The Online Library of Liberty

A project of Liberty Fund, Inc.

• II: Coke’s Speech and Charge At the Norwich Assizes
• (preface, Written By Robert Prickett)
• The Lord Coke, the Preface to His Charge Given At the Assises Houlden In Norwich, the Fourth of August, 1606.
• ¶ Here Followeth the Words of His Charge In Order.
• III: Excerpts From the Small Treatises
• A. Book of Entries
• The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to Be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.
• B. the Compleat Copyholder
• Sec. XXXIII.
• C. Little Treatise On Baile and Mainprize
• The Conclusion With Advertisment.
• IV: Excerpts From the Institutes
• A. the First Part of the Institutes
• The Preface.
• Section 1 Fee Simple
• Section 2 Fee Simple
• Section 3 Fee Simple
• Section 4 Fee Simple
• Section 5 Fee Simple
• Section 7 Fee Simple
• Section 8 Fee Simple
• Section 9 Fee Simple
• Section 10 Fee Simple
• Section 11 Fee Simple
• Section 12 Fee Simple
• Section 21 Fee Tail, Part 2
• Section 69 Tenant At Will, Part 2
• Section 80 Tenant By the Verge, Part 3
• Section 96 Escuage, Part 2
• Section 108 Knight’s Service, Part 6
• Section 138 Frankalmoin, Part 5
• Section 170 Tenure In Burgage, Part 9
• Section 199 Villenage, Part 18
• Section 342 Conditional Estates, Part 17
• Section 366 Conditional Estates, Part 41
• Section 372 Conditional Estates, Part 47
• Section 412 Descents, Part 27
• Section 464 Releases, Part 20
• Section 481 Releases, Part 37
• Section 723 Warranty, Part 30
• Section 728 Fee Warranty, Part 35
• Epilogue
• B. the Second Part of the Institutes
• Deo, Patriae, Tibi.
• Magna Charta,
• C. The Third Part of the Institutes
• Deo, Patriae, Tibi.
• Cap. I. of High Treason.
• Cap. II. of Petit Treason.
• Cap. III. of Misprision of Treason.
• | Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
• Cap. V. of Heresie.
• | Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
• | Cap. Lxii. of Indictments.
• D. The Fourth Part of the Institutes
• Deo, Patriae, Tibi.
• Cap. I. of What Persons This Court Consisteth.
• Cap. VII. the Court of Kings Bench, Coram Rege. 1

Section 464
Releases, part 20

By the Statute of 2. Hen. 5. cap. 3. Statute. 2. it is enacted, That in three cases,1 he that passeth in an Enquest, ought to have Lands and Tenements to the value of fortie shillings, viz. First, Upon tryall of the death of a man. Secondly, in Plea reall betweene party and party. And thirdly, In Plea personall, where the debt, or the dammages in the Declaration amount unto fortie Markes. And it is worth the noting, That the Judges that were at the making of that Statute did construe it by equity: for where the Stature speakes in the disjunctive debt or dammages, they adjudged that where the debt and dammages amounted to forty Markes, that it was within the Statute.2 Fortescue (f )3 saith, Ubi damna vel debitum in personalibus Actionibus non excedunt quadraginta Marcas monetae Anglicanae, hinc non requiritur, quod Juratores in Actionibus hujusmodi tantum expendere possint: habebunt tamen terram vel redditum, ad valorem competentem, juxta discretionem justiciariorum, &c.4 And forasmuch as the time of the making of this Statute, the greater part of the Lands in England in those troublesome and dangerous times (when that unhappy controversie betweene the Houses of Yorke and Lancaster was begun) were in use. And the Statute was made to remedy | a mischiefe, that the Sheriffe use to return simple men of small or no understanding, and therefore the Statute provided,5 That hee should returne sufficient men, and albeit in Law the Land was the Feofees, yet for that they had it but upon trust, and Cesty que use,6 tooke the whole profits, as our Authour here saith, and in equity and conscience the Land was his, therefore the Judges for advancement and expedition of justice, extended the Statute (against the Letter) to Cesty que use, & not to the Feoffees.

(n)7 But note if a man hath a Freehold pur terme dauter vie,8 or is seised in his Wifes right, and is returned on a Jury, yet if after he be returned, Cesty que vie, or his wife die, he may be challenged, and so it is if after the returne the Lands be evicted.

“And this is by the Common Law . . .”

Here three things are to be observed. First, That the surest construction of a State is by the rule and reason of the common Law. Secondly, That uses were at the Common Law. Thirdly, That now seeing the Statute (g)9 of 27.H. 8.ca. 10. which hath been in enacted since Littleton wrote, hath transferred the possession to the use, this case holdeth not at this day, but this latter opinion before that Statute was good Law, as Littleton here taketh it.

“the same Law giveth a privity . . .”

Hereof it followeth, That when the Law gives to any man any estate or possession, the Law giveth also a privity & other necessaries of the same and Littleton concludeth it with an Illative, Ergo, mesme la Ley dont privitie,10 which is very observable for a conclusion in other cases.

And the (Quaere) here made in the end of this Section is not in the Originall, but added by some other, and therefore to be rejected.

Also since Littleton wrote, the said Statute of 2. H. 5. is altered:11 for where that Statute limited forty shillings, now a later Statute hath raised it to foure pounds, and so it ought to be contained in the Venire facias.12

Nota,13 an Use is a Trust or Confidence reposed in some other, which is not issuing out of the Land, but as thing collaterall, annexed in privity to the estate of the Land, & to the person touching the Land, scilicet, that Cesty que use shall take the profit,13 and that the Terre-tenant shall make an estate according to his direction. So as Cesty que use had neither Jus in re,14 nor Jus ad rem,15 but for breach of trust his remedy was only by Sub poena, in Chancery: and yet the Judges for the cause aforesaid, made the said construction upon the said Statute.

Now how Jurors shall bee returned both in Common Plees, and also in Plees of the Crowne, and in what manner evidence shall be given to them, and how they shall be kept untill they give their verdict, you may read in Fortescue,16 & therefore need not to be here inserted.

[1. ]28. H. 8. Dy. fol. 9. Vid. W. 2. cap. 38. L’estat. de 21. E. I de juratis penendis in Ass. &c.

[2. ]9. H. 5. fol. 5.

[3. ](f ) Fortesc. cap. 15.

[4. ][Ed.: Where the damages or debt in personal actions do not exceed forty marks of English money, it is not requisite that the jurors in such actions should be able to spend so much; nevertheless they shall have land or rent to a sufficient value, according to the discretion of the justices, etc.]

[5. ]15. H. 7. 13. b. 13. H. 7. 7. b. 5. E. 4. 7. a.

[6. ][Ed.: Property held by one for the benefit, or use, of another,]

[7. ](n) 3. H. 6. 39. Challeng. 19. 21. H. 6. 39.

[8. ][Ed.: for a term measured by the life of another,]

[9. ](g) 27. H. 8. cap. 10.

[10. ][Ed.: Therefore, the same law gives a privity,]

[11. ]27. E1. cap. 6.

[12. ][Ed.: Writ to a Sheriff directing him to summon a pool of jurors.]

[13. ]Pl. Com. 352. b. in Delamere’s case, & 349. b. Lib. I. fol. 121. 123. 127. 140. in Chudleye’s case. Lib. 2. fol. 58. 78 Lib. 6. fol. 64. Lib. 7. fol. 13, 34.

[13. ]Pl. Com. 352. b. in Delamere’s case, & 349. b. Lib. I. fol. 121. 123. 127. 140. in Chudleye’s case. Lib. 2. fol. 58. 78 Lib. 6. fol. 64. Lib. 7. fol. 13, 34.

[14. ][Ed.: A right in the thing,]

[15. ][Ed.: A right to the thing,]

[16. ]Fortesc. cap. 25,26,27.