plena curia Contrary if he doth it out of Court without such authority Yet the high Steward may demise customary land by copy out of Court by some Quaere thereof by B. if he hath not a special authority from the Lord to demise 2. E. 6. B. Court baron 22. Tenant by copie 26. Customs Information in the Exchequer against a Merchant for lading Wine in a strange Ship the Defendant pleads the licence of the King made to I. S. to do it which I. S. had granted his authority thereof to the Defendant quod habetur consuetudo inter mercatores per totam Angliam that one may assigne such a licence over to another and that the assignee shall enjoy it c. to which t was demurred in law and t was agreed for law That a man cannot prescribe a custom per totam Angliam for if it be per totam Angliam this is the Common law and not a Custom contrary if the custom had been pleaded to be in such a City or County as Gavelkinde Borrow-English Glocest. Fee and the like 35. H. 8. B. Customes 59. Dammages NOte in Trespass local That upon an inquest of Office to enquire of Dammages the Court may abridge or increase them But otherwise upon the Principall S. upon issue tryed betwixt party and party but there it may encrease costs For the party is at his attaint but upon an inquest of Office he cannot have an attaint 34. H. 8. B. dammages 144. See Tit. costs Default If a woman be received in default of her Husband and after shee makes default judgement shall be given upon default of the husband and no mention shall be made of the receit Time H. 8. B. default 85. Demurrer Inquisition found that I. S. held certain land of the King ut de honor suo Gloucester which is not in Capite upon which proces issued against W. S. who had intruded c. and to sue Livery and because that this Tenure is not in capite and therefore Livery not due the party demurred upon the record for t is no cause of Livery And where a man declares upon a Statute and recites it otherwise then t is or pleads it otherwise then t is the other may demur upon it for no such Law if it be misrecited 32. H. 8. B. Demurrer in Law 25. Denizen See Tit. Alien Note for Law That where an Alien born comes into England and brings his son with who was born beyond Sea and is an Alien as his Father is there the King by his Letters pattents cannot make the son Heir to his Father nor to any other for he cannot alter his law by his letters Pattents nor otherwise but by Parliament for he cannot disinherit the right heir nor disappoint the Lord of his escheat and the son of an Alien which son is born in England he is English and not an Alien 36. H. 8. B. Denizen 9. Deputie T is said that a Deputation of an Office which lies in grant ought to be by Deed and not by word 28. H. 8. B. Deputy 17. Detinue By Shelley and others if a man meddle with goods as by trover of them he shall be thereof charged though that he deliver them over before action brought 32. H. 8. B. Detinue de biens 1. The end Debt Where Debt lies and where a Scire facias See Tit. Age. Debt upon Indentures of Covenants where the Defendant had Covenanted to do many things and the Plaintiff the like to do many other things ad quas quidem conventiones per implendam uterque obligatur alteri in one hundred pound and the one breaks Covenant by which the other brings Debt and the Defendant pleads payment of ten pound to D. which was all to which he was bound judgement if action and no plea per curiam because he did not shew thereof a Deed where the Plaintiff declared upon the Indenture which is a Deed And yet otherwise in pleading of payment of Rent reserved upon a Lease for years made by Indentures For there he may levy it by distress and therefore an averment may come in ure But otherwise where all rises by specialty where it lies in payment 25. H. 8. B. Debt 173. Debt upon an obligation with Condition where the condition is not broken by which he is barred he shall never sue this obligation again for once barred est pro imperpetuo 29. H. 8. B. Debt 174. Administrator of a Lord brings an action of Debt for relief which fell tempore intestati and the Defendant pleaded in Bar and traversed the Tenure and so at issue And therefore B. seems that the action lies clearly for him for the Defend did not demur so if it be brought by an Executor of the Lord for relief due to the Testitor Rot. 5â—9 in the Common Bench. 32. H. 8. B. debt 193. Relief 11. the ends Devise Not that a Fem Covert with assent and will of her husband may make her Testament and devise the goods of her Husband yet if the Husband prohibit the probat of the Testament of the Wife after her death then all is void For the husband may countermand it B. devise 34. the end Testament 21. the end And a Devise by the husband to his Wife is good though they are one and the same person in the Law for the devise takes not effect till after the death of the husband and then they are not one person 24. H. 8. B Devise 34 T was agreed by all that if a man wills that I. S. shall have in his Land in date after the death of his Wife and dies now the wife of the Devisor by these words shall have the Land for her life by reason of the intent of the Will 29. H. 8. B devise 48. Note That in London a man may Devise by Testament to a common person though the Testament be not enrolled but if he Devises in Mortmain he ought to be a Citizen and a Freeman resident and the Testament oâ—ght to be enrolled at the next Hustings 30. H. 8. B. devise 28. A man Devises to two heredibus eorum and dies and after one of the Devisees dies and the other survives he shall not have the intire by Survivor but onely a moytie for this was the intent of the Devisor by Audley Chancellor of England B. devise 29. and by B. there the end If one devise to another in feodo simplicâ— the devisee hath a Fee simple 30. H. 8. A man wills that his land Devisable shall be sold by his Executors and makes four Executors and dies all the Executors ought to sell for the trust is put joyntly in them Quaere for B. seems That if one or two die that the three or two which survive may sell for there is the plural number Executors and death is the act of God B. Devise 31. and by him where
SOME NEW CASES OF THE Years and time of King Hen. 8. Edw. 6. and Qu Mary Written out of the Great Abridgement Composed by Sir ROBERT BROOK KNIGHT c. There dispersed in the Titles but here collected under years And now Translated into English by JOHN MARCH of Grays-Inn Barrister All which said Cases are by the Translator Methodised and reduced Alphabetically under their proper Heads and Titles With an exact Table of the principall Matter contained therein London Printed by T. N. for Richard Best and John Place and are to be sold at Grays-Inn gate and Furnivals Inn-gate in Holborn 1651. To the READER READER WHEN I considered what great care our Parliament had taken of the publick good in enacting our Laws to be translateâ— into English theâ—â— which certainly nothing more equall that the people might in some measure instruct themselves in that to which they are bound to obedience and of which by the Law it selfe they cannot nor must not plead ignorance And when I had likewise considered the excellent and most usefull Law that is contained in this little volume called Petty Brock I thought it a labour servicable to the publick to Translate it which I here present you in your own Language make use of it and you will finde Magnum in parvo great benefit in this little work and I doubt not give him thanks for it who is ambitious of nothing more then to be yours and the Common-wealths most Faithfull Servant Jo MARCH THE TABLE Abridgment page 1 DAmages increased after issue and verdict upon it page 1 Costs ibid Acceptance Lease of a Tennant for life is void by his death 1 Void and voidable Lease diversity 2 Acceptance by the issue in Taile of the second Lessee ibid Privity ibid Diversity ibid Apportionment ibid Acceptance by him in remainder ibid Acceptance by the successor of a Bishop ibid Payment at another place 3 Action Popular 3 Within the yeer ibid Action upon the Case 3 Mill 4 Where an Action upon the Case lies where not diversity ibid Delivery of goods traversed in detinue ibid Negat Pregnans ibid Action upon the Case for calling a man perjured ibid Action upon the Case for caling him perjured and justification in it ibid Of his own wrong 5 Bar in an Action upon the Case by Law wager in det ibid Plea to avoid double charge ib Travers ibid Action upon the Case upon finding of goods 6 Evidence ibid Action upon the Case upon a devenerunt to the hands of the defendant ibid Evidence ib Place in an Action upon the Case Assumpsit is not local 7 Place in det is not traversable ib Action upon the Case against executors ib Not guilty a good plea in an Action upon the Case and where not 8 Hiis similia in an Action upon the Case ib Action upon the Case upon trover ib The conversion to use traversed ib Evidence ib Action upon the Case for not payment of marriage money 9 Action upon the Statute His freehold no plea in an Action upon the statute ib Upon the statute of 5. R. 2. his freehold ib Avowing upon the statute and by common Law 10 Diversity ib Disclaimer ib His freehold is an Action upon the statute of 5. R. 2. ib Disseisor ib Accompt 10 Account against disseisors ib Privity necessary ib Account against a GardJan ib Pleading ib Adjournment 11 Cause and place of Adjournment ib Demurrer ib Dubious verdict ib Forreign Plea ib Certificate ib Administrators ibid Administration committed pending the writ ib Who shall commit administration vacate ib Episcopatu ib Relation ib Power and interest certain diversity 12 Who shall be said proximo de sanguine to take letters of administration by the statute ib Civil Law the law is since adjudged otherwise 13 See Ratcliffes Case my Lord Cook ib Land which is a Chattel shall by office 14 Age 14 Arreares of rent â—orâ— of Annuity and damage ib Diversity ib Scire fac against the heir ib Thing real and thing personal diversity ib Avowry ib Costs ib Where debt lies and where a scire fac 15 Diversity ib Where the King shall have his age where not ib Age of a parson prebend c. 10 Alienations ibid Where the heir within age shall be in ward where not ib Alienation by Tenant in Fee and by Tenant in taile diversity ib Relation of an office diversity 17 Fine for alenation intrusion licence to alien inmortmaine ib Variance from the licence ib Fine levyed ib Averment ib Two Joyntenants the one releases to the other diversity 18 Fine upon release upon conuâ—ance of his right c. diversity ib Estoppel ib Licence to Alien for life ib Burgage tenure ib Devise is an Alienation ib Alien see Tit. Denizen 18 Alien 19 Alien purchase ib Office ib Information ib The King shall have a Lease for yeers 20 Purchased by an Alien ib Amendment ibid Variance amended after judgment ib Amendment after a writ of error came to the common Bench ib In what thing the King shall amend his declaration in another term 21 Appeal ibid Not guilty in an appeal ib Se defendendum ib Evidence ib Justifie ib Indictment before the Coroners and before othe Justices ib Diversity 22 Appeal for Homicide ib Woman intiuled to an Appeal of death of her husband loses it by marriage ib Quarentine ib Coroner and his power ib Apportionment 23 Contract Apportion ib Approportionment by the common Law upon purchase ib Quaere ib Where a rent service shal be apportioned where not see before ib Recovery or discent of parcel 24 Rent Charge ib Arbitrement ib Pleading of a Condition in Barr ib Replication ib See Tit. Conditions ib Assets in their hands see Tit. Extinguishment 25 Demurr upon Evidence ib Legacies shall not be paid before Debts ib Assets per Discent Assets by Discent Judgement upon Assets found false plea ib Assigne 26 Assignee charged with the Covenant of his Grantor ib Audita quer ib Assise 26 Baily examined in Assise ib Attachment shall not be de bones alterius quam ten ib Of what things an Attachment ought to be 27 Election of his Tenant ib Assurances 27 Fine with proclamation to bind Tenant in tail and his issue 28 The Law is now otherwise see the Case of Fines in my Lord Coke ib Five years for the issue in tail to claim ib Equity ib Quaere ib 4. Hen. 7. cap. 24. ib Rast. Fine 8. ib Privity ib Fâ—ne confessed and avoided ib Intendment 29 Averment ib Fine by Conclusion ib Stranger ib Fiâ—e with proclamation by the tenant in tail the reversion or remainder to the King and common Recovery ib Diversity ib See my Lord Cokes first book ib Quere 30 Common recovery by the common Law and after the Statute diversity ib Assurance that the heir should not sell 31 To except the last obligation ib Attaint 32 False quantity in demands ib Attaint upon an Appeal of Maihew ib Ataint for termor ib
and such Lease is Mortmain by the words of the Statute de religiosis 7 E 1â— S. colore termini for the said Statute is quod nullus emeret vel sub colore donationis aut termini aut ratione alterius tituli ab aliquo reciperi aut arte vel ingenio sibi appropriare presumat c. And the same Law oâ— a Lease for 400 years or the like Contrary if a man leases for a 100 years or the like and covenants that he or his heirs at the end of a 100 years will make another Lease for another 100 years and so further this is not Mortmain for t is but one Lease for a 100 years and the rest is but a Covenant but in the first case for that is for 300 years at first in effect and all by one and the same Deed B. Mortmain 30. Leases 49. And 99 years is not Mortmain And also a Lease for a 100 years is not Mortmain by B. for t is a usual term 29. H. 8. B. Mortmain 30. By Br. if an alienation in Mortmain be and the alienee is disseised and the disseisor dies seised his heir is in by discent yet the Lord may enter within the year for he hath but onely a Title of Entry and cannot have an Action But otherwise of him who hath right of Entry and may have an Action 1. E. 6. B. Mortmain 6. the end Negativa preignans see Tit. Issues joyns Non-ability VVHere and in what Case aâ—â— Alien is disabled from bringing of an Action what not See Tit Alien Non est factum Note that in Debt upon an obligation made for Usury and the Defendant pleads this matter he shall conclude and so the obligation is void Judgement si action and shall not conclude non est factum 7. E. 6. B. Non esâ— factum 14. the end Nonsuit Note that the King cannot be non-suited Yet B. seems that he who tam pro Domino rege quam pro seipso sequitur may be nonsuited 25. H. 8. B. Non-suit 68. Note when the parties in an Action have demurred in judgement and have a day over there at that day the Plaintiff may be demanded and may be â—onsuited as well as at a day given after issue joyned 38. H. 8. B. Nonsuit 67. Nontenure Where a man is barred by a false verdict and brings an attaint against the first Tenant nontenure is no plea for he is privy contrary of a stranger as where the Tenant infeoffs a stranger after 19. H. 8. B. Nontenure 6. In an attaint Non tenure is no plea â—or a privy to the first action contraâ—or â—or a stranger to the first Action B. Nontenure 16. And t is said that t is â—o plea in an attaint to say that the Plaintiff in the Attaint hath entered â—fter the last continuance 20. H. 8. B. Nontenure 22. Nontenure is no plea in Waste See Tit. Waste Nosme Name What shall be a good name of Purchase See Tit. Discent Note if a Dutchess or other such state marries with a Gentleman or an Esquire she by this shal lose her dignity and name by which she was called before as in the case of the Lady Powes and Dutches of Suffolk the one espoused R. Haward and the other S. the Dutches AdrJan Stokes and therefore Writs were abated in their Cases For by the book of Heralds quando mulier nobilis nupserit ignobili desinit esse nobilis 4. M. 1. B. Brief 546. Nosme 69. Notice The Patron shall take notice of every voidance of an Advowson except resignation and of this the ordinary shall give him notice Lecture Frowick B. Notice 27. Office devant c. Office before c. NOTE by those of the Exchequer where a man is attainted by Parliament and all his Lands to be forfeited and doth not say that they shall be in the King without Office there they are not in seisure of the King without Office for non constat of Record what Lands they are 27. H. 8. B Office devant 17. If the King grant Land for term of life after the Patentee dies yet the King cannot grant it over till the death be found by office this by reason of the Stat. that a grant before office shall be void 29. H. 8. B. Office devant â—6 If an Office finde the death of the Kings Tenant and that his heir is of full age and doth not say when there it shall be intended that he is of full age tempore captionis inquisitionis but that he was within age tempore mortis tenentis and therefore it ought to be expressed certain when he was of full age 29. H. 8. B. Office devant 58. Note that t is an antient course in the Exchequer that if it be found by Office that I S. was seised in Fee and died sed de quo vel de quibus tenementa tenentur ignorant that a Commission shall issue to enquire of it certainly de quo c. and if it be found that of W. N. then the party shall have Ouster l'main of the King But if an Office be found quod tenetur de Rege sed per que servitia ignoratur this is good for the King and it shall be intended to be holden in Capite per servitium Militare for the best shall be taken for the King But now in these cases a Melius in quirendum shall be awarded by the Statute 30. H. 8. B. Office devant 59 Land was given by the King pro erectione Collegii Cardinalis Eborum and the Colledg was not erected and upon office found thereof the King seised Time H. 8. B. Office 4. the end T was agreed by the Justices that the King is not intitled to the land of his ward without office though he hath in it but a Chattell yet it comes ratione tenure which is a seigniory and free hold in the King 5. E. 6. B. Office devant 55. Note that of a Chattell the King is in possession without office And â—contra of land and of free hold except of a term And sometimes he shall be in possession of inheritance without office yet the King shall not have the land of his ward without office though he hath in it but a Chattel for the ward comes by reason of the tenure which is a seigniory and free hold in the King and therefore a difference betwixt this and a lease for years of a man outlawed For if a man hath a term for years or a ward and is outlawed this is in the King without office Lecture B. Office devant 60. Officer Note for Law if a man hath a fee of a Lord and after is made Justice this fee is not void by the Law but after the making of him Justice he is not to take any fee but of the King and the same law of him who hath an office of Steward and after is
made Justice Et per plures where a man is a Baily of a Mannor by patent and after is made Steward of the same Mannor by another patent both patents are good For the Suitors are Judges and not the Baily But per plures if a man be a Forrester by patent and after is made Justice of the same Forrest the first patent is void As where a Parson is made a Bishop the Parsonage is void for he cannot be ordinary of himself nor punish himself And B accords that a man cannot be Keeper of a Forrest and Justice of the Forrest for the killing of the Deer by the Keeper and the like is a forfeiture of his office which shall be adjudged by the Justices of the Forrest and he cannot judge him â— self But a man may be a Steward of a Forrest by patent and Justice of the same Forrest by another patent and both good for both are judicial And Justices of the Forrest may make a Steward of the Forrest 29. H. 8. B. Officer 47. Note that the Sheriff and Escheator void their office by demise of the King for they are made by patents which are as a commission is and therefore t is used at the demise of the King for to sue out new patents as 't was this year 1. M. 1. B. Officer 25. the end Obligation If A. be bound to B in 40. usumâ— S. there I. S. may release the obligation because that ad usum is expressed in the obligation Et econtra if this did not appear in the obligation 36. H. 8. B. Obligation 72. Oyer of Records c. see Tit. Monstrans de faits Oyer Terminer T is said that if a Commission of Oâ—er and Terminer expire or discontinue â—hen the indictments and record shall â—e sent into the Kings Bench and there they shall be finished see how Tit. Corone 38. H. B. Oyer Terminer 1. the end T was granted in the case of Ben Smith upon the Statute of 2. E 6. cap 24. of Felony in one County and accessary in another County that the Justices of the Kings Bench are Justices of Oyer and Terminer of Felony Treasons and the like by the Common Law and Custom of the Realm 3. M. 1. B. Oyer Terminer 8. Pain T Was adjudged in Curia hospitii Domini Regis apud Greenwich versus Edmundum Knivet militem that he should be disinherited imprisoned for ever and his hands cut off quia percussit quendam hominem ibidem the King being there in his Court 33. H. 8. B. Pain 16. the end Panell T was agreed in the Exchequer where 〈◊〉 jury is awarded de medietate lingue where an alien is party and the panel â—eturned that the one of the denizens and the other of aliens shall be sworn till they have 6 denizens and 6 aliens sworn The same Law there where the jury remains for default of jurors there a Tail shall be part of English and part of aliens and this if the party prayes it But if he doth not pray it B. seems t is error except by the Statute of Jeofails it be holpen 32. H. 8. and so by him where the panel is party the party is not compellable to take the jury except 6 of the one and 6 of the other are sworn 4. E. 6. B. Panel 2. the end Parliament If the King be intitled to the land of I. S. by forfeiture of Treason or Felony by act of Parliament or office by this all tenures are determined as well of the King as of all others And there if this land after be given to another by another Act of Parliament saving to all others all their Rights Interests Titles Rent-service and the like as if no such Act had been there the Seigniories and the like shall not be revived for no Seigniorie was in esse at the time of the second Act made And here are not words of Gift nor Reviving but words of Saving which serves not but to save that which in esse at the time of the Saving c. But such Proviso in the first Act would serve for this comes with the Act which Intitles the King And where the King is Intitled to Land by Office for Escheat and after t is enacted by Parliament that the King shall enjoy it saving to all others their Seigniories and the like there such Saving will not serve for the reason aforesaid for all was extinct before by the Office and nothing was in esse at the time of the Saving which was in ure between the King and Keckwich in the County of Essex where R. lost his Seigniory But there ought to be words affirmative that the Lords shall have their Seigniories 27. H. 8. B. Parliament 77. Note by Englefield Justice in the Case between Button and Savage that where a man hath Title to Land by a Tail and after the same Land is given to him by Parliament that his Heirs shall not be remitted for by the Act of Parliament all other Titles are excluded for ever for this is a Judgement of the Parliament And where the Land is giâ—en expresly to any person by name by Act of Parliament he nor his Heirs shall not have other Estate then is giâ—en by the Act but that that onely â—hall stand B. Parliament 73. Remitter â—9 the end And the same Law where â—he King had Title in Tail and the â—and is given to him by Parliament in â—ee the Tail is determined So that â—â—e Heir shall not avoid Leases made 〈◊〉 his Father nor Charges and the 〈◊〉 for the last Statute bindes all forâ—er Titles and Estates not excepted â—9 H. 8. B. Parliament 73. If divers Sessions are in one and the 〈…〉 Parliament and the signes not a 〈◊〉 till at last there all is but one and 〈◊〉 same day and all shall have relatiâ—â— to the first day of the first Sessions 〈◊〉 the first day and the last all is but 〈◊〉 and the same Parliament and one 〈◊〉 the same day in Law except special â—â—ntion be made in the Act when it â—ll take force But every Sessions in which the King signes the Bills is a daâ— by it self and a Parliament by it self and shall not have other relation but to the same Sessions 33. H. 8. B. Parliaâ—ment 86. Relation 35. Note if a man in an Action or pleading alledges a Statute and mis-recite it in matter or in year day or place the other may demurr generally foâ— there is no such Statute and then therâ— is no such Law for every one that medâ—dles with it ought to shew the Laâ— truely But in case of the King it maâ— be amended and this in another Term Contrary for a common person 33. H 8. B. Parliament 87. Memorandum that at the Parliâ—â—ment holden by adjournment H. thâ— year t was admitted by the Kings 〈◊〉 and so accepted that if one Burgess 〈◊〉 made Major of a Town which hath
the first Patent is not material Time H. 8. B. Patents 96. By Mervin Justice a Constat is pleadable contrary of an Inspeximus for in the one case the Patent remains and in the other t is lost And by B. in the Book of entries a Constat was pleaded and aid granted of the King upon it 1. E. 6. B. Patents 97. the end Peace A man is bound to the peace and procures another to break the peace this is a forfeiture of his Bond as t was said Time H. 8. B. Peace 20. Peremptorie A man recovers debt or damages and after brings thereof a Scire Fac ' the first return of Nihil against the Defendant is peremptory if he makes default 24. H. 8. B. Peremptorie 63. Where a man brings an Action real or mixt or makes an avowry or conusans and issue is taken upon the seisin infra tempus statuti and t is found against the demandant Plaintiff or avowant this is peremptory by the same Statute 1. M. 1. B. Peremptorie 78. Petition T is held for Law if the King be Intitled by double matter of Record as t is enacted by Parliament that I. S. shal be attainted of Treason or Felony and shall forfeit all his Lands and also an Office is found thereof there the party who hath right cannot traverse but is put to petition And the same Law if the King grant it over after the double matter of Record found 33. H. 8. B. Petition 35 Trovers de office 51. Note That Petition was at Common Law but Traverse is by Statute Lecture B. Petition 41. Travers de office 54. See Tit. Travers de Office Pledges A man gages his goods in pledge for 40 l. borrowed and after the Debtor is convicted in 100 l. in debt to another these goods shall not be taken in Execution till the 40 l. be paid for the Creditor hath an interest in them and also goods taken for Distress cannot be taken in Execution 34. H. 8. B. pledges 28. Pleadings Note that it is said for Law That he which pleads a Recovery by default ought to aver his Title of his Writ And also that the Defendant in the Recovery was Tenant of the Free-hold die brevis but if the recovery were by action tried he needs not to take the one averment or the other Yet t was said that in a quod ei deforce at he that pleads the recovery by defalt need not aver the party tenant of the Freehold tempore brevis sui for t is proved that he was Tenant tempore c. by the use of the Quod ei deforceat for this is the effect of this action because that the Demandant in this action lost by default in the first action yet he shall aver the Title of his Writ And he which pleads a Recovery in a Writ of Waste by default needs not to aver the party Tenant for Non Tenure in this action is no Plea 24. H. 8. B. Pleadings 6. He which pleads an entry for to defeat a Collateral Warranty ought to aver that he entred in the life of the Ancestor And in Dower if the Tenant pleads a disseism by the husband and the wife pleads a Feoffment by I. N. to the husband who after infeoffed the Tenant and after disseised him she shal say that the Feoffment of I. and the seisin of the husband were during the coverture and he which derives an interest by Lease from Tenant for life or in Tail ought to aver the life of the Tenant for life or in Tail 26. H. 8. B. pleadings 147. Where a man ought to aver that the one and the other are one and not divers See Tit. Averments Where a stranger to a Deed may plead it where not See Tit. Estranger Note for Law That t is good pleading to say that I. N. and W. N. were seised in Dominico pro ut de Feodo ad usum T. P. and his Heirs without shewing the Commencement of the useâ— as to say that A. was seised in Fee and infeoffed I. N. and W N. ad usum T. P. c. But a man cannot plead that A. B. was seised in Tail without shewing the gift for the one is a particular estate and not the other 36 H. 8. B. Bleadings 160. Plenartie Note when there is no Patron aâ— where the Patron is a Priest and is admitted to this Benifice himselfe Oâ— where my Advowson is aliened in Mortmain and appropriated to 〈◊〉 House of Religion and the like in these cases I. may have a Quare impedit and there Plenarty by six Month is no plea 6. H. 8. B. Plenartie 10. Premunire Premunire by Bil in the Kings bench See Tit. Bill A Prohibition lies often where a Premunire lies not as of great Trees vel pro decimis de ceptima parte prohibition lies and not a Premunire for the nature of the action belongs to the Spiritual Court but not the cause in this form But where t is of a lay thing which never appertained to the Spiritual Court of this a Premunire â—ies as of Debt against Executors upon a simple contract or pro lesione fidei upon a promise to pay 10 l. by such a day 24. H. 8. B. Premunire 16. Where a man attainted in a Premuâ—ire shall forfeit his Lands in Fee imperpetuum See Tit. Forfeiture de â—erre c. Prerogative A man hath land in use of which part is holden of A. by prioritie and the rest of the King by Posterity in Knights service and dies the King shal have the ward of the body by his prorogative and by the Statute of 4. H. 7 which gives the ward of Cestuy que usâ— where no will is declared and per preâ—rogativam regis Yet otherwise t is saiâ— of land in use holden of a common perâ—son for the Tenant in use dyed noâ— seised and therefore out of the case oâ— Prerogative for the Land 21. H. 8. B Prerogative 29. Note by Whorewood the Kings Attorney and others where an information is in the Exchequer upon a penaâ— Statute and the Defendant makes bar and traverses the Plea that thâ— King is bound to stand to the first traâ—verse which tenders an issue and canâ—not waive such issue tendered and traverse the former matter of the Plea 〈◊〉 he may upon a traverse of an office anâ— the like where the King is sole party and intitled by matter of Record foâ— upon the information there is no officâ— found before and also a subject is paâ—â—ty with the King for to recover thâ— moytie or the like 34 H. 8. B. Preroâ—gative 116. Shelley Just. was precise that a giâ—â— of the King is good of Chattels moveaâ—bles without writing as of a horseâ— â—nd the like 35 H. 8. B. Praerogat 60. â—nd 71. the ends Note by some the King shall not â—ave a Precipe quod redd as a Writ of Escheat but his Title shall be found
〈◊〉 Office Time H. 8. B. Praerogaâ—â—ive 119. Where the King shall have his age â—here not See Tit. Agâ— T is said if an information be by a subâ—ect for the King in the Exchequer and â—â—e Defendant pleads a Bar and traverâ—s the information the King may traâ—erse the matter of the Bar if he will â—nd is not bound to maintain the matâ—er which is contained in the absque hoc â— E. 6. B. Praerogative 65. the end The Prerogative of the King is a â—reatise of the Common Law and not â—â—tute nor Declaration by Parliament â—â—d a Mine of Ore or Argent is to the â—wner of the soil Quaere Lecture B. â—raerog 134. Where the Incumbent is made a Biâ—hop the King shall present by his Preâ—ogative See Tit. Presentation Prescription Where prescription shall be gone by acceptance of a grant of the thing Seâ— Tit. Estopel T was said for Law that a customâ— may be alledged where there is no person that can prescribe as inhabitants cannot prescribe but they may alledge a custom that the inhabitants may Common in D. for the one goes with the place and the other with the perâ—son which person ought to be able 〈◊〉 prescribe for otherwise t is worth nothing 2. M. 1. B. Prescription 100 the end Note by the Justices that if a mangranâ— prox presentationem to A. and aftâ—â— before avoidance grants prox presentationem ejusdem Ecclesiae to B. the second grant is void for this was granâ—â—ed over by the Grantor before and 〈◊〉 shall not have the second presentatioâ— for the grant doth not import it 20. H 8. B. Presentation 52. A man grants prox presentationem and hath a wife and dies the Grantâ— shall have the first presentation the he the second and the wife for Dowre thâ— third 33. H. 8. B. Presentation 55. Note by B. That the Bishop of Eâ—y said to him that he saw a presentation in the time of E. 3. made by the â—aid King That he presented to a Beâ—ifice pro illa vice which was of another patronage by these words ratione praerogative sue which Benefice voided by reason that the King had made the inâ—umbent of it a Bishop who was conseâ—rated so that when a Benefice becoms â—oid by making of an incumbent a Bishop the King shall present to all his â—ormer benefices pro illa vice whosoeâ—er is Patron of them 4. M. 1. B. Presentation 61. Priviledge Note when a Record is removed out of a Court of Record as London c. â—â—to the Kings Bench or into Common â—ench there they shall not proceed upâ—n the Original which was in London â—ut in the Kings Bench the party may â—d himself by Bill of Midd. brought â—ere against the party upon his appearâ—nce and in the Common Bench to â—â—ing an Original retornable the same â—ay 36. H. 8. B. priviledge 48. Procedendo If a man arrested in a Franchise sueâ— a Writ of Priviledge and removes the body and the cause and after comeâ— not to prove his cause of Priviledge the Plaintiff in the Franchise may have 〈◊〉 Procedendo And therefore B. seemâ— that there the first sureties remain otherwise if it had been dismissed by allowance of the priviledge for then hâ—â— Sureties are discharged Yet it seemâ— to him that when they remove the body and the cause they remove no sureâ—ties but then there is not any Recorâ— against them and then it seems thaâ— the priviledge being allowed the sureâ—ties are discharged Otherwise wheâ—â— the priviledge is not allowed for theâ— the Prisoner and the cause was alwaieâ— remaining in the custodie of those of thâ— Franchise 31. H. 8. B. Procedendo 1â—â— Sureties 28. Proclamation Note that none can make Proclamaâ—tion but by authority of the King 〈◊〉 Majors and the like who have privâ—â—ledge in Cities and Boroughs to do it or have used it by custom And Sir Edmund Knightly Executor to Sir William Spencer made Proclamation in â—ertain market Towns That the Creditors should come by a certain day and claim and prove their Debts c. due by the Testator and because that he did it without authority he was committed to the Fleet and put to a Fine 22. H. 8. B. Proclam 10. Prohibition T is agreed That if a man be sued in the Spiritual Court for Tythes of seasonable wood the partie grieved may make a suggestion in Chancerie or in the Kings Bench that he is sued in the Spiritual Court for Tythes of great Trees which pass the age of 20. years by the name of Sylva Cedua which is seasonable wood used to be cut where indeed t is great Trees and pray a Prohibition and have it And the same Law where a man is sued in curia Admiral ' for a thing done upon the sea where indeed t was done upon the land there upon a surmise that it was done upon the land he shall have a prohibition 31. H. 8. B. Prohibition 17. Property T was agreed by the Justices That if a Frenchman inhabit in England and after War is proclaimed betwixt England and France none may take his goods because that he was here beforeâ— but if a Frenchman comes here after the War proclaimed be it by his own good will or by Tempest or if he yeilds and renders himself or stands to his defence every one may arrest him and take his goods and by this he hath a propertie in them and the King shalâ— not have them and so t was put in urâ— the same year betwixt the English and Scotch and the King himself boughâ— divers prisoners and goods the samâ— year when Bullen was conquered of hiâ— proper subjects 36. H. 8 B. Propertie and proprietate probanda 38 the end Who shall have property in an estrayâ— See Tit. Estray Quare Impedit BY Whorewood the Kings Attorney clearly If two joynt Tenants are the one presents sole and his Clerk inâ—cted the other is out of possession â— 5. H. 8. B. quare imped 52. the end Quare imped by Mark Ogle against â—arrison Clerk incumbent who was in â—y the presentation of the King and â—herefore the Writ was brought against â—im soly and pending the Writ of â—â—are imped the Plaintiff dyed after the â— months past who had but prox preâ—â—tationem by grant his executors â—ought another quare imped by jourâ—es accounts intending to have saved â—e matter by the journies And 〈◊〉 the Justices of the Common Bench â—here the Plaintiff dies the Executors â—all not have a Writ by journies acâ—â—unts and B. seems that where the plaintiff dies none can have another writ by journies accounts But contra in some cases where the Defendant dies having the writ B. Journeies accounts 23 Quare imped 58. And note by B. where the Grantee de prox presentatione brings a Quare impedit as before and dies after the six moneths past pending the Writ and the Executors bring another Quare imped by Jornies accounts and take a General
barre the demandant by which the demandant recovers and the tenant over in value that this land recovered in value shall not go to me in reversion after the death of the tenant for life nor the reversion of the land recovered in value shall not be in me in the life of tenant for life and so 't is holden at this day 25. H. 8. B. Recovery in value 33. Note by some where a writ of entry in the Post is brought against a husband and wife where the wifis tenant in taile and they vouch overe and so the demandant recovers against the husband and wife and they over in value if the wife tenant in taile dyes and the husband survives this shall not bind the issue in taile for the recompence shall go to the survivor and then it shall not bind the issue in taile Yet B. seems that this opinion is not law for the recompence shall go as the first land which was recovered should go And voucher by husband and wife shall be intended for the interest of the wife 25. H. 8. B. Recovery in value 27. the end Tenant for life the remainder over or tenant in taile the remainder over is impleaded by a writ of entry in the Post and he vouches a stranger the demandant recovers against the tenant and the tenant over in value this shall bind him in remainder by Monntague Just. and others for the recompence shall go to him in remainder But yet in the case of the Lord Zouch and Stowell in the Chancery the law was determined otherwise by all the Justices B. seems the reason because that when he vouches a stranger the recompence shall not go to him in remainder contrary if he vouches the donor or his heir who is privy But after this day many put inâ—ure to bind the remainder 27. H. 8. B. Recovery in value 28. Recovery against Feoffees seised to use in tailes See Tit Feoffements to uses 'T is held that where tenant for life is the remainder over in tail or for life and the tenant for life is impleaded and vouches him in remainder who vouches over one who hath title of Formedon and so the recovery passes by voucher there the issue of him who hath title of Formedon may bring his Formedon and recover against the tenant for life for the recompence supposed shall not go to the tenant for life and therefore he may recover for his ancestor warranted but the remainder and not the estate for terme of life and therefore the tenant for life cannot bind him by the recovery for he did not warrant to him And therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder and they to joyn and vouch him who hath title of Formedon and so to passe the recovery for there the recompence shall go to both 30. H. 8. B. Recovery in value 30. 'T was agreed that if tenant in taile the reversion to the King suffers a recovery this shall bind him and his issue but not the King by the common law See now the Statute of thereof that it shall not bind the issue 33. H. 8. B. Recovery in value 31. Taile 41. the end Relation Where an office found for the King shall relate where not See Tit. Intrusion Of the Relation of an Act of Parliament See Tit. Parliament Note that the attainder of Treason by Act of Parliament shall not have elder relation then to the first day of the Parliament except it be by speciall words that he shall forfeit his lands that he had such a day and after 35. H. 8. B. Relation 43. 'T is held for good Law that by attainder of felony by verdict a man shall forfeit all his lands that he had the day of his felony done or ever after for this shall have relation to the Act contra upon an attainder by out lawry For B. seems there that he shall not forfeit but those which he had the time of the outlawry pronounced or after for outlawry hath not relation as a verdict hath Time H. 8. B. Relation 42. the end Relation of an Inrolment See Tit. Faitz inrol Releases Husband and wife purchase in fee and after they lease for years by Indenture and after the husband releases to the lessee and his heirs this is no discontinuance and yet this gives a freehold to the lessee during the life of the husband Per plures without doubt 29. H. 8. B. Releases 81. G. Chancery was possessed of an Indenture and lost it and I. S. found it to whom the said G. C. released all actions and demands and after the said I. S. gave the same Indentrue to John Tison and after the said G. C. brought in action of detinue against the said I. T. who pleaded that the said I. S. found the Indenture and that the said G. C. released to the said I. S. all actions and demandes and after the said I. S. gave the said Indenture to the said I. T. Judgment if action And t' was agreed in the common Bench the case being of land demanded ibidem that this is a good barre and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land and of the property of the chattell which he had before And it was moved in the Kings bench and they were of the same opinion and said that the reason is because that entry in land and seisure of goods are demandes in Law 34. H. 8. B. Releases 90. Relief See Tit. Debt Remainder See Tit. Discent Remitter No Remitter against an Act of Parliament See Tit. Parliament Note a Per curiam if Tenant in Taile makes a Feoffement to his use in Fee before the statute of uses made 27. H. 8. and dyes before the said Statâ—te his heir within age and after the Statute is made before the full age of the heir by which the heir is in possession by the Statute he shall not be remitted by it Contrary of a discent after the Satute for this shall be a remitter 34. H. 8. B. Remitter 49 If a man hath a Tittle of entry and not a right of entry as by escheat mortâ—maine assent by a woman to a ravishoâ—â— and the like and takes an estate of thâ— terretenant he shall not be remited for he hath but a Tittle And a maâ— cannot be remitted but in respect oâ— a right before as where a man is diâ—seised and takes an estate of the disseisor he is remitted for he had a right of entry before And the same Law where a man decaies his Tenements or converts Land from tillage into pasture against the Statute and makes an estate for life to his Lord he shall have no other estate for he had but a Title of entry and not a right of entry Quaere for Non adjudicatur 34. H. 8. B.
remitter 50. Where a Devise shall take away a discent and will not remit See Tit Devise Repleder T was in use in the Kings bench though that the Jury be ready to pass there if there be a Jeofail aparent in the Record the Inquest shall be discharged 35. H. 8. B. repleder 54. Rescous See Tit. Distress Reservations If a man Leases his mannor except the wood and underwood by this the soile of the wood is excepted by Baldwine wine Chief Justice of the Common-Bench Fitz. Justice and Knightly and Mart Serjeants contrary Spilman and W. Conigs ' Just. 33. H. 8. B. Reservations 39. Restitution A man is attainted of Treason the King may restore the Heir to the Land by his Patent of Grant but he cannot make the heir to be heir of blood nor to be restored to it without Parliament for this is in prejudice of others 3. E. 6. B. Restitution 37. Restore al primer action Restored to the first action If a man enters where his entry is not lawful as the heir in Tail after discontinuance or the heir of a Woman or the Woman her self after discontinuance the other upon whom he enters recovers against him there they S. the heir in Tail or the woman or her heir is restor'd to their first action of Formedon or Cui in vita Yet if such who enters where his entry is not lawfull makes a Feoffment and the other upon whom he entered recovers now the first action is not restored to the issue in Tail nor to the Woman nor to her heir by reason of the Feoffment which extincts right and action But if he which so enters makes a Feoffment upon condition and for the condition broken re-enters before that he upon whom he entered hath recovered and then he recovers after the re-entry made by the condition there he which made the Feoffnient upon Condition is restored to his first action for the entry by the Condition extincts his Feoffment 23. H. 8. B. Restore al primer action 5. Retorne de avers Retorn of beasts Note by the opinion of the Court That if a man be nonsuited in a Replevin and a retorn is awarded and the Plaintiff brings a Writ of second deliverance and suffers it to be discontinued retorn irreplegible shall be awarded as well as if the Plaintiff had been non suited in the Writ of second deliverance 17. H. 8. B. Retorne de avers 37. Second deliverance 15. Revivings See Tit. Extinguishments Riot Rout and unlawful Assembly Note that Riot is where three or more do an unlawfull act in Deed and execute it as to beat a man enter upon possession or the like unlawfull Assemblie is where a man assembles people to do an unlawful act and doth not do it nor execute it in deed And Rout is where many assemble themselves for their own quarrel this is a Rout and against law though it be not executed as inhabitants of a Town for to break down a hedge wall or the like to have Common there or to beat a man who hath done to them Common displeasure or the like Lecture B Riots 5. Sanctuary See Tit. Corone Saver default Saving default See Tit. Judgement Scire facias Of a thing Executory a man shall have Execution for ever by scire facias See Tit. Execution Where Debt lies and where a scire facias See Tit. Debt Where a scire facias upon a Recognisance shall be brought See Tit. Lieu ' Second Deliverance See Tit. Retorn de avers Seisin If a man holds of the King and holds other Land of another Lord and dies his heirs within age who intrudes at his full age and pays the rent to the other Lord this is a good Seisin and shall bind him after he hath sued livery for the Seigniory was not suspended by the possession of the King but onely the distress for after Livery the other Lord may distrain for the arrearages due before per optim opinionem tune See now the Statute thereof That the officers of the King shall render yearly the rent to the Lord and the heir shall not be charged with it by distress after upon livery sued as he was at Common Law 34. H. 8. B. Seisin 48. Several precipe T was agreed that a man may have Debt and Detinue by one and the same Writ by several Precipe the one shall be Debet the other Detinet Tim. H. 8. B. several precipe 5. the end Several Tenancie In an Assise several Tenancy is no plea and the same Law in other actions â—here no land is demanded in certain 24. H. 8. B. several Tenancy 18. Statute Merchant T was said for Law That if a man sues Execution upon a Statute Merchant or Statute staple and part of the Land is extended nomine omnium terrarum which is retorned according and the party accepts it he shall never have an Extent nor re-extent of the rest And that upon a Nihil retorned upon a Testatum est he may have Proces in another County for there the judgement shal be quod habeat exeontionem de terris quousque summa Levitur Yet B. seems otherwise of such retorn of Goods 29. H. 8. B. Statute Merchant 40 Note if a Statute staple be extended and so remains by seven years without Deliberate made yet he may have a Deliberate at the end of 7 years but he who hath the land delivered to him by liberate upon a Statute cannot make a surrender conditional to the conusor enter for the condition broken after the time of the extent incurred as land of 10 l. per an is delivered in execution for 40l this may incurre in 4. years there the Conusee by such condition cannot enter after the four years incurred for he ought to take the profits upon his Extent presently And he shal not hold over his time nisi in speciali casu as where the Land is surrounded with water sudden tempest or the like And the judgement shall be Quod teneat terram ut liberum tenementum suum quousque denarii leventur 33. H. 8. B. Statute Merchant 41. T is said for Law That if the Conusor upon a Statute Staple hath a Reversion and grants it over and after the Tenant for life dies this Land shall not be put in execution for the Reversion was never extendable in the hands of the Conusor 33. H. 8. B. statute Merchant 44. the end Note by Bromley Hales and Portman Justices and Rich who was first Chancellor of England Apprenticius Curiam That if the Conusee purchases parcel of the Land after the Statute acknowledged or Recognised this â—s no discharge of the Statute against the Conusor himself But the Feoffees of â—he Conusor of other Parcels shall be â—here of discharged But if the Conusee â—ath the Land delivered in Execution â—nd purchases parcel of the land of the Conusor this is a discharge of the inâ—ire Statute 36.
of England before the Conquest and other Armes after to his owne Armes and other pretences against the Prince and hee was tryed by Knights and Gentlemen and not by Lords nec per pares regni because that hee was not Earle by creation but by Nativity as Heir apparent of a Duke which is no dignity in Law for if hee had beene of dignitie by creation and Lord of Parliament he should be tryed by his Peeres 38 H 8. B. Treason 2. 'T was agreed that for misprision of Treason or if a man knowing counterfeit money and imports it out of Ireland into England and utters it in payment or the like a man shall lose his goods for ever and the profits of his Land for his life and shall be imprisoned for term of life 6 E 6. B Treason 19. the end Note that it appeares by divers Records and Presidents that these words compas or imagine the death of the King are large words for he that maliciously devises how the King shall come to death by words or otherwise and doth an act to explain it or the like this is Treason And hee who intends to deprive the King in this is intended the death of the King quaere of the depriving for by B a man may deprive and yet intend no death And for this cause a Statute was thereof made Time H 8. E 6. And the detayner of a Castle Fortresse or the like against the King is levying of warre against him all which words levying of warre and the others afore are in the Statute of 25 E 3. And adhering to the Enemies of the King ibm ayding and strengthening them 1 M 1 B Treason 24. 'T was agreed in Parliament that for misprision of Treason the Fine used to bee the forfeiture of all his goods and the profits of all his Land for his life and his body imprisoned ad voluntatem Regis for misprision is finable 2 M 1. B Treason 25. the end Note that if an alien borne of a Countrey which is in amity and peace with this Realme comes into the Realme with English Traytors and levies warre this is Treason in all contrary if the Country of the alien were in warre against England for then the alien may bee killed by Marshall Lawe 4 M 1. B Treason 32. Trespas Note that in the Register amongst the Writs of Trespas there are many Writs of Trespas quare vi armis equum suum apud D inventum cepit effugavit c. And so see that if they be taken in a Common or other land which is not to the owner of the beasts yet he shall have Trespas vi et armis but not quare clausum fregit 3 M 1. B Tenants 421. Tryall Peere of the Realme shall bee tryed by his Peeres if hee bee arraigned upon an Indictment contrary if he be arraigned upon an Appeale for at the suite of parties he shall not be tryed by his Peeres and so was Fines Lord Dacres of the South this yeere and hanged for Felony for the death of a man who was found in his company at a hunting in Sussex 33 H 8. B Jurors 48. the end Tryalls 142. Note that in a Court Baron the tryall is by wager of Law but they may bee by Jury ex assensu partium And the Maximes and generall Customes of the Realme which is the common-Law shall bee tryed by the Justices And the same Law of expositions of Statutes And by the Civill-Law the Judges have the construction of Statutes likewise But particular Customes shall not bee tried but per Patriam 33 H 8. B Trialls 143. Note that a Bishop is a Peere of the Realme and shall bee tryed per pares suos upon an arraignment of a Crime and so put in use therefore Knights shall be of the Jury and if not the Panel shall be quashed yet see 27 H. 8. that the Bishop of Rochester was not tryed by his Peers 2 M. 1. B. Trials 142. the end Variance Quare Impedit upon a grant de proximum presentatione granted to I N. Gentleman and in the writ brought by I. N. this word Gentleman is omitted and the Defend ' demanded Oyer of the Deed and had it and the variance no matter for the Action of quare Impedit is founded upon the disturbance and not upon the Deed as an action of Debt is founded upon the Obligation 2 E. 6. B. Variance 109. Verdict Note That the Court of Common Bench would not permit a Verdict at large in a writ of entry in nature of an assise because t was a Precipe quod reddat at which B. admires for it seemeth to him that upon every general issue a Verdict at large may be given 23 H. 8. B. Verdict 85. Special Verdict where the issue is upon an absque hoc See Tit. Issues Joynes Villeinage If a Villein comes to an Executor or to a Bishop Parson or the like in jure Ecclesiae and he purchases Land the executor enters he shall not have it jâ—re proprio but as Executor and it shall be Assets And if the Bishop or the Parson enters he shall not have it but in jure Eccesiae because that they had not the villein in jure proprio but in another right contrary if they had had the villein jure proprio 33. H. 8. B. Villeinage 46. The King shall not have the villein of another in ward and yet if there be an Ideot he shall have the villein of the other who is so Ideot Quaere And the King shall have the perquisite of a villein of another if he hath him as Ideot Lecture B. Villeinage 71. Voucher See B Tit. Voucher 84. Vsury Note that where a man for 100l sels his Land upon condition That if the Vendor or his heirs repaies the summ citra festum Pasche or the like tunc prox futur that then he may re-enter this is not usury for he may repay the day before or any time before Easter and therefore he hath not any gain certain to receive any profits of the Land and the same Law where a defeisance or Statute is made for the repayment citra tale festum E contra if the condition be that if the said vendor repays such a day a year or two years after this is usury for he is sure to have the Lands and the Rents or Profits this year or these two years And so where a Defeisance or Statute is made for the repayment ad tale festum which is a year or two after 29. H. 8. B. Vsury 1. If a man Mortgages his land upon defeasance of repayment to re-enter by which Indenture the Vendee Leases the same land to the Vendor for years rendring rent there if there be a conditition in the lease that if the Vendor repaies the summ before such a day that then the Lease shall be void this is not usury Otherwise if it be
GardJan and Tenant by Stature Merchant ib Jurors take conusance and notice of a thing in another County 33 Place not traversable ib Trespass transitory and Locall diversity 34 Information ib Attorment 34 Where the attornment in the absence of the purchaser shal be good where not ib Quaere 35 Avowry made without attornment and the contrary ib Fine Levied ib Per que servitia ib Where a grant shall be good without attornment ib Attornment necessary where not 36 Attornment upon grant of a reversion of a term ib Diversity ib Whether services pass by Feoffment of the Mannor without Attornment 37 Lease for life and grant of a reversion for years to commence after ib Attorney 38 In what case a man shal make an Attorney what not ib Audita Querela ib Feoff or the heir of the Conusor shal have contribution ib Contra of the Conusor himself 39 Averments see Tit. Pleadings 39 where a man ought to aver that the one and the other are one and not diverse and where ècontra ib Predict serves for an Averment ib Averment upon Avowry 40 Avowry 40 Land charged with two distresses by Dower of part ib Partition is cause of two distresses ib Avowry changed without notice and ècontra ib Sale by Deed inrolled 41 Fine ib Recovery ib Discent ib Quere ib How and in what place notice shal be made ib Que estate in another person ib Diversity ib Avowry upon the land by the Statute of 21. H. 8. cap. 19. and the answer in it 42 His Free hold in avowry for damage feasant ib No seisin and yet ward 43 Limitation in avowry ib Seisin traversed in avowry ib BAR. Bastardy 44 VVHat divorce may Bastardise the issue what not ib Divorce after death ib Battell 45 Before whom bartell shall be made and tried ib Bill 45 Premunire by Bill ib CERCIORARY 46 MIttimus ib Cerciorary to remove Indictments ib Certificate of the Bishop ib Averment contrary to the Certificate of the Bishop ib Challenge 47 Many hundreds ib Challenge ib Charge 48 Charters of pardon 48 For what thing pardon shall serve and for what gift or restitution is necessary ib Pardon before office and after diversity ib Where relation of an office shal not defeat a mean Act ib Pardon of Alienation by Parliament and Letters Patents diversity 49 Amoveas manum ib Intrusion pardoned before office and after office diversity ib Livery ib Full age ib Chattels 49 Remainder of a Chattel devised ib Diversity 50 Chose in Action 50 Thing in Action ibid Thing in Action vested in the King by the Stat. 31. H. 8. ib Thing in Action personal mixt and real 51 Diversity ib Clergy 52 No Clergy in petty larceny 52 Bishop or Metropolitan hath his Clergy ib Laps for the ordinary Metrop and the King ib Bigamus ib Heretik ib Excom ib Jew ib Turk ib Greek ib Roman ib Cecus ib Quere ib Bastard 53 Colour 53 Matter in law ib To the Plaintiff ib To one mean ib To the defendant ib Poss. determined ib Poss. defeated ib Feoff Release ib Fine recover ib Diss. Reentry ib Property ib Upon a bar ib By a mean ib Writ ib Justifie as servant 54 Poss. in Law ib Commission 54 Made Knight after the Commission ib Where one commission shall determine another ib Et e contra ib Diversity betwixt commission of Goale delivery and Oyer and Termyner 55 Justice of the common bench made Justice of the Kings bench ib Kings bench error 56 Justice of the common bench chief Baron of the Exchequer or of Oyer and Termyner or Goale delivery ib Voydence by creation a Bish ib Quere ib Oyer ib Oyer and Termyner ib Peace ib Goale delivery ib Error in pleas 57 Proces or out law ib Justice of Peace made Knight of every commission ib Grant commission diversity ib Commission read or proclaimed ib Notice 58 No such in rerum natura ib Commission unica vice ib Commission determined in part ib Commission in Eyer ib Kings bench 59 Diversity ib Justice for term of life ib Commission determined for want of adiournment ib Where the Records shall remaine ib Conditions 59 Special shewing of the performance of the condition contained in Indentures ib Limitation of payment and not condition 60 Executors ib Ordinary ib Testament ib Tenure condition diversity ib Avowry ib Causa matrimony praelocut ib Condition performed by reason of death Et econtra 60 Ad intentionem is no condition 61 He which will have advantage of a condition must give attendance ib Condition shall not be apportioned ib Conditions performed 62 Where proviso shall make a condition where not ib Quere 63 Infra terminum 10. an infra terminum predict diversity surrender Foreiture ib Reading 64 Defeasans ib Arbitrators ib The reason seems because the submission is conditional ib Acquitted saved harmless and discharged ib Diversity ib Non damnificatus est ib Payment at another place ib Pleading of a condition in the Negative and in the affirmative diversity 66 Condition that the estate shall cease ib Confess and avoid 66 Where a man confesses and avoids there he shall not traverse ib Confirmation 67 Bishop charges with the assent of the Dean and Chapter ib Misnamer ib Sigillura ib Relation 68 Where a confirmation shall be 〈◊〉 by the Bishop Dean Chap Et e cont ib Interest and judiciall power diversity ib Patron hath Fee ib Where the conformat of the new King is necessary where not 69 Franchise ib These words for him and his heirs in the grant of the King ib Et è contra ib Conscience 70 Subpena to execute an estate ibid Vendee shall have see without words heirs ib Continuances ib Imparle to a day in the same term in a common recovery ibid Contract 71 Contract cannot be divided ib Obligation determines contract ibid Diversity ib Corone Crown 72 A man pleads not guilty and after pleads pardon ib Felon after judgement had the priviledge of the Church ib Attainder by premunire and attainder of felony diversity ibid Woman with child shall not have the benefit of her belly but once ib Woman bigg judg'd to be burnt 73 Indictment ib Appeal ib Who shall be said principall ib A man killed at sword and buckler or at justing 74 Indictment in the time of one King shall serve in the time of another ib Certiorari ib Indictment not discussed pending the commission of Oyer and Terminer ib Cerciorari mittimus ib Indictment before Justices of Oyer c. and before Just. of Gaol delivery diversity ib Burglary 76 Burglary ib Clergy of the principal shal not serve the accessary ib Acquit as accessary and after arraigned as principal ib Woman abjured 76 Accusation in case of Treason and misprision ib Tryal of treason by the common Law ib Tryal of petty treason 77 Civil Law ib Witnesses and Accuser diversity ib Challenge ib Abjure for treason ib Quere ib Tryal of
felony ib Removing of the prisoner out of the Kings bench to the Countrey 78 A man takes the Church and will not abjure ib Church serves for forty dayeâ— 79 Abjuration and day to doe it ib Sanctuary pro vita hominis ib Grant or prescription to have Sanctuary for debt good and where not 80 Church suspended ib Church and Sanctuary ib Abjuration discharges felony ib Abjure for petty larceny ib Judgement of life and member is felony ib Corporations Fail of the name of corporat ex parte quer ex parte def diversity ib Quere 81 Abbie extinct ib Quere ib Creation and gift in one patent ib Patent to two intents ib Costes 71 Costes in a Quare impedit 72 Penalty given by Statute ibid Nonsuit ib Defendant shall have costs by Statute ib Covenant 72 Covenant without words of Covenant for him his heirs and execut ib Coverture 73 Deed inrolled by a feme cover by the common Law and by custom diversity 73 London ib Count 73 Count against the tenant and prayee in aid 73 Court Baron 74 T is no Mannor without Suitors ib Where Steward or under Steward may let by copy and ècontta ib Quere ib Customs 74 Custom per tot Angliam and Custom in a City or County Diversity 74 Damages 76 Damages abridged and increased upon inquest of office ib Contra upon issue tried betwixt parties ib Costes ib Where attaint lies where not Default Default after réceit 76 Demurrer 77 Demur upon office ib For what tenure livery due to the King ib Misrecital of a Statute 77 Denizen See Tit Alien 77 Denizen and Alien ib King cannot alter his Law by his Patent ib Escheat ib Deputie 78 Office assigned over 78 Detinu Debt 78 Debt upon Indent of Covenant in which are words obligat ib Where payment is a good plea in Debt without acquittance or writing ècont Shewing of deed ib Once barred upon an obligation t is for ever ib Debt for release ib Devise 80 Testament by a feme covert by assent of the husband ib Countermandable after her death ib Devise by the husband to the wife ib Estate for life by intent and devise good by implication ib Devise to a common person in London and devise in Mort. in London Diversity 81 Where survivor shal not hold place in a devise ib In feodo simplici ib Where all the executors shal sel and where one may ib Quere ib Devise that his executors shal sel post mortem I. S. 82 Devise that the Feoffees shal make an estate where he hath no Feoffees ib Sale of Land by executors after disseism recovery 82 Fine levied or discent 83. Title of entry and right of entry diversity ib Where the property is devised and where the occupation diversity ib Devise the occupation ib Devise that every one shal be heir to the other ib Words to make a remainder 84 Devise to do at his pleasure ib Where the heir may waive a devise and ècontra Discent ib Diversity ib Devise tols a discent and no remitter 85 waive devise ib Divorce 85 Acts executed before the divorce ib Diversity ib Cui ante divorcium ib Discent 86 Remainder to the right heirs ib None can be heir to a man attaint ib Gavelkind ib Diversity ib Casus Sir John Hussey 87 Ouster l' main ib Heirs males name of purchase ib Treason 88 Diversity where the ancestor hath some estate where not ib Remainder 89 Remainder ib Remainder ib Remainder in abeyance 90 Remainder Heredibus Mascul de corp rectis hered Diversity ib Discent to an heir in ventre mirs ib Recovery against Tenant in tail the reversion in the King ib The King tenant in tail cannot discontinue by grant by patent 91 So t was determined in the case of the Lord Barkley ib Discontinuance of proces 92 Diversity betwixt discontinuance and parol saus jour ib Dismes Tythes 92 Lay man shal pay Tythes for spiritual land otherwise of a man spiritual ib Disseisor 93 Lease of land of another man ib Commander is a disseisor ib Distress Pound overt ib Pound breach ib Done Gift 94 What passes by words omnia terras tenementa ib Gift of a Chattel by the King ib What passes by grant of omnia bona ib Dower 95 Dower of a rent reserved upon a lease for years and for life ib Judgement cesset executio ib What Joynture shal be a bar of Dower and what not ib Devise by the husband to the wife ib Dum non fuit compos mentis 96 Fine levied before a Judge off non saue memory and a gift of an office by him diversity ib Ejectione Custod 96 Ejectione custod of a rent before seisin ib Contra of land ib Enquest 97 Where a Peer of the Realm is party Knight shal be in the Jury ib Quere ib Enquest taken de bene esse ib Enquest recharged after Verdict ib Entre Congeable Lawfull Entry 97 Land given habend to the grantee and â—eâ—â—ditâ—pro termino no vita ib Where he in reversion shal falsifie recovery had against tenant for life where not 98 Aid prayer of a stranger is cause of forfeiture ib Entry Lawfull where not ib Recovery against Cestuy que use in tail ib Recovery against Cestuy que use in tail 99 And the entry of the feoffes tolled ib Use in tail ib Quere 100 Equity ib Exposition of a Statute ib Fine by ten in tail in use or possession ib Casus Wimbish ib Recovery void 101 Averment ib Recovery upon a true title falsified ib Covin ib Entry or distrain upon the Patentee of the King contras upon the King ib Who shal travsere an office ib Entry by a purchasor of a reversion for condition ib Equity ib Error 103 Teste misordred in a writ ib Escape First Sheriff suffers the escape and retakes and the second Sheriff suffers him to escape again ib Escheat 104 Foundership escheated or forfeited ib Heir ib Writ of escheat where the Tenant died not seised ib Right of entryâ— escheat ib Acceptance ib Disseisor 10 Diversity ib Acceptance ib Alience ib Essoigne Essoign upon the vJew or voucher ib Error ib Diversity ib Estates Casus Sir T. Lovel heredib mascul by Patent of the King and in grant of a common person diversity 106 Estate in fee during the life of I. S. ib Grant or Feoffment and devise diversity ib Diversity ib Tail executed by reason of an immediate remainder 107 Deviâ—ee shal have fee without words heredibus or imperpetuum ib Estoppel Prescription gon by acceptance of a grant ib Who shal plead a Record for estoppel ib Privity 108 Respit of homage by 2. ib Livery ib Partition ib Lease confessed and avoided ib A man makes a fine upon an indictment of extortion or trespass and after pleads not guilty 109 The entry in making a Fine ib Protestation ib Estoppel by pardon pleaded ib Quamdiu lease for years of his own land shall be an estoppel ib Stranger 110
ancestors death ib Writ of ward without seisen infra tempus memoriae Tenure traversable 156 No seisen and yet ward 157 Assent and dissent to marriage ib Divorce ib Ordinary ib Warde and marriage 158 Tenure ib Two Joyntenants and the heir of the one in ward living the other ib Garranties Warranties 159 Collateral warranty ib Coverture shall not avoide a collateral warranty upon a discontinuance ib Warranty without heirs 160 Warranty to rebut but not to vouch ib General writ 161 General issue ib Things to be pleaded and not given in evidence ib Command ib Common ib Rent 162 Licence ib Lease for yeers and at will diversity ib Manumission in deed and in Law diversity ib Not escaped pleaded and not arrested given in evidence 163 Grants 164 Office of charge and of profit diversity ib Ousting the officers ib Quere 166 Grant void for incertainty 137 Diversity betwixt grant and devise ib Quere ib Lease for life and four yeers over ib What shall pass by grant of lands and tenements or omnes firmas ib Ejectione Firme bi HARIOTS 138 HAriot custome and service diversity ib Detinue ib Heresie 138 Where a writ de haeret comburend shall issue where not ib Abjuration 139 Diversity ib Homage see Tit-Fealty 139 IDEOT 1â—0 IDeot and unthrift diversiverty ib Imprisonment 140 Incident 140 Court Baron incident to a mannor Pipowders to a Faire ib Grants 141 Recovery of a rent service good titie to homage and fealty ib Indictments 141 Indictment of death and poysoning ib Justice indicted ib Diversity ib Alter trespas in felony ib Intrusion 142 Relation of an office diversity ib Where pardon of Intrusion excuses the issues livery c. where not ib Diversity 143 Joyntenants 143 Where successive holds place where not ib Habendum ib Reentry by two or against two where the one dyes 144 Journeys accompts 144 Judggment 145 Nonage saves default ib Recovery against an infant by default and by action tried diversity ib Where a man shall be restored to his first action and where he shall have error c. ib Recovery of land in one County which lies in another ib VJew 146 Intendement ib Assise in N. and recovery pâ—eaded in H. ib Condition determined by judgement 147 Judgement given with original ib Issues joynes Issues joyned 148 Action upon the case upon an assumpsit ib Special verdict where the issue is upon an absque hoc ib Americiament ib Issue found in part diversity ib Preignancy ib Issue in wast ib Americiament 149 Issues retornes Issues retorned 159 See Tit. intrusion Debate of tithes betwixt lay persons ib Spiritual Court ib Tryal of a thing ultra mare 150 Jurors 150 Jury took a scroule not delivered to them in Court ib LEET 150 PAin in the Leet for redressing anusance forfeited by presentment ib Where the Lord shal have debt upon a pain in a Leet and where distrain for it 151 Leet of the torne of the Sheriff ib Exposition of a Statute Leases 151 Void lease ib Acceptance by the successor of a Parson upon a lease for years for life diversity ib Lease during a lease 152 House ib Averment ib Lease for life by a Parson and lease for years diversity Lease determined for a time and yet good after ib GardJan in Chivalry nor Lord by escheat shal not ouste the Lessee 153 Lease for life and lease for years after ib Convenit ib Concessit ib Dimisit ib Locavit ib Acceptance of rent by the successor of a Parson 154 Parson shal not have a writ of right ib A man leases for twenty years and after leases for fourty years ib Lease of a Bishop ib Dean 155 Parson ib Prebend ib Confirmation ib Habend after such a lease ended where there is no such lease ib Lease of a Prebend Equity ib Lease for yeers before livery sued 156 Relation of office ib Where the wife shall lose her Dower ib Lease till a hundred pound be paid ib Diversity ib Lease by a Bishop not sacred and by a Bishop deprived diversity ib Confirmation 157 Lease till he hath levyed 20. pound ib Where the one Feast is put before another in a Lease ib Ley gager Law wager ibid Law in detinue of an Indent of Lease ib Law lies not in a Qâ—o minus ib Licences ibid Contra formam collationis 158 Lieu place ibid Scire facias upon a recognisance ib Limitations ib Copyhold 159 Livery ib Where ward because of ward shal not sue livery but ouster l' maine Seiginory revived by suing livery ib Where livery shal be of Dutchy land where not 160 General Livery and special diversity ib Mannor purchased by the King shall be in him as in the grantor ib Livery Primer seisin ib Garde 161 Ouster l'main ib Where a man shall hold of the King as of his person and yet not in Capite Et ècontra ib Extent of Livery and of intrusion diversity ib Attainder of Cestui que use by Parliament and of attainder of a sole Tenant by the common-Common-law diversity ibid Exposition of a Stat. 162 Livery by the heir during a leas or devise for years ib Where a man shall sue Livery where not ib What is Livery what Ouster l' main 163 Livery of Soccage land ib Tenure of the King in Knights Service and in Capite diversity ib Soccage in capite and Knights service in capite diversity 164 What Livery is ib What Primer seisin ib Livery in Wales and County Palatine ib Primer seisin of cestui que use 165 Will not performed ib MAINPRIZE SVrety upon arrest in London ib Priviledge ib Procedendo ib Revivings ib Where surety upon a Bil in Banco regis is discharged where not ib Repleader ib Power of the Justices of the Gaol delivery 166 Maintenance ib Maintenance by him in remainder or reversion ib Sale where he hath not been seised by a year ib Statute expounded Mannor 167 Making of a Mannor ib Court Baron ib Suitors ib Misnosmer misnamer 168 Statute avoided by misnamer ib Monstrans de faits Shewing of Deeds ib Shewing of Deeds and Records ib Mortdauneester ib â—eoffment to two and the heir of the one ib Mortdauncester ib Discent of reversion Dower ib Forfeiture Feoffment Right ib Mortmain ib When a remainder is granted in Mortmain and when a reversion diversity ib Claim ib Remainder waived Vse ib Appropriation without licence is Mortmain ib Lease for 300 or 400 years is Mortmain ib Otherwise of a covenant for so many years ib 99 or 100 is not Mortmain years ib Mortmain ib Deseisin and discent takes not away the entry of the Lord for Mortmain ib NONABILITIE ib Obligation for usury ib Conclusion ib Non suit King nonsuite ib Nonsuit upon demur ib Nontenure a good plea in an attaint for a stranger contra for a privy ib Where non Tenure shall be a good plea in attaint where not ib Entry in attaint after the last continuance ib Nonse name 214 Where a
the arrearages for they are reall and parcell of the rent or annuity But if the Judgment be of arrearages and dammages there he shall have his age B. age 50. And where he recovers in a Writ of annuity or assise as before Or hath avowed for a Rent which is Freehold and recovers the arrearages without costs and damages he shall not have an action of Debt of that but a Scire facias for t is real But where he hath Judgement of it with costs and dammages which go together so that that t is mixt with the personality then lies a Writ of Debt against the Heir of the arrearages and dammages and this B. thinks in default of Execution per curiam 23. H. 8. B. Debt 212. age 50. Note That of the Land of the Duchy of Lancaster and other Lands which the King hath as Duke or the like his age is material and he may have his age as another common person may for he hath them as Duke not as King B. Age 52. 78. As if the King alien Land parcel of his Dutchy of Lancaster within age there he may avoid it for Non-age for the reason aforesaid otherwise of Land which he hath as King for the King cannot be disabled by Non-age as a common person shall B. Prerogative 132. Yet by the Statute of 1. E. 4. which is a private act not printed but inrolled in the Dutchy Chamber by which King H. 6. was attainted of Treason and that all the Lands of the said Dutchy should be forfeited and should be a Dutchy separated and incorporated c. t is annexed to the Crown but by another private act 1. H. 7. t is disannexed and made as in the time of H. 4. 1. E. 6. B. Age. 52. Note t was in a manner granted by all the Justices in the Common Bench That if a Parson Prebend or the like be within age of 21 years and makes a Lease of his Benefice within age that yet this shall binde him for where he is admitted by the Law of holy Church to take it within age so the Common Law inables him to Demise his Benefice within age 4. Mar. 1. B. Age. 80. Alienations If the Tenant of the King alien in Fee without licence and die his Heir within age the King shall not have the Ward because that nothing is discended to him and that the Alienation is good save the Trespass to the King which is but a Fine by Seiser B. Alienations 29. Gard 85. But otherwise if the Alienor were Tenant in Tail and if the Alienation without licence be found by office the King shall have the Issues of the Land from the time of the Inquisition taken and not before B. Alienations 26. in medio But where the Tenant dies and his Heir enters upon an office found for the King of the dying seised of the Ancestor there the heir shall answer the profits taken by him before 26. H. 8. B. Intrusion 18. the end T is said for Law That a fine for alienation is one years value of the land aliened and the same Law of a Fine for intrusion upon the King But the Fine to have licence to alien is but the third part of the yearly value of the land which shall be aliened and for licence to alien in Mortmain the Fine is the value of the Land for three years 31. H. 8. B. Alienations 29. the end If a man obtain licence to alien the Mannor of D. and all his Lands Tenements in D. he cannot alien by Fine for the Fine shall be certain so many acres of Land so many of Meddow so many of Pasture and the like and the alienation ought not to vary from the Licence Yet by B. t is otherwise used with an averment that all is one 32. H. 8. B. Alienations 30. Note if there be two Joynt-tenants who hold of the King in Capite and one releases to the other all his right this is no alienetion nor doth he need Licence or pardon of it for he to whom the Release is made is in by the first feoffor and not by him that Released nor shall he Fine for such release and so t is used in the Chequer that t is no alienation But if three Joynt tenants are and the one Releases to one of the others there he is in of it by him that releases Contra if he had released to all his compagnions and where a man Releases by Fine to the Tenant of the King this is no alienation Otherwise of a Fine Sur Conusans de droit Com ceo c. for this is an estate made by Conclusion 37. H. 8. B. Alienations 31. Tenant of the King in Capite cannot alien for term of life without Licence for it alters the Freehold Time H. 8. B. alienations 22. the end Note That for Burgage Tenure of the King a man may alien without licence well enough 6. E. 6. B. Alienations 36. Note That a Devise by Testament was taken to be an alienation 3. Mar. 1. B. alienations 37. Alien See Tit. Denizen Note by the whole Court in the Kings Bench an alien may bring an action personal and shall be answered without being disabled because he is an alien born otherwise in an action real and the same B. seems in an action mixt and he may have a property and buy and sell. 38. H. 8. B. Denizen 10. Nonability 40. T was said in the Kings Bench That to say that the Plaintiff is an alien born Judgement if he shall be answered is no plea in an action personal otherwise in an action real Yet this hath been in question after this time in the same Court and t was said that an alien born is no plea in Trespass if he doth not say further That the Plaintiff is of allegiance of one such a one enemy to the King for t is no plea in an action personal against an alien that he is of the allegiance of such a Prince which is of amity with the King 1. E. 6. B. Nonability 62. If an alien born purchase the King shall have it but the purchase ought to be found by office and so t was in the case of Alien King and B. seems that an information in the Chequer will not serve in this case Time E. 6. B. Denizen 17. the end T was said in Parliament That if an alien born obtain a Lease for years that the King shall have it for he cannot have Land in this Realm of no estate 4. Mar. 1. B. Denizen 22. Amendment By Fitzherbert and the Court where a Writ of Error was sued to remove a Record out of the Common Bench into the Kings Bench betwixt an Abbot and I. N. the Warrant of Attorney varied in the Roll in the name of the Abbot and t was amended after Judgement and if they had not amended it they said that those of the
Kings Bench would have amended it 23. H. 8. B. Amendment 85. the end Note That where a Warrant of Attorney varied from the name of the Corporation of the party and a Writ of Error was brought to those of the Common Bench they amended it presently and they said that those of the Kings Bench would have done the like 24. H. 8. B. Amendment 47. Note t was agreed by the Kings learned Councel That the King may amend his Declaration in another Term in omission and the like as where an information misrecites the Statute this may be amended for misrecital is the cause of Demurrer for if it be misrecited then there is no such Statute but he cannot alter the matter and change it utterly yet the same Term he may 4 Eliz Com. 243. by Weston 30. H. 8. B. Amendment 80. Appeal Note by the Justices of both Benches a man shall not have the plea in an appeal That the dead assaulted him and that he killed him in his defence but shall plead not guilty in manner and form and shall give this matter in evidence and the Jurie is bound to take notice of it and if they finde it he shall go acquitted in form aforesaid Nor he shall not have this for plea with a traverse of the murther for the matter of the plea is murther Nor murther cannot be justified and when the matter of the plea is worth nothing there a traverse the like B. Appeal 122. Corone 1. the end And where the Jury acquits the Defendant upon an Indictment before the Coroners they ought to finde that he killed the man and there they may say That the same Defendant killed him se defendendo but upon an Indictment before other Justices it suffices to say not guilty only without more 37. H. 8. B. Appeal 122 The Heir of a man killed shall have an appeal as well of Homicide of his ancestor as of Murther 2. E. 6. B. Appeal 124. Note if a woman who hath Title of an appeal of the death of her husband takes another husband he and the wife shall not have an appeal for the woman ought to have it sole for the cause of an appeal is that she wants her husband and the reason is because the wife wanting a husband is not so well able to live and therefore when shee hath another husband the appeal is determined for the cause ceasing the effect ceases B. Appeal 109. as where a woman hath a Quarentine and she marries within the 40. daies shee loses her Quarentine 1. Mar. 1. B. Appeal 109. Dower 101 Appeal of death may be commenced before the Coroner and Proces awarded to the Exigent but the plea shall not be determined before him Reading 113. B. Appeal 62. the end Corone 82. Apportionment T is said that if I sell my Horse and the Horse of W. N. to A. for ten pound and W. N. retakes his Horse that A. shall render to me the entire ten pound because a Chattel cannot upon a contract be apportioned 30. H. 8. B. apportionment 7. If the Kings Tenant of four acres alien one to the King Or if he hath two Daughters and dies and the one aliens to the King the Rent shall be apportioned if it be severable and this by the Common Law by some Quaere for the reading of Fitzjames is otherwise 32. H. 8. B. apportionment 23. Before the Statute of Quia emptores terrarum if the Lord had purchased parcel of the land holden of him his entire Rent was extinct though t was severable Yet now by the said Statute it shall be apportioned be it purchased by the Lord or by another But this doth not help a Rent Charge because the Statute is onely for the loss of the chief Lord. But of a Rent service upon recovery of parcel or of a discent of parcel and the like which are the acts of God or of the Law there was an apportionment at the Common Law contrary of his proper act as purchase because before the Stat. aforesaid it was of a rent service as t is at this day of a Rent charge which is extinct by purchase of parcel of the Land Reading B. Apportionment 28. Arbitrement Debt upon an Obligation the Defendant pleads the Condition if he shall stand to the award of I. and N. so that the award be made before such a day and saies that the award was not made by the day the Plaintiff may say That they made such an award before the day which the Defendant in such a point and shew in certain in what hath broken for he must shew the breach in some point certain otherwise the action lies not 31. H. 8. B. Arbitrement 42. Assets inter maines Assets in their hands See Tit. Extinguishment Note if Executors plead fully administred in an action of Debt and give in evidence payment of Legacies the Plaintiff may demur upon it for such administration is not allowable in Law before debts paid 33. H. 8. B. Assets inter maines 10. Where a perquisite of a Villain shall be Assets See Tit. Villeinage Assets per discent Assets by discent In an action of Debt against an Heir upon an obligation of his ancestor who pleaded nothing by discent and t was found that Land discended to him but not assets t was adjudged that the Plaintiff should have Execution of all his Lands as well of Land purchased as of Land discended and B. seems the reason to be for his false plea. 3. Mar. 1. B. Assets per discent 5. in the end Assignee A man Leases a house and Land for years and the Lessee Covenants that he and his Assignes will repair the house and after the Lessee grants over his Term and the assignee doth not repair an action of Covenant lies against the assignee for this is a Covenant which runs with the land B. Covenant 32. Deputy 16. and also it lies clearly against the Lessee after that he hath assigned over his Term and B. seems that if he bring several Writs of Covenant against both that there is no remedy till he takes execution against the one and then it seems to him that if he sues against the other he shall have an Audita Querela 25. H. 8. B. Covenant 32. Assise Assise the Tenant pleads not attached by fifteen daies the Bayliff was examined who said that he attached him by the horse of a Farmor which was a Termor to the Tenant of the land in plaint which matter was recorded and B. seems that t is no good attachment for the Tenant cannot forfeit the beasts of his Farmor and an attachment ought to be made of such things which the Tenant may forfeit by Outlary Note between Dudly and Leveson for the Mannor of Parton in the County of Stafford 31. H. 8. B. Assise 480. Note by the Justices in the Common Bench That in an assise against two the one takes the
Tenancy and pleads no wrong and the other takes the Tenancy without that that the other hath any thing and pleads in Bar there the Plaintiff shall be compelled to chuse his Tenant at his peril as well as if both had pleaded in Bar and accepted the Tenancy severally and if it be found that he mis-elects his Tenant the Writ shall abate but he shall not be barred And there when the Demandant elects his Tenant and he pleads there they shall be at issue before that the Tenancy shall be inquired and then the Tenancy shall be Inquired first and after the other issue 6. E. 6. B. Assise 384. Assurances Note that Tenant in Tail who levies a Fine with Proclamation shall be bound and his Heirs of his body also after the Proclamation made and not before so that if the Tenant in Tail die before all the Proclamations made this shall not binde the issue in Tail and the Proclamation cannot be made in shorter time then in four Terms B. Fine Levies 109. assurances 6. But Tenant in Tail who is not party to the Fine shal not be so bound after the Proclamations but that he shall have five years to make his claim and if he fails of them and dies his issue shall have other five years by the equity of the Statute of W. 2. Quod non habeat potestatem alienandi Yet t is said if the first Issue neglect the five years by which he is barrable and dies his issue shall not have other five years for if the issue be once baâ—rable by the Fine the Tail is by this bound for ever Quaere And the Statute saies That it shall binde parties and pâ—iâ—â—es and therefore where Tenant in Tail is party to the Fine with Proclamation and his issue claims Performam doni the issue is privy for he cannot convey to himself as heir in tail but as of the body of his Father which is privity But a Fine with Proclamation may be confessed and avoided and then it shall not binde for the Statute is intended De finibus ritè levatis And therefore he may say that the parties to the Fine had nothing tempore finis c. For if none of the Parties had nothing tempore finis then t is a Fine by conclusion betwixt the parties but all strangers may avoid it by the averment as afore B. Fines Levies 109. And by the Statute of 32. H. 8. Fine with Proclamation by Cestui que use in Tail shall binde him and his heirs after Proclamation made and a Fine with Proclamation the Reversion or Remainder in the King and the Conusor dies the Proclamation made t is no Bar nor discontinuance because that the Reversion or Remainder in the King cannot be discontinued therefore there the issue in Tail may enter after the death of the Tenant in Tail B. Bar 97. Assurances 6. And B. seems that neither the Statute of 32. H. 8. nor 4. H. 7. shall not binde the issue in Tail nor the Reversion to the King by Fine with Proclamation though that the Proclamation be made and yet the Statute of 4. H. 7. wils that after Proclamation made it shall be a final end and shall conclude as well privies as strangers except infants Fem Coverts and the like c And the issue in Tail is privy Yet B. thinks that the intent of the Statute was not that the issue in Tail the Reversion to the King should be bound for by him after this Statute this was taken to be no discontinuance and therefore it seems to him that it shall not binde the Issue in Tail the Reversion in the King B. Fines Levies 121. Yet Quaere for the Statute of 32. H. 8. which wils that the heir in Tail shall be barred by Fine with Proclamation after the Proclamation made hath an exception of those of which the Reversion or Remainder is in the King so that it shall not binde such issue in Tail B. assurances 6. the end But otherwise t is of a recovery and Execution had by writ of entry in the Post with voucher by the Common Law for though that the Reversion or Remainder be in the King such recovery shall binde and was a bar against the Tenant in Tail and his issue presently but not against the King But at this day by the Statute of 34. 35. H. 8. Recovery against Tenant in Tail the Remainder or Reversion in the King shall not binde the issue in Tail but that he may enter after the Death of Tenant in Tail 30. H. 8. B. Bar 97. the end Assurances 6. Note That for assurance of land that the heir should not sell t was devised That a man should make a Feoffment in Fee to two to the use of himself for Term of life without impeachment of wast and after to the use of his son and his heirs until the son should assent and conclude to alien it or any part of it or to charge or incumber it and after imediately upon such consent and conclusion to the use of A. and his heirs until as afore and then c. to the use of B. and his Heirs until c and so of more c. and by such assent and conclusion by the Statute of uses Anno 27. H. 8. c. 10. the other shall be in possession c. 38. H. 8. B. Assurances 1. Where men enter into an arbitrement and every one is bound to the other in an obligation or other such Covenants and are bound to perform it and t is awarded that every one should release to the other all actions the like there it ought to be expressed all actions before such a day which shall be before the date of the Obligation for otherwise the Obligation of the award or the last Obligations to perform the Covenants shall be also released Regulae B. Assurances 4. Attaint Caveatur in every action triable by Jury of the quantity of the land as where a man demands 200. acres where they are but a hundred sixty or the like and the title is for the demand there if the Jury finde that he deseised him of 200 acres or the like this is matter of Attaint And so where they finde him gulty in trespass or the like of more trespasses then he did or of excessive dammage and the like 24. H. 8. B. Attaint 96. Quaere by B. if an Attaint doth not lie upon a Verdict in an appeal of Maihem at this day by the Statute of 23. H. 8. cap. 4. For this year t was doubted 38. H. 8. B. Attaint 10. the end Assise is brought against Tenant by Statute Merchant and against the Conusor Tenant of the Free-hold and the Assise acquits the Tenant by Statute Merchant and attaints the other of disseisen the Tenant by Statute Merchant shall not have an Attaint nor the Lord where Land is recovered against him and the heir where he hath the heir in Ward nor the
of the Countrey by Cerciorari to the Chancery and may be sent to the Justices of the Kings Bench by Mittimus and then they shall proceed upon it 36. H. 8. B. Certiorari 20. the end Certificate of the Bishop 'T was holden that if the Bishop certifies that such a person paid not his Tenths according to the form of the Statute which wills That ipso facto the Benefice shall be void that in this case a man shall not have an averment contrary to the certificate Time H. 8. B. Certificate devesque 31. the end Challenge Note by the Exchequer and both Benches where the parties are at issue in a plea of land where the land lies in three or four hundreds there if the Juror hath land in any of the hundreds or dwells in any of the hundreds it suffices 4. M. 1. b. Challenge 216. In Treason t is a good challenge to witnesses to say that he was one of his accusers b. Corone 219. And note that by the Statute of 33. H. 8. a peremptory challenge is ousted in case of high Treason yet by the said Statute Queen Mary t is enacted That all tryals of Treason shall be according to the order of the Common Law and not otherwise And therefore it seems that he may have a challenge peremptory as at Common Law S. 35. Jurors 4. M. 1. B. Challenge 217. Trials 151. the end Where a Grant of the Bishop or charge by him with the assent of the Dean and Chapter shall binde the successor and where not See Tit. Confirmation Charters of Pardon Note if a man be attained of murther or Felony by Outlawry or otherwise and the King pardons him all Felonies Murthers and Executions eorundem and Outlawries and Waivings and Sectam pacis And a pardon and release of all Forfeitures of Lands and Tenements and of Goods and Chattels shall serve but for the life and for the land if no Office be thereof found But it shall not serve for the goods without restitution or gift For the King is intitled to them by the Outlawry without Office but the King is not intituled to the Land till Office found And if an Office be found after yet the pardon shall serve for it shall have relation to the judgement then the mean pardon serves well contrary where an Office is found before the pardon granted for then the King is seised by the Office and there a release or pardon cannot give it but there ought to be a Gift or Grant 29. H. 8. B. Charters of Pardon 52. Note if alienation without licence be pardoned by Act of Parliament the party may enter without Ouster l'main or amoveas manum Otherwise by another pardon by letters Pattents 29. H. 8. B. Charters of Pardon 53. If intrusion by the heir post mortem antecessoris be found by Office and after the King pardons it by act of Parliament or by letters Pattents yet the heir shall sue Livery for this is not restored to him by a pardon but if the pardon were granted before Office found and at the making of the pardon the heir is of full age he shall retain the land and the Office found after the pardon shall not hurt him 30. H. 8. B. Charters of Pardon 54. Chattels If Lessee for years devise his Term or other his Chattel or Goods by Testament to one for term of his life the Remainder over to another and dies and the Devisee enters and aliens not the Term nor gives or sels the Chattel and dies there he in Remainder shall have it but if the first Devisee had aliened given or sold it there he in the Remainder had been without remedie for it B. Chattels 23. Done 57. And so B. seems if they be forfeit in his life he in remainder hath no remedy 33. H. 8. B Done 57. the end Choice in Action Thing in Action Note where the Statute of 31. H. 8. gives to the King the possessions of Abbies and all rights of Entries Actions Conditions and the like which the Abbies might have had and that he shall be in possession without office and that he shall be adjudged in actual and real possession of them in such plight and sort as they were at the time of making of the Statute Yet if an Abbot were disseised of 4 acres of land the King cannot grant it over before entry made by him in it because t is a thing in action real and not like to a thing in action personal or mixt as debt ward and the like by some And some è contra by reason of these words That the King shall be in possession Yet by B. this seems that he shall be in such possession as the Abbot was S. of a thing of which the Abbot had possession the King hath of this actual possession of such of which the Abbot had but a cause of entry or right in action of these the King shall be vested of a Title of entry and Title of action But the thing to which he hath such cause of entry or of action is not for this in him in possession and therefore cannot pass from the King by general words but B. seems if the King recites the diseisen and how the right and action thereof is given to him by the Statute and grants it specially that t is good 33. H. 8. B. Choice in Action 14. 'T was said for Law That the King may grant a thing in action which is personal as debt and dammages and the like or a thing mixt as the ward of body but not a thing real as an action of land and the like as Rights Entries Actions and the like which Abbots might have And that the King shall have these by the Statute of dissolution of Abbies 31. H. 8. These things in action the King cannot grant Yet by B. see if there be not words in this Statute to put the King in possession though the Abbot were put to his action 33. H. 8. B. Pattents 98. Clergy No man shall have his Clergy but where his life is in jeopardie and therefore not in petty larceny And the Bishop is Ordinary all Priests Abbots and others inferior to him which demand Clergy or have Clergy and if the Bishop hath his Clergy the Metropolitan shall keep him as his Ordinary and if the Metropolitan offend and hath his Clergy the King shall have him and keep him the same is of Laps Reading B. Clergy 19. Corone 183. Note That at this day Bigamus shall have his Clergy by the Statute but a man attainted of Heresie shall not otherwise of a man excommunicated and a Jew nor Turk shall not have their Clergy and a Greek and Roman who use not our letters shall have their Clergy and shall stay till a book of letters of their countrey comes B. Clergie 20. And if a man who is captus oculis prayes his Clergy he shall have it if he
me for the same debt yet the contract remains because that t is by another person and both are now debtors 29. H. 8. B. Contract 29. Corone Crown Note if a felon hath a pardon to plead and pleads not guilty he shall lose the advantage of his pardon and shall not plead it after 18. H. 8. B. Corone 199. Note that at the Sessions at Newgate a man was judged to be hanged and delivered to the Sheriff to make execution and after escapes and flees to the Church and had the priviledg of it 22. H. 8. B. Corone 1 10. the end Note t was holden by all in the house of Parliament that if a man kill one who is attainted by Premunire this is no felony for he is out of the protection of the King which is as if he were out of the Kingdom and power of the King Otherwise of him who is attainted of felony and judged to death the killing of him is felony 24. H. 8. B. Corone 196. T is said where a woman is arraigned and adjudged to be hanged or burnt according to the Crime and because that she is with childe Execution is respited untill shee bee delivered and now she is with childe again because that once execution was spared for the same cause now execution shall be commanded to be done and the Gaoler shall not be punished 28. H. 8. B. Corone 97. A man steals goods in one County and flees with them into another he may be indicted or appealed in any of the Counties for t is felony in every of the Counties for felony alters not the property 34 H. 8. B. Corone 170. Note that if 12 come for to do robbery affray riot or the like which are unlawful acts one of them enters into the house and kills a man or doth other unlawful act all the others which came with him to do the unlawfull act are principals The same Law in the case of Fines Lord Dacres one of his company killed a man in hunting in a Forrest and the Lord Dacres and the other hunters as Mantel and others were principals and were all hanged 34. H. 8. B. Corone 171. A man shall not plead that the dead assaulted him and in his own defence c. but not guilty in an appeal and give it in evidence and murder cannot be justified See Tit. Appeal Note by the Justices that t is felony to kill a man in Justing or where men play at sword and buckler and the one kills the other and the like notwithstanding the commandement of the King for t was against Law Time H. 8. B. Corone 228. Note by all the Justices that if a man be indicted of felony in the time of H. 8. the King dies he shall be arraigned for it in the time of E. 6. But by some this indictment shall be removed by Cerciorari from the antient custos Rotulorum and put to the new commissioners 1. E. 6. B. Corone 177. Note that Indictments and Records which are taken before Justices of Oyer and Terminer and not determined before their commission be ended these shall be put into the Kings Bench to arraign the parties there S. by Cerciorari out of the Chancerie which shall be to commissioners of Oyer and Terminer and after shall be sent into the Kings Bench by Mittimus B. Corone 178. Oyer and Terminer 2. But indictments taken before Justices of Gaol delivery and not determined shall be delivered to the Clerk of the peace or shall remain with the custos rotulorum of the County where c. and when other Justices of Gaol delivery come there they may proceed upon them upon judgement of death and this by Statute And B. seems that they shall proceed by the equity of the words to allowance of Clergy or Sanctuary and the like 1. E. 6. B. Corone 178. Note that t was holden that where a stable is near a house inheritable as parcell of the house and a man breaks it by night to the intent to rob in it t is felony though he takes nothing for t is burglary 2. E. 6. B. Corone 179. Burglary shall not be judged but where there is breaking of a house by night And by the Justices where the principall and accessarie are arraigned and the principall hath his Clergie this shall not serve the accessarie but he shall be arraigned and hanged where both are found guilty 4. E 6. B. Corone 184. A man is indicted as accessary to a felony and acquitted and after is indicted of the same felony as principal he shall be arraigned and hanged notwithstanding the acquittal as accessary And so was Thomas Knightly first indicted and arraigned as accessary of I. S. and acquitted and after was indicted of the same murder as principal and arraigned of it again 4. E. 6. B. Corone 185. A woman took the Church for felony and abjured the Kingdome 6. E. 6. B Corone 213. Note that 't was agreed by all the Justices at Serjeants Inn in Chancery Lane 25 Octob. 1556. as to the Trial of Treason and misprison of Treason that by the Statutes 2 accusers or testes ought to be at the indictment or the sayings and accusations in writing under their hands or the testimony of others of the same accusation which shall be read to the Jury at the indictment and if the accusers are dead at the time of the indictment yet it suffices if the accusation be there testifying it for then there were two accusers But for any Treason de Anno 25. E. 3 there needs no accusers at the trial because that 't is enacted by the Statute of 2. M. 1. cap. 10. That all trials of Treasons shall be by the order of the common Law onely non aliter And the common trial by common Law is by Jurie and by witness and by no accusers And the same Law of Treason of coyning that accusers need not at the arraignment but at the indictment ut supra onely But for all treasons done by the said Act of 2. M. 1. there ought to be witnesses or accusers as well at the indictment as at the arraignment according to an Article contained in the said Statute in Fine And for misprision of treason there ought to be witnesses or accusers as well upon the indictment as upon the arraignment by the Statute of 1. E. 6. cap. 12. the end for the said Statute of Q. Mary doth not restrain accusers at the trial but only in cases of treason and not for misprision And t was agreed that petty treason ought to be tried as high treason S. by accusers by indictment But at the trial there needs not accusers And at this resolution wer Sir William Portman chief Justice Mr. Hare Master of the Rolls Sir Robert Brook Sir David Brook Sir Humfrey Brown Sir John Whiddon Sir Edward Saunders Sir William Stampforde and Master
Dalyson Justices Dyer Serjant and Griffine and Cordell Attorney and Soliciter And t was agreed that Counsellers who give evidence against Traytors are not accusers And by the Civill Law accusers are as parties and not witnesses for witnesses ought to be indifferent and not come till they are called but accusers offer themselves to accuse for t is a good challenge to witnesses to say that he was one of his accusers 4. M. 1. B. Corone 219 'T was said for Law that a man cannot abjure for high treason Quaere of petty treason for t is manifest in a Chronicle in the time of H. 6. that a woman that killed her Mistress abjured the Realm 5. M. 1. B. Corone 180. the end Manningt ' and another were indicted of felony in the high way in the County of Bedford for robbery of one Edward Keble Clerk with daggs the indictment and the body were removed into the Kings Bench and there they were arraigned and pleaded not guilty to the countrey and were tried But after a writ was sent with the body into the countrey with Nisi prius to trie them in the county of Bedford And this is a common course so to remove the body and the Record out of the Kings Bench to the countrey again 4. M. 1. B. Corone 230. A man takes Church and the Coroner comes to him and demands of him for what cause he does it who said that he would be advised by 40. days before that he would declare his cause the Coroner may draw him out presently but if he will confess to him felony he may remain there by 40 days before that he abjures Otherwise where he takes Sanctuary as Westm ' Knoll and the like for this may hold him for term of life except in case where a Statute changes it B. Corone 180. Sanctuary 11. But if he will abjure within the 40 days the Coroner shall give him a certaine day to doe it B. Corone supra None shall take priviledg of the church except that he be in danger of his life B. Corone 181. Nor none shall have the priviledg of Sanctuary except he in periculo vitae And note that Sanctuary cannot have a lawful commencement Nisi pro vita hominis as for treason felony or the like and not for debt therefore where a grant or prescription is to have Sanctuary for debt t is worth nothing for t is against the Law But if his body were in execution and he escapes and comes to a Sanctuary ordained for safeguard of the life of a man he shall enjoy it for by long imprisonment his life may be in jeopardy And if the church be suspended for bloodshed yet he which takes the church for felony shall enjoy it by 40 daies B. Sanctuary supra There are two manner of Sanctuaries S. private as Westminster Knoll and the like And general sanctuaries as every church B. Corone 181. the end Abjuration for felony discharges all felonies done before the abjuration A man cannot abjure for petty larceny but for such felonies for which he shall suffer death Lecture B. Corone 182. Note that these words Quod pred vitam membra in a Statute are intended felony without the word of felony in it Regula B. Corone 203. Corporations Note that the Justices of the common bench accords in case of a corporation that known by the one and the other in a suite by a name known is no plea for the plaintiff for he ought to acknowledge his proper name But if the defendant be named by the plaintiff by a name known though the defendant be corporate it suffices Yet Quaere if there be not a diversity betwixt an action real and an action personal 25. H. 8. B. Corporations 82. By Fitz. â—f the Abbot and Covent sel all the lands and the Abby yet the Corporation remains Quaere by B. of what he shall be Abbot for there is no church nor monastery And by him Quaere if the Abbot die if they S. the Covent may chuse another the house being dissolved 32. H. 8. B Corporations 78. See Tit Extinguishment The King makes a Duke or Earl and gives to him 20. l. of land or the like by the same name so that the creation and the grant is all by one and the same patent yet t is good And the same Law of making a corporation and giving to them land by the same patent and name 2. E. 6. B. Corporations 89. Costes Note by Spilman Justice that at common Law a man shall recover costs in a Quare impedit but otherwise after the Statute of Westm. 2. cap. 5. because the Statute gives great dammages in a Quare impedit 22. H. 8. B. costes 25. Note where an action penal is given by Statute to recover a great summ by action of Debt for ingrossing or the like there the Plaintiff shall not recover costs nor dammages in this action of Debt 35. H. 8. B. Dammages 200. costs 32. T was said That if a Lessor brings Debt against his Lessee for years for Rent and the Plaintiff is nonsuit or if the inquest pass against him he shall render costs to the Defendant by the Stat. for a Lease for years rendring rent is a contract 2. M. 1. B. costs 23. Covenant Where an assignee shall be charged with the Covenant of his Grantor See Tit. Assignee Plea of Covenants perform generally without shewing how is no good plea See Tit. conditions T is said by the Justices That a Writ of Covenant lies upon an Indenture without this word Covenant and grant for him his heirs and executors 1 M. 1. B. covenant 38. the end Coverture Note that a Statute Staple nor Deed enrolled shall not be accepted of a Fem Covert by the Common Law contrary by the custom in London of a Deed enrolled for this shall binde in London as a Fine at Common law B. coverture 59. 76. the end Nor a Fine Statute nor Deed enrolled shall not be suffered by an Infant 32. H. 8. B. coverture 59. the end Count. Precipe quod reddat against Tenant for life who prays in aid of him in reversion who appears gratis and joyns in aid and the Demandant counts de Nono against the Tenant and the Prayee and they vouch the common Voucher and suffer recovery for assurance And yet t is said That the Priee shall not have Oyer but of the Count. cusus 22. H. 7. B. count 87. Court Baron T was said that the Lord of a Mannor cannot hold Court nor do justice without two Suitors and if they die or if that there be but one suitor the mannor is determined for t is not a Mannor without Suitors 23. H. 8. B. Court baron 22. the end If an understeward holds a Court Baron and grants Copy-holds to the Tenants by Copy of Court Roll without authority of the Lord or high Steward this is a good grant for in
shall have it for this name heires males of the body is but a name of purchase and Sir W. H. shall not have it as heir to Sir John but as purchaser B. Nosme 1. Livery 1. Discent 1. As if land is given to a man and his heires males of his body and he hath issue 2 sons the eldest hath issue a daughter and the father and the eldest son dies the younger brother shal have the land and yet he is not heir to his father And the same Law where land is given to a man and to his heirs females of his body and he hath a son and daughter and dies the daughter shall have the land and not the son B. Nosme 1. 40. And so where Tenant in tail is attainted of Treason before the Statute of 26. H. 8. his son shall have the land for he doth not claim onely as heir but by the Statute and per formam doni B. Nosme 1. Yet some were of a contrary opinion and took a Diversity where the gift is to the father himself and where t is to the heires of his body by remainder B. Nosme 1. 40. And therefore in 9. H. 6. if lands are given for term of life the remainder to the heires females of the body of I. S. who is dead and hath issue a son and daughter and after the Tenant for life dies the daughter shal not have the land for she is not heir for by Hare Master of the Rolls an antient apprentice there is a difference betwixt a gift in possession to a man and his heires females c. and a gift to a stranger the remainder to the heirs females of another for there he ought to be heir indeed when the remainder falls or otherwise the rem ' is void for ever B. Done 61. for though that the case holds place in the two cases put by Whorewood this is because that the gift was once vested which was in the father and therefore good law there otherwise in the principall case where the rem ' is not vested Yet by some the opinion of Whorewood is the better for where land is given to a man and his wife for term of life the rem ' to the heires males of the body of the man this remainder cannot be vested in the life of the wife for t is not a tail in the man by reason of the estate of the wife yet if he hath issue 2 sons and the eldest hath issue a daughter and dies the father and mother dies the younger son shall have the land as heir male and yet he is not heir indeed The same Law if such gift were the rem ' to the heirs females of the body of the man who hath a son and daughter and dies the daughter shall have the land though she is not heir The same Law where land is given to W. N. for life the remainder to I. S. for life the remainder to the heires males of the body of the said W. N. who hath 2 sons the eldest hath issue a daughter and dies W. N. and I. S. die the younger son shall have the land as heir male yet he is not heir indeed but his Neece is heir to his father for t is not matter of the first vesting nor of the remainder for where the first estate for term of life is executed the remainder over ut supra the remainder may depend in abeyance quousque c. ut supra But otherwise of a remainder to the right heires for none can have that but he which shall be heir indeed B. Nosme 40. and therefore t was agreed that the 2 remainders to the right heires of Sir John Hussey was forfeited by the attainder 37. H. 8. B Nosme If land discends to the daughter within age and after she is disseised the disseisor dies and his heir enters and after a son is born he born shal avoid the discent for he claims not as heir to his sister nor was he in esse at the time of the discent Lecture B. Discent 40. Discontinuance of Possession Recovery against Tenant in tail the reversion or remainder in the King in fee shall binde the Tenant in tail and the issue in tail but not the King But now by the Statute it shall not binde the issue in tail but that he may enter 32. H. 8. B. Discontinuance of possession 32. Note that t was agreed in the case betwixt the King and Anthony Lee Knight if the King Tenant in tail of the gift of another makes a lease for years or for life and hath issue and dies the issue may make another grant without reciting them for they are void by the death of the King Tenant in tail who granted and the heir of the King shall avoid it so that this shall not binde but during the life of the grantor for a grant without warranty or livery is no discontinuance and the King upon his grant doth not make livery And also every discontinuance is a wrong which the King cannot do the same law if he had granted in fee t is no discontinuance B. Patents 101. Discontinuance of Possession 35. Tail 39. Leases 61. And so see that the King may be Tenant in tail for when a man gives to the King in tail he cannot have a greater estate then the donor will depart with to him 38. H. 8. B. Tail 39. Release no Discontinuance See Tit. Releases Discontinuance of Proces Note that a Discontinuance puts the party to a new originall but where the Parol is without day this may be revived by a re-summons or re-attachment for the originall remains Regulae B. Discontinuance of proces 43. Dismes Tythes T was said that if a Parson demise his Glebe to a lay man there he shall pay Tythes contrary of the Parson himself that reserves them in his proper hands And that land first discharged of Tythes shall be ever discharged of them Yet if he which hath purchased a Mannor and Rectory which is discharged of Tythes Leases part of his demeanes the lessor shall have Tythes of that because that he hath the Parsonage 32. H. 8. B Dismes 17. Disseisor T was said for Law if A. leases the land of I. N. to me for years rendring rent the lessee enters and payes the rent to the lessor the lessor is a disseisor for countervails a commandment to enter and he which commands is a disseisor which note by his void lease 23. H. 8. B. Disseis ' 77. Distress Where land shall be charged with 2 distresses by Dower of part and so of partition See Tit. Avowry Note for Law that he which distrains beasts may put them into a close house if he will feed them for the distress in pound overt is but to the intent that the owner may feed them 33. H. 8. B. Distress 66. T was agreed for Law by the Justices that if a man distrain without
Statute of 1. R. 3. which wills that the recovery shall be good against the vendor and his heires claiming only as heir and against all others claiming onely to the use of the vendor and his heires and this is intended by some of a fee simple and in the case afore the issue in tail claims as heir in tail in use B. Feoffements to uses 56. the middle Yet see the Statute of 32. H. 8. that a Fine with proclamation levied or to be levied by Tenant in tail in possession reversion remainder or in use after proclamation had shall binde those Tenants of those tails and their heire for ever And see that the same Statute is as well pro temporibus preteritis quam futuris 30. H. 8. B. Feoffements to uses 57. the end G. T. Knight seised in tail to him and the heires males of his body discontinues and retakes to him and E. his wife and to the heires of their two bodies and had issue T. and W. and died and after E. his wife survived and T. had issue E. nuptam T. W. and died and after W. by covin of E. his mother Tenant in joynture brings a Formedon upon the elder tail against his mother and she appeared the first day and W. recovered by Nihil dicit and T. W. and E. his wife heir to G. enters by the Statute of 11. H. 7. and the entry adjudged lawfull by the same Statute which wills such discontinuances alienation warranties and recoveries shall be void B. Entre congeable 140. Judgement 153. And it need not to say that the recovery was executed for because t was void it shal never be executed And E. the heir averred that he is the same person to whom the reversion appertained and shewed not how heir to it and yet good by Molineux and Hales Justices contra Brown and Mountague chief Justice of the Common Bench. But all agreed that t was a recovery by covin notwithstanding t was upon a true title And good notwithstanding he did not shew cause of covin 32. H. 8. B. Entre congeable 140. Collusion 47. Agreed for Law that if land escheat to the King which is in lease for years or charged with a rent charge and office is found for the King of the escheat the lease or grant not found in the office the lessee cannot enter nor the Grantee cannot distrian but if the King grant the land over the lessee may enter and the grantee may distraine But a man which claims free hold in the land cannot enter without traverse of the office by B. 33. H. 8. B. Entre congeable 124. Note that t is ruled in the Serjeants case that where a common person leases lands for years rendring rent with a clause of reentry and after grants the reversion over the tenant atturns the grantee may reenter for condition broken by the Statute by express words And the same Law of the grantees of the King E. 6. and all others heires to King H. 8. by the equitie of the said Statute which provides remedy for the patentees of the King H. 8. And for grantees of common persons 4. M. 1. B◠Entre congeable 139. T was said that where the interest of the King is certain and determined the party may enter quaere by B. Time H. B. Reseiser 36. the end Error 'T was said in the Kings Bench where a writ of Error beares teste before the first Judgement and the Record is certified in the Bench that 't is good and yet the Writ saith quod si judiciū reddit fit tunc Record process habeatis c. 5 E 6. B Errour Escape Debt upon an Escape against the Sheriffe who said That before the Escape the Prisoner was condemned in the said condemnation and in Execution ut in narratione in the time of a former Sheriffe who suffered him to Escape and after re-took and imprisoned him and was removed and this Defendant was made Sheriffe and after suffered him to Escape judgement is Of this second Escape you ought to have your Action and a good Plea for he hath confessed and avoided the Plaint for when the Prisoner first Escaped and the first Sheriffe re-took and imprisoned him This second Imprisonment is no Execution for the party but the Party is put to his Action for the Escape against the first Sheriffe 5 E 6. B Escape 45. Escheate Foundership cannot Escheate by death without Heir nor bee forfeited by attaindor of Felony or Treason for 't is a thing annexed to the blood which cannot be divided as 't was said after the augmentation Court took commencement for a man who is Heir to another cannot make another to be Heir Time H 8. B Corodies 5. the end Note by Brown Hales Cooke Justices if there bee Lord and Tenant by Fealty and Rent the Tenant is disseised and dies without Heir the Lord accepts the Rent by the hands of the said disseisor yet hee may enter for the Escheate or have a Writ of Escheate and the receipt of the Rent no barre for the Disseisor is in by wrong Otherwise if he had allowed for it in a court of Record or had taken corporall service as Homage c. So of acceptance of Rent by the hands of the Heir of the Disseisor or of his Feoffee which are in by Title 7 E 6. B Escheate 18. Essoign If the Tenant in a Praecipe quod redd prayes the vJew by Attorney his Attorney shall bee Essoyned upon the vJew But if he himselfe prayes the vJew in proper person then per plures none shall be Essoyned upon the vJew but the Tenant himself for after Processe upon a Voucher he himself shall bee Essoyned and by consequence in like manner shall be upon the vJew And note That granting of an Essoyn whereon Essoyn lyes not is not error Contrary of denying of Essoyn where it lyes 33 H 8. B Essoine 116. Estates The King gives Land to I S heredibus masculis suis and 't was adjudged by all the Justices in the Exchequer Camber that the Grant is void because the King is deceived in his Grant for it sounds in Fee simple whereas it seems the King intended but an estate tail which is not so expressed and therefore now he is but Tenant at will Otherwise in case of a common person 18 H 8. B Patents 104 Estates 84. 'T was said for Law That if a Feoffment bee made to W N during the life of I S these words during the life of I S c. shall be void for they are contrary to a Fee Contrary of a Feoffment in Fee so long as Pauls Steeple shall stand 21 H 8. B Estates 50. A man gives Land to two heredibus and doth not say suis This is no Fee-simple And 't was said that the reason is because that two are named in the Deed and therefore 't is incertain to which of them heredibus shall bee referred But if
there were but one in the Deed then it shall be referred to the one only But in a Devise 't was said by some that the words afore are a Fee-simple Contrary in a Gift and Feoffment for the one shall bee taken by intendment the other not 31 H 8. B Estates 4. A man gives land to a Husband and Wife for terme of their Lives diutius eorum vivent the remainer to the Heirs of their bodies this is a taile executed by reason of the immediate remainer notwithstanding the words of the Statute quod voluntas Donatoris in omnibus observetur by all the Justices 35 H 8. B Estates 78. By opinion in the kings Bench If a man deviseth his Land to W N solvend ten pound to his Executors and dies the Devisee hath a Fee-simple by reason of the payment without words Heredibus or in perpetuum and this shall be intended the intent of the Devisor The same Law if a man sell his Land to W N for twenty pound this shall be intended a sale in Fee-simple without words Heirs for Conscience c. est equum bonum which is a ground in every Law 4 Ed 6. B. Estates 78. Estoppell If a man hath Liberties Rent Common or the like by prescription and after takes a grant thereof of the King by Patent or of another by Deede this determines his prescription by conclusion B Prescription 102. Estoppell 210. for Writing shall determine Contracts and matter in Fait 33 H 8. B Prescrip 102. 'T was agreed that a stranger to a Fine or Recovery shall not pleade it for Estoppell contra If hee claim the same Land under the Fine or Record by those which were parties or claims the same Estate or part of it and that this estate continues for then he is privy in the Per 36 H 8. B Estoppell 216. the end If two joyn-Tenants are which hold of the King in chiefe and the one releases to the other in Fee and after both respit Homage in the Exchequor by this he which released hath gained the moity by conclusion as it shall be where two joyne in suite of livery out of the hands of the King where the one hath nothing by the opinion of some And the same of Partition by two where the one hath nothing 37 H 8. B Estoppell 218 Note that a man which Leases by Deede poll for yeeres or by Parol may avoid this Lease to say That hee had nothing in the Land tempore dimissionis Contrary Upon a Lease by Indenture for this is an Estoppell 38 H 8. B. Estoppell 8. If a man Indicted of Extortion or Trespasse puts himself upon the grace of the King and makes a Fine and after the party sues him for it by Bill or Writ and he pleades Not Guilty hee shall have the Plea and the making the Fine to the King shall not estop him for there the Entry is quod petit se admitti per Finem and doth not confesse it precisely and therefore no Estoppell Yet B seemes to make the Fine by protestation that hee is not guilty and then 't is all cleere Time H 8. Estoppell 82. A man pleads a Pardon of the King in the Exchequer for alienation without License where the Land is not holden of the King in capite This is an Estoppell to him to say after that He doth not hold in capite 7 Ed 6. B Estoppell 222. By Hales and Montague If a man Leases to N his own Land by Deed intended the Indenture is no Estoppell but during the Lease and not after Casus B Estoppell 221. Estranger A is bound to B in a 100. l. and B makes a Defesance to W S That if W S payes 40. l. that the Obligation shall be void This is worth nothing per opinionem because that A that should plead it is a Stranger to the Deed But where two are bound to me and I make a Defesance to one this shall serve the other to plead if he can shew it as in Trespas against two a release to one shall serve the other if he can shew it 34 H 8. B Estranger al fait 21. Estray If a man takes Beasts as an Estray and keeps them three quarters of a yeer and after they stray from him and another happens on them the first Lord which kept them for three quarters cannot take them again because that he had no property in them till hee had kept them a yeer and a day and Proclamation passed in the two next Market Towns and two Market dayes the one in the one Town and the other in the other for the possession of the second Seizor is good against him who hath no property 33 H 8. B Estray 11. Executions Note by Fitz and the Court If a man recover in a Writ of Annuity he shall have a Fierifacias of the Arrearages incurred within the yeer and a Scire fac after as soon as the Annuity is Arrear and never a Writ of Annuity again for 't is executory and the same Law of an Action and Judgement upon composition which is executory de tempore in tempus and the like And in every Scire fac in which he recovers after the first Judgement he shall have execution of the Arrearages within the yeer by Fiere fac for every one is founded upon the Judgement 23 H 8. B Executions 119. Scirefac 213. By the whole Court in the Common-Bench If two are bound in an Obligation conjunctim divisim the Obligee impleads the one and hath execution of his body and after impleads the other and condemns him hee may have execution against him also for the taking of the body is a good execution but 't is no satisfaction and therefore hee may take the other also But if the one satisfie the Plaintiff hee shall not have execution after and therefore this Order That the Plaintiff upon an Obligation shall have but one execution is intended such execution which is a satisfaction and where both are impleaded by one originall by severall Precipes c. 29 H 8. B Execution 132. Scire fac upon recovery of Debt and Damages the Defendant said that once the Plaintiff sued a Capias ad satisfaciend by which the Sheriff had took his body Judgement c. And there 't is said That a Capias ad satisfaciend is not of Record before the retorn of it therefore no Plea Yet B seems the Plea good by the taking of the Body though no Writ bee returned 37 H 8. B Executions 6. Executors 'T was noted by Fitz and others That in an Action of Debt against an Executor 34 H 6. upon an Obligation of his Testators who pleaded not his Deed and found against him the Judgement by the Record was That the Plaintiff should recover of the dead if hee hath any and for that the book at large fol. 24. is reported further in these
marriage takes not effect by which the State is executed in the Heir of C by the Statute of uses made 27 H 8. notwithstanding that C was dead before the refusall of the marriage for now the use and possession vests in the Heirs of C for that the Indentures and Covenants shall have relation to the making of the Indentures for these Indentures binde the Land with the use which Indentures were in the life of C But by B quaere if the Heir of C shall bee in Ward to the Lord for hee is Heir and yet a Purchasor as it seemes 3 M 1. B Feofments to uses 59. Gift of Land for yeeres or of a Lease for yeeres to a use is good notwithstanding the Statute for the Statute is intended to avoide gifts of Chattells to uses for to defraude Creditors only and so is the preamble and intent of this Statute 3 M 1. B Feofments to uses 60. Fines levies Fines levied Note That 't was Covenanted that A shall make to B his wife daughter of I K a joynture by Fine and the Writ was brought by I K against A and B his wife and they offered to acknowledg to I to the intent that I should render to them for life of B and because B the wife was within age therefore shee was drawne out and rejected And then because that none can take the first estate by the Fine but those who shall be named in the Writ of Covenant but every Stranger may take a remainder therefore the Writ was made betweene I and A only by which A acknowledged the Tenements to bee the right of I ut illa que c. and I granted and rendred it to the said A for terme of his life without impeachment of Waste the remainder to the said B his wife for terme of her life the remainder to the said A and his Heirs 30 H 8. B Fines Levies 108. Fine with proclamation to bind Tenant in tail and his issue the time for to make proclamation c. See Tit Assurances If cestuy que use for term of life levies a Fine with Proclamation there none need to enter nor make claim within the five years because that 't is but a Grant of his Estate which is lawfull and no forfeiture for hee hath nothing in the Land nor hee cannot make a forfeiture of the use The same Law of a Fine levyed by Tenant for life in possession Yet B doubts thereof and thinks otherwise if hee levy it in Fee B Feoffments to uses 48. Fines levies 107. Et per plures if it be levyed by cestuy que use in tail it shall bind him and his Heirs but not cestuy que use in the reversion nor the Feoffees after the death of the Conusor for the Statute of 1 R 3. is That it shall bind him and his heirs and Feoffees clayming onely to the same which is not so here Quaere inde for B seems by the same Statute that tayl in possession is remedied by this Statute but not tayl in use for this seems to him to remain at Common-Law as a Fee-simple in use conditionall for 't is not a Gift of the Land yet quaere for by him by the equity of the Statute of W 2. of tayles devises in tayl are taken yet this is in nature of a Gift yet not at this day by the Statute of 32 H 8. fine with Proclamation by cestuy que use in tayl shall bind the tayl after Proclamation 30 H 8. B Fines levyed 107. the end Note That a Deed inrolled in London binds as a Fine at common-Common-Law but not as a Fine with Proclamation and there need not livery of Seisin upon such Deed And this is a discontinuance without livery because that by the custome there which is reserved by divers Parliaments it shall bind as a Fine 31 H 8. B Fines Levies 110. 'T was granted for Law where two are of the same name as if there bee two R B and the one levies a Fine of the others Land there the other shall avoid it by Plea s to say that there are two of the name and that the other R Blevied the Fine and not this R B 33 H 8. B Fines levies 115. the end Note that if the Writ of Dedimus potestatem to levie a Fine doth not beare teste after the writ of Covenant 't is Error for the Dedimus potestatem saies cum Breve nostrum de conventione pendet betwixt A B and C D c. 35 H 8. B Pines Levies 116. Note that 't was devised to have a Lease for yeeres to binde Tenant in taile that the tenant in taile and the Lessee should acknowledge the tenements to bee the right of one A a stranger and that A should grant and render by the same Fine to the Lessee for sixtie yeeres the remainder to the Lessor and his Heirs and 't was with Proclamation which shall binde the taile after proclamation made And so see that the Devise after will not serve for taile but for Fee simple for hee which takes by Fine shall not bee concluded if hee bee an Infant or Feme covert or the issue in tail of the Conusor And in this case no rent can bee reserved for A was a stranger to the Land by which the Lessee granted ten pound of rent and extra terra illa with a clause of distresse during the yeeres or terme aforesaid to the Lessor 36 H 8. B. Fines Levies 118. Lease may be made by Fine for term of yeeres rendring rent and first the lessee to acknowledg the tenements to be the right of the Lessor come ceo c. and then the other grant and render to him for terme of sixtie yeeres rendring therefore yeerely ten pound per annum c. And with Clause of Distresse Time H 8. B Fines Levies 106. Note by Fitz Just That a Fine levyed by A and B his wife where the name of the wife is M shall binde her by estoppell and the tenant may plead that shee by the name of B levyed the Fine and so 't was in ure by him and 't was pleaded according Time H 8. B Fines Levies 117. Note by Bromeley chiefe Justice and others That a Writ of Error was brought in the Kings bench because a Fine was acknowledged by Dedimus potestatem before one who was not a Judge Abbot Knight nor Sargeant and for this cause 't is refused to admit any which is taken by such for the Statute de finibus Attorn gives power to none except to Justices Abbot and Knight quaere by B if a Sarjeant at Law bee not taken as a Justice by the equitie of the Statute Time H 8. B Fines Levies 120. 'T was granted that a Fine may be levyed in a Hamlet for if a Scire fac lyes upon a Fine in a Hamlet as it appears 8 E 4. that it doth therefore a Fine is well levyed there
6 E 6. B Fines Levies 93. Note that 't was agreed by the Justices that a Fine may be well levyed in a Hamlet and this notwithstanding all the houses are decayed but one The same of a Writ of Dower And the same Law of that which hath been a Ville and no wis decaid yet the name of the Ville remains as old Salisbury which hath at this day Burgesses of Parliament and the like 7 E 6. B Fines Levies 91. Forcible Entry Hee which hath been seized peaceably by three yeeres may retaine with force But if a Disseizor hath continued possession three yeers peaceably and after the Disseisee re-enters as he may lawfully and after the Disseisor re-enters hee cannot deteine with force because that the first disseisin is determined by the entry of the Disseisee and the Disseisee by this remitted and this Entry is a new Disseisin But if a man hath beene seised by good and just Title by three yeeres and after is disseised by wrong and after hee re-enters hee may retaine with force for he is remitted and in by his first Title by which hee first continued peaceably by three yeeres per quosdam for it seemes to them by the Proviso in the end of the Statute that this is good Lawe in the last Case and stands well with the Statute yet by some this is not Law therefore quaere 23 H 8. B Forcible entry 22. Forfeiture of Marriage 'T was said if a man brings a Writ of Intrusion maritagio non satisfac for the single value and makes mention in the Writ of tender of marriage to the Heir and that hee refused c. that the tender is not traversable Time H 8. B Forfeiture of Marriage 7. Intrusion 23. in finibus Forfeiture de Terre c. Forfeiture of Land c. What shall be a forfeiture of the Estate of Tenant for life what not See Tit Entry Congeable Richard Fermor of L was attainted in Premunire and his Lands forfeited in Fee in perpetuum and not only for term of life And so see 't is not only a forfeiture for life as in an attaint for the one is by Statute the other by the common-Common-Law 34 H 8 B Praemunire 19. the end Forfeiture 101. Note If a man bee attainted of Treason by Parliament by this his Lands and goods are forfeited without words of forfeiture of Lands or Goods in the Act 35 H 8. B Forfeiture 99. Foundership cannot Escheate nor be forfeited by attaindor of Felony or Treason See Tit Escheate Note by Hales Justice cleerly that â— Cleark convict shall lose his goods â— E 6. B Forfeiture 113. Formedon 'T is said that if the issue in taile bee â—arred by Judgement by reason of warranty and assets discended and afâ—er hee aliens the assets and hath issue â—nd dies the issue of the issue shall not â—ave a Formedon of the first Land tayâ—ed but if such thing happens before â—ee bee barred by Judgement the issue of the issue shall have a Formedon Time H 8. B. Formedon 18. Note If the Feoffees are infeoffed â—o the use of the Feoffor for terme of â—ife and after to the use of A in taile before the Statute of 27 H 8. of uses and after the Estates in uses are veâ—ted in possession by the same Statute and after the tenant for life dies and â—he tenant in tayle enters and disconâ—inues and dies and the issue brings a Formedon upon this matter hee shall â—uppose the Feoffor to be Donor and â—ot the Feoffees and the Writ shall â—ee generall quod dedit c. but the Declaration shall bee speciall and declare the whole matter That the Feoffor was seised in fee and enfeoffed thâ— Feoffees to uses ut supra and shew the Execution of the Estates by thâ— Statute of uses made 27 H 8. briefly and not at large and the seisin c. and the death of tenant for life and tenant in taile quod post mortem c. discend jus c. 2 E 6. B Formedon 49. Formedon upon a gift in Fee to thâ— use of the Feoffor and the Heirs of hiâ— body which is executed by the Statute of uses 27 H 8. and after thâ— Feoffor aliens and dies his issue shalâ— have a Formedon that the Feoffees 〈◊〉 derunt tenement predict to the father of the Demandant discendâ— jus c. for it cannot bee supposeâ— that the Feoffor gave to cestuy que usâ— which was himselfe for a man cannot give to himselfe and hee shaâ— make a speciall Declaration upon thâ— Feoffment to the use of the taile But where A makes a Feoffment in Fee to three to the use of a Stranger and the Heirs of his body which is exempteâ— by the Statute aforesaid and after who was cestuy que use aliens in feeâ— and dyes there his issue shall have a Formedon and shall say that the Feoffor gave to his father and not the Feoffees gave and shall make a speciall Declaration 7 E 6. B. Formedon 46. Generall Briefe 14. Note by Bromeley chief Justice That the Demandant in the case 2 E 6. before may declare generallly if he will and if the Tenant pleads ne dona pas the Demandant may reply and shew the speciall matter as appears there and conclude so he gave c. and good 1 M 1. B Formedon 49. the end Forme Note that Wood was put before Pasture in a Plaint of Assize and exception thereof taken and yet good though it be contrary to the Register Time E 6. B Faux Latin Forme 66. Franke-marriage Note that 't was said for Law that Land cannot bee given in Frank-marriage with a man who is Cosin to the Donor but it ought to be with a woman who is Cosin to the Donor Time H 8. B. Frank-marrige 10. Note 't is said for Law that a Gift in Frank-marriage the remainder to I N in Fee is not Frank-marriage for warranty and acquittall is incident to Frank-marriage by reason of the Reversion in the Donor which cannot be where the Donor puts the remainder and Fee to a Stranger upon the same Gift Time H 8. B Frank-marriage 11. Garde Warde IF the Kings Tenant Alien in Fee without licence and dyes his Heire within age the King shall not have the Ward because that nothing is discended to him and that the alienation is good save the Trespass to the King which is but a Fine by Seisure 26 H. 8. B Alienations 29. Garde 85. If the King hath an heir in Ward which is a Woman and marries her before the age of Fourteen years there she shall be out of Ward at Fourteen years and then may sue Livery for the Two years to make Sixteen years are not given but to tender to her marriage therefore when shee is married sooner shee shall be out of custody at Fourteen years 28. H. 8. B. Garde 86. Livery 54. A man
husband die the Warranty shall be collateral to the issues because that the land came by the Father and not by the Mother 31. H. 8. B. Garranties 79. Note if the husband discontinues the right of his wife and an ancestor collaterall of the wife releases with Warranty and dies to whom the Wife is heir and after the husband dies the wife shall be barred in a Cui in vita by this Warranty notwithstanding the Coverture because that she is put to her action by the discontinuance for Coverture cannot avoid Warranty but where the entry of the wife is lawful which is not upon discontinuance 33. H. 8. B. Garranties 84. If a man saies in his Warranty Et ego tenement a predict cum pertinent prefato A. B. the Donee Warrantizabo aud doth not say egâ— heredes mei he himselfe shall warrant it but his heir is not bound to warrant it because that heirs are not expressed in the Warranty 35. H. 8. B. Garrenties 50. Sir Robert Brudnel late Chief Justice of the Common Bench devised a Warranty now in use viz. That the warrantor for him and his heirs Warrantizabit contra ipsum heredes suos and by this the Feoffee shall rebut but not vouch Casus B. Garranties 30. the end Where upon a Formedon upon use there shall be a General Writ and special Declaration See Tit. Formedon General issue In an Assise or Trespass if a â—an entitles a stranger and justifies by his Commandment his ought to be pleaded and not given in evidence upon Nul tort or not guilty pleaded So of Common Rent Service Rent Charge Licence and the like these ought to be pleaded and not given in evidence upon a general issue Contrary of a Lease of Land for years upon not guilty pleaded the Defendant may give it in evidence B. General issue 81. otherwise of a Lease at will for this is as a Licence which may be Countermanded or determined at pleasure And if a Villen plead Free and of Free Estate he may give manumission in evidence for this is Manumission indeed But where he is Manumitted by act in Law as a suit taken against him by his Lord or an Obligation made to him by his Lord or a Lease for years and the like which are manumissions in Law of which the Jury cannot discuss and therefore these shall be pleaded 25 H. 8. B. General issue â—2 Debt upon an escape in the Exchequer against the Sheriffs of London for leting a man arrested by them by capias ad satisfaciendam and â—n Execution to escape the Defendants cannot say that he did not escape and give in evidence that he was not arrested for the arrest is confessed if he saies that he did not escape 34. H. 8. B. General issue 89. Grants Nota per plures Just. alios legis peritos That where a man grants an office of Bayliff Steward Receiver Parker and the like and a Fee certain for his labour onely there the Grantor may expulse such Officers But they shall have their Fee for t is but an Office of Charge But where the Steward Parker have profits of Courts Winde-Falls Dearâ—kinnes and the like casuâ—ll profits t is said that they cannot be expulsed and that of such Offices they may have an Assise And t is said that t was so taken in the time of James Hobert Attorney of King HENRY the 7. And the Officers may relinquish their Offices when they will but then their Fee ceases And Whorewood Attorney of King HENRY the 8. granted the Cases aforesaid 31. H. 8. B. Grants 134. T was said for Law That I may Ouste my Bayliff Receiver and the like giving to them their Fee foâ— it rests in Charge and no profit B. doubts of the Steward for an Assise lies of such Ousters 34. H. 8. B. Grants 93. the end What shall pass by a Grant of omnia â—ona sua See Tit. Done A man possessed of a Lease for term of fourty yeers grants so many of them to â— N. which shall be arrear tempore morâ—is suae and held void by Hales Just and others for the incertainty because it doth not appear how many shall be behinde at the time of his death for the Granter may live all the 40 yeers and then nothing shall be arrear at his death quare B. Grants 154. Leases 66. â—ut such Devise by Testament is good B. Grants 154. And 't is not like where a man leases Land for term of life and four yeers over this is certain that his Executors shall have four yeers after his death B. Leases 66. And also if a man leases his Land to have from his death for four yeers 't is good for this is certain and he hath authority to charge his own Land 7 E. 6. B. Grants 155. A man grants omnia terras tenementa sua in D. a Lease for yeers shall not pass Contrary if he grants omnes firmas suas there by this a Lease shall pass for of this an ejectione Firme lies and by this he shall recover the Term and therefore 't is a good word of Grant 7 E. 6. B. Grants 155. Hariots T Is said that for Hariot-custom a man shall always seise and if it be esloigned he may have detinue And for Hariot-service esloigned he may distrainâ— but not for Hariot-custom Time H. 8 B. Hariots 6. the end Heresie Note that 't was agreed by all the Justices and by Bake learned in the Law and Chancellor of the Exchequer and by Hâ—re learned in the Law and Masteâ— of the Rolls That by the Statute of Hereticks and Lollards that if a Heretick be convicted in presence of the Sheriff thâ— Ordinary may commit him to the samâ— Sheriff and he ought to burn him without having a Writ de haeretico comburendo But if the Sheriff be absent oâ— if the Heretick shall be burnt in another County in which he is not convicted therâ— in these cases the Writ de haeret comburend shall be awarded to that Sheriff 〈◊〉 Officer who shall make execution And â—e said Statute in the end wills that the â—heriff shall be present at the convictiâ—â— if the Bishop requires him And â—erefore the use is that the Ordinary shall â—ll the Sheriff to be present at the conâ—tion And so in the Writ de haeret â—mburend in the Nat. Brin that the â—â—chbishop and his Province in their Conâ—â—ation might and used to convict Hereâ—â—ks by the Common Law and to put 〈◊〉 to lay hands And then the Sheriffs Writ de haeret comburend burnt them â—t because that this was troublesome to 〈◊〉 the Convocation of all the Province was ordained by the Statute aforesaid â—hat every Bishop in his Diocess may â—â—nvict a heretick and after abjuraâ—â—n upon relapse put him to lay hands be burnt And B. seems that if the â—â—retick will not abjure at the first Conâ—â—tion that he may be burnt at the first
contra formam collationis And if he aliens sine assensu Decani Capituli then lies the Writ de inâ— gressu sine assensu Capituli 36 H. 8 B. Licenses 21. Lieu Place Place is not material in actions transitory See Tit. Attaint Where a Recognizance is acknowledged in London before a Justice of thâ— Common Bench and certified in bancoâ— and there ingrossed a Scire facias shalâ— be brought there directed to the Sherifâ— of London and not to the Sheriff oâ— Middlesex where the Bench is by all the Prothonotaries of the Common Bench. 4 M. 1. B. Lieu 85. Limitations Note that it seems cleer that the new Limitation and also the ancient Limitation extends to Copie-hold as well as to Free-hold for the Statute is that he shall not make prescription title nor claim c. And those who claim by Copie make prescription title and claim c. And also the plaints are in natura forma Brevis Domini Regis ad communem Legem c. And those Writs which now are brought at Common Law are ruled by the new Limitation and therefore the plaints of Copie-hold shall be of the same nature and form 6 E. 6. B. Limitations 2. Livery Note if the King hath a Ward because of Ward and the first Ward comes to full age and sues Livery the other Ward being within age there the Ward shall not sue Livery but ouster le maine for now the Seigniory of his Land is revived by the Livery so that he holds not of the King as afore but of his immediate Lord. But if the Ward because of Ward had been of full age before the first Ward he should sue Liveryâ— 25 H. 8. B. Livery 47. Where a woman out of Ward by Marriage shall sue Livery at fourteen yeers See Tit. Garde He which holds Land within the County Palatine of Lancaster of the King in Knight service ut de Ducato Lancastr shall sue Livery Contra of him who holds Land which lies out of the County Palatine of the King in Knight-service c. 28 H. 8. B. Livery 55. Note that general Livery cannot be but upon Office found but special Livery may be without Office and without probation of age but there he shall be bound to a rate and sum certain to be paid to the King B. Livery 56. And by B. ibidem 31. this cannot be claimed by the Common Law as general Livery may but is at the will of the King 28 H. 8. If the King purchases a Mannor of which I. S. held in Knight service the tenant shall hold as he held before and he shall not render Livery nor primer seisin for he holds not in Capite but holds ut de manerio And if his heir be in Ward by reason of that he shall have an ouster le maine at full age â—nd 't is said if the King after grant the â—annor to W. N. in fee excepting the â—â—rvices of I. S. now I. S. holds of the King â—sof the person of the King and yet he â—â—all not hold in Capite but shall hold 〈◊〉 he held before for the act of the King â—hall not prejudice the tenant But if the â—ing give Land to me in fee tenend miâ—i heredibus meis of the King c. â—nd expresses no certain services I shall â—old in Capite for 't is of the person of â—â—e King And note that tenure in Caâ—ite is of the person of the King 29 H. â— B. Livery 57. Tenures 61. Extent of livery is the value of the â—and by half a year But if he intrudes â—nd enters without livery he shall pay the â—early value by experience of the Exâ—hequer And where cestuy and use 〈◊〉 attainted of Treason and 't is enacted â—y Parliamen That he shall forfeit his â—and in possession and in use that â—here the King is but a purchaser and â—herefore those who hold of him that was â—ttainted shall not sue livery Quaere â—f it be enacted that he shall forfeit it â—o the King his heirs and successors Eâ—contra if he had been sole seised and â—ad been attainted by the Common Law â—or there the King hath the Land as King and there those who held â— shall sue livery And yet the Statute â— Si quis temerit de nobis de aliqua 〈◊〉 chaeta ut de honore Wallingford Boseâ— c. non faciet aliud servivum quaâ— fecit preantea And therefore this â— intended of a common escheat And aâ— so some Honours are in Capite as paâ— of Peverel and others 29 H. 8. â— Livery 58. The Kings tenant leases for years anâ— dies the heir shall sue livery notwithâ—standing the Lease indures And thâ— same where the Father declares his wiâ— of the Land for yeers and dies 30 H 8. B. Livery 59. If a man holds of the King before thâ— Statute of uses and infeoffs others 〈◊〉 his for term of life the rem ' over in taiâ— the rem ' to his right heirs and dies anâ— after the tenant in tail dies without issueâ— the heir of the Feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir anâ— if he hath it by descent he shall sue livery And the same Law and for the samâ— reason if at this day a man gives in tailâ— the rem ' to his right heirs Otherwise B. 2. seems where a man makes a Feoffment in fee in possession and dismisses â—â—mself of all and retakes for term of 〈◊〉 the rem ' in tail the rem ' to his â—â—ght heirs and dies and after the teâ—ant in tail dies without issue there the â—â—eir who is right heir is a purchaser â—nd if the King seises he shall sue â—ister le main and shall not be comâ—elled to sue livery But if the tenant 〈◊〉 tail had dyed without issue in the life â—f tenant for life and after the tenant â—or life dies there his heir shall sue livery for the fee simple was vested in the tenant â—or life by extinguishment of the mean â—em ' and therefore the fee simple descends And note livery is that the King â—hall have the value of the land by half â— year And ouster le main is a Writ â—o ouste the King of the Land without aâ—y profit given to the King 32 H. 8. B. Livery 61. Where a man holds certain Land of the King in Soccage in Capite the King shall â—ot have liberty of more then the Soccage-Land 32 H. 8. B. Garde 97. He which holds of the King in Knight service and not in Capite shall not sue livery because he holds not in Capite and there when the heir comes to full age he shall have an ouster le main for none can enter upon the King But if he be of full age at the time of the death of his ancestor then he shall render relief to the
jâ—â—â—dicial jurisdiction and another is 〈◊〉 that these are sufficient causes to eleâ— new ones wherefore they did so 〈◊〉 the Kings Writ out of the Chancer comprising this matter which was aâ—â—mitted and accepted in the Commoâ— House of Parliament 38. H. 8. B. Parâ—â—â—ament 7. Parnour Taker of the profits An Office is found after the death Cestuy que use that he died seised and the heir is in ward of the King and after a Recovery is had against the Heir during the Possession of the King as against the Pernour of the profits before the Statute of Uses 27. H. 8. the Feoffees traverse the office or sue an Ouster l'main this Recovery shall binde the heir but the Recoverer cannot enter during the Possession of the King 29. H. 8. B. Pernour 32 A man cannot aver another Pernour of the Profits of other things which are not in demand B Pernour 4. the middle Patents The King gives Land to I S. Et heredibus masculis suis the grant is void See Tit Estates If the King Licences his Tenant to alien his Mannor of D and he aliens it except one acre the licence shall not serve it for the King is not assertained of his Tenant of all And if I have a Licence to impark 200 acres and do it according and after increase by other 10 acres there this is not a Park 23. H. 8. B. Patents 76. If the King grants omnia terras tenementa sua in D. this is a good grant these general words 30. H. 8 B. Patents 95. The King gave to the Earl of Rutland in Tail and after intended to give to him in Fee simple and to extinct the Tail and t was doubted that the surrender of the Letters Patents of the Tail and the cancelling of them and of the Inrollment and Bill assigned will not extinct the Tail for the Tail executed may be averred without shewing the Patent And a Formedon lies after the Tail executep without shewing the Patent And t was taken that t was not a good surety for the King for his services to give the reversion to to hold the reversion by such services when it vests and to except the first services during the Tail for when the reversion is gone the Rent and Services reserved upon the Tail are gone as wel in case of the King as a common person And therefore the devise was that the King by a new Patent reciting the first Patent shall give the Reversion and the first Rent and Services to have in Fee to hold by such Services and rendring such Rent and by this the King shall have the new Tenur presently and the Grantee shal not be charged with double Services and Rents during the Tail and t was agreed for Law that if a man loses his Letters Patents he shall have a Constat of the Letters Patents out of the Inrolment and Bill assigned which remains in the Chancery And therefore B. seems that the Inrolment shall not be cancelled B. Patents 97 And t was agreed by Whorewood the Kings Attorney optimos legis peritos that if Tenant in Tail of the Gift of the King surrenders his Letters Patents this shal not extinct the Tail for the Inrolment remains of Record out of which the issue in Tail may have a Constat and recover the Land wherefore they made the Devise aforesaid viz that the King shall grant to the said Earl Tenant in Tail the Fee simple also and then a Recovery against him will barr the Tail Otherwise the Reversion being in the King B. Surrenders 51. And t is said for Law if the King gives in Fee or in Tail or for life the Patentee Leases for years or grants Leases or gives part of the Land or of the Interest to another and after surrenders his Patent by which t is cancelled this shall not prejudice the third person that he shall lose his interest by it for he may have a Constat out of the enrolment which shall serve him Quaere inde because a Statute is made of it And Quaere if the Common Law shall not serve for it appears in the book of Entries fo that a man pleaded a Constat 32. H. 8. B. Pattents 79. the end Surrender 51. What thing in action the King may grant what not See Tit. Choise in action If the King grant a Balywick or sheriffwick to I. S. absque compotoreddend the word absque compot is worth nothing for t is contrary to the Nature of the thing granted 36. H. 8. B. pattents 99. If Conusance of plea be granted by the King he ought to shew where as in Guild-hall or the like and before whom as before his Steward c. And the King may grant Toll Fair Market and the like but not to have Assise of Fresh force nor Toll traverse nor Through Toll nor that the Land shall be Devisable Borrough-English Gavelkinde nor the like for these are by Custom which cannot commence at this day by grant for the King cannot make a Law by his grant and that by grant of Conusance of pleas he shall not hold plea of an assise nor of a certificate of assise And t is said for Law That a false consideration in Letters patents shal not avoid them as where the King for ten pound to him paid gave such Land and the ten pound is not paid the patent is not void shall not be repealed Contrary of a patent granted upon a false surmise as to falsifie that the land came to the King by attainder of I. S. which is not true or the like Quaere the diversity 37. H. 8. B. patents 100. Where the King Tenant in Tail cannot discontinue or charge by grant by patent See Tit. Discontinuance de possession Note that t was agreed That where the King grants Land which is in Lease for tearm of years of one who was attainted or of an Abby and the like that the grant is good without recital of the Lease of him who was attainted or of the Abby for he shall not recite any Lease but Leases of Record Time H. 8. B. patents 93. T was granted in the case of Thomas Inglefield Knight where the King Receits quod oum A. B. tenet manerium de B. protermino vitae suae de concessione nostra c. Sciatis nos concessisse C. S. reversionem manerii predict c. Habendum c. that this is a good Grant Therefor B. seems that if the King mis-recites the date of the first Letters Patents or the like yet if he well recites the estate and the thing and the name of the Lessee that then the Grant of the Reversion is good For where the King takes notice of his Tenant for term of life and of his estate and grants the Reversion he is not deceived in his Grant for he takes upon him notice of the former Interest for life and then the date of
H. 8. B. Statute Merchant 42. T was said for Law that if the Conusee upon a Statute staple dies and â—is executors sue execution in the name â—f the Testator as if he were in life â—nd the Sheriff takes the body in the â—ame of the Testator c. yet this is â—ot execution for the executors but â—hey may after have execution in their â—wn name for the first execution in â—he name of him that was dead before â—he Teste of the Writ was void and â—he body cannot remain to satisfie him who was dead before Nor the Sheâ—iff cannot deliver the land nor goods â—o him who is dead juxta formam breâ—is And by B. in the book of Enâ—ies the executors of the Conusee shall have execution upon a Statute Merchant without Scire Facias and this upon surmise as it seems to him And if the Conusor be retorned dead yet execution shall proceed of his Lands and Tenements without Scire Fac ' against his heir And the extenâ— and Liberate shall be served imediatly Yet by B. no remedy appears there for the goods of the Conusor when the conusor is dead to have any execution of them 36. H. 8. B. Statute Merchant 43 T is said if a Writ of execution with extendi facias issues upon a Statute Merchant that the Writ ought to be retorned and the land upon thiâ— delivered to the Conusee by Liberate inde Time H. 8. B. Statute Merchant 32. the end Supercedias T was holden for Law thâ—â—â— a writ of attaint a man shall â—ot have a Supercedias for to â—isturb execution for the â—erdict shall be intended true â—ntill t is reversed c. And â—â—at the Register which gives 〈◊〉 Supercedias there is not Law Contrary upon a Writ 〈◊〉 Error for it may be intenâ—ed that Error is for the suit â—f the Defendant c. 33. H. B. Supercedias 24. Sureties Where Sureties in Londonâ—â—all â—â—all remain after the action â—emoved è contra See Tit. â—â—ocedendo Affirmatur pro lege that â—uretie of the Peace is discharged by the death of the King for t is to observe tâ— peace of that King and when he dead t is not his peace 1 M. 1. Surety 20. Surrender Tenant for term of life surrenders him in reversion out of the land which he agrees the free hold by thâ— is in him presently and he is Tenaâ— to the action by precipe quod reddâ— without entry but he shall not haâ— Trespass without Entry 31. H. 8. â— Surrender 50. Where tail shall be extinct by suâ—â—render of Letters Patents where noâ— see Tit Patents Note in the Case of Culpeper twâ— said that the King himself cannot râ—â—cord or receive a surrender of land 〈◊〉 Letters Patents made to him extrâ— curiam but this ought to be beforâ— his Chancellor or other Justice to thâ— authorized 2. E. 6. B. Surrender 53. thâ— end If a man leases for years the remainder over for years and after the firâ— Termor grants his interest to the Leâ—sor this is no surrender by reason 〈◊〉 〈◊〉 mean interest of the term in reâ—â—inder And a Termor makes his essor his Executor and dies this is no â—â—rrender for he hath this to another 〈◊〉 contra whorewood inde 2. E. 6. B. â—â—rrender 52. Note where a man leases land for 〈◊〉 of years the remainder over for 〈◊〉 the remainder over in fee or reâ—â—rving the reversion there he in remainder for term of life may surrenâ—er to him in reversion or to him in remainder in Fee and the estate for â—erm of years is no impediment for â—â—ough it cannot give the possession of 〈◊〉 land yet it gives the possession of 〈◊〉 free hold which is in the thing â—hich was surrendred 3. M. 1. B. Surrender 55. Suitor T was said for Law in the Star-Chamber betwixt Brown Justice and â—ion Grocer of London that a Court 〈◊〉 may be holden before two suiâ—â—rs for the plurall number suffices â—ime H. 8. B. Suit 17. Tail REcovery upon voucher against Tenant in tail is a bar by reason of the recompence in value And a recovery bâ— writ of entry in the post by single voucher doth give but the estate which the tenant in tail hath in possession temporâ— recuperationis so that if it were in oâ— another estate then the tail there the tail is not bound against the heir But the double voucher is to make the tenant in tail to discontinue and to bring the writ of entry against the feoffee and then the feoffee shall vouch the tenanâ— in tail and he shal vouch over and so shal lose and this shal binde all interests and tails that the vouchee had 23. H 8. B. Tail 32. Tenant in tail hath issue and asiens with warranty and leaves assets dies the issue cannot recover by Formedon for the warranty and assets is a barr And if the issue aliens the assets yet he shall not have a Formedon But if he hath issue and dies there the issue of the issue shal have a Formedon because that the assets is not discended to him Yet is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement and aliens the assets and dies his issue shall not have a Formedon because that his father was barred by judgement B. Tail 33. And if the tenant in tail hath issue two sons by divers venters and discontinues and dies and an ancestor collateral of the eldest son releases with warranty and dies without issue and the eldest son dies without issue before 〈◊〉 Formedon brought the younger son may recover by Formedon for he is not heir to the warrantor and his brother was not barred by judgement Yet B. doubts thereof for it seems to him that the discent of the Collateral warranty extincts the tail But if the eldest had been barred by judgement then clearly the younger is gon also 24. H. 8. B. Tail 33. Formedon 18. Tenant in tail the reversion to the King suffers a recovery operaturâ—y â—y it See Tit. Discontinuance de possession Recovery in value If the King gives lands in tail by his Letters Patents and after the donee surrenders his letters patents to the K. the Tail by this is not extinct 35. H. 8 B. Tail 38. The King Tenant in Tail cannot discontinue by grant by Patent See Tit. Discontinuance de Possession Tenant at Will Note for Law that there is no Tenant by sufferance but he that first enters by authority and lawfully as where a man leases for years or for term of anothers life and holds over his term after the term expired or after the death of cestuy que vie And Tenant at will is where a man leases his land to another at will for he who enters of his own head is a Disseisor Time H. 8. B. Tenant per copy 15. the end Tenant by Copy Note that t was said for Law
primer sesin of the third part by vertue of that clause in the Stat Saving to the King Ward Primer sesin Livery and the like by which it appears that the intent of the act is that the King shall have as much as if the Tenant had made a will and had dyed seized yet by all after that the King is served of his duty of it the gift is good to the Donee against the Heir 2 E 6. B Testament 24. Note that 't was adjudged betwixt Vmpton and Hyde that the explanation of the Statute of Wills is not to take effect only from the time of the explanation but the first Stat which is explaned shall be so taken ab initio So that the Wills of Vmpton Gainesford and others which are excepted in the explanation shall be taken good by the Stat of 32 H 8. of Wills which was explaned 4 M 1. B Testament 26. Testmoignes Witnesses The age of Witnesses in an Aetate probanda is 42 years Lecture B Testmoignes 30. the end Titles Note that a man shall make a good title in an Assize to say that I N was seized in Fee to the use of T P which T P infeoffed the Plaintiff who was seized and disseized c. without shewing what person made the Feoffment to the use of T P or how the use commenced 36 H 8. B Titles 61. Travers of Office 'T is said for Law that none can traverse except he makes title to the same land in the premisses or close of his traverse 22 H 8. B Traverse d' Office 48. 'T was found that I S dyed seized by which W S his son comes and saith that the said I S in his life was seized in Fee and infeoffed A B in Fee to the use of the said I S and his Heirs and dyed and after by the Stat of uses 27 H 8. he was seized in possession without that that I S his father dyed seized pro ut c. and a good traverse And a Termor cannot traverse an Office by the Common-Law except it were found in the Office and then he might have a monstrans de droit and ouster L'main the King 29 H 8. B Travers d' Office 50. Where a man shall have a Petition where traverse See Tit Petition Where the King hath no other title but by false Office there the party who can make title may traverse as well against the King as against the party if the King had granted it over but now this is helpt by Stat 33 H 8. B Travers d' office 51. the end Where a Tenure is found of the King ut de Ducat suo Lancastrie which in truth is false yet this need not to be traversed for the King hath this Duchy as Duke not as King and a man shall not be put to traverse but where the Office is found for the King ut pro rege Angliae for then he hath a prerogative and as Duke none 1 E 6. B Travers d' Office 53. Non-suit or relinquishing of a traverse is peremptory contra of Non-suit in a Petition and the Judgement of traverse is no other sed quod manus domini Regis amoneantur et quod possessio restituatur to him that traversed Lecture B Travorse d' Office 54. Travers by c. What thing shall be traversable what not See Tit Issues joynes Action for making false clothes in Bartholomew-Fair contrary to the Stat The other saith that he made them well and truly at D in the County of F without that that he made them in Bartholomew-Fair in L pro ut c. and a good Plea 35 H 8. B Travers by c. 368. If in Assize the Tenant Pleads that his Father was seized in Fee and dyed by Protestation seized 'T is said that the Plaintiff may make title by a stranger without that that the father of the Tenant was seized in Fee c. 38 H 8. B Travers by c. 26. the end Information in the Chequer the Defendant Pleads a Plea and traverses a materiall point in the information upon which they are at issue there the King cannot waive this issue as he may in other cases where the King alone is party without an Informor ut supra by the Kings Attorney and â—thers learned in the Law 38 H 8. B Travers by c. 369. Tender not traversable in a Writ of â—ntrusion maritagio non satisfac for the single value See Tit Forfeiture of marriage Trespas The Defendant said that I N was seized in Fee and leased to him for twenty one years and gave colour the Plaintiff said that his father was seized and dyed seized c. and â—he entred and was seized untill the Trespas absque hoc quod dictus J N aliquid habuit tempore dimissionis and a bad traverse but he shall say without that that I N was seized in Fee modo forma pro ut c. in Communebanco 4 E 6. B Travers per 372. Assize The Tenant makes a barr by a Stranger and gives colour the Plaintiff makes title by the same person by which the Defendant made his barr s that I S was seized and gave in tayl to his father who infeoffed W N who infeoffed the Tenant upon whom A B entred and infeoffed the grandfather of the Plaintiff whose Heir he is in Fee who dyed seized and the Land discended to the Plaintiff so he was in in his Remitter until by the Defendant disseized And in truth A B never entred nor never infeoffed the Grandfather and yet 't was held cleerly that the Tenant in his barr to the title cannot traverse the Feoffment of A B but ought to traverse the dying seized of the grand-father of the Plaintiff which remitted him for this binds the entry of the Tenant and is the most notable thing in the title 4 E 6. B Travers per 154. Trespas The Defendant said that I was seized and infeoffed him and gave colour The Plaintiff may say that H was seized and leased to I at will who gave to the Defendant and R re-entered and infeoffed the Plaintiff he ought to say without that that I was seized in Fee modo forma pro ut c. Time E 6. B Travers per 217. the end Place not traversable See Tit Attaint Treason A Chaplaine had affixed an ancient seale to a Patent of non-residenee made by himselfe of the part of the King and was imprisoned in the Fleet for it And 't was holden misprision and no Treason by the Justices and he escaped and was not put to death for 't was said That because he did not counterfeit the Kings seale but tooke an ancient seale this is not Treason 37 H 8. B Treason 3. the end 5. Note that in January this yeere H Howard Earle of Surrey sonne and Heir apparent of Thomas Duke of Norfolke was attainted of high Treason for joyning the Armes