The Online Library of Liberty

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• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Fermor’s Case.

(Fermor v. Smith) (1602) Hilary Term, 44 Elizabeth I

In the Court of Chancery, and before all the justices of England. First Published in the Reports, volume 3, page 77a.

Ed.: Richard Fermor leased a messuage, or house and its related buildings and land, to Thomas Smith. The lease was based on a demise, or grant, for a period of 21 years, in return for rents of £3 yearly. Smith held other lands from Fermor as a tenant at will, which means the leases in these lands could be ended any time by Fermor or Smith, for 20s yearly, and he held a copyhold for more lands from Smith for 40s. Smith also held some lands not subject to Fermor. Smith granted all of his lands in the area to Chappell for life, and Smith levied a fine and proclamations, or instituted a proceeding to cut short other interests rather like a modern proceeding to declare an interest by adverse possession, which would cut off Fermor’s interests in Fermor’s lands possessed by Smith. Smith continued paying all of his rents to Fermor. The five years for the fine to be completed ran. Chappell died, which meant the reversion Smith kept when he gave Chappell the life estate gave possession back to Smith. The 21-year lease expired, and Smith claimed all of the land and barred Fermor from possession. Fermor sued in Chancery, although Egerton the chancellor referred it to the whole bench. The court held that the Parliamentary act that established the use of fines had not been intended for use in such a fraudulent manner. Benefits acquired by fraud cannot bind the people defrauded, particularly when there is a relationship of trust and confidence between the persons defrauding and defrauded. To allow any other result would allow “general mischief to insue.” Fermor won.

This case presents good discussions of statutory interpretation based on legislative intent, of fraud and fraud in a position of trust (which Coke seems to have over-emphasized compared to other reporters of the case), and of public policy arguments based on the effect of the ruling on subsequent litigants.

In a case depending in Chancery, between Richard Fermor, Esq. plaintiff, and Thomas Smith defendant, on the hearing the cause before Sir Thomas Egerton, Knight, Lord Keeper of the Great Seal, the case was such; Richard Fermor, the plaintiff, being seised of the manor of Somerton in fee, by indenture 6 Junii 20 Eliz. demised a messuage, parcel of the same manor, to Thomas Smith, the defendant, for twenty-one years, rendering the yearly rent of three pounds during the term, by force of which the defendant entered and was thereof possessed; He was also possessed of divers other parcels of the said manor at the will of the plaintiff, rendering twenty shillings per annum, and held divers other parcels of the said manor by copy of court-roll according to the custom of the said manor, rendering forty shillings rent per annum, all which lay in Somerton: And the said Thomas Smith was seised in his demesne as of fee of divers lands, in the same town, which were his proper inheritance. And afterwards by his deed 15th of October 25 Eliz. demised the said house and all the said land which he held for years, at will, and by copy, to one Chappel for his life, Pasch. 35 Eliz. Smith levied a fine with proclamations of as many messuages and lands, as comprehended as well all the lands which he held for years, at Will, and by copy, as his own inheritance, by covin1 and practice, to bar the plaintiff of his inheritance; the proclamations and five years passed, Smith at all times, before and after the fine, continued in possession, and paid the said several rents to the plaintiff. Chappel died, the 21 years expired, |[77 b] and now Smith claimed the inheritance of the land which he held by lease, at will, and by copy, and would have barred the plaintiff by force of the said fine with the proclamations, and five years past. And the Lord Keeper of the Great Seal thinking and considering of the great mischiefs which might ensue by such practices, and on the other side considering that fines with proclamations are the general assurances of the realm, referred this case (being a thing of great importance and consequence) to the consideration of the two Chief Justices Popham and Anderson; and after conference between them, they thought it necessary that all the justices of England and Barons of the Exchequer should be assembled for the resolution of this great case. And accordingly in this same term, all the Judges of England and the Barons of the Exchequer met at Serjeant’s Inn in Fleet-street, at two several days, where the case was debated among them. And at length it was resolved, by the two Chief Justices, Popham and Anderson, and by Gawdy and Walmesly, and all the other justices of England and Barons of the Exchequer, (except two) that the plaintiff was not barred by the said fine with proclamations, and that for four causes:

1. The makers of the Act of 4 Hen. 7. cap. 24. did never intend that such fine levied by fraud and practice of lessee for years, tenant at will, or tenant by copy of Court roll, who pretend no title to the inheritance, but intend the disinherison of their lessors or Lords, should bar them of their inheritance, and that appears by the preamble of the Act of 4 Hen. 7. where it is said, “That fines ought to be of greatest strength to avoid strifes and debates, & c.” But when lessee for years, or at will, or tenant by copy of Court roll make a feoffment by assent and covin that fine shall be levied, the same is not to avoid strife and debate; but by assent and covin to begin strife and debate where none was; And therefore the Act doth not extend to establish any estate made by such fraud and practice.

2. It was never the intent of the makers of the Act, that those who could not levy a fine, shall by making of an estate by wrong and fraud be enabled by force of the said Act to bar those who had right by levying of a fine: For if they themselves without such fraudulent estate cannot levy a fine to bar them which have the freehold and inheritance, certainly the makers of the Act did not intend that by making of an estate by fraud and practice they should have power to bar them; and such fraudulent estate is as no estate in the judgement of Law.

3. As it is said in Dalamer’s Case in Plow. Comm. 352. if any doubt be conceived upon the words or meaning of |[78 a] an Act of Parliament it is good to construe the same according to the reason of the Common Law; but the Common Law doth so abhorre fraud and covin, that all Acts as well Judicial as others, and which of themselves are just and lawful, yet being mixt with fraud and deceit, are in judgement of Law wrongful and unlawful: Quod alias bonum & justum est, si per vim vel fraudem petatur, malum & injustumefficitur:2 And therefore if a woman hath title to Dower which is one of the things favoured in Law, and by covin between her & another causeth a stranger to disseise the tenant of the land, to the intent that she may bring a Writ of Dower against him, which is done accordingly, and the woman recover against him upon a just and good title, yet all the same is void and of no force to binde the Terre-tenant; a fortiori3 in the principal Case when the lessee for years maketh a feoffment by covin, which amounteth to a wrong and disseisin, a fine levied by him who is particeps criminis,4 and who had not, nor pretended any right to the land shall not be a barre to the lessor. And that recoveries in Dower, or any other real Action shall be made a good title against the Tenant who cometh to the land by wrong and covin are void and of no force appeareth by 41 Ass. 28. 44 Edw. 3. 25 Ass. 1. 22 Ass. 92. 11 Edw. 4. 15 Edw. 4. 4. 7 Hen. 7. 11. 18 Hen. 8. 5. 12 Eliz. Dyer 295. For although that his right be lawful, and that he hath pursued his Recovery by judgement in the King’s Court, yet his covin maketh all that unlawful and wrongful, andyet Recoveries and chiefly upon good title are much favoured in Law: Also the right of inheritance of feme coverts,5 and infants, are much favoured in Law; and yet if a feme covert or an infant be of covin and consent, that the discontinuee shall be disseised, and that the disseisor shall enfeoff them, and all this is done accordingly, they are not remitted, as appears by Littleton, chap. Remitter 151. & 19 Hen. 8. 12b. And there it is held by six justices, that in such case, if the disseisor enters by covin to the intent to enfeoff the infant, although the infant be not of covin, &c. yet he shall not be remitted, because he who is in by him who makes the covin shall be in the same plight as he who did the covinous act. And it is agreed in 19 Hen. 8. 12. b. that if a man makes a disseisin to the intent to make a feoffment with warranty, although he makes the feoffment twenty months after, yet it is a warranty which commences by disseisin.

So if one makes a gift in tail to another, and the uncle of the donor disseises the donee, and makes a feoffment with warranty, the uncle dies, and the warranty descends on the donor, and afterwards the donee dies without issue, the donor brings Formedon6 in the reverter, and the tenant pleads the feoffment with warranty, the demandant shall |[78 b] avoid it, because it began by disseisin, and yet the disseisin was not immediately done to the donor, but to the donee; but by it his reversion was devested; and yet warranties are much favoured in law. And it appears in 8 Eliz. 249. Dyer, that a vacat7 was made of a recovery in the Common Pleas had by covin. The law hath ordained, that he, who will be assured of his goods, shall buy them in open Market, and that sale will bind all strangers, as well as the seller, and yet it is agreed in 33 Hen. 6. 5a, 5b that a sale in Market overt shall not bind him who hath a right to the goods, if the sale be by fraud, or the vendee hath notice that the property of the goods was another’s. So the law hath ordained the Court of Common Pleas as an open Market for assurances of land by fine, so that he who will be assured of his land not only against the seller, but all strangers, it is good for him to pass it in this market overt by fine; for, as it is said, finis finem litibus imponit:8 and yet covin and deceit in the case at Bar will void it. In 4 Edw. 2. Cui in Vita 22. it is held, That a resignation made by an abbot by covin should not abate the writ. 34 Edw. 1. Warranty 88. & 19 Edw. 2. Assets 3. & 31 Edw. 1. Voucher 301., a covinous conveyance that assets should not descend, is nothing worth. And it appears in 17 Edw. 3. 59. and 21 Edw. 3. 3. 46. that an estate made to the King, and by his letters patent granted over, and all this by covin between him who granted to the King and the patentee, to make an evasion out of the Statute of Mortmain, shall not bind, but shall be repealed. And 17 Eliz. Dy. 339. a presentation obtained by collusion is void. And 17 Eliz. Dy. 339. letters of administration obtained by collusion are void, and shall not repeal a former administration: see 13 Eliz. Dyer 295. many cases there put concerning covin.

And thereupon it was concluded, That if a recovery in Dower, or other real action, if a remitter to a feme covert or an infant, if a warranty, if a sale in market overt, if the King’s Letters Patent, if a presentation, administration, &c. scil. acts temporal and Ecclesiastical, shall be avoided by covin; by the same reason a fine in the principal case levied by fraud and covin, as is aforesaid, shall not bind; for fraus & dolus nemini patrocinari debent.9

Note, Reader, in 33 & 34 Eliz. in the King’s Bench between Robert Laune plaintiff and William Toker defendant in Ejectione firmae10 of lands in Ilfordcoom in the county of Devon, it was adjudged that where tenant for life levied a fine with proclamation and five years pass in his life, that the lessor should have five years to make his claim after the death of the lessee. And although this statute of 4 Hen. 7. hath a saving for the lessor in such case, yet the saving is of such right “as first shall grow, remain, &c.” and the right first accrued to the |[79 a] lessor after the fine and the forfeiture; but notwithstanding that, in as much as by the covin of the lessee, he in reversion or remainder might be barred of his reversion or remainder (for they do not expect to enter till after the death of the lessee,) and especially when the lessee hath lands of his own inheritance in the same town (as in the case at Bar he had), there the lessor shall have 5 years after the death of the lessee.

So it was agreed in the same case, if tenant for life makes a feoffment in fee to one who hath lands in the same town, and the feoffee levies a fine with proclamations; it shall not bind the lessor, but he shall have 5 years after the death of the lessee, for the lessor cannot know of what land the fine is levied, for he is not party to the indenture or agreement between the conusor and conusee;11 So in the same case, the Judges made a construction against the letter of the statute in salvation of the estate and inheritance of him in the reversion. And so it hath been adjudged before in Some’s Case in the Common Pleas, in Sir James Dyer’s time, as Plowden told me. Also it was said, that if lessee for years makes a feoffment in fee by practice and covin, that the feoffee should levy a fine with proclamations to another (the feoffee having other lands in the same Town) and all this is done accordingly; and yet the lessee doth continually pay the rent to the lessor, it shall not bind the lessor, for the reasons aforesaid.

Lastly, the Judges in this Resolution did greatly respect the general mischief which would ensue, if such fines levied by practice and covin of those who had the particular interests, should bar those who had the inheritance, and especially in the case at Bar, when after the fine levied, the conusor continually payed the rent to the lessor, which made the fraud and practice apparent, and therefore the lessor was secure, and had no cause of any fear or doubt of such fraud. But it was resolved, that if A. purchases land of B. by feoffment, or bargain and sale, and enrols it, and afterwards perceiving that B. had but a defeasible title, and that C. had right to it, B. levies a fine with proclamations to a stranger, or takes a fine from another with proclamations, to the intent to bar the right of C., this fine so levied by consent should bind; for nothing was done in this case which was not lawful, and the intent of the makers of the Act of 4 Hen. 7. was to avoid strifes and debates, and by the expresspurview should bind all strangers who do not pursue their right by action, or entry within 5 years. So, if one pretending title to land enters, and disseises another, and afterwards with intent to bind the disseisee, levies a fine with proclamations, this fine shall bind the disseisee by the express purview of the Act, if he neither enters nor |[79 b] pursues his action within 5 years; and this cannot be called levying by covin, because the levying of the fine is lawful, and the disseisee may re-enter, or bring his action within the 5 years.

The fourth reason was, because the lessee had contrived his fraud and deceit in so secret a manner, that he had deprived the lessor of the remedy which the statute gave him, that is to say, to make his entry, or bring his action within the 5 years: For how could he make his entry, or bring his action, when he knew not of the feoffment which did the wrong? And as to the fine, inasmuch as the lessee had lands in fee-simple in the same town, every one will presume that the fine would be levied of that whereof it might be lawfully levied. And although it contained more acres than his own land, that is usual almost in all fines; and peradventure the lessor did not know the just quantity of the lessee’s proper land, for that doth not appertain to him; and therefore it would be unreasonable to give him benefit, in this case, of the non-claim of the lessor, when the wrong and covin of the lessee is the cause of his non-claim. And a man shall not take advantage of his own wrong or covin. The possession of the lessee is not any mean for the lessor to take any notice of this wrong, for he comes to the possession of the land by grant or demise lawfully; and after the feoffment he continues in the possession as a lessee, for he pays his rent as a lessee ought; immo12 the possession of the lessee, and the payment of the rent, was the cause that the lessor neither knew nor suspected the fraud.

Also it was said, that the fraud and covin in this case made it more odious, because between the lessor and lessee, and the lord and his copyholder, there is a trust and confidence, and therefore a lessee for years and a copyholder shall do fealty, which is a great obligation of trust and confidence; and fraud and deceit by him who is trusted, is most odious in law. And if the makers of this Act had been asked, if their intent was, that such a fine so levied by such practice and covin should bind the lessors, they would have answered, God forbid that they should intend to patronize any such iniquity practised and compassed by those in whom there was trust and confidence reposed. But when a disseisor (although he gains the possession by wrong) levies a fine with proclamation, yet it shall bind as is aforesaid, for a disseisor venit tanquam in arena,13 and it is not possible but that the disseisee to whom the wrong is done, and who hath lost his possession, should be conusant of it; and therefore it will be his own folly, if he makes not his claim; and it is not accompanied with fraud and practice by one who came to the possession lawfully, by grant or demise, and who had a trust reposed in him by his lessor or grantor, which fraud and practice is so secretly contrived, that the |[80 a] lessor by common presumption could not have notice to make his claim, because his lessee continued in possession, and paid his rent, as a lessee ought. And as to that which was objected, That it would be mischievous to avoid fines on such bare averments; It was answered, That it would be a greater mischief, and principally in these days (in which the Poet saith,

• e——— Fugere pudor, rectumque, fidesque,
• In quorum subiere locum fraudesque, dolique,
• Insidiaeque, & vis, & amor sceleratus habendi.) 14

if fines levied by such covin and practice should bind, And such Objection may be made, if a fine be levied to secret uses to deceive a purchaser, an averment of fraud may be taken against it, by the stat. of 27 Eliz. cap. 4. So if a fine be levied on an usurious contract, it may be avoided by averment, by the statute of 13 Eliz. cap. 8. And Sir Thomas Egerton Lord Keeper of the Great Seal, commended this resolution of the justices, and agreed in opinion with them.

Part Four of the Reports

The Fourth Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le quart part des reportes del Edward Coke chivalier, l’attorney general le roy: de divers resolutions & judgements dones sur solemnes arguments, & avec graund deliberation & conference des tresreverend judges & sages de la ley de cases difficult, en queux sont graund diversities des opinions, et queux ne fueront unques resolves, ou adjudges, & reporte par devant, et les raisons & causes des dits resolutions & judgements: publies en le primier an (le printemps de tout heureusite) de tresheureux regiment de treshault et tresillustre Jaques roy Dengleterre, Fraunce, & Ireland, & de Escoce le 37., le fountaine de tout pietie & justice, & la vie de la ley. In English, The Fourth Part of the Reports of Sir Edward Coke, Knight, the King’s Majesty’s Attorney-General, of divers Resolutions and Judgments given upon solemn Arguments, and with great Deliberation and Conference of the most reverend Judges and Sages of the Law, of Cases difficult, in which are great diversities of opinions, and which were never Resolved or Adjudged, or Reported before: and the Reasons and Causes of the said Resolutions and Judgements. Published in the first yeare (the springtime of all happiness) of the most happie and prosperous Raigne of the Most High and Most Illustrious James, king of England, France, and Ireland, and of Scotland the 37. the Fountaine of all piety and Justice and the Life of the Law.

The cases in this part present issues that range further afield from property law than do the first three volumes. Although there are cases on the rights of husbands and wives over property, and on debt collection and many on copyholds (which are akin to modern leases), this part moves into the domains now known as tort law, contract law, criminal law, and civil and appellate procedure.

Epigrams from the title page:

[1. ][Ed.: Covin ordinarily refers to a secret agreement or conspiracy; here it means by stealthy, or deceitful means.]

[2. ][Ed.: What is otherwise good and just, if it is sought by force and fraud, becomes bad and unjust:]

[3. ][Ed.: with stronger reason.]

[4. ][Ed.: a participant in a crime, (an accomplice).]

[5. ][Ed.: married women.]

[6. ][Ed.: Writ to take possession by virtue of a grant in tail.]

[7. ][Ed.: cancellation.]

[8. ][Ed.: a fine puts an end to litigation:]

[9. ][Ed.: fraud and deceit should defend or excuse no man.]

[10. ][Ed.: Writ to recover in trespass lands from a prior present-interest holder whose interest has expired.]

[11. ][Ed.: The conusor, or cognisor, is the person who passes lands through an acknowledgement by fine to the conusee, who receives them.]

[12. ][Ed.: more specifically.]

[13. ][Ed.: comes, as it were, into the arena (i.e. into the conflict).]

[14. ][Ed.: Modesty, right and faith were fled away, and in their place came frauds, deceits and snares, and violence, and wicked love of possessions. (quoting Ovid, Metamorphoses, 1. 129.)]

[1. ][Ed.: It is an abomination to the King to commit wickedness, for the throne is established by righteousness.]

[2. ][Ed.: Righteous lips are the King’s desire, for they love him who speak righteously.]

[3. ][Ed.: Mark innocence and behold equity, for they are left to a peaceful man.]