Front Page Titles (by Subject) Section 723 Warranty, part 30 - Selected Writings of Sir Edward Coke, vol. II
Section 723 Warranty, part 30 - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.
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- 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
- 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
Warranty, part 30
| The third cause is, when the condition is such, that if the elder sonne alien, &c. that his estate shall cease or be void, &c. then after such alienation, &c. may the Donor enter by force of such condition, as it seemeth, and so the donor or his heires in such case ought sooner to have the land then the second son, that had not any right before such alienation; and so it seemeth that such remainders in the case aforesaid are void.
Here it is to bee observed, that part of the condition that prohibiteth the alienation made by tenant in taile is good in Law, with such distinction as hath beene before said in the Chapter of Conditions. And the consequent of the Condition, viz. that the lands should remaine to another, &c. is void in Law, and by the opinion of Littleton the Donor may re-enter for the Condition broken, for utile per inutile non vitiatur: Which being in case of a Condition for the defeating of an estate, is worthy of observation.
And it is to bee noted, that after the death of the Donor, the Condition descendeth to the eldest sonne, and consequently his alienation doth extinguish the same for ever, wherein the weaknesse of this invention appeareth, and therefore Littleton here saith, that it seemeth that the Donor may re-enter, and speaketh nothing of his Heires. A man hath issue two sonnes, and maketh a Gift in taile to the eldest, the Remainder in fee to the puisne, upon condition, that the eldest shall not make any Discontinuance with Warranty to barre him in the Remainder, and if he doth, that then the puisne son and his heires shall re-enter, the eldest make a Feoffment in Fee with Warranty, the father dieth, the eldest sonne dieth without issue, the puisne may enter, but if the Discontinuance had beene after the death of the father, the puisne could not have entred. In this case foure points are to be observed. First, as Littleton here saith, the Entrie for the breach of the Condition is given to the father, and not to the puisne sonne. Secondly, | that by the death of the Father the condition descends to the elder Sonne, and is but suspended, and is revived by the death of the eldest Sonne without issue, and descendeth to the youngest Sonne. Thirdly, That the feoffment made in the life of the Father cannot give away a condition that is Collaterall, as it may doe a right. Fourthly, That a Warrantie cannot binde a title of Entrie for a condition broken, (as hath beene said) but if the discontinuance had been made after the death of the Father, it had extinct the condition: Which case is put to open the reason of our authors opinion.
In these last three Sections our Author hath taught us an excellent point of Learning, That when any innovation or new invention starts up, to trie it with the Rules of the common Law, (as our Author here hath done) for these be true Touchstones to sever the pure gold from the drosse and sophistications of novelties and new inventions. And by this example you may perceive, That the rule of the old common Law being soundly (as our Author hath done) applied to such novelties, it doth utterly crushthemandbringthemtonothing, and commonly a new invention doth offend against many rules and reasons (as here it appeareth) of the common Law, and the antient Judges and Sages of the Law have ever (as it appeareth in our Bookes ) suppressed innovations and novelties in the beginning, as soone as they have offered to creepe up, lest the quiet of the common Law might be disturbed: and so have Acts of Parliament done the like, whereof by the authorities quoted in the margent, you may in stead of many others, upon this occasion take a little taste. But our excellent Author, in all his three Bookes, hath said nothing but Ex veterum sapientium ore, et more.
[Ed.: A useful thing is not vitiated by what is useless,]
41. E. 3. fol.
Vid. Sect. 446.
31. E. 3. Gager deliverance 5. 22. Ass. 12. 38. E. 3. 1. 2. H. 4. 18, &c.
(a) I. E. cap. 15. stat. 3. 18. E. 3. cap. 1. & 6. 4. H. 4. ca. 2. 11. H. 6. c. 23. 2. E. 4. cap. 8, &c.
[Ed.: By the mouth and usage of the wise men of yore.]