le gard a son use mes al use del heir Et si Gardian en Socage devie devant asc ' account fait per luy al heire de ceo le heire en sans remedy per ceo que nul bre de accompt gift tenus les execut ' sinon pur le roy tautsolement For albeit in an action of account against a Guardian in socage c. the defendant cannot wage his Law yet in respect of the privity of the matters of account and the discharge resting in the knowledge of the parties thereunto an action of account lieth not c. but that is holpen by Statute Vide c. fo 90. b. Rot. Parl. 50. E. 3. nu 123. The Kings Treasure is Firmamentum belli Ornamentum pacis Nullum tempus occurrit Regi Prerogative extends to all Powers Preheminences and Priviledges which the Law giveth to the Crown Stans Praer 5. 10. Sect. 126 127 128 129. Le snr aūa del heire son tenant pur reliefe tant come le rent amount que il paya per an ouster le rent c. Of corporal service or labour or work of the tenant no relief is due but where the tenant holdeth by such yearly rents or profits which may be paid or delivered Et le snr poit incontinent distreine per reliefe sinon que il soit tiel service que nest donques an esse sicome le tenant tient per un prose devie en yuer c. For Flowers that are fructus fugaces cannot be kept and therefore are not to be delivered till the time of growing otherwise it is of corn c. Lex spectat naturae ordinem non cogit ad impossibilia Impossibile est quod naturae rei repugnat Sect. 130 131 132. Il est reason que le snr ses heires ont asc ' service fait a eux per proū testifier que la terre est tenus de eux fol. 92. b. An Escheat is a casual profit quod accidit domino ex eventu ex insperato Of incidents there be two sorts s Separable as rents incident to Reversions c. Inseparable as Fealty to a Reversion or Tenure Where the Tenure is by Fealty only there is no relief due fol. 93. a. vide lib. Lessee per ans ferra fealty al lessor per ceo que il tiel de luy auterment est de tenant a volunt car il nad asc ' sure estate And because the matter of an oath must be certain therefore tenant at will shall not do fealty CHAP. VI. Frankalmoigne Sect. 133. OF Ecclesiastical persons some be Regular and they live under certain Rules and have vowed three things True Obedience perpetual Chastity and Wilfull Poverty Secular as Bishops Deans and Chapters Archdeacons Prebends Parsons Vicars c. All Ecclesiastical persons may hold in Frankalmoigne be they Secular or Regular but no Lay person c. By the ancient Common Law of England a man could not alien such lands as he had by descent without the consent of his heir yet he might give a part to God in Free-almoigne or with his daughter in free marriage or to his servant in remuneratione servitii fol. 94. b. Glanville l. 7. cap. 1. fo 44 45. acc Lands must be given to a Corporation aggregate of many by deed and they have a Fee simple without these words Successors for the body never dies Otherwise is it of a sole Corporation But yet out of the general rules the case of Frankalmoigne is excepted And there is a diversity when the head and body both are capable as Dean and Chapter and when one as in case of Abbot or Prior and Covent Ancient Grants shall be allowed as the Law was taken when such Grants were made Sect. 134. Decanus is derived of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth Ten for that he is an Ecclesiastical secular Governour and was anciently over ten Prebends or Canons at the least in a Cathedral Church and is head of his Chapter Capitulum est Clericorum congregatio sub uno Decano in Ecclesia Cathedrali And Chapters be twofold viz. the Ancient and the Later The ancient Deans come in in much like sort as Bishops do for they are chosen by the Chapter by a Conge de estier as Bishops be and the King giving his Royal assent they are confirmed by the Bishop but they which are either newly translated or founded are Donative and by the Kings Letters Patents are installed fo 95. a. Ecclesiastical persons have not capacity to take in Succession unlesse they be bodies Politique as Bishops Archdeacons Deans Parsons Vicars c. or lawfully incorporate by the Kings Letters Patents or Prescription Sect. 135. Of Tenures some be Spiritual and some be Temporal and of Spiritual some be incertain as Tenures in Frank-almoigne and some be certain as Tenures by Divine service Again Divine service is twofold either Spiritual as Prayers to God or Temporal as distribution of Alms to poor people Since Littleton wrote the Book of Common Prayer c. is altered yet the Tenure in Frankalmoigne remaineth and such Prayers and Divine service shall be said and celebrated as now is authorized for the change is by generall consent c. of Parliament 2 E. 6. c. 1. 5. 6. c. 1. 1 El. c. 2. whereunto every man is party And as Littleton hath said before in the case of Soccage Sect. 119. The changing of one kinde of Temporal services into other Temporal services altereth neither the name nor the effect of the Tenure so the changing of Spiritual services c. altereth neither the name c. Frankalmoigne est le pluis haute service fuit haec sapientia quondam Publica privatis secernere sacra profanis Tant solement divine spiritual service en destr fait per terres c. tenus en Frankalmoigne Sect. 136. and 137. No distress can be taken for any services that are not put into certainty nor can be reduced into any certainty Oportet quod certa res deducatur in judicium And yet in some cases there may be a certainty in uncertainty as a man may hold of his Lord to shear all the sheep depasturing within his Manor and the Lord may distrain for this uncertainty 7 E. 3. 38. Ordinarius so called Quia habet ordinariam jurisdictionem in jure proprio non per deputationem as a Bishop c. Where the right is Spiritual and the remedy thereof onely by the Ecclesiastical Law the conusans thereof doth appertain to the Ecclesiastical Court fo 96. a. And so where the Common or Statute Law giveth remedy in foro seculari whether the matter be spiritual or temporal the conusance of that cause belongeth to the Kings Temporal Courts only c. fo 96. b. There were within this Realm 118 Monasteries founded by the Kings of England So all Bishops c. which hold of the King by Barony and are Lords of Parliament called by Writ c.
Roy de rend al Roy annualment un arke ou un Espee c. petit choses touchant le guerre Et tiel service ne forsque Socage en effect If one holdeth Land of a common person in gross as of his person and not of any Manor c. and this Seigniory escheateth to the King yea though it be by Attainder of Treason he holdeth of the person of the King and not in Capite because the original Tenure was not created by the King And therefore it is directly said That a Tenure of the King in Capite is when the Land is not holden of the King as of any Manor Castle Honor c. but of his Crown Nota. A man may hold of the King in Capite or of his Crown as well in Socage as by Knights service fol. 191. 4. CHAP. X. Tenure en Burgage Sect. 162. ESt lou les tenants deins le Burgh sont tenus del seignieur del Burgh per cert ' rent c. tiel tenure ne forsque tenure en Socage Burgh is an ancient Town holden of the King or any other Lord which sendeth Burgesses to the Parliament fo 109. a. l. 10. 123. Major de Lynns C. A City is a Borough incorporate which hath or within time of memory have had a Bishop and though the Bishoprick be dissolved yet the City remaineth as Westminster Cambridge an ancient City Mich. 7. R. 1. Rot. 1. vide libr. fo 109. b. Cities were instituted for three purposes 1. For conservation of Laws whereby every man enjoyeth his own in peace 2. For tuition and defence of the Kings Subjects and for keeping the Kings peace in time of sudden uproar And 3. For defence of the Realm against outward and inward hostility There is lex consuetudo Parliamenti quae quidem lex quaerenda est ab omnibus ignorata à multis cognita à paucis Of the Members of this Court of Parliament some be by descent as ancient Noblemen some by creation as Nobles newly created some by succession as Bishops some by election as Knights Citizens and Burgesses fol. 110. a. ante Sect. 3. The Jurisdiction of this Court is so transcendent that it maketh enlargeth diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritine c. None can begin continue or dissolve the Parliament but by the Kings Authority Of this Court it is said Que il enim de tresgrand honor justice de que nul doit imaginer chose dishonorable Habet Rex Cur ' suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia unicuique justitia prout meruerit retribuetur Pl. c. 398. b. d. Pet. St. c. 55. fo 164. Flet. l. 2. c. 2. The King of England is armed with divers Counsels as first Commune Concilium and that is the Court of Parliament 2. Magnum Concilium and this is sometime applied to the Upper House of Parliament and sometime out of Parliament time to the Peers of the Realm 3. The Privy Councel And 4. the Kings Councel for Law matters and they are his Judges of the Law Sect. 165 c. Ascun Burghs ont tiel Custome que le puisne fits inherita c. Consuetudo quandoque pro lege servatur in partibus ubi fuerit more utentium approbata vicem legis obtinet longae vi enim temporis usus consuetudinis non vilis authoritas Longa possessio sicut jus parit jus possidendi tollit actionem vero domino Bracton Of every Custom there be two essential parts Time out of minde and Continuance and peaceable usage without lawfull interruption If Lands be within a Manor Fee or Seigniery the same by the Custom of the Manor c. May be devisable or of the nature of Gavelkinde or of Borough English 21. Ed. 4. 53. 54. otherwise is it In an upland Town c. Nota That in special Cases a Custome may be alleadged within a Hamlet a Town a Burgh a City a Manor an Honour an Hundred and a County but a Custom cannot be alleaged generally within the Realm c. For that is the Common Law Fo. 110. b. F.N.B. 122. Dyer 54. By some Customes the youngest brother shall inherit Sect. 166. and 167. Item en asc ' Burghs per le oustom feme avera pur sa Dower touts les tenement que feront a sa baron c. And this called Franke Banke Here is imployed by c. that in some places the Wife shall have the moity of her Husbands Lands so long as she lives unmarried as in Gavelkind And of Lands in Gavelkind a man shall be Tenant by the Curtesie without having of any issue In some places the Widdow shall have the whole or halfe Dum sola casta vixerit c. F.N.B. 150. Item home poit deviser ses terres qui il ad en Fee simple deins mesme le Burgh c. A devisor per son Testam is to speake by his Testament what his mind is to have done after his decease Testamentum est duplex 1. In Scriptis 2. Nuncupatinum seu fine scriptis The devisee cannot take goods c. without the assent of the Executors otherwise it is of Lands devised by Custome If a man hath Lands holden by Knights service in Capite and lands in Socage he can devise but two parts of the whole But if he hold lands by Knight-service of the King and not in Capite or of a meane Lord and hath also Lands in Socage he may devise two parts of his Land holden by Knights service and all his Socage Lands Vide lib. quaere Fo. 111. b. If a man make a Feoffment in Fee of his Lands holden by Knights service to the use of such person and persons and of such Estate and estates c. As he shall appoint by his Will in this case by operation of Law the use and State vests in the Feoffor and he is seised of a qualified Fee In this Case if the Feoffor limit Estates by his will by force and according to his power there the use and the Estates growing out of the Feoffment are good for the whole and the last will is but directory Vide Lib. c. If a gift in Taile or a Lease for life be made the remainder in Fee this remainder is not within the Statute Sect. 168. Fo. 112. By no conveyance at the Common Law a man could during the Coverture either in possession reversion or remainder limit an estate to his Wife But a man may by his Deed Covenant with others to stand seised to the use of his wife or make a Feoffment c. to the use of his Wife and now the state is executed to such uses by the Statute of 27 H. 8.
incorporeal real or personal or mixt 6. a. If a man by deed give lands to another and to his heirs without more saying this is good ut res magis valeat quam pereat if he put his seal to the deed deliver it and make livery accordingly So it is if A give lands to have and to hold to B and his heirs this is good by construction of the Law but when form and substance concur then is the deed fair and absolutely good fol. 7. a. In ancient charters c. there was never mention made of the delivery of the deed or any livery of seisin indorsed for the witnesses named in the deed were witnesses of both ib. Witnesses are very necessary for the better strengthning of deeds fol. 7. b. Haeres legitimus est quem nuptiae demonstrant and is he to whom Lands Tenemenrs and Hereditaments by the act of God right of bloud do descend of som estate of enheritance for Solus Deus facere potest haeredem non homo haeres ab haerendo nam qui haeres est haeret vel dicitur ab haerendo quia haereditas sibi haeret c. Vide libr. Partus cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter bene debet inter liberos connumerari Si inutilia nostra reddidit ut si membra tortuosa habuerit non tamen is partus monstrosus Bract. l. 5. f. 437. A denizen by the Kings Letters Patents cannot be heir c. But otherwise is it if he be naturaliz'd by Act of Parliament and if one be made denizen the issue that he hath afterwards shall be heir to him An alien cannot he heir c. Propter de sectum subjectionis Fol. 8. a. Where the Sons by no possibility can be heir to the Father the one of them shall not be heir to the other as if an alien cometh into England and hath issue c. l. 7. Calvins Case A man attainted of Treason or Felony can be heir to no man nor any man heir to him propter delictum A man hath issue two sons and after is attaint c. And one of the sons purchase Lands and dieth without issue the other brother shall be his heir for the attainder c. corrupteth the lineal bloud only not the collateral bloud between the brethren which was vested in them before the attainder But if a man after he be attainted have issue c. Autrement est In case where filiatio non potest probari the child may choose his Father A man by the common law cannot be heir to Goods or Chattels for haeres dicitur ab haereditate Haeres astrarius so called ab astre i. e. an harth of an house cum Antecessor restituat haeredi in vita sua haereditatem c. fol. 8. b. Si uxor dicit se esse praegnantem de ipso defuncto cum non sit habeat haeres brevium de ventre inspic nemo est haeres viventis apparens dicitur If a man give land unto two haeredibus omitting suis they have but an estate for life for the uncertainty 10 H. 6. 7. Pl. Com. 28. b. Ceux parolx ses heirs tantsolement font lestate denheritance en touts Feoffments and grants Here Littleton treateth of purchases by natural persons and not of bodies politique or corporate As the heir doth inherit to the ancestor so the successor doth succeed to the predecessor and the executor to the Testat An ancient grant must be expounded as the law was taken at the time of the grant 17 E. 3. 25. b. Sub vocabulis haeredibus suis omnes haeredes propinqui comprehenduntur remoti nati nascituri fo 9 a. Fleta l. 3 c. 8. The law is precise in prescribing certain words to create an estate of inheritance for avoiding of uncertainty the mother of contention and confusion Pl. Com. 163. There bee many words so appropriated as that they cannot be legally expressed by any other words c. Some to estates of lands some to tenures some to persons some to offences some to forms of Originall Writs some to warrant c. Satus dicitur à stando An estate of inheritance granted by the great Seal c. is descendible according to the cours of the common law Hereditas est duplex Corporata viz. Of Lands and Tenements which may pass by Livery by Deed or without Deed. Incorporata as Advowsons Commons c. which cannot pass by livery but by Deed. The Deed of incorporaet inheritances doth equal the livery of corporeate al I. S. habend sibi succes sive haered suis ē fee s. Si. soit per Letters Patents A conveiance by feoffment cleareth all disseisins abatements intrusions and other wrongful or defeasible estates where the entry of the feoffor is lawful which neither fine recovery nor bargain and sale by deed indented and inrolled doth Sometime when an estate of freehold only doth pass improperly it is called a feoffment Done est nosme general plus que nest feoffment car done est general à touts choses moebles nient moebles Feoffment est riens forsque del soil If a man devise lands to a man in perpepetuum or to give and to sell c. A fee simple doth pass by the intent of the devisor Fol. 9. b. A man deviseth land to one sanguini suo that is a fee simple but if it be semini suo it is an estate tail Br. tit tail 21. So that ceux parolx ses heirs tantsolement c. Extend not 1. To last Wills and Testaments 2. Not to a fine sur conusans de droit come ceo c. 3. Nor to certain releases 4. Nor to a recovery 5. Nor to a creation of Nobility by Writ But out of This rule of our Author the Law doth make divers exceptions as 1 If the Son infeoff the Father as fully as the Father infeoffed him 2. In respect of the consideration as if lands be given in frankmarriage generally 3. If a feoffment or grant be made to any corporation aggregate of many persons capable 4. In case of a sole corporation as if a feoffment in fee be made to a Bishop habendum c. In libera elemosina 5. In grants sometimes as if one coparcenor for owelty of partition grant a rent to the other generally c. Ipsae etenim leges cupiunt ut jure regantur 6. By the Forrest Law if an Assart be granted by the King to another habendū tenend sibi in perpetuū he hath a fee simple without this word heirs fol. 10. a. And this rule c. extendeth to the passing of estates of inheritances in exchanges releases or confirmations that enure by way of enlargement of estates warranty bargains and sales by Deed indented and inrolled c. In which this word heirs is also necessary for they do taptamount to a Feoffment or grant ubi eadem ratio ibi idem jus A man may purchase lands to
these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt 3. Both Littleton and the book in 7 Ed. 3. giveth the tenant power without any excuse to be shewed to finde an able and sufficient man and oftentimes Jura publica ex privato promiscue decidi non debeut Praepostera lectio praepropera praxis are enemies to learning fol. 70. b. Cessante ratione legis cessat ipsa lex If Mayor and Commonalty convey over their Lands holden by Knights service to any natural man and his heirs now Homage-ward c. belong to the Tenure c. Note That every Bishop in England hath a Barony and that Barony is holden of the King in Capite and yet the King can neither have Wardship or relief Nemo militans Deo implicetur ' secularibus negotiis Ferdwit in Saxon ' significat quietanciam murdri in exercitu Worscet signifieth Liberum esse de oneribus armorum fo 71. a. Fleta lib. 1. cap. 42. Miles haec tria curare debeat corpus ut validissimum perniciosissimum habeat arma apta ad subita imperia caetera Deo Imperatori curae esse Livius Sapiens non semper ita uno gradu sed una via non se mutat sed aptat Qui secundos optat eventus dimicet arte non casu In omni conflictu non tam prodest multitudo quam virtus Vegetius Est optimi ducis scire vincere cedere prudenter tempori Multum potest in rebus humanis occasio plurimum in bellicis Polibius Quid tam necessarium est quam tenere semper arma quibus tectus esse possis Vegetius Concerning the point in Law demurred in judgement in the 7 Ed. 3. here mentioned by Littleton The Law accounteth the beginning of the 40 daies after the King entreth into the Forrein Nation for then the Warre beginneth c. Vide c. The knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his own understanding And as the Bucket in the depth is easily drawn to the uppermost part of the water for nullum elementum in suo proprio loco est grave but take it from the water it cannot be drawn up but with great difficulty for albeit the beginnings of this study seem difficult yet when the Professor of the Law can dive into the depth it is delightfull easie and without any heavy burthen so long as he keep himself in his own proper element Justiciari de banco c. Communia placita non sequantur Cur ' nostram sed teneantur in aliquo certo loco Mag. Charta He which demurreth in law Moratur or Demoratur in lege Matters in Law are decided by the Judges and matters in fact by Juries Now as there is no issue upon the fact but when it is joined between the parties so there is no Demurre in law but when it is joyned c Vide quaere fol. 71. b. In some cases a man shall alledge special matter and conclude with a Demurre as in an action of Trespass brought by I. S. for the taking of his Horse the defendant pleads that he himself was possessed of the Horse untill he was by one I.S. dispossessed who gave him to the Plaintiff c. the Plaintiff saith that I. S. named in the Barre and I.S. the Plaintiffe were all one person and not diverse and to the Plea pleaded by the Defendant in the manner he demurres in law and the Court did hold the Plea and Demurrer good for without the matter alledged he could not demurre Now as there may be a demurre upon Counts and Pleas so there may be of Aid Prior Voucher Resceit Waging of Law c. There is a generall Demurre that is shewing no cause and a speciall Demurre which sheweth the cause of his Demurrer Also there is a Demurre upon pleading c. and there is also a Demurre upon Evidence Vide Lib. fol. 72. a. Sect. 97 98. and 99. No escuage was assessed by Parliament since the eighth year of the reign of Edw. 2. fol. 72. b. Quemadmodum incertitudo scutagii facit servitium militare ita certitudo scutagii facit socagium Si home parle generalement descuage il ser entend ' c. descuage noncertaine que est service de Chivaler tiel escuage trait a luy homage fealty car fealty est incident a chesc ' maner de service forsque a le tenant in Frankalmoigne Verba equivoca in dubio posita intelliguntur in digniori potentiori sensu Tenure in capite ex vitermini is a Tenure in Gross and it may be holden of a subject but being spoken generally it is secundum excellentiam intended of the King for he is caput reipublicae fol. 73. a. Escuage can be assessed only by Parliament and not by the King Sect. 101. Les seignieurs poient distrein per Escuage assess per Parlament ou ils en asc ' cases purront au breve le roy direct ' as viconts de in les counties c. de levier tiel Escuage per eux Vide de Regist Writs are the foundations whereupon the whole Law doth depend Fitzherbert in his Preface to his Nat. Br. Breve sicut regula juris rem quae est breviter enarrat non tamen ita breve esse debeat quin rationem vim intentionis contineat Bract. lib. 5. fo 413 c. Of Writs some be Original and some be Judicial Also of Originals Quaedam sunt formata sub suis casibus de cursu de communi consilio totius regni concessa approbata quae quidem nullatenus mutari poterint absque consensu voluntate eorum quaedam sunt Magistralia saepe variantur secundum varietatem casuum factorum quaerelarium As Actions upon the Case which vary c. Item brevium originalium alia sunt realia alia personalia alia mixta Item c. alia sunt patentia sive aperta alia clausa Certain it is that the Original Writs are so artificially and briefly compiled as there is nothing redundant or wanting in them of which one said That it was impossile to comprehend so much matter so perspicuously in fewer words Brevia judicialia saepius variantur secundum varietatem placitorum proponentis respondentis Sect. 102. Mareschallus exercitus in Saxon Marischalk i.e. equitum Magister Marshal is either derived of Mars or of Marc an horse which signifieth in the Saxon tongue a Master or Governor I reade of six kindes of Certificates allowed for Tryals by the Common Law The first whereof Littleton speaketh in time of War out of the Realm by the Marshal c. 2. In time of Peace out of the Realm As if it be alleaged in avoidance of an Outlawry That the Defendant was in Prison at Bourdeaux c. it shall by tryed by the Certificate of the Mayor c. 2
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
defectum patriae libertatis liberi tenementi Hundredorum for vicini vicinorum facta praesumuntur scire 3. Propter affectum and this is either working a principall challenge or to the favour and again a principall challenge is either by judgement of Law without any act of his as if the Juror be of bloud or kindred to either party Brit. f. 135. if the Juror have part of the Land that dependeth upon the same title Bract. fo 18 If a witnesse named in the Deed be returned of the Jury c. f. 23. Ass 11. Fo. 157. a. Vide nota Or upon his own act as if the Juror had given a verdict before for the same cause albeit it be reversed by Writ of error or if after verdict Judgement were arested So if he hath given a former verdict upon the same title or matter though between other persons 8 H. 5. 10. 18. E. 4. 12. 21. E. 4. 74. fo 157. b. Vide c. If a Juror hath been an arbitrator chosen by the plaintiff or defendant in the same cause and have been informed of or treated of the matter this is a principall challenge 9. E. 4 46. But a Commissioner chosen by one of the parties for examination of witnesses c. may upon cause he challenged so favour l. 9. fo 71. Peacocks Case Challenge concluding to the favour must be left to the conscience of the triors c. As if the Juror bee of kindred or under the distresse of him in the reversion or remainder or in whose right the Avowry or justification is made c. These be no principall challenges because he in reversions c. is not party to the Record otherwise it is if they were made parties by Aide Rescepit or voucher and yet the cause of favour is apparant so it is of all principall causes if they were party to the Record 10. E. a. 12. vide c. 4. Propter delictum as if the Juror be attainted or convicted of treason or felony c. for repellitur à sacramento infamis So it is if a man be outlawed in trespasse c. Mirror cap. 3. d' attaint Fol. 158. a. Vide c. Nota the array of the Tales shall not be challenged by any one party untill the array of the principall be tried but if the plaintiff challenge the array of the principall the defendant may challenge the array of the Tales and there the one of the principall and the other of the Tales shall try both arrayes after one hath taken a challenge to the Poll hee cannot challenge the array 9. E. 4. 27. 9. H. 5. 11. If a pannell upon a ven fac be returned and a Tales and the array of the principall is challenged the Triors which try and quash the array shall not try the Array of the Tales for now it is as if there had beene no appearance of the principall pannel but if the riors affirm the array of the principall then they shall try the array of the Tales 9 E. 4. 46. 7. E. 6. Dyer 78. When any challenge is made to the Polls two triors shall be appointed by the Court and if they try one indifferent and he be sworne then hee and the two triors shall try another and if another bee tried indifferent and he be sworne then the two triors cease and the two that be sworne in the Jury shall try the rest 22. E. 4. Chal. 61. 62. If the plaintiffe challenge ten and the defendant one and the twelfth is sworne because one cannot try alone there shall be added unto him one challenged by the plaintiffe and the other by the defendant 7. H. 4. 41. If the cause of challenge touch the dishonour or discredit of the Juror he shall not be examined upon his oath but in other cases he shall be examined upon his oath to informe the triors 49. E. 3. 1. 2. Fems ne serfs ne enfans ne nul infamys ne nul que neÌ„ fise tenant ne poet estr bone summonere Brit. ca. 121. Vide libr. Fo. 158. b. Of an Ass of no disseim Vide l. 8. f. 45. Iehu Webbs case Whensoever a Statute giveth a forfeiture or penalty against him which wrongfully detaineth or dispossesseth another of his duty or interest in that case he that hath the wrong shall have the forfeiture c. and not the King P. 29. Eliz. between the Queen and Wood and so it was adjudged c. M 4. Ia. Re. and note that the Act of Parliament doâ—h give a temporall remedy at the Common Law to Parsons c. for an ecclesiasticall duty and to lay men proprietaries of tithes the like remedy but they have election either to sue for the treble value at the Common Law or for the double value in the Ecclesiasticall Court or for substraction of tithes there also Vide nota 159. a. c. 2. E. 6. ca. 13. Donee treble value al party grieve p. praediall dismes detaine per tort c. Sect. 235. 236. Payment of any money or of any valuable thing in the name of seisin of a rent seck before any rent become due is a good seisin of the rent to have an Ass of no disseis when it is due and that which is given in the name of seis c. worketh his effect to give seisin and yet it is no part of the rent nor shall be abated out of the rent S. 565. The grant and delivery of the Deede and atturnement is no seisin of the rent and a seisin in Law which the grantee hath by the grant is not sufficient to maintaine an Ass or any other reall action but there must bee an actuall seisin Fo. 160. a. Also of a rent seck and so it is of a rent charge home poit aver ass de mortd ou Bre. de Ayel ou de Cosinag touts auters manners dactions reals come la case gift sicome i poet auÌ„ daesc ' auter rent Hereupon some have gathered that a man shall have a Writ of right of a rent seck or of a rent charge albeit they be against common right F. N. B. 6. 14. E. 4 5. Sect. 237. Sont 3. causes de disseisine de rent service sc rescous replevin inclosure car per tiels choses le Seignior eÌ„ disturbe de le meane per que il doit auÌ„ vener a son rent sc de le distresse But you may make six disseisins of a rent service Rescous of a distresse resistance to distrein Repl. inclos counter pleading of the title and vouching of a Record and sailing Fo. 160. b. In some cases the Tenant may make Rescous c. 1. if no rent be behind when the distress is taken 2. If the Tenant tender the rent to the Lord when he is to take the distresse and yet the Lord will distreine c. 3. If the rent be behind and the Lord destreine the Cattell of the Tenant in the high way within his Fee 4. If the
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is a Covenant reall annexed to the Land by him which either was owner or might have inherited the Land and from whom his heire lineall or collaterall might by possibility have claimed the Land as heire from him that made the warranty In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
Ante fol. 83. 69. Sect. 138. and 139. Nihil quod est inconveniens est licitum fol. 97. b. It is better saith the Law to suffer a mischief that is peculiar to one then an inconvenience that may prejudice many 42 Ed. 3. 5. 28 E. 3. 395. 20 H. 6. 28. There is no Land that is not holden of some Lord or other by some service Spiritual or Temporal Nihil quod est contra rationem est licitum For Reason is the life of the Law nay the Common Law it self is nothing else but Reason which is to be understood of an artificial perfection of Reason gotten by long study observation and experience and not of every mans natural Reason for Nemo nascitur artifex Neminem oportet esse sapientiorem legibus Si un Abbot c. alien his lands holden in Frankalmoigne to a secular man in fee simple In this case albeit the Alienor held not by fealty nor any other terrene service but only by Spiritual services and those incertain yet the Alience shall hold by the certain service of fealty fol. 98. a. Sect. 140. Il est ordeigne per lestatut Quia empt terrum fait 18 Ed. 1. que nul poit alien ne grant terres c. en fee simple a ten de luy mesme Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibita est potest fieri quilibet potest renunciare juri pro se introducto Praesumitur rex habere omnia jura in scrinio pectoris sui Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata vide libr. quaere fo 99. a. By Prescription the successor of an Abbot may pay relief Sect. 141. Nul poit tenure terres c. en frankalm forsprise del grantor on de ses heires Here or hath the sense of and c. For the heir cannot take any thing in the life of the ancestor neither can the heire take any thing by discent when the ancestor himself is secluded Vide c. As a man cannot grant lands in Taile and reserve a rent to his heirs 15. E. 4. The tenure in frankalmoigne is an incident to the inheritable bloud of the grantor and cannot be transferred or forfeited to any other But it is not an incident inseparable c. For the Lord may release to the Tenant in frankalmoigne and then the tenure is extinct and he shall hold of the Lord Paramount by Fealty As in Littl. S. 139. And if the Seigniory be transferred by act in Law to a stranger thereby the privity is altered and the tenure changed Fo. 99. b. And a Bishop with assent of his Chapter c. may give Lands in Frankalmoigne to hold of them and their successors by licence c. Alwaies the Seigniory neerer to the Land drowns the Seigniory that is more remote c. Sect. 142. Lâ—mesne est tenus de acquiter son Tenant en frankal de Chesc ' manner de service que asc ' Seignior Paramount de luy void demand He is also to aquitt him of improvement of services as if he be distrained for relief aid per file mar c. Also for suit service to a hundred but for suit reall in respect of resiance within any hundred c. it is otherwise There be three kindes of Acquitals 1. An acquitall by Deed. 2. An acquitall by prescription 3. An acquitall by tenure and that is four manner of waies 1. By owelty of service for service acquites service 2. Tenure in Frankalm 3. Tenure in Frankmar 4. Tenure by reason of Dower F. N. B. 135. c. There be six Writs in Law maintainable before any molestation c. As 1. A man may have his Writ of Mesne before he be distreined 2. A Warr. Cartae before he be impleaded 3. A Monstraver before any distresse or vexation 4. An Aud. quer before any execution sued 5. A Curia claudend before any default of inclosure 6. A ne injuste vexes before any distresse or molestation and these be called brevia anticipantia Nota the Plaintiff in a Writ of Mesne may chuse either processe at the common Law or upon the Statute of West 2. And upon processe given by the said Statute viz. Summons Attachment and grand distresse if the Mesne cometh not he shall be fore-judged and the judgement is quod T. le mesne amittat servitia de A le Tenant de tenemtis praedictis quod omisso praedicto T. praefat R. le Seignior Paramount modo sit attendens respond per eadem servit per quae T. tenuit Also if the Tenant be not acquitted after he hath recovered in a Writ of Mesne he shall have a Writ of Distringas ad acquietand Fo. 100. Vide c. F.N.B. 138. If two joyntenants bring a Writ of Mesne and the one is summon'd and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that cannot he be alone And so if there be two joyntenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appears there can be no fore-judger Vide Libr. quaere If the Daughter the Son being in venter sa mere before judged it shall binde the Son that is born afterwards for he had no right at the time of fore-judgement CHAP. VII Homage Auncestrel Sect. 143. c. HOm. Aunc est lou un tenant tient sa terre de SoÌ„ Seigper Homage m. le tenant ses Ancestors que heire il est ont tenus m. la terre del dit Seignior de ses ancestors c. de temps dont memorie ne court per homage on t st a eux homage Tiel Seignior doit garrant son tenant queunt il eÌ„ implede de la terre c. Auxiâ—il doit acquiter le tenant envers touts Seigniors Paramount luy de chesi manner de service Mes si le Seignior navoit recieve pas homage del tenant c. Nede asc ' de ses ancestors il poit disclaimer en le tenancy quaÌ„nt il est vouch issint oust le tenant de son garrantie Sect. 145. Est tanta talis connexio per homagium inter dominum tenentem quod tantum debet dominus tenenti quantum tenens domino praeter solam reverentiam Bract. Fo. 78. Glan li. 9. ca. 4. Brit. Fo. 170. a. Ancient continued inheritance on both parties hath more priviledge and account in Law then inheritances lately or within memorie acquired Fol. 101. a. Warrantus vouchee is either to defend the right against the demandant or to yeeld him other Land c. in value and extendeth to Lands c. of an estate of Freehold or inheritance and not to any Chattell real personall or mixt saving only in case of a wardship granted with warrant for in the other cases concerning Chattels c. The voucher shall have his action of Covenant if
5. 15. H. 7. 13. b. 5. E. 4. 7. a. The surest construction of a Statute is by the rule and reason of the Common Law Uses were at the Common Law When the Law gives to any man any estate or possession the Law giveth also a privity and other necessaries to the same Since Littleton wrote the said Statute of 2. H. 5 is altered for where that Statute limited 40. s. now a later Statute hath raised it to 4. l. and so it ought to be contained in the Ven. fac 27. El. cap. 6. Nota. An use is a trust or confidence reposed in some other which is not issuing out of the land but as a thing collaterall annexed in privity to the estate of the land and to the person touching the land viz. that Cesty que Use shall take the profit and that the Terre-tenant shall make an estate according to his direction So as Cesty que Use had neither jus in re nor jus ad rem but onely a confidence and trust for which he had no remedy by the Common Law but for breach of trust his remedy was only by Subpoena in Chancery Fortescue cap. 25 26 c. Pl. Com. 352. b. in Dalameres case 349. b. l. 1. fo 121 122 127 140. â—hudleys case l. 2. fo 58 78 l. 6 fo 64. l. 7. fo 13 34. Vide Fortescue ut ante c. How Jurors shall be returned c. Sect. 65. Fol. 273. a. It is a certain rule That when a Release doth enure by way of inlarging of an estate that there must be privity of estate as between lessor and lessee donor and donee Fleta l. 5. cap. 34. 15. H. 7. 14. 22. E. 4 4. But a Release to him that in rei veritate albeit there be privity in Law and a tenancy in supposition of Law hath no estate cannot enure to him by way of inlargement for how can his estate be inlarged that hath not any Vide Libr. If a Tenant by the Curtesie grant over his estate yet he is Tenant as to an action of Wâ—ste Attornment c. and yet a Release to him and his heirs cannot enure to inlarge his estate that hath no estate at all If I grant the reversion of my Tenant for life to another for life now shall not he have an action of Waste But if I release to the grantee for life and his heirs now he hath the Fee simple and shall punish the Waste done after 48. E. 3. 16. a. per Persay and Finchden 41. E. 3. 17. a. 7 E. 4. 17. It is further to be observed that to a release which enureth by way of inlargement of the estate there is not only required privity and an estate but sufficient words also in Law to raise or create a new estate If a man make a lease to A. for term of the life of B. and after release to A. all this right in the Land by this A. hath an estate for term of his own life for a lease for term of his life is higher in Judgement of Law then an estate for term of another mans life vide 16. H. 6. Release 45. 22. E. 2. Rel. Statham Nota when a Release doth enure by way of enlargement of an estate no inheritance either in fee simple or fee tail can passe without apt words of inheritance But there is a diversity between a Release that enureth by way of Mitter lestate and by way of enlargement of the state 9. El. Dyer 263. If there be three joyntenants and one release to one of the other all his right this enureth by way of Mitter lestate and passeth the whole fee simple without these words Heirs But if there be two joyntenants the one release of them all his right to the other this doth not to all purposes enure by way of Mitter lestate for it maketh no degree and he to whom the release is made shall for many purposes be adjudged in from the first Feoffor and this release shall vest all in the other joyntenant without these words Heirs 40. E. 3. 41. 46 E. 3. 19 H 6. 33 H. 6. 5. 10 E. 4. 3. But if there be two Coparcerners and the one release all his right to the other this shall enure by way of Mitter testate and shall make a degree and without these words Heirs shall pass the whole fee simple And note that to a release that enures by way of Mitter lestate there must be privity of estate at the time of the Release 37 H. 8. Alienat Br. 31. 8 H. 4. 8. 40 Ass 5. 19. If two Coparcerners be of a rent and the one of them take the Terre tenant to husband the other may release to her notwithstanding the rent be in suspence and it shall enure by way of Mitter lestate and she may release also to the Terre-tenant and that shall enure by way of extinguishment But if she release to her sister and to her husband it is good to be seen how it shall enure * Nota some releases do enure by way of enlargement of estate some by way of Mitter lestate some by way of Mitter le droit by way of Entry and Feoffment and some by Extinguishment vide Littl. fo 68 69. Sect. 467. Fol 274. a. Reg. he that hath a fee simple at the time of the Release made of a right c. needeth not speak of his heirs for a release of a right for a day is sufficient c. But if a man be disseised of two acres he may release his right in one of them and yet enter into the other vide 6 E. 3. 17. alias 6. E. 3. 17. 12. E. 3. discent F. 29. So note a diversity between a release of part of the estate of a right and a release of a right in part of the Land Again note two diversities 1. Between the quantity of the estate in a right and the quality thereof for albeit the disseisee cannot release part of the estate yet may he release his right upon condition 4. E. 2. Release 50. 43. Ass 12. 17. Ass 2. 31. Ass Ass 13 21. H. 24. 2. Diversity is between a right which is favoured in Law and a condition created by the party which is odious in Law for that it desceateth estates and therefore if a condition be released upon condition the release is good and the condition void fo 274. b. An express Manumission of a Villain cannot be upon condition for once free in that case and over free Also an Attornment to a grantee upon condition the condition is void because the grant is once setled But this is to be understood of a condition subsequent and not of a condition precedent for in both cases the condition precedent is good But Letters Patents of Denization made to an alien may be either upon condition subsequent or precedent and so may the King make a Charter of Pardon to a man of his life upon condition as is abovesaid
Rot. Parliament 18. H. 6. 11. 29. Ap Guilliams case 10. E. 3. c. 2. 3. H. 7. f. 6. Sect. 469. Lou home ad forsque droit a la terre nad riens in le reversion ne in le remainder in fait si tiel home release tout son droit a un que est tenant de le franktenement tout son droit ale comment que nul mention soit fait de les heires celuy a que le release est fait To a release of a right made to any that hath an estate of Freehold in Deed or in Law no privity at all is requisite Lessee for life letteth the same land over to another for term of the life of his lessee the remainder to another in fee A release in this case by the first lessor to the lessee doth not enure by way of Mitter le droit for then should he have the whole right but as it were by way of extinguishment in respect of him that made the release and that it shall enure to him in the remainder which is a quality of an inheritance extinguished but yet the right is not extinct in deed Sect. 471. Fol. 275. b. If a disseisor make a lease for life the remainder in fee albeit they to some purposes are as one Tenant in Law yet if the disseisee release all actions to the Tenant for life he in the remainder shall not take benefit of this release for it extendeth only to Tenant for life l. 8 fo 148. Edw. Althams Case Also if the disseisor make a lease for life and the disseisee release all actions to the lessee this enureth not to him in the reversion And so our Author is to be understood of a release of Rights and not of a release of actions to the Tenant for life as to or for the benefit of him in the remainder or reversion Sect. 472. Fol. 276. a. If Tenant for life be disseised by two and he release to one of them this shall enure to them both for he to whom the release is made hath a longer estate then he that releaseth and therefore cannot enure to him alone to hold out his Companion for then should the release enure by way of Entry and grant of his estate and consequently the disseisor to whom the release is made should become Tenant for life and the reversion revested in the lessor which strange transmutation of estates in this case the Law will not suffer 13. E. 4. Discent F. 29. But if lessee for years be ousted and he in the reversion disseised and the lessee release to the disseisor the disseisee may enter for the term of years is extinct and determined And so it is if Donee in Tail be disseised by two c. But if the Kings Tenant for life be disseised by two and he release to one of them he shall hold out his companion for the disseisor gained but the estate for life So if two joynt-tenants make a lease for life and after to disseise the Tenant for life and he release to one of them he shall hold out his companion for the disseisin was but of an estate for life If Tenant for life be disseised by two and he in the reversion and Tenant for life joyn in a release to one of the disseisors he shall hold out his companion and yet it cannot enure by way of entry and Feoffment But if they severally release their severall Rights it shall enure to both the disseisors But here in Littletons Case where Tenant in fee simple is disseised by two and release to one of them this for many purposes enures by way of entry and Feoffment and therefore he to whom the release is made shall hold out his companion and be made sole Tenant of the fee simple Mes fi un disseisor infeffa 2 c. auterment est For that the Feoffees are in by Title and are presumed to have a Warranty which is much favoured in Law and the disseisors are meerly in by wrong 21 H. 6. 41. If two men do gain an Advowson by usurpation and the right Patron release to one of them it shall enure to them both for seeing their Clerk come in by admission and institution which are judiciall acts they are not meerly in by wrong for an usurpation shall cause a Remitter F. N. B. 31. M. But if a lease for life be made the remainder for life the remainder in fee and he in remainder for life disseise the Tenant for life and then the Tenant for life dieth the disseisin is purged and he in remainder for life hath but an estate for life And so note a diversity where the particular estate for life is precedent and when subsequent 19. H 6. 21. 38. H. 6. 28. Case de Occup Where our Author putteth his case of one disseised put the case that two joyntenants in fee be disseised by two and one of the disseisees release to one of the disseisors all his right he shall not hold out his companion because the release is but of the moity without any certainty If a man be disseised by two women and one of them take husband and the disseisee release to the husband this shall enure to the advantage of both the disseisors because the husband was no wrong doer but in a manner by Title If two disseisors be and they make a Lease for life and the disseisee release to one of them this shall enure to them both and to the benefit of the lessee for life also for he cannot by the release have the sole possession and estate for part of the estate is in another And so it is if the disseisors make a lease for years c. But the mortgage upon condition having broken the condition is disseised by two the mortgager having Title of entry for the condition broken releases to the one disseisor albeit they be in by wrong yet the release shall enure to them for two causes 1. For that they are not wrong doers to the Mortgager but to the Mortgagee and by Littletons case it appeareth that wrong is done to him that made the Release 2. That he that makes the Release hath but a Title by force of a condition and Littletons case is of a right Like Law is of an entry for Mortmain or a consent to Ravishment c. Sect. 473. Note that a release by one whose entry is lawfull to him that is in by wrong shall purge and take away all mean estates and titles If A. disseise B. who infeoff C. with warranty who infeoff D. with warranty and E. disseise D. to whom B. releases this doth defeat all the mean estates and warranty causa qua suprae 11. H. 4. 33. 9. H. 7. 25. 2. E. 4. 16. 21. E. 4. 78. 12. Ass 22. vide 3. H. 6. 38. Sect. 474. Fol. 276. b. If the disseisor make a lease for life and the lessee make a feoffment in fee and the disseisee release to