwise
the
party
might
have
double
vexation
and
trouble
.
Vide
F.
N.
B.
71.
&
f.
m.
&
infra
,
181.
7.
5
In
good
discretion
no
melius
inquirendum
shall
be
awarded
after
office
found
against
the
King
,
without
view
of
some
Record
,
Paris
Stroughters
case
.
or
some
other
pregnant
matter
for
the
King
,
to
avoid
further
vexation
of
the
subject
:
And
therefore
where
upon
a
Diem
clausit
extremum
it
was
found
,
that
the
land
was
held
of
the
Quéen
,
181
Pendente
Lite
nihil
innovetur
.
pendente
lite
nihil
innovetur
;
And
therefore
at
the
Common
Law
it
was
good
policy
to
bring
the
Quare
Impedit
against
the
Bishop
as
spéedily
as
might
be
.
Formedon
,
dum
fuit
infra
aetatem
,
Vide
the
Statute
of
Glocester
,
6
E.
1.
cap.
13.
It
lyeth
also
in
an
action
of
waste
;
and
the
words
of
the
writ
are
,
Tibi
praecipimus
,
quod
ad
messuagium
praed.
personaliter
accedens
totaliter
ordinari
facias
,
quod
vastum
seu
estrepamentum
de
eodem
messuagio
,
contra
formam
Statuti
praedict.
non
fait
,
pendente
placito
praed.
indiscusso
.
In
Greens
case
.
darrein
presentment
,
if
the
plaintif
suspect
,
Ne
admittas
within
the
six
moneths
,
to
inhibit
the
Bishop
so
to
innovate
,
to
his
prejudice
,
hanging
the
plea
:
The
words
of
the
writ
are
these
;
Prohibemus
vobis
ne
admittatis
personam
ad
ecclesiam
de
B.
quae
vacat
,
ut
dicitur
,
&
de
cujus
advocatione
contentio
mota
est
in
Curia
nostra
inter
A.
&
B.
donec
discussum
fuerit
in
eadem
Curia
,
ad
quem
eorum
pertineat
ejusdem
ecclesiae
Advocatio
.
Ne
admittas
to
the
Bishop
,
and
after
the
Bishop
encumbers
the
Church
within
the
six
moneths
with
his
own
Chaplein
,
or
with
the
Chaplein
of
the
defendant
;
here
,
the
plaintif
shall
have
a
writ
of
Quare
incumbravit
,
to
prevent
such
disturbance
hanging
the
sute
in
the
Quare
Impedit
.
182
Infiniteness
and
multiplicity
of
sutes
.
not
guilty
(
which
extends
but
to
him
that
pleads
)
the
plea
which
goeth
to
the
whole
and
dischargeth
both
,
shall
be
first
tried
;
for
if
that
be
found
,
it
maketh
an
end
of
the
sute
,
and
the
plea
of
the
other
defendant
shall
not
be
tried
;
Howbeit
,
the
Law
is
otherwise
in
Real
action
,
for
which
vide
ubi
supra
.
Sed
quaere
de
hac
,
for
it
hath
been
since
otherwise
adjudged
;
See
the
E.
of
Northumberlands
case
,
Poph.
Rep.
141.
Trin.
16.
Jac.
post
diss
.
F.
N.
B.
188
,
190.
and
the
punishment
inflicted
by
the
Law
in
such
case
;
See
also
the
Register
206.
&
208.
And
(
indeed
)
without
such
a
strict
course
there
may
be
much
oppression
committed
under
colour
and
pretence
of
Law
:
for
so
a
rich
and
malitious
man
may
by
actions
and
sutes
infinitely
vex
him
that
hath
right
,
and
in
the
end
(
for
the
avoiding
of
charge
and
vexation
)
Compell
him
to
forsake
his
right
,
all
which
was
remedied
by
the
Rule
and
Reason
of
the
antient
Common
Law
,
the
neglect
whereof
(
by
introducing
trials
of
rights
and
titles
of
Inheritance
and
franktenement
in
personal
actions
,
in
which
there
is
no
end
or
limit
of
sutes
)
hath
brought
with
it
four
main
Inconveniences
;
1.
Infiniteness
of
verdicts
,
recoveries
,
and
judgements
in
one
and
the
same
cause
:
2.
Sometimes
contrarieties
of
verdicts
and
judgements
one
against
another
:
3.
Continuance
of
sutes
by
20
,
30
,
and
40
years
to
the
utter
impoverishing
of
the
parties
:
4.
All
this
tends
to
the
dishonor
of
the
Common
Law
,
which
utterly
abhorrs
Infiniteness
and
protraction
of
sutes
:
And
herein
the
excellency
of
the
Common
Law
is
to
observed
,
viz.
That
the
receding
from
the
true
institution
thereof
,
introduceth
many
Inconveniences
,
and
the
observation
of
it
is
alwayes
accompanied
with
peace
and
quiet
,
the
end
and
center
of
all
human
laws
.
See
the
Epistle
to
the
4.
Report
,
fol.
1.
b.
8
Vide
Max.
180.
ca.
3.
&
186
,
25.
183
The
Law
construeth
things
with
Equity
and
Moderation
.
In
Butler
and
Bakers
case
.
quod
carceri
mancipentur
in
ferris
,
to
the
end
they
may
the
sooner
pay
their
Creditors
;
yet
if
one
be
arrested
upon
a
Capias
ad
satisfac
.
and
the
Bailifs
upon
a
habeas
Corpus
bring
him
to
Westm.
and
at
his
request
carry
him
to
Lambeth
in
Surrey
,
and
at
the
day
of
return
deliver
him
to
the
Kings
Bench
,
This
shall
be
adjudged
no
escape
,
neither
shall
the
prisoner
thereupon
have
an
Audita
querela
against
the
Creditors
;
So
it
is
likewise
if
the
prisoner
had
of
his
own
accord
gone
to
Lambeth
,
so
as
he
had
returned
in
time
to
be
delivered
into
Court
at
the
return
of
the
writ
,
as
it
was
adjudged
in
Charnicks
case
,
Sheriff
of
the
County
of
Bed
.
in
31
Eliz.
So
if
one
be
Sherif
of
two
Counties
,
&
hath
several
prisoners
in
execution
in
each
County
,
upon
two
habeas
Corpora
against
two
of
them
,
he
may
bring
the
one
prisoner
out
of
the
one
County
into
the
other
,
and
then
carry
both
the
prisoners
up
according
to
the
several
writs
to
him
directed
,
and
this
shall
not
be
adjudged
any
escape
in
the
Sherif
:
Also
,
If
a
prisoner
in
execution
escape
and
flie
into
another
County
,
and
the
Gaoler
make
fresh
sute
after
him
,
and
taking
him
puts
him
into
the
Gaol
again
,
this
shall
be
adjudged
no
escape
;
for
that
upon
fresh
sute
the
Gaoler
took
him
again
,
and
put
him
in
prison
before
any
action
brought
against
him
:
And
in
the
cases
above
produced
upon
habeas
Corpus
the
Sherif
is
not
strictly
bound
to
keep
the
direct
way
to
West
.
in
recta
linea
,
so
as
he
have
him
at
the
return
of
the
writ
,
and
then
deliver
him
into
Court
,
for
if
the
effect
of
the
writ
be
pursued
,
it
sufficeth
.
Hoddesdons
case
.
Ass.
pl.
4.
8
E.
2.
Quare
Impedit
167.
24
H.
6.
28.
Rich.
Godfreyes
case
7
The
Reasonableness
of
fines
in
Courts
,
distresses
,
Alias
,
Pluries
,
and
Attachment
if
he
please
.
See
the
Statutes
of
Magna
Cart.
cap.
14.
and
Westm.
2.
cap.
6.
Tit.
Barr
,
44.
&
Br.
Accompt
6.
In
debt
upon
arrerages
of
accompt
it
is
adjudged
,
that
if
the
Auditors
do
not
commit
the
Accomptant
to
prison
presently
after
the
accompt
,
they
can
never
commit
him
afterwards
,
because
the
Statute
is
penal
to
him
,
that
is
to
be
imprisoned
,
&c.
12
Hob.
14.
Sir
Dan.
Norton
against
Simmes
.
184
Restraineth
a
general
Act
or
Rule
,
and
(
sometimes
also
)
a
Particular
contract
,
if
there
be
found
any
mischief
or
Inconvenience
in
them
.
Com.
Banc.
in
a
case
upon
the
Statute
of
Bankrupts
,
it
was
adjudged
,
that
a
wife
cannot
be
produced
as
a
witness
either
against
or
for
her
husband
,
for
that
it
might
be
a
cause
of
implacable
discord
and
dissention
betwéen
the
husband
and
wife
,
and
a
mean
of
great
inconvenience
.
2
By
the
Statute
of
Westm.
1.
cap.
22.
Tender
of
Mariage
to
an
heir
female
before
the
age
of
fourtéen
is
void
,
which
is
to
be
understood
,
where
the
Lord
may
hold
the
land
the
two
years
after
the
14
,
for
within
that
time
the
Statute
appointeth
the
tender
;
but
where
the
Lord
cannot
have
the
two
years
,
he
may
tender
a
marriage
to
the
heir
female
at
any
time
after
the
age
of
12.
and
before
14.
for
so
he
might
have
done
at
the
Common
Law
.
3
An
Argument
drawn
from
inconvenience
is
forcible
in
Law
,
and
the
Law
,
that
is
the
perfection
of
Reason
,
cannot
suffer
any
thing
which
is
inconvenient
;
And
therefore
the
Law
saith
,
It
is
better
to
suffer
a
mischief
(
viz.
peculiar
to
one
)
than
an
inconvenience
,
that
may
prejudice
many
:
Frankmarriage
is
so
called
,
because
it
ought
to
be
fréed
of
all
service
to
the
donor
,
until
the
fourth
degree
be
past
,
yet
the
tenant
in
Frankmarriage
shall
make
fealty
to
the
donor
,
for
it
were
inconvenient
that
he
should
hold
land
,
and
do
no
service
at
all
for
it
;
So
likewise
tenant
in
Frankalmoign
,
albeit
he
be
fréed
from
all
temporal
service
,
yet
he
shall
say
divine
service
for
his
Lord
,
for
it
were
inconvenient
that
he
should
do
no
service
at
all
for
the
land
he
holds
of
his
Lord
.
4
If
an
Abbot
holds
in
Frankalmoign
,
and
he
and
the
Covent
under
their
Common
Seal
alien
the
land
to
a
Lay-man
;
In
this
case
the
secular
man
shall
make
fealty
,
albeit
the
Alienors
held
not
by
fealty
nor
any
terrene
service
,
but
only
by
Spiritual
services
,
and
those
uncertain
;
for
in
such
case
the
Law
createth
a
new
Temporal
service
out
of
the
land
to
be
done
by
the
Alienee
(
wherewith
the
Abbot
was
not
formerly
charged
)
for
the
avoiding
of
an
Inconvenience
,
viz.
that
the
feoffee
should
do
no
manner
of
service
,
and
(
consequently
)
that
the
land
should
be
holden
of
no
man
,
which
would
be
inconvenient
,
for
that
all
land
is
holden
of
one
or
other
;
and
mediately
or
immediately
of
the
King
,
because
they
did
originally
come
from
the
Crown
.
Vide
148.
35.
Iohn
Wilshire
a
Citizen
of
London
,
who
held
certain
lands
in
Heydon
in
the
County
of
Essex
of
the
King
by
Grand
Serjancy
,
viz.
by
holding
a
Towell
when
the
King
should
wash
his
hands
before
dinner
,
the
day
of
his
Coronation
,
&c.
upon
his
petition
exhibited
to
the
High
Steward
of
England
in
his
Court
was
admitted
to
make
a
deputy
to
perform
it
,
because
it
was
inconvenient
for
him
(
being
a
Citizen
)
to
execute
so
high
an
office
himself
;
And
therefore
he
deputed
Edmond
Earl
of
Cambridge
to
perform
the
service
by
holding
the
towell
that
day
to
the
King
.
So
at
the
same
Coronation
William
Furnival
,
who
held
the
Manor
of
Farnham
in
Com.
Buck.
by
Grand
Serjancy
,
viz.
to
find
the
King
a
glove
for
his
right
hand
,
and
to
support
the
Kings
right
hand
the
day
of
his
Coronation
,
while
he
held
in
his
hand
the
Verge
Royal
,
could
not
have
executed
that
place
in
person
,
but
by
some
honourable
deputy
,
had
not
the
King
that
day
made
him
a
Knight
,
and
by
that
means
made
him
also
capable
of
performing
that
office
himself
.
Also
Anne
the
wife
of
Sir
Iohn
Hastings
Earl
of
Pembroke
,
who
held
the
Manor
of
Ashley
in
Norfolk
of
the
King
by
Grand
Serjancy
,
viz.
to
perform
the
office
of
the
Naperie
at
his
Coronation
,
was
adjudged
to
make
a
deputy
,
because
a
woman
could
not
do
it
in
person
,
and
thereupon
she
deputed
Sir
Thomas
Blunt
Knight
,
who
performed
the
service
in
her
right
,
&c.
sans
number
,
the
Lord
shall
not
have
it
,
for
the
Lord
may
surcharge
it
,
which
would
be
a
prejudice
to
the
terre-tenant
;
there
is
the
same
law
also
of
a
Corodie
uncertain
granted
to
a
Villein
,
or
such
like
inheritances
,
&c.
Novel
disseisin
,
because
it
is
festinum
remedium
,
to
restore
the
disseisee
to
his
freehold
,
whereof
he
is
wrongfully
and
without
judgement
disseised
:
It
lieth
not
in
a
Quare
non
admisit
,
because
it
is
grounded
upon
the
Quare
impedit
;
nor
in
a
Certificat
upon
an
Assise
,
for
the
like
reason
,
et
sic
de
fimilibus
:
yet
regularly
and
in
most
sutes
Protections
are
allowable
.
An
Infant
was
vouched
,
and
at
the
Pluries
venire
facias
a
protection
was
cast
for
the
Infant
,
but
disallowed
,
because
his
age
must
be
adjudged
by
the
Inspection
of
the
Court.
auter
droit
,
viz.
in
the
right
of
the
testator
,
and
not
in
his
own
right
:
but
if
an
executor
or
administrator
be
excommunicate
,
he
may
be
disabled
,
albeit
he
sue
in
auter
droit
,
because
they
,
who
converse
with
a
person
excommunicate
,
are
excommunicate
also
.
Gage
deliv.
5.
it
was
disallowed
by
the
whole
Court
,
and
awarded
,
that
the
defendant
should
gage
deliverance
,
or
go
to
prison
.
sans
number
,
or
the
like
,
shall
not
be
divided
between
Coperceners
for
that
would
be
a
charge
to
the
tenant
of
the
soil
.
sans
number
,
3.
That
the
Lord
Mountjoye
might
assign
his
interest
to
one
,
two
,
or
more
,
but
then
if
it
were
to
two
or
more
,
they
could
make
no
division
of
it
,
but
work
together
with
one
stock
,
neither
could
the
Lord
Mountjoye
,
&c.
assign
his
interest
in
any
part
of
the
waste
to
one
or
more
,
for
that
might
work
a
prejudice
and
a
surcharge
to
the
tenant
of
the
land
;
And
therefore
if
such
an
uncertain
Inheritance
descendeth
to
two
Coperceners
,
it
cannot
be
divided
between
them
,
Causâ
quâ
suprâ
.
uncore
prist
,
because
albeit
they
are
parcel
of
the
obligation
,
yet
they
are
bona
peritura
,
and
it
is
inconvenient
and
a
charge
for
the
Obligor
to
keep
them
.
Vide
Connys
case
,
Co.
l.
9.
85.
b.
1.
Ch.
Wray
Ch.
Just.
per
tot
.
cur
.
and
after
to
the
use
of
divers
others
of
his
blood
,
with
future
power
of
revocation
,
as
after
such
a
feast
,
or
after
the
death
of
such
a
man
,
and
afterwards
,
and
before
the
power
of
revocation
commenced
,
he
for
a
valuable
consideration
bargains
and
sells
the
land
to
another
and
his
heirs
,
this
bargain
and
sale
is
within
the
remedy
of
the
Statute
of
27
Eliz.
cap.
4.
for
albeit
the
Statute
saith
,
The
said
first
conveyance
not
by
him
revoked
,
according
to
the
power
by
him
reserved
,
which
séems
by
the
literal
sence
to
be
meant
of
a
present
power
of
revocation
,
for
no
revocation
can
be
made
of
a
future
power
,
until
it
come
in
esse
,
yet
it
was
held
,
that
the
intent
of
the
Act
was
,
that
such
voluntary
conveyance
,
which
was
originally
subject
to
the
power
of
revocation
,
be
it
in
praesenti
,
or
in
futuro
,
shall
not
stand
against
the
purchasor
bonâ
fide
for
valuable
consideration
,
&
if
any
other
construction
should
be
made
,
the
said
Act
would
serve
for
little
or
no
purpose
;
for
then
it
would
be
no
hard
matter
to
evade
it
:
So
likewise
if
A.
reserve
a
power
of
revocation
by
the
assent
of
B.
and
after
A.
bargains
and
sells
the
land
to
another
,
this
bargain
and
sale
is
good
,
and
within
the
remedy
of
the
said
Act
;
for
otherwise
the
good
provision
of
the
Act
by
a
small
addition
and
knavish
invention
might
be
defeated
.
C.
B.
betwixt
Lee
and
his
wife
executrix
of
one
Smith
plaintif
,
and
Mary
Colshil
executrix
of
Th.
Colshil
defendant
,
30
If
a
rent
be
granted
out
of
the
Manor
of
Dale
,
B.
R.
Rot.
3.
E.
was
indicted
for
the
death
of
M.
before
Iustices
of
Peace
in
the
County
of
Lincoln
,
whereupon
a
Capias
was
awarded
;
and
thereupon
also
an
Exigent
,
after
which
E.
dies
before
any
Attainder
,
upon
which
award
of
the
Exigent
his
executors
bring
a
writ
of
Error
,
and
it
was
adjudged
,
that
the
writ
of
Error
did
well
lie
,
because
by
the
award
of
the
Exigent
his
goods
and
chattels
were
forfeit
,
and
of
such
awards
,
which
tend
ad
grave
damnum
of
the
party
,
a
writ
of
Error
lyeth
,
&
sic
de
similibus
.
As
to
the
second
,
you
shall
find
in
36
H.
6.
Fieri
fac
.
3.
That
in
debt
against
divers
by
several
praecipes
,
if
there
be
error
in
the
Iudgements
against
one
of
them
,
he
shall
have
a
writ
of
Error
;
for
in
Originals
,
wherein
there
are
several
Counts
,
and
Error
is
against
one
,
he
shall
have
a
writ
of
Error
,
and
the
record
of
his
Count
,
and
the
pleading
▪
&c.
shall
be
severed
from
the
original
and
removed
into
the
Kings
Bench
,
and
yet
the
Original
shall
still
remain
in
the
Common
Place
;
for
it
would
be
inconvenient
and
prejudicial
(
in
that
case
)
to
stay
until
judgement
be
given
upon
the
whole
original
:
Howbeit
,
where
there
is
one
original
and
one
Count
,
he
cannot
have
a
writ
of
Error
untill
all
be
determined
,
for
the
record
cannot
be
in
the
Kings
Bench
and
the
Com.
Pl.
all
at
one
time
.
Marlebridge
cap.
6.
that
the
Lord
by
Knight
service
shall
not
lose
his
custody
by
feoffment
made
by
Collusion
,
Assises
,
pl.
56.
If
a
man
be
mad
and
out
of
his
wits
,
whereby
he
doth
or
is
likely
to
do
great
hurt
,
other
men
may
assault
,
bind
,
and
beat
him
too
,
and
justifie
it
by
Law
,
to
prevent
the
hurt
and
mischief
which
he
may
do
in
that
condition
:
So
the
Statute
of
Marlebridge
cap.
4.
prohibits
generally
,
that
none
shall
convey
a
distress
out
of
one
County
into
another
,
yet
it
is
adjudged
in
1
H.
6.
Tit.
Distress
1.
that
if
one
hold
land
of
a
Manor
in
another
County
,
the
Lord
may
distrain
and
bring
the
distress
from
the
land
holden
of
the
Manor
,
into
the
County
where
the
Manor
is
,
and
this
is
for
the
avoiding
of
a
mischief
&
inconvenience
;
for
it
would
be
great
damage
to
the
Lord
if
he
might
not
bring
the
distress
to
his
Manor
,
for
the
avoidance
whereof
the
Law
is
not
offended
,
albeit
the
letter
of
the
Law
is
not
observed
:
In
like
manner
,
there
was
a
Law
amongst
the
Romans
,
that
whosoever
scaled
the
walls
in
the
night
should
be
condemned
to
die
,
yet
in
the
time
of
warr
one
scaled
the
walls
in
the
night
to
discover
the
approach
of
the
Enemy
,
and
he
was
by
the
Senate
not
only
discharged
of
death
,
but
besides
was
well
rewarded
for
that
his
service
to
the
Commonwealth
;
for
although
he
thereby
infringed
the
words
of
the
Law
,
yet
the
grave
Senators
expounded
it
to
be
no
breach
of
the
intent
of
the
Law
;
because
that
Law
was
made
to
prevent
hurt
and
danger
,
and
not
to
inhibit
benefit
and
safety
to
the
City
:
So
likewise
in
Fogassaes
case
,
the
incertainty
of
the
word
being
caused
for
the
avoiding
of
a
great
inconvenience
,
(
viz.
the
loss
of
many
mens
lives
)
shall
excuse
the
incertainty
of
the
agreement
with
the
Collector
.
39
Vide
Hob.
3
Pincombe
against
Rudge
:
A
warranty
may
be
sued
by
way
of
Covenant
133.
Allen
,
and
Walter
,
for
summons
in
Dower
.
Tho.
Packerings
case
.
40
If
an
office
be
found
only
in
one
County
of
all
the
lands
lying
as
well
in
other
Counties
as
there
,
which
in
Law
is
no
office
,
185
Nemo
bis
punitur
pro
eodem
delicto
.
Ass.
pl.
16.
&
2
R.
3.
14.
sur
assumpsit
is
a
good
barr
in
an
action
of
debt
brought
upon
the
same
contract
,
sur
assumpsit
;
because
in
such
an
action
upon
the
case
he
shall
not
only
recover
damages
for
the
special
loss
which
he
hath
,
if
any
be
,
but
likewise
for
the
whole
debt
,
and
reason
will
not
permit
,
that
the
defendant
should
satisfie
one
debt
or
duty
twice
.
Vide
12
E.
2.
13.
a.
2
R
3.
14.
38
H.
8.
Br.
Action
sur
le
case
105.
Bis
idem
exigi
bona
fides
non
patitur
,
&
in
satisfactionibus
non
permittitur
amplius
fieri
,
quod
semel
factum
est
.
Trover
and
Conversion
brought
in
the
Exchequer
by
bill
,
the
defendant
pleads
,
that
the
plaintif
had
an
action
of
Trover
,
K.
B.
and
demands
Iudgement
of
the
Bill
,
whereunto
the
plaintif
demurrs
;
and
it
was
resolved
by
the
Barons
,
that
the
Bill
should
abate
;
and
one
of
the
reasons
thereof
was
this
,
that
the
defendant
should
not
be
twice
vexed
for
one
and
the
same
thing
;
Nemo
debet
bis
vexari
,
si
constat
Curiae
,
quod
sit
pro
una
et
eadem
causa
.
R●
.
Godfreyes
case
8
If
a
man
be
convicted
in
the
County
Court
before
the
Sherif
in
a
Writ
of
Recaption
,
he
shall
be
only
amerced
,
Darrein
presentment
,
against
the
plaintif
,
and
recovers
in
the
Darrein
presentment
,
and
the
plaintif
is
non-sute
in
the
Quare
Impedit
;
In
this
case
,
the
defendant
shall
have
two
judgements
against
the
plaintif
,
viz.
to
have
a
writ
to
the
Bishop
in
both
Actions
,
and
two
writs
shall
be
awarded
to
enquire
of
damages
,
Howbeit
he
shall
not
pay
damages
twice
for
one
and
the
same
disturbance
.
Common
Bench
and
in
the
Court
Christian
for
the
same
thing
,
a
prohibition
lyeth
.
12
Vide
Hob.
2.
Incerti
temporis
&
nominis
.
186
It
flyeth
and
preventeth
all
occasions
of
Evill
.
Borough
English
,
dyeth
,
the
younger
brother
within
the
age
of
14
years
,
the
elder
brother
of
the
half
bloud
shall
not
have
the
custody
of
the
land
,
because
by
possibility
the
elder
brother
may
inherit
the
land
;
for
if
the
youngest
die
without
issue
,
and
the
land
desc●nd
to
the
uncle
,
the
elder
brother
of
the
half
bloud
may
be
heir
unto
him
;
And
therefore
the
Rule
in
Lib.
Rubr.
cap.
70.
is
,
Nullus
haeredipetae
suo
propinquo
vel
extraneo
periculosa
sarè
custodia
committatur
;
And
herewith
also
agrée
our
antient
Authors
,
as
Bracton
l.
2.
fol.
87.
Brit.
fol.
163.
Fleta
l.
1.
cap.
10.
Fortesc
.
cap.
40.
Howbeit
it
is
otherwise
in
the
Civil
Law
,
Vide
Fort.
ibidem
.
Ne
injuste
vexes
,
before
any
distress
or
molestation
:
And
these
are
called
brevia
anticipantia
,
writs
of
Prevention
.
Et
sic
e
converso
:
Howbeit
,
if
after
they
are
agréed
on
the
verdict
,
they
eat
and
drink
at
the
charge
of
him
,
for
whom
they
do
pass
,
it
shall
not
avoid
the
verdict
.
Seire
facias
for
the
assets
,
and
not
for
the
land
intailed
;
And
the
reason
hereof
is
,
for
that
if
(
in
this
case
)
the
tenant
should
be
restored
to
the
land
intailed
,
then
if
the
issue
in
tail
should
alien
the
assets
,
his
issue
in
a
Formedon
would
again
recover
from
the
tenant
the
land
intailed
:
And
therefore
the
Sages
of
the
Law
to
prevent
future
occasions
of
sutes
,
have
heretofore
resolved
the
said
diversity
in
the
cases
abovesaid
,
upon
consideration
and
construction
of
the
Statute
of
Glocester
,
and
of
the
Statute
de
donis
,
West.
2.
cap.
1.
Vide
supra
15
,
9.
157
,
14.
&
178.
22.
de
donis
13
E.
1.
cap.
1.
Intailed
lands
could
not
be
forfeited
for
felony
or
treason
,
but
only
during
the
life
of
tenant
in
tail
;
but
since
by
the
Statute
of
26
H.
8.
cap.
13.
Intailed
lands
shall
be
also
forfeited
for
Treason
:
Also
by
the
Statute
of
1
E.
6.
c.
12.
the
wife
was
to
be
endowed
,
albeit
her
husband
were
attainted
,
convicted
,
or
outlawed
for
treason
or
felony
;
but
afterwards
by
the
Statue
of
5
,
&
6
E.
6.
cap.
11.
The
wife
shall
lose
her
dower
,
where
the
husband
is
attainted
of
Treason
,
so
long
as
the
attainder
continues
in
force
:
There
are
also
divers
offences
made
felony
by
special
Statutes
,
wherein
dower
,
corruption
of
bloud
,
and
disherison
of
the
heir
are
by
special
provision
saved
.
11
A
meer
Layman
,
Reg.
fol.
38.
Howbeit
,
this
was
alwayes
by
grant
or
composition
,
but
he
could
never
be
discharged
of
tithes
by
prescription
;
for
albeit
such
prescription
might
have
lawful
commencement
,
yet
the
Law
in
favour
of
holy
Church
would
never
suffer
such
prescription
to
be
put
to
the
trial
of
lay-men
,
lest
they
should
rather
strain
their
consciences
for
their
private
benefit
,
than
render
the
Church
the
Duties
due
unto
it
.
Vide
supra
2
,
5.
praecipe
,
&c.
Vide
Co.
l.
7.
5.
b.
Sir
Miles
Corbets
case
.
See
Co.
l.
11.
82.
a.
4.
Lewes
Bowles
case
.
Per
Popham
cum
tota
Curia
.
Drue
Druries
case
.
21
In
Sir
Drue
Druries
case
in
the
6.
Report
the
Iustices
said
,
Trojan
horse
in
Virgil
,
2.
Tempore
Pacis
,
for
they
having
gotten
into
their
hands
a
great
part
of
the
Inheritance
of
the
Commonwealth
,
and
not
being
capable
to
serve
of
Iuries
,
there
would
be
a
failer
of
Iustice
,
&c.
I
Arrest
you
.
Ass.
pl.
37.
&c.
John
Churchil
and
Iohn
Tooke
in
reversion
after
the
death
of
Walter
Tooke
,
and
William
Curle
,
was
adjudged
void
,
because
it
was
an
office
of
Iudicature
in
that
Court
,
and
therefore
could
not
be
granted
in
reversion
.
K.
B.
and
before
Iustices
of
Peace
;
And
it
was
also
the
usual
course
in
the
Chancery
to
make
such
oath
before
a
Master
of
that
Court
,
before
he
could
have
it
granted
;
but
of
later
times
that
course
hath
been
left
in
Chancery
,
which
Fitzharbert
saith
is
not
well
done
,
because
such
prosecution
for
the
most
part
procéeds
rather
from
malice
,
than
any
just
cause
of
fear
.
Vide
Max.
191.
3.
&
134.
14.
C.
B.
Pasc
.
10.
Starr-chamber
(
and
now
,
as
it
seems
,
inditable
in
the
Upper
Bench
)
because
such
quarrellous
Letters
tend
to
the
breach
of
the
peace
,
and
to
the
stirring
of
Challenges
and
quarrels
,
and
therefore
the
means
of
such
evils
,
as
well
as
the
end
,
are
to
be
prevented
.
187
It
moderateth
the
strictness
of
the
Law
it self
.
prima
facie
seems
to
be
the
grant
of
A.
and
the
confirmation
of
B.
but
yet
the
grantee
may
have
a
writ
of
annuity
against
both
:
Howbeit
if
two
men
grant
an
annuity
of
20
l.
per
annum
to
another
,
although
the
persons
be
several
,
yet
he
shall
have
but
one
annuity
;
but
if
the
grant
be
Obligamus
nos
et
utrumque
vestrum
,
the
grantee
may
have
a
writ
of
annuity
against
either
of
them
,
but
he
shall
have
but
one
satisfaction
.
Non
ideo
puniatur
dominus
,
&c.
Magna
Carta
cap.
34.
which
was
in
affirmance
of
the
Common
Law
.
Iudgement
si
action
,
whereas
his
plea
should
have
been
non
est
factum
,
yet
if
the
Iustices
find
that
it
was
not
his
deed
,
so
as
the
plaintif
had
no
cause
of
action
,
they
ought
ex
officio
to
give
judgement
against
the
Plaintif
.
Vide
11.
9.
188
Verba
semper
accipienda
sunt
in
mitiori
sensu
.
For
my
ground
in
Allerton
,
Hext
seeks
my
life
;
seek
his
life
lawfully
upon
just
cause
,
and
his
land
may
be
holden
of
him
;
2.
seeking
of
his
life
is
too
General
,
and
for
seeking
only
no
punishment
can
be
inflicted
by
the
Law
.
Pox
(
innuendo
)
the
French
Pox
,
this
Innuendo
doth
not
perform
his
proper
office
,
for
it
strives
to
extend
the
general
words
the
Pox
to
the
French
pox
by
Imagination
of
an
Intent
,
which
is
not
apparent
by
any
precedent
words
,
unto
which
the
Innuendo
may
referr
,
And
the
words
themselves
shall
be
taken
in
mitiori
sensu
.
Mr.
Barham
did
burn
my
barn
(
innuendo
a
barn
with
corn
)
with
his
own
hands
,
and
none
but
he
:
And
it
was
adjudged
that
they
were
not
actionable
,
for
it
is
not
felony
to
burn
a
barn
,
unles
it
be
parcel
of
a
Mansion-house
,
or
full
of
Corn
;
And
in
this
and
the
like
cases
agitur
civiliter
,
and
not
criminaliter
,
and
verba
accipienda
sunt
in
mitiori
sensu
:
Also
the
Innuendo
will
not
serve
,
when
the
words
themselves
are
not
slanderous
.
Iohn
Molyns
case
.
5
E.
3.
is
Lord
,
the
Abbot
of
Westm.
Mesne
,
Iohn
Molyns
,
and
his
heirs
,
Tenendum
de
nobis
haeredibus
,
&
successoribus
nostris
,
et
aliis
capitalibus
dominis
feodi
illius
per
servitia
inde
debita
&
de
Iure
consueta
:
In
this
case
,
the
question
was
,
of
whom
and
how
this
Manor
was
holden
?
And
here
albeit
it
was
objected
that
the
Tenendum
,
being
by
the
services
(
inde
)
thence
due
,
at
which
time
nothing
was
due
to
the
Mesne
,
the
Mesnalty
continued
still
extinct
,
and
therefore
that
it
was
holden
immediately
of
the
King
;
yet
it
was
adjudged
,
that
by
those
words
of
the
Patent
the
Mesnalty
was
revived
,
for
when
those
words
may
be
interpreted
two
manner
of
wayes
,
viz.
either
immediately
of
the
King
,
or
mediately
by
the
Mesne
,
reason
requires
,
that
the
words
should
be
understood
in
the
milder
sence
,
especially
when
that
appears
to
be
the
Kings
intention
,
and
tends
more
to
his
honour
,
and
it
is
not
reasonable
,
that
the
Mesne
,
who
offended
not
,
should
lose
his
tenure
.
Pro
omnibus
aliis
servitiis
,
are
to
be
understood
of
other
services
,
which
the
Law
doth
not
imply
or
add
to
it
,
so
as
the
tenure
shall
be
by
a
Rose
and
fealty
;
and
this
is
the
benign
construction
of
Law
,
as
near
the
Kings
intention
as
may
be
,
by
which
construction
the
said
words
pro
omnibus
aliis
servitiis
have
some
effect
,
and
shall
not
be
rejected
as
vain
,
and
of
no
force
.
Moyle
Finches
case
.
7
When
a
Manor
hath
once
had
the
reputation
of
a
name
,
(
then
)
shall
not
be
intended
presently
during
the
life
of
A.
as
these
words
prima
facie
do
seem
to
import
,
but
they
shall
have
a
beneficial
construction
,
viz.
that
then
it
shall
remain
,
as
a
remainder
ought
to
doe
,
that
is
to
say
,
to
vest
then
,
and
to
be
executed
after
the
death
of
A.
So
if
a
gift
in
tail
be
made
upon
condition
,
that
if
he
doe
such
an
act
,
that
then
the
land
shall
remain
to
his
right
heirs
,
this
word
then
is
not
so
to
be
understood
,
as
if
it
should
avoid
the
estate
tail
,
and
to
be
executed
presently
upon
the
act
performed
,
but
it
is
to
be
intended
,
that
upon
the
act
performed
the
remainder
shall
vest
,
and
after
the
estate
ended
shall
be
executed
,
and
not
before
.
189.
Construeth
things
according
to
Common
possibility
or
intendment
;
And
therefore
fee
simple
,
and
it
shall
not
be
intended
by
this
word
(
in
fee
)
that
a
man
is
seised
in
fee
tail
,
unless
this
addition
be
put
to
it
,
fee
tail
;
for
fée
shall
be
taken
(
secundum
excellentiam
)
for
the
highest
and
best
fee
,
and
that
is
fee
simple
.
&c.
in
tres
partes
divisas
,
this
shall
not
be
intended
to
be
in
common
;
but
if
the
verdict
be
in
tres
partes
dividendas
,
then
it
séems
that
they
are
tenants
in
Common
by
the
Intendment
of
the
verdict
.
Marlebr
.
cap.
29.
which
gives
a
writ
of
entry
in
the
Post
in
that
case
.
13
Max.
22
,
31.
Darrein
presentment
,
and
one
of
the
reasons
hereof
was
,
for
that
the
Law
intended
,
that
the
Bishop
who
had
Cure
of
souls
within
his
diocess
,
would
admit
and
institute
an
able
man
for
the
discharge
of
his
duty
and
his
own
,
and
that
the
Bishop
would
do
right
to
every
Patron
within
his
diocess
:
besides
,
Institution
is
a
Iudicial
act
,
and
in
nature
of
a
Iudgement
,
and
therefore
intended
to
be
just
.
because
they
are
intended
by
Law
to
do
right
:
And
for
the
same
reason
it
is
,
that
Noblemen
,
who
in
case
of
High
Treason
are
to
pass
upon
a
Peer
of
the
Realm
,
cannot
be
challenged
,
because
they
are
Iudges
of
the
fact
;
and
therefore
(
by
intendment
of
Law
)
will
give
a
righteous
judgement
,
Res
Iudicata
pro
veritate
accipitur
.
Vide
plus
ibid.
&
Dyer
290.
pl.
61.
Formedon
in
descender
,
for
the
tenant
in
tail
may
live
50
years
after
the
discontinuance
;
And
therefore
in
Fitz
williams
case
in
10
&
11
Eliz.
it
was
adjudged
,
Formedons
in
descender
were
not
within
the
Statute
for
the
common
possibility
aforesaid
.
Vide
plus
ibid.
F.
N.
B.
149
c.
well
explained
.
fact
.
Vide
27
H.
8.
2.
a.
B.
R.
inter
Scovel
&
Cabel
:
and
therefore
in
Goodales
case
in
the
Fifth
Report
,
albeit
no
title
was
there
found
for
the
defendant
,
but
was
as
a
meer
stranger
,
yet
the
Court
never
doubted
thereof
,
but
by
intendment
took
it
for
granted
,
and
took
only
into
their
consideration
that
,
whereof
the
Iurors
made
doubt
,
viz.
whether
the
payment
there
were
a
good
performance
of
the
Condition
.
Ejectione
firmae
at
the
Common
Law
Antient
Demesn
is
a
good
plea
to
the
Iurisdiction
of
the
Court
,
Antient
demesn
is
a
good
plea
for
the
apparence
,
and
common
intendment
,
that
the
realty
will
come
in
debate
;
the
like
Law
is
also
in
accompt
against
a
Bailif
,
because
it
is
brought
for
the
issues
of
the
land
,
which
is
antient
demesn
;
and
therefore
ought
to
be
brought
and
determined
in
the
Court
of
antient
demesn
,
and
not
elswhere
,
&c.
Ph.
&
M.
cap.
5.
for
exercising
the
trade
of
a
woollen-weaver
without
having
served
seven
years
as
an
Apprentice
,
&c.
and
had
judgement
,
&c.
hereupon
C.
brings
a
writ
of
Error
,
&c.
and
for
one
of
the
Errors
assigns
,
that
albeit
Ludlow
be
a
Court
of
Record
,
yet
it
is
not
such
a
Court
as
is
intended
by
the
Statute
for
causes
of
that
nature
;
for
that
the
antient
usage
in
all
such
popular
actions
or
informations
hath
been
,
that
albeit
the
Informer
tam
pro
domina
Regina
quam
pro
ipso
exhibits
the
Information
,
yet
if
the
defendant
pleads
a
special
plea
,
the
Quéens
Attorney
shall
reply
alone
,
and
it
was
intended
by
the
makers
of
the
said
Act
,
that
the
sute
should
be
in
such
a
Court
,
where
the
Kings
Attorney
may
attend
,
for
the
benefit
which
the
King
may
have
by
such
a
sute
,
and
that
is
in
the
four
Courts
at
Westminster
;
And
thereupon
the
Iudgement
was
reversed
.
Vide
Dyer
236.
24.
Cestuy
que
use
had
granted
his
use
by
his
will
,
Geo.
Cursons
case
.
no
collusion
could
have
been
averred
upon
such
a
will
to
obtain
the
wardship
of
his
heir
;
for
Nemo
prae●umitur
esse
immemor
suae
aeternae
salutis
,
et
maxime
in
articulo
mortis
.
et
omne
testamentum
morte
consummatum
est
:
And
therefore
the
Statute
of
4
H.
7.
10.
which
gives
the
wardship
of
Cestuy
que
use
,
makes
exception
,
when
any
will
is
by
him
declared
.
Vide
27
H.
8.
14.
ad
exequenda
conjugalia
obsequia
;
The
second
wife
dies
,
and
Ch.
marries
a
third
wife
,
and
hath
issue
another
daughter
;
The
last
daughter
is
found
heir
by
office
,
the
first
traverseth
the
office
by
bill
in
the
Court
of
Wards
:
And
in
this
case
it
was
resolved
,
that
albeit
the
first
was
in
truth
a
lawfull
marriage
,
yet
the
Sentence
of
divorce
being
in
force
,
no
averment
could
be
admitted
against
it
,
because
the
Spiritual
Iudge
having
jurisdiction
thereof
,
before
the
Sentence
were
repealed
,
it
was
intended
by
Law
to
be
Iust
,
and
our
Law
gave
credence
thereunto
:
for
,
Res
Judicata
pro
veritate
accipitur
.
See
Dyer
13.
pl.
62.
Meriel
Treshams
case
.
37
In
debt
against
an
executor
he
cannot
plead
quod
ipse
non
habet
,
&c.
aliqua
bona
,
&c.
praeter
bona
,
vide
Max.
162.
pl.
61.
)
and
the
other
he
ought
to
plead
,
because
he
being
privy
and
representing
the
person
of
the
testator
,
hath
(
by
intendment
of
Law
)
notice
of
the
certainty
and
certain
value
of
the
goods
,
and
therefore
in
such
case
ought
to
plead
certainly
,
as
aforesaid
;
The
like
Law
is
of
an
administrator
for
the
goods
of
the
Intestate
.
G
an●s
case
.
39
A
Prescription
,
40
It
is
a
Principle
in
Law
,
that
a
barr
is
good
,
if
it
be
certain
,
si
ipse
B.
vellet
inhabitare
in
messuagio
praedicto
,
&c.
Here
,
in
an
Action
brought
by
the
lessor
for
the
recovery
of
the
Messuage
,
&c.
upon
the
condition
broken
,
it
is
a
good
barr
for
B.
to
say
,
that
after
the
death
of
A.
he
entred
,
without
averring
the
time
of
his
entry
,
viz.
immediately
after
the
death
of
A.
because
(
by
intendment
of
Law
)
it
will
be
presumed
he
did
so
enter
:
So
if
one
plead
in
barr
,
that
A.
died
seised
,
and
that
B.
entred
,
as
son
and
heir
to
A.
this
is
a
good
barr
,
and
yet
it
may
be
that
he
was
not
his
heir
,
for
it
is
not
expresly
said
,
that
he
is
his
son
and
heir
,
but
that
he
entred
as
son
and
heir
,
and
yet
in
regard
he
pleads
by
way
of
barr
,
the
best
shall
be
intended
for
the
defendant
.
In
like
manner
in
27
Ass.
pl.
31.
Tit.
Barr
303.
&
Br
Assise
272.
In
an
assise
brought
by
the
heir
,
the
tenant
saith
,
that
the
father
of
the
plaintif
being
tenant
by
the
Curtesie
,
and
yet
in
life
,
let
his
estate
to
the
ancestor
of
the
tenant
,
w●o
died
seised
of
that
estate
,
after
whose
death
the
tenant
was
in
as
son
and
heir
,
and
demands
Iudgement
si
Assise
,
&c.
And
this
was
held
a
good
barr
,
And
yet
he
saith
not
,
that
he
was
the
first
that
entred
after
the
death
of
his
Father
,
and
if
he
were
not
the
first
,
he
hath
no
title
,
for
the
land
in
such
case
Occupanti
conceditur
,
viz.
to
him
that
first
enters
,
and
that
might
be
the
plaintif
:
but
yet
the
barr
was
held
good
,
because
to
a
common
intent
it
shall
be
taken
,
that
the
tenant
was
the
first
that
entred
after
the
death
of
the
father
,
and
if
it
were
not
so
,
the
plaintif
may
and
ought
to
shew
it
.
Vide
plus
ibid.
&
infra
195.
27.
Vide
Max.
63.
pl.
4.
Will
.
Banes
case
.
that
the
executor
hath
assets
;
for
it
will
be
intended
prima
facie
,
that
he
hath
assets
;
So
likewise
in
debt
against
the
heir
,
the
plaintif
shall
never
averr
in
his
Count
,
that
he
hath
assets
;
for
the
Law
presumes
it
prima
facie
;
because
the
Law
presumes
,
that
the
testator
or
ancestor
will
not
leave
a
greater
charge
upon
the
executors
or
heir
,
than
he
leaves
benefit
to
discharge
it
.
Merton
,
cap.
6.
De
dominis
,
qui
maritaverint
illos
,
&c.
si
parentes
conquerentur
,
&c.
it
shall
be
intended
,
that
at
some
time
or
other
,
it
would
have
béen
put
in
ure
;
And
therefore
he
saith
,
that
no
action
can
be
brought
upon
that
Statute
,
in
as
much
as
it
was
never
seen
or
heard
,
that
any
action
was
ever
taken
thereupon
.
prima
facie
it
shall
be
intended
Socage
,
because
most
part
of
the
land
is
so
holden
.
190
Stabit
praesumptio
donec
probetur
in
Contrarium
.
Term
Pasch
.
and
therefore
it
shall
be
intended
to
be
enrolled
the
first
day
of
the
Term
,
and
then
C.
being
in
by
the
deed
and
not
by
the
fine
,
there
needed
no
attornment
:
yet
(
in
this
case
)
it
was
resolved
by
the
Court
,
that
it
was
true
,
that
it
shall
be
intended
by
presumption
of
Law
,
that
the
deed
was
enrolled
the
first
day
of
the
Term
;
but
Stabit
praesumptio
donec
probetur
in
contrarium
,
and
for
as
much
as
the
plaintif
by
his
demurrer
hath
confessed
the
enrollment
to
be
after
the
fine
,
the
presumption
thereby
vanisheth
,
and
becomes
of
no
force
,
and
the
mutual
consent
and
confession
of
both
parties
shall
stand
.
Drue
Druries
case
.
and
herewith
agrées
Littl.
fol.
22.
yet
this
presumption
of
Law
gives
place
to
a
judgement
and
proof
to
the
contrary
,
according
to
the
Maxime
,
Stabitur
praesumptioni
donec
probetur
in
contrarium
:
And
therefore
when
the
King
,
who
is
the
Soveraign
and
supreme
Iudge
of
Chivalrie
,
dubbs
an
Infant
Knight
,
he
thereby
adjudgeth
him
able
to
do
Knight
service
,
&
all
persons
are
concluded
to
say
the
contrary
;
and
therefore
such
an
heir
so
made
Knight
shall
be
out
of
Ward
and
custody
:
Howbeit
,
he
shall
pay
the
value
of
his
mariage
,
&c.
Vide
Ma.
ca.
cap.
3.
de
Strata
Mercella
.
till
the
Abbey
was
granted
to
the
King
by
the
Statute
of
27
H.
8.
&c.
and
pleads
also
the
Statute
of
32
H.
8.
which
revives
the
privileges
of
Abbies
,
and
that
the
King
granted
a
Manor
parcel
of
the
Abbey
,
and
tot
,
talia
,
et
tanta
privilegia
,
&c.
unto
him
;
And
in
this
case
,
it
was
objected
,
that
it
did
not
appear
by
the
claim
of
the
defendant
,
what
estate
the
Abbot
had
in
the
said
Franchises
,
but
generally
,
quod
licite
habuit
&
gavisus
fuit
,
and
so
peradventure
he
might
have
them
but
by
a
lease
for
life
or
years
,
&c.
To
which
it
was
answered
and
resolved
,
that
a
general
having
and
enjoying
of
them
shall
be
intended
of
a
having
and
enjoying
in
fee
simple
,
and
that
in
such
case
a
particular
estate
or
interest
shall
not
be
presumed
,
unless
it
be
specially
shewed
,
&c.
so
the
word
Fee
shall
be
intended
fee
simple
,
and
not
fee
tail
,
unles
it
be
so
expressed
.
Vide
supra
,
Max.
189.
pl.
8.
11
If
the
principal
in
felony
be
attainted
erroniously
,
either
by
error
in
process
,
Tit.
Mordancester
46.
The
case
was
this
,
A.
was
indicted
of
felony
,
and
B.
of
the
receit
of
A.
A.
essoignes
himself
and
is
outlawed
,
B.
was
taken
,
and
putting
himself
upon
the
Inquest
was
found
guilty
,
whereupon
B.
was
attainted
and
hanged
,
and
the
Lord
entred
as
in
his
escheat
,
and
after
A.
came
and
reversed
the
outlawry
,
and
pleading
to
the
felony
was
found
not
guilty
,
and
thereupon
was
acquit
,
whereupon
the
heir
brings
a
Mordancester
against
the
Lord
by
escheat
,
who
comes
and
shews
all
this
matter
,
and
it
was
demurred
in
Iudgment
thereupon
,
whereupon
it
was
awarded
,
that
the
heir
of
B.
should
recover
seisin
of
the
land
;
for
if
B.
had
been
then
alive
,
he
should
have
gone
quit
by
the
acquittal
of
A.
because
he
could
not
be
a
Receiver
of
a
felon
,
when
A.
was
no
felon
.
Vide
plus
ubi
supra
.
decimas
provenientes
de
centum
acris
,
or
of
such
a
Manor
,
and
if
those
Tithes
be
not
of
the
value
of
the
fourth
part
of
the
Advowson
,
the
other
party
may
surmise
it
,
and
pray
Consultation
;
for
the
Law
presumes
,
that
the
plaintif
would
not
bring
an
Indicavit
,
if
the
Tithes
were
not
of
that
value
,
until
the
defendant
allege
something
to
the
contrary
.
not
guilty
,
sur
disseisin
,
and
against
the
former
Iudgement
the
tenant
gives
in
evidence
an
exemplification
of
the
examination
of
witnesses
in
Chancery
,
proving
the
full
age
,
and
albeit
it
séemed
to
the
Court
not
available
against
the
Iudgement
,
yet
the
verdict
past
with
that
testimony
,
and
afterwards
was
affirmed
in
attaint
.
tempore
H.
5.
according
to
the
Statute
de
Eschaetoribus
,
29
E.
1.
Weston
,
Welsh
,
and
Harper
,
held
it
might
be
good
by
devise
,
though
void
by
estate
executed
)
3.
for
that
the
executor
had
not
declared
to
have
the
term
as
devisee
,
or
as
executor
,
and
it
shall
be
intended
as
executors
,
untill
the
contrary
be
shewed
.
Hob.
78.
Saint-Iohn
&
Saint-Iohn
.
22
In
debt
by
Saint-John
against
Saint-John
,
Bailiff
of
Stockbridge
,
upon
the
Statute
of
23
H.
6.
15.
for
not
returning
him
Burgess
of
that
Town
to
the
then
intended
Parliament
:
And
where
the
Statute
saith
,
that
the
Sherif
shall
send
his
precept
to
the
Maior
,
and
if
there
be
no
Maior
,
then
to
the
Bailif
,
the
plaintif
declared
,
that
the
Sherif
had
made
his
precept
to
the
Bailif
,
without
averring
that
there
was
no
Maior
;
And
after
a
verdict
for
the
plaintif
this
was
moved
in
arrest
of
Iudgement
:
But
the
Court
was
of
opinion
clearly
,
that
it
shall
be
presumed
there
was
no
Maior
,
except
it
be
shewed
,
and
if
there
were
,
it
ought
to
be
shewed
on
the
other
part
.
191
Ad
ea
quae
frequentius
accidunt
,
Jura
adaptantur
.
Vide
Max.
186.
pl.
32.
&
134.
4.
de
valore
maritagii
are
,
Quare
cum
Maritagium
praed.
B.
ad
ipsum
A.
pertineat
,
eo
quod
praed.
B.
terram
suam
de
eo
tenuit
per
servitium
militare
,
&
idem
A.
praed.
B.
dum
fuit
infra
aetatem
,
&c.
compotens
maritagium
absque
disparagatione
,
&c.
saepius
obtulerit
,
&c.
But
the
reason
thereof
is
,
for
that
writs
are
most
commonly
framed
according
to
that
which
doth
most
usually
fall
out
,
alwayes
(
in
this
case
)
supposing
,
that
a
tender
is
made
,
because
for
the
most
part
it
so
happens
to
be
;
And
therefore
whereas
the
Rule
is
,
Ad
ea
quae
frequentius
accidunt
,
Iura
adaptantur
,
it
may
in
like
manner
be
said
,
Ad
ea
quae
frequentius
accidunt
,
rescripta
sive
brevia
adaptantur
;
And
in
other
cases
a
special
case
shall
have
an
usual
writ
,
and
a
special
Count.
Geo.
Cursons
case
.
and
the
Grandfather
in
the
life
of
the
Father
convey
his
lands
to
any
of
the
Sons
,
this
is
out
of
the
Statute
of
32
H.
8.
1.
of
Wills
;
for
the
words
of
the
Statute
are
,
for
the
advancement
of
his
wife
,
preferment
of
his
children
,
&c.
and
therefore
because
the
Fathers
children
are
none
of
the
Grandfathers
children
,
such
a
conveyance
is
out
of
that
Statute
;
But
the
makers
of
that
Act
framed
it
according
to
that
which
was
most
vulgar
and
usual
,
and
that
was
for
the
father
to
dispose
to
his
children
,
and
Ad
ea
quae
frequentius
accidunt
,
&c.
Darrein
presentment
,
and
the
form
of
the
writ
shall
be
,
Quis
Advocatus
tempore
pacis
praesentavit
ultimam
personam
,
quae
mortua
est
ad
ecclesiam
,
&c.
Albeit
he
resigned
,
and
is
in
full
life
:
Also
the
form
of
the
writ
is
to
suppose
that
the
defendant
did
deforce
him
out
of
the
Advowson
,
and
yet
by
his
Count
he
shall
declare
,
that
he
or
his
ancestor
presented
last
to
the
Advowson
,
by
which
he
supposeth
,
that
he
is
in
possession
of
the
Advowson
,
and
yet
this
good
;
for
ad
ea
quae
frequentius
accidunt
,
&c.
Quod
permittat
ipsum
praesentare
,
&c.
And
in
his
Count
he
shall
declare
the
special
matter
,
and
the
writ
,
notwithstanding
such
variance
from
the
Count
,
shall
be
good
:
so
if
a
man
have
a
Chantery
,
Quod
permittat
ipsum
praesentare
,
&c.
So
likewise
if
the
King
be
disturbed
to
make
Collation
by
his
Letters
Patents
to
his
Free
Chapel
,
he
shall
have
a
Quare
Impedit
,
and
the
writ
shall
be
,
Quod
permittat
ipsum
praesentare
,
&c.
ad
praebendam
in
sua
libera
Capella
,
&c.
Quare
Imp
dit
with●ut
●lleging
a
p
esentment
.
10
Regularly
,
a
man
shall
not
have
a
Quare
Impedit
,
11
If
an
Advowson
become
void
by
six
moneths
,
Quod
permittat
eum
praesentare
,
&c.
And
yet
the
King
may
give
the
Subdeaconry
by
his
Letters
Patents
.
Ne
Admittas
alters
not
for
that
,
but
remains
the
same
,
as
in
other
cases
,
viz.
Prohibemus
vos
ne
admittatis
,
&c.
Howbeit
the
form
of
the
writ
in
such
case
might
more
properly
be
,
Prohibemus
vos
,
ne
conferatis
Clericum
ecclesiae
,
&c.
quae
vacat
,
&c.
because
the
Bishop
is
properly
said
to
Collate
,
when
he
presents
in
his
own
right
.
Quas
tenet
ad
terminum
annorum
;
because
the
writ
was
ordained
for
leases
,
which
were
most
vulgar
and
usual
,
viz.
for
leases
for
years
:
Howbeit
,
he
shall
in
his
Count
shew
the
special
matter
:
quod
tenet
ad
terminum
vitae
:
It
is
so
likewise
of
a
Lease
made
to
endure
from
such
a
feast
to
such
a
feast
:
and
in
such
case
the
writ
shall
suppose
,
quod
tenet
ad
terminum
annorum
,
&c.
but
the
Count
shall
declare
the
special
matter
,
as
aforesaid
.
Rex
,
&c.
praecipe
A.
quod
juste
,
&c.
warrantizat
B.
unum
Messuagium
cum
pertinentiis
in
D.
quod
tenet
et
de
eo
tenere
clamat
,
&c.
yet
it
is
not
material
whether
he
hold
of
him
or
no
:
So
likewise
if
the
plaintif
hold
by
homage
ancestrel
of
the
defendant
any
land
,
and
is
impleaded
,
and
hath
no
charter
thereof
,
yet
he
shall
have
this
writ
de
warrantia
chartae
against
the
defendant
,
and
the
writ
shall
say
,
unde
cartam
habet
,
&c.
and
yet
he
hath
not
any
Charter
to
shew
,
but
only
holds
by
homage
ancestrel
,
which
implies
a
warranty
;
nevertheless
because
for
the
most
part
a
warranty
is
contained
in
a
Charter
,
the
writ
retains
the
same
form
,
and
in
such
cases
the
words
,
unde
chartam
habet
,
&c.
are
not
material
.
pro
quo
suspensus
fuit
,
&c.
and
it
is
not
material
whether
he
be
hanged
or
no
;
but
the
writ
retains
that
form
,
because
for
the
most
part
after
such
judgement
the
felon
is
hanged
.
192
Frequentia
Actus
multum
operatur
.
B.
&c.
of
so
many
acres
as
amount
to
the
whole
land
,
continues
possession
,
and
payes
the
rents
to
the
Lord
;
five
years
pass
,
yet
is
not
the
Lord
barred
by
his
non-claim
;
because
in
as
much
as
the
lessée
had
lands
in
fée
simple
in
the
same
Town
,
the
fine
shall
be
presumed
to
be
levied
of
such
lands
there
,
whereof
it
is
lawfull
to
levy
a
fine
;
and
then
as
for
the
quantity
,
albeit
the
fine
contain
more
acres
,
than
his
own
fee
simple
lands
,
that
can
prove
nothing
to
pass
the
Lease
or
Copy
land
;
because
it
is
the
common
use
and
practice
almost
in
all
fines
to
insert
more
acres
therein
,
than
the
lands
intended
to
be
passed
by
such
fines
do
contain
.
Black
Prince
the
Dukedom
of
Cornwall
,
Black
Prince
himself
did
confirm
the
same
to
be
fee
simple
,
and
not
any
inferiour
estate
:
for
E.
3.
in
the
14.
year
of
his
reign
,
when
he
was
to
make
war
against
Philip
de
Valois
King
of
France
,
(
which
was
but
3.
years
after
the
said
Charter
)
grants
to
the
Prince
,
by
the
name
of
Edward
Duke
of
Cornwall
,
to
be
Lieutenant
of
the
Realm
so
long
as
the
King
should
be
beyond
sea
:
Then
in
21
E.
3.
the
Prince
for
a
fine
of
1000
marks
demiseth
the
Stanneries
to
Redman
,
rendring
3000
marks
rent
per
annum
.
And
divers
other
Letters
Patents
were
cited
in
the
Princes
case
in
the
8.
Rep.
to
the
like
purpose
,
all
which
did
confirm
the
said
estate
of
the
Prince
to
be
fee
simple
:
For
frequentia
actus
multum
adjuvat
.
Vide
supra
71
,
4.
Also
another
reason
to
prove
the
title
of
the
Prince
to
the
Dutchy
of
Cornwall
was
,
that
ever
since
the
creation
thereof
(
which
was
in
the
11
of
Ed.
3.
)
in
the
succession
of
divers
ages
it
had
béen
enjoyed
according
to
the
said
Charter
by
the
eldest
son
of
the
Kings
of
England
,
&c.
for
which
sée
the
book
at
large
.
193
It
alwayes
construeth
things
to
the
Best
;
And
therefore
B.
R.
Cestuy
que
use
and
his
feoffees
after
the
statute
of
1
R.
3.
1.
and
before
the
Stat.
of
27
H.
8.
10.
had
joyned
in
a
feoffment
,
it
had
been
the
feoffment
of
the
feoffees
,
because
the
estate
of
the
land
was
in
them
:
So
it
is
likewise
,
if
the
tenant
for
life
,
and
he
in
the
remainder
or
reversion
in
fee
joyn
in
a
feoffment
by
deed
,
the
livery
of
the
freehold
shall
move
from
the
lessee
,
&
the
inheritance
from
him
in
the
reversion
or
remainder
,
from
each
of
them
according
to
his
estate
;
for
it
cannot
be
adjudged
by
Law
,
that
the
feofment
of
tenant
for
life
doth
draw
the
reversion
or
remainder
out
of
the
lessor
or
him
in
remainder
,
or
doth
work
a
wrong
,
because
they
joyned
together
:
So
if
there
be
tenant
for
life
,
the
remainder
in
tail
,
the
remainder
in
tail
,
&c.
and
tenant
for
life
and
he
in
the
first
remainder
in
tail
levy
a
fine
,
this
is
no
discontinuance
or
devesting
of
any
estate
in
remainder
,
but
each
of
them
pass
that
which
they
have
power
and
Authority
to
pass
.
(
ut
res
magis
valeat
,
&c.
)
shall
be
construed
most
strongly
against
himself
.
9
Words
are
alwaies
taken
best
for
the
Speaker
;
Adrian
Coote
.
so
as
there
is
one
Rule
for
deeds
or
pleading
,
and
another
for
words
.
194
Every
Act
to
be
lawfull
,
when
it
standeth
indifferent
,
whether
it
should
be
lawfull
,
or
not
.
Vide
Stat.
5
Eliz.
cap.
4.
en
poigne
,
albeit
it
doth
not
properly
appertain
to
him
,
but
to
the
feoffée
,
yet
he
may
make
use
of
the
deed
,
and
thereby
plead
the
condition
in
justification
of
his
entry
and
title
;
for
it
will
be
rather
intended
,
that
he
came
to
the
déed
by
lawfull
,
en
poigne
,
he
may
plead
it
in
discharge
of
the
trespass
,
causa
qua
supra
.
Filiatio
non
potest
probari
.
Glocester
cap.
3.
The
words
in
the
end
of
that
Act
(
whereof
no
fine
is
levied
in
the
Kings
Court
)
are
to
be
understood
,
whereof
no
fine
is
lawfully
or
rightfully
levied
in
the
Kings
Court
:
And
therefore
a
fine
levied
by
the
husband
alone
of
the
wives
land
,
is
not
within
the
meaning
of
that
Statute
;
for
that
fine
would
work
a
wrong
to
the
wife
;
but
a
fine
levied
by
the
husband
and
wife
is
intended
by
the
Statute
,
for
such
a
fine
is
lawfull
and
worketh
no
wrong
:
So
the
Statute
of
Westm.
2.
cap.
5.
saith
(
Ita
quod
Episcopus
Ecclesiam
conferat
)
is
construed
,
Ita
quod
Episcopus
Ecclesiam
legitime
conferat
,
and
the
like
in
a
number
of
other
cases
in
our
books
:
And
the
general
rule
is
,
Non
praestat
impedimentum
,
quod
de
lure
non
sortitur
effectum
.
Ass.
pl.
20.
because
these
are
lawfull
acts
:
so
it
is
said
,
if
the
disseisor
attorn
or
give
seisin
to
the
grantée
of
a
seigniory
,
this
shall
bind
the
disseisee
for
the
same
reason
:
albeit
the
grantee
of
a
seigniory
cannot
compell
the
disseisor
to
attorn
to
him
,
or
to
give
him
seisin
,
if
he
had
not
seisin
before
within
the
time
of
limitation
.
Vide
8
H.
6.
17.
8
Ass.
pl.
16.
8
E.
3.
52.
11
H.
4.
29.
39
H.
6.
2.
It
is
likewise
said
,
that
if
the
lessor
disseise
his
two
lessees
for
life
,
and
enfeoff
another
,
and
one
of
the
lessees
re-enter
,
this
act
of
the
one
is
an
attornment
in
Law
for
both
;
much
more
shall
an
express
attornment
bind
both
,
because
these
are
(
by
construction
of
Law
)
lawfull
acts
,
&c.
Vide
23.
King
tenant
pur
auter
vie
.
20
If
the
King
being
tenant
pur
auter
vie
,
pur
auter
vie
)
cannot
absolutely
contract
for
a
lease
of
40.
years
,
yet
without
any
recital
or
mention
of
the
estate
for
life
,
the
lease
is
good
;
because
the
lease
for
years
is
(
in
judgement
of
Law
)
less
than
the
estate
pur
auter
vie
,
and
the
King
doth
not
thereby
any
wrong
or
prejudice
to
any
,
neither
yet
is
he
deceived
in
his
grant
;
for
(
by
construction
of
Law
)
it
is
a
lease
for
40
years
,
if
Cestuy
que
vie
so
long
live
.
b.
Astlies
case
.
25
Edw.
3.
26
,
&
27.
Meriel
Littleton
,
Trin.
10
●ac
.
in
B.
R.
Quod
vide
ubi
supra
.
Saint
Saviours
in
Southwark
,
Co.
l.
10.
67.
b.
3.
and
in
Sir
John
Molins
case
,
Co.
l
6.
5.
See
also
Priddle
and
Nappers
case
,
Co.
l.
11.
11.
a
4
The
E.
of
Rutlands
case
supra
22.
The
L.
Staffords
case
,
Co.
l.
8.
77.
The
Lord
Chandos
case
,
Co.
l.
6.
55.
The
E.
of
Cumberlands
case
,
Co.
l.
8.
166.
&
.
12
E.
4.
44.
29
Cestuy
que
use
for
term
of
life
the
remainder
over
in
tail
,
for
life
.
after
the
Statute
of
1
R.
3.
1.
makes
a
lease
for
the
term
of
the
life
of
the
lessee
,
Ejectione
firmae
the
plaintif
declares
of
a
lease
made
unto
him
the
8.
day
of
May
,
Tamen
Quaere
,
for
the
practice
is
otherwise
at
this
day
,
making
the
term
to
commence
at
some
feast
or
day
before
the
day
of
delivery
,
to
prevent
the
said
exception
.
Devenerunt
C.
was
found
brother
and
heir
to
B.
and
within
age
,
C.
at
full
age
pursues
livery
by
writ
to
the
Escheator
per
nom●n
B.
filius
&
haeres
A.
And
now
the
question
was
whether
or
no
the
possession
still
continued
in
Qu.
Eliz.
?
And
it
was
adjudged
,
that
it
did
not
,
but
that
it
was
a
good
livery
;
for
if
he
had
not
been
named
heir
to
any
,
it
had
béen
good
,
because
constat
de
persona
.
195
Non
praestat
impedimentum
,
quod
de
Jure
non
sortitur
effectum
.
Vide
195
,
13.
Ass.
pl.
9.
Anthony
Mildmayes
case
.
that
is
no
breach
of
the
Condition
,
because
it
is
a
Conveyance
allowed
by
Law
in
respect
of
the
intended
recompence
;
but
if
he
make
a
feoffment
in
fee
or
any
other
estate
,
whereby
the
reversion
is
tortiously
discontinued
,
the
donor
may
enter
for
the
Condition
broken
;
for
every
act
,
which
is
prohibited
by
Law
,
or
is
a
tort
,
may
be
prohibited
by
condition
,
vide
10
H.
7.
11.
So
if
a
feoffment
be
made
to
Baron
and
feme
,
upon
condition
that
they
shall
not
alien
,
yet
that
doth
not
restrain
their
joint
alienation
by
fine
,
because
it
is
lawfull
and
incident
to
their
estate
:
But
their
feoffment
,
or
alienation
by
deed
is
restrained
by
such
a
condition
,
for
that
is
tortious
,
and
against
Law
:
Also
if
a
man
enfeoff
an
Infant
in
fee
,
upon
condition
that
he
shall
not
alien
,
this
cannot
restrain
him
to
alien
at
his
full
age
;
but
during
his
minority
it
doth
,
because
that
is
tortious
,
and
prohibited
by
Law
.
196
Praetextu
liciti
non
debet
admitti
illicitum
.
Damage
feasant
,
5
Hob.
12.
Holder
against
Tayler
,
and
220.
Wrenhams
case
,
who
was
censured
in
the
Star
chamber
1000
l.
for
publishing
a
scandalous
book
against
a
decrée
of
the
Lo.
Ch.
Bacons
.
197
The
Law
favoureth
things
for
the
Common-wealth
.
pro
commodo
Regis
&
populi
,
for
only
men
of
skill
,
knowledge
,
and
ability
to
exercise
the
same
are
capable
thereof
to
serve
the
King
and
his
people
:
So
an
Infant
or
Minor
is
not
capable
of
an
office
of
Stewardship
of
the
Court
of
a
Manor
either
in
possession
or
reversion
:
Neither
yet
is
a
man
,
though
never
so
skilfull
and
expert
,
capable
of
a
judicial
office
in
reversion
,
but
must
expect
until
it
fall
in
possession
:
Likewise
bargaining
,
or
giving
of
money
,
or
any
manner
of
reward
,
&c.
for
offices
,
shall
make
such
a
purchasor
incapable
thereof
;
because
it
is
to
be
presumed
he
will
by
bribery
,
extortion
,
and
other
undue
means
make
his
stake
good
again
,
to
the
prejudice
of
the
Commonwealth
;
which
learning
is
worthy
to
be
known
,
but
more
worthy
to
be
put
in
due
execution
.
De
tertia
parte
Castri
de
Hilderker
in
Comitatu
Northumb.
And
the
Statute
of
Magna
Charta
,
cap.
7.
whereby
it
is
provided
,
Nisi
domus
illa
sit
Castrum
,
is
to
be
understood
of
a
Castle
for
the
necessary
and
publique
defence
of
the
Realm
:
And
this
agreeth
also
with
antient
Records
,
the
effect
whereof
is
,
Non
debent
mulieribus
assignari
in
dotem
Castra
,
quae
fuerunt
virorum
suorum
,
et
quae
in
Guerra
existunt
,
vel
etiam
homagia
&
servitia
aliquorum
in
Guerra
existentia
:
And
so
are
the
old
books
to
be
intended
,
as
it
was
resolved
Trin.
17
Eliz.
in
the
Court
of
Common
Pleas.
Vide
infra
35.
de
la
plus
beale
out
of
the
Socage
land
,
and
not
out
of
the
Knight
service
land
;
for
the
Common
Law
giveth
this
privilege
to
the
land
holden
by
Knight
service
,
that
it
shall
not
be
dismembred
,
but
in
such
case
the
whole
dower
shall
be
taken
out
of
the
Land
holden
in
Socage
;
And
the
reason
is
,
for
that
Knight
service
land
is
for
the
defence
of
the
Realm
,
which
is
pro
bono
publico
,
and
therefore
to
be
favoured
.
damage
fesant
,
for
it
is
in
the
custody
of
the
Law
,
and
the
like
.
pur
terme
dauter
vie
sow
the
land
,
and
Cestuy
que
use
dieth
,
the
lessee
shall
have
the
corn
.
If
tenant
by
Statute
merchant
soweth
the
ground
,
and
then
a
sudden
and
casual
profit
falleth
,
by
which
he
is
satisfied
,
he
shall
have
the
embleaments
.
If
a
man
seised
in
fee
hath
issue
a
daughter
and
dieth
,
his
wife
being
enseint
with
a
Son
,
and
the
daughter
soweth
the
land
,
and
then
the
son
is
born
,
yet
the
daughter
shall
have
the
Corn
,
because
her
estate
was
lawful
,
and
defeated
by
the
act
of
God
,
and
it
is
good
for
the
Commonweaith
that
the
ground
be
sown
:
But
if
husband
and
wife
he
jointenants
of
the
land
,
and
the
husband
soweth
the
ground
,
and
the
land
surviveth
to
the
wife
,
Cestuy
que
use
before
the
Statute
of
27
H.
8.
had
died
,
his
heir
within
age
,
the
Lord
should
have
had
the
wardship
of
his
heir
by
force
of
the
Statute
of
4
H.
7.
and
if
the
feoffée
had
died
,
his
heir
within
age
,
the
Lord
should
have
had
the
wardship
of
his
heir
also
,
viz.
by
the
course
of
the
Common
Law
:
And
at
the
Common
Law
before
the
making
of
those
Statutes
there
might
be
two
wardships
in
respect
of
the
same
land
,
as
if
tenant
by
Knight
service
had
made
a
gift
in
tail
,
the
remainder
in
fee
,
and
tenant
in
tail
had
made
a
feoffment
in
fee
,
and
died
,
his
heir
within
age
,
the
Lord
should
have
had
the
wardship
of
him
,
and
if
the
feoffee
had
died
,
his
heir
within
age
,
en
fait
he
is
tenant
to
him
,
&c.
And
the
Common
Law
did
not
remedy
this
inconvenience
,
because
that
tenure
was
deemed
serviceable
for
the
Commonwealth
.
O
Fortunatos
nimium
,
sua
si
bona
norunt
,
Agricolas
,
quibus
ipsa
,
procul
discordibus
armis
,
Fundit
humo
facilem
victum
justissima
Tellus
.
Virg.
in
Georg.
feme
covert
is
,
and
is
of
ability
and
capacity
(
without
the
King
)
to
grant
and
to
take
,
to
sue
and
be
sued
,
as
a
feme
sole
at
the
Common
Law
;
for
the
wisdom
of
the
Law
would
not
have
the
King
(
whose
continual
care
and
study
is
for
the
publique
,
&
circa
ardua
regni
)
to
be
troubled
and
disquieted
with
such
private
and
petty
causes
.
See
Bruertons
case
,
Co.
l.
6.
1.
b.
4.
&
Jo.
Talbots
,
l.
8.
105.
b.
4.
R
ch.
Buckleys
case
.
for
fear
of
infinite
vexation
.
So
if
a
man
had
exhibited
a
Bill
in
the
Star-chamber
against
another
,
containing
divers
scandalous
accusations
,
albeit
they
were
false
,
yet
no
action
upon
the
case
would
lie
for
them
,
if
they
were
examinable
in
that
Court
;
because
the
procéeding
was
in
a
Course
of
Iustice
,
whereunto
the
Law
giveth
favour
,
because
it
tends
to
the
good
of
the
Commonwealth
.
See
Dyer
11
Eliz.
285.
pl.
37.
ad
manutenendum
servitium
Socae
had
Common
in
the
wasts
of
the
Lord
for
his
necessary
Cattel
,
that
gained
and
compossed
the
land
;
not
only
because
that
liberty
was
tacite
implyed
in
the
feoffment
,
(
for
he
could
not
plow
and
compass
the
land
without
cattel
,
and
they
could
not
live
without
pasture
to
sustain
them
)
but
such
Common
appendant
was
principally
given
him
for
the
maintenance
&
advancement
of
tillage
,
which
is
much
regarded
and
favoured
in
Law
,
because
it
is
one
of
the
chiefest
supports
of
the
Commonwealth
;
so
as
such
Common
appendant
is
of
Common
right
,
and
began
by
operation
of
Law
,
and
in
favour
of
tillage
,
and
therefore
needs
not
prescription
(
as
it
was
held
in
4
H.
6.
&
22
H.
6.
)
which
it
ought
to
have
,
if
it
were
against
common
right
:
Howbeit
it
is
only
appendant
to
the
antient
arable
Hyde
and
Gaine
,
and
only
for
horses
and
oxen
to
plow
the
land
,
and
for
Cows
and
Sheep
to
manure
it
;
And
all
this
for
the
melioration
and
advancement
of
tillage
,
as
aforesaid
:
And
with
this
agrees
37
H.
6.
34.
per
tot
.
Cur.
and
29
H.
8.
4.
Nam
ideo
dicta
est
felonia
,
quia
fieri
debet
felleo
animo
;
And
therefore
a
Mad
man
cannot
commit
felony
,
because
he
cannot
have
a
felonious
intent
:
so
likewise
if
a
feme
Non
compos
mentis
kill
her
husband
,
it
cannot
be
Petty
treason
:
Howbeit
in
some
cases
Non
compos
mentis
may
commit
high
treason
,
as
if
he
kill
or
offer
to
kill
the
King
,
that
is
high
Treason
;
For
the
King
est
Caput
et
salus
Reipublicae
,
&
a
capite
bona
valetudo
transit
in
omnes
,
and
for
that
cause
their
persons
are
so
sacred
,
that
no
man
ought
to
offer
them
violence
,
and
if
he
do
,
he
is
Reus
criminis
Laesae
Majestatis
.
Nullus
liber
homo
imprisonetur
,
&c.
Howbeit
if
the
Constitution
had
béen
upon
a
pein
of
a
reasonable
sum
of
money
,
and
distress
or
action
of
debt
for
the
recovery
thereof
,
the
Mayor
might
have
justified
the
distress
or
action
;
because
it
was
pro
bono
publico
,
that
the
Town
should
make
provision
for
the
Term
,
and
the
rather
,
for
that
E.
6.
who
did
incorporate
them
had
granted
them
power
to
make
Ordinances
:
Albeit
Corporations
within
time
,
&c.
cannot
have
that
privilege
,
but
by
Parliament
,
when
it
is
pro
commodo
privato
.
See
Co.
l.
8.
127.
b.
in
infinitum
.
Ejectione
firmae
,
Henry
Petoes
case
.
for
that
is
mixt
with
trespass
;
and
(
indeed
)
in
all
actions
,
which
suppose
a
tort
to
be
done
(
where
Capias
and
Exigent
do
lie
)
there
an
Accord
is
a
good
plea
,
because
it
redeems
the
body
from
imprisonment
,
so
as
men
(
being
at
liberty
)
may
go
about
their
business
,
which
is
good
for
the
Commonwealth
.
De
donis
,
though
not
named
,
Omnia
Castor
emit
,
sic
fit
ut
omnia
vendat
.
Also
it
appears
by
the
writ
of
ad
quod
damnum
(
F.
N.
B.
222
)
that
every
gift
or
grant
of
the
King
hath
this
condition
,
either
expresly
or
tacitly
annexed
unto
it
,
Ita
quod
Patria
per
donationem
iliam
magis
solito
non
oneretur
seu
gravetur
:
And
therefore
every
grant
made
in
grievance
or
prejudice
of
the
Subject
is
void
,
(
Vide
13
H.
4.
14.
)
The
second
Incident
to
a
Monopoly
is
,
that
after
the
Monopoly
granted
,
the
Commodity
is
not
made
so
good
and
merchantable
,
as
it
was
before
;
for
the
Patentée
having
the
sole
trade
,
regards
his
private
benefit
only
,
and
not
the
Commonwealth
.
3.
This
tends
to
the
impoverishment
of
divers
artificers
and
others
,
who
before
by
the
labour
of
their
hands
in
their
art
or
trade
did
sustain
themselves
and
their
families
in
good
condition
,
and
having
also
by
that
means
increased
their
substance
,
were
fit
and
ready
to
serve
the
King
,
when
néed
should
require
;
but
by
the
grant
of
such
a
Monopoly
they
are
reduced
to
such
necessity
,
that
ever
after
they
are
constrained
to
live
in
idleness
and
beggary
,
&c.
Circumspecte
agatis
in
13
E.
1.
is
,
Marlbridge
,
cap.
6.
which
makes
mention
only
de
hiis
qui
primogenitos
suos
infra
aetatem
existentes
feoffare
solent
,
and
yet
if
his
first
son
die
,
and
he
enfeoff
his
second
son
,
who
is
his
heir
,
this
is
within
the
equity
of
that
Statute
,
or
if
he
levy
a
fine
to
him
,
which
is
a
matter
of
Record
,
that
is
also
within
the
equity
of
the
same
Statute
,
and
yet
the
Statute
speaks
only
of
a
feoffment
:
But
regularly
all
Statutes
,
which
are
for
the
advancement
of
Iustice
,
or
beneficial
to
the
Commonwealth
,
are
extendible
by
equity
.
Propter
jus
gladii
dividi
non
potest
(
Fleta
l.
5.
cap.
9.
)
And
another
saith
,
(
Britton
186
,
187.
)
Pur
le
droit
del
espee
,
que
ne
souffree
division
,
en
aventure
que
la
force
del
Realm
ne
defaille
pas
tant
:
But
Castles
of
habitation
for
private
use
,
that
are
not
for
the
necessary
defence
of
the
Realm
,
may
be
parted
amongst
Coparceners
as
well
as
other
houses
,
and
wives
may
be
thereof
also
endowed
,
as
before
hath
been
said
,
supra
2.
Glanvile
,
(
lib.
7.
cap.
1.
&
3.
Cum
quis
haereditatem
habens
moriatur
,
si
plures
reliquerit
filios
,
tunc
distinguitur
,
utrum
ille
fuerit
Miles
,
sive
per
feodum
militare
tenens
,
aut
liber
Sockmannus
,
quia
si
miles
fuerit
aut
per
militiam
tenens
,
tunc
secundum
jus
regni
Angliae
primogenitus
filius
patri
succedit
in
toto
,
&c.
si
vero
fuerit
liber
Sockmannus
,
tunc
quidem
dividetur
haereditas
inter
omnes
filios
,
&c.
198
Publique
Commerce
.
Vide
supra
198
,
31.
Receptor
denariorum
,
he
shall
have
allowance
of
his
expences
and
charges
,
and
also
shall
accompt
for
the
profit
he
received
,
or
might
reasonably
receive
;
And
this
was
provided
by
Law
in
favour
of
Merchants
,
and
for
advancement
of
trade
and
traffique
;
As
if
two
Ioint
Merchants
occupy
their
stock
,
goods
,
and
merchandize
in
common
to
their
common
profit
,
one
of
them
naming
himself
a
Merchant
,
shall
have
an
accompt
against
the
other
,
naming
him
also
a
Merchant
,
and
shall
charge
him
as
Receptor
denariorum
ipsius
B.
ex
quacunque
causa
&
contractu
ad
communem
utilitatem
ipsorum
A.
&
B
provenientium
,
sicut
per
legem
Mercatoriam
rationabiliter
monstrare
poterit
.
Vide
Co.
l.
11.
87.
Guildam
Mercatoriam
,
viz.
a
Fraternity
,
Society
,
or
Incorporation
of
Merchants
,
to
the
end
that
good
order
and
government
may
be
by
them
observed
,
for
the
increase
and
advancement
of
Merchandising
and
trade
,
and
not
for
the
hindrance
and
diminution
thereof
.
Otium
omnium
vitiorum
mater
,
and
principally
in
young
people
,
who
ought
in
their
youth
(
which
is
their
séed-time
)
to
learn
lawfull
sciences
and
trades
,
which
are
for
the
advancement
of
traffique
,
and
profitable
to
the
Commonwealth
,
and
thereof
they
ought
to
reap
the
fruit
in
their
old
age
,
For
Jeunesse
Oisense
,
Vieillesse
disettense
:
And
therefore
the
Law
detests
Monopolies
,
which
prohibit
the
exercise
of
lawful
trades
;
And
this
appears
in
2
H.
5.
b.
where
a
Dyer
was
bound
,
that
he
should
not
use
the
Dyers
trade
by
the
space
of
two
years
,
and
there
Hall
held
,
that
the
obligation
was
against
the
Common
Law
;
and
added
farther
,
Per
dien
si
le
plaintife
fuit
icy
,
il
iroit
al
prison
,
tanque
il
feroit
fine
al
Roy.
199
Honor
and
Order
.
Vide
Title
Dower
180.
Vide
Britton
79.
Magna
Carta
it
is
provided
,
Quod
nec
super
eum
ibimus
,
nec
super
eum
mittemus
,
nisi
per
legale
judicium
parium
suorum
,
aut
per
legem
terrae
:
Now
in
reference
to
Honor
and
Order
the
Common
Law
hath
divided
all
the
Subjects
into
Lords
of
Parliament
,
and
into
the
Commons
of
the
Realm
:
The
Peers
of
the
Realm
are
divided
into
Barons
,
Viscounts
,
Earls
,
Marquesses
,
and
Dukes
;
And
the
Commons
are
divided
into
Knights
,
Esquires
,
Gentlemen
,
Citizens
,
Yeomen
,
and
Burgesses
;
and
in
judgement
of
Law
,
any
of
the
said
degrees
of
Nobility
are
Peers
to
another
:
As
if
an
Earl
,
Marquess
,
or
Duke
be
to
be
tried
for
Treason
or
Felony
,
a
Baron
,
or
any
other
degree
of
Nobility
is
his
Peer
:
In
like
manner
a
Knight
,
Esquire
,
&c.
shall
be
tried
per
pares
,
and
that
is
by
any
of
the
Commons
,
as
Gentlemen
,
Citizens
,
Yeomen
,
or
Burgesses
,
so
as
when
any
of
the
Commons
is
to
have
a
trial
,
either
at
the
Kings
sute
,
or
between
party
and
party
,
in
such
case
a
Peer
of
the
Realm
shall
not
be
impannelled
.
Tit.
Partition
18.
in
these
words
;
Note
,
tit
.
Prescription
.
)
Howbeit
if
an
Earl
,
that
hath
his
dignity
to
him
and
his
heirs
,
dieth
,
having
issue
one
daughter
,
the
dignity
shall
descend
to
the
daughter
and
her
posterity
;
for
there
is
no
incertainty
:
And
this
appeareth
by
many
presidents
,
and
by
a
late
Iudgement
given
in
Sampson
Leonards
case
,
who
maried
with
Margaret
,
the
only
sister
and
heir
of
Gregory
Fines
Lord
Dacre
of
the
South
,
and
in
the
case
of
William
Lord
Ros.
Howbeit
,
there
is
a
difference
between
a
dignity
or
name
of
Nobility
,
and
an
office
of
Honor
:
for
if
a
man
hold
a
Manor
of
the
King
to
be
Constable
of
England
,
and
die
,
having
issue
two
daughters
,
and
the
eldest
daughter
taketh
husband
,
he
shall
execute
the
office
solely
,
and
before
Mariage
it
shall
be
exercised
by
some
sufficient
Deputy
,
and
all
this
was
resolved
by
all
the
Iudges
of
England
in
the
Duke
of
Buckinghams
case
,
11
Eliz.
Dyer
285.
But
the
Dignity
of
the
Crown
of
England
was
(
without
all
question
)
descendible
to
the
Eldest
daughter
alone
,
and
to
her
posterity
;
and
so
it
hath
béen
(
25
H.
8.
cap.
22.
)
declared
by
Act
of
Parliament
:
for
Regnum
non
est
divisibile
,
and
so
likewise
was
the
descent
of
Troy
,
as
appears
by
Virg.
Aeneid
.
1.
Praeterea
Sceptrum
Ilione
,
quod
gesserat
olim
Maxima
natarum
Priami
—
John
Molins
case
,
&
Co.
l.
9.
131.
a.
in
Bewleys
case
.
and
the
relief
of
the
Subject
,
and
not
to
make
any
strict
or
literal
construction
in
subversion
thereof
:
And
therefore
E.
3.
being
Lord
,
an
Abbot
Mesne
,
and
the
Tenant
attainted
of
Treason
,
the
King
grants
to
I.
M.
to
be
held
of
us
,
and
other
chief
Lords
of
the
fee
,
by
the
services
,
&c.
In
this
case
the
Mesnalty
was
adjudged
to
be
revived
;
for
that
the
words
were
sufficient
to
create
a
tenure
in
the
Mesne
,
as
it
was
before
the
Treason
;
because
that
seemed
to
be
the
Kings
intention
,
and
was
also
consonant
to
equity
,
viz.
that
the
Mesne
who
offended
not
,
should
not
lose
his
services
;
And
therefore
in
such
case
the
grant
shall
be
taken
beneficially
for
the
Honor
of
the
King
,
and
for
the
relief
of
the
Mesne
;
neither
yet
can
the
words
Tenendum
,
&c.
have
any
other
reasonable
construction
.
Humfry
Lofields
case
.
were
at
first
ordained
for
the
preservation
of
order
in
the
Common
wealth
,
and
being
servicces
of
fidelity
do
require
multiplication
;
And
therefore
if
a
man
seised
of
two
acres
,
the
one
,
at
the
Common
Law
,
and
the
other
in
Borough
English
,
and
make
a
gift
in
tail
of
both
,
and
the
donée
having
issue
two
sons
dies
,
both
the
sons
shall
make
fealty
;
There
is
the
same
Law
also
of
Homage
,
whether
it
be
reserved
by
the
party
or
created
by
the
Law
:
so
likewise
if
the
donor
die
having
two
sons
,
both
the
s
os
shall
have
homage
and
fealty
.
Entries
,
fol.
149.
Et
sic
de
similibus
.
200
Publique
quiet
.
Nul
grand
Seignior
ne
Chivalier
de
nostre
Realm
ne
doit
prender
chemin
sans
nostre
conge
,
car
issint
poet
le
realm
remainer
disgarny
de
fort
gente
,
because
if
many
others
should
do
the
like
,
and
by
that
means
the
Realm
be
left
unfurnished
of
able
and
powerfull
men
to
serve
the
King
,
that
might
tend
much
to
the
disturbance
of
the
publique
quiet
thereof
.
Vide
supra
198
,
35.
&
infra
16.
&
Max.
78.
27.
&
Dyer
128.
pl.
61.
Vide
Pl.
Co.
372.
Exchequer
seal
was
adjudged
good
,
albeit
by
the
Common
law
no
grant
of
any
land
by
the
King
is
available
or
pleadable
,
but
under
the
Great
Seal
,
yet
the
antient
usage
of
that
Court
makes
such
leases
to
be
good
and
available
in
in
Law
;
For
if
such
leases
should
not
be
good
,
great
mischief
would
ensue
thereupon
,
because
an
infinite
number
of
leases
and
grants
under
the
Exchequer
Seal
would
be
said
to
be
void
,
and
as
great
a
number
of
grants
of
reversions
expectant
upon
such
leases
would
be
void
also
,
for
if
the
King
grant
a
reversion
,
where
he
hath
a
possession
,
his
grant
is
void
:
And
therefore
,
lest
their
judgement
in
that
case
might
disturb
the
publique
repose
of
the
Commonwealth
,
leases
under
the
Exchequer
Seal
were
adjudged
good
and
available
in
Law
,
as
aforesaid
,
&c.
William
Harberts
case
.
But
the
Common
Law
,
which
is
the
preserver
of
the
Common
peace
of
the
land
,
abhors
all
force
as
the
Capital
enemy
thereof
;
And
therefore
against
such
as
commit
any
force
,
the
Common
Law
subjects
their
bodies
to
Imprisonment
,
(
which
is
the
highest
execution
,
and
whereby
he
loseth
his
liberty
)
untill
he
hath
agreed
with
the
party
,
and
made
fine
to
the
King
.
Ac
veluti
magno
in
populo
cum
saepe
coorta
est
Seditio
,
saevitque
animis
ignobile
vulgus
,
Jamque
faces
&
saxa
volant
,
furor
arma
ministrat
.
In
which
tumults
another
Poet
saith
,
Non
novit
medium
rustica
progenies
.
Tit.
Corone
303.
&
305.
&
26
Ass.
pl.
23.
So
likewise
it
is
held
in
21
H.
7.
39.
that
a
man
may
justifie
to
assemble
his
friends
and
neighbours
to
defend
his
house
against
violence
,
but
not
to
go
with
him
to
the
Market
or
elsewhere
to
guard
himself
from
violence
:
And
all
this
to
establish
quiet
and
tranquillity
in
the
Commonwealth
.
Rot.
Parl.
77.
)
it
was
attempted
in
Parliament
to
have
a
Statute
made
,
By
the
Opinion
of
all
the
Justices
.
201
Conventio
seu
beneficium
privatorum
non
potest
publico
juri
derogare
.
Vide
supra
198
,
29.
Ass.
Pl.
5.
or
out
of
a
Fair
,
14
E.
3.
Scire
facias
122.
The
Earl
of
Kents
case
:
Neither
can
a
rent
be
granted
or
reserved
of
any
estate
of
Franktenement
out
of
any
other
Franktenement
,
which
is
not
mainourable
,
either
in
possession
,
reversion
,
or
by
possibility
,
but
is
only
haereditamentum
incorporeum
;
for
Pacta
privata
non
derogant
juri
communi
;
And
in
an
Assise
they
cannot
be
put
in
view
,
neither
can
any
distress
be
taken
in
them
;
And
in
the
case
above
,
albeit
white
acre
be
haereditamentum
corporeum
and
mainourable
,
yet
in
respect
of
the
exility
and
incapacity
of
the
interest
which
the
grantor
hath
in
it
,
that
rent
of
Franktenement
cannot
issue
out
of
it
,
but
out
of
the
land
in
fee
simple
:
And
in
that
case
also
,
in
an
Assise
brought
for
the
rent
,
the
land
in
fee
shall
be
only
put
in
view
:
And
if
the
Grantee
should
accept
a
lease
or
grant
of
white
acre
,
that
will
not
suspend
his
rent
.
Term.
Hill
.
8.
Iac.
it
was
resolved
by
the
two
Chief
Iustices
,
Anthony
Mildmayes
case
in
the
6.
Report
.
Mary
Portingtons
case
.
by
suffering
a
Common
Recovery
;
much
less
can
he
be
prohibited
to
prevent
by
any
such
condition
or
limitation
a
going
about
,
conclusion
,
or
agréement
to
suffer
such
a
recovery
;
for
to
suffer
such
a
recovery
to
the
purposes
aforesaid
,
is
an
incident
so
inseparably
annexed
to
an
estate
tail
,
that
it
cannot
possibly
be
prohibited
by
any
such
condition
,
limitation
,
or
other
agréement
whatsover
between
the
Parties
,
Conventio
privatorum
non
potest
,
&c.
So
likewise
Dower
or
tenancy
by
the
Curtesie
cannot
be
restrained
by
condition
,
because
they
are
annexed
to
the
estate
tail
by
Law
,
no
more
than
a
tenant
by
the
Curtesie
or
tenant
in
tail
after
possibility
can
be
by
condition
made
punishable
for
waste
:
Also
things
ordained
by
Statute
,
cannot
be
restrained
by
condition
,
&c.
as
that
the
tenant
in
tail
shall
make
no
leases
,
according
to
the
Statute
of
32
H.
8.
28.
or
levy
a
fine
,
according
to
the
Statutes
of
4
H.
7.
24.
&
32
H.
8.
36.
to
barr
the
issues
;
for
none
of
these
,
which
are
incident
to
his
estate
by
Act
of
Parliament
,
can
be
restrained
by
condition
or
limitation
.
Benedict
Spinola
and
his
heirs
(
because
they
were
prohibited
by
the
Statute
of
13
Eliz.
10.
—
fuit
haec
sapientia
quondam
,
Publica
privatis
secernere
,
sacra
profanis
.
202
Minime
mutanda
sunt
,
quae
certam
habuerunt
interpretationem
.
Vide
Max.
201.
per
tout
.
Commonly
said
there
are
3.
such
kinds
of
warranty
;
whereby
it
may
be
observed
,
that
Communis
opinio
is
of
Authority
,
and
stands
with
the
Rule
of
Law
,
A
Communi
observantia
non
est
recedendum
.
Vide
Max.
204.
1.
Anth.
Mildmayes
case
.
3
It
was
the
intent
of
the
Statute
of
27
H.
8.
10.
Geo.
Carsons
case
.
covenants
to
stand
seised
to
the
use
of
his
niece
;
the
son
dies
;
In
this
case
,
the
King
shall
not
have
primer
seisin
:
And
two
of
the
chiefest
reasons
which
induced
that
resolution
was
,
because
the
experience
of
the
Court
of
Wards
had
been
alwayes
so
;
and
for
that
a
great
number
of
the
subjects
,
which
were
in
peace
,
would
be
vexed
and
molested
,
if
the
Common
received
opinion
should
be
changed
.
&
investiga
patrum
memoriam
(
Iob
8.8
.
)
Hesterni
enim
sumus
,
&
vita
nostra
sicut
umbra
supra
terram
.
We
are
but
of
yesterday
,
and
therefore
had
need
of
the
wisdom
of
those
that
were
before
us
,
and
had
been
ignorant
,
if
we
had
not
received
light
and
knowledge
from
our
fore-fathers
;
Our
dayes
also
upon
earth
are
but
as
a
shadow
,
in
respect
of
the
old
and
antient
dayes
past
,
wherein
the
Laws
have
been
by
the
wisdom
of
the
most
excellent
men
(
in
many
successions
of
ages
)
by
long
and
continual
experience
(
the
trial
of
right
and
truth
)
fined
and
refined
,
which
no
one
man
(
being
of
so
short
a
time
)
albeit
he
should
have
in
his
head
the
wisdom
of
all
the
men
in
the
world
,
in
any
one
age
,
could
ever
have
effected
or
attained
unto
:
And
therefore
it
is
optima
regula
,
qua
nulla
est
verior
et
firmior
in
Jure
,
Neminem
oportet
esse
sapientiorem
legibus
,
No
man
ought
to
take
upon
him
to
be
wiser
than
the
Laws
,
which
have
been
received
and
approved
by
men
of
the
greatest
wisdom
in
all
former
ages
.
viz.
Originals
,
Iehu
Webos
case
.
were
at
first
authorised
by
Parliament
,
and
without
Parliament
they
cannot
be
altered
or
changed
,
but
shall
still
remain
the
same
;
albeit
they
may
in
some
cases
seem
incongruous
:
as
the
original
writ
De
Assisa
ultimae
praesentationis
was
formed
in
these
words
,
Quis
Advocatus
tempore
pacis
praesentavit
ultimam
personam
,
quae
mortua
est
:
This
form
shall
hold
,
and
cannot
be
changed
,
albeit
the
Incumbent
resigned
,
as
appears
in
18
E.
2.
Tit.
Ass.
de
dar
.
pres
.
20.
&
F.
N.
B.
31.
h.
So
likewise
the
writ
of
Warrantia
Cartae
is
formed
thus
:
Quod
juste
,
&c.
warrantizet
B.
unum
Messuagium
in
D.
&c.
unde
cartam
habet
,
&c.
And
yet
if
he
be
held
to
warranty
by
force
of
an
exchange
,
or
by
Homage
ancestrel
,
the
form
of
the
writ
shall
not
be
altered
.
Vide
9
E.
4.
49.
21
H.
6
,
●
.
&
F.
N.
B.
134.
and
many
other
cases
may
be
put
upon
this
ground
.
stand
to
and
abide
,
&c.
the
rule
,
order
,
&c.
which
form
was
invented
by
prudent
antiquity
,
to
the
end
he
should
not
revoke
the
submission
;
And
it
is
good
alwayes
to
pursue
(
in
such
cases
)
the
antient
forms
and
presidents
,
which
are
full
of
knowledge
and
wisdom
.
Mary
P
rtingtons
case
.
10
At
this
day
to
question
the
validity
of
a
Common
recovery
to
barr
an
estate
tail
(
albeit
the
land
recovered
in
value
be
not
had
,
James
Dyer
,
then
Chief
Iustice
of
the
Common
pleas
,
who
said
,
that
he
was
not
worthy
to
be
of
the
profession
of
the
Law
,
that
durst
speak
against
Common
Recoveries
,
which
were
the
very
sinews
of
the
assurances
of
Inheritances
,
and
founded
upon
great
reason
and
authority
:
Semper
in
fictione
Iuris
subsistit
aequitas
,
Et
contra
principia
negantem
non
est
disputandum
.
Alexander
Powlters
case
.
11
In
Alexander
Powlters
case
in
the
11
Rep.
it
being
doubted
(
upon
the
penning
of
the
several
Statutes
of
23
H.
8.
1.
25
H.
8.
3.
1
E.
6.
12.
5
,
&
6
E.
6.
10.
&
4
,
&
5.
P.
&
M.
4.
)
whether
or
no
one
guilty
of
House-burning
should
be
allowed
his
Clergy
;
John
Puckering
and
his
Companion
,
Iustices
there
)
the
said
Powlter
had
judgement
to
be
hanged
for
setting
an
house
in
Newmarket
on
fire
,
whereby
most
of
the
Town
was
burnt
,
and
therefore
was
ordered
to
be
hanged
in
Chains
,
&c.
L●w●s
Bowles
case
.
12
B.
covenants
to
stand
seised
of
the
Manor
of
D.
to
the
use
of
himself
and
his
wife
for
life
without
impeachment
of
waste
,
without
impeachment
of
waste
,
gives
to
her
prope●●y
in
the
timber
so
thrown
down
by
the
wind
;
whereupon
it
was
resolved
,
that
she
had
a
property
in
the
timber
,
and
might
convert
it
to
her
own
use
;
for
that
(
as
was
said
)
it
was
the
continual
and
constant
opinion
of
former
times
,
that
these
words
,
without
impeachment
of
waste
,
do
give
power
to
the
lessée
to
make
waste
to
his
own
use
,
and
it
would
be
dangerous
now
to
recede
therefrom
;
And
as
it
was
said
by
the
Iudges
in
38
E.
3.
1.
So
the
present
Iudges
did
say
in
this
case
.
We
will
not
change
the
Law
,
which
hath
alwayes
been
used
;
Also
it
is
well
said
in
2
H.
4.
10.
It
is
better
that
there
should
be
a
default
or
defect
,
than
that
the
Law
should
be
changed
.
13
Albeit
the
King
hath
a
prerogative
above
others
,
Foxley
,
in
rerum
natura
,
and
demand
judgement
of
the
Plaint
,
and
that
it
should
be
inquired
by
the
Assise
,
&c.
and
the
others
plead
the
same
plea
by
Attorney
:
And
it
was
adjudged
,
that
the
Plaint
should
not
abate
,
but
should
stand
good
against
all
the
rest
,
save
only
Agnes
:
And
this
resolution
was
given
upon
the
advice
of
Iustice
Hales
to
Southcote
(
then
Iudge
of
the
Hustings
,
where
the
sute
was
brought
)
because
(
as
Hales
said
)
all
the
books
went
that
way
,
and
not
one
the
other
way
:
And
therefore
he
advised
Southcote
to
follow
the
judgements
formerly
given
.
Will
.
Pelhams
case
,
that
if
a
Common
Recovery
be
suffered
by
tenant
for
life
,
it
is
a
forfeiture
of
his
estate
,
and
the
reason
of
both
these
Iudgements
was
,
because
that
a
Common
Rec●very
is
by
usage
a
Common
conveyance
,
as
a
fine
,
feoffment
,
&c.
And
it
is
said
in
Trevilians
case
514.
that
in
Common
Recoveries
the
common
usage
and
the
intent
of
the
parties
are
to
be
respected
;
for
a
Common
Recovery
had
against
Baron
and
Feme
shall
barr
the
feme
of
her
dower
,
and
yet
the
feme
shall
not
have
any
recompence
in
value
and
therefore
in
strictness
of
reason
it
is
strongly
to
be
maintained
,
that
Common
usage
and
the
intent
of
the
parties
make
this
barr
,
according
to
these
rules
,
Non
recedendum
est
a
Communi
observantia
,
&
Minime
mutanda
sunt
,
quae
certam
habuerunt
interpret●●onem
.
And
these
Rules
hold
not
only
in
a
Common
Recovery
,
but
much
strongger
in
a
fine
,
which
is
also
a
Common
assurance
of
land
;
for
in
case
of
a
Recovery
the
Vouchée
may
enter
into
the
warranty
,
saving
his
action
,
rent
,
condition
,
&c.
and
yet
(
because
Common
usage
hath
allowed
it
her●tofore
)
they
may
be
better
saved
by
covenant
and
agréement
,
as
aforesaid
;
Howbeit
,
in
a
fine
no
saving
can
be
contained
therein
,
and
therefore
by
necessity
(
and
according
to
common
usage
alwayes
allowed
)
they
ought
to
be
saved
by
the
direction
and
Rule
of
a
precedent
covenant
and
grant
:
Vpon
which
ground
it
was
adjudged
in
6
E.
2
tit
.
Estoppel
2.
that
if
a
man
and
his
wife
enfeoff
two
by
déed
,
to
have
and
to
hold
to
them
and
their
heirs
,
and
after
the
feoffor
and
his
wife
levy
a
fine
sur
conusance
de
droit
to
them
and
the
heirs
of
one
of
them
,
yet
this
is
no
conclusion
,
but
that
both
of
them
may
have
the
fée-simple
,
as
they
had
it
before
.
203
A
Communi
Observantia
non
est
recedendum
.
prima
facie
they
séem
to
be
within
the
letter
of
that
Act
)
were
never
made
void
by
that
Statute
:
and
it
is
a
thing
dishonorable
to
the
Law
of
the
Land
to
make
good
uses
void
:
And
it
appears
by
a
case
reported
by
Serjeant
Benlowes
,
that
it
was
held
in
the
Common
pleas
in
5
&
6.
E.
6.
that
a
feoffment
to
the
use
of
poor
people
was
not
within
that
Act
of
23
H.
8.
10.
Alton
Woods
case
in
the
1.
Rep.
Exception
was
taken
to
an
office
virtute
officii
returned
into
the
Chancery
,
for
it
was
said
,
Alton
Woods
case
.
that
it
ought
to
have
been
returned
into
the
Exchequer
,
but
upon
the
view
of
infinite
presidents
of
offices
found
before
the
Escheator
virtute
officii
,
and
returned
into
the
Chancery
,
it
was
disallowed
per
totam
Curiam
.
&c.
&
27
H.
8.
such
a
proviso
annexed
to
the
estate
tail
,
viz.
that
it
shall
cease
,
as
if
the
tenant
in
tail
were
dead
,
was
never
seen
or
heard
of
,
and
therefore
he
concluded
,
that
it
could
not
be
done
by
Law
:
And
so
likewise
concludes
Littl.
fol.
23.
in
like
manner
,
that
if
any
action
might
have
been
brought
upon
the
Statute
of
Merton
,
Common
Councel
,
or
by
such
like
name
,
and
not
in
general
by
all
the
Commonalty
or
Burgesses
,
nor
by
so
many
of
them
as
will
come
to
the
election
,
such
antient
and
usual
elections
are
good
and
well
warranted
by
their
Charters
,
and
by
the
Law
also
;
for
in
every
of
their
Charters
they
have
power
given
them
to
make
Laws
,
Ordinances
,
and
Constitutions
,
for
the
better
government
of
their
Cities
,
Boroughs
,
&c.
by
force
whereof
,
and
to
avoid
popular
confusion
,
if
they
(
by
their
common
assent
)
do
constitute
and
ordain
,
that
the
Maior
,
Bailifs
,
or
other
principal
officers
shall
be
chosen
by
a
certain
select
number
of
the
principal
of
the
Commonalty
or
Burgesses
,
as
aforesaid
,
and
prescribe
also
how
such
select
number
shall
be
chosen
,
such
Ordinance
and
Constitution
was
resolved
(
in
40
&
41
Eliz.
)
to
be
good
and
allowable
,
and
to
agree
with
the
Law
and
their
Charters
,
for
avoiding
of
Popular
discord
and
confusion
:
And
albeit
such
an
Ordinance
or
constitution
cannot
be
now
produced
,
yet
it
shall
be
presumed
in
respect
of
such
a
special
manner
of
antient
and
continual
election
(
which
cannot
begin
without
common
consent
)
that
at
first
such
an
Ordinance
or
Constitution
was
made
;
Such
reverend
respect
the
Law
attributes
to
antient
and
continual
allowance
and
usage
,
although
it
begin
within
time
of
memory
:
Mos
retinenda
est
fidelissimae
vetustatis
;
Quae
praeter
consuetudinem
et
morem
Maiorum
fiunt
,
neque
placent
,
neque
recta
videntur
:
Et
frequentia
actus
multum
operatur
.
And
according
to
this
Resolution
the
antient
and
continual
usages
have
been
in
London
,
Norwich
,
and
other
antient
Cities
and
Corporations
,
and
God
defend
,
that
they
should
be
innovated
or
altered
;
for
many
and
great
inconveniences
may
arise
thereupon
,
all
which
the
Law
hath
well
prevented
,
as
appears
by
this
Resolution
.
George
Kempe
(
secondary
of
the
Protonotaries
of
the
Kings
Bench
)
produced
an
infinite
number
of
presidents
,
as
well
in
the
Common
Pleas
as
in
the
Kings
Bench
,
in
the
reigns
of
Hen.
6.
E.
4.
H.
7.
&
H.
8.
by
which
it
appeared
,
that
the
plaintiffs
did
Count
,
that
the
Defendants
in
Consideration
of
a
sale
to
them
of
certain
goods
,
did
promise
to
pay
so
much
money
,
&c.
to
which
presidents
and
judgements
,
being
of
so
great
number
,
and
in
so
many
successions
of
ages
,
and
in
the
several
times
of
so
many
reverend
Iudges
,
the
Iustices
in
this
case
gave
great
regard
,
and
so
the
Iustices
in
antient
time
and
from
time
to
time
have
done
,
as
well
in
matters
of
form
,
as
in
deciding
of
doubts
and
questions
,
as
well
at
the
Common
Law
,
as
in
the
Construction
of
Acts
of
Parliament
:
And
therefore
in
11
E.
3.
Formedon
32.
it
is
held
,
that
the
antient
forms
and
manner
of
presidents
are
to
be
maintained
and
observed
,
and
in
34
Ass.
pl.
7.
that
which
is
not
according
to
the
usage
,
shall
not
be
permitted
,
and
in
2
E.
3.
29.
The
antient
form
and
order
is
to
be
observed
.
Vide
plus
ubi
supra
.
error
de
redditione
executionis
,
the
execution
was
reversed
;
because
this
course
of
procéeding
in
such
case
had
béen
taken
up
of
later
times
,
whereas
the
antient
course
was
upon
the
return
of
Nulla
bona
,
to
sue
a
scire
fac
.
to
the
Sheriff
to
levy
,
&c.
out
of
the
Testators
goods
,
and
if
it
should
appear
to
him
,
that
the
executors
have
wasted
,
then
out
of
their
own
goods
:
for
albeit
it
was
said
,
that
the
said
newer
course
was
usual
in
the
Common
Bench
,
and
more
favourable
than
the
antient
course
was
,
because
thereby
the
Devastavit
shall
not
be
returned
by
the
Sheriff
only
,
but
shall
be
inquired
likewise
by
an
Inquest
returned
,
and
thereupon
a
Scire
facias
ought
to
be
awarded
;
yet
judgement
was
given
,
that
the
said
proceeding
was
erronious
,
because
invented
of
later
times
;
And
the
rather
,
for
that
by
the
antient
course
,
if
the
Sheriff
make
a
false
return
,
the
party
may
have
his
remedy
by
action
upon
the
case
,
which
is
a
good
mean
to
inforce
the
Sheriff
to
make
true
and
just
returns
in
such
cases
;
but
by
the
said
new
course
,
if
the
Sheriff
take
an
inquest
and
return
it
,
although
it
be
false
,
yet
the
party
hath
no
remedy
either
against
the
Sheriff
,
or
any
other
,
which
would
be
inconvenient
:
by
which
resolution
it
may
be
observed
(
by
the
way
)
how
dangerous
a
thing
it
is
to
alter
or
change
the
antient
forms
and
courses
of
Law
,
for
albeit
a
new
way
may
(
prima
facie
)
seem
specious
and
convenient
,
yet
afterwards
it
will
prove
incommodious
by
introducing
sundry
mischiefs
,
which
cannot
be
discovered
otherwise
than
by
future
experience
,
as
in
the
case
above
recited
:
which
point
(
it
were
to
be
wished
)
our
late
Regulators
would
well
study
and
consider
,
before
they
presume
to
innovate
any
thing
in
the
Law
.
A●●●
Bedingfields
case
.
9
In
a
writ
of
Dower
an
essoin
was
cast
,
and
challenged
,
Ass.
pl.
2.
Long
5
E.
4.
70.
(
quas
vide
ubi
supra
)
and
agreeth
with
common
experience
,
that
Damages
should
be
recovered
in
that
writ
,
it
was
so
resolved
accordingly
.
in
Comitatu
,
have
the
same
construction
,
de
and
in
(
in
this
case
)
signifying
the
same
thing
;
yet
because
in
(
in
such
case
)
hath
been
most
frequently
used
,
upon
such
a
direction
to
the
Coroners
,
de
ought
to
be
rejected
,
and
in
retained
:
for
the
order
of
the
Register
is
,
that
all
writs
directed
to
the
Sheriff
shall
be
Vicecomiti
de
Comitatu
,
but
those
directed
to
the
Coroners
,
Coronatoribus
in
Comitatu
;
as
an
Attachment
against
the
Sheriff
for
not
returning
a
Replevin
,
is
directed
Coronatoribus
in
Comitatu
,
&c.
So
is
likewise
the
writ
of
Certifying
an
Outlawry
,
as
appears
in
the
book
of
Entries
,
and
so
all
other
writs
,
as
a
Diem
clausit
extremum
is
,
Escheatori
in
Comitatu
,
and
the
like
:
And
he
that
finds
fault
with
this
direction
,
argueth
against
the
Register
,
and
also
against
the
common
usage
of
the
Law
heretofore
practised
.
14
A
writ
of
Inquiry
being
directed
to
the
Sheriff
himself
to
be
executed
,
he
makes
return
,
Kings
Bench
and
Common
Pleas
,
especially
in
Suffolk
and
Norfolk
in
later
times
.
Vide
Hob.
84.
Skeat
and
Oxonbridge
such
an
allowance
in
a
writ
of
waste
.
204
Eventus
varios
Res
nova
semper
habet
;
And
therefore
it
hateth
new
Inventions
,
and
Innovations
.
Edward
Cooke
speaking
of
Iustice
Richel
his
Perpetuity
,
We
will
not
change
the
Law
,
which
alwayes
hath
been
used
And
another
saith
in
2
H.
4.
18.
It
is
better
that
it
be
turned
to
a
default
,
than
that
the
Law
should
be
changed
,
or
any
innovation
made
.
And
therefore
new
and
subtil
inventions
ought
not
to
alter
any
principle
of
the
Common
Law
.
Vide
supra
184.
21.
&
159.
2.
in
futuro
,
and
agreeable
to
the
Rule
of
the
Common
Law
,
are
also
,
if
they
become
in
due
time
in
esse
,
within
the
provision
of
that
Statute
;
but
uses
invented
and
limited
in
a
new
manner
,
and
not
agréeable
to
the
antient
Common
Laws
of
the
land
are
utterly
extirpated
and
extinct
by
that
Act
;
for
it
appears
by
the
express
letter
of
the
Act
,
that
it
was
the
intent
of
the
Parliament
to
extinguish
and
root
them
out
,
and
to
restore
the
antient
Common
Law
of
the
Land
.
Vide
plus
ibidem
.
Anthony
Mildmayes
case
.
Co.
l.
9.
128.
a.
4.
in
Sondayes
case
.
for
at
the
Common
Law
all
Inheritances
were
fée-simple
,
to
the
end
that
neither
Lords
should
be
defeated
of
their
escheats
,
wards
,
&c.
nor
purchasors
or
farmers
should
lose
their
estates
or
leases
,
or
be
evict
by
the
heirs
of
their
grantors
or
lessors
,
nor
such
infinite
occasions
of
troubles
,
contentions
,
or
sutes
should
arise
:
And
therefore
it
may
be
truly
averred
,
that
the
policy
and
Rule
of
the
Common
Law
in
this
point
was
in
effect
subverted
by
the
Statute
de
donis
made
in
13
E.
1.
which
ordained
a
general
perpetuity
by
Act
of
Parliament
for
all
such
as
had
then
made
it
,
or
would
afterwards
put
it
in
ure
;
by
force
whereof
all
the
possessions
of
England
in
effect
were
intailed
accordingly
,
which
was
the
cause
of
the
said
and
divers
other
mischiefs
;
Howbeit
divers
attempts
were
made
for
remedy
thereof
in
divers
Parliaments
,
and
many
bills
exhibited
accordingly
,
but
they
were
alwayes
upon
one
pretence
or
other
rejected
:
Indéed
the
truth
was
,
that
the
Lords
and
Commons
knowing
that
their
estates
tail
were
not
forfeitable
for
felony
or
treason
,
as
their
estates
of
Inheritance
were
before
the
said
Act
(
and
principally
in
the
Barons
warrs
in
the
time
of
H.
3.
)
and
finding
also
,
that
they
were
not
chargeable
with
the
debts
or
incumbrances
of
their
ancestors
,
and
that
the
sales
,
alienations
,
or
leases
of
their
ancestors
did
not
bind
them
for
the
lands
which
were
so
entailed
to
their
ancestors
,
did
alwayes
reject
such
bills
;
And
this
continued
all
the
residue
of
the
Reign
of
E.
1.
and
the
Reigns
of
E.
2.
E.
3.
R.
2.
H.
4.
H.
5.
H.
6.
and
until
about
the
12
of
E.
4.
when
the
Iudges
upon
consultation
had
amongst
them
did
resolve
,
that
an
estate
tail
might
be
docked
and
barred
by
a
Common
recovery
,
and
that
by
reason
of
the
intended
recompence
the
Common
recovery
was
not
within
the
restraint
of
the
said
perpetuity
made
by
the
said
Act
of
13
E.
1.
whereby
it
appears
,
that
many
mischiefs
did
arise
upon
the
change
of
a
Maxim
and
Rule
of
the
Common
Law
,
which
they
who
altered
it
could
not
discern
,
when
they
made
the
said
change
;
for
Rerum
progressus
ostendunt
multa
,
quae
in
initio
praecaveri
seu
praevideri
non
possunt
.
Vide
8.
Geo.
Reynels
case
in
the
9
Report
,
Mary
Portingtons
case
.
but
consonant
to
the
opinion
of
the
Sages
of
the
Law
,
even
from
the
making
of
the
Statute
De
donis
,
as
appears
by
divers
authorities
in
our
books
,
viz.
in
42
E.
3.
53.
in
44
E.
3.
21
,
22.
Octavian
Lumbards
case
,
in
48
E.
3.
11.
b.
Jefferey
Benchers
case
,
in
12
H.
4.
13.
b.
in
1
E.
4.
5.
in
5
E.
4.
2.
b.
which
resolutions
and
opinions
in
Law
,
together
with
divers
others
of
the
like
kind
,
did
(
as
it
séems
)
produce
the
judgement
in
12
E.
4.
And
therefore
such
barring
of
an
estate
tail
was
not
then
to
be
estéemed
an
innovation
or
new
invention
,
but
the
Iudges
and
Sages
of
the
Law
then
perceiving
what
contentions
and
mischiefs
had
crept
into
the
quiet
of
the
Law
by
such
fettered
Inheritances
,
upon
consideration
of
the
said
Act
,
and
of
the
former
exposition
thereof
by
the
Sages
of
the
Law
since
the
making
of
the
same
Act
,
did
in
the
said
12
year
of
E.
4.
give
judgment
,
that
in
such
case
an
estate
tail
should
be
barred
.
And
in
Scholasticaes
case
in
12
Eliz.
P.
M.
10
A
Dedimus
Potestatem
was
granted
to
Iustice
Saunders
to
receive
an
Attorney
for
the
defendant
in
a
Quid
juris
clamat
,
205
Communis
Error
facit
Jus.
Sciant
omnes
per
praesentes
,
&c.
or
the
like
,
a
Letter
of
Attorney
may
be
contained
,
for
one
continent
may
contain
divers
deeds
to
several
persons
:
But
if
it
be
by
indenture
between
the
feoffor
on
the
one
part
,
and
the
feoffee
on
the
other
part
,
there
a
Letter
of
Attorny
in
such
a
deed
is
not
good
,
unless
the
Attorney
be
made
a
party
in
the
deed
indented
;
howbeit
,
because
it
hath
been
commonly
used
to
insert
it
in
the
Indenture
,
without
making
the
Attorny
party
thereunto
,
it
hath
been
permitted
to
pass
,
but
the
other
way
is
safest
,
and
more
legal
.
Communis
Error
facit
Jus.
Sir
Mo●●●inches
case
.
2
Where
it
is
required
by
the
Statute
of
1
H.
5.
5.
that
in
every
writ
original
,
&c.
in
which
Exigent
shall
be
awarded
,
Communis
error
,
&c.
206
So
doth
a
Custom
,
which
is
reasonable
:
unreasonable
,
contra
.
Serjeants
Inn
in
Fleetstreet
(
Trin.
39
Eliz.
)
and
so
certified
into
that
Court
:
But
upon
the
change
or
alteration
of
the
Tenant
,
a
fine
is
due
unto
the
Lord
,
because
that
custom
is
reasonable
.
2
Of
fines
taken
of
Copyholders
some
be
certain
by
custom
,
and
some
be
uncertain
,
Iac.
C.
B.
rot.
1845.
for
all
excessiveness
is
abhorred
in
Law
.
3
In
former
times
it
hath
been
doubted
,
whether
or
no
,
if
a
Copyholder
had
béen
ousted
by
his
Lord
,
tenens
ad
voluntatem
Domini
,
yet
it
is
secundum
consuetudinem
manerii
:
And
Britton
saith
,
speaking
of
these
kind
of
Tenants
,
Et
ascuns
gents
sont
,
qui
tout
franks
de
sank
et
tenent
terre
de
nous
en
villeynage
,
et
sont
proprement
nos
sokemans
,
et
ceux
sout
priviledges
en
ties
manere
,
que
nul
ne
les
doit
ouster
de
tiels
tenements
taut
come
ils
font
les
services
,
que
a
lour
tenements
appendant
,
et
nul
ne
poit
lour
services
accressre
ne
changer
,
a
faire
autres
services
ou
plus
,
autrement
que
ils
ne
solaient
,
And
herewith
agreeth
Sir
Robert
Danby
Cl.
Inst
.
of
the
C.
Pl.
M.
7
E.
4.
19.
and
Sir
Thomas
Brian
his
Successor
M.
21
E.
4.
80.
That
the
Copyholder
doing
his
customs
and
services
,
if
he
be
put
out
by
his
Lord
,
shall
have
an
Action
of
trespasse
against
him
.
Haud
facile
emergunt
,
quorum
virtutibus
obstat
Res
angusta
domi
.
Ireland
Lionel
Duke
of
Clarence
being
then
Lieutenant
of
that
Realm
,
the
Irish
custom
(
called
there
the
Brehon-law
)
was
wholy
abolished
,
for
that
(
as
the
Parliament
said
)
it
was
no
law
,
but
a
lewd
custom
,
et
malus
usus
abolendus
est
,
as
is
said
before
.
Miles
Corbets
case
.
and
in
some
places
it
retains
the
original
nature
,
and
the
Rule
to
know
it
▪
is
the
Custom
and
usage
of
every
several
Town
,
or
place
,
for
Consuetudo
loci
est
observanda
:
And
therefore
if
in
the
Town
of
Dale
one
hath
gotten
divers
parcels
of
land
together
(
in
which
the
Inhabitants
have
used
to
have
Shack
)
and
long
since
did
enclose
it
,
and
nevertheless
alwayes
after
harvest
the
Inhabitants
have
had
Shack
there
for
their
Cattel
,
This
shall
be
taken
for
Common
appendant
or
appurtenant
,
and
the
Owner
cannot
exclude
them
from
Commoning
there
,
albeit
he
will
not
Common
with
them
,
but
hold
his
own
lands
so
enclosed
in
severalty
;
And
this
is
well
proved
by
the
usage
,
for
notwithstanding
the
antient
enclosure
the
Inhabitants
have
had
Common
there
:
But
if
in
the
Town
of
Sale
the
Custom
and
usage
have
béen
,
that
every
Owner
in
the
same
Town
hath
enclosed
his
own
land
time
out
of
mind
,
and
so
hath
held
in
severalty
;
there
that
proves
,
that
it
was
but
in
nature
of
Shack
originally
because
of
Vicinage
,
and
so
continues
;
And
therefore
(
in
such
case
)
he
may
inclose
and
keep
it
in
severalty
,
and
seclude
himself
from
having
Shack
with
the
rest
of
the
Commoners
.
Eliz.
Rot.
1496.
207
Licet
Consuetudo
sit
magnae
Authoritatis
,
Nunquam
tamen
Praejudicat
manifestae
veritati
.
John
Molins
case
.
2
Ed.
3.
Lord
,
an
Abbot
Mesne
,
John
Molins
,
to
be
holden
of
him
and
other
chief
Lords
of
the
fee
by
the
services
,
&c.
In
this
case
the
Mesnalty
is
revived
:
and
albeit
divers
Offices
,
licences
,
and
other
Records
were
produced
to
prove
the
Kings
immediate
tenure
,
yet
the
Barons
(
before
whom
that
cause
depended
)
said
,
in
as
much
as
by
construction
of
Law
upon
the
Letters
Patents
it
appeared
,
that
there
was
no
immediate
tenure
in
the
King
,
albeit
it
had
been
otherwise
found
in
offices
,
or
admitted
in
licenses
,
or
other
Records
,
yet
that
could
not
alter
the
true
tenure
,
which
originally
appeared
(
to
them
as
Iudges
)
upon
Record
:
And
it
was
then
also
said
,
Licet
consuetudo
,
&c.
Bened.
Spinola
and
his
heirs
,
that
then
the
grant
to
her
should
be
void
,
with
intent
thereby
to
defraud
the
Statute
of
13
Eliz.
10.
)
it
was
objected
,
that
since
that
Statute
there
had
been
a
great
number
of
such
grants
made
by
Masters
and
Fellows
of
Colleges
,
Deans
and
Chapters
,
Masters
of
Hospitals
,
&c
,
Howbeit
to
this
it
was
answered
,
that
such
grants
had
been
made
rather
ex
consuetudine
Clericorum
,
who
imitated
presidents
of
such
grants
made
before
that
Statute
,
than
by
the
sage
advice
of
men
learned
in
the
Law
;
and
Multitudo
errantium
non
parit
errori
Patrocinium
.
5
Hob.
17.
Dr.
James
his
case
,
concerning
holding
the
Court
of
Audience
in
the
Borough
of
Southwark
,
which
is
within
the
Iurisdiction
of
the
Bishop
of
Winchester
.
208
Husband
and
wife
are
one
Person
,
And
therefore
Robert
Catlyn
Chief
Iustice
purchased
lands
holden
of
the
Crown
in
Capite
,
to
him
and
his
wife
,
209
The
Wife
is
of
the
same
Condition
with
her
Husband
.
tit
.
Corone
7.
&
Br.
Treason
8.
)
upon
an
Indictment
one
was
arraigned
for
killing
the
wife
of
his
Master
,
which
he
confessed
,
and
thereupon
it
came
into
question
,
whether
or
no
he
should
be
drawn
and
hanged
,
or
hanged
only
,
and
it
was
adjudged
by
the
advice
of
all
the
Iustices
of
both
the
Benches
,
that
he
should
be
drawn
and
hanged
,
for
that
it
was
treason
;
And
there
it
is
not
taken
within
the
equity
of
that
Statute
,
which
speaks
only
of
killing
the
Master
,
but
rather
within
the
words
thereof
,
because
Master
and
Mistress
import
the
same
,
being
one
person
in
Law
.
feme
cove●t
be
outragiously
amercied
,
Vide
Exod.
cap.
21.
&
supra
4.
per
Radulphum
Haward
Armig.
&
Dominam
Annam
Powes
uxor
.
ejus
(
for
so
she
was
named
in
the
writ
)
and
exception
was
taken
upon
the
Misnomer
,
because
she
ought
to
have
béen
named
only
by
the
name
of
her
husband
,
and
not
otherwise
.
And
by
the
opinion
of
Montague
Ch.
Iustice
,
and
Hales
Iustice
,
the
exception
was
good
,
because
by
the
Law
of
God
she
is
sub
potestate
viri
,
and
therefore
her
name
of
dignity
ought
to
he
changed
according
to
the
degree
of
her
husband
,
notwithstanding
the
curtesie
of
the
Ladies
of
Honor
and
the
Court
;
whereupon
the
plaintifs
brought
a
new
writ
,
ad
re●pondendum
Radulpho
H.
&
Anna
uxori
suae
,
nuper
uxori
Domini
Powes
defuncti
.
210
They
cannot
sue
one
another
,
nor
make
any
grant
one
to
the
other
,
or
the
like
.
Iohn
Nedhams
case
.
4
It
was
adjudged
M.
30
&
31
Eliz.
that
,
5
Hob.
10.
Fryer
against
Gildridge
.
211
Upon
a
joynt
Purchase
during
the
Coverture
,
either
of
them
taketh
the
whole
.
&
Dyer
316.
example
,
William
Ocle
and
Joan
his
wife
purchased
lands
to
them
two
and
their
heirs
,
afterwards
William
Ocle
was
attainted
of
high
treason
for
the
murder
of
E.
2.
and
was
executed
,
Joan
his
wife
surviving
him
;
E.
3.
granted
the
lands
to
Stephen
de
Bitterly
and
his
heirs
,
John
Hawkins
the
heir
of
Ioan
in
a
petition
to
the
King
discloseth
this
whole
matter
,
and
upon
a
Scire
facias
against
the
Patentee
hath
judgement
to
recover
the
lands
,
for
that
William
and
Joan
were
one
person
in
Law
.
William
Herberts
case
.
so
likewise
if
two
be
bound
to
warranty
,
the
survivor
and
the
heir
of
the
other
shall
be
vouched
together
:
But
if
husband
and
wife
,
and
the
heirs
of
the
wife
be
bound
to
warranty
,
and
the
wife
die
,
the
land
of
the
Baron
may
be
only
put
in
execution
;
because
there
are
no
moities
betwixt
Baron
and
feme
,
&c.
212
The
Husband
is
the
Womans
head
;
And
therefore
viz.
We
do
you
Homage
,
&c.
And
the
homage
,
which
the
husband
and
wife
do
,
is
the
very
homage
,
which
the
wife
should
do
alone
for
her
own
land
;
and
in
that
case
when
he
hath
issue
by
his
wife
,
he
shall
do
the
homage
alone
,
during
his
wives
life
,
because
by
having
of
issue
he
is
intitled
to
an
estate
for
term
of
his
own
life
,
in
his
own
right
,
and
yet
is
seised
in
fee
also
in
the
right
of
his
wife
;
so
as
in
such
case
he
is
not
a
bare
tenant
for
life
:
Howbeit
if
his
wife
die
,
then
he
hath
only
an
estate
for
life
,
and
(
by
consequence
)
cannot
do
homage
:
And
what
is
said
of
doing
homage
,
is
also
true
of
taking
homage
,
in
case
where
the
husband
is
seised
of
a
Seigniory
in
right
of
his
wife
,
for
in
such
case
also
(
before
issue
)
the
husband
and
wife
shall
take
it
together
by
holding
the
tenants
hands
in
the
hands
of
them
both
:
But
after
issue
he
shall
receive
it
alone
,
and
after
the
wives
death
he
shall
not
receive
it
;
for
(
regularly
)
it
is
true
,
that
he
who
cannot
receive
homage
in
respect
of
the
weaknesse
of
his
estate
in
the
Seignory
,
shall
not
do
homage
,
when
he
hath
a
like
estate
in
the
tenancy
.
In
like
manner
,
Novel
disseisin
,
and
the
plaintif
recovereth
and
hath
execution
,
the
woman
taketh
husband
,
and
both
of
them
redisseise
the
plaintiff
,
he
shall
not
have
Redisseisin
,
because
the
husband
is
now
the
womans
head
,
and
alius
:
But
if
a
feme
recover
in
an
Assise
,
and
after
take
Baron
,
and
they
are
redisseised
,
the
husband
and
wife
shall
have
a
redisseisin
,
because
(
as
before
)
he
is
the
womans
head
,
and
therfore
joyneth
for
conformity
,
and
doth
it
in
the
right
of
his
wife
,
who
was
disseised
before
,
so
as
(
in
effect
)
it
is
Idem
disseisitus
,
&
idem
Conquerent
.
Vide
Merton
cap.
3.
20
H.
3.
feme
covert
,
and
she
be
acquit
,
tit
.
Corone
276.
213
All
that
she
hath
is
her
Husbands
.
Vide
Ho.
216.
Vide
Hob.
3.
Yong
and
Radford
.
en
auter
droit
,
Andrew
Ognell
.
and
the
administration
of
her
goods
of
right
appertains
to
her
husband
.
Ejectione
firmae
in
his
own
name
,
and
have
judgement
to
recover
,
this
is
an
alteration
of
the
term
,
and
vesteth
it
in
the
husband
:
&
sic
de
similibus
.
214.
Her
will
ought
to
become
his
will
,
and
to
be
subject
unto
it
.
A
fortiori
when
the
use
is
declared
by
the
deed
of
the
baron
,
and
no
other
declared
by
the
feme
,
it
shall
bind
,
vide
12
Eliz.
290.
Dyer
.
Baron
and
feme
were
seised
of
a
tenement
in
London
to
them
and
the
heirs
of
the
Baron
,
&
the
Baron
covenanted
by
Indenture
in
consideration
of
20
l.
that
he
and
his
wife
should
suffer
a
recovery
by
writ
of
right
according
to
the
custom
of
London
(
which
binds
as
a
fine
at
the
Common-law
)
and
that
the
recovery
should
be
to
the
use
of
the
recoverors
,
untill
they
should
make
a
lease
by
Indenture
for
40
years
,
and
after
the
making
of
the
lease
,
then
to
the
use
of
the
baron
and
feme
and
the
heirs
of
the
baron
,
and
the
recovery
was
had
accordingly
,
and
the
opinion
of
all
the
Iustices
was
,
that
the
lease
was
good
,
and
not
disseisible
by
the
feme
,
who
survived
the
baron
;
And
yet
in
this
case
the
baron
was
only
party
to
the
deed
that
declared
the
use
,
neverthelesse
it
bound
the
feme
,
because
the
feme
is
sub
potestate
viri
.
And
therefore
albeit
the
feme
be
owner
of
the
land
,
and
the
declaration
or
disposition
of
the
use
insues
the
ownership
of
the
land
,
sicut
umbra
sequitur
corpus
;
And.
Ognels
case
.
yet
in
regard
she
is
sub
potestate
viri
,
she
cannot
in
respect
of
her
coverture
without
the
barons
consent
limit
the
use
,
no
more
than
she
can
make
an
executor
without
such
consent
.
Omne
Testamentum
morte
consummatum
est
,
and
voluntas
est
ambulatoria
usque
ad
extremum
vitae
exitum
.