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A33621 An abridgement of the Lord Coke's commentary on Littleton collected by an unknown author; yet by a late edition pretended to be Sir Humphrey Davenport, Kt. And in this second impression purged from very many gross errors committed in the said former edition. With a table of the most remarkable things therein.; Institutes of the laws of England. Abridgments. Coke, Edward, Sir, 1552-1634.; Littleton, Thomas, Sir, d. 1481. aut; Davenport, Humphrey, Sir, 1566-1645, attributed name. 1651 (1651) Wing C4906; ESTC R217258 305,227 456

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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.
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