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
him and his heirs 1. By Feoffment 2 By Grant 3. By Fine which is a Feoffment of Record 4. By common recovery in nature of a Feoffment of recovery 5. By Exchange 6. By Release to a particular Tenant 7. By confirmation c. which are in nature of Grants c. 9. By bargain and sale by Deed c. Ordained by Statute 10. By devise by custome of some particular place and by Will in Writing generally by authority of Parliament 27 H. 8. ca. 16. 32 H. 8. ca. 2. 34 H. 8. cap. 5. If a disseisin abatement or intrusion be made to the use of another if cesty que use agreeth thereunto in pays by this bare agreement he gaineth a Fee Simple without any livery of seisin c. Sect. 2. Linea recta semper praefertur transversali Proximus excludit propinquum propinquus remotū remotus remotiorem fol. 10. b. Proximum Sumitur duplici sc Jure propinquitatis and he that is thus next c. is mediately inheritable Jure representationis and so one is immediately inheritable and accounted in Law next of bloud A Lease for life is made to A. the remainder to his next of bloud in this case he that is next of bloud and capable by purchase shall have the remainder though he be not legally next to take as heir by discent note the diversity Sect. 3. Maxime so called quia maxima est ejus dignitas certissima autoritas atque quod maximè omnibus probetur Pl. com 27 Lineal ascent is prohibited by the law but not Collateral c. fo 11. a. Littletons proofs and arguments drawn from the common law are first from the maxims rules intendment and reason of the common law 2. Ab autoritate pronūciatis 3. A rescriptis valet argumentum 4. From the form of good pleading 5. From the right entry of judgments 6. A praecedentibus approbatis usu 7. A non usu 8. Ab artificialibus argumentis consequentibus conclusionibus 9. A communi opinione jurisprudentium 10. Ab inconvenienti 11. A divisione vel ab enumeratione partium 12. A Majore ad minus à minore ad majus à simili à pari 13. Ab impossibili 14. A fine 15. Ab utili vel inutili 16. Ex absurdo 17. A natura ordine naturae 18. Ab ordine religionis 19. A communi praesumptione 20. A lectionibus jurisprudentium From Statutes his Arguments and proofs are drawn 1. From the rehearsal or preamble of the Statute 2. By the body of the law diversly interpreted sometimes by other parts of the same statute which is benedicta expositio ex visceribus causae Sometime by reason of the common Law But ever the general words are to be intended of a lawful act and such interpretation must ever be made of all statutes that the innocent may not be damnified c. fol. 11. b. There be divers laws in England As first lex Coronae 2. Lex consuetudo Parliamenti 3. Lex naturae 4. Lex communis Angliae 5. Statute Law 6. Consuetudines 7. Jus belli in republica maximè conservanda sunt jura belli 8. Ecclesiastical or Canon Law in Courts in certain cases 9. Civil Law in certain cases only in Courts Ecclesiastical but in the Courts of the Constable and Marshal and of the Admiralty 10. Lex Forestae 11. The Law of Marque or Reprisal 12. Lex Mercatoria 13. The Laws and Customs of the Isles of Jersey Gernsey and Man 14. The Law and priviledge of the Stannery 15. The Laws of the East West and middle Marches which are now abrogated A man that claimeth as heir in fee simple to any man by discent must make himself heir to him that was last seised of the actual freehold and inheritance where the unckle cannot get an actual possession by entry or otherwise there the Father cannot inherit c. Warranties shall descend to him that is heir at the common law Fol. 12. a. And a warranty shall not go with Tenements whereunto it is annexed to any special heir but to the heir at the common law Sect. 4. None shall inherit any lands as heir but only the bloud of the first purchaser Plow 447. refert à quo fiat perquisitum Fleta l. 6. c. 1. 2. Bract. l. 2. fo 65. 67. Multa transeunt cū versitate quae par se non transeunt vid. libr. fo 12. b. 5 E. 2. Avowry 207. Whensoever lands do descend from the part of the Mother the heirs of the part of the Father shall never inherit è converso 39 E. 3. 29. fol. 13. a. Escheat i.e. cadere excidere vel accidere quod accidit duobus modis aut perfectū sanguinis aut per delictū tenentis atque illud est Per judicium 〈◊〉 modis aut quia suspensus per collū aut quia abjuravit regnū aut quia utlegatus In an appeal of death c. hanging the Process the defendant conveyeth away the land after is outlawed the conveiance is good shall defeat the Lord of his escheat but otherwise is it if a man be indicted of felony c. for in the case of Appeal the Writ containeth no time when the felony was done and therefore an escheat can relate but to the outlawry pronounced but the indictment containeth the Time when the Felony was committed and therefore the escheat upon the outlawry shall relate to that time If lands holden of I. S. be given to a Dean and Chapter Major and Commonalty and to Their successors c. And after such body politick or incorporat is dissolved the donor shall have again the Land for that the cause of the gift or grant faileth and not the Lord by Escheat But no such condition is annexed to the estate in see simple vested in any man in his natural capacity but in case where the donor or feoffor reserveth to him a tenure and then the law doth imply a condition in law by way of escheat fol. 13. b. Sect. 5. Descent is a means whereby one doth derive him title to certain lands as heir to some of his Ancestors Quod prius est dignius est qui prior est tempore potior est jure Sect. 6. Nul aūa trē de fee simp per discent come heir c. Si non que il soit heir dentier sanke The half bloud is no bloud inheritable by descent being not compleat and perfect Fol. 14. a. Sect. 8. Lands c. shall descend to him that can make himself heir to him that was last actually seised of the Freehold of the land c. Fol. 15. a. Whether the seisin of a rent reserv'd upon a seise for life be such an actual seisin of the land in the eldest son as the sister in a writ of right may make her self heir of this land to her brother admitting there be son and daughter by one venter and a son by another venter Vid. lib. Qu. 7 H.
be divers other limitations c. As if a rent charge be granted to A. and B. habendum to them two viz. to A. untill he be married and to B. untill he be advanced to a Benefice they be joynt-tenants in the meane time c. And if A. dye before marriage the rent shall survive but if A. had married the rent should have ceased for a moity sic è converso on the other side If an alien and a subject purchase lands in fee they are joynt-tenants and the survivorship shall hold place Et nullum tempus occurrit regi upon an office found 7 E. 4. 29. 11. H. 4. 26. Sect. 278. Omnis rati-habitio retrotrahitur mandato aequiparatur Nota That seeing Coadjutors Counsellors Commanders c. are all disseisors albeit the disseisor which is tenant dyeth yet the Assize lieth against the Coadjutor c. and tenant of the land though he be no desseisor The Demandant and others in a praecipe did disseise the tenant to the use of the others and the Writ did not abate for the Demandant was a disseisor but gained no tenancy in the land for that he was but a Coadjutor 50. E. 3. 2. A man disseised tenant for life to the use of him in the reversion and after he in the reversion agreeth c. he is a disseisor in fee for by the disseisin the reversion was divested which some say cannot be revested by the agreement of him in the reversion for that it maketh him a wrong doer and therefore no relation of an estate by wrong can help him Sect. 27. 9 Disseisin est properment lou un home enter eu asc ' terres c lou son entre nem pas congeable ousta celuy que ad franktenement c. This description c. is understood onely of such lands c. whereinto an entry may be made and not of Rents Commons c. Every entry is no disseisin unless there be an ouster also of the free hold as an Entry and a Claimer or taking of Profits c. 3 E. 4. 2. 34 Ass 11. 12. Pl. Com. 89. Parson de Honey-lane Now as there be joynt-tenants by Disseisin so are there joynt-tenants by Abatement Intrusion and Vsurpation Sect. 280. Nota que le nature de joyntenancy est que le survivor aūa solement lentier tenancy solunque tiel estate que il ad si le jointure soit continue c. mes auterment est de parceners Although survivorship be proper to joynt-tenants yet it is not proper quarto modo for if a man letteth lands to A. and B during the life of A. if B. dyeth A. shall have all by the survivor but if A. dyeth B. shall have nothing Two or more may have trust or authority committed to them joyntly and yet it shall not survive But with a diversity between a naked Trust c. and a Trust joyned to an estate or interest 2. There is a diversity between Authorities created by the party for private causes and Authority created by Law for execution of Justice Ex gr As if a man devise that his two Executors shall sell his land if one of them dye the survivor shall not sell it but if he had devised his lands to his Executors to be sold there the survivor shall sell it 39. Ass p. 17. 30 H. 8. tit Devise B. 31 Dyer 3 El. 190. Br. tit Cond 190. If a man make a Letter of Atturney to two to doe any act the survivor shall not doe it but if a Venire fac be awarded to four Coroners to impannel and return a Jury and one of them dye yet the other shall execute and return the same If a Charter of Feoffment be made and a Letter of Atturney to four or three joyntly or severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor any of them severally 38 H. 8. Dyer 62 27 H 8. f. 6. But if the Sheriff upon a Capias directed to him make a Warrant to four or three joyntly or severally to arrest the Defendant two of them may arrest him because it is for the execution of Justice which is pro bono publico Pasch 45 Eliz. in Banco Reg. inter King Hobbes Not of that kind of the infidel of Malmsbury Sect. 281 282. Survivor holdeth place regularly as well between joynt-tenants of goods and chattels in possession or in right as of Inheritance or Free hold fo 182. a. Si un obligation soit f◠a plusors pur un debt celuy que survequist avera tout le debt ou duty issent est daverts Covenants Contracts c. Mes Jus accrescendi inter mercatores pro beneficio commercii locum non habet F.N.B. 117. E. 38. E. 3 7. Sect. 283. Terres sont dones a 2. homes a les heires de lour 2. corps engendres en cen case les donees ont joint estre pur lour 2. vies encore ils ont several inheritances entant que ils ne poient aver per nul possibility un heire enter eux engendre sicome home feme point aver c. Note albeit they have severall inheritances in taile and a particular estate for their lives yet the inheritance doth not execute and so break the joynt-tenancy but they are joynt-tenants for life and tenants in common of the inheritance in tail Here a diversity is implyed when the state of inheritance is limited by one Conveyance as in this case it is there are no severall estates to drowne one in another but when the states are divided into severall Conveyances their particular estates are distinct c. and the one drownes the other As if a lease be made to two men for terme of their lives and after the lessor granteth the reversion to them two and to the heirs of their two bodies the juynture is severed and they are tenants in common in possession and it is further implyed that in this Case of Littletons there is no division between the estates for lives and the severall inheritances because they cannot convey away the inheritance after their decease for it is divided onely in supposition of law and to some purposes the inheritance is said to be executed 12 E. 4. 2. b. If a man make a lease for life and after granteth the reversion to the tenant for life and to a stranger and to their heires they are not joynt-tenants of the reversion but the reversion by act of law is executed for the one moity in the tenant for life and for the other moity he holdeth it still for life the reversion of that moity to the grantee 39 H. 6. 2. b. And so it is if a man make a lease to two for their lives and after granteth the reversion to one of them in fee the joynture is severed and the reversion is executed for the one moity and for the other moity there is tenant for life
donques il est le fait d'ambideux c. The feoffee is no way made party to make it being made in the first person but onely by the clause of putting his Seal thereunto Vide Lib. c. Sect. 374. If A. by Deed indented between him and B. let lands to B. for life the remainder to C. in fee reserving a rent Tenant for life dyeth he in remainder entreth into the lands he shall be bound to pay the rent because he agreeth to have the lands by force of the Indenture 50 E. 22. 3 H. 6. 26. b. fo 231. a. An Indenture of lease is ingrossed between A. of the one part and D. and R. of the other part which purport a demise for years by A. to D. and R. A. sealeth and delivereth the Indenture to D. and D. seal the Counterpane to A. but R. did not seal and deliver it And by the same Indenture it is mentioned that D. and R. did grant to be bound to the Plaintiff in 20 l. in case that certain conditions comprised in the Indenture were not performed And for this 20 l. A. brought an action against D. onely and sued forth the Indenture The Defendant pleaded That it is proved by the Indenture that the demise by Indenture was made to D. and R. which R. is in full life and not named in the Writ Judgement of the Writ The Plaintiff replied That R. did never seal and deliver the Indenture and so his Writ was good against D. sole And there the Counsel of the Plaintiff took a diversity between a rent reserved which is parcel of the lease and the land charged therewith and a sum in gross as here the 20 l. is for as to the rent they agreed That by the agreement of R. to the lease he was bound to pay it but for the 20 l. that is a sum in gross and collateral to the lease and not annext to the land and groweth due onely by the Deed and therefore R. said he was not chargeable therewith for that he had not sealed and delivered the Deed. But in as much as he had agreed to the lease which was made by Indenture for the same sum in gross and for that R. was not named in the Writ it was adjudged that the Writ did abate 38 E. 3. 8. a. vide 44 E. 3. 11 12. Qui sentit commodum sentire debet onus transit terra cum enere Sect. 375. Le feoffer poit pledere condition en fait Poll pur ceó que il est privy al fait c. Felix qui potuit rerum cognoscere causas Et ratio melior semper praevalet Fol. 231. b. If the Deed remain in one Court it may be pleaded in another Court without shewing forth Quia lex non cogit ad impossibilia 40 Ass 34. l. 5. 75. b. Wymarks 12 H. 4. 8. F. N. B. 243. Sect. 376. When divers do a Trespass the same is joynt or several at the will of him to whom the wrong is done yet if he release to one of them all are discharged because his own Deed shall be taken most strong against himself but other wise it is in case of Appeal of Death c. As if two women be joyntly and severally bound in an Obligation if the Obligee release to one of them both are discharged and seeing the Trespassers are parties and privies in wrong the one shall not plead a Release to the other without shewing of it forth albeit the Deed appertain to the other 27 E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. 22 E. 4. 7. 13 H. 8. 10. 34 H. 8. estrange al fait 21. Sect. 377. Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem c. Ratio est radius divini luminis If a man hath an Obligation though he cannot grant the thing in action yet he may give or grant the Deed viz. the Parchment and Wax to another who may cancel and use the same at his pleasure Omnia praesumuntur legitimè facta donec probetur in contrarium Injuria non praesumitur fo 232. b. There be three kindes of unhappy men 1. Qui scit non docet Infelix cujus nulli sapientia prodest 2. Qui docet non vivit Infelix qui recta docet cum vivit inique 3. Qui nescit non interrogat Infelix qui pauca sapit spernitque doceri Inter cuncta leges percunctabere doctos Sect. 378. Estates que homes ont sur condition en ley sont tiels estates que ont un condition per la ley a eux annex comment que ne sont specifie en escript sicome home grant person fait a un auter le office del Parkership pur terme de son vie le estate que il ad en le office sur condition en ley sc que le Parker bien loialment gardian le Park c. issint est de offic ' de Seneschalship c. auterment bien lirroit al grantor a ses heires de luy ouste c. Quia in eo quo quis delinquit in eo de jure est puniendus 15 E. 4. 3. l. 5 E. 4. 26. 28 H. 8. Bendloes c. Lib. 6. fo 50. 95. 96 99. Mich. 33 E. 1. Coram Rege in Thesaur ' levesque de Durhams Case Forresta est tuta ferar'mansio non quarumlibet sed silvestrium non quibuslibet in locis sed certis ad hoc ideonis unde Foresta E. mutata in O. quasi feresta hoc est ferarum statio Ockam vide Bract. fo 231. 316. Non-user of it self without some special damage is no forfeiture of private Offices but Non-user of publike Officers which concern the administration of Justice or the Commonwealth is of it self a cause of forfeiture Pl. 379 380. 2 H. 7. 11. 30 H. 6. 32 c. There is a diversity between Officers that have no other profit but a collateral certain fee for there the grantor may discharge him of his service as to be a Baily Receiver Surveyor Auditor c. the exercise whereof is but labour and charge to him but he must have his Fee for the main Rule of Law is That no man can frustrate or derogate from his own grant to the prejudice of the grantee 18 E. 4. 8. 31 H. 8. Grants Br. 134. 34 H. 8. ibid. 93. 11 El. Dyer 285. But in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his office fee profit and all There is another diversity where the grantee besides his certain fee hath profits and avails by reason of his Office as the Office of Stewardship of Courts there the grantor cannot discharge him of his service or attendance for that should be to the prejudice of the grantee 22 H. 6. 10. 3. 6 E. 6. Dyer 72. Conditions in Law be of two natures i.e. by the Common Law and by Statute and those
disseisin c. mes la ley eÌ„ lou home ad droit dentr par case dâ—asc ' aut title c. Here is implyed abators or intrudors and not only their disseissors but the Feoffees or donees of disseissors abators or intruders or any other so long as the entry is cong and here title is taken in his large sense to include a right V Sect. 650. and 659. Si tenant in taile immediate puis tiel claime continua son occupation en les tenements ceo eÌ„ un disseisin c. a celuy que sist tiel claime sic par conseque le tenant adonques ad fee simple Sect. 430 431. The disseisee shall have an action of trespasse against the disseissor and recover his damages for the first entry without any regresse but after regresse â—e may have an action of trespasse with a continuando and recover as well for all the mean occupation as for the first entry and note that Littleton doth here include costs within dammages Ou il poit aver un breve sur lestat 5 R. 2. ca. 7. Supposant par son breve que son adversary avoit entry en les terres c. celuy que fist le claime c. par tiel action il recover ses dammages c. i.e. that he shall recover dammages for the first tortious entry but not for the mean profits though he made a regresse 37. H. 6. 35. 2 E. 4. 18. 21 E 4. 5. 74. 38. Ass 9. 44. E. 3. 20. 10. H 7. 27. Keilwey 1. b. And here note that also he shall recover his costs of suit 2 E. 4. 24. b. 9. E. 4. 4. b. 16. H. 7. 6. a. Fo. 257. a. One or more may commit a force three or more may commit an unlawfull assembly riot or rout A multitude is not restrained to a certain number but left to the discretion of the Iudges A writ of forcible entry is grounded upon the Statute of 8 H. 6. ca. 9. and lieth where one entreth with force or where he enters peaceably and detaineth it with force or where he enters by force and detaineth it by force and in this action without any regresse the plaintiffe shall recover treble dammages as well for the mean occupation as the first entry by force of the Statute and he shall recover treble costs also 3 E 4-19 24. F. N. B. 240. c. 11 E. 4. 11. b 6 H 7. 12. 22 H 6. 57 If three or foure goe to make a forcible entry albeit one alone use the violence all are guilty of force 10 H 7 1â— Note that there is a force implyed in Law as every trespass Rescous et disseisin implyeth a force and is vi et armis and there is an actuall force as with weapons number of persons c. and when an entry is made with such actuall force an action doth lie upon the said Statute Vide Sect. 240 54 H 6 20. Sect. 433. Qui per alium facit per seipsum facere videtur If an infant or any man of full age have any right of entry into any lands any stranger to the use of the infant c. may enter into the lands and this Reg. shall vest the lands in them without any commandment prâ—cedent or agreement subsequent But if a disseisor levy a fiâ—e with proclamation according to the Statute a stranger without a Commandment c. within the five yeers cannot enter in the name of the disseisee to avoid the fine and that resolution was grounded upon the construction of the Statute of 4 H. 7. ca. 24. But an assent subsequent within the five years should be sufficient omnis enim ratihabitio c. 7 E 3 69 11. Ass p 11 39. Ass p 18 10 H 7 12. a. 3 H 8. entry conque et faux recovery 29. lib. 9. fo 106 a. L. Audeleyes case 45 E 3. Release 18. and Breve 589 20 E 3. 62 par Thorp Sect. 434. Reg. it is true that where a man doth lesse than the commandment or authority committed unto him there the act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest Impotentia autâ—n excusat legem 1 H. 4 3. 12 Ass 24. 26. Ass 39 V. S 419. 46. E 3. petition 18. 33. H. 6. 8. Lex non permittit aliquod inconveniens Albeit the Recluse or Anchorite be shut up himself c. yet to avod a discent he must command one to make claim and such a recluse shall alwayes appear by Atturney in such cases where others must appear in proper person 43 E 3. 8. b. 30. a. Sect. 436. Quant home est in prison est disseise le disseisor mor feign c. The disseisee shall not be bound in this case for that by the intendment of Law he is kept without intellâ—gence of things abroad and also that he hath not liberty to goe at large to make entry or claim or seek counsell and so note a diversity between a Recluse who might have intelligence and a man in prison Pl. Com. 360. Stowels case But if he be disseised when he is at large and the discent is cast during the time of his imprisonment this discent shall bind him 9 H 7. 24. Vide lib. fo 259. a. Sect. 437. Si tâ—el que est en prison soit utlage en action de debt ou trespass ou en apucal de Robbery il reveria tiel utlage per bâ—eve de error Outlawries may be reversed either by plea or by writ of error By plea when the defendant commeth in upon the Caput utlagati c. he may by plea reverse the same for matters apparent as in respect of a supersedeas omission of processe varience or other matter apparent in the Record and yet in these cases some hold that in another term the defendant is driven to his writ of error 2 E 4. 1 4 E 4. 10. a 1 E 4. 73 11 H 7. 5 21 H 6. 50 9 H 4â— â—3 El. Dy. 192. 2 El. 176. 37. H 6. 19. But for any matters in fact as death imprisonment service of the King c. he is driven to his writ of error unlesse it be in case of felony and there in favorem vitae he may plead it But albeit imprisonment be a good cause to reverse an outlawry yet it must be by processe of Law in invitum and not by consent or covin for such imprisonment shall not avoid the outlawry because upon the matter it is his own act 8. H 4. 7 21 H 7. 13 39 H 6. 1 H 7. 1. 1 E 4. 2 27 H 8. 2 38. Ass p. 17. V S. 439. Sect. 438. Auxi si un recovery soit per default vers tiel que est en prison il avoidam le judgement per breve de error c. For he shall have no writ of discent because the summons was according to
law by summoners and vâ—iors and the land taken into the Kings hand by the Pernor Fleta l. 6. ca. 67 24. W. 2 ca. 48 4 E. 2. discent 51. Defalta is legally taken for non appearance in Court There be divers causes allowed by law for saving a mans default 1 By imprisonment 2. Per inundationem aquarum 3. Per tempestatem 4. Per pontem fractum 5. Per navigium substractum per fraudem petentis non enim debet quis se periculis infortuniis gratis exponere vel subjacere 6. Per minorem aetatem 7 Per defensionem summonitionis per legem 8. per mortem Attornati si tenens in temopre non novit 9 Si petens essionatus sit 10. Si placitum mittatur sine die 11. per breve de warr Dici 3 H. 6. 46. 38. E 3. 5. 12. H. 4. 13. 5 H 7. 3. F.N. B. 17. 4 H 5. challeng 153. Br. Saver defendant 45. Legally records are restrained to the Rolls of such only as are Courts of Record and not the Rolls of inferior nor of any other Courts which proceed not secundum legem consuetudinem Angl. Pl. 79. b. m. â— and 8. Dy. 242. 17 E 349 11. H 4. 26. b 2 H 6. 34 error Br. 73. 7 H 7. 4 19 Ass 7. l. 4. fo 52. Rawlins case Brit. cap. 17. l. 6. fo 11. Ientlemans case and 30. 45. lib 7. fo 30. l. 8. fo 60 b and 67. a. fo 260. a. During the term wherein any judiciall act is done the Record remaineth in the breast of the Iudges of the Court and in their remembrance and therefore the roll is alterable during that terme as the Iudges shall direct but when that terme is past then the Record is in the Roll admits no alteration averment or proofe to the contrary 7 H 6 2â— 19 H 6 6 If the Tenant or defendant be in prison hee shall upon motion by order of the Court be brought to the barre and either answer according to Law or else the same being Recorded the law shall proceed against him and he shal take no advantage of his imprisonment 18 El. Dy. 353. 3. m. Dy 12â— Pl. 232. Seignior Barkleyes case 16. H 7 11. b. 22. H 8 Record Br. 65 39. H 6 4 3 El. Dy. 187. lib. 6 fo 15. Edens case If a man in prison shall not be bound by a recovery by default for want of answer in Court of Record in a reall action which is matter of record à multo fort a discent in the Country which is a matter of deed shall not for want of claime bind him that is in prison Quod in minori valer valebit in majori quod in majori non valet nec valebit in minori 7 H 6 18 8 H 6 16. V.S. 418. A man in prison by processe of Law to be kept in salva arota custodia but yet Carcer ad homines custodiendâ—s non ad puniendos dari debet Sect. 439. If a man be upon the Sea aof England he is within the Kingdome of England c. And yet a tum mare is out of the jurisdiction of the Common Law and within the jurisdiction of the Lord Admiral 6 R 2 Protection 46. V. S. 1 8. 440 441. 677. And note Littleton saith not beyond the Sea or extra 4 Maria for a man revera may be infra 4. maria and yet out of the realme of England But infra 4. Maria or extra is taken by construction to be within the realm of England or dominions of the same 3 R. 3. continuall claim 13. 4. E 3. 46. If a man be out of the realm and a recovery is had against him in a praecipe by default it seemeth that he shall not avoid the recovery or by that meanes a man might be infinitly delayed of his freehold and inheritance whereof the Law hath so speciall regard and few or none go over but it is either of their own free will or by suit for what cause soever and he is not in that case without his ordinary remedy either by his writ of higher nature or by a quod ei deforcrat But outlawry in a personall action shall be avoided in that case quia de minimis non curat lex and otherwise hee should be without remedy V. S. 437. and note the diversity between that case of the imprisonment and this of being beyond Sea Fo. 260 b nota c Sect. 440. Excusatur quis quod clameum non opposuerit ut si â—ote tempore litigii fuit ultra mare quacunque occasione Veâ—us constans opinio Brac. l. 5 f 436. and 163. Brit fo 21 216. 26 H 8 c 18 5 and 6 E. 6 ca 11. By certifitate a thing done beyond Sea may be tryed F.N. B 196 29 Ass 11. l 7 f. 26 27. Calvins case Stat. 25 E 3 de proditionibus doth declare that it is treason by the common Law to adhere to the enemies of the King within the realme or without if he be thereof proveablement attaint of overt fact and that he shall forfeit all his lands c. Certain it is that for necessity sake the adherence without the realme must be alledged in some place within England and if upon evidence they shall find any adherency out of the realme they shall find the delinquent guilty 5 R 2 Tryall 54. 35 H. 8 ca 2 fo 261 b. * Dyer 360 contr * When part of the act especially the originall is done in England and parâ— out of the realme that part that is to be performed out oâ— the realme if issue be taken thereupon shall be tried heâ— by twelve men and those twelve shall come out of the plaâ—â— where the writ is brought for example it was convenantâ—â— by Indenture by charter party that a ship should Sail froâ— Blackney haven in Norf. to Muttrel in Spaine and there remaâ—â— by câ—rtain dayes 48 E 3 3 11 H 7 16 1 R 3 4. In an action of Covenant brought upon this Charteâ— party the Indenture was alleged to be made at Thetford Norfolk and upon pleading the issue was joyned whethâ—â— the said ship remained at Muttrel c. and it was adjudgâ— That this issue should be tryed at Thetford where the actiâ—â— was brought because there the Contract took his Originall c. P 28 El Constant Hughin Ban R l 6 fo 47 Dowdales Case An Obligttion made beyond the Seas may be sued here in England in what place the Plaintiff will 2 E 2 Oblig 15 Whether Bourdeaux in France be in Islington or no is not traversable Vide fo 261. b. If a man be disseised before he go over Sea or cometh into the Realm again before the discent the discent shall take away his entry Sect 441 By the Statute of 4 H 7 cap 34 five years after Proclamations made upon the Fine are given to him that right hath to make his claim or pursue his action where the Common Law gave him but a
in tail to A. the remainder to his right heirs A. dyeth without issue the Collaterall heir of A. shall have a writ of right of the seisin of A. 4. E. 3. 16. 17. And so note a diversity between a seisin to cause posses fratris c. for there is required a more actuall seisin and a seisin to maintain a writ of right 40. E. 3. 8. 42. E. 3. 20. 37. Ass 4. 14. E. 4. 24. 7. H 5. 4. 11. H. 4. 11. Sect. 483. 484. Note a diversity where the issue taken goeth to the point of the writ or action there modo and forma are but words of form as in Littletons case of the writ of entry in casu proviso and so is the c. well explained in this Section But otherwise it is when a collaterall point in pleading is traversed as if a feoffment be alleadged by two and this is traversed modo and forma and it is found the feoffment of one there modo and forma is materiall So if a feoffment be pleaded by deed and it is traversed absque hoc quod feoffavit modo forma upon this collaterall issue modo forma are so essentiall as the Jury cannot find a feoffment without deed 9. H. 6. 1. 40 E. 3. 35. 21. E. 3. 4. 22. F.N.B. 205. 206. g. 40. E. 3. 5. 32. H. 8. issue Br. 80. 12. E. 4. 4. Here is another diversity to be observed that albeit the issue be upon a collaterall point yet if by the finding of part of the issue it shall appear to the Court that no such action lieth for the plaintiffe no more then if the whole had been found there modo forma are but words of forme as here in the case which Littleton putteth of the Lord and Tenant appeareth 10. E. 4. 7. 8. E. 4. 15. 20. and 21. E. 4. 3. Merlbr cap. 3. If the matter of the issue be found it is sufficient and this rule holds in criminall causes Pl. Com. 101. v. 6. E. 3. 41. b. 9. H. 7. 3. 13. H. 7. 14. 8. E. 3. 70. 8. Ass 29. 39. 5. H. 4. 22. 7. H. 4. 11. Pl. Com. 92. 3. Mar. Dyer 115. 116. 40. E. 3. 35. 31. E. 3. account 58. 28. Ass 48. The lessee covenants with the lessor not to cut downe any trees c. and binds himself in a bond of 40. l. for performance of covenants the lessee cuts down ten trees the lessor brings an action of debt upon the bond and assigneth a breach that the lessee cutteth down twenty trees whereupon issue is joyned and the Jury find that the lessee cut down ten judgment shall be given for the Plaintiff for sufficient matter of the issue is found for the Plaintiff Sect. 485. 486. An assault battery or taking of goods c. alledged in another county cannot be traversed without speciall cause of justification which extendeth to some certain place as if a Constable of a Town in another county arrest the body of a man that breaketh the peace there he may traverse the county but he must not rest there but all other places saving in the Town whereof he is Constable And so it is of taking of goods the Defendant justifies for damage feisant in another county he must as before traverse But where the cause of the justification is not restrained to a certain place that is so locall as it cannot be alledged in any other Town c. then albeit the action be brought in a forraigne county yet he must alledge his justification in the county where the action is brought In an action upon the case the Plaintiff declared for speaking of slanderous words which are transitory and laid the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the counties of England saving in London and traversed the speaking of the words in London the Plaintiff in his Declaration denied the concord whereupon the Defendant demurres and Judgment c. for the Plaintiff Tr. 30. El. Kings Bench. Inglebert and Jones Com. Pleas. Pasche 38. El. Rot. 1656. It is an ancient Principle in Law That for transitory causes of action the Plaintiff might alledge the fame in what place or County he would It is better that it be turned to a default then the Law should be changed or any innovation made 2. H. 4. 18. 38. E. 3. 1. A man did grant a rent that the grantee should hold the distress against gages and pledges and yet he shall gage delivery for otherwise by this new invention all Replevins shall be taken away 4. E. 3. cap. 5. 4. H. 4. cap. 2. Where the Jury is bound to find as well locall things in many cases as transitory in other Counties Vide lib. 6. fol. 46. Dowdales Case 3. E. 3. Ass 446. 14. H. 4 35. 5. H. 5. 2. 37. H. 6. 2. 7. E. 4. 45. 18. E. 4. 1. 13. H. 7. 17. 2 Mar. Br. att 104. 20. El. Dyer 171. 19. H. 6. 48. 28. H. 8. Dyer 29. 12. H. 8. 1. Reg. by the Common Law if the Defendant hath cause of justification or excuse then can he not plead Not guilty for then upon the evidence it shall be found against him for that he confesseth the battery and upon that issue cannot justifie it but he must plead the speciall matter and confesse and justifie the battery If in battery the Defendant may justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall issue and so of the like In trespasse of breaking his close upon Not guilty he cannot give in evidence that the beasts came through the Plaintiffs hedge which he ought to keep nor upon the generall issue justifie by reason of a rent charge common c. 25. H. 8. Br. In Detinue the Defendant pleaded non detinet he cannot give in evidence that the goods were pawned to him for money and that it is not paid but must plead it but he may give in evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods 22. H. 6. 33. 20. El. Dyer 276. 2. M. Dyer 212. If two men be bound in a bond joyntly and the one is sued alone he may plead matter in abatement of the Writ but he cannot plead Non est factum for it is his Deed though it be not his sole deed lib. 5. fo 119. Whelpdales case vide c. fo 283. a. Reg. whensoever a man doth any thing by force of a Warrant or Authority he must plead it But all that hath been said must be under two cautions 1. That whensoever a man cannot have advantage of the speciall matter by way of pleading there he shall take advantage of it in the evidence For example the Rule of Law is That a man cannot justifie in the killing or death of a man and therefore he shall be received to give the especiall matter in evidence as that it
le Baron soit seisee de cert terre en droit sa feme fait feoffement in fee sur Condition devy c. When the heir in this case hath entred for the Condition broken and hath avoided the feoffment the estate of the heir vanisheth away and presently the estate vesteth in the feme or her heirs without any Entry or Claim by her or them for the heir enters in respect of the Condition upon the reall Contract and not of any right and if the husband himselfe had re-entred the state had vested in his Wife And therefore where Littleton and our Books say That the wife shall enter upon the heir the meaning is That after the re-entry of the heir she may enter 4 H. 6. 2. 9 H 7. 24. b. l. 8. f. 43 44. Whittinghams Case Sect. 633. Fo 337. b. If the husband within age take a wife feme Tenant in Tail generall and the husband make a gift in Tail and dyeth within age in this case the wife may enter as Littleton here holdeth or the heir of the husband in respect of the new reversion descended unto him may enter But if the heir enter presently thereupon his estate vanisheth If husband and wife be both within age and they by deed indented joyn in a Feoffment reserving a rent the husband dyeth the wife may enter or have a Dum fuit infra aetat But if she were of full age she shall not have a Dum fuit infra aetat for the Non-age of her husband albeit they be but one person in Law 14 E. 3. Breve 282. 14 E. 3. Dum fuit c. 6. F. N B. 892. Sect. 634. 2. Joyntenants estant deins age fontun feoffment in fee lun de les infants devy celuy que survesquist poit enter en bentierly c. For that they may joyn in a Writ of Right and therefore the Right shall survive But they cannot joyn in a Dum fuit infra aetat because the Nonage of the one is not the Nonage of the other 21 E 3. 50. 18 E. 2. Breve 831. 6 E. 3. 4. 9 H. 6. 6. 19 H. 6. 6. 39 H. 6. 42. 34 H 6. 31. In this case if one joyntenant had made a Feoffment in fee and dyed the right should not have survived for the joynture was severed for a time If two joyntenants be and the one is of full age and the other within age and both they make a Feoffment in fee and he of full age dyeth The Infant shall enter or have a Dum fuit c. but for the moity Sect. 635. Fol. 337. b. Serroit encounter reason que un feoffment fait per celuy que ne fuit able de faire tiel feoffment greevara ou ledare auter de toller eux de lour entre c. Meliorem facere potest minor condic ' deteriorem nequaquam Bract. fo 14. Brit. f. 88. a. Nota a speciall heir shall take advantage of the infancy of the Ancestor As if Tenant in Tail of an acre of the Custome of Borough English make a Feoffment in fee within age and dyeth the yongest Son shall avoid it for he is privy in blood and claimeth by Discent from the Infant And so note that a cause to enter by reason of infancy is not like to Conditions Warranty and Estoppels which ever descend to the heir at the Common Law Sect. 636. Fol. 338. a. Note there be 3 kinds of Surrender viz. a Surrender properly taken at the Common Law which is a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutuall agreement between them 2. A Surrender by Custom of Lands holden by Coppy or of Customary estate vide Sect. 74. homo com gen ** And 3. A Surrender improperly taken vide S. 550. of a Deed. And so of a Surrender of a Patent and of a rent newly created and of a fee simple to the King 2 El. Dyer 176. 14 H. 7. 3. 27 Ass 37. 49 E. 3. 2. 11 H. 4. 2. 12 H. 4. 21. 13 H. 4. 13. And a Surrendr properly taken is of two sorts viz. 1 A Surrender in Deed by expresse words whereof Littleton here putteth an Example and he putteth his case of a Surrender of an estate in possession for a right cannot be sureendered 2. A surrender in Law which in some cases is of greater force then a Surrender in Deed. As if a man make a lease for years to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may drown but by a surrender in Law it may be drowned As if the Lessee before Michaelmas take a new lease for years either to begin presently or at Michaelmas this is a surrender in Law of the former lease Fortior et aequior est dispositio legis quam hominis 14 H. 8. 15. 50 E. 3. 6. 44 Ass 3. 35 H. 8. Dyer 37. 8 Ass 20. 4 M. Dyer 141. 11 El. Dyer 280. 21 H. 7. 6. 14 H 7. 4. li. 6. fo 69. Sir Moyl Finches Case Also there is a Surrender without Deed whereof Littleon putteth here an Example of an estate for life of lands And also there is a Surrender by Deed and that is of things that lie in grant 16 H. 6. 33. 27 Ass 46. 14 H. 7. 4. 1 H. 6. 1 Pl. Com. 541. And albeit a particular estate be made of lands by Deed yet may it be surrendred without Deed in respect of the nature and quality of the thing demised because the particular might have beene made without Deed. and so on the other side If a man be * Tenant by the Curtesie or Tenant in Dower of an Advowson Rent or other thing that lies in grant albeit the estate begin without Deed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without Deed. And so if a lease for life be made of lands the remainder for life albeit the remainder for life began without Deed yet because remainder and reversions though they be of lands are things that lie in grant they cannot be surrendred without Deed. Qu. fi le fits la feme poit enter c. It is holden of some That after the surrender the issue in Tail during the life of Tenant for life may enter for that having regard to the issue the state for life is drowned and consequently the inheritance gained by the lease is by the acceptance of the surrender vanished and gone as if Tenant in Tail make a lease for life whereby he gaineth a new reversion if Tenant for life surrender to the Tenant in Tail the estate for life being drowned the reversion gained by wrong is vanished c. and he is Tenant in Tail again against the opinion Obiter of Portington 21 H. 6. 53. vide lib. fo 338. b. Mes il nost rien a
faire pur ceo que tout le matter est icy transcribe verbatim But herein are two diversities Notable The first is that having regard to the parties to the surrender the estate is absolutely drowned as in this case between the lessee and the second Baron But having regard to strangers who were not parties or privies thereunto lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender the estate surrendred hath in consideration of Law a Continuance As if a reversion be granted with Warranty and Tenant for life surrender the grantee shall not have execution in value against the grantor who is a stranger during the life of Tenant for life for this surrender shall work no prejudice to the grantee who is a stranger 45 E. 3. 13. 5 H. 5. 9. 9 E. 4. 18. So if Tenant for life surrender to him in reversion being within age he shall not have his age for that should be a prejudice to a stranger who is become Demandant in a real action 40 E. 3. 13. 1 H. 6. 1. 24 E. 3. 77. If Tenant for life grant a rent charge and after surrender yet the rent remaineth for to that purpose he cometh in under the Charge 5 H. 5. 8. 26 Ass 38. 7 H. 6. 1. b. If a Bishop be seised of a rent charge in fee the Tenant of the land infeoff the Bishop and his successors the Lord enter for the Mortmain he shall hold it discharged of the rent for the entry for the Mortmain affirmeth the alienation in Mortmain and the Lord claimeth under his estate but if Tenant for life grant a rent in fee and after infeoff the grantee and the lessor enter for the forfeiture the rent is revived for the lessor doth claim above the Feoffment But if I grant the reversion of my Tenant for life to another for term of his life and Tenant for life attorn now is the waste of Tenant for life dishpunishable 48 E. 3. 16. Afterwards I release to the grantee for life and his heirs or grant the reversion to him and his heirs now albeit the Tenant for life be a stranger to it yet because he attorneth to the grantee for life the estate for life which the grantee had shall have no continuance in the eye of Law as to him but he shall be punished for Waste done afterwards The second diversity is That for the benefit of an estranger the estate for life is absolutely determined As if he in the reversion make a lease for years or grant a rent charge c. and then the lessee for life surrender the lease or rent shall commence maintenance So in the case of Littleton first between the lessee and the second husband the state for life is determined And 2. for the benefit of the issue it shall be so adjudged in Law Here note a diversity when it is to the prejudice of a stranger and when it is for his benefit If a man make a lease to A. for life reserving a rent of 40. s. to him and his heirs the remainder to B. for life the lessor grant the reversion in fee to B. A. attorneth B. shall not have the rent for that although the fee simple do drown the remainder for life between them yet as to a stranger it is in esse and therefore B. shall not have the rent but his heir shall have it A Master of an Hospital being a sole Corporation by the consent of his Brethren makes a lease for years of part of the possession of the Hospital afterwards the lessee for years is made Master the term is drowned for a man cannot have a term for years in his own right and a Freehold en auter droit to consist together as if a man lessee for years take a feme lessor to wife But a man may have a Freehold in his own right and a term in auter droit and therefore if a man lessor take the feme lessee to wife the term is not drawned but he is possessed of the term in her right during the Coverture 6 H. 4. 7. Pl. Com. 419. So if the lessee make the lessor his executor the term is not drowned 32 H. 8. Br. Surr. 5. 2. But if it had been a Corporation aggregate of many the making of the lessee Master had not extinguished the term no more then if the lessee had been made one of the Brethren of the Hospital Sect. 637. Fo. 339. a. Nota que un estate tail ne poit este discont mes la ou cestuy que fait discont fuit un foitâ— seisee quia omnis privatio praesuppoâ—it habitum perforce de la tail sinon que foit per reason de garrantie c. for in many cases a Warranty added to a Conveyance is said to make a Discontinuance ab effectu because it taketh away the entry of him that right hath as a Discontinuance doth As if Tenant in Tail be disseised and dyeth the issue in Tail releaseth to the disseisor with Warranty c. 9 E. 4. 19. 12 E. 4. 11. 21 E. 4. 97. Vide Sect. 592 596 597 601 640 658. Sect. 642. Fo. 340. b. Albeit the reversion in this case be executed in the Lord by the Escheat in the life of Tenant in Tail yet because he is not in by the Tenant in Tail but by Escheat it worketh no discontinuance But if it had been executed in the life of Tenant in Tail in the grantee which was in by Tenant in Tail then the Lord by Escheat should have taken advantage by it Vide Sect. 620. lib. 1. fo 136. lib. 2. fo 62 63. Sect. 643 644 645. In whom the fee simple of the Gleab c. is is a question in our Books Some hold that it is in the Patron 8 H. 6. 24 12 H. 8. 8. But that cannot bt for two Reasons 1. For that in the beginning the Land was given ro the Parson and his successors and the Patron is no successor 2. The words of the Writ of Juris utrum be Si sit libera Eleemosyna ecclesiae de D. and not of the Patron Reg. 307. a. 45 E. 3. Eschang 12 H. 8 9. Some others do hold That the fee simple is in the Parson and Ordinary F N B 19. I. But this cannot be for the causes abovesaid and therefore of necessity the fee simple is in abeiance as Littleton saith Upon consideration of all our Books I observe this diversity That a Parson or Vicar for the benefit of the Church and of his successor if in some cases esteemed in Law to have a fee simple qualified but to do any thing to the prejudice ofs successors in many cases the Law adjudgeth him to have in effect but an estate for life Causae Ecclesiae publicis causis aequiparantur summa ratio est quae pro religione facit Bract. lib. 3 f. 226. Et Ecclesia fungisur vice minoris meliorem facere potest
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
6. 1. F.N.B. 107. For if an Ass be taken by default a quod ei deforceat doth lye and yet the party may have an Attaint for this is no enquest of Office but a Recognition by the Recognitors of an Ass who were returned the first day and not returned upon the awarding of the Ass by default 17 E. 2 Attaint 69. 21 H. 6. 56. 34. H. 6. 12. As to the 3. Ob. That the damages should be the principal because they were at the common Law that is an Argument that they are more ancient but not that they are more principal and treble dammages were not at the common Law for the common Law never giveth more dammage than the losse amounteth unto but are given by the Statute of Glocester but the place wasted is worthier being in the realty then dammages that be in the personalty Et omne majus dignum trahit ad se minus dignum quamvis minus dignum sit antiquius à digniori fieri debet denominatio and it is confessed That in an action of waste against Tenant for life or for years the place wasted is the principal because the statute of Glocester doth give the place wasted and treble dammages at one time for no prohibition or action of waste lay against them at the Common Law and in an action of waste 34 H. 6. 7. waste 50. And in an action of waste if the defendant confesse the action the plaintiffe may have judgement for the place wasted and release the damages which proveth that the damgas are not the principal for a man shall never release the principle and have judgement of the Accessory and an action of waste against Tenant for life is as reall as an action a-against Tenant in Dower and as to the case of 9 H. 5. It was answered that it was an action in the Tenuit which is only in the personalty and then the release of one doth barre both neither could summons and severance lye in that case but in an action of wast in the Tenet either against Tenant for life or yeers the release of the one doth not bar the other and in those two cases Summons and severance doth lye 6 E. 3 47. 48. E. 319. But when these 3. parts were resolved by the Court for the demandant then the counsel of the Tenant moved in arrest of judgement another point viz. That the judgement was given upon a nihil dicit which is alwayes after appearance and not per defaltam and there upon judgement was stayed But to return to Littleton Here he openeth a secret of Law for the cause of this Remitter is for that the Tenant for life in this case might have a quod ei deforceat And the Tenant for life at the common Law was remedilesse because he could not have a writ of right and consequently the feme Covert in this case could not be remitted by the taking of an estate to her husband and her because her right was remedilesse and could have no action But when an act of Parliament or a custome doth alter the reason c. thereby the Common Law it self is alterd if the Act of Parliament and custome be pursued for Alterata causa ratione legis alteratur lex cessante causa ratione leg cessat lex as in this case the statute of W. 2. giving remedy to this feme Tenant for life in this case it giveth her ability to be remitted c. 14 H. 7 11. per Fineux 27 H. 8. 4. 6. Aid 35 H. 6. gard 72. 29 E. 3. per wilbie custome l. 3. fo 86. Justice Windhams cases And Littleton warily puteth his case That the Recovery was had against the feme while she was sole for there was a time when it was a question whether a Recovery being had by defalt against the husband and wife the wife being Tenant for life the said statute gave a quod ei deforceat to the Husband and wife for that the statute gave it a gainst Tenant in Dower and Tenant for life c. and here the Husband is not Tenant for life but seised in the right of his wife and therefore out of the statute and of this opinion is one book * But Apices juris non sunt jura parum differunt quae re concordant * 4. E. 3. 38. 33. E. 3. Avowry 255. The contrary hath been adjudged and so that point is now in peace 5. E. 3. 4. 33. E. 3. 255. F.N.B. 156. a. 5. E. 3. 5. 2. E. 4. 13. F.N.B. 156. c. 33. H. 6. 46. 2. E. 4. 11. 19. E. 4. 2. And the like in case of Resceit for him in reversion But if the husband lose by default and the husband die the wife shall not have a quod ei deforceat for a cui in vita is given to her in that case by a former statute viz. W. 2. ca. 3. These things are worthy of due observation c. and Littleton in our books of another kinde of quod ei deforceat at the common Law upon a disseisin Fo. 356. a. When the reversion is devested the lessor cannot have an action of waste because the Writ is That the Lessee did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought And Nota That in an action of waste brought by the lessor against the lessee the Lessee in respect of the privity cannot plead generall * riens en le reversion But he must shew how and by what means the reversion is devested out of him and this holdeth between the lessor and lessee but if the grantee of a reversion bring an action of waste the lessee may plead generally That he hath nothing in the reversion 45. E. 3. 21. 44. E. 3. 34 35. F.N.B. 60. 23. H. 8. waste Br. 138. * 45. E. 3. 20. 8. H. 6. 13 30. H. 6. 7. And yet in some speciall cases an action of waste shall lie albeit the lessor had nothing in the reversion at the time of the waste done As if Tenant for life make a feoffment in Fee upon condition and waste is done and after the lessee reenter for the condition broken in this case the lessor shall have an action of waste And so if a Rishop make a lease for life or yeers and the Bishop die the lessee the Sea being void doth waste the successor shall have an action of waste So if Lessee for life be disseised and waste is done the lessee reenter an action of waste shall be maintained against the lessee and so in like cases Here note that albeit the action be false and feigned yet is the recovery so much respected in Law as it worketh a discontinuâ—â— But if Tenant for life suffer a common recovery or any other recovery by covin and consent between the Tenant for life and the recoverer this is a forfeiture of his estate and he in the reversion may enter c. 5. Ass p. 3.
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the