Negative pleas that be issues of themselves wherunto the Demandant or Plaintiff cannot reply no more than to a generall Issue which is Et praedictus A similiter As if the tenant do vouch and the Demandant counterpâ—â—ad That the Vouche or any of his Ancestors had any thing c. whereof he might make a feoffment he shall conclude Et hoc petit quod inquir ' per patriaÌ„ praed ' tenens similiter So in a fine Pleaded by the tenont c. the Demandant may say quod partes finis nihil habuerunt hoc petit c. And so in a Writ of Dower the Tenant plead unques seisie Dower he shall conclude Et de hoc point se c. 22. H. 6. 57. 59. 3. H. 7. 9. 12. E. 4. 13. Filiatio nou potest probari and therefore the issue must be whether the wife was ensenit the day of her husbands death 41. E. 3. 11. b. A protestation availeth not the Party that raketh it if the issue be found against him except in some speciall Case * as if a man enter into warranty and taketh by protestation the value of the Land albeit the plea be found against him yet the protestation shall serve him for the value 10 E. 4. Protest 5. Vid. S. 192. * 30 E. 3. 14. Sect. 194. Si le Seignior Mayhem son villeine il ser de ceo endite a le suit del roy sil soit de ceo attaint il ferr un fine al roy Mes le villein nava c. appeal de Mayhem because that in appeal he shall recover but damages which the Lord after execution might take again and so the judgment inutile illusory and the Law never giveth an action when the end of it can bring no profit or benefit to the pl. 1 H. 4. 6. b. Mahemium i. e. membri mutilatio Endite i. e. an accusation found by an equest of 12. or more upon their oath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse Finis Sumitur tripliciter 1. For a pecuniary punishment for an offence c. against the King 2. For a sum given by the Tenant to the Lord 3. For the highest best assurance of lands If a praecipe be brought against an infant and hanging the Plea he commeth of full age he shall be amerced for the delay after his full age Lib. 5. fo 49 Vaughans Case So if the demandant or plaint be nonfute or judgement given against him he shall be likewise amerced pro falso clamore Vide lib. fo 126. b. c. If a Writ do abate by the act of the demandant or plaintiff or for matter of form the demandant or plaintiff shall be amerced but if it abate by the act of God as by the death of one c. it is otherwise Lib. 8. fo 60. b. Bechers Case Wit wita Bote wera or were old Saxon words signifie amerciament or compensation c. Ransome ne forsque redemption de paine corporel pro fine des deniers Mirror ca. 1 S. 1. and 3. Ransome is ever when the Law inflicteth a corporall punishment by imprisonment and so is also a fine but otherwise it is of an amerciament Alwaies at the common Law when the Defendant should lose life or member the writ said Felonice c. And now albeit the Law be changed for the Plantiff shall recover but damages yet the writ of appeal saith still felonice Vita membra sunt in manu seu protestate regis Bract. Lib. 1. fo 6. This offence of Mayhem is under all felonies deserving death and above all other inferior offences Inter crimina majora minimum inter minora maximum Inutilis labor fine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit à fine Lex non praecîpit inutilia Therefore the Law forbiddeth such recoveries whose ends are vaine chargeable and unprofitable Sect. 195. Demandant and Tenant in reall actions plantiff and defendant in actions personall and mixt In a personall action brought by A. B. against C.D. the defence is and praed C.D. defendit vim injuriam quando c. Et damna quicquid quod ipse defendere debet Vide libr. c. fo 127. b. The defendant in this and the like action can plead no Plea at all before he make himself party by this part of the defence 1 E. 4. 15. Sect. 196. c. 6. Maners de homes y sont queux sils suont action judgement poit estr demand sils serront respous c. 1. Lou villein suist action euvers son Seignior 2. Lou hom est utlage sur act de debt trns. c. ou enditement 3. Vn alien c. 4. Un home que per judgment done envers luy sur un breÌ„ de premunire facias c. eÌ„ hors del protection le roy 5. Un home enter c. en Religion 6 Un home que est excommenge per le ley de St. Esglise Sils sorront respondus c. This is the legall conclusion of the plea when the plea is in disability of the person Fo. 128. a. By the common Law the plaintiffe or defendant the demandant or Tenant could not appear by attorney without the Kings speciall Warrant by Writ or Letters Patents Abusion eÌ„ a reteiner Attorny sans breÌ„ de la Chancery Mirr ca. 5. Attorneys point estr touts ceux aux queux le voile suffer fems ne poient este Attor ne ensans ne serfs ne nul que eÌ„ en garde non auterment faut de foy ne nul criminous ne nul essoigne ne nul que nest a le foy le roy nul que ne poit este Counter c. Mir. ca. 2. Sect. 21. If an executor c. Sueth any action utlary in the plaintiffe shall not disable him because the suit is in auter droit 21 E. 4. 49. b. 21 H. 6. 30. b. In a Writ of error to reverse an utlary utlary in that suit or at any strangers suit shall not disable the plaintiffe because if he in that action should be disabled if he were outlawed at severall mens suits he should never reverse any of them 7 H. 4. 40. When any man pleads an outlawry in disability of the person he must shew forth the Record of the Outlawry Maintenant sub pede figilli because the plea is dilatory unless the Record be in the same Court But if he plead an outlawry in bar if it be denyed he shall have a day to bring in 6 Eliz. Dyer 228. F.N.B. 241. Stanf. pl. cor 105. Note there be two kind of appearances before the Quinto exactus to avoid the outlawry viz. an appearance in Deed i.e. to render himself c. and the other is by apparance in Law i. e. by purchasing a supersedeas out of the Court where the Record is c. Tr. 44. El. in Co. banco inter Mere dolburie If the ground or cause of the action be forfeited by
in tail to A. the remainder to his right heirs A. dyeth without issue the Collaterall heir of A. shall have a writ of right of the seisin of A. 4. E. 3. 16. 17. And so note a diversity between a seisin to cause posses fratris c. for there is required a more actuall seisin and a seisin to maintain a writ of right 40. E. 3. 8. 42. E. 3. 20. 37. Ass 4. 14. E. 4. 24. 7. H 5. 4. 11. H. 4. 11. Sect. 483. 484. Note a diversity where the issue taken goeth to the point of the writ or action there modo and forma are but words of form as in Littletons case of the writ of entry in casu proviso and so is the c. well explained in this Section But otherwise it is when a collaterall point in pleading is traversed as if a feoffment be alleadged by two and this is traversed modo and forma and it is found the feoffment of one there modo and forma is materiall So if a feoffment be pleaded by deed and it is traversed absque hoc quod feoffavit modo forma upon this collaterall issue modo forma are so essentiall as the Jury cannot find a feoffment without deed 9. H. 6. 1. 40 E. 3. 35. 21. E. 3. 4. 22. F.N.B. 205. 206. g. 40. E. 3. 5. 32. H. 8. issue Br. 80. 12. E. 4. 4. Here is another diversity to be observed that albeit the issue be upon a collaterall point yet if by the finding of part of the issue it shall appear to the Court that no such action lieth for the plaintiffe no more then if the whole had been found there modo forma are but words of forme as here in the case which Littleton putteth of the Lord and Tenant appeareth 10. E. 4. 7. 8. E. 4. 15. 20. and 21. E. 4. 3. Merlbr cap. 3. If the matter of the issue be found it is sufficient and this rule holds in criminall causes Pl. Com. 101. v. 6. E. 3. 41. b. 9. H. 7. 3. 13. H. 7. 14. 8. E. 3. 70. 8. Ass 29. 39. 5. H. 4. 22. 7. H. 4. 11. Pl. Com. 92. 3. Mar. Dyer 115. 116. 40. E. 3. 35. 31. E. 3. account 58. 28. Ass 48. The lessee covenants with the lessor not to cut downe any trees c. and binds himself in a bond of 40. l. for performance of covenants the lessee cuts down ten trees the lessor brings an action of debt upon the bond and assigneth a breach that the lessee cutteth down twenty trees whereupon issue is joyned and the Jury find that the lessee cut down ten judgment shall be given for the Plaintiff for sufficient matter of the issue is found for the Plaintiff Sect. 485. 486. An assault battery or taking of goods c. alledged in another county cannot be traversed without speciall cause of justification which extendeth to some certain place as if a Constable of a Town in another county arrest the body of a man that breaketh the peace there he may traverse the county but he must not rest there but all other places saving in the Town whereof he is Constable And so it is of taking of goods the Defendant justifies for damage feisant in another county he must as before traverse But where the cause of the justification is not restrained to a certain place that is so locall as it cannot be alledged in any other Town c. then albeit the action be brought in a forraigne county yet he must alledge his justification in the county where the action is brought In an action upon the case the Plaintiff declared for speaking of slanderous words which are transitory and laid 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 Plaintiff in his Declaration denied the concord whereupon the Defendant demurres and Judgment c. for the Plaintiff Tr. 30. El. Kings Bench. Inglebert and Jones Com. Pleas. Pasche 38. El. Rot. 1656. It is an ancient Principle in Law That for transitory causes of action the Plaintiff might alledge the fame in what place or County he would It is better that it be turned to a default then the Law should be changed or any innovation made 2. H. 4. 18. 38. E. 3. 1. A man did grant a rent that the grantee should hold the distress against gages and pledges and yet he shall gage delivery for otherwise by this new invention all Replevins shall be taken away 4. E. 3. cap. 5. 4. H. 4. cap. 2. Where the Jury is bound to find as well locall things in many cases as transitory in other Counties Vide lib. 6. fol. 46. Dowdales Case 3. E. 3. Ass 446. 14. H. 4 35. 5. H. 5. 2. 37. H. 6. 2. 7. E. 4. 45. 18. E. 4. 1. 13. H. 7. 17. 2 Mar. Br. att 104. 20. El. Dyer 171. 19. H. 6. 48. 28. H. 8. Dyer 29. 12. H. 8. 1. Reg. by the Common Law if the Defendant hath cause of justification or excuse then can he not plead Not guilty for then upon the evidence it shall be found against him for that he confesseth the battery and upon that issue cannot justifie it but he must plead the speciall matter and confesse and justifie the battery If in battery the Defendant may justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall issue and so of the like In trespasse of breaking his close upon Not guilty he cannot give in evidence that the beasts came through the Plaintiffs hedge which he ought to keep nor upon the generall issue justifie by reason of a rent charge common c. 25. H. 8. Br. In Detinue the Defendant pleaded non detinet he cannot give in evidence that the goods were pawned to him for money and that it is not paid but must plead it but he may give in evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods 22. H. 6. 33. 20. El. Dyer 276. 2. M. Dyer 212. If two men be bound in a bond joyntly and the one is sued alone he may plead matter in abatement of the Writ but he cannot plead Non est factum for it is his Deed though it be not his sole deed lib. 5. fo 119. Whelpdales case vide c. fo 283. a. Reg. whensoever a man doth any thing by force of a Warrant or Authority he must plead it But all that hath been said must be under two cautions 1. That whensoever a man cannot have advantage of the speciall matter by way of pleading there he shall take advantage of it in the evidence For example the Rule of Law is That a man cannot justifie in the killing or death of a man and therefore he shall be received to give the especiall matter in evidence as that it
a good bar in a Qu. imp because it is a mixt action 22. H. 6. 27. b. A disseisor that hath nothing in the land may plead a release of actions personalls because damages are to be recovered against him 11. Ass 9. 18. E. 3. 2. 23 24. And the Tenant in an Assize shall plead a release of actions personalls to the disseisor for that plea proveth that the Plaintiff hath no cause of action against him 13. H. 4. 2. a. If the disseisee release to the disseisor all actions realls and the disseisor maketh a Feoffment in fee and an Assize is brought against them the Feoffee shall not plead the release to the disseisor for that he is not privy to the Release for a release of actions shall only extend to privies If the disseisee release all actions to the disseisor and dye this doth bar him but for his life So note a diversity between a release of right and a release of actions 19. H. 6. 23. a. Sect. 496. Fol. 286. a. If the disseisee release all actions to the heir of the disseisor which is in by discent he hath no remedy to recover the land but yet the disseisee hath a right for that he hath released his actions and not his right If the heir of the disseisor make a Feoffment in fee to two and the disseisee release to one of the Feoffees all actions the survivor shal not plead this Release Note when a man hath severall remedies for one and the self-same thing be it reall personall or mixt albeit he release one of his remedies he may use the other 19. Ass 3. 30. E. 3. 19. 6. 21. H. 7. 23. Sect. 498. Fol. 286. b. If the Plaintiff in an action of Detinue of Charters which concern the inheritance of his land can declare of one Charter in especiall the Defendant shall not wage his Law 41. E. 3. 2. 8. H. 6. 18. 28 29. 10. H. 6. 20. 21. H. 6. 1. 14. H. 6. 4. 14. H. 4. 23 24 27. An action of Detinue for Charters doth sound in the realty for therein Summons and severance lieth and in Detinue of goods a Capias doth lye but for Charters in speciall a Capias lieth not and yet a release of actions personalls in a Writ of Detinue of Charters is a good barre 20. H. 6. 45. 19. E. 3. Severance 14. Sect. 499. Fol. 287. a. In a Writ of Dower the Tenant pleaded that before the Writ purchased A. was seised of the Land c. untill by the Tenant himself he was disseised and that hanging the Writ A. recovered against him c. Judgement of the Writ and adjudged a good plea in which plea the Tenant confessed a disseisin in himself 15. E. 4. 4. b. Sect. 500. Fol. 287. b. Placitorum criminalium alia majora alia minora alia maxima secundum criminum quantitatem sunt enim crimina majora dicuntur capitalia eò quod ultimum inducunt supplicium c. Minora verò quae fustigationem inducunt vel poenam pilloralem vel tumboralem vel carceris inclusionem c. Bract. lib. 3. 101. b. Criminalium quaedam sententialiter mortem inducunt quaedam verò minime Fleta lib. 1. c. 15. Appellum signifieth Accusatio and the Appellant Accusator is peculiarly in legall signification applied to Appeals of three sorts 1. Of wrong to his Ancestor whose heir male he is and that is only of death whereof our Author here speaketh The 2. is of wrong to the husband and is by the wife only of the death of her husband to be prosecuted The 3. is of wrongs done to the Appellants themselves as Robbery Rape and Mayheme The word Apellum is derived of Appeller to call because Appellans vocat reum in judicium Glanv l. 7. c. 9. aestimatio capitis i.e. so much as one paid for the killing of a man Fleta lib. 1. cap. 42. Hoved. fol. 344. You shall not read of any Insurrection or Rebellion before the Conquest when the view of Frankpledge and other ancient Laws of this Realm were in their right use A release of all actions reall and personall cannot barr an Appeal of Death because that release extendeth to common or civill actions and not to actions criminall 21. H. 6 16. Roberia is a felonious taking away of goods de la Robe that is from the person 22. Ass 39. W. 1. c. 20. Sect. 502. Fol. 288. a. En appeale de Mayhem un release de touts maners actions personalls est bone plea c. for that every action wherein damages only are recovered by the Plaintiff is in Law taken for an action personall 21. H. 6. 16. Sect. 503. Fol. 288. b. Before that time that the Outlary appear of Record the Defendant doth not forfeit his goods nor the Plaintiff can be disabled nor any Writ of Error doth lie in that case 28. Ass 49. 12. E. 3. Vtlage 3. M. 4. 5. Eliz. Dyer 222. S. 197. If a man by process upon the Originall be Outlawed there he shall be restored to nothing in the personalty against the Plaintiff But whereby the Outlawry he forfeited all his goods and chattells to the King he shall be restored to them also thereby he shall be restored to the Law and to be of ability to sue c. but if the Plaintiff in a personall action recover any debt c. or damages and the Defendant be Outlawed after Judgment there in a Writ of Error brought by the Defendant upon the principall Judgment a release of all actions personalls is a good plea. And so it is where a Judgment is given in a reall action a release of all actions realls is a good bar in a Writ of Error thereupon And in this speciall case here put by Littleton wherein the Plaintiff is to recover or to be restored to nothing against the party yet for that the Plaintiff in the former action is privy to the Record a release of a Writ of Error to him is sufficient to bar the Plaintiff in the Writ of Error of the Suit and vexation by the Writ of Error And so note that an action reall or personall doth imply a recovery of something in the realty or personalty or a restitution to the same but a Writ implyeth neither of them 1. H. 4. 6. 13. E. 4. 1 2. 26. H. 8. 3. b. 29. Ass 35. 47. E. 3. 6. 35 H. 6. 19. Sect. 504. fol. 289. a. b. A release of all actions reg is no bar of execution for the execution doth begin when the action doth end And therefore the foundation of the first is an Originall Writ and doth determin by the Judgment and Writs of execution are called Judiciall because they are grounded upon the Judgement 13. H. 4. Rel. 53. 19. H. 6. 3. Where a Capias ad Sat. lieth at the Common Law and where it is given by Statute vide Sir William Herberts case lib. 3. fo 11 12. Maximes in the Law concerning Executions Ea quae
to her it is commonly taken for the third part which she hath of her husbands lands c. After his decease lib. rub c. 70. Bract. l. 2. s 92. To the consummation of this dower three things are necessary viz. Marriage seisin and the death of her husband s 31. a. Secundum consuetudinem regni mulieres viduae c. Debent esse quietae de tallagiis c. doti ejus parcatur quia praemium pudoris est Ockam f. 40. Where lands or tenements descend to the husband before entry he hath but a seison in law and yet the wife shal be endowed for it lieth not in the power of the wife to bring to be an actuall seison as the husband may doe of his wifes land when he is Tenant by the Curtesie F. N. B. 149. Grandfather Father and Son the Grandfather and father die c. In this Case dos de dote peti non debit if lands descend to the Father otherwise is it in a purchase if the Grandfather infeoffe the Father c. Vide lib. 5. E 3. t. Douch 249. Paris c. Non debent mulieribus assignari in dotem castra quae fuerunt virorum suorum quae de guerra existunt vel etiam homagia servitia aliquorum de guerra existentia Fo. 31. b. Pat. 1. E. 1. Part. 1. m. 17. Tenant in Fee Taile generall maketh a feoffment in Fee and takes back an estate to him and to his wife and to the heirs of their two bodies and they have issue and the wife dieth the husband taketh another wife and dieth the wife shall not be endowed for during the Coverture he was seised of an estate Tail special and yet the issue which the second wife may have by possibility may inherit Vide lib. 41. E. 3 30. Dier 41. Albeit of many inheritances that be entire whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet she shall be endowed thereof in a special and certain manner As of the third part of a piscary tertium piscem vel jactum retis tertium c. Fo. 32. a. 17. E. Dow. 104. A woman shall not be endowed of a common sans nomber en grosse nor of an annuity c. Nor of Rents c. If the freeholds of the Rents were suspended before the coverture But a woman shall be endowed of Tithes of the third part of profits of Courts Fines Heriots c. De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad viâ—lentiam Brac. 97. Brit. 146. If the heire improve the value of the Land by building c. And on the other side if the value be impaired in the time of the heire she shall be endowed according to the value at the time of the assignment and not according to the value as it was in the time of her Husband 30. E. 1. Vouch. 298. It is not necessary that seisin should continue during the coverture for albeit the husband alieneth the Lands c. or extinguisheth the Rents c. Yet the woman shall be endowed But it is necessary that the marriage continue for if that be dissolved the Dower ceaseth Vbi nullum matrimonium ibi nulla dos but this is to be understood when the husband and wife are divorced à vinculo matrimonii as in case of precontract consanguinity affinity c. And not à mensa thoro onely as for Adultery In case of elopement shee shall lose her Dower but shee is not barred of her appeal Sponte virum mulier fugiens adultera facta dote sua careat nisi sponso sponte retracta Fol 32. b. Mirr ca. 5. Sec. 5. li. Intract 224. If a man seised of Lands in Fee took a wife and infeoffed eight persons Writ of Dower was brought against these eight persons and two confesse the action and the other six plead in Barre and descend to issue the demandant shal have judgment to receive the third part of two parts of the land in eight parts to be divided and after the issue being found for the demandant against the six the demandant shal have judgement to recover against them the third part of six parts of the same land in eight parts to be divided and so in some cases where the husband was sole seised the wife shall not be endowed in severalty by metes and bounds M. 2. and 3. Eliz. Dier 187. b. Nota. The endowment by metes and bounds according to the common right is more beneficiall to the wife then to be endowed against common right for there shee shall hold the land charged in respect of a charge made after her title of Dower It is necessary for the wife after the decease of her husband as soon as she can to demand Dower before good testimony for otherwise she may by her own default lose the value after the decease of her husband and her dammages for detaining of her dower Vide lib. Et Dotes suas habere non possunt sine placito The mean values and dammages are to be recovered against the Tenant in a Writ of Dower M. 8. and 9. Eliz. Rot. 904. conj Banco Vid. c. If the wise be past the age of 9 years at time of the the death of her husband albeit he were but 4 years old she shall be endowed quia minor non potest dotem promereri neque virum sustinere nec obstabit mulieri petenti minor aetas viri So that albeit concensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen Yet this inchoate or imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shal give Dower to the wife Fo. 33. a. Est uxor de facto de jure Fol. 33. b. Vid. c. Onely she that is a wise de jure in favorem vitae shall have an Appeale c. But a wife de facto shall have Dower if divorce be not had c. 50. E. 3. 15 10. E. 3. 35. Sect. 37. Rationabilis dos est cujuslibet mulieris de quocunque tenemento tertia pars omnium tium c. quae vir suus tenuit in dominico suo ut de feodo c.. By the custome of Gavelkind the wife shall be endowed of the moity so long as she keep her self sole and without child which she cannot wave and take her thirds for her life for consuetudo tollit communem legem Stat. de consuet Canciae c. And as customs may inlarge so it may abridge and restrain it to a fourth part c. Senentia signifieth widowhood fo â—3 b. in fine marg Sect. 39. Affidare est fidem dare sponsalia dicuntur futurarum nuptiarum repromissio conventio But this Dower ad ostium ecclesiae is ever after marriage
he hath a Deed or if it be by parol then an action upon his Case or an action of deceipt c. The proces whereby the vouchee is called is a Summon ad Warr. whereupon if the Sheriff return that the vouchee is summoned and he maketh default Mag. Cape ad valentiam is awarded when if he make default again then judgement is given against the Tenant and he over to have in value against the vouchee But if the Sheriff return that he hath nothing then after Writs of Alias and pluries a Writ of sequatur sub suo periculo shall be awarded c. and the demandant shall not have judgement to recover in value because the vouchee was never warned Vide Libr. Fo. 101. b. When the tenant being impleaded within a particular jurisdiction as in London c. Voucheth one to warr and prayes that he may be summoned in some other County out of the jurisdiction of that Court this is called a forrain voucher By the Civil Law every man is bound to warrant the thing that he selleth or conveyeth albeit there be no expresse warrant but the Common Law bindeth him not unlesse there be a warranty either in Deed or in Law for Caveat emptor c. There be three kindes of disclaimer i. e. in the Tenancy in the bloud and in the Seigniory F.N.B. 197. 151. b. In the case of Homage Auncestrel which is a special warranty in Law by the authority of Littleton the Lands generally that the Lord hath at the time of the voucher shall be liable to execution in value whether he hath them by discent or purchase But in the case of an expresse warranty the heir shall be charged but only for such Lands as he hath discent from the Auncestrel which created the warranty F.N.B. 152. And note the Lands of the vouchee shall be liable to the warranty that the vouchee hath at the time of the voucher for that the voucher is in lieu of an action and in a Warr. Cartae the Land which the defendant hath at the time of the Writ brought shall be liable to the warranty Fo. 102. a. Upon a judgement in debt the Plaintiff shall not have execution but only of that Land which the Defendant had at the time of the judgement for that the action was brought in respect of the person and not in respect of the Land Vide Lib. c. If a man give Lands in Fee with warranty and binde certain Lands specially to warranty the person of the Feoffor is hereby bound and not the land unlesse he hath it at the time of the voucher 32. E. 1. voucher 292. Sect. 146. En Chesc ' case lou le Seignior poit disclaymer c. Et de ceo poit disclaimer en Court de Record son Seigniory ē extinct le rerant tiendra del Seignior procheine Paramount c. Meliorem conditionem Ecclesiae suae facere potem praelatus deteriorem nequaquam and again Ecclesiae suae condici melior facere possunt sine consensu deteriorem non possunt sine consensu Expedit reipublicae ut sit finis litium vide fol. 103. a. If an action of Debt upon an Obligation against an Abbot the Abbot acknowledgeth the action and dieth the successor shall not avoid Execution though the Obligation was made without the assent of the Covent for he cannot falsifie the Recovery in an higher action Et res judicata pro veritate accipitur and this is but a Chattel 7 Reg. 2. tit Abbot 7. Sect. 147 and 148. If the tenant make a feoffment in fee upon condition and dieth his heir performeth the condition and re-entreth the Homage ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate 1. Mich. 14 15 El. Tenant que fist homage al pere ne ferre homage al fits fo 103. b. vide le except a ce rule Sect. 149 150 c. Fealty est incident a chesc ' atturnment del tenant grant le seigniory est grant None shall do homage but the tenant of the Land to the Lords of whom it is holden fol. 104. a. 8 Ed. 4. 27. b. * The recovery of the seigniory differeth from the alienation of the Lord which is his own act or the descent of the seigniory to the heir which is an act in law for that by the Recovery the state of him that received the homage is defeated for it shall not lie in the mouth of the tenant to falsifie the recovery which was against his Lord c. for that the tenant had nothing therein c. If a man had made a Lease for years to begin at Michaelmas reserved a rent and he had suffered a Common Recovery before Michaelmas the Recoverer should distrain for rent which the lessor before the recovery could not 28 H. 8. Dyer 41. fol. 104. b. The tenant ought to seek the Lord to do him homage c. for this service is personal c. but rent may be paid and received by other and therefore a tender of the rent upon the land is sufficient fo 105. a. CHAP. VIII Grand Sergeanty Sect. 153. GRand Sergeanty est lou home tient ses terres del Roy per les services que il doit faire en son proper person com de port le banner del Roy out sa lance c. Ceo tenure en ten per service de Chivalry mes le livery paiam al Roy pur reliese le value ouster les charges reprises des terres pur an S. 154 158. Magna Sergeanty i. e. Magna Servitium because it is greater and more worthy than Knight service for this is Revera servitium Regale and not Militare onely This Tenure hath seven special properties 1. To be holden of the King onely 2. It must be done when the tenant is able in proper person 3. This service is certain and particular 4. The Relief due c. differeth from Knights service 5. It is to be done within the Realm 6. It is subject to neither Aid pur faire fits Chivaler or file mariage And 7. it payeth no Escuage fo 105. b. 11 H. 4. 34. F.N. B. 83. There were divers Lords Marshals of England before the reign of R. 2. yet King R. 2. created Tho. Moubrey Duke of Norfolk and first Earl Marshal of England per nomen Comitis Marischalli Angliae in Rot. pat 20. R. 2. Thesaurus Regis rospicit Regem Regnum And Census Regis est anima reipub fol. 106. a. Dyer 4 El. 213. Where the Grand Sergeanty is to be done to the Royal person of the King or to execute one of those high and great Offices there his tenant cannot make a Deputy without the Kings license c. But he that holdeth to serve him in his War within the Realm or by Cornage may make a Deputy fol. 107. a. vide libr. c. qu. CHAP. IX Petit Sergeanty Sect. 159. PEtit Serjeanty est lou home tient c. del
the rent is behind the grantee hath election to bring a Writ of annuity * and charging the person only c. or to dâ—straine upon the Land and to make it reall * and charging the person onely to make it personall Put case that A. be seised of Lands in fee and he and B grant a rent charge to one in fee this prima facte is the grant of A and the confirming of B. but yet the grantee may have a VVrit of Annuity against both Two men grant an annuity of 20 l. per an to another although the persons be severall yet he shall have but one annuity But if the grant be Obligam nos utrumque nostr The grantee may have a VVrit of Annuity against B either of them but he shall have but one satisfaction 16 E. 2. tit annuity 47. If a rent charge be granted to a man and his heires he shall not have a Writ of annuity against the heire of the grantor albeit he hath Assets unlesse the grant be for him and his heires 2 H. 4. 13. Dyer 17 Eliz. 344. b. Vide c. Fo. 144. b. But Littl. is to be understood with some limitation for of a rent granted for owelty of partition a writ of annuity doth not ly because it is of the nature of the Land descended Also of such a rent as may be granted without Deed a Writ of annuity doth not lye though it be granted by Deed. 29 Ass p. 23. Note as to elections these diversities following 1 When nothing passeth to the Feoffee or Grantee before election c. There the election ought to be made in the life of the parties c. But when an estate or interest passes immediately to the Feoffee Donee or Gaantee there the Election may be made by them or by their heirs or executors Lib. 2. fo 36. c. Sir Row Haywards c. 2 When one and the same thing passeth c. and the Donee or grantee hath election in what manner or degree he will take this there the interest passeth immediately and the party his heires or executors may make election when they will 3 When election is given to severall persons there the first election made by any of the persons shall stand 4 In case an election be given of two severall things alwaies he which is the first agent and ought to doe the first Act shall have the. election 2 H. 7. 23. a. 5 When the granted is of things annuall and are to have continuance there the election remaineth to the grantor in case where the Law giveth to him election as well after the day as before otherwise it is when the things are to be performed unica vice 9 E. 4. 36. and â—3 E. 4. Grantee for life c. ought to bring his Writ of annuity in the disjunctive else the judgment c. shall determine his election for ever herein Fitzh is mistaken 6 The Feoffee by his act and wrong may lose his election and give the same to the Feoffer as if one infeoffe another of two acres to have and to hold the one for life and the other in tail and he before election make a Feoffment of both in this case the Feoffer shall have election to enter into which of them he will c. Note that this determination of the election of the grantee must be by action or sure in Court of Record If the grantee doth bring a Writ of annuity and at the returne thereof appear and account this is a determination of his election in Court or Record albeit he never proceedeth any further F.N.B. 152. a. 5 H. 7. 33. b So if the grantee bring an Ass for the rent and make his plaint he shall never after bring a Writ of annuity 10 E 4. 17. For an Anvowry in Court of Record which is in nature of an action is a determination of his election before any judgment given F. 145. b. It is a generall rule that the plaintiffe must have the property of the goods in him at the time of the taking 3 E. 3. 74. 6 H. 4. 2. But yet if the goods of a villain be distreined the Lord of the villain shall have a Replevy because the bringing of a Replevy amounts to a claim in Law and vests the property in â—he plaintiff But in that case if the goods of a villain be taken by a trns. the Lord shall have no Replevy because the villain had but a right 33 E. 3. Repl. 43. F.N. B. 69 F. Property ought to be tryed by Writ 30 E. 3. 22. A man cannot claim property by his Bayliffe or servant for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself for nemo punitur pro alieno delicto 5 E. 3 38. 11 H. 4. 4. fo 145. b. In a speciall case a man may have a Replevy of goods not distreined as if the Mesner put in his catrell in lieu of the cattel of the tenant peravaile that he is bound to acquite he shall have a Replevy c. 34 H. 6. 47. It is against the nature of a distresse taken c to be irreplevisable 31 E. 3. Gage DeliuÌ„ 5. And Bract. Lib 4. fo 233. a. and b. Saith Eâ—dem modo de via obstructa per breve quod justiciet propter coÌ„em utilitatem ne transeuntes ire diu impediantur quia hoc esset commune damnum in hoc vicecomes Justiciarii faciant sicut super detensionem averior contra vadium plegii propter commune utilit ne animalia diu inclusa pereant If the beasts of divers severall men be taken they cannot joyn in a Repleg but every one must have a severall Repl. and so in a Repleg it is a good plea to say that the property is to the plaintiff and to a stranger and where there be two plaintiffes that the property is to one of them 28 E. 3. 92. 2 E. 4. 23. Electio semel facta placitum cestatum oÌ„ patitur regressum Quod semel in electionibus placuit amplius displicere noÌ„ potest Note a diversity between the case * fo 65. a. aforesaid of the grant of the rent where he may take it either reall or personall and when a man may have election to have several remedies for a thing that is meerly personall or meerly reall 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 appear to it and after it Nonsuit yet may he have an action of debt afterwards because both actions charge the person So it is of an Ass and of a Writ of entry in the nature of an Ass c. 28 E. 3. 98. b. 27 E. 3. 89. b. Fo. 146. a. Sect. 220. By this Section it appeareth that when in a general grant the Law doth give two remedies that the grantor may provide that the
donques il est le fait d'ambideux c. The feoffee is no way made party to make it being made in the first person but onely by the clause of putting his Seal thereunto Vide Lib. c. Sect. 374. If A. by Deed indented between him and B. let lands to B. for life the remainder to C. in fee reserving a rent Tenant for life dyeth he in remainder entreth into the lands he shall be bound to pay the rent because he agreeth to have the lands by force of the Indenture 50 E. 22. 3 H. 6. 26. b. fo 231. a. An Indenture of lease is ingrossed between A. of the one part and D. and R. of the other part which purport a demise for years by A. to D. and R. A. sealeth and delivereth the Indenture to D. and D. seal the Counterpane to A. but R. did not seal and deliver it And by the same Indenture it is mentioned that D. and R. did grant to be bound to the Plaintiff in 20 l. in case that certain conditions comprised in the Indenture were not performed And for this 20 l. A. brought an action against D. onely and sued forth the Indenture The Defendant pleaded That it is proved by the Indenture that the demise by Indenture was made to D. and R. which R. is in full life and not named in the Writ Judgement of the Writ The Plaintiff replied That R. did never seal and deliver the Indenture and so his Writ was good against D. sole And there the Counsel of the Plaintiff took a diversity between a rent reserved which is parcel of the lease and the land charged therewith and a sum in gross as here the 20 l. is for as to the rent they agreed That by the agreement of R. to the lease he was bound to pay it but for the 20 l. that is a sum in gross and collateral to the lease and not annext to the land and groweth due onely by the Deed and therefore R. said he was not chargeable therewith for that he had not sealed and delivered the Deed. But in as much as he had agreed to the lease which was made by Indenture for the same sum in gross and for that R. was not named in the Writ it was adjudged that the Writ did abate 38 E. 3. 8. a. vide 44 E. 3. 11 12. Qui sentit commodum sentire debet onus transit terra cum enere Sect. 375. Le feoffer poit pledere condition en fait Poll pur ceó que il est privy al fait c. Felix qui potuit rerum cognoscere causas Et ratio melior semper praevalet Fol. 231. b. If the Deed remain in one Court it may be pleaded in another Court without shewing forth Quia lex non cogit ad impossibilia 40 Ass 34. l. 5. 75. b. Wymarks 12 H. 4. 8. F. N. B. 243. Sect. 376. When divers do a Trespass the same is joynt or several at the will of him to whom the wrong is done yet if he release to one of them all are discharged because his own Deed shall be taken most strong against himself but other wise it is in case of Appeal of Death c. As if two women be joyntly and severally bound in an Obligation if the Obligee release to one of them both are discharged and seeing the Trespassers are parties and privies in wrong the one shall not plead a Release to the other without shewing of it forth albeit the Deed appertain to the other 27 E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. 22 E. 4. 7. 13 H. 8. 10. 34 H. 8. estrange al fait 21. Sect. 377. Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem c. Ratio est radius divini luminis If a man hath an Obligation though he cannot grant the thing in action yet he may give or grant the Deed viz. the Parchment and Wax to another who may cancel and use the same at his pleasure Omnia praesumuntur legitimè facta donec probetur in contrarium Injuria non praesumitur fo 232. b. There be three kindes of unhappy men 1. Qui scit non docet Infelix cujus nulli sapientia prodest 2. Qui docet non vivit Infelix qui recta docet cum vivit inique 3. Qui nescit non interrogat Infelix qui pauca sapit spernitque doceri Inter cuncta leges percunctabere doctos Sect. 378. Estates que homes ont sur condition en ley sont tiels estates que ont un condition per la ley a eux annex comment que ne sont specifie en escript sicome home grant person fait a un auter le office del Parkership pur terme de son vie le estate que il ad en le office sur condition en ley sc que le Parker bien loialment gardian le Park c. issint est de offic ' de Seneschalship c. auterment bien lirroit al grantor a ses heires de luy ouste c. Quia in eo quo quis delinquit in eo de jure est puniendus 15 E. 4. 3. l. 5 E. 4. 26. 28 H. 8. Bendloes c. Lib. 6. fo 50. 95. 96 99. Mich. 33 E. 1. Coram Rege in Thesaur ' levesque de Durhams Case Forresta est tuta ferar'mansio non quarumlibet sed silvestrium non quibuslibet in locis sed certis ad hoc ideonis unde Foresta E. mutata in O. quasi feresta hoc est ferarum statio Ockam vide Bract. fo 231. 316. Non-user of it self without some special damage is no forfeiture of private Offices but Non-user of publike Officers which concern the administration of Justice or the Commonwealth is of it self a cause of forfeiture Pl. 379 380. 2 H. 7. 11. 30 H. 6. 32 c. There is a diversity between Officers that have no other profit but a collateral certain fee for there the grantor may discharge him of his service as to be a Baily Receiver Surveyor Auditor c. the exercise whereof is but labour and charge to him but he must have his Fee for the main Rule of Law is That no man can frustrate or derogate from his own grant to the prejudice of the grantee 18 E. 4. 8. 31 H. 8. Grants Br. 134. 34 H. 8. ibid. 93. 11 El. Dyer 285. But in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his office fee profit and all There is another diversity where the grantee besides his certain fee hath profits and avails by reason of his Office as the Office of Stewardship of Courts there the grantor cannot discharge him of his service or attendance for that should be to the prejudice of the grantee 22 H. 6. 10. 3. 6 E. 6. Dyer 72. Conditions in Law be of two natures i.e. by the Common Law and by Statute and those
in Curia nostra rite acta sunt debitae executioni demandari debent parum est latam esse sententiam nisi mandetur executioni Executio juris non habet injuriam Executio est fructus finis legis Juris effectus in executione coufistit Prosecutio legis est gravis vexatio executio legis coronat opus Boni judicis est judicium fine dilatione mendare executioni Favorabiliores sunt executiones aliis processibus quibuscunque When Littleton wrote by force of certain Acts of Parliament execution mtght be had of lands besides by force of the Elegit upon Statute Merchant Statute Staple and Recognizances taken in some Court of Record and since he wrote upon a Recognizance or Bond taken by force of the Statute 23. H. 8. before one of the Chief Justices or the Mayor of the Staple and Recorder of London out of Term which hath the effect of a Statute Staple 11. E. 1. Stat. de Acton Burnel 13. E. 1. de Mercat 27. E. 3. c. 22. 23. H. 8. cap. 6. 25. E. 3. 53. vide 32. H. 8. c. 5. a profitable Statute concerning executions of Lands Tenements c. Sed opus est interprete Vide fo 289. lib. 4. fo 66. Fulwoods Case If a man have a Judgement given against him for debt or damage or be bound in a Recognizance and dyeth his heir within age or having two daughters and the one within age no execution shall be sued of the Lands by Elegit during the minority albeit the heir is not specially bound but charged as Terre-tenant 15. E. 3. Age 95. 24. E. 3. 28. 29 Ass 37. 29. E. 3. 50. 47. Ass 4. 47. E. 3. 7. lib 3. f. 13. Brook Age 33. And so against an heir within age no execution shall be sued upon a Statute Merchant or Staple nor upon the obligation or recognizance upon the Statute 23. H. 8. for it is excepted in the processe against the heir Neither if the heir within age endow his mother shall execution be sued against her during his minority Temps E. 1. 402. 417. fo 290. a. Vide le statute 13. Eliz. cap. 5. made against fraudulent Feoffments gifts grants c. Judgements and Executions as well of lands and tenements as of goods and chattells to delay hinder or defraud Creditors and others of their just and lawfull Actions Suits Debts Damages Penalties Forfeitures Heriots Mortuaries and Releases Sed opus est c. Lib. 3. fo 80. c. Troyns Case l. 5. f 67. Gooches Case l. 6. f. 18. Pakemans Case l. 10. f. 56. the Chancellor of Oxfords Case See the Statute of 3. H. 7. c. 4. 50. E. 3. c. 6. M. 12. 13. Eliz Dyer 295. 18. Eliz. 451. Dyer Elegit is a judicial Writ and is given by the Statute either upon a recovery for debt or damages or upon a Recognizance in any Court The words of the writ be Elegit sibi liberari c. By this Writ the Sheriff shall deliver to the Plaintiff Omnia catalla debitoris exceptis bobus afris Carucae medietatem terrae And this must be done by an Enquest to be taken by the Sheriff W. 2. c. 18. W. 2. c. 18. Fieri fac is a Writ mentioned in the said Statute but is a Writ of Execution at the Common Law and is called a Fieri fac because the words of the Writ directed to the Sheriff be quod fieri fac de bonis catallis c. But note that a Capias ad satisfac is not mentioned in the said Statute because no Capias ad satisfac did lie at the Common Law upon a Judgement for debt c. or damages but only when the originall action was Qu. vi armis c. but later Statutes have given a Capias ad satisfac where debt c. or damages are recovered Lib. 3. fo 11. Sir William Herberts Case And note that these three Writs of Execution ought to be sued out within the year and the day after Judgment but if the Plaintiff sueth out any of them within the year he may continue the same after the year untill he hath execution And to none of these Writs of executions the Defendant can plead but if he hath any matter since the Judgment to discharge him of execution as a release of all executions c. he may have an Audita querela and relieve himself that way Sect. 505. Fol. 290. b. Scire fac is a judiciall Writ and properly lieth after the year and day after Judgment given But because the Defendant may thereupon plead this Scire fac is accounted in Law to be in nature of an action and therefore a release of all actions is a good bar of the same and so is a release of executions c. 19. H. 6. 3. 4. 18. E. 4. 7. This Writ was given in this case by the Statute of W. 2. c. 45. for at the Common Law if the Plaintiff had surceased to sue execution by fieri fac or levari fac a year and a day he had been driven to his new Originall 8. E. 3. 297 298. 18 E. 3. 33. l. 3. 12. Note that every Writ whereunto the Defendant may plead be it Originall or Judiciall is in Law an action Sect. 507. Fol. 291. a. Note a diversity between a release of all actions and a release of all suits If a man release all suits all execution is gone for no man can have execution without prayer and suit but the King only 26. H. 6. Exec. 4 l. 8. f. 153. Ed. Althams case Brook tit Rel. 87. So if the body of a man be taken in execution and the Plaintiff release all actions yet shall he remain in execution but if he release all debts or duties it is otherwise 26. H. 6. Exec. 7. If A. be accountable to B. and B. release him all his duties this is no bar in an action of account for what shall fall out upon the account is incertain but duties do extend to all things due that is certain and therefore dischargeth Judgments in personall actions and executions also 20. H. 6. per Paston Sect. 508 509 510 511. Fol. 291. b. 292. a. There be two kinds of Demands or Claims Pl. Com. Stiles Case 359 c. 1. Express or in deed as in all reall actions 2. Implyed or in Law as 1. In all actions personall 2. In actions of Appeals 3. Of execution 4. Of Title or right of Entry either by force of a condition or by any former Right 5. Of a rent service rent charge common of pasture c. verte fol. All which Littleton here and in the two next Sections following putteth but for example for by the release of all Demands other things also be released as rents seck all mixt actions a Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons and profit appender Conditions before they be broken or performed or after Annuities
Recognizance Statute merchant or of the Staple obligations contracts c. are release and discharged 38. H. 8. tit Release Br. 9. 6. H. 7. 7. 15. 20. Ass p. 5. 40. E. 3. 22. 49. E. 3. 7. b. 50. Ass p. 6. 13. R. 2. Avow 89. Althams case ante lit Sec. 748. Dy. 5. Eliz. 217. Quaerela à quaerendo this properly concerneth personal actions of mixt at the highest for the plaintiffe in them is called quaerens And yet by a release of all quarrells all actions reall and personall are released likewise all causes of action are released thereby albeit no action be then depending for the same 39. H. 6. 9. Sect. 512. 513. Fo. 292. b. A sum of money to be paid at a day to come is debitum in praesenti quamvis sit solvendum in futuro 11. H. 4. 41. 43. An Executor before probate may release an action and yet before probate he can have no action because the right of the action is in him T. 2. Ja. in C.B. inter Middleton Rinnot 18. H. 6. 23. b. Pl. Com. 277 278. Greysbrokes case per Weston If a man make a lease of land to another for yeares rendring to him at Mich 40. shillings and after before the day of paiment he release to the lessee all actions this is a void release 7. H. 7. 5. a. But the lessor before the day may acquite or release the rent But if a man be bound in a bond or by contract to another to pay one 100. pound c. at five severall dayes he shall not have an action of debt before the last day be past and so note a diversity between duties which touch the realty and meer personalty But if a man be bound in a Recognizance to pay 100. pound c. presently after the first day of paiment he shall have execution upon the Recognizance for that sum c. for that is in the nature of severall judgments and so it is of a covenant or promise and so note the diversities 45. E. 3. 8. 13. H. 4. Avow 240. 30. E. 3. 13. 10. E. 2. Execution 137. F.N.B. 267. 9. E. 3. 7. 5. Mar. action sur le case Br. 108. 3. Mar. Dy. 113. lib. 4. fo 94. Slades case lib. 5. fo 81. b. Fords case If a man hath an annuity for terme of years or for life or in fee and he before it be behind doth release all actions this shall not release the annuity for it is not meerly in action because it may be granted over 39 H. 6. 28. b. 5 E. 4. 45. 2 H. 4. 13. 12 R. 2. release 29. Sect. 514. Fo. 293. c. Mise so called because both parties have put themselves upon the meer right to be tried by grand Ass or by Battaile so as that which in all other actions is called an issue in a writ of right in that case is called a Mise But in a writ of right if a collaterall point is to be tried there it is called an issue 33 H. 8. c 13. 3. Ed. 6. ca. 36. And seeing the Mise is joyned upon the meer right albeit the verdict of the grand Ass be given upon another point yet judgement finall shall be given and so it is if the Tenant after the Mise joyned make default or confesse the action or if the demandant be non-suit c. 34 E. 3. Judgement 250. 13. H. 4 Judgement 245. M. Dy. 98. li. 5. fo 85. Penerius Case F.N.B. 5. 11. 13. If the petty Jury be attainted of a false Oath c. The judgement of the common Law is 1. Quod amittat liberam legem imperpetuum i. e. he shall never be received to be a witnesse or of any Jury 2. Quod foris faciat omnia bona Catalla sua 3. Quod terrae tenementa in manus domini Reg. capiantur 4. Quod uxores liberi extra domus suas ejicerentur 5. Quod domus suae prostrentur 6. Quod arbores sua extirpentur 7. quod prata sua arentur 8. quod corpora sua carceri mancipentur So odious in this case and the severity of this punishment is to this end ut paena ad pauâ—os metus ad omnes perveniat for there is misericordia puniens and there 's crudelitas parcens In no case where a contempt trespasse deceit or injury is supposed in the defendant he shall wage his Law because the Law will not trust him with an Oath to discharge himself in those cases only in some cases in debt detinue accompt the defendant is allowed by law to wage his Law 44 E. 3. 32. 18 E. 3. 4. 24 E. 3. 39. In an action of account against a Receivor upon a receipt of mony by the hand of another c. the defendant shall not wage his Law because the receipt is the ground of the action which lyeth not in privity betweene the plaintiffe and defendant but in the notice of a third person and such a receipt is traversable 15 E. 4. 16. 10 E. 4. 5. But in an action of debt upon a arbitrement or in an action of detinue by the baisement of another hand the defendant shall wage his Law because the debt and detinet is the ground of those actions and the contract of bailement though it be by another hand is but the conveiance and not traversable In an action of account against the Bayliffe of a Manor the defendant cannot wage his Law because it soundeth in the realty 33. H. 6. 24. 13 H 7. 3. a. 1 H. 6. 1. b. 11 H. 4. 54. 5. H. 5. 13. 9 E. 4. 1. 34. H. 8. ley gager Br. 97. In an action of debt brought by an Attorney for his fees the defendant shall not wage his Law because he is compellable to be his Attorney 21 H. 6. 4. 10 H. 6. 7. 28. H. 6. 4. 38 H. 6 6. Whensoever a man is charged as Executor or Administrator he shall not wage his Law for no man shall wage his Law of another mans deede but in case of a successor of an Abbot for that the house never dyeth 5 H. 6. 38. 1 H. 7. 25. CHAP. IX Of Confirmation Sect. 515. COnfirmatio omnes supplet defectus licet id quod actum est ab initio non valuit Brac. li. 2. 58. A confirmation is a conveiance of an estate or right in esse whereby a voidable estate is made sure and unavoidable or whereby a particular estate is increased Confirmatio est nulla ubi donum praecedens est invalidum ubi donatio nulla omnino nec valebit confirmatio Brac. li. 2. fo 27 28. Non valet confirmatio nisi ille qui confirmat sit in possessione rei vel juris unde fieri debet confir eodem modo nisi ille cui confir fit sit in possessione 10 E. 2. confir 14. 32. E. 3. 9. Pl. Com. Count de Leicesters case Quaelibet confirmatio aut est perficiens crescens aut diminuens lib. 9. fol. 142. Beaumonds case
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
6. 1. F.N.B. 107. For if an Ass be taken by default a quod ei deforceat doth lye and yet the party may have an Attaint for this is no enquest of Office but a Recognition by the Recognitors of an Ass who were returned the first day and not returned upon the awarding of the Ass by default 17 E. 2 Attaint 69. 21 H. 6. 56. 34. H. 6. 12. As to the 3. Ob. That the damages should be the principal because they were at the common Law that is an Argument that they are more ancient but not that they are more principal and treble dammages were not at the common Law for the common Law never giveth more dammage than the losse amounteth unto but are given by the Statute of Glocester but the place wasted is worthier being in the realty then dammages that be in the personalty Et omne majus dignum trahit ad se minus dignum quamvis minus dignum sit antiquius à digniori fieri debet denominatio and it is confessed That in an action of waste against Tenant for life or for years the place wasted is the principal because the statute of Glocester doth give the place wasted and treble dammages at one time for no prohibition or action of waste lay against them at the Common Law and in an action of waste 34 H. 6. 7. waste 50. And in an action of waste if the defendant confesse the action the plaintiffe may have judgement for the place wasted and release the damages which proveth that the damgas are not the principal for a man shall never release the principle and have judgement of the Accessory and an action of waste against Tenant for life is as reall as an action a-against Tenant in Dower and as to the case of 9 H. 5. It was answered that it was an action in the Tenuit which is only in the personalty and then the release of one doth barre both neither could summons and severance lye in that case but in an action of wast in the Tenet either against Tenant for life or yeers the release of the one doth not bar the other and in those two cases Summons and severance doth lye 6 E. 3 47. 48. E. 319. But when these 3. parts were resolved by the Court for the demandant then the counsel of the Tenant moved in arrest of judgement another point viz. That the judgement was given upon a nihil dicit which is alwayes after appearance and not per defaltam and there upon judgement was stayed But to return to Littleton Here he openeth a secret of Law for the cause of this Remitter is for that the Tenant for life in this case might have a quod ei deforceat And the Tenant for life at the common Law was remedilesse because he could not have a writ of right and consequently the feme Covert in this case could not be remitted by the taking of an estate to her husband and her because her right was remedilesse and could have no action But when an act of Parliament or a custome doth alter the reason c. thereby the Common Law it self is alterd if the Act of Parliament and custome be pursued for Alterata causa ratione legis alteratur lex cessante causa ratione leg cessat lex as in this case the statute of W. 2. giving remedy to this feme Tenant for life in this case it giveth her ability to be remitted c. 14 H. 7 11. per Fineux 27 H. 8. 4. 6. Aid 35 H. 6. gard 72. 29 E. 3. per wilbie custome l. 3. fo 86. Justice Windhams cases And Littleton warily puteth his case That the Recovery was had against the feme while she was sole for there was a time when it was a question whether a Recovery being had by defalt against the husband and wife the wife being Tenant for life the said statute gave a quod ei deforceat to the Husband and wife for that the statute gave it a gainst Tenant in Dower and Tenant for life c. and here the Husband is not Tenant for life but seised in the right of his wife and therefore out of the statute and of this opinion is one book * But Apices juris non sunt jura parum differunt quae re concordant * 4. E. 3. 38. 33. E. 3. Avowry 255. The contrary hath been adjudged and so that point is now in peace 5. E. 3. 4. 33. E. 3. 255. F.N.B. 156. a. 5. E. 3. 5. 2. E. 4. 13. F.N.B. 156. c. 33. H. 6. 46. 2. E. 4. 11. 19. E. 4. 2. And the like in case of Resceit for him in reversion But if the husband lose by default and the husband die the wife shall not have a quod ei deforceat for a cui in vita is given to her in that case by a former statute viz. W. 2. ca. 3. These things are worthy of due observation c. and Littleton in our books of another kinde of quod ei deforceat at the common Law upon a disseisin Fo. 356. a. When the reversion is devested the lessor cannot have an action of waste because the Writ is That the Lessee did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought And Nota That in an action of waste brought by the lessor against the lessee the Lessee in respect of the privity cannot plead generall * riens en le reversion But he must shew how and by what means the reversion is devested out of him and this holdeth between the lessor and lessee but if the grantee of a reversion bring an action of waste the lessee may plead generally That he hath nothing in the reversion 45. E. 3. 21. 44. E. 3. 34 35. F.N.B. 60. 23. H. 8. waste Br. 138. * 45. E. 3. 20. 8. H. 6. 13 30. H. 6. 7. And yet in some speciall cases an action of waste shall lie albeit the lessor had nothing in the reversion at the time of the waste done As if Tenant for life make a feoffment in Fee upon condition and waste is done and after the lessee reenter for the condition broken in this case the lessor shall have an action of waste And so if a Rishop make a lease for life or yeers and the Bishop die the lessee the Sea being void doth waste the successor shall have an action of waste So if Lessee for life be disseised and waste is done the lessee reenter an action of waste shall be maintained against the lessee and so in like cases Here note that albeit the action be false and feigned yet is the recovery so much respected in Law as it worketh a discontinuâ—â— But if Tenant for life suffer a common recovery or any other recovery by covin and consent between the Tenant for life and the recoverer this is a forfeiture of his estate and he in the reversion may enter c. 5. Ass p. 3.
as no man that is innocent or free from injury or wrong be by a literall construction punished or endammaged and therefore in this case albeit the Letter of the Statute is generally to give damage against him that is found Tenant and the case that Littleton here putteth D. being survivor is consequently found Tenant of the Land yet because he waived the estate and never agreed to the Feoffment nor took any profits he shall not be charged with the damages Sect. 686 687. fol. 360. b. Feint ou fained action est tiel action que comit que les perols de le breve sont voyers encore per certaine causes home nad cause ne title per la ley de recover per mesne le action Et faux action est lou les perolls de breve Sont faux Sect. 687. postea vide As discents do remit the heire which comes in the Per so succession doth remit the successor albeit he cometh in the post and so in other cases where the issue in taile of full age shall be remitted there in the like case shall the successor be remitted also and all meane charges and incumbrances Vide Sect. 150. Stat. Merton Sect. 688. Fol. 361. a. Si home suist faux action c. recover envers le Tenant en Taile per defalt Littleton addeth by default because if the recovery passed upon an issue tried by verdict he shall never falsifie in the point tried because an attaint might have been had against the Jurors and albeit all the Jurors be dead so as the attaint doe faile yet the issue in Taile shall not falsifie in the point tried untill it be lawfully avoided pro veritate accipitur As if the Tenant in Taile be impleaded in a Formedon and he traverse the gift and it tried against him and thereupon the demandant recover In this case the issue in Taile shall not falsifie in the point tried but he may falsifie the recovery by any other matter as the Tenant in Taile might have pleaded a collaterall warranty or a release as Littleton here putteth the case or to confesse and avoid the point tried and Littletons case holdeth not only in a Recovery by default whereof he speaketh but also upon a nihil dicit or confession or demurre 12 E. 4. 19. 13 E. 4. 3. 11 H. 4. 89. 7 H 4. 17. 14 H. 7. 10 11. 28. Ass 32. 52. 34. Ass 7. 10 H. 6. 5. 19 H. 6. 39. Br. faux Recovery 55. Sect. 689. Fo. 361. b. Vide Sect. 686 687. Here note That a Remitter may be had after a recovery upon a feint action by a disseisin and a discent as well as by a discent after a discontinuance by a Feoffment c. Sect. 690. Fol. 362. a. Here it appeareth that if a Judgement be given against a Tenant in Tail upon a faint or false action and Tenant in Tail dye before execution no execution can be sued against the issue in Tail 10. H. 6. 6. 12. E. 4. 20. 23. El. Dy. 276. l. 1. f. 106. Shelleys case Pl. Com. 55. vide les Autor supra cited c. But if in a common recovery Judgement be had against Tenant in Tail where he vouched and hath Judgement to recover over in value albeit Tenant in Taile dye before execution yet the recoveror shall execute the Judgement against the issue in Tail in respect of the intended recompence and for that it is the common assurance of the realm and is well warranted by our Books and was not invented by Justice Cook in the time of E. 4 as some hold by tradition but it may be that it was upon former authors and opinions of Judges discovered by him assented unto by the rest of the Judges Vide S. 709. 15. E. 3. Bre. 324 1. E. 4. 5. 5. E. 4. 2. 12. E. 4. 20. 23. El. Dy 376. l. 10. 37. 38. Mary Portingtons case If a recovery be had against Tenant for life without consent or covine though it be without Title and execution be had and Tenant for life dyeth the reversion or remainder is discontinued c. but if such a Recovery be had by covin between the Demandant and Tenant for life then he in the reversion or remainder may enter for forfeiture So it is if Tenant for life suffer a common Recovery at this day it is a forfeiture of his estate 5. Ass 3. 5. E. 3. enter cong 42. lib. 1. 15. 16. Sir William Pelhams case Since Littleton wrote there were two Statutes made for preservation of Remainders and Reversions expectant upon any estate for life the one in 32 H. 8. the other in 14. El. But 32 H 8. extendeth not to Recoveries when Tenant for life came in as vouchee c. and that Act is repealed by 14 El. and full remedy provided for preservation of the entry of them in reversion or remainder But the Statute of 14 El. extendâ—â—â— not to any recovery unlesse it be by agreement or Covin 32 H 8. ca. 31. 14 El. ca. 8. 2. If there be Tenant for life remainder in Taile the reversion or remainder in fee if tenant for life be impleaded by agreement and he vouching Tenant in Taile and he vouch over the common vouchee this shall barre the reversion or remainder in fee although he in reversion or remainder did never assent to the recovery because it was not the intent of the Act to extend to such a recovery in which a Tenant in Taile was vouched for he hath power by common Recovery if he were in possession to cut off all Reversion and Remainders L 3. fo 60 61. Lincolne Coll. Case So if Tenant for life had surrendred to him in Remainder in Taile he might have barred the remainders and reversions expectant upon his Estate 3. Where the proviso of the Act speaketh of an assent of Record by him in reversion or remainder it is to be understood that such assent must appear upon the same Recovery either upon a voucher Aid prier Receit or the like for it cannot appear of Record unlesse it be done in course of Law and not by any extraiudiciall entry or by Memorandum Sect. 691. Fol. 362. a. Here it appeareth That upon the plea of non tenure or of a disclaimer of the Tenant in a Formedon in the descending albeit the expresse judgement be that the Tenant shall goe without day yet in the judgement of Law the demandant may enter according to the title of his Writ and be seised in Tail notwithstanding the discontinuance 5. E. 4. 1. 36 H. 6. 29. 6 E. 3. 8. 4 E. 4 38. Bract. l. 5. f. 431. c. Brit. ca. 84. And in this case the demandant hath not two rights but hath onely one ancient right and is restored to the same by course of Law and so Remitter here in a large sence is taken for a recontinuation of the right Here note that in such a praecipe where the demandant is to recover damages if the Tenant plead
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
vie and yet the Lessee may assigne it to whom he will or if he hath already an Estate for another mans life without these words then it were good for him to assign his Estate to divers men and their heirs during the life of Ce ' que vie Lit. 167. Dier 253. If a Lease be made to A c. For terme of his owne life and the lives of B. and C the lessee hath but one freehold which hath this limitation during his own life and the lives of two others and here note a diversity between several estates in severall degrees and one Estate with several limitations for in the first an Estate for a mans owne life is higher then for another mans life but in the second it is not l. 5. Rosses case If Tenant for life infeoffe him in the remainder for life this is a surrender and no forfeiture and albeit an Estate for term of a mans own life be but one Freehold yet may severall Freeholds in certain Cases be derived out of the same Vide libr. A. and B. joyntenants A. for life and B. in Fee joyne in a Lease for life A. hath a reversion and shall joyn in an action of Waste Tenant for life and he in the reversion joyne in a Lease for life it is said that they shall joyn in an action of wast and that the lessee for life shall recover the place wasted and he in reversion dammages Fo. 42. a F.N.B. 59. F. 13. H. 7. 15. If a man make a Lease of a Mannor worth 20. l. per annum to another until 100 l. be paid in this case because the annuall profits of the Mannor are incertain he hath an estate for life if livery be made determinable upon the levying of a 100 l. Fol. 42. a. And yet in some Cases a man shall have an incertaine interest in Lands c. and yet neither an Estate for life for years or at will As if a man by his will in writing devise his lands to his executors for payment of debts and untill his debts be paid in this Case the executors have but a chattell and an incertain interest in the land untill his debts be paid for if they should have it for their lives then by their death their estate should cease and the debts unpaid but being a Chattell it shall go to the executors of executors c. And so note a diversity between a devise and a conveiance at the common Law in his life time l. 8. Mannings The Law which abhorreth injury and wrong will never so construe any Act c. as it shall work a wrong whensoever the words of a Deed or of the parties without Deed may have a double intendment and the one standeth with Law and Right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken Fo. 42. b. The Law more respecteth a lesser estate by right than a larger estate by wrong Tenant in taile made a Lease to another for terme of life generally and after released to the Lessâ—e and his heires albeit between the Tenant in Taile and him a Fee simple passed yet after the death of the Lessor the entry of the issue in Tail was lawfull which could not be if it had been a Lease for the life of the Lessee foâ— then by the release it had been a discontinuance executed Sect. 57. Tenant per vie ad franktenement null auter de meind Estate Many that have capacity to take have no ability to infeoffe c. As Aliens borne Tratiors Felons c. Ideots madmen a feme covert an infant a man by dures c. For the feoffement c. of these may be avoided Brit. fo 88. In judgment of Law the King as King cannot be said to be a minor for when the Royall body politique of the King doth meet with the naturall capacity in one person the whole body shall have the quality of the Royall politique c. omne majus trabit ad se quod est minus A Licence for alienation grew by the Statute of the 20. H. 3. 20. Ass pl. 17. by Skipwith vide lib. By the Statute 1 E. 3. ca. 12. 34. Ed. 3. cap. 15. Although the Kings Tenant in chiefe c. do alien all or any part without Licence yet is there not any forfeiture of the same but a reasonable fine therefore to be paid The Statute of 18. E. 1. De quia Emptor c. hath in effect as to the common persons taken away the Statute of Mag. Charta cap. 32. for thereby it is provided Quod liceat unicuique libero homini trans suas c. Seu partem inde ad voluntatem suam vendere ita quod Feoffatus teneat c. de capitali domino Note first that this word liceat proveth that the Tenant could not or at least was in danger to alien parcell of his Tenancy c. upon the said Act of Mag. Charta 2. That upon the Feoffment of the whole the Tenant shall hold of the chief Lord. 3. That the Tenant might enfeoffe one part to hold pro particula of the chief Lord. But this Act the King being not named doth not take away the Kings Fine due to him by the Statute of Mag. Charta Tenant by Statute Merch. Statute Staple or Elegit are said to hold land ut liberum Tenementum untill their debt be paid and yet they have no Freehold but a Chattel c. But ut is similitudinary because they shall by the Statutes have an Ass as the Tenant of the Freehold shall have and yet nullum simile est idem 28. Ass p. 7. w. 2. c. 18. St. Merc. 13. E. 1. 27. E. 3. c. 9. 23. H. 8. c. 6. F.N.B. 178. CHAP. VII Tenant for Term of yeers Sect. 58. THere be three kinds of persons who at this day may make leases for three lives or XXI yeers c. which could not so doe when Littleton wrote viz. 1. Any person seised of an estate tail in his own right 2. Any person seised of an estate in Fee simple in the right of his Church 3. Any husband and wife seised of any estate of inheritance in Fee simple or Fee taile in the right of his wife or joyntly with his wife before the coverture or after And these are made good by the Statute of 32. H. 8. But the Statute of 1. Eliz. 13. El. 18. El. and 1. Reg. Jac. are disabling Vide libr. c. l. 5. fo 6. If two severall Tenants of severall Lands joyne in a lease for years by Deed indenture these be severall leases and severall confirmations of each of them from whom no interest passeth and work not by way of conclusion in any sort because severall interests passe from them Fol. 45. a. Vide quaere Whensoever any interest passeth from the party there can be no estoppell against him H. 44. El. R. 1459. ca. 8. Leases for lives or years are of
of the Corn altereth not the case for the regresse is a continuation of the Freehold in him in judgment of law from the beginning If the husband and wife make a lease at will of the wifes land reserving a rent and the husband dye yet the lease continueth So if a lease be made by two to two others at will and the one of the lessors or of the lessees dye the lease at will is not determined c. l. 5. 10. Hensteads case Dier 269. b. * Quando lex aliquid alicui concedit concedere videtur id fine quo res ipsa esse non pâ—test 14. H. 8. 2. If the lessee at will be disturbed of his free entry egresse and regress to carry away his Corn c. he shall have his action upon his case and recover his damages for whensoever the law giveth any thing it giveth also a remedy for the same fo 56. a. Any Inhabitant of Southwark having by custom a watring place for Cattel which being stopped may have an action c. Sect. 69. and Sect. 70 71 72. Messuagium containeth Buildings Curtelage Orchards and Garden A Praecipe lieth not de Domo but de Messuagio Nothing that is contrary to reason is consonant to Law Si home fait un ft. de feoffment de terre c. a un auter deliver a luy le fait mes nemy livery de seisin en ceo case le feoffee enter tener a volunt c. The lessor hath no remedy at all against tenant at will for permissive Waste fo 57. a. If tenant at will grant over his estate and the grantee enter he is a desseisor and the lessor may have an action of trespasse against him though the grant is void for the will is determined A Trespass or Transgression passeth that which is right Transgressio est cum modus non servatur nec mensura debet enim quilibet in suo facto modum habere mensuram Nota in the lowest offences there are no Accessaries but all are Principals as in Riots Routs Forcible entries c. and so in the highest offence which is Crimen laesa Majestatis there be no Accessaries but in Felonies there be Accessaries both before and after Si le lessor sur tiel leas a volunt reserve a luy un annuall rent il poit distr per se rent arere ou aver de ceo un action de debt Note he may distrain c. and yet it is no rent service for no Fealty belongeth thereunto but a rent distrainable of common right fo 57. b. Tenant at will is always by right and tenant at sufferance entreth by a lawfull lease and holdeth over by wrong Sic vide diversitatem Note a diversity between particular estates made by the terretenant and particular estates created by act in law as if a Guardian after the full age of the heir continueth in possession he is not tenant at sufferance but an Abator against whom an Assize of Mortdanc doth lie c. F.N.B. 196. CHHP. IX Tenant by Copy Sect. 73. TEnantes per Copie de Court-Roll out use dauÌ„ terres c. a eux a lour heirs in fee fee taile ou a terme de vie c. a volunt le sur solonque le custome del Manor Eundum veteres aut ex scripto qui Bockland aut fine scripto qui Folkland dicebatur possidebant Curia Court is a place where Justice is judicially administred and is derived à cura quia in curiis publicis curas gerebant Court Baron so called of the Baron who is Lord of the Manor fo 58. a. or for that it hath relation to the Freeholders As there may be a Court Baron of Freeholders onely without Copiholders and then is the Steward the Register So there may be a customary Court of Copiholders only c. then is the Lord or his Steward the Judge And when the Court Baron is of this double nature the Court Roll containeth as well matters appertaining to the customary Court as to the Court Baron Manerium dicitur a manendo secundum excellentiam sedes magna fixa stabilis Et sciendum est quod Manerium poterit esse per se ex pluribus edificiis coadjuvatum five villis Hamletis adjacentibus Poterit etiam esse Manerium per se cum pluribus villis cum pluribus Hamletis adjacentibus quorum nullum dici poterit Manner perse sed villae suae Hamlettae poterit etiam esse per se Manerium Capitale plura continere sub se Maneria non Capitalia plures villas plures Hamlettas quasi sub uno Capite aut dominio suo Bract. l. 4. fo 212. Tenant for years Tenant by Statute Merch Staple Elegit Gardian in chivalry c. who are not properly seised but possessed are domini pro tempore not only to make admittance but to grant voluntary Copies of ancient Copihold Lands which come into their hands Fo. 58. b. And in some special Case an estate may be granted by Copy by one that is not dominus pro tempore c. As if the Lord of a Manor by his will in writing deviseth that his executor shall gâ—ant the Customary Tenements of the Mannor according to the custome of the Mannor for the payment of his debts and dieth the executor having nothing in the Mannor may make grants c. Consuetudo properly signifieth a custome as here c. But legally it signifieth also Tolles Murage Pontage c. Sect. 74. and 75. Et tiel Tenant ne poit alien sa terre per fait c. Fo. 59 a. But when a man hath but a right to a Copihold he may release it by Deed or by Copie to one that is admitted Tenant de facto l. 4. 24. b. Kite Queinton For is facere i.e. extra legem seu consuetudinem facere to do a thing against or without Law or Custome and that legally is called a forfeiture Si tiel tenant voit alien sa terre a un aut il covient c. de surrender les tenements en asc ' Court c. en le main le signior al use celuy que at avera le state Ils nont auter evidence concernant lour tenements forsque le Copies des Rolles de Court. Of Fines due to the Lord by the Copyholder some be by the change or alteration of the Lord and some by the change of the Tenant the change of the Lord ought to be by the Act of God otherwise no Fine can be due but by the change of the Tenant either by the act of God or by the Act of the party a Fine may be due Of Fines taken of Copyholders some be certain by custome and some be incertain but that Fine though it be incertus yet must it be rationabilis Fo. 59. b. Vide c. The Lord of a Manor is described by Fleta as he ought to be in these words Fleta lib. 2. ca.
succedunt res humanae ubi negliguntur divinae Fol. 64. b. Sex horas somno todidem des legibus aequis Quatuor orabis des Epulisque duas Quod superest ultro sacris largire camenis Sect. 86. and 87. Nota in old Books and Records the Homage which a Bishop Abbot or other man of Religion doth is called fealty for that it wanteth these words cieo deveign vostre home But yet in judgement of Law it is Homage because he saith I do to you homage c. and so of a Woman Argumentum ab inconvenienti plurimum valet in lege Non solum quod licet sed quid est conveniens est considerandum nihil quod est inconveniens ē licitum Sect. 89. and 90. Nul fer homage mes tiel que ad estate in fee simple ou en fee taile en son drt. dem ou en droit dun auter Si un home ad severall tenancies queux il tient de severall seignieurs per homage donques quant il ft. homage a un des seignieurs il dirra en le fine de son homage fait salve la foy que ido doy a nature seignieur le Roy a mes auters seignieurs Non Corporation aggregate of many persons capable shall do homage because that homage must be done in person and a Corporation c. cannot appear in person But an Abbot in nature of a sole Corporation shall do homage because the Covent are all dead persons in law Vide c. fo 66. b. * lib. 4. 11. l. 7. 10. Contra negantem principia non est disputandum A Parson or Vicar of a Church that hath a qualified fee and yet to many intents upon the matter but an estate for life can neither receive homage nor do homage as a Bishop c. that a fee absolute may Tenant per le Curtesie c. ne ferre homage c. per ceo que il adonque nad estate forsque per terme de vie Et Nota. He that cannot receive homage in respect of the weakness of his estate in the Seigniory shall not do homage if he hath a like estate in the tenancy fo 67. a. vide lib. c. Primogenita filia tantum faciet homagium Domino pro se omnibus sororibus suis Quia omnes sorores sunt quasi unus haeres de una haereditate 14 H. 3. tit Praerog 5. Every tenant in common shall do severall services If homage be parcell of a Tenure it is a presumption that the Tenure is by Knights service unless the contrary be proved CHAP. II. Fealty Sect. 91 92 93 and 94. TEnant for years shall do Fealty Littl. fo 29. nu 132. Sciendum est quod non per procuratores nec per literas fieri poterit homagium sed in propria persona tam domini quam tenentis capi debet fieri Bract. lib. 2. fo 8. Mes le Seneschal del Court le Signieur ou Baylife poit purender fealtie pur le Seignieur Item tenant a terme de vie ferre fealty encore il ne ferre homage Sic vide diversitatem The tenant must do fealty in person because he must be sworn unto it and no man can swear by the Common Law by Attorney or Proctor fo 68. 8. Whosoever is above the age of 12 years is to take the Oath of Allegiance and he is to be sworn in the Tourne unless he be within some Leet and then in the Leet CHAP. III. Escuage Sect. 94. SCutagium id est servitium scuti Nomina si nescis perit cognitio rerum Bracton saith Item scutagium dicitur quòd talis praestatio pertinet at scutum quòd assumitur servitium militare fol. 68. b. Every Tenure by Escuage is a Tenure by Knights service Sed non è converso But note here the wisdom of Antiquity Mavult enim princeps domesticos quam stipendiarios bellicis apponere casibus lib. rub Quant le Roy fait royall voiage en escoce c. donque il que tient per un fee de Chivaler c. covient erre oue le Roy per 40. jours bien convenablement array pur le guerre sic de caeteris c. In the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi it appeareth That Comitatus to wit an Earldom constat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas Baronia constat ex 13. feodis 3. parte unius feodi militis secundum comput ' praedictam unum feodum militis constat ex terris ad valentiam 20. l. fol. 79. a. A Marquisdome consists of the Revenue of two Baronies which amount to 800 Marks And a Dukedom consists of the Revenues of two Earldoms viz. 800 pounds per annum fol. 79. b. Note That the relief of a Knight and all above him which be Noble is the fourth part of their yearly revenue as of a Knight 5l which is the fourth part of 20l c. Edward the eldest Son of King Edw. 3. called The Black Prince was the first Duke in England after the Conquest and Robert Vere Earl of Oxford in the reign of R. 2. was the first Marquis Et Dominus de Bellomonte was the first Viscount created by King H. 6. A voyage Royal is not only when the King himself goeth to War as Littleton here saith but also when his Lieutenant or Deputy of his Lieutenant goeth He that holdeth by Castle gard or Cornage holdeth by Knights service and yet he shall pay no Escuage because he holdeth not to go with the King to War Sir Richard Rocgesly Knight did hold Lands at Seaton by Seargeanty to be vantrarius Regis the Kings fore Footman when the King went to Gascoigne donec per usus fuit pari solutarum precii 4d. that is untill he had worn out a pair of shooes of the price of four pence And this service being permitted to be performed when the King went to Gascoigne to make war is Knights service See an ancient Record Rot. de finibus Termino Mich. 11. Edw. 2. If the tenant peravaile goeth with the King it excuseth all the means c. For one tenancy shall pay but one Escuage F.N.B. 83 84. Sect. 96. Albeit the Tenure is That he which holdeth by a whole Knights fee ought to be with the King c. to do a corporal service yet he may finde another able man to do it for him But it may be objected That in some particular cases the tenant might finde a man but not when he himself is able without all excuse or impediment To this it is answered That sapiens incipit a fine And the end of this service is for the defence of the Realm and so it be done by an able and sufficient man the end is effected 2. Seeing there are so many just excuses of the tenant it were dangerous and tending to the hindrance of the service if
these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt 3. Both Littleton and the book in 7 Ed. 3. giveth the tenant power without any excuse to be shewed to finde an able and sufficient man and oftentimes Jura publica ex privato promiscue decidi non debeut Praepostera lectio praepropera praxis are enemies to learning fol. 70. b. Cessante ratione legis cessat ipsa lex If Mayor and Commonalty convey over their Lands holden by Knights service to any natural man and his heirs now Homage-ward c. belong to the Tenure c. Note That every Bishop in England hath a Barony and that Barony is holden of the King in Capite and yet the King can neither have Wardship or relief Nemo militans Deo implicetur ' secularibus negotiis Ferdwit in Saxon ' significat quietanciam murdri in exercitu Worscet signifieth Liberum esse de oneribus armorum fo 71. a. Fleta lib. 1. cap. 42. Miles haec tria curare debeat corpus ut validissimum perniciosissimum habeat arma apta ad subita imperia caetera Deo Imperatori curae esse Livius Sapiens non semper ita uno gradu sed una via non se mutat sed aptat Qui secundos optat eventus dimicet arte non casu In omni conflictu non tam prodest multitudo quam virtus Vegetius Est optimi ducis scire vincere cedere prudenter tempori Multum potest in rebus humanis occasio plurimum in bellicis Polibius Quid tam necessarium est quam tenere semper arma quibus tectus esse possis Vegetius Concerning the point in Law demurred in judgement in the 7 Ed. 3. here mentioned by Littleton The Law accounteth the beginning of the 40 daies after the King entreth into the Forrein Nation for then the Warre beginneth c. Vide c. The knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his own understanding And as the Bucket in the depth is easily drawn to the uppermost part of the water for nullum elementum in suo proprio loco est grave but take it from the water it cannot be drawn up but with great difficulty for albeit the beginnings of this study seem difficult yet when the Professor of the Law can dive into the depth it is delightfull easie and without any heavy burthen so long as he keep himself in his own proper element Justiciari de banco c. Communia placita non sequantur Cur ' nostram sed teneantur in aliquo certo loco Mag. Charta He which demurreth in law Moratur or Demoratur in lege Matters in Law are decided by the Judges and matters in fact by Juries Now as there is no issue upon the fact but when it is joined between the parties so there is no Demurre in law but when it is joyned c Vide quaere fol. 71. b. In some cases a man shall alledge special matter and conclude with a Demurre as in an action of Trespass brought by I. S. for the taking of his Horse the defendant pleads that he himself was possessed of the Horse untill he was by one I.S. dispossessed who gave him to the Plaintiff c. the Plaintiff saith that I. S. named in the Barre and I.S. the Plaintiffe were all one person and not diverse and to the Plea pleaded by the Defendant in the manner he demurres in law and the Court did hold the Plea and Demurrer good for without the matter alledged he could not demurre Now as there may be a demurre upon Counts and Pleas so there may be of Aid Prior Voucher Resceit Waging of Law c. There is a generall Demurre that is shewing no cause and a speciall Demurre which sheweth the cause of his Demurrer Also there is a Demurre upon pleading c. and there is also a Demurre upon Evidence Vide Lib. fol. 72. a. Sect. 97 98. and 99. No escuage was assessed by Parliament since the eighth year of the reign of Edw. 2. fol. 72. b. Quemadmodum incertitudo scutagii facit servitium militare ita certitudo scutagii facit socagium Si home parle generalement descuage il ser entend ' c. descuage noncertaine que est service de Chivaler tiel escuage trait a luy homage fealty car fealty est incident a chesc ' maner de service forsque a le tenant in Frankalmoigne Verba equivoca in dubio posita intelliguntur in digniori potentiori sensu Tenure in capite ex vitermini is a Tenure in Gross and it may be holden of a subject but being spoken generally it is secundum excellentiam intended of the King for he is caput reipublicae fol. 73. a. Escuage can be assessed only by Parliament and not by the King Sect. 101. Les seignieurs poient distrein per Escuage assess per Parlament ou ils en asc ' cases purront au breve le roy direct ' as viconts de in les counties c. de levier tiel Escuage per eux Vide de Regist Writs are the foundations whereupon the whole Law doth depend Fitzherbert in his Preface to his Nat. Br. Breve sicut regula juris rem quae est breviter enarrat non tamen ita breve esse debeat quin rationem vim intentionis contineat Bract. lib. 5. fo 413 c. Of Writs some be Original and some be Judicial Also of Originals Quaedam sunt formata sub suis casibus de cursu de communi consilio totius regni concessa approbata quae quidem nullatenus mutari poterint absque consensu voluntate eorum quaedam sunt Magistralia saepe variantur secundum varietatem casuum factorum quaerelarium As Actions upon the Case which vary c. Item brevium originalium alia sunt realia alia personalia alia mixta Item c. alia sunt patentia sive aperta alia clausa Certain it is that the Original Writs are so artificially and briefly compiled as there is nothing redundant or wanting in them of which one said That it was impossile to comprehend so much matter so perspicuously in fewer words Brevia judicialia saepius variantur secundum varietatem placitorum proponentis respondentis Sect. 102. Mareschallus exercitus in Saxon Marischalk i.e. equitum Magister Marshal is either derived of Mars or of Marc an horse which signifieth in the Saxon tongue a Master or Governor I reade of six kindes of Certificates allowed for Tryals by the Common Law The first whereof Littleton speaketh in time of War out of the Realm by the Marshal c. 2. In time of Peace out of the Realm As if it be alleaged in avoidance of an Outlawry That the Defendant was in Prison at Bourdeaux c. it shall by tryed by the Certificate of the Mayor c. 2
the Outlawry then may the Outlawry be plead in Bar of the action as in an action of debt detinue c. But in reall actions or in personall where damages be incertain as in trns. of Battery of goods of breaking his cloâ—e c. and are not forfeited by the outlawry their outlawry must be pleaded in disability of the person 9 Eliz. Dyer 262. 7 H. 4. 4. b. l. 5. 109. Foxleyes C. In the reign of King Alfred and after the Conquest no man could have been outlawed but for Felony the punishment whereof was death Mir. c. 1. S. 3. Vtlagatus waiviata capita gerunt Lupina quae ab omnibus impunè poterunt amputari merito enim sine lege perire debent qui secundum legem vivere recusant Fleta lib. 1. cap. 27. But now the Law is changed for avoyding of inhumanity c. Vide 2 Ass Pl. 3. 2 E. 3. tit Coron 148. In Bractons time and somewhat before process of outlawry was ordained to ly in all actions that were qu. vi armis which Bracton calleth delicta for there the King shall have a fine But since by divers Statutes Process of outlawry doth ly in Account Debt Deâ—inue Annuity Covenant Action sur le Case Action sur le Statute De 5 R. 2. and in divers other common or civill actions Bract. lib. 5. fo 421. 8 H. 6. 9. b. 40 E. 3. 5 c. 35 H. 6. 6. 40 E. 3. 2. Sect. 198. If an alien had issue in English before his denization that issue is not inheritable to his Father but if his Father be naturaliz'd by Parliament such issue shall inherit Ligeantia est vinculum fidei ligeantia eÌ„ legis essentia Et est duplex 1 Perpetua ista ligeantia est aut nata aut data 2 Temporanea quae eÌ„ aut localis aut limitata sc denizatio pro vita c. Vide libr fo 129. a. A man may be born out of the realm of England yet within the legeance as in Ireland c. An alien that is in league shall maintain personall action for an alien may trade c. but not reall or mixt actions An alien that is condemned in an information shall have a Writ of error to relieve himself sic c. If an alien be made a Prior or Abbot the Plea of Alien nee shall not disable him to bring any reall or mixt action concerning his house because he is in auter droit 29 E. 3. Br. Denizen 15. Sic vide diversitat In Littletons Case the tenant or defendant shall neither plead alien nee to the Writ or to the action but in disability of the person as in villenage or outlawry and Littleton is to be intended of an Alien in league for if he be an Alien enemy the defendant may conclude to the action Liure de entries Alien 1. Sect. 199. The judgment in a Praemunire is that the defendant shall be from thenceforth out of the Kings protection his lands and tenements goods and chattels forfeited to the King and that his body shall remain in prison at the Kings pleasure And a man might doe to him as to the Kings enemy and a man may lawfully kill an enemy 24 H. 8. Brook Coron 196. But by the Statute 5 Eliz. ca. 1. It is not lawful for any person tn slay any person attaint in praemunire c. Tenant in taile attaint in a praemunire shall forfeit the Land but during his life Vide lestat 16 R. 2. c. 5. There be three things whereby every subject is protect viz. Rex lex rescripta regis The law is the rule but it is mute The King judgeth by his Judges and they are lex loquens The process and the execution which is the life of the Law consisteth in the Kings Writs Rex tuetur legem lex tuetur jus A man attainted of Treason or Felony is disabled to bring any action for he is extra legem positus and accounted in Law civiliter motuus 4 E. 4. 8. There is a generall protection of the King and this extends to all the Kings loyall subjects c. and there is a particular protect by Writ c. And this is of two sorts one to give a man immunity from actions or sutes The second for the safety of his person servants and goods lands c. from unlawfull molestation or wrong The first is of right and by law the second are all of grace saving one for the generall Protection implieth as much Of the first sort some are cum clausula volumus and of these protections There be four kinds viz. 1 Quia profecturus 2 Quia moraturus 3 Quia indebitatus nobis existit of the matter 4 When any sent into the Kings service in war is imprisoned beyond Sea The former two are for staying of suits and actions in generall and for these nine things are to be observed 1 The cause of granting the protect must be expressed c. and it is of two natures the one concerns service of war as the Kings Souldier c. The other wisdome and counsell as the Kings Ambassador pro negotiis regni both these being for the publique good of the Realme private mens actions and suits must be suspended for a convenient time for jura publica anteferenda privatis jura publica ex privatis promiscue decidi non debent A man in execution in salva custodìa shall not be delivered by a protection 5 Mar. 162 Dyer 2 These protections are not allowable onely for men of full age but for men within age and for women as necessary attendants upon the Camp and that in three Cases quia lotrix seu nutrix seu obstetrix 19 H. 6. 51. Vide libr. qu. fo 130. a F. N.B. 28. l. Corpor. aggreg of many are not capable of protect profecturae or moraturae for the Corpor. it is invisible In every action or plea reall or mixt against two c. a protection cast for the one doth put the plea without day for all as in debt c. 9 E. 3. Prot. 80 81. 3 A protect profecturae must not be purchased pendente plito unless it be in a voyage royall But otherwise it is of a protect Moraturae 3 H. 6. prot 2. A protection cannot be cast but when the party hath a day in Court and when if he made default it should save his default c. 4. 6 H. 22. If a man hath a protection and notwithstanding plead a plea yet at another day of continuance after that a protection may be cast so at a day after an exigent but after appearance he cannot cast a protection in that terme untill a new continuance be taken * 22. F. 3. 4. And no protect either Profect or Morat shall endure longer than a year and a day next after the reste or date of it 39. H. 6. 39. * 4. The protection must be to some certaine place out of the Realm of England Lib.
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
of Weyland being abjured the Realm for Felony in the year before Margery de Mose his wife and Richard son of the said Tho. exhibited their Petition of Right into the Parliament Anno 19. E. 1. for the Manor of Sobbir wherein her husband had but an Estate for life joyntly with her and the inheritance in Richard the son by fine The Earl of Glocester Lord of the fee who claiming the land by Escheat had taken the possession thereof alleged Quod non fuit jure consonum quod aliqua foemina intraret in aliquas terras vivente marito suo c. Tamen Coram Consilio Domini R. vocat ' Thesaurar ' Baron Justiciariis de utroque Banco concordat ' est quod praedicta Margeria rehabeat talem seiseinam c. secundum perportum finis praedict ' c. Vide lib. fo 33. a. If the husband had aliened the land of his wife and after had been abjured the Realm for Felony the wife shall have a Cui in vita in his life time 31 E. 1. Cui in vita 31. 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 And such a Queen hath many Prerogatives as she shall find no pledges for such is her dignity as she shall not be amerced 18 E. 3. 1 2. The Queen shall pay no Toll N. B. 235. The Writ of Right shall not be directed to the Queen no more than to the King but to her Bayliff F.N.B. 1. F. But a Protection shall be allowed against the Queen but not against the King neither shall the Queen be sued by Petition but by a Praecipe 21 E. 3. 13. 11 H. 4. 76. b. If A. be bound to the Abbot of D.A. is professed a Monk in the same Abbey and after is made Abbot thereof he shall have an action of Debt against his own Executors 4 E. 4. 25. 6 E. 4. 4. 22 H. 6. 5. 45 E. 3. 10. a. 5 H. 7. 25. b. Sect. 201. Excommunicato interdicitur omnis actus legitimus ita quod agere non potest nec aliquem convenire licet ipse ab aliis possit conveniri Excommunicatio nihil aliud est quam Censura à Canone vel judice ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque hominum Bract. lib. 5. fo 415. 426 c. F.N.B. 64. F. None can certifie Excommengment but onely the Bishop or one that hath Ordinary Jurisdiction and is immediate Officer to the Kings Courts As the Archdeacon of R. or the Dean and Chapter in time of vacation The Common Law disallows all acts done in disability of any Subject of this Realm by any forren power as things not authentique wherof the Judges should give allowance 16 E. 3. Sxcom 4. N.B. 64. For the manner of Election of Bishops vide le statute of 25 H. 8. None but the Kings Courts of Record as the Kings Bench c. Justices of Gaol-delivery c. can write to the Bishop to certifie Bastardy Mulierty loyalty of Matrimony c. for it is a rule in Law That none but the King can write to the Bishop to certifie Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bract. l. 3. 106. Jour is the day of appearance of the parties or continuance of the plea. And in all Summons upon the Original there be 15 daies after the Summons before the appearance But if the Original be returned tarde and Sommons alias goeth forth there be nine Returns between the Teste and the Return 8 H. 6. 20. 8 Eliz. Dyer 251. And before the Statute of Articuli super Chart. cap. 15. 28 E. 1. in all Summons and Attachments in plea of Lund there shall be contained the term of 15 daies But by consent other than common dayes may be taken 11 H. 6. 23 The use of the Kings Bench at this day is That if the offence be committed in another county than where the Bench sits and the Indictment be removed by Certiorari there must be 15 daies between every Process and the Return thereof c. Lib. 9. 118 Zanchers Case fo 134. b. vide c. There is dies specialis as in an Assize in the Kings Bench or Common Pleas the Attachment need not be 15 daies before the appearance F. N.B 177. cap. The day of Nisi prius and the day in bank is all one day as to pleading but not to other purposes 21 H. 6. 10. 20. vide qu. fo 135. a. Resummons or Reattachments are Writs that the Demandant or Plaintiff after he hath obtained the Letters of his Absolution may sue out to bring the Tenant or Defendant again into Court to have day to answer unto him and these Writs do lie in all cases when the plea is discontinued or put without day either in this case or in case where the Demandant or Tenant hath his age or for the non venue of the Justices or in case of a protection or Essoign de service le Roy c. Bracton lib. 5. 425. Brit. cap. 74. l. 7. 29 30. Note That in the case of Excommengement the Writ shall not abate but the plea to be put without day untill the plaintiff purchase his Letters of Absolution c. but in the other five cases sc of a Villain c. ante fo 55. a. the Writ shall abate fo 135. b. But in the case of Outlawry the writ shall abate if he obtain not his pardon 44 E. 3. 27. At this day Ideots Madmen c. may sue for the Sutes must be in their name but it shall be followed by others An Ideot shall not appear by Guardian or Prochein amy or Atturney but hee must be ever in person 33 H. 6. 18. F. N. B. 27. G. But an Infant or a minor shall sue by Prochein amy and defend by Guardian 27 H. 8. 11. 20 E. 4. 2. F. N. B. 27. H. Sect. 202 203 204. Si lenfant al age de 14 ans enter en religion est professe le gaodein nad auer remedie quant al gard le corps forsque breve de ravishment de gard enveâ—s le soveraigne del meason l'entry d'asc ' estaut de pleine age que eÌ„ heire lenfant eÌ„ congeable legardein en tiel case nad asc ' remedie pur le terre c. Manumittere idem est quod extra manum vel extra potestatem alterius ponere Every Manumission is an infranchisement but every infranchisement is not a Manumission Mirr cap. 2. Sect. 18. There be two kindes of Manumissions 1. Express when the Villain by deed in express words is manumissed and made free 2. Implyed by doing some act that maketh in judgement of Law the Villain free c. Libertinum ingratum leges civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum judicant
and rent and the rent be recovered the Fealty shall includedly be recovered 44 E. 3. 19. 26 Ass 38. 8 E. 4. 28. So long as Homage continues the Fealty cannot be divided from it vide lib. c. 151. a. Note a diversity between these corporeal services of Homage Fealty and Escuage which cannot become seck or dry but make Tenure whereunto Distresses Escheats and other Profits be incident and other corporeal services ast â—o Plough Repair Attend c. And all Rents whatsoever for they may become seek and make no Tenure Rent and Fealty are incident to the Reversion viz. Rent separably and Fealty inseparably 12 E. 4. 3. Doct. Stud. lib. 2. c. 9. The incident shall pass by the grant of the Principal but not è converso Accessorium non ducit sed sequitur suum principale fo 152. a. If the Tenant infeoff the Lord Paramount and his wife and their heires in this case the Mesnalty is but suspended for if the wife survive both Mesnalty and Seignory are revived 7 Ass 2. 7 E. 3. 20. It is said that if there be Lord Mesne and Tenant each of them by Fealty and 6 d. the Lord confirm the state of the Tenant to hold of him by Fealty and 3 d. that the Mesnalty is extinct So it is if â—he Lord release to the Tenant for whether the Lord purchase the Tenancy or the Tenant the Seigniory the Mesnalty is extinct 8 H. 6. 24. fo 152. b. So if there be Lord and Tenant and the Tenant make a gift in tail the remainder to the King the Seigniory it extinct 4 5 P. M. Dyer 154. Lex citius tolerare vult privatum damnum quam publicum malum 13 H. 4. 3. 40. Ass p. 27. No man can hold one and the same land immediately of two severall Lords And one man cannot of the same land be both Lord and Tenant It is Reg. true Res inter alios acta alteri nocere non debet Et factum unius alteri nocere non debet which are true with this Exception unless an inconvenience should follow c. Quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest And therefore if a man maketh a lease for life reserving a rent and binde himself in a Statute and the Cognisee hath the rent extended and delivered to him he shall distrain for the rent because he commeth to it by course of Law 13 H 4 Avowry 237. La ley voet plus toft suffer un mischiefe que un inconvenience pur ceo si Mesne tient per 12 d. tenant per 5 s. le seignieur purchase le tenancy le seigniory del Mesnalty eÌ„ extinct Et le mesne auÌ„a 4 s. come rent seck de le seignieur Sect. 233. Si home que ad rent seck est un foits sei d'asc ' parcel de le rent apurs le tenant ne voile payer le rent aver il auÌ„a ass de novel diss A rent seck or rent charge may be demanded after it is behinde at any time c. for Remedies for Rights are ever favourably expounded M. 41. E. 4 adjudged If the demand be made upon the land and the rent is not paid whether the tenant be present or absent yet this is a denyall in Law c. Disseisina is a putting out of a man out of seisin and ever implyeth a wrong But dispossessing or ejectment is a putting out of possession and may be right or by wrong Bract. l. 4 f. 161. Mirr c. 2. s Disseisin est un personal trespass de tortius ouster del seisin Where the Statute of Merton 20 H. 3. saith Disseisitus de libero tenemento Littleton expounds it to extend to a rent seck or rent charge albeit they be against common rights yet a man hath a Freehold in them 40. Ass 23. ac And he that granteth omnia tenementa sua a rent charge or a rent seck doth pass 14 E. 4. 4. 11 H. 6. 22. Recuperare i. ad rem per injuriam extort ' sive detentam per sententiam Judicis restitui Execution is the obtaining of actuall possession of any thing acquired by Judgement of Law or by a Fine executory levied whether it be by Sheriff or by the entry of the party vide Sect. 504. If the Recovery in Assize c. be had against one and hee and another redisseise the Plaintiff he shall not have a Redisseisin for heâ—e is alius and hee cannot have a Redisseisin against the former disseisor alone because he is joynt-tenant with another For joynt tenancy in a Writ of Redisseisin is a good plea and a stranger shall not be subject to double imprisonment and double damages 33 E. 3 Redisseâ—st 17. 9 H. 4. 5. F.N.B. 118. e. A Redisseisin doth lye against the disseisor which doth redisseise and his Feoffee after the second disseisin for otherwise the redisseisor might prevent the Plaintiff of his redisseisin If the Mesne recovereth a rent when it is a rent service and after the rent becommeth a rent seck by surplusage and doth redisseise him of the rent hee shall have a redisseisin for the substance of the rent remains though the quality be altered Sect. 234. He that is of a Jury must be liber legalis homo 9. E 4. 16. First hee ought to be dwelling most neare to the place where the question is moved 2. He ought to be most sufficient both for understanding and competency of estate 3. To bee least suspitious that is to be indifferent as he stands unsworn Vide S. 102. 193. Ad questionem facti non respondent Indices Ad quaestio juris non respondent luâ—atores Calumniare to challenge i. e. to except against them in Court that are returned to be Iurors Fo. 155. b. It is most necessary that Iurors be omni exceptione majores forasmuch as mens lives c. are to be tried by them Nota that there is a principall cause of challenge to the array and a challenge to the favour Fol. 156. a. Vide nota The challenge to the array is in respect to the cause of unindifferency or default in the Sheriff or other officer that made the returne and not in respect of the persons returned where there is no default in the Sheriff c. for if the challenge to the array be found against the party that takes it yet he shall have his particular challenge to the Polls that is to the particular persons and these be of four kinds i.e. peremptory principall which induce favour and for default of hundredors fo 156. b. A man may challenge peremptorily without shewing any cause and this only is in case of Felony c. In favorem vitae Vide c. Principall challenges to the Poll may be reduced to foure heads 1. Propter honoris respectum as no Peer of the realme is to be sworn on Juries l. 6. 52. 2. Propter
defectum patriae libertatis liberi tenementi Hundredorum for vicini vicinorum facta praesumuntur scire 3. Propter affectum and this is either working a principall challenge or to the favour and again a principall challenge is either by judgement of Law without any act of his as if the Juror be of bloud or kindred to either party Brit. f. 135. if the Juror have part of the Land that dependeth upon the same title Bract. fo 18 If a witnesse named in the Deed be returned of the Jury c. f. 23. Ass 11. Fo. 157. a. Vide nota Or upon his own act as if the Juror had given a verdict before for the same cause albeit it be reversed by Writ of error or if after verdict Judgement were arested So if he hath given a former verdict upon the same title or matter though between other persons 8 H. 5. 10. 18. E. 4. 12. 21. E. 4. 74. fo 157. b. Vide c. If a Juror hath been an arbitrator chosen by the plaintiff or defendant in the same cause and have been informed of or treated of the matter this is a principall challenge 9. E. 4 46. But a Commissioner chosen by one of the parties for examination of witnesses c. may upon cause he challenged so favour l. 9. fo 71. Peacocks Case Challenge concluding to the favour must be left to the conscience of the triors c. As if the Juror bee of kindred or under the distresse of him in the reversion or remainder or in whose right the Avowry or justification is made c. These be no principall challenges because he in reversions c. is not party to the Record otherwise it is if they were made parties by Aide Rescepit or voucher and yet the cause of favour is apparant so it is of all principall causes if they were party to the Record 10. E. a. 12. vide c. 4. Propter delictum as if the Juror be attainted or convicted of treason or felony c. for repellitur à sacramento infamis So it is if a man be outlawed in trespasse c. Mirror cap. 3. d' attaint Fol. 158. a. Vide c. Nota the array of the Tales shall not be challenged by any one party untill the array of the principall be tried but if the plaintiff challenge the array of the principall the defendant may challenge the array of the Tales and there the one of the principall and the other of the Tales shall try both arrayes after one hath taken a challenge to the Poll hee cannot challenge the array 9. E. 4. 27. 9. H. 5. 11. If a pannell upon a ven fac be returned and a Tales and the array of the principall is challenged the Triors which try and quash the array shall not try the Array of the Tales for now it is as if there had beene no appearance of the principall pannel but if the riors affirm the array of the principall then they shall try the array of the Tales 9 E. 4. 46. 7. E. 6. Dyer 78. When any challenge is made to the Polls two triors shall be appointed by the Court and if they try one indifferent and he be sworne then hee and the two triors shall try another and if another bee tried indifferent and he be sworne then the two triors cease and the two that be sworne in the Jury shall try the rest 22. E. 4. Chal. 61. 62. If the plaintiffe challenge ten and the defendant one and the twelfth is sworne because one cannot try alone there shall be added unto him one challenged by the plaintiffe and the other by the defendant 7. H. 4. 41. If the cause of challenge touch the dishonour or discredit of the Juror he shall not be examined upon his oath but in other cases he shall be examined upon his oath to informe the triors 49. E. 3. 1. 2. Fems ne serfs ne enfans ne nul infamys ne nul que neÌ„ fise tenant ne poet estr bone summonere Brit. ca. 121. Vide libr. Fo. 158. b. Of an Ass of no disseim Vide l. 8. f. 45. Iehu Webbs case Whensoever a Statute giveth a forfeiture or penalty against him which wrongfully detaineth or dispossesseth another of his duty or interest in that case he that hath the wrong shall have the forfeiture c. and not the King P. 29. Eliz. between the Queen and Wood and so it was adjudged c. M 4. Ia. Re. and note that the Act of Parliament doâ—h give a temporall remedy at the Common Law to Parsons c. for an ecclesiasticall duty and to lay men proprietaries of tithes the like remedy but they have election either to sue for the treble value at the Common Law or for the double value in the Ecclesiasticall Court or for substraction of tithes there also Vide nota 159. a. c. 2. E. 6. ca. 13. Donee treble value al party grieve p. praediall dismes detaine per tort c. Sect. 235. 236. Payment of any money or of any valuable thing in the name of seisin of a rent seck before any rent become due is a good seisin of the rent to have an Ass of no disseis when it is due and that which is given in the name of seis c. worketh his effect to give seisin and yet it is no part of the rent nor shall be abated out of the rent S. 565. The grant and delivery of the Deede and atturnement is no seisin of the rent and a seisin in Law which the grantee hath by the grant is not sufficient to maintaine an Ass or any other reall action but there must bee an actuall seisin Fo. 160. a. Also of a rent seck and so it is of a rent charge home poit aver ass de mortd ou Bre. de Ayel ou de Cosinag touts auters manners dactions reals come la case gift sicome i poet auÌ„ daesc ' auter rent Hereupon some have gathered that a man shall have a Writ of right of a rent seck or of a rent charge albeit they be against common right F. N. B. 6. 14. E. 4 5. Sect. 237. Sont 3. causes de disseisine de rent service sc rescous replevin inclosure car per tiels choses le Seignior eÌ„ disturbe de le meane per que il doit auÌ„ vener a son rent sc de le distresse But you may make six disseisins of a rent service Rescous of a distresse resistance to distrein Repl. inclos counter pleading of the title and vouching of a Record and sailing Fo. 160. b. In some cases the Tenant may make Rescous c. 1. if no rent be behind when the distress is taken 2. If the Tenant tender the rent to the Lord when he is to take the distresse and yet the Lord will distreine c. 3. If the rent be behind and the Lord destreine the Cattell of the Tenant in the high way within his Fee 4. If the
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
them taketh husband and dyeth yet the terme shall survive for though all chattels realls are given to the husband if he survive yet the survivor between the joynt-tenants is the elder Title and after the marriage the feme continued sole possessed for if the husband dyeth she shall have it and not the executors of the husband but otherwise it is of personall goods fol. 185. b. vide c. Inprimis autem debet quilibet qui testaverit dominum suum de meliore re quam habuerit recognoscere postea ecclesiam de alia meliore c. Fleta lib. 2. cap. 50. Sect. 288. Chesc ' joint est sei del terre que il tient joint per my per tout sic totum tenet nihil tenet sc totum conjunctim nihil per se separatim and albeit they are so seised yet to divers purposes each of them hath but a right to a moity as to enfeoffe give or demise or to forfeit or lose by default in a Praec 40. Ass 79. Brit. cap. 35. A communi observantia non est recedendum If two joyntenants be and both they make a feoffment in Fee upon condition and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgment of Law passed from him and so it is of a gift in taile or a Lease for life c. Pl. com Brownings c. If two joyntenants make a feoffment in fee and one of the feoffors die the feoffee cannot plead a feoffment from the survivor of the whole because each of them gave but his part but otherwise it is on the part of the feoffees 14 E. 4. 5. fol. 186. a. Two joyntenants de terres c. And one of them by Deed indentâ—â— bargain and sell the Lands and the other joyntenant dyeth and then the Deed is inrolled there shall passe but a moity 6 E. 6. Tit. Faits inroll 9. Br. Sect. 289. En grant de rent charge per joint c. les tenements demurg touts foits come ils fuer adevat sans ceo que asc ' ad asc ' drt. dauÌ„ asc ' parcel de les tenem fo rs eux me les tenem sont en tiel plite come ils fueront devant le charge c. mes ou leas eÌ„ ft. per un joint a un aut per terme de ans c. maint per force de lease le lessee ad drt. en m. la terre se de tout ceo que a son lessor affiert dauÌ„ ceo per force de lease durant son Feme Fo. 186. b. If two joyntenants be of an Advowson and the one present c. and his Clark is admitted and instituted this in respect of the privity shall not put the other out of possession but if that joyntenant that presenteth dyeth it shall serve for a tittle in a Qu. Imp. brought by the survivor 11 H. 4. 54. 10 E. 4. 94. 1 H. 7. 1. b. 9 El. Dyer 259. 6 E. 4. 10. b. Doct. St. 116. F. N. B. 34. u. But yet if one jointenant or tenant in common present or if they present severally the ordinary may either admit or refuse c. such a presentee unlesse they joyne in a presentation and after the six moneths he may present by lapse But if two coperceners be c. and they cannot agree to present the eldest shall present and if her sister doth disturbe her she shall have a qu. imp and so shall the issue and the Assignee of the eldest and yet he is tenant in common with the youngest and so tenant per Curtesie of the eldest shall present 38 H. 6. 9. 5 H. 5. 10. F.N.B. 34. Sect. 290. Jointenants fils violont faire partition c. But this partition must be by Deed. Vide Sect. 249. 318. But jointenants for years may make partition without Deed 18 Eliz. 350. b. Dyer Since Littleton wrote joyntenants and tenants in common are compellable to make partition by writ Stat. 31 H. 8. c. 1. 32 H. 8. c. 32. Sect. 264. 247. 259. F.N.B. 9. b. 62. b. lib. 6. Fo. 12 13. Morrices c. If one joyntenant or tenant in common disseise another and the disseisee bring his Ass for the moity though the plaintiffe prayeth it yet no judgment shall be given to hold in severaltie for then at the common Law there might have been by compulsion of Law a partition bteween Joyntenants and tenants in common and by rule of Law the plaintiffe must have judgement according to his plaint or demand 187. a. Sect. 291. c. Baron feme sont forsq un person en ley vir axor sunt quasi unica persona quia caro una sanguis unus Lib. 4. fo 68. Tokers c. Pl. com 483. Nicholls ca. If an estate be made to a man and a woman and their heirs before marriage and after they marry the husband and wife have moities between them If a Feoffment be made to a man and a woman and their heires with warranty and they entermarry and after are impleaded and vouch and recover in valew moities shall not be between them for though they were sole when the warranty was made notwithstanding at the time when they recovered and had execution they were husband and wife in which time they cannot take by moities Fo. 187. b. Vide c. A right of Action and a right of entry may stand in jointure Vide Sect. 302. F.N.B. 193. k. A right of action or a bare right of entry cannot stand in joynture with a freehold or inheritance in possession and therefore if the husband make a Feoffment of the moity this was a discontinu of that moity and the other joyntenant remained in possession of the freehold and inheritance of the other moity which for the time was a severance of the joynture Statute of 32 H. 8. ca. 1. If two joyntenants be of a rent and one of them disseise the tenant of the Land this is a severance of the joynture for a time for the moity of the rent is suspended by unity of possession and therefore cannot stand in joynture with the other moity in possession Pl. com 419. Nihil de re accrescit ei qui in re quando jus accresceret habet A State of Freehold cannot stand in joynture with a terme for years nor a reversion upon a Freehold with a Freehold and inheritance in possession Neither can a seisin in the right of a politick capacity stand in joynture with seisin in a naturall capacity 37 H. 8. 8. 3 E. 4. 10. Fo. 188. a. Vide c. In all cases where the joyntenants pursue one joynt remedy and the one is summoned and severed and the other recover he that is summoned c. shall enter with him but where their remedies be severall there the one shall not enter with the other till both have recovered Littleton cap. Remitt the last
one that hath a former Right F. N. B. 35. Right and wrong cannot consist together 194. a. Sect. 307. Et en asc ' case un release vera per voy dextinguisment aydera le joyntenant a que le release ne fuit fert c. sicome un home soit disseisee le disseisor fort feoffment a 2. homes in fee si le disseisee release per son fâ—rt a un des feoffees cel release vera a ambideux c. pur ceo que les feoffees ont estate per la ley scil per feoffment nemy per tort fert a nulluy c. The reason of the diversity between the desseisors and their feoffees is for that the feoffees coming in by Title and Purchase are intended in Law to have a Warranty which is much esteemed in Law and therefore lest the Warranty should be avoided the Release shall inure to both the feoffees in favour of purchasors and so the right and benefit of every one saved And therefore in ancient time if the feoffee of a disseisor had continued in seisin quietly a year and a day the entry of the disseisee had not been lawfull upon him 20 H. 3. Ass 432. Sect. 311. Note that in reall actions and in actions also that are mixt with the personalty Tenants in common shall sever because they have severall Freeholds c. Come si 2 tenants in common sont disseisees ils doient aver 2. Ass pur ceo que ils fueront seisees per several titles c. Vide lib. fol. 195. b. Auterment est de joyntenants Sect. 313. Quant a suer des actions que touchant le realty y sont diversities perenter parceners que sont eins per divers discents tenants in common Vide Sect. 241. Sect. 314. If two Tenants in common be and they grant a rent of 20. s. per annum out of their land the Grantee shall have two rents of 20. s. Pl. Com. Hill and Granges Case 171. vide Sect. 219. But if they two make a gift in taile a lease for life c. reserving 20. s. rent to them and their heirs they shall have but one 20. s. for they shall have no more then themselves reserved And albeit the reservation of rents severable be in joynt words yet in respect of the severall reversions the law makes thereof a severance fol. 197. a Lex spectat naturae ordinem vide Sect. 129. lex neminem cogit ad vana seu inutilia lib. 5. fol. 21. The law wils 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 31 E. 3. 35. 3 E. 3. 19. a. Tenants in common shall joyn in a Qu. imp because the Presentation to the Advowson is entire 5 H. 7. 8. 33 H. 6. 11. 6 E. 4. 10. Also Tenants in common of a Seigniory shall joyn in a Writ of Right of Ward and Ravishment of Ward for the body because it is intire 6 H. 4. 6 7. If two Tenants in common be of the Wardship of the body and one doth ravish the Ward and the one Tenant in common releases to the Ravisher this shall goe in benefit of the other Tenant in common and he shall recover the whole and the release shall not be any barre to him And so it is if two Tenants in common be of an Advowson and they bring a Qu. imp and the one doth release yet the other shall sue forth and recover the whole Presentment Two Tenants in common shall joyn in a Detinue of Charters and if one be Nonsuit the other shall recover It is said that Tenants in common shall joyn in a Warr. Chartae but sever in Voucher 18 E. 3. 56. Sect. 315. Item Tenants in common averont un action joynt-tenement recoveront joynt-tenement lour damages quant l' action est en le personalty nemy en le realty c. Note a diversity between a Chatel in possession and a personall chose in action belonging unto them As if two Tenants in common be of land and one doth a trespasse therein of this action they are joyntenants and the survivor shall hold place 22 H. 6. 12. S. 319 320. But if two Tenants in common be of goods as of an horse c. there if one dye his Executors shall be Tenant in common with the survivor fol. 198. a. If two Tenants in common be of an Advowson and a stranger usurp so as the right is turned to an action and they bring a Writ of Qu. imp which concerns the realty the six months passe and the one dyeth the Writ shall not abate but the survivor shall recover otherwise there should be no remedy to redresse this wrong And so it is of Coparceners and this is one exception out of our Authors rule 14 H. 4. 12. 38 E. 3. 5. 37 H. 6. 9. b. 10 El. Dyer 279. F.N.B. 35. Pl. Com. Seignieur Barkleys Case But if three Coparceners recover land and damages in an Assize of Mordane ' albeit the judgment be joynt that they shall recover the land and the damages yet the damages being accessory though they be personall doe in judgment of Law depend upon the Freehold being the Principall which is severall And though the words of the judgment be joynt yet shall it be taken for distributive And therefore if two of them die the entire damages doe not survive but the third shall have Execution according to her portion and this is another Exception 14 E. 3. Execution 75. 45 E. 3. 3. b. But if all three had sued Execution by force of an Elegit and two of them had dyed the third should have had the whole by survivor till the whole damages be paid Sect. 317 318. En avowry pur rent tenants en common covient sever car ceo eÌ„ en le realty come le Ass eÌ„ supra Tenants en common poient bien faire partition enter eux sils voilont c. Sect. 321. Lou divers persons ont chateux reals ou personals en common pur divers Titles si lun de eux mor ' ses executors tienderant occupier ceo ovesque eux que survesquont c. Sect. 322 323. Albeit one Tenant in common take the whole profits the other have no remedy in Law against him for the taking of the whole profits is no Ejectment but if he drive out of the land any of the Cattel of the other Tenant in common or not suffer him to enter and occupy the land this is an Ejectment c. Whereupon he may have an Eject firmae for the one moity and recover damages for the entry but not for the mean profits fo 199. b. Note a diversity between actions which concern Right and Interest as of Eject ' firmae Eject ' de gard quare ejecit infr Term. of a Chattel reall upon an expulsion or Ejectment and actions concerning the bare taking of
upon condition c. and dye his executors or administrators shall enter for the condition broken for they are privy in right and represent the person of the dead Vide 21 H. 7. 18. a. fo 214. b. c. If cesty que use had made a Lease for yeares c. upon condition the Feoffes should not enter for the condition broken for they are privy in estate but not privy in bloud 27 H. 8. 1. 4. Diversity is in case of a Lease for years where the condition is that the Lease shall cease or be void and where the condition is that the lessor shall reenter for there the grantee as Littleton saith shall never take benefit of the condition And note that where the estate or Lease is ipso facto void by the condition or limitation no acceptance of the rent after can make it to have a continuance otherwise it is of an estate or Lease voidable by entry Pl. 136. Brownings case 5. Diversity between condition in Deed and condition in Law As if a man make a Lease for life there is a condition in Law annexed unto it that if the lessee doth make a greater estate c. that then the lessor may enter of this and the like condition in law which doe give an entry to the Lessor the lessor himselfe and his heires shall not only take benefit of it but also his Assignee and the Lord by escheat every one for the condition in law broken in their own time 6. Diversity is between the judgement of the common Law and the Law at this day by force of the Statute of 32. H. 8. ca. 34. for by the Common Law no grantee or Assignee of a reversion could take advantage of a re-entry by force of a condition But now by the said Statute it is otherwise By which act it is provided that as well every person which shall have any grant of the King of any reversion c. of any Lands c. which pertained to Monasteries c. as also all other persons being Grantees or Assignees c. to or by any other person or persons and their heires executors successors and Assignees shall have like advantage against the Lessees c. by entry for non-payment of the rent or for doing of waste or other forfeiture c. as the said lessors or grantors themselves ought or might have had 26 H. 6. tit entreconge 49. Upon this act divers judgments c. have been given which are necessary to be known 1. That the said Statute is generall that the grantee of the reversion of every common person as well as of the King shall take advantage of condition Pl. 175. 76. Hill and Granges case M. 10. and 11 Eliz. 180. Dyer 2. That the Statute doth extend to grants made by the successors of the King albeit the King be only named in the Act. 3. That where the Statute speaketh of Lessees that the same doth not extend to gifts in Taile 14. El. Dyer 309. Winters case 4. That where the Statute speakes of Grantees and Assignees of the reversion that an Assignee of part of the estate of the reversion may take advantage of the condition As if Lessees for life be c. and the reversion is granted for life c. So if Lessee for years be c. and the reversion c. the grantee for years shall take benefit of the condition in respect of this word execution in the Act. Pl. 69. Kidwellies case 7 E. 3. 54. and Vide Dyer 309. 5. That a grantee of part of the reversion shall not take advantage c. As if the Lease be of three Acres reserving a rens upon condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is entire and against common right lib. 5. fol. 54. Knights Case Winters Case c. 6. That in the Kings case the condition c. is not destroyed c. 7. By act in Law a condition may be apportioned in the case of a common person as if a Lease for years be made of two acres one Burrough English and the other at the common law and the lessor having issue two sons dieth each of them shall enter for the condition broken and likewise a condition shall be apportioned by the act and wrong of the Lessee as in the Chap. of Rents l. 4. f. 120. Dumpers Case 8. If a Lease for life be made reserving a rent upon condition c. the Lessor levies a fine of the reversion he is Grantee or Assignee of the reversion but without atturnment he shall not take advantage of the condition P. 20. El. in Com. Ba. Dukes Case lib. 5. 112. b. Mallories Case 9. Diversity between a condition that is compulsory and a power of a revocation that is voluntary for a man that hath a power of revocation may by his own act extinguish his power c. in part as by levying of a Fine of part and yet the power shall remain for the residue because it is in nature of a limitation and not of a condition P. 39. El. and 40 41 H. Earl of Salisburies case in Court of Wards 14 El. Dy. 39. 10. If the Lessor bargain and sell the reversion by Deed indenture and inroll the Bargainee is not in the Per by the Bargainor and yet he is an Assignee within the Statute So if the Lessor grant the reversion in Fee to the use of A. and his heirs A. is a sufficient Assignee c. because he comes in by the act and limitation of the party albeit he is in the Post and the words of the Statute be To or By and they be Assignee to him although they be not by him but such as come in meerly by act in Law as the Lord of the villain the Lord by Escheat c. shall not take benefit of this Statute 11. If the Lessor bargain and sell the reversion c. Or make a Feoffment in Fee and the Lessee reenter the grantee or Feoffee shall not take advantage c. Without making notice to the Lessee l. 8. f. 92. Frances Case And 12. albeit the whole words of the Statute be for non-payment of the rent or for doing of wast c. yet the Grantees and Assignee shall not take benefit of every forfeiture c. but onely of such conditions as either are incident to the reversion as rent or for the benefit of the State as for not doing of wast for keeping the houses in repair for making of fences scouring of ditches for preserving of woods c. and not for payment of any summe in grosse delivery of corn wood c. So as other forfeiture shall be taken for other forfeitures like to those examples which were there put viz. of payment of rent and not doing of wast which are for the benefit of the reversion Dyer 309. Sect. 348 349. Seign Tenant le tenant
dictum l. 8. fo 155. l. 9. f. 13. l. 11. f. 10. Ex facto jus oritur fo 266. Vide c. Omnis conclusio boni veri judicii sequitur ex bonis veris promiss dictis Jurator Trin. 33 E. 1. in Thesaur utile per inutile non vitiatur M. 28 El. 29. Gomershall account in Ban. R. 32 E. 3. Cessavit 25. 5. 484 485. If the matter and substance of the issue be found it is sufficient S. 58. 35 Ass 8. 1 H. 4. 6. b. 27 H. 8. 22. b. Pl. 515. l. 4. f. 53. Raulins case and Pledols case H. 31. El. Sutton c. Com ban Estopper which bind the interest of the Land as the taking of a lease of a mans own land by deed indenture c. being specially found by the Jury the Court ought to judge according to the speciall matter for albeit estopper Reg. must be pleaded and relied upon by an apt conclusion and the Jury is sworn ad verit dicendam yet when they finde veritatem facti they pursue well their oath and the Court ought to judge according to law So may the Jury find a warranty being given in evidence though it be not pleaded because it bindeth the right unlesse it bee in a writ of right when the Mesc is joyned upon the Meer right 34 E. 3. Droit 29. After the verdict recorded the Jury cannot vary from it Pl. Fremans case 11 H. 4. 2. 20 Ass 12. 5 H. 7. 22. An issue found by verdict shall always be intended true untill it be reversed by attaint and thereupon c. no Supersedeas is grantable by Law If the Jury after evidence at Bar c. do at their own charges eat or drink either before or after they be agreed on their verdict it is finable but it shall not avoid the verdict P. 24 H. 8. Just Spilman Ban. R. 29 H. 8. 37. Dier P. 6 E. 6. Com. Ban. 11 H. 4. 16 17. 24 E. 3. 75. The King cannot be Nonsuit for he is ever present in Court in judgement of Law 21 E. 3. 18. The condition is executed by re-entry and yet the Lessor after his re-entry shall not plead the condition without shewing the deed because he was party and privy to the condition for the parties must shew forth the Deed unlesse it be by the act and wrong of the party but an estranger which is not privy to the condition nor claimeth under the same shall not after the condition is executed in pleading be forced to shew forth the Deed. Pl. 92. 9 H. 7. 3. Lib. 9. 12 13. Downams case 31 Ass p. 21. 10 H. 4. 9. Note that a speciall verdict or at large may be given in any action and upon any issue be the issue generall or speciall 8 E. 4. 29. 11 Eliz. Dyer 283 284. Discretio ē discernere per legem quid sit justum Si à jure discedas vagus eris erunt omnia omnibus incerta l. 10. fo 4. case de Sewers Sect. 367. A verdict is twofold 1. A verdict at large or a speciall verdict because it findeth the speciall matter c. Or leaves it to the judgement of the Court. 2. A generall verdict that is generally found according to the issue as if the issue be not guilty to finde the party guilty or not guilty generally c. There is also a verdict given in open Court and a privy verdict given out of Court before any of the Judges of the Court. To finde the speciall matter is the safest way for the Jury where the case is doubtfull Sect. 369. Lease pur vie rendt rent re-entry sur condition c. ceo est sans fait lessor enter pur non payment c. lessee enter sur le lessor et luy disseist c. en cē case le disseisee navera Ass et enc ' si le lessee soit pl ' et le lessor defendant il bar se lessee par verdict de Ass c. Mes en ceo case lou lessee est defendant sil ne voile plead le lease pur vie c. en bar mes plede nultort nul diss donques le lessor recovera per Assize 4 El. Dyer 207. 8 El. Dyer 246. A lease for life the reversion to the Plaintiff was a good barre in Assize and also that a lease for years the reversion to the Plaintiff might be pleaded in an Assize and so of a Feoffment with Warranty And note a diversity viz. of a lease for life the Tenant shall plead it in barre But in case of a lease for years or of an estate of Tenant by Statute or Elegit the Defendant shall not plead in barre as to say Ass non c. but justifie by force of the lease c. and conclude issint sans tort And if the Tenant of the Freehold be not named he shall plead Nul tenant de franktenement nosme en le breve and in the case of the Feoffment with Warranty he must relye upon the Warranty 18 E. 4. 10. 12 Ass 38. Sect. 370. Si Indenture soit bipartite ou tripartite c. touts les parts del endent ' ne sont que un fait en ley chesc ' part del endent ' est auxi de grand force effect sicome touts les parts ensemble l. 5. fol. 20. Stiles Case An Indenture may be without words but not by words without indenting A Deed poll because it is cut even polled c. Note That if the Feoffor Donor or Lessor seal the part of the Indenture belonging to the Feoffee c. the Indenture is good albeit the feoffee never sealeth the Counterpart belonging to the feoffor fo 229. a. 9 E. 4. 18. Pl. 134. Sect. 371 372. A communi observantia non est recedendum minimè mutanda sunt quae cert ' habuerunt interpretationem Magister rerum usus 17 El. Dyer 342. 12 H. 4. 12. 30 Ass 31. It is provided by the Statute of 38 E. 3. cap. 4. That all penal bonds in the third person be void wherein some of our books seem to differ c. But the Statute was principally intended of the Courts of Rome in which Courts bonds were taken in the third person So as such bonds made out of the Realm are void but other bonds in the third person are Resolved to be good as well as Indentures in the third person 40 E. 3. 1. 2 H 4. 10. 8 E. 4. 5. Brevis via per exempla longa per praecepta It is a safe thing to follow approved Presidents for Nihil simul inventum est perfectum Sect. 273. Fol. 230. b. Si en l'endenture fait en le 3. person ou en le 1. person mention foit fait que le grantor avoit mise solement son seale nemy le grantee donques est l'endent ' tantsolement le fait le grantor Mes lou mention est fait que le grantee ad mise son seale c.
54. 39 E. 3. 25 26. Sect. 396 397. Note that Ass mort Antecess non tenet inter conjunctas personas sicut fratres sorores c. for these are privy in blood Brac. l. 4. f. 261 282. 29 Ass 11. F.N.B. 196. b. Albeit the eldest son hath issue and dye and after the yongest son or his heir enter and many discents be cast in his line yet may the heirs of the eldest son enter in respect of the privity of the blood and of the same claim by one Title but otherwise it is if the Feoffee of the yongest son dye seised c. and admit that the yongest son be of the half blood to his brother yet he is of the whole blood to his Father and therefore if he enter by abatement and so gain a fee simple and dye seised it shall not barre his elder brother of his entry But if the eldest son enter and gain an actual possession and seisin then the entry of the yongest is a disseisin Br. ent 27. Si le puisne frere ent apres le mort le pier mor. seisin c. leign frere poit ent sur lissue c. pur ceo que ambiz les freres claime per m. le title auterment eÌ„ ou leigne frere ent c. puis eÌ„ disseisin per le puisne frere que mort seisee c. If the Father make a lease for life and hath issue two Sons and dyeth and the Tenant for life dye and the yongest Son intrude and dye seised this discent shall not take away the entry of the eldest But if the Father had made a lease for years it had been otherwise for that the possession of the lessee for years maketh an actual freehold in the eldest Son Fol. 243. a. 22 E. 4. 4. If two Coparceners be and they severally present to the Ordinary yet the Church is not litigious because they claim all by one Title Doct and St. cap. 30. fol. 117. If upon a Writ ad diem clau extr the yongest Son be found heir the eldest Son hath no remedy by the Common Law because they claimed by one Title but otherwise it is if they claim by several Titles But this is now holpen by the Statute of 2 E. 6. c. 8. If two Parsons be in debate for Tythes which amount to above the fourth part and one man is Patron of both Churches no Judicavit doth lie for that both Incumbents claim by one and the same Patron 2 H. 7. 12. a. There is a great diversity holden in our books where one hath a colour or pretence of right and when he hath none at all 2 E. 2. Bastar 19. 21 E. 3. 34. 22 Ass 85. 11 E. 3. Ass 88. 21 H. 6. 14. 11 E. 3. Age 3. Sect. 400. Sect. 398. When one Coparcener enters generally and taketh the profits this shall be accounted in Law the entry of them both and no devesting of the moity of her sister 21 Ass 19. 21 E. 3. 7. 27. 32. 4 H. 7. 10. 16 H. 7. 4. fo 243. b. If the privity of Coparcenary be once destroyed a dying seised shall take away entry c. 28 Ass 30. Vide S. 710. Sect. 399. Filius natus vel filia nata ex justa uxore appellatur in legibus Angliae filius mulieratus seu filia mulierata Glanvil lib. 2. ca. 2. Bract. 5. ca. 10. Brit. ca. 70. Bastardus dicitur à graeco verbo Bassaris i. Meretrix seu concubina Vide S. 188. Fleta l. 1. c. 5. vide S. 380. Manseribus scortum notho moechus dedit ortum Vt seges è spica sic spurius est ab amica If the husband be within the four Seas and the wife hath issue c. in that case filiatio non potest probari Bract. lib. 4. fo 278 279. 7 H. 4. 9. 43 E. 3. 10. 29 Ass 54. If the issue be born within a moneth or a day after marriage between parties of full lawful age the childe is legitimate 18 E. 4. 28. fo 244. â— It is holden that the mulier be within age at the time of the dying seised of the Bastard that nevertheless he shall be barred because the issue of the bastard is in judgement of Law become lawful heir and the Law doth prefer legitimation before the priviledge of infancy justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur 5 E. 2. Discent Br. 49. 31 Ass 18. 22. Pl. Com. Stowels case 10 E. 3. 2. If a man hath issue a Son being bastard eigne and a daughter and the daughter is married the Father dyeth the son entreth and dyeth seised this shall barre the feme covert 13 E. 1. Bast 28. and the discent in this case of Services Rents Reversions expectant upon estates tail or for life whereupon rents are reserved c. shall binde the right of the mulier but a discent of these shall not drive them that right have to an action 14 E. 2. Bast 26. So if the bastard dye seised and his issue endoweth the wife of the bastard yet is not the entry of the mulier lawful upon the Tenant in Dower for his right was barred by the discent Sir Ri. Ledfords case lib. 8. 101 102. Ass Mortdanc lieth not between the bastard and the mulier in respect of the proximity of blood and the bastard being impleaded or vouched shall have his age 21 E. 3. 34. b. 30 Ass p. 7. 11 E. 3. Age 3. 5 H. 7. 2. Sect. 400. At a Parliament holden 20 H. 3. for that to certifie upon the Kings Writ that the son born before mariage is a Bastard was Contra Com. formaÌ„ Ecclesiae Rogaverunt omnes episcopi magnates ut consentirent quod nati ante Matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones una vocâ— respondent Quod noiunt leges Angl-mutare quae huc usque usitatae sunt approbatae Stat. de Merton cap. 9. Bract. l. 5. fo 410. 417. â—0 Ass pl. 10. Note that the law more respecteth him that hath a colourable title though it be not perfect in Law than him that hath no title at all Vide S. 39. Sect. 401. Est diversity lou Bastard continue la possession touâ— sa vie sans interruption lou le mulier enter interruption le possession de tiel Bastard Reg. none shall enter but the mulier or some other by his commandment M. 38. 39. El. Com. Banco Vide 31 H 8 ent cong Br. 23. Omnis ratibabitio retrotrahitur mandato aequiparatur 4 H 7. ca. Vide Sect. 334. But in the case of the Bastardeigne Gardein en Socage or gardein in Chivalry may enter for they are no strangers If an Infant make a Feoffment in fee an estranger of his own head cannot enter to the
facit reruÌ„ nisi mens sit rea et furiosus solo furore punâ—tur And so it is of an Infant untill he be of the age of 14. Fo 247. b Also if the Father disseise the Grandfather and make a Feoffment in fee c without warranty the Grandfather dyeth albeit the right descend to the Father yet he cannot enter against his own Feoffment but if he die his Son shall enter and avoid the State of the Feoffee 16 Ass 27 21 H 7 31 Stanf. â—6 b 8 E 3 2 Coron 413 414 351 22 E 3 ibid 12 4 2 H. 7 2 3 E 3. enter Cong Statham 12 E 4 8. 39. H â— 4 Abbr ass 89. 39. H. 6. 43. 15. E. Discent 30. If Lands â—e given to two and to the heirs of one of them he that haâ—h the fees shall not have an action of waste upon the Satut of Gloc. against the joynt tenant for life but his heire shall maintaine an action of waste against him Sect. 406 407 408. A Dum fuit infra aetat ' lyeth as well for the Ancestor himselfe after his full age as for his heir And note where an Infant disseisor aliens the lands in fee that if the discent be cast the Infant being within age he may enter at any time either within age â—or after his full age And so it is if an Infant make a feoffment c. he may enter c and so in both cases may his heir 43 E 3 Enter cong vet N B 126 b F N B 192. 45 E 3 21. Sect 40â— fol 2â—8 a. Tenant in Capite makes a Feoffment in fee to the use of the feoffee and his heirs until the feoffor pay 100 l. to him or his heirs the feoffee dyeth his heir within age now hath the King the Wardship of the body and is intituled to the guard of the land But if the feoffor pay the 10â— l. according to the limitation the Wardship is devested both for the body and the land and so it is in case of a Condition for the discent which is the cause of Wardship is utterly defeated and Cessante causa cessat causatum Dyer 13 Eliz fo 298 299 So as there is no difference where the discent is disaffirmed by a Right Paramount as where the estate was never lawful as in the case of an Infant and where the discent is affirmed for a time the estate being lawfull and being after defeated by matter ex post facto by a Title of re-entry Sect. 410. Disseisor ad issue enter en Relâ—gion c. This discent shall not barre the entry of the disseisee for that the discent cometh by the Deed of the Father And the Law respects the original â—ct and that is his entry inâ—o Religion which is his own act whereupon the profession followed whereby the discent happened for Cuiusque rei potissima pars principium est And Origo rei inspici deâ—et Pl. Dame Hales Cases 6 E. 3. 4â— c. But it is said in the case of a bastardeigne and Mulier puisnâ— sâ—ch a discent shall binâ—e the Mulier and such an heiâ— by discent shall have his age to E 3. 55 fo 248. b. Nota if a man be Tenant or Defendant in a real or personall â—ction and hanging the suit the Tenant or Defendant enter into Religion by this the Writ is not abated because it is by his own act And so it is of a Resignation but otherwise it is of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c was the cause thereof Sed in praesumptione legis judicium redditur in invitum â—8 E. 4. 19. 9 E. â— 25. 52. 7 E. 4. 15. Bract. lib. 4. fol. 189. Sect. 411. No discent or dying seised can be of a Chattel A man seised of an Advowsâ—n in â—eâ— grants three Avoidances one after another and after the Church becomes void and the Grantor presents and his Clerk is admitted and instituted and after the Church becomes void again the Grantee may present to the second Avoidance for that he was not put out of possession thereof for as the lessor having the Freehold and Inheritance cannot disseise his lessee for yeâ—rs having but a Chattel that any discent may be cast to take away his entry so in the said case the Grantor hath the Franktenement and the Fee of the Advowson rightfully so as he cannot make any usurpation to gain any estate c. Also in respect of the privity c. the usurpation of the Grantor not put the Grantee out of possession for the two latter Avoidances Hill 18 El. Com. Banco Claim daver terres pur terme d'ans nest pas expulsment de le franktenement del heire que est eins per discent Sect. 412 413. Time of Peace is the time of Law and Right and time of War is the time of Violent Oppression which cannot be resisted by the equal Course of Law Cum silent leges inter arma fo 249. b. Successioâ— of Bodies Politique or Corporate is in the post and the heir of the natural man is in the per 7. E 3. 25 a. 5 E. 3. 13. 3â— A Body Politique is so called because it is to take in Succession framed as to that capacity by Policy and it is also called a Corporation or a body incorporate because the persons are made into a Body and are of capacity to take and grant c. And this body Politique or Incorporate may commence and be established three manner of ways viz. by Prescription by Letters Patents or by Act of Parliament Every Body Politique or Corporate is either Ecclesiastical or Lay Ecclesiastical either Regular as Abbots Priors c. or Secular as Bishops Deans Archdeacons Parsons Vicars c. Lay as May or and Commonalty Bayliffs and Burgesses c. Also every Body Politique or Corporate is either Elective Presentative Collative or Donative and again it is either sole or aggregate of many And this Politique c. Body aggregate of many is by the Civilians called Collegium or Vniversitas Lib. 3. fo 73. Dean and Chapter of Norwich CHAP. VII Continual Claim Sect. 414 c. SI disseisee fait Continual Claim a les tenemenes in la vie le disseisor comment que le disseisor de vie seisee en fee la terre discendist a son heire encore pâ—it le disseisee enter sur la possession le â—erre c. Nul poâ—t faire continnal Claime mes quant il ad title dâ—vant c. S 416. And yet in some cases a Continuall Claim may be made by him that hath Right and cannot enter If Tenant for years Tenant by Statute Staple Merchant or Elegit be ousted and he in the reversion disseised the lessor or he in reversion may enter to the intent to make his Claim and yet his entry as to take any Profits is not lawfull during the Term And the lessor or he in the reversion in that case may enter
law by summoners and vâ—iors and the land taken into the Kings hand by the Pernor Fleta l. 6. ca. 67 24. W. 2 ca. 48 4 E. 2. discent 51. Defalta is legally taken for non appearance in Court There be divers causes allowed by law for saving a mans default 1 By imprisonment 2. Per inundationem aquarum 3. Per tempestatem 4. Per pontem fractum 5. Per navigium substractum per fraudem petentis non enim debet quis se periculis infortuniis gratis exponere vel subjacere 6. Per minorem aetatem 7 Per defensionem summonitionis per legem 8. per mortem Attornati si tenens in temopre non novit 9 Si petens essionatus sit 10. Si placitum mittatur sine die 11. per breve de warr Dici 3 H. 6. 46. 38. E 3. 5. 12. H. 4. 13. 5 H 7. 3. F.N. B. 17. 4 H 5. challeng 153. Br. Saver defendant 45. Legally records are restrained to the Rolls of such only as are Courts of Record and not the Rolls of inferior nor of any other Courts which proceed not secundum legem consuetudinem Angl. Pl. 79. b. m. â— and 8. Dy. 242. 17 E 349 11. H 4. 26. b 2 H 6. 34 error Br. 73. 7 H 7. 4 19 Ass 7. l. 4. fo 52. Rawlins case Brit. cap. 17. l. 6. fo 11. Ientlemans case and 30. 45. lib 7. fo 30. l. 8. fo 60 b and 67. a. fo 260. a. During the term wherein any judiciall act is done the Record remaineth in the breast of the Iudges of the Court and in their remembrance and therefore the roll is alterable during that terme as the Iudges shall direct but when that terme is past then the Record is in the Roll admits no alteration averment or proofe to the contrary 7 H 6 2â— 19 H 6 6 If the Tenant or defendant be in prison hee shall upon motion by order of the Court be brought to the barre and either answer according to Law or else the same being Recorded the law shall proceed against him and he shal take no advantage of his imprisonment 18 El. Dy. 353. 3. m. Dy 12â— Pl. 232. Seignior Barkleyes case 16. H 7 11. b. 22. H 8 Record Br. 65 39. H 6 4 3 El. Dy. 187. lib. 6 fo 15. Edens case If a man in prison shall not be bound by a recovery by default for want of answer in Court of Record in a reall action which is matter of record à multo fort a discent in the Country which is a matter of deed shall not for want of claime bind him that is in prison Quod in minori valer valebit in majori quod in majori non valet nec valebit in minori 7 H 6 18 8 H 6 16. V.S. 418. A man in prison by processe of Law to be kept in salva arota custodia but yet Carcer ad homines custodiendâ—s non ad puniendos dari debet Sect. 439. If a man be upon the Sea aof England he is within the Kingdome of England c. And yet a tum mare is out of the jurisdiction of the Common Law and within the jurisdiction of the Lord Admiral 6 R 2 Protection 46. V. S. 1 8. 440 441. 677. And note Littleton saith not beyond the Sea or extra 4 Maria for a man revera may be infra 4. maria and yet out of the realme of England But infra 4. Maria or extra is taken by construction to be within the realm of England or dominions of the same 3 R. 3. continuall claim 13. 4. E 3. 46. If a man be out of the realm and a recovery is had against him in a praecipe by default it seemeth that he shall not avoid the recovery or by that meanes a man might be infinitly delayed of his freehold and inheritance whereof the Law hath so speciall regard and few or none go over but it is either of their own free will or by suit for what cause soever and he is not in that case without his ordinary remedy either by his writ of higher nature or by a quod ei deforcrat But outlawry in a personall action shall be avoided in that case quia de minimis non curat lex and otherwise hee should be without remedy V. S. 437. and note the diversity between that case of the imprisonment and this of being beyond Sea Fo. 260 b nota c Sect. 440. Excusatur quis quod clameum non opposuerit ut si â—ote tempore litigii fuit ultra mare quacunque occasione Veâ—us constans opinio Brac. l. 5 f 436. and 163. Brit fo 21 216. 26 H 8 c 18 5 and 6 E. 6 ca 11. By certifitate a thing done beyond Sea may be tryed F.N. B 196 29 Ass 11. l 7 f. 26 27. Calvins case Stat. 25 E 3 de proditionibus doth declare that it is treason by the common Law to adhere to the enemies of the King within the realme or without if he be thereof proveablement attaint of overt fact and that he shall forfeit all his lands c. Certain it is that for necessity sake the adherence without the realme must be alledged in some place within England and if upon evidence they shall find any adherency out of the realme they shall find the delinquent guilty 5 R 2 Tryall 54. 35 H. 8 ca 2 fo 261 b. * Dyer 360 contr * When part of the act especially the originall is done in England and parâ— out of the realme that part that is to be performed out oâ— the realme if issue be taken thereupon shall be tried heâ— by twelve men and those twelve shall come out of the plaâ—â— where the writ is brought for example it was convenantâ—â— by Indenture by charter party that a ship should Sail froâ— Blackney haven in Norf. to Muttrel in Spaine and there remaâ—â— by câ—rtain dayes 48 E 3 3 11 H 7 16 1 R 3 4. In an action of Covenant brought upon this Charteâ— party the Indenture was alleged to be made at Thetford Norfolk and upon pleading the issue was joyned whethâ—â— the said ship remained at Muttrel c. and it was adjudgâ— That this issue should be tryed at Thetford where the actiâ—â— was brought because there the Contract took his Originall c. P 28 El Constant Hughin Ban R l 6 fo 47 Dowdales Case An Obligttion made beyond the Seas may be sued here in England in what place the Plaintiff will 2 E 2 Oblig 15 Whether Bourdeaux in France be in Islington or no is not traversable Vide fo 261. b. If a man be disseised before he go over Sea or cometh into the Realm again before the discent the discent shall take away his entry Sect 441 By the Statute of 4 H 7 cap 34 five years after Proclamations made upon the Fine are given to him that right hath to make his claim or pursue his action where the Common Law gave him but a
year and a day but this Statute extends onely to Fines and not to Non-claim upon a judgement in a Writ of Right and therefore the Statute of â—â— E 3 16 which ousteth Non-claim onely to Fines levied extendeth not to a judgement in a Writ of Right to this day and therefore the Common Law in that case remaineth c. viz that claim must be made within a year and a day after judgement Also if a Fine be levied without Proclamations or without so many as the Law requireth then the Statute of Non-claim doth extend to such a Fine l 3 fo 44 c. Case del fines l 1. fo 96 Shelleys Case l 2 f 93 Binghams Case l 8 f 100 Lechfords Case l 91 f 139 c. Beaumands Case l 10. f â—9 b Lampots Case 99 a l 9 f 105 Margaret Podgers Case l 5. f 124 Saffins Case l 1â— 96 Seymors Case l 8 f 72. Greysleys Case l 11 â—65 7â— 78. Pl. Com. Smith and Stapl. Case Stows Case and Howels Case Bract. 435 Brit. 216 fo 262 a Finis finem litibus imponit A feme covert also they in reversion or remainder expectant upon any estate of Freehold are holpen by the Statute of 4 H 7 vide lib. fo â—62 b Sect. 442. In a Writ of entry sur disseisin against one supposing that he had not entry but by I. S. who disseised him the Tenant said that I.S. dyed seised and the land descended to him and prayed his age the Plaintiff counterpleaded his age for that he arraigned an Assize against S. who dyed hanging the Assize and he was ousted of his age for that the bringing of the Assize amounted to a Claim 24 E 3. 25. 9 E 2. Age 1â—1 If Tenant in Dower alien in fee with Warranty and the heir in the reversion bring a Writ of entry in Casu proviso c and hanging the plea the Tenant dyeth the heir shall not be rebutted or barred by this Warranty for that the Praecipe did amount to a continuall Claim 3 E 3. Garr 62. Fleta l. 6 c. 52 Bract. l. 5 fo 436 Fo. 263 a. Nota c. If the goods of Villain before any seisure c. be distrained the Lord may have a Replevin and the very bringing of the Writ doth amount to a Claim of the goods and vesteth the property in the Lord 33 E 3 Repl. 43 â—2 E 3 18. b 9 H â— 25. Nemo debet rem suam sine facto aut defectu suo emittere Sect. 443. If an usurpation be had to a Church in time of vacation this shall not prejudice the Successor to put him out of possession but that at the next avoidance he shall present F. N. B. 34 M.W. 2 c 5. imp excus c. When there is no Dean or Mayor the Chapter or Commonalty in that case cannot make claim because they have neither ability nor capacity to take or to sue any action But during the vacation of the Abathy of D. if a lease for life or a gift in Tail be made the remainder to the Abbot of D. and his Successors this remainder is good if there be aâ— Abbot made during the particular estate 2 H 7 13. 40 As 26. 34 E â— Garr 29. Qu. de dubiis c. Inter cuncta leges percunctabere doctos Hor. As Collatio peperit artes so Collatio perficit artes Crescente scientia cresunt simul dubitationes Autortias Philosophorum Medicorum Poetarum sunt in causis allegandae tenendae fo 264. a. CHAP. VIII Of Releases Sect. 444 REleases are of two sorts viz. a Release of all the right which a man hath either in lands and tenements or in goods and chattels Or there is a Release of actions real of or in lands or tenements or personal of or in goods or chattels or mixt partly in the realty partly in the personalty vide S 4â—2 Remis Relax quiet clamasse are proper words of Releases and be much of one effect besides there is Renunciare Acquietare and there be many other words of Release as if the lessor grants to the lessee for life that he shall be discharged of the rent vide S 532. Express Releases must of necessity be by Deed. Releases in Law are sometime by Deed and sometime without Deed. As if the Lord dissease the Tenant and make a Feoffment in fee by Deed or without Deed this is a Release of the Seigniory And so it is if the disseisee disseise the heir of the disseisor and make a Feoffment c this is a Release in Law of the right And the same Law is of a right in action 27 H 8. 29. Vse 34 H 6. 44. Attaint 3 E 3. 38. 21 E 4. 21. Pl. Com. de la mere If the Obligee make the Obligor his executor this is a release in law of the action but the duty remains for the which the executor may retain so much goods c. 8 E 4. 3. 21 E 4. 2. If the feme Obligee take the Obligor to husband this is a Release in Law So it is if there be two femes Obligees and the one take the debtor to husband 11 H 7. 4 â—0 H 7. 29 8 E 4. 3. If an Infant make the debtor his executor this is a good Release in Law of the action But if a feme execuâ—rix take the Debtor to husband this is no Release in Law for that should be a wrong to the dead and in Law work a Devastavit which an act of Law shall never work M. 30 31 Eâ— adjudged Note a diversity between a Release in Deed and a Release in Law â— for if the heir of the disseisor make a lease for life his right is gone for ever But if the disseisee doth disseise the heir of the disseisor and make a lease for life by this Release in Law the right is released but during the life of the lessee for a Release in Law shall be expounded more favorably according to the intent of the parties then a Release in Deed which is the act of the party and shall be taken most strongly against himself 30 E 3. 24 32 E 3. sc fac 102. Ius includeth not onely a right but also any Title or Claim either by force of a Condition Mortmain c. for the which no action is given by Law but onely an entry Sect. 446 fol. 265. a. Null droit passa per un release forsque le droit que le relesior ad al temps del release fait Note a man may have a present right though it take effect in possession but in futuro As he that hath a right to a reversion or remainder and such a right he that hath it may presently release Brit. fo 101. The Baron makes a lease for life and dieth the Release made by the wife of her Dower to him in reversion is good albeit she hath no cause of action against him in present 16 E 3. Bar. 245. Hoes Case 5.
part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit 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 l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the 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 need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
5. 15. H. 7. 13. b. 5. E. 4. 7. a. The surest construction of a Statute is by the rule and reason of the Common Law Uses were at the Common Law When the Law gives to any man any estate or possession the Law giveth also a privity and other necessaries to the same Since Littleton wrote the said Statute of 2. H. 5 is altered for where that Statute limited 40. s. now a later Statute hath raised it to 4. l. and so it ought to be contained in the Ven. fac 27. El. cap. 6. Nota. An use is a trust or confidence reposed in some other which is not issuing out of the land but as a thing collaterall annexed in privity to the estate of the land and to the person touching the land viz. that Cesty que Use shall take the profit and that the Terre-tenant shall make an estate according to his direction So as Cesty que Use had neither jus in re nor jus ad rem but onely a confidence and trust for which he had no remedy by the Common Law but for breach of trust his remedy was only by Subpoena in Chancery Fortescue cap. 25 26 c. Pl. Com. 352. b. in Dalameres case 349. b. l. 1. fo 121 122 127 140. â—hudleys case l. 2. fo 58 78 l. 6 fo 64. l. 7. fo 13 34. Vide Fortescue ut ante c. How Jurors shall be returned c. Sect. 65. Fol. 273. a. It is a certain rule That when a Release doth enure by way of inlarging of an estate that there must be privity of estate as between lessor and lessee donor and donee Fleta l. 5. cap. 34. 15. H. 7. 14. 22. E. 4 4. But a Release to him that in rei veritate albeit there be privity in Law and a tenancy in supposition of Law hath no estate cannot enure to him by way of inlargement for how can his estate be inlarged that hath not any Vide Libr. If a Tenant by the Curtesie grant over his estate yet he is Tenant as to an action of Wâ—ste Attornment c. and yet a Release to him and his heirs cannot enure to inlarge his estate that hath no estate at all If I grant the reversion of my Tenant for life to another for life now shall not he have an action of Waste But if I release to the grantee for life and his heirs now he hath the Fee simple and shall punish the Waste done after 48. E. 3. 16. a. per Persay and Finchden 41. E. 3. 17. a. 7 E. 4. 17. It is further to be observed that to a release which enureth by way of inlargement of the estate there is not only required privity and an estate but sufficient words also in Law to raise or create a new estate If a man make a lease to A. for term of the life of B. and after release to A. all this right in the Land by this A. hath an estate for term of his own life for a lease for term of his life is higher in Judgement of Law then an estate for term of another mans life vide 16. H. 6. Release 45. 22. E. 2. Rel. Statham Nota when a Release doth enure by way of enlargement of an estate no inheritance either in fee simple or fee tail can passe without apt words of inheritance But there is a diversity between a Release that enureth by way of Mitter lestate and by way of enlargement of the state 9. El. Dyer 263. If there be three joyntenants and one release to one of the other all his right this enureth by way of Mitter lestate and passeth the whole fee simple without these words Heirs But if there be two joyntenants the one release of them all his right to the other this doth not to all purposes enure by way of Mitter lestate for it maketh no degree and he to whom the release is made shall for many purposes be adjudged in from the first Feoffor and this release shall vest all in the other joyntenant without these words Heirs 40. E. 3. 41. 46 E. 3. 19 H 6. 33 H. 6. 5. 10 E. 4. 3. But if there be two Coparcerners and the one release all his right to the other this shall enure by way of Mitter testate and shall make a degree and without these words Heirs shall pass the whole fee simple And note that to a release that enures by way of Mitter lestate there must be privity of estate at the time of the Release 37 H. 8. Alienat Br. 31. 8 H. 4. 8. 40 Ass 5. 19. If two Coparcerners be of a rent and the one of them take the Terre tenant to husband the other may release to her notwithstanding the rent be in suspence and it shall enure by way of Mitter lestate and she may release also to the Terre-tenant and that shall enure by way of extinguishment But if she release to her sister and to her husband it is good to be seen how it shall enure * Nota some releases do enure by way of enlargement of estate some by way of Mitter lestate some by way of Mitter le droit by way of Entry and Feoffment and some by Extinguishment vide Littl. fo 68 69. Sect. 467. Fol 274. a. Reg. he that hath a fee simple at the time of the Release made of a right c. needeth not speak of his heirs for a release of a right for a day is sufficient c. But if a man be disseised of two acres he may release his right in one of them and yet enter into the other vide 6 E. 3. 17. alias 6. E. 3. 17. 12. E. 3. discent F. 29. So note a diversity between a release of part of the estate of a right and a release of a right in part of the Land Again note two diversities 1. Between the quantity of the estate in a right and the quality thereof for albeit the disseisee cannot release part of the estate yet may he release his right upon condition 4. E. 2. Release 50. 43. Ass 12. 17. Ass 2. 31. Ass Ass 13 21. H. 24. 2. Diversity is between a right which is favoured in Law and a condition created by the party which is odious in Law for that it desceateth estates and therefore if a condition be released upon condition the release is good and the condition void fo 274. b. An express Manumission of a Villain cannot be upon condition for once free in that case and over free Also an Attornment to a grantee upon condition the condition is void because the grant is once setled But this is to be understood of a condition subsequent and not of a condition precedent for in both cases the condition precedent is good But Letters Patents of Denization made to an alien may be either upon condition subsequent or precedent and so may the King make a Charter of Pardon to a man of his life upon condition as is abovesaid
Carta autem de confirmatione est illa quae alterius factum consolidat confirmat nihil novi attribuit quandoque tamen confirmat addit Flet. l. 3. ca. 14. En asc ' case un fait de confirmation est bon available lou en tiel case un fait de release nes pas bon c. Car release ne pas available mes lou est un privity c. And note that where a confirmation shall enlarge an estate there privity is required as well as in the case of the Release 9 H. 6. 22. Release 44. Littleton in this Chapter putteth eight diversities betweene a confirmation and release And in this Chapter is also to be observed eight cases wherein a release and confirmation have the like opperation in Law Vid. Sect. 516 c. fo 296. a. If the disseisor make a Lease for years to begin at Michaelmos and the disseisee confirme his estate this is void because hee hath but interesse termini and no estate in him whereupon a confirmation may enure 4 H. 7. 10. by read 22. E. 4. 39. Sect. 519. c. Fo. 296. b. Si le desseisee confirme lestate le disseisor a aver tentant a luy pur terme de sa vie enc'le disseisor ad fee simple c. pur ceo que quant son estate fuit confime donque il avoit fee tiel fait ne pâ—it change son estate sans enter fait sur luy c. alia ratio quia confirmare idem est quod firmum facere 19 H. 6. 22. 6 E. 3. confirmation 4. Sect. 520. Fo. 297. a. Nota a diversity betweene a bare assent without any right or interest and an assent coupled with a right or interest and therefore an attonement cannot be made for a time nor upon condition but if the person make a Lease for a 100 years the Patron and ordinary may confirme 50 of the yeares for they have an interest and may charge in time of vacation Lib. 5. fo 81. Fordes case If tenant for life make a lease for a 100 yeares the lessor may confirme either for part of the terme or for part of the land But an estate of freehold cannot be confirmed for part of the estate for that the estate is intire and not severall as years be Sect. 521. Fo. 207. b. If the disseisor make a gift in taile the remainder for life the remainder to the right heires of tenant in taile this extendeth only to the estate taile c. If the disseisor infeoffe 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 to his whole fee simple because to many purposes he had the whole fee simple in him and the confirmation shall be taken most strong against him that made it If a feme disseiseresse make a feoffment in fee to the use of A for life and after to the use of her selfe in taile and the remainder to the use of B in fee and then taketh husband the disseisee and he release to A. all his right this shall enure to B. and to his own wife also for by the rule of Littleton it must enure to all in the remainder But A. lets Land to B. for life and B. maketh a Lease to C. for his life the remainder to A. in fee if A. release to C. all his right this is good to perfect the estate of C. for his life But when C. dyeth A. shall be in of his old estate c. and note that in these two cases the fee is devested and vested all at one instant c. Vide fo 297. b. Pur ceo que le remainder est dependant c. by this some have gathered that if a disseisor make a Lease for life reserving the reversion to himselfe and the disseisee confirme the estate of the disseisor that he may enter upon the lessee because the estate of him in the reversion dependeth not upon the estate for life as the remainder but all is one for by the confirmation made to him in the reversion all the right of him that confirmeth is gone as well as when he maketh it to him in remainder and he cannot by his entry avoid the estate of the lessee for life but he must avoid the estate of the lessor which against his own confirmation he cannot doe and it hath been adjudged that if a disseisor make a Lease for life and after levy a fine of the reversion with proclamations and the five years passe so as the disseisee is for the reversion barred he shall not enter upon the Lessee for life Reported by Sir Jo. Popham chief Justice Where the particular estate and the remainder depend upon one title there the defeating of the particular estate is a defeating of the remainder But where the particular estate is defeasible and the remainder by good title there though the particular estate be defeated the remainder is good As if the lessor disseise A. lessee for life and make a Lease to B. for the life of A. the remainder to C. in fee albeit A. reenter and defeate the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the lessor should have the remainder againe against his own livery So it is if a lease be made to an Infant for life the remainder in fee the Infant at his ful age disagree to the estate for life yet the remainder is good Pl. Com. Colthirsts Case fo 298. a. If a lease be made to A. for the life of B. the remainder to C. in fee A. dyeth before an Occupant enter here is a remainder without a particular estate and yet the remainder continueth 17 E. 3. 48. A rent is granted to the Tenant of the land for life the remainder in fee this is a good remainder albeit the particular estate continued not for coinstante that he tooke the particular estate eo instante the remainder vested and the suspension in Judgement of Law grew after the taking of the particular estate 3 E. 3. Abb. Ass If a man grant a rent to B. for the life of Alice the remainder to the heirs of the body of Alice this is a good remainder and yet it must vest upon an instant 7. H. 4. 6. Sect. 522 523 524. Fol. 298. 2. A Release is more forcible in Law then a Confirmation if the disseisee and a stranger disseise the heir of the disseisor and the disseisee confirm the estate of his companion this shall not extinguish his right that was suspended So as if the heir of the disseisor re-enter the right of the disseisee is revived And so it is if the grantee of a rent charge and a stranger disseise the Tenant of the Land and the grantee confirm the estate of his companion the Tenant of the land re-enter the rent is received for
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent 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 seeing the statute that 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 and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
non-tenure or disclaime there the demandant may averre him to be Tenant of the Land as his Writ supposes for the benefit of his damage which otherwise he should lose or pray judgement and entry 13 H. 7. 28. 22 H 6. 44. But where no damages are recoverd as in a Formedon in discent c. there he cannot aver him Tenant but pray his judgement and enter for thereby he hath the effect of his suit frustra fit per plura quod c. 8 E. 3. 434. 24 E 3. 9. 11 H. 4. 16. and 7 H. 6. 17. A general averment is the conclusion of every plea to the Writ or in barre of replication and other pleadings for Counts or Avowries in nature of Counts need not be averred containing matter affirmed ought to be averred hoc paratus est verificare c. Particular averments are as when the life of Tenant for life or Tenant in Tail are averred and there though this word verificare be not vsed but the matter avouched and affirmed it is upon the matter an averment and an averment containeth as well the matter as the forme thereof Sect. 692 Fol. 363. a. Albeit in this case and in the case before the entry of the demandant is his own act and the demandant hath no expresse judgement to recover yet he shall be remitted causa â—â—a supra 36 H. 6 Fo. 29. Sect. 693. Fo. 363. b. Here note a diversity If a man of full age having but a right of action taketh an estate to him he is not remitted But where he hath a right of entry and taketh an estate he by his entry is remitted because his entry is lawful and if the disseisor infeoffe the disseisee and others the disseisee is remitted to the whole for his entry is lawful otherwise it is if his entry were taken away 29. Ass p. 26. 43. Ass 3. 11 H. 7. â—0 3 H. 6. 19. 40 E. 3. 43. If Tenant in Tail be of a manor where unto an advowson is appendant the Tenant in Tail discontinue in Fee discontinuee grant away the Advowson in Fee and dyeth the â—â—e in tail recontinueth the Manor by Recovery he is thereby remitted to the Advowson and he that right hath shall present when the Church becometh void 8 R. 2. Qu. imp 199. 26. H. 8. 4. F.N.B. 36. 35. b. The Patron of a benefice is outlawed and the Church become void an estranger usurpeth and six moneths passe the King doth recover in a qu. imp and remove the incumbent c. Advowson is recontinued to the rightful patron 22. Ass p. 33. Theobald Grinvile and so note a diversity a remitter cannot be properly unlesse there be two Titles but a recontinuance may be where there is but one If the disseisor by Deed Indented make a Lease forlife or a gift in Taile c. yet the Deed Indented shall not suffer the livery made according to the form and effect of the Indenture to work any Remitter to the disseisee but shall estop the disseisee to claim his former estate and if the disseisor upon the feoffment doth reserve any Rent or condition c. the rent or condition is good 13 H. 4. 5. 3 H. 4. 17. 8 H. 4. 8. 12 H. 4. 19. 35. Ass 8. 17. Ass 3. 43. E. 3. 17. Parkers Case 21 H. 6. 2. per Paston Sect. 695. Fol. 364. a. Note a diversity A claime in paiis shall not hinder Remitter otherwise it is a claime of Record because that doth work a conclusion Sect. 696. Fol. 344. b. Here note a notable diversity If two joyntenants or coparceners joyn in a reall action where their entry is not lawful and the one is summoned and severed and the other pursueth and recovereth the moity the other Joyntenant or Coparceners shall enter and take the profits with her because their remedie was one and the same But where two Coparceners and they are disseised and a discent is cast and they have issue and dye if the issue of the one recover her moity the other shall not enter with her because their remedies were severall and yet when both have recovered they are coparceners again 10. H. 6. 10. 19 H. 6. 45. 31 H. 6. Ent. Cong 54. So here in this case that Littleton putteth then two joyntenants have not equall remedy for the Infant hath a right of Entry and the other a right of action and therefore the Infant being remitted to moity the other shall not enter and take the profits with her If A and B. joyntenants in fee be disseised by the Father of A. who dyeth seised his Sonne and heir enter he is remitted to the whole and his companion shall take Advantage thereof Otherwise here in the case of Littleton for that the Adventure is given to the Infant more in in respect of his person than of his right whereof his companion shall take no advantage But if the Grandfather had disseised the Joyntenants and the land had discended to the Father and from him to A. and then A. had dyed the entry of the other should be taken away by the first descent and therefore he should not enter with the heire of A. But here in the case of Littleton if after the discent the other Joyntenant had dyed and the infant survived some say that he should have entred into the whole because he is now in Judgement of of Law solely in by first feoffment and he claimeth not under the discent Vide 35 Ass p. ultimo ** CHAP. XIII Of Warranty Sect. 697. A Communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem A warranty is a convenant reall annexed to Lands or Tenements whereby a man and his heires are bound to warrant the same and either upon voucher or by judgement in a writ of Warrant Cartae to yeeld other Lands and Tenements to the value of those that shall be evicted by a former title or else may be used by way of Rebutter i.e. to repel or barre Bract. l. 2. fo 37. and l. 5. fo 380. c. Glan l. 3. ca. 1. 2. 3. 38. E. 321. 45 E 3. 18. Fol. 365. a. Garronter en un sense signifie a defender son tenant en sa seisin en auter sence signifie que si il ne defendant que le garrant luy soit tenue a eschanges de faire son gree a la vaillaunce Brit. Fo. 197. b. By the Statute of Glocestor foure things are enacted 1. That if a Tenant by the Curtesie alien with warranty and dyeth that this should be no barre to the heir in a Writ of Mordanc without Assets in fee simple and if Lands or Tenements descend to the heir from the Father he shall be barred having regard to the value thereof 2 That if the heir for want of Assets c. doth recover the Lands of his mother by force of this Act and afterwards Assets discend c. 3. That the issue of the Sonne
wrote A lineal Warranty and Assets was a barre to the estate Tail when Littleton wrote 26 H. 8. c. 13. 33 H. 8. c. 20. 5 E. 6. c. 11. St. pl. Cor. 18. A Common Recovery with a voucher over and a Judgement to recover in value was a barre of the estate Tail when Littleton wrote 12 E 4. 19. Taltarums Case And of Common Recoveries there be two sorts viz. one with a single Voucher and another with a double Voucher and that is more common and more safe there may be more Vouchers over Vid. Sect. 690. vide l. 3. f. 5. Cuppledicks case and fo 94 97 106. vide post ** If the King had made a gift in Tail and the donee had suffered a Common Recovery this should have barred the estate Tail in Littletons time but not the reversion or remainder in the King And so if such a donee had levied a Fine with proclamation after the Statute of 4 H. 7. this had barred the estate Tail although the reversion was in the King 38 H. 8. Tail Br. 41. Pl. Com. fo 555. 29 H. 8. Dyer 52 ** Com. Recoveries c. Vide l. 1. f. 62. Capels case l. 2. f. 16. 52 74 77. l. 6. f 41 32. l. 10. f. 37. Mary Portingtons case But since Littleton wrote a Common Recovery had against Tenant in Tail of the Kings gift c. is no barre c. by the Statute of 34 H. 8. c. 20. And where the words of the Statute be Whereof the reversion or remainder at the time of such recovery had shall be in the King these ten things are to be observed upon the construction of that Act. 1. That the estate Tail must be created by a King and not by any Subject 2. The King must have the reversion at the time of the Recovery 3. The reversion or remainder cannot be barred but where the estate Tail in possession is barred l. 8. f. 77 78. Seignieur Staffords case 4. If a Subject make a gift in Tail the remainder to the King in fee the estate Tail may be barred by a Common Recovery causa patet l. 2. f. 52. Cholâ—leys case 5 So it is if the King had the remainder by discent 6. The word Reversion in the body of the Act hath reference to these words given or granted and Remainder hath reference to these words otherwise provided As if the King in consideration of money or of Assurance of Land or for other considerations by way of provision procure a Subject by Deed indented and inrolled to make a gift in Tail to one of his Servants and Subjects for recompence of service or other consideration the remainder to the King in fee and all this appear of Record this is a good provision within the Statute and the Tenant in Tail cannot by a Common Recovery barre the estate Tail So it is if the remainder be limited to the King in Tail bus if he be limited for years or for life it is otherwise Lib. 2. fol. 16. Wisemans case 7. Where a Common Recovery cannot barre the estate Tail by force of the said Statute there a Fine levied in Fee in Tail for lives for years with proclamation according to the Statute shall not barre the estate Tail or the issue in Tail where the reversion or remainder is in the King by reason of these words in the said act The said Recovery or any other thing or things hereafter to be had done or suffered by or against any such Tenant in Tail to the contrary notwithstanding which words include a Fine levied by such a donee and restraineth the same P. 31. Eliz. Rot. 1645. Notleys case B. C. 8. But where a Common Recovery shall barre the estate Tail notwithstanding that Statute there a Fine with proclamation shall barre the same also 9. Where the said latter words of the Statute be Had done or suffered by or against any such Tenant in Tail the sense and construction is where Tenant in Tail is party or privy to the Act be it by doing or suffering that which should work the barre and not by meer permission he being a stranger to the Act. 10. Albeit the Preamble of the Statute extends onely to gifts in Tail made by the Kings of England before the Act viz. hath given and granted c. and the body of the Act referreth to the Preamble viz. that no such fained Recovery hereafter to be had against such Tenant in Tail so as this word such may seem to couple the body 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 A Recovery in a Writ of Right against Tenant in Tail without a Voucher is no barre of any gift in Tail If Tenant in Tail the remainder over in fee cesse and the Lord recover in a Cessavit this shall not barre the estate Tail for the issue shall recover in a Formedon neither were either of these barres when Littleton wrote 33. E. 3. Judgement 252. 3 H 6. 55. 10 H. 6. 5. 14 E. 4. 5. b. 15 E. 4. 8. F.N.B. 134. b. Pl. Com. 237. 28 E. 3. 95. F.N.B. 28. I. Sect. 702. Fol. 373. b. Nemo praesumitur alienam posteritatem suae praetulisse If a man that is innocent be accused of Felony and it be found that he fled for the Felony he shall forfeit all his goods and chattels debts and duties 3 E. 3. Corone Staf. But yet the general Rule is Quod stabitur praesumptioni donec probetur in contrarium Bract. l. 1. c. 9. It hath been attempted in Parliament that a Statute might be made That no man should be barred by a Warranty collateral but where assets descended from the same Ancestor but it never took effect for that it should weaken common assurances Rot. Parliament 50 E. 3. num 77. Sect. 710 711 712. If husband and wife tenants in especial Tail have issue a daughter and the wife dye the husband by a second wife hath issue another daughter and discontinueth in fee and dyeth a collateral Ancestor of the daughters releaseth to the discontinuee with Warranty and dyeth the Warranty descendeth upon both daughters yet the issue in Tail shall be barred of the whole for in judgement of Law the entire Warranty descendeth upon both of them 5 E. 2. garr 78. l. 8. fo 41. Sims case Here note That when one Coparcener doth generally enter into the whole this doth not devest the estate which descended by Law to the other unlesse she that doth enter claimeth the whole and taketh the profits of the whole Vide Sect. 398. Otherwise it is after the parceners be actually seised the taking of the whole profits or any claim made by the one cannot put the other out of possession without an actual putting out of disseisin And
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
years c. in this case if he be ousted by a stranger without being impleaded the Obligation is forfeit But if he be bound to warrant the land c. the bond is not forfeit unlesse the Obligee is impleaded and then the Obligor must be ready to warrant c. 2 E. 4. 15. tit Det. 71. Qui benè distinguit benè docet fol 384. a. A Warranty in Deed is created onely by this word Warrantizo but Warranties in Law are created by many other words they are therefore called Warranties in Law because in Judgement of Law they amount to a Warranty without this Verb Warrantizo As Dedi is a Warranty in Law to the feoffee and his heirs during the life of the feoffor but Concessi in a Feoffment or Fine implieth no Warranty But before the Statute of Quia Emp. ter if a man had given lands by this word Dedi to have and to hold to him and his heires of the Donor and his heirs by certain Services then not onely the Donor but his heirs also had been bound to warrant But if before the Statute a man had given lands by this word Dedi to a man and his heirs for ever to hold of the chief Lord there the feoffor had not been bound to Warranty but during his life as at this day he is Lestat de Bigamis c. 6. 2 H. 7. 7. 6 H. 7. 2. 48 E. 3. 2. 31 E. 1. vouch 290. F. N.B 134. b. 6 E. 2. vouch 258. Dedi doth import a warranty in Law albeit there be an expresse warranty in the Deed. For if a man make a feoffment by Dedi and in the Deed doth warrant the land against I. S. and his heirs yet Dedi is a generall warranty during the life of the feoffor and so was the Statute expounded in both points H. 14. El. in Com. Banc. And if a man make a lease for life reserving a rent and adde an expresse warranty here the expresse warranty doth not take away the warranty in Law for he hath election to vouch by force of either of them and in Nokes Case note a diversity between a warranty that is a Covenant and a warranty concerning a Chattell l. 4. fo 80. 8 E. 3. 69. 3 E. 3. Formedon 44. Also this word axcambium doth imply a warranty Also a Petition implyeth a warranty in Law and homage Aunc ' doth draw to it selfe warranty 4 E. 2. vouch 245. 22 E. 3. 3. 14 H. 6 2. 20 H. 6. 14. l. 4. 122. l. 1. 96. l. 5. fo 17. l. 8. 75. Seignior Staf. case And note that the warranty wrought by this word dedi is a speciall warranty and extends to the heirs of the Feoffee during the life of the donor only But upon the exchange Homage Aunc ' the warrant extending reciprocally to the heires and against the heires of both parties and in none of these cases the Assignee shall vouch by force of any of these warranties but in the case of the exchange and dedi the Assignee shall rebutt but not in the case of Homage Auncestrel And so no man shall have a writ of contra formam collationis but onely of the feoffee and his heirs which be privy to the Deed but an Assignee may rebutt by force of the Deed. 28 Ass 33. 14 H. 4. 5. 11 E. 3. Avowr 100. 30 H. 6. 7. 33 H. 8. Dy. 51. 10 H. 7. 11 b. F. N. B. 163. a. If a man make a gift in Taile or a Lease for life of land by deed or without deed reserving a rent or of a rent service by deed this is a warranty in Law and the donee or lessee being impleaded shall vouch and recover in value and this warranty extendeth not onely against the donor or lessor and his heires but also against his Assignees of the reversion and so likewise the Assignee of lessee for life shall take benefit of this warranty in Law 6 E. 2. vouch 105. 5 E. 3. 67. 3 H. 7. 13. 6 H. 7. 2. 7 E. 3. 6. F.N.B. 134. g. When dower is assigned there is a warranty in Law included that the Tenant in Dower being impleaded shall vouch and recover in value a third part of two parts whereof she is Dowable 4 E. 3. 36. 43. Ass 32. 50 E. 3. 7. F.N.B. 149. m. A warranty in Law and Assets is in some cases a good barre In a Formedon in the discender the Tenant may plead that the Ancestor of the demandant exchanged the Land with the Tenant for other Lands taken in exchange which descended to the demandant whereunto he hath entred and agreed or if he hath not entered and agreed unto the Lands taken in exchange then the Tenant may plead the warranty in Law and other Assets descended 14 H. 6. 2. 15 E. 3. Bar. 255. If Tenant in Taile of Lands make a gift in Taile or a Lease for life render a rent and dyeth and the issue bring a Formedon in the discending the Reversion and rent shall not barre the demandant because by his Formedon he is to defeat the reversion and rent Et non potest adduci exceptio ejusdem rei cujus petitur dissolutio 38 E. 3. 22. 23. 24. 13 E. 3. gar 35. But if other Assets in fee simple doe discend then this waâ—ranty in Law and Assets is a good barre in the Formedon 16 E. 3. Age 45. 31 E. 3. gar 29. Here four things are to be observed 1. That no warranty in Law doth barre any collaterall title but is in nature of a lineall warranty wherein note the equity of the Law Fo. 384. b. 2. That an expresse warranty shall never binde the heirs of him that made the warranty unlesse they be named but in case of warranty in Law in many cases the heires shall be bound to warranty albeit they be not named 3. That in some cases warranties in Law do extend to execution in value of speciall Lands and not generally of Lands descended in fee simple lib. 4. fol. 121. Bustards Case 4. That warranty in Law may be in some cases created without Deed as upon gifts in Taile Leases for life eschanges and the life 45 E. 3. 20. b. Also it is necessary to shew who shall take advantage of a warranty as Assignee by way of voucher to have recompence in value If a man infeoffee A. and B. to have and to hold to them and their heires and Assignes with a clause of warranty praedictis A. and B. eorum haered Assignatis in this case if A. dyeth and B. surviveth and dyeth and the heire of B. infeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heir of one of them for in judgment of Law the Assignee of the heire is the Assignee of the Ancestor and so the Assigne of the Assignee shall vouch in infinitum within these words his Assignes 14 E. 3. gar 33. 13 E. 1. gar 83. lib. 5. fol. 17. b. Spencers case 38 E. 3. 21.
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
not good 735 Auter droit 133 Alien his issue before denization 134 Actio quid quotuplex 313 Alien what actions 134 Annuity where it lyeth and where not 150 151 Ambiguitatis expositio 154 Assise of Rent 164 Arrerages of Rents how recoverable by the Statute 32 H. 8. cap. 37. which could not be obtained by the Common Law 168 169 Aenitia pars quid 173 Account against a Bayliff 177 Against a Receiver ib. Account ratione objecti quotuplex 78 Privity requisite ib. Agreement qualifies c. 112 Annus Dies 272 Authority to be pursued 274 275 It differeth from Right 283 Avowries four kindes 291 Acts concerning possession differ 292 Abatement quid 302 Actions transitory place not traversible sans special matter 310 Assise for damages onely not many tenable 314 Action well begun not abateable per mort c. where 314 Appellum quid quotuplex 317 Annuity not meerly in Action 323 Attaint Judgement in it ib. Assent with interest and without it differ 326 Attornament quid propter quod 339 quotuplex 340 Attornnent not necessary where and why 339 340 345 Attornment countermanded 341 Void for uncertainty 342 Attornament long after c. good ab initio where ib. Attornment presumed ib. Attornment by whom 344 348 349 350 Attornment requisite to what Grants 345 To pass the estate and where requisite to give privity 347 Attornment need not to a Devise 355 Abeyance where 377 Acts of Parliament how to be construed 403 Averment general and special 407 Acts of Parliament for buying of Titles extendeth not to an Ejec Form 419 Assets to barre on Estate Tail how qualified 428 B Bastard who his reputed name its effect p. 3 Belliyuâ— undâ— who 82 Bishop hath a Barony 88 Breve quid quotuplex respectu materiae formae efficientis finis objecti adjuncti c. 90 91 Brevia anticipantia 107 Burgh quid 108 Brief abated 131 Borough English 147 Bayliff who 175 Billa quid 177 Barre to issue in tail what 178 Baron and feme one person 193 Beadle his duty and oath 245 Brief d'entry quotuplex 251 Bastardus quis unde dicitur 258 Its divisions 258 Et under creationem habet Barrettor quis 417 C Conveyances fraudulent avoided by whom p. 4 Challenge of a Juror or Witness do differ 5 Curtesie Angleterre to whom 't is extendible and of what things 21 22 Common sans number 23 Curtesie where no Dower 22 Consent at what age it is binding 26 Capacities for taking estates 55 Contract quid pro quo 59 Copyhold Court who is judge 79 Copyhold who may grant ib. Copyholders Fines 89 Copyhold intailed 80 Cornagium or Castleguard 87 Certificatio quotuplex ratione efficientis subjecti de quo 91 Capitulum quid 104 Cognuzance Spiritual 105 Capite Tenure quid cui 113 Corporal service to the person of the Lord ib. City quid propter quid concilium Regis uotuplex 115 Consuetudo quibus constituitur ib. ubi alleganda ejus Energia ib. 116 Courts Record not Record 122 Church when said full 123 Church void multifariam ib. Claim in law of bill goods 152 Coyn bude 209 Calumniaque 163 quotuplex ib. Propter quid ib. of 164 Counterplea its effect 167 Chattels go not in succession 195 Conditio quid quotuplex ex quibus constat qualis quanta 203 206 Condition broken entry 234 Condition possible becomes impossible of what effect 207 208 Condition unlawful how it enures distinctè 208 Conditions in Obligation Feoffment differ 210 211 Condition considered ratione objecti ratione subjecti 211 Condition in Law who shall take advantage of it 217 Condition and power of revocation different 219 Claim where it must be 224 Conditions of mortgage 225 Condition to be performed according to intent where 226 Condition disabled 227 Condition not to alien where good 221 Condition may prohibit what 's prohibited by Law 230 Condition to defeat a freehold must be shewn by deed 231 Condition in Law 237 238 By Common Law and by Statute Law 243 244 They are as strong as Conditions in Deed ib. and 245 Condition in a will what 246 Continual Claim who may make it ib. Continual Claim by a Recluse 275 Capias where it lyeth and where not 316 318 Confirmatio quid quotuplex 315 Confirmation and Release differ 325 Confirmation what word necessary 328 329 Chattels Reals not given to the husband absolutely c. 330 Confirmation by implication 333 Certitudo legalis quotuplex 334 Cognizee what he may do before Attornment 353 Corentare Capitulum 357 358 Conditions Warranty Estoppels do ever descend to the heir at the Common Law not Spiritual 369 Casu Consilii 374 Common Law bounded 379 Chattels of a Feme how disposed by Marriage 387 388 Covin doth many times choak a right 401. Covina quid est ib. D Deed of Feoffments its parts 4 176 Deed its dâ—â—e 5 Deed when good 7 Deed its incidents 28 29 Denization of what feme 7 Devise of lands effected by other words then feoffee 9 Descent what how 13 Demesne unde 14 Degrees of Kindred 18 Dower at what age it is to be deserved 23 Dower what 24 Dower what necessary causes to effect it ib. Dos non de Castro ib. Divorce à vinculo matrimonii à mensa thoro differenced 25 Dowm by metes bounds 26 Dower per Custom 27 Dower ad ostium Ecclesiae ib. Dower assigned by whom 27 28 of what not 30 Dower ex assensu patris 28 Distress of what of what not 59 Disparagement quotuplex 96 Decanus unde 104 Dispensatio quid 106 Deforciamentum quid 303 Disclaimer quotuplex 110 Devise of Lands where and how by Custom by Statute ib. Disability to bring action 135 how many wayes 132 133 Distress where and to what it is an incident inseparable 160 Disseisina quid 161 185 Denial of rent a disseisin 167 Discensus in Capita in stirpes 171 Disseisor who 184 Disseisin quid 302 Demand of Rent where and when 204 Descent what 248 Descent of Corporal inheritances put him that right hath to an action aliter of incoporal 249 Descent taketh not away Entry unless disseisor hath been in quiet possession five years 250 Descent doth not call Entry where 256 257 Dum fuit infra aetatem here it lyeth 263 Derogation of a mans own act disallowed in Law 264 Discent of Chattels none ib. Disseisor dying seised within five years entry is not call'd by Stat. 32 H. 8. 33. 272 Defalta quid 276 Saved ib. Denization may be on condition 298 Demand two kindes 321 Dedi Concessi their power in Law 333 how pleadable ib. Demise its power ib. Departure in pleading what 335 Distress not for Cognuzee of a Fine without Attornment 353 Disseisin cannot be of Rent c. 356 Discontinuance quid 357 by what ways it was done and whom it prejudiced ib. Discontinuance none of such things as lie in grant 361 unless Warranty c 362 Defortiare
disseisin c. mes la ley eÌ„ lou home ad droit dentr par case dâ—asc ' aut title c. Here is implyed abators or intrudors and not only their disseissors but the Feoffees or donees of disseissors abators or intruders or any other so long as the entry is cong and here title is taken in his large sense to include a right V Sect. 650. and 659. Si tenant in taile immediate puis tiel claime continua son occupation en les tenements ceo eÌ„ un disseisin c. a celuy que sist tiel claime sic par conseque le tenant adonques ad fee simple Sect. 430 431. The disseisee shall have an action of trespasse against the disseissor and recover his damages for the first entry without any regresse but after regresse â—e may have an action of trespasse with a continuando and recover as well for all the mean occupation as for the first entry and note that Littleton doth here include costs within dammages Ou il poit aver un breve sur lestat 5 R. 2. ca. 7. Supposant par son breve que son adversary avoit entry en les terres c. celuy que fist le claime c. par tiel action il recover ses dammages c. i.e. that he shall recover dammages for the first tortious entry but not for the mean profits though he made a regresse 37. H. 6. 35. 2 E. 4. 18. 21 E 4. 5. 74. 38. Ass 9. 44. E. 3. 20. 10. H 7. 27. Keilwey 1. b. And here note that also he shall recover his costs of suit 2 E. 4. 24. b. 9. E. 4. 4. b. 16. H. 7. 6. a. Fo. 257. a. One or more may commit a force three or more may commit an unlawfull assembly riot or rout A multitude is not restrained to a certain number but left to the discretion of the Iudges A writ of forcible entry is grounded upon the Statute of 8 H. 6. ca. 9. and lieth where one entreth with force or where he enters peaceably and detaineth it with force or where he enters by force and detaineth it by force and in this action without any regresse the plaintiffe shall recover treble dammages as well for the mean occupation as the first entry by force of the Statute and he shall recover treble costs also 3 E 4-19 24. F. N. B. 240. c. 11 E. 4. 11. b 6 H 7. 12. 22 H 6. 57 If three or foure goe to make a forcible entry albeit one alone use the violence all are guilty of force 10 H 7 1â— Note that there is a force implyed in Law as every trespass Rescous et disseisin implyeth a force and is vi et armis and there is an actuall force as with weapons number of persons c. and when an entry is made with such actuall force an action doth lie upon the said Statute Vide Sect. 240 54 H 6 20. Sect. 433. Qui per alium facit per seipsum facere videtur If an infant or any man of full age have any right of entry into any lands any stranger to the use of the infant c. may enter into the lands and this Reg. shall vest the lands in them without any commandment prâ—cedent or agreement subsequent But if a disseisor levy a fiâ—e with proclamation according to the Statute a stranger without a Commandment c. within the five yeers cannot enter in the name of the disseisee to avoid the fine and that resolution was grounded upon the construction of the Statute of 4 H. 7. ca. 24. But an assent subsequent within the five years should be sufficient omnis enim ratihabitio c. 7 E 3 69 11. Ass p 11 39. Ass p 18 10 H 7 12. a. 3 H 8. entry conque et faux recovery 29. lib. 9. fo 106 a. L. Audeleyes case 45 E 3. Release 18. and Breve 589 20 E 3. 62 par Thorp Sect. 434. Reg. it is true that where a man doth lesse than the commandment or authority committed unto him there the act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest Impotentia autâ—n excusat legem 1 H. 4 3. 12 Ass 24. 26. Ass 39 V. S 419. 46. E 3. petition 18. 33. H. 6. 8. Lex non permittit aliquod inconveniens Albeit the Recluse or Anchorite be shut up himself c. yet to avod a discent he must command one to make claim and such a recluse shall alwayes appear by Atturney in such cases where others must appear in proper person 43 E 3. 8. b. 30. a. Sect. 436. Quant home est in prison est disseise le disseisor mor feign c. The disseisee shall not be bound in this case for that by the intendment of Law he is kept without intellâ—gence of things abroad and also that he hath not liberty to goe at large to make entry or claim or seek counsell and so note a diversity between a Recluse who might have intelligence and a man in prison Pl. Com. 360. Stowels case But if he be disseised when he is at large and the discent is cast during the time of his imprisonment this discent shall bind him 9 H 7. 24. Vide lib. fo 259. a. Sect. 437. Si tâ—el que est en prison soit utlage en action de debt ou trespass ou en apucal de Robbery il reveria tiel utlage per bâ—eve de error Outlawries may be reversed either by plea or by writ of error By plea when the defendant commeth in upon the Caput utlagati c. he may by plea reverse the same for matters apparent as in respect of a supersedeas omission of processe varience or other matter apparent in the Record and yet in these cases some hold that in another term the defendant is driven to his writ of error 2 E 4. 1 4 E 4. 10. a 1 E 4. 73 11 H 7. 5 21 H 6. 50 9 H 4â— â—3 El. Dy. 192. 2 El. 176. 37. H 6. 19. But for any matters in fact as death imprisonment service of the King c. he is driven to his writ of error unlesse it be in case of felony and there in favorem vitae he may plead it But albeit imprisonment be a good cause to reverse an outlawry yet it must be by processe of Law in invitum and not by consent or covin for such imprisonment shall not avoid the outlawry because upon the matter it is his own act 8. H 4. 7 21 H 7. 13 39 H 6. 1 H 7. 1. 1 E 4. 2 27 H 8. 2 38. Ass p. 17. V S. 439. Sect. 438. Auxi si un recovery soit per default vers tiel que est en prison il avoidam le judgement per breve de error c. For he shall have no writ of discent because the summons was according to