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
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
the Outlawry then may the Outlawry be plead in Bar of the action as in an action of debt detinue c. But in reall actions or in personall where damages be incertain as in trns. of Battery of goods of breaking his cloâ—e c. and are not forfeited by the outlawry their outlawry must be pleaded in disability of the person 9 Eliz. Dyer 262. 7 H. 4. 4. b. l. 5. 109. Foxleyes C. In the reign of King Alfred and after the Conquest no man could have been outlawed but for Felony the punishment whereof was death Mir. c. 1. S. 3. Vtlagatus waiviata capita gerunt Lupina quae ab omnibus impunè poterunt amputari merito enim sine lege perire debent qui secundum legem vivere recusant Fleta lib. 1. cap. 27. But now the Law is changed for avoyding of inhumanity c. Vide 2 Ass Pl. 3. 2 E. 3. tit Coron 148. In Bractons time and somewhat before process of outlawry was ordained to ly in all actions that were qu. vi armis which Bracton calleth delicta for there the King shall have a fine But since by divers Statutes Process of outlawry doth ly in Account Debt Deâ—inue Annuity Covenant Action sur le Case Action sur le Statute De 5 R. 2. and in divers other common or civill actions Bract. lib. 5. fo 421. 8 H. 6. 9. b. 40 E. 3. 5 c. 35 H. 6. 6. 40 E. 3. 2. Sect. 198. If an alien had issue in English before his denization that issue is not inheritable to his Father but if his Father be naturaliz'd by Parliament such issue shall inherit Ligeantia est vinculum fidei ligeantia eÌ„ legis essentia Et est duplex 1 Perpetua ista ligeantia est aut nata aut data 2 Temporanea quae eÌ„ aut localis aut limitata sc denizatio pro vita c. Vide libr fo 129. a. A man may be born out of the realm of England yet within the legeance as in Ireland c. An alien that is in league shall maintain personall action for an alien may trade c. but not reall or mixt actions An alien that is condemned in an information shall have a Writ of error to relieve himself sic c. If an alien be made a Prior or Abbot the Plea of Alien nee shall not disable him to bring any reall or mixt action concerning his house because he is in auter droit 29 E. 3. Br. Denizen 15. Sic vide diversitat In Littletons Case the tenant or defendant shall neither plead alien nee to the Writ or to the action but in disability of the person as in villenage or outlawry and Littleton is to be intended of an Alien in league for if he be an Alien enemy the defendant may conclude to the action Liure de entries Alien 1. Sect. 199. The judgment in a Praemunire is that the defendant shall be from thenceforth out of the Kings protection his lands and tenements goods and chattels forfeited to the King and that his body shall remain in prison at the Kings pleasure And a man might doe to him as to the Kings enemy and a man may lawfully kill an enemy 24 H. 8. Brook Coron 196. But by the Statute 5 Eliz. ca. 1. It is not lawful for any person tn slay any person attaint in praemunire c. Tenant in taile attaint in a praemunire shall forfeit the Land but during his life Vide lestat 16 R. 2. c. 5. There be three things whereby every subject is protect viz. Rex lex rescripta regis The law is the rule but it is mute The King judgeth by his Judges and they are lex loquens The process and the execution which is the life of the Law consisteth in the Kings Writs Rex tuetur legem lex tuetur jus A man attainted of Treason or Felony is disabled to bring any action for he is extra legem positus and accounted in Law civiliter motuus 4 E. 4. 8. There is a generall protection of the King and this extends to all the Kings loyall subjects c. and there is a particular protect by Writ c. And this is of two sorts one to give a man immunity from actions or sutes The second for the safety of his person servants and goods lands c. from unlawfull molestation or wrong The first is of right and by law the second are all of grace saving one for the generall Protection implieth as much Of the first sort some are cum clausula volumus and of these protections There be four kinds viz. 1 Quia profecturus 2 Quia moraturus 3 Quia indebitatus nobis existit of the matter 4 When any sent into the Kings service in war is imprisoned beyond Sea The former two are for staying of suits and actions in generall and for these nine things are to be observed 1 The cause of granting the protect must be expressed c. and it is of two natures the one concerns service of war as the Kings Souldier c. The other wisdome and counsell as the Kings Ambassador pro negotiis regni both these being for the publique good of the Realme private mens actions and suits must be suspended for a convenient time for jura publica anteferenda privatis jura publica ex privatis promiscue decidi non debent A man in execution in salva custodìa shall not be delivered by a protection 5 Mar. 162 Dyer 2 These protections are not allowable onely for men of full age but for men within age and for women as necessary attendants upon the Camp and that in three Cases quia lotrix seu nutrix seu obstetrix 19 H. 6. 51. Vide libr. qu. fo 130. a F. N.B. 28. l. Corpor. aggreg of many are not capable of protect profecturae or moraturae for the Corpor. it is invisible In every action or plea reall or mixt against two c. a protection cast for the one doth put the plea without day for all as in debt c. 9 E. 3. Prot. 80 81. 3 A protect profecturae must not be purchased pendente plito unless it be in a voyage royall But otherwise it is of a protect Moraturae 3 H. 6. prot 2. A protection cannot be cast but when the party hath a day in Court and when if he made default it should save his default c. 4. 6 H. 22. If a man hath a protection and notwithstanding plead a plea yet at another day of continuance after that a protection may be cast so at a day after an exigent but after appearance he cannot cast a protection in that terme untill a new continuance be taken * 22. F. 3. 4. And no protect either Profect or Morat shall endure longer than a year and a day next after the reste or date of it 39. H. 6. 39. * 4. The protection must be to some certaine place out of the Realm of England Lib.
use of the infant for the State is voidable But where an infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the estare in the Infant or other disseisee So it is if Tenant for life make a Feoffment in fee an estranger may enter for a forfeiture in the name of him in the reversion and thereby the estate shall be vested in him P 39. El. Com Banco per Cur. 10. H 1. 16 7. E 3. 69 6. E 3. 6â— peâ— Thorp If the Mulier enter upon the Bastard and the Bastard recover the land in an Ass against the Mulier now is the interruption avoided and if the bastard die seised this shall barre the Mulier The possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised 2. Ass 9. fo 245. b. Vide c. And note that the bastard must enter in vacuam poss and continue during his life without interruption made by the Mulier Acts without words may make an entry but not words without an act viz. an entry c. Pl. 91. Parson de Honiâ—awes case 35. H 6. 24. 1 E 3. 21 E 4. 3 21. E 4. 5. 5. E 60 21. H. 6. 9. Sect. 402. Null laches ser adjudge en un Infant lou discent è eschue durant son nonage 33. E 3. qu. imp 46. But in some other cases Laches shall prejudice an infant as if he present not to a Church within six moneths for the Law respecteth more the priviledge of the Church that the cure be served than the priviledge of Infancy and so the publike repose of the Realm concerning mens Freeholds and inheritance shall be preferred before the priviledge c. in case of a Fine where the time begins in the time of the Ancestor Pl. 372. So non-claime of a villeine of an infant by a year and a day who hath fled into Ancient demesne shall take away the seisure of the infant and if an infant bring not an appeal of the death of his Ancestors within a year and a day he is barred of his appeal for ever for the law respects more liberty and life than the priviledge of infancy and note that Littleton putteth his case that an Infant shall enter upon a discent when a stranger dyeth seised but he put it not so before in the case of the Bastardeigne B. Tenant in taile infeoffes A. in fee A. hath issue within age and dyeth B. abateth and dieth seised the issue of A. being still being within age this discent shall bind the infant for the issue in taile is remitted and the Law doth more respect ancient right in this case than the priviledge of an infant that had but a defeasible estate 11. E. 4. 1. 2. F.N.B. 35. 35 m And it is said if the Kâ—ng dieseised of lands and the land discend to his successor that this shall bind an Infant for that the priviledge of an infant in this case hold not against the King 35. H. 6. 60. Fo. 246. a. Sect. 403. Si bar feme come en droit sa feme ont title droit denter c. Tenant delterre mor. seisie c. These words are generall but are particularly to be understood viz. when the wrong was donâ— to the wife during the Coverture for if a feme sole be seised of lands in fee and is disseised and then taketh husband in this case the husband and wife as in the right of the wife have right to enter yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband and the reason is as wel for that she her self when she was sâ—â—e might have entred recontinued the pâ—ssession as also it shall be accâ—unted her folly that she would take such a husband which would not enter before the discent 9 H 7. 24. a. 2 E 4 25. 7 E. 4. 7. b. 15. E. 4 Discent 30. Negligentia semper habet infortunium comitem Laches le baron ne turnara la feme c. al prejudice Note a diversity albeit reg No Laches shall be accounted in infants or feme Coverts as is aforesaid for not entry or claime to avoid discents yet Laches shall be accounted in them for no performance of a condition anexed to an estate of land For if a feme be infeoffed either before or after marriage reserving a rent and for default of payment a re-entry Iâ— that case the Laches of the baron shall disherit the wife forever 20. H. 6. 28. b. And so it is of an Infant his Laches for not performing of a condition anexed to a State either made to his Ancestor or himselfe shall bar him of the right of the Land for ever 31. Ass p. 17. 42. E. 31. Pl Com. 55. 10. H. 7. 13. H. 7. 35. H. 6. 41. Pl. 136. b. Pleta lib. 2. ca. 50. If a man make a Feoffment in fee to another reserving a rent and if he pay not the rent within a month that he shal double the rent and the Feofee dyeth his heire within age the Infant payeth not the rent he shall not by this Laches forfeit any thing But otherwise it is of a feme covert and the reason of this diversity is for that the Infant is provided for by the Statute Non current usurae contra aliquem infra aetatem existen c. Stat. Mert. ca 5 But that Statute doth not extend to a condition of a re-entry which the Infant ought to performe c. Sect 405 If an ideot make a Feoffment in fee he shall in pleading never avoid it c. But upon an office found for the King the King shall avoid the Feoffment for the benefit of the Ideot whose custody the Law giveth to the King 3â— H 42 b Abb 5 E 3. â—0 Brit. c 28 fo â—6 25 Ass p 4 35. Ass p 10 32. E 3 scire fac 1â—0 Stanf. pr â—4 Vpon all which books there have been four severall opinions concerning the alienation or other act of a man that is non compos mentis â—c 1. That he may avoid his own act by entry or plea. 2. That he may avoid it by writ and not by plea. 3. That he may avoid it either by plea or by writ and of this opâ—nion is Fitzh in his N B 202. And 4. Littleton here is of opinion that neither by plea not by writ nor otherwise he himselfe shall avoid it but â—is heire in respect his Anc. was non comp c shall avoid it by entry plea or writ for it is a maxime of the Common Lawes that the party shall not disable himselfe Lib. â— fo 126 127. Beverlâ—es case But this holdeth onely in civill causes for in criminal causes as felony c. the act of wrong of a mad man shall not be imputed to him for that in those causes actus non
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