Selected quad for the lemma: book_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
book_n	abatement_n	assize_n	writ_n	50	3	9.6167	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A93553	A treatise of gavelkind, both name and thing. Shewing the true etymologie and derivation of the one, the nature, antiquity, and original of the other. With sundry emergent observations, both pleasant and profitable to be known of Kentish-men and others, especially such as are studious, either of the ancient custome, or the common law of this kingdome. By (a well-willer to both) William Somner.	Somner, William, 1598-1669.	1659 (1659)	Wing S4668; Thomason E1005_1; ESTC R207857	133,861	236

part of the land and the third part of all the residue of the lands being Gavelkind did escheat to the King for want of Heir which land is ever since enjoyed under the Kings title by escheat And John Wall upon a trial recovered against White the Devisee Whereby it is evident that Gavelkind Lands in Kent were never deviseable by Custome and so it was agreed per curiam Pasch 37. El. in C. B. in Halton and Starthops case upon evidence to a Jury of Kent it was then said that it had been so resolved before and there it was said per curiam that Fitz. Nat. Brev. 198. l. is to be understood where there is a special custome that the Land is deviseable c. And he that shall conclude upon that place of Fitz Nat. Brev. 198. l. that all Gavelkind Land is deviseable c. may as well conclude that all Lands in every City and Burrough in England is deviseable which is not so as appeareth by Mr. Littleton who saith that in some Burroughs by custome a man may devise his Lands c. And if Gavelkind Lands were deviseable by custome c. Then a man may devise them by word without writing as it is agreed in 34. H. 8. Dyer 53. for a man may devise his Goods and Chattels by a Will Nuncupative so may he likewise devise his Lands deviseable by custome because they were esteemed but tanquam catalla c. and it would be a mischievous thing if all the Gavelkind in Kent should be deviseable by word onely To these arguments and objections against the custome certain answers and exceptions by the learned Counsel of the adverse party have been framed and returned in behalf thereof reducible to three heads which to avoid all just suspicion of partiality and prejudice wherewith some zealous advocates and contenders for the custome have been and may again be ready to asperse me I shall here subjoyn together with such answers and arguments by way of reply as I have received from the learned Counsel of the other side in further and fuller refutation of theirs who endeavour to uphold the custome The learned Counsels arguments in behalf of the Custome FIrst they deny the old book of 4. Edw. 2. Fitzh Mortdancester 39. ●o be L●w. But an Assise of Mortdancester lies of land deviseable if it be true that his Ancestour died seized unlesse it appears that the Defendaut claims by some other title But if the Defendant plead that the land is by custome deviseable and was devised unto him it is a good barr of the action Secondly They rely much upon the book of Fitzherb Natura Brevium fol. 198. which sayes that a Writ of Ex gravi querela lies where a man is seised of lands or tenements in any City or Burrough or in Gavelkynd which lands are deviseable by will time out of mind c. whence they inferr that all Gavelkynd-lands are deviseable by custome Thirdly They cite the Treatise called Consuetudines Cantiae in the book called old Magna Charta and Lambards Perambulation of Kent fol. 198. that lands in Gavelkynd may be given or sold without the Lords licence and they interpret the word given to be by will and the word grant to be by deed The Reply to the fore-going Arguments by such as stand in opposition to the Custome AS to the first Objection against the Argument taken from the Assise of Mortdancester they reply thus First they maintain that the Custome alone without an actual Devise is pleadable in abatement to an Assise of Mortdancester as well as the Custome with an actual Devise is pleadable in barr for which there is not only that book of 4. Edw. 2. but also Bracton lib. 1. fol. 272. Ubi non jacet Assisa mortis antecessoris among his pleas in abatement of the Writ having before treated of pleas in barr to it Cadit Assisa sayes he propter consuetudinem loci ut in Civitatibus Burgis c. and 22. Assis pl. 78. where upon the like plea the Writ was abated and Fitzherb Nat. Brev. fol. 196. I. whose authority they think strange to be denied in a matter of Law wherein he was a Judge and yet so strongly relled on in a matter of fact and custome in a place whereto he was a stranger and so was it practised and allowed in Itin. Johan de Stanton 6. Edw. 2. And the reason given by the book why such a custome is pleadable in abatement to this Writ is because the suggestion of the Writ may be true that the Ancestour died seised c. and yet the heir have no title where the lands are deviseable And it is the property of this Writ that the dying seised must be traversed and though the Tenant plead the Feoffment of the Ancestour or other matter in barr that is not matter of Estoppell to the heir as a Fine Recovery c yet must he traverse the dying seised and the Jury shall be summoned and charged to inquire if the Ancestour die quo obiit seisitus fuit c. and so are the books of 9. Assis pl. 22. 27. Hen. 8. 12. Brooke Mortdancestor 1. Old Nat. Brev. fol. 117. and diverse others Nor is there any opinion to be found in any book of Law against that book of Fitzherb Mortdancestor 39. until the 15th of King Charles Launder and Brookes case Crooke lib. 1. fol. 405. obiter upon the trial of this custome 2. Admit that at this day the Law is held to be otherwise yet it appears by all the authorities aforesaid that in those times the Law was taken to be that the Mortdancestor did not lie where there was such a custome but it was a good plea in abatement of the writ And yet Assises of Mortdancestor were then frequently brought and maintained of lands in Kent as appears by Bracton and the books abovesaid 3. Whether the custome alone be pleadable in abatement or the custome with an actual devise be to be pleaded in barr they say it cannot be shewn if it can they challenge them to do it who would maintain the custome that it was ever pleaded one way or other either in abatement or in barr to any one of all that multitude of Assises of Mortdancestor brought at large in that County when in so small a City and County as Canterbury where indeed there is such a custom they shew it often pleaded to writs of Mortdancestor brought there before Roger de Stanton and other Justices in Eyre Secondly To the book of Fitzherb Nat. Brev. fol. 198. upon the writ of Ex gravi querela from whence the ground of this question sprung they answer that the sence and meaning of that book no lesse than the Grammar of it duly observed is no more then that the writ of Ex gravi querela lies there where lands in any City or Town or in Gavelkynd are deviseable by custome Not that all lands in Cities and Burroughs and in Gavelkynd are