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
Roy de rend al Roy annualment un arke ou un Espee c. petit choses touchant le guerre Et tiel service ne forsque Socage en effect If one holdeth Land of a common person in gross as of his person and not of any Manor c. and this Seigniory escheateth to the King yea though it be by Attainder of Treason he holdeth of the person of the King and not in Capite because the original Tenure was not created by the King And therefore it is directly said That a Tenure of the King in Capite is when the Land is not holden of the King as of any Manor Castle Honor c. but of his Crown Nota. A man may hold of the King in Capite or of his Crown as well in Socage as by Knights service fol. 191. 4. CHAP. X. Tenure en Burgage Sect. 162. ESt lou les tenants deins le Burgh sont tenus del seignieur del Burgh per cert ' rent c. tiel tenure ne forsque tenure en Socage Burgh is an ancient Town holden of the King or any other Lord which sendeth Burgesses to the Parliament fo 109. a. l. 10. 123. Major de Lynns C. A City is a Borough incorporate which hath or within time of memory have had a Bishop and though the Bishoprick be dissolved yet the City remaineth as Westminster Cambridge an ancient City Mich. 7. R. 1. Rot. 1. vide libr. fo 109. b. Cities were instituted for three purposes 1. For conservation of Laws whereby every man enjoyeth his own in peace 2. For tuition and defence of the Kings Subjects and for keeping the Kings peace in time of sudden uproar And 3. For defence of the Realm against outward and inward hostility There is lex consuetudo Parliamenti quae quidem lex quaerenda est ab omnibus ignorata à multis cognita à paucis Of the Members of this Court of Parliament some be by descent as ancient Noblemen some by creation as Nobles newly created some by succession as Bishops some by election as Knights Citizens and Burgesses fol. 110. a. ante Sect. 3. The Jurisdiction of this Court is so transcendent that it maketh enlargeth diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritine c. None can begin continue or dissolve the Parliament but by the Kings Authority Of this Court it is said Que il enim de tresgrand honor justice de que nul doit imaginer chose dishonorable Habet Rex Cur ' suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia unicuique justitia prout meruerit retribuetur Pl. c. 398. b. d. Pet. St. c. 55. fo 164. Flet. l. 2. c. 2. The King of England is armed with divers Counsels as first Commune Concilium and that is the Court of Parliament 2. Magnum Concilium and this is sometime applied to the Upper House of Parliament and sometime out of Parliament time to the Peers of the Realm 3. The Privy Councel And 4. the Kings Councel for Law matters and they are his Judges of the Law Sect. 165 c. Ascun Burghs ont tiel Custome que le puisne fits inherita c. Consuetudo quandoque pro lege servatur in partibus ubi fuerit more utentium approbata vicem legis obtinet longae vi enim temporis usus consuetudinis non vilis authoritas Longa possessio sicut jus parit jus possidendi tollit actionem vero domino Bracton Of every Custom there be two essential parts Time out of minde and Continuance and peaceable usage without lawfull interruption If Lands be within a Manor Fee or Seigniery the same by the Custom of the Manor c. May be devisable or of the nature of Gavelkinde or of Borough English 21. Ed. 4. 53. 54. otherwise is it In an upland Town c. Nota That in special Cases a Custome may be alleadged within a Hamlet a Town a Burgh a City a Manor an Honour an Hundred and a County but a Custom cannot be alleaged generally within the Realm c. For that is the Common Law Fo. 110. b. F.N.B. 122. Dyer 54. By some Customes the youngest brother shall inherit Sect. 166. and 167. Item en asc ' Burghs per le oustom feme avera pur sa Dower touts les tenement que feront a sa baron c. And this called Franke Banke Here is imployed by c. that in some places the Wife shall have the moity of her Husbands Lands so long as she lives unmarried as in Gavelkind And of Lands in Gavelkind a man shall be Tenant by the Curtesie without having of any issue In some places the Widdow shall have the whole or halfe Dum sola casta vixerit c. F.N.B. 150. Item home poit deviser ses terres qui il ad en Fee simple deins mesme le Burgh c. A devisor per son Testam is to speake by his Testament what his mind is to have done after his decease Testamentum est duplex 1. In Scriptis 2. Nuncupatinum seu fine scriptis The devisee cannot take goods c. without the assent of the Executors otherwise it is of Lands devised by Custome If a man hath Lands holden by Knights service in Capite and lands in Socage he can devise but two parts of the whole But if he hold lands by Knight-service of the King and not in Capite or of a meane Lord and hath also Lands in Socage he may devise two parts of his Land holden by Knights service and all his Socage Lands Vide lib. quaere Fo. 111. b. If a man make a Feoffment in Fee of his Lands holden by Knights service to the use of such person and persons and of such Estate and estates c. As he shall appoint by his Will in this case by operation of Law the use and State vests in the Feoffor and he is seised of a qualified Fee In this Case if the Feoffor limit Estates by his will by force and according to his power there the use and the Estates growing out of the Feoffment are good for the whole and the last will is but directory Vide Lib. c. If a gift in Taile or a Lease for life be made the remainder in Fee this remainder is not within the Statute Sect. 168. Fo. 112. By no conveyance at the Common Law a man could during the Coverture either in possession reversion or remainder limit an estate to his Wife But a man may by his Deed Covenant with others to stand seised to the use of his wife or make a Feoffment c. to the use of his Wife and now the state is executed to such uses by the Statute of 27 H. 8.
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
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
of the whole Lib. 2. fo 67. Bookers case If either the grantor or grantee dye the Attornment is countermanded but if the Tenant dye he that hath his Estate may Attorn at any time If the Tenant grant over his estate his Assignee may attorn Lib. 4. fo 8. l. 6. fo 57. l. 9. fo 34. 4 H. 6. 29. 18 E. 4. 10. If an Infant hath Lands by purchase or by discent he shall be compelled to Attorn in a per que servitia 42 E 3. Age 33. 18 H. 6. 2. l. 9. fo 84. 85. Coyns case 4. M. Dy. 137. 7 E. 2. Age 140. If an infant be lessee he shall be compelled to Attorn in a quid Juris clamat the Attornment of an Infant to a grant by Deed is good and shall bind him because it is lawfull albeit he be not upon that grant by Deed compellable to Attorne Sect. 567. Fol. 315. b. The grant of the reversion by Deed with the attornment of lessee for years do countervaile in Law a feoffment by livery as to the passing of the freehold and inheritance And Tenant by statute Merchant or Staple or by Elegit must also attorn for the grantee may have a venire facias ad computat or tender the mony c. and discharge the Land and if the reversion be granted by Fine they shall be compelled to attorn in a Quid juris clamat 6 E. 3. 53. 25 E. 3. 53. Br. Attor 48. 32 E 3. scire facias 101. Dy. 1. a. And so the Executors that have the Land untill the debts be paid must attorn upon the grant of the reversion although they have not any certain terme for years Sect. 568. Fo. 316. a. If Tenant in Dower or by the curtesie grant over his or her estate and the heire grant over the reversion the Tenant in Dower or by the Curtesie may attorn because at the time of the grant made they were attendant to the heire in reversion and the grantee cannot be Tenant in Dower or by the Curtesie and if the reversion be granted by Fine the Fine must suppose that the Tenant in Dower or by the Curtesie did hold the land albeit they had formerly granted over their estate and albeit the reversion doth passe by the Fine yet the Quid juris clamat must be brought against him that was Tenant at the time of the note levied and the grantee of the reversion must bring an action of waste against the Assignee of Tenant in Dower or by the Curtesie for they themselves cannot hold of any but of the heire and therefore in respect of the privity they shall attorn and be subject to an action of waste as long as the reversion remaineth in the heire albeit they have granted over their whole estate and note that if the grantee of the reversion doth bring an Action of wast against the Assignee of Tenant by the Curtesie the plaintiffe must rehearse the Statute which proveth that no prohibition of waste in that case lay at the common Law as it did if the heir had brought it against the Tenant by the Curtesie himselfe and therefore some doe hold that if the heir do grant over the reversion that the Attornement of the Assignee of the Tenant by Curtesie or of Tenant in Dower is sufficient because they afterward must be attendant and subject to the Action of waste 10. H. 4 Attornment 16. 11 H. 4. 18. F.N.B. 55 E. Reg. fo 72. 4 E. 3. 26. If the reversion of lessee for life be granted and lessee for life Assigne over his estate the lessee cannot attorne but the attornment of the Assignee is good because it behoveth that the Tenant of the land doe attorne and after the Assignment there is no tenure or attendance c. between the lessee and him in reversion 18 E. 4. 10. b. 26 E. 3. 62. 5 H. 5. 10. Sect. 569 570 571 552 573. Fo. 316. b. No Quid juris clamat lyeth against Tenant in taile but if a man make a gift in taile the remainder in fee and the Seigniory or rent charge issuing out of the land be granted by Fine the Conusee shall maintaine a per que servitia or a Quem redditum and compell him to Attorne for herein his estate of inheritance is no priviledge to him for that a Tenant in fee simple as his Estate was at the Common Law is also compellable in these cases to attorne Lou le reversion est dependant sur lestate del franktenement suffist que le tenant del franktenement attorn sur grant del reversion c. Si lease pur terme dans c. ou done en le taile soit fait reserve un rent per le grant del reversion en tiel case le rent passara pur ceo que tiel rent est incident al reversion nemy è converso If a man let land to another for his life and after he confirme by his Deed the estate of the Tenant for life the remainder to another in fee and the Tenant for life accept the Deed c. Albeit he in remainder in this case hath no remedy to come to the Deed during the life of Tenant for life yet because he is privy in Estate he shall not maintaine an action of waste without shewing the Deed but when the remainder is once executed he shall not need to shew the Deed Vide Pl. Com. Colthirsts case D St. Ch. 20. fol. 93 94. Pl. Com. 149. Throckmortons case 45 E. 3. 14. 15. 11 H. 4. 39. 14 H 4. 31. As in Physick nullum medicamentum est idem omnibus so in Law one forme or president of conveyance will not fit all Cases Sect. 574. Fo. 318. a. If one joyntenant make a Lease for years reserving a rent and dye the survivor shall not have the rent therefore Littleton here addeth materially for the privity that was betwen the Tenant for life and them in the reversion 2 Eliz. Dyer 176. Tenant for life shall not be compelled to attorn in a Quid juris clamat upon the grant of a reversion by Fine holden of the King himselfe without licence For it is a generall rule that when the grant by fine is defeasible there the Tenant shall be compelled to attorne 45 E. 3. 6. b. 13 Eliz. Dy. 188. Lib. 3. fo 86. Justice Windhams case 36 H. 6. 24. As if an Infant levy a Fine this is defeasible by Writ of Errour during his minority and therefore the Tenant shall not be compelled to attorn So if the land be holden in ancient Demesn and he in the reversion levy a Fine of the reversion at the Common Law this is reversible in a Writ of Deceit c. 5 E. 3. 25. 3 E. 3. Ancient Demesn 16. So if an Alienation be in Mortmain the Lord Paramount may defeat it c. 17 E. 3. 7. 22 E 3. 18. So if a Tenant in Tail had levied a Fine it was defeasible by the issue in Tail 24 E 3. 25. b. 37
condic ' suam deter ' nequaquam Brit. f. 143. As a Parson Vicar Archdeacon Prebend Chantry Priest c. may have an action of Waste and in the Writ it shall be said Ad exhaereditationem ecclesiae c ipsius B. or Praehendae ipsius A. F N B 55. d. 57 E. 2. 10 H. 7. 5. And the Parson c. that maketh a lease for life shall have a Consimili casu during the life of the lessee and a Writ of Entry ad Com. legem after his death or a Writ ad terminum qui praeteriit or a quod permittat in the debet and none can maintain any of these Writs but a Tenant in fee simple or fee tail F N B l. m. n. 20 H. 3. Jur. utr Temps E. 3. Jur. utr 141. 14 E. 3. ibid. 4. F N B. 50. 30 E. 3. 26. 21 E. 3. 11. Entry 10. F N B 206. fol. Reg. 237. 4 E. 4. 2. 8 E. 3. Entry 3. 7 E. 3. 54 55. And a Parson c. may receive Homage which Tenant for life cannot do Temps E. 1. Encumbent 19. Item a Parson e. shall have a Writ of Mesne and a Contra formam feoffmenti F N B. 49. l. 50. a. fo 341. b. But a parson cannot make a discontinuance for that should be to the prejudice of his successor to take away his entry and to drive him to a reall action Also if a parson c. make a Lease for years reserving a rent and dyeth the Lease is determined by his death as if Tenant for life had made a Lease no acceptance of the rent by the successor can make it good Also in a reall action a Parson Vicar Archdeacon c. shall have aid of the Parron and ordinary as Tenant for life shall have 20 E. 3. aid 30. 25 E. 3. 54. 8 E. 3. 45. 8 H. 6. 24. 11 H. 6. 9 6 E. 3. 45. 43. Ass p. 13. F.N.B. 129. So as it is evident that to many purposes a parson hath but in effect an Estate for life and to many a qualified fee simple but the entire fee and right is not in him and that is the reason that he cannot discontinue the fee simple that he hath not nor ever had for as it hath been said Omnis privatio presupponit habitum and for the same cause he cannot have a writ of right nor a writ of right in his nature as a writ of right for disclaimer of customes and services ne injustè vexes rationalibus divisis quo jure c. But here it appeareth by Littleton that such bodies politick or corporate as have a sole seisin and may have a writ of right for that the fee and right is in them albeit they cannot absolutely convey away their Lands c. without assent of others may make a discontinuance as a Bishop an Abbot a Dean a Master of an Hospital c. But this is to be understood where a Dean c. are solely seised of distinct possessions for if the body that is seised be aggregate of many as the Dean and Chapter Master and confrates c. then the Feoffment of the Dean or Master is so far from a discontinuance as it is a disseisin But at this day the Bishop Dean Master of an Hospital c. that have the fee and right in them cannot discontinue neither can they or any Parson Vicar Arch-Deacon Prebendary or any other having any Ecclesiastical living with assent of Dean and Chapter Patron and Ordinary or the consent of any others make any Lease gift granr or Conveyance Estate Charge or Incumbrance to binde his successors or others then for term of 21 years or three lives in possession whereupon the accustomed rent or more shall be reserved Vide S. 528. 593. c. 1 El. c. 18. 13 El. c. 10. 1 Ja. c. 3. l. 2. fol. 46. l. 4. fol. 76. 20 El. 5. fo 9. 14. l. 6. fo 37. l. 7. fo 8. l. 11. fo 67. 27 H. 8. 31 H. 8. 32 H. 8. 37 H. 8. 1 E. 6. c. These points concerning Hospitals were resolved by the Justices P. 24. Eliz. The Cheneys case l. 2. fo 48 49. Evesque de Cant. case First That no Hospital was given to the Crown by the Statute of 27 H. 8. nor any Hospital is within the Statute of 31 H. 8. of Monasteries but only Religious and Ecclesiastical Hospitals and that no Lay Hospital was within those Statutes 2. If upon the Foundation of any Hospital or after it was ordained That one or divers Priests should be maintained within the Hospital to celebrate Divine Service to the poor and to pray for the Soul of the Founder and all Christian Souls or the like and that the poor of such Hotals should make the like Orisons yet such an Hospitall is not within the said Statute for the Hospital is Lay and not Religious and all or the most part of ancient Lay Hospitals were founded or ordained after the like sort and the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse 3. That no Hospital was given to the King by the Statute of 37 H. 8. but in two cases where the Donors Founders or Patrons c. had entred and expulsed the Priests Wardens c. between the 4. of Febr. 27 H. 8. and the 25. of Decemb. 37 H. 8. or where King H. 8. by Commission according to that Act should enter and seise the same but that determined by the death of that King l. 1. f. 24. Porters Case 4. That the Statute of 1 E. 6. extended not to any Hospital whatsoever either Lay or Religious as by the same appeareth l. 4. 111 113 114 116. in Lamberts case Nota of Hospitals some are Corporations aggregate of many as of Master or Warden c. and his Confratres some where the Master or Warden hath only the estate of Inheritance in him and the Brethren and Sisters power to consent having College and Common Seal some where the Master or Warden hath the estate in him but hath no College and Common Seal and such a Master or Warden shall have a Juris utrum and of these Hospitals some be Eligible some Donative and some Presentative 14 E. 3. Juris utrum 4. Sect. 646 647. Fol. 342. b. If Tenant pur terme dauter vie dyeth the Freehold is said to be in Abeyance until the occupant enter If a man make a lease for life the remainder to the right heirs of I. S. the fee simple is an Abeyance untill I.S. dyeth Vide Sect. 1. Virg. 4. Aen. Insequiturque solo caput inter â—ubile condit Also when a Parson dyeth we say That the Freehold of the Gleab c. is in consideratione sive intelligentia legâ— because a suceessor is in expectation to take it 24 E. 3. 63. So it is of a Bishop Abbot Dean Archdeacon Prebend Vicar and of every other sole Corporation or Body Politick Presentative Elective or Donative
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.
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.