SOME NEW CASES OF THE Years and time of King Hen. 8. Edw. 6. and Qu Mary Written out of the Great Abridgement Composed by Sir ROBERT BROOK KNIGHT c. There dispersed in the Titles but here collected under years And now Translated into English by JOHN MARCH of Grays-Inn Barrister All which said Cases are by the Translator Methodised and reduced Alphabetically under their proper Heads and Titles With an exact Table of the principall Matter contained therein London Printed by T. N. for Richard Best and John Place and are to be sold at Grays-Inn gate and Furnivals Inn-gate in Holborn 1651. To the READER READER WHEN I considered what great care our Parliament had taken of the publick good in enacting our Laws to be translateâ— into English theâ—â— which certainly nothing more equall that the people might in some measure instruct themselves in that to which they are bound to obedience and of which by the Law it selfe they cannot nor must not plead ignorance And when I had likewise considered the excellent and most usefull Law that is contained in this little volume called Petty Brock I thought it a labour servicable to the publick to Translate it which I here present you in your own Language make use of it and you will finde Magnum in parvo great benefit in this little work and I doubt not give him thanks for it who is ambitious of nothing more then to be yours and the Common-wealths most Faithfull Servant Jo MARCH THE TABLE Abridgment page 1 DAmages increased after issue and verdict upon it page 1 Costs ibid Acceptance Lease of a Tennant for life is void by his death 1 Void and voidable Lease diversity 2 Acceptance by the issue in Taile of the second Lessee ibid Privity ibid Diversity ibid Apportionment ibid Acceptance by him in remainder ibid Acceptance by the successor of a Bishop ibid Payment at another place 3 Action Popular 3 Within the yeer ibid Action upon the Case 3 Mill 4 Where an Action upon the Case lies where not diversity ibid Delivery of goods traversed in detinue ibid Negat Pregnans ibid Action upon the Case for calling a man perjured ibid Action upon the Case for caling him perjured and justification in it ibid Of his own wrong 5 Bar in an Action upon the Case by Law wager in det ibid Plea to avoid double charge ib Travers ibid Action upon the Case upon finding of goods 6 Evidence ibid Action upon the Case upon a devenerunt to the hands of the defendant ibid Evidence ib Place in an Action upon the Case Assumpsit is not local 7 Place in det is not traversable ib Action upon the Case against executors ib Not guilty a good plea in an Action upon the Case and where not 8 Hiis similia in an Action upon the Case ib Action upon the Case upon trover ib The conversion to use traversed ib Evidence ib Action upon the Case for not payment of marriage money 9 Action upon the Statute His freehold no plea in an Action upon the statute ib Upon the statute of 5. R. 2. his freehold ib Avowing upon the statute and by common Law 10 Diversity ib Disclaimer ib His freehold is an Action upon the statute of 5. R. 2. ib Disseisor ib Accompt 10 Account against disseisors ib Privity necessary ib Account against a GardJan ib Pleading ib Adjournment 11 Cause and place of Adjournment ib Demurrer ib Dubious verdict ib Forreign Plea ib Certificate ib Administrators ibid Administration committed pending the writ ib Who shall commit administration vacate ib Episcopatu ib Relation ib Power and interest certain diversity 12 Who shall be said proximo de sanguine to take letters of administration by the statute ib Civil Law the law is since adjudged otherwise 13 See Ratcliffes Case my Lord Cook ib Land which is a Chattel shall by office 14 Age 14 Arreares of rent â—orâ— of Annuity and damage ib Diversity ib Scire fac against the heir ib Thing real and thing personal diversity ib Avowry ib Costs ib Where debt lies and where a scire fac 15 Diversity ib Where the King shall have his age where not ib Age of a parson prebend c. 10 Alienations ibid Where the heir within age shall be in ward where not ib Alienation by Tenant in Fee and by Tenant in taile diversity ib Relation of an office diversity 17 Fine for alenation intrusion licence to alien inmortmaine ib Variance from the licence ib Fine levyed ib Averment ib Two Joyntenants the one releases to the other diversity 18 Fine upon release upon conuâ—ance of his right c. diversity ib Estoppel ib Licence to Alien for life ib Burgage tenure ib Devise is an Alienation ib Alien see Tit. Denizen 18 Alien 19 Alien purchase ib Office ib Information ib The King shall have a Lease for yeers 20 Purchased by an Alien ib Amendment ibid Variance amended after judgment ib Amendment after a writ of error came to the common Bench ib In what thing the King shall amend his declaration in another term 21 Appeal ibid Not guilty in an appeal ib Se defendendum ib Evidence ib Justifie ib Indictment before the Coroners and before othe Justices ib Diversity 22 Appeal for Homicide ib Woman intiuled to an Appeal of death of her husband loses it by marriage ib Quarentine ib Coroner and his power ib Apportionment 23 Contract Apportion ib Approportionment by the common Law upon purchase ib Quaere ib Where a rent service shal be apportioned where not see before ib Recovery or discent of parcel 24 Rent Charge ib Arbitrement ib Pleading of a Condition in Barr ib Replication ib See Tit. Conditions ib Assets in their hands see Tit. Extinguishment 25 Demurr upon Evidence ib Legacies shall not be paid before Debts ib Assets per Discent Assets by Discent Judgement upon Assets found false plea ib Assigne 26 Assignee charged with the Covenant of his Grantor ib Audita quer ib Assise 26 Baily examined in Assise ib Attachment shall not be de bones alterius quam ten ib Of what things an Attachment ought to be 27 Election of his Tenant ib Assurances 27 Fine with proclamation to bind Tenant in tail and his issue 28 The Law is now otherwise see the Case of Fines in my Lord Coke ib Five years for the issue in tail to claim ib Equity ib Quaere ib 4. Hen. 7. cap. 24. ib Rast. Fine 8. ib Privity ib Fâ—ne confessed and avoided ib Intendment 29 Averment ib Fine by Conclusion ib Stranger ib Fiâ—e with proclamation by the tenant in tail the reversion or remainder to the King and common Recovery ib Diversity ib See my Lord Cokes first book ib Quere 30 Common recovery by the common Law and after the Statute diversity ib Assurance that the heir should not sell 31 To except the last obligation ib Attaint 32 False quantity in demands ib Attaint upon an Appeal of Maihew ib Ataint for termor ib
the arrearages for they are reall and parcell of the rent or annuity But if the Judgment be of arrearages and dammages there he shall have his age B. age 50. And where he recovers in a Writ of annuity or assise as before Or hath avowed for a Rent which is Freehold and recovers the arrearages without costs and damages he shall not have an action of Debt of that but a Scire facias for t is real But where he hath Judgement of it with costs and dammages which go together so that that t is mixt with the personality then lies a Writ of Debt against the Heir of the arrearages and dammages and this B. thinks in default of Execution per curiam 23. H. 8. B. Debt 212. age 50. Note That of the Land of the Duchy of Lancaster and other Lands which the King hath as Duke or the like his age is material and he may have his age as another common person may for he hath them as Duke not as King B. Age 52. 78. As if the King alien Land parcel of his Dutchy of Lancaster within age there he may avoid it for Non-age for the reason aforesaid otherwise of Land which he hath as King for the King cannot be disabled by Non-age as a common person shall B. Prerogative 132. Yet by the Statute of 1. E. 4. which is a private act not printed but inrolled in the Dutchy Chamber by which King H. 6. was attainted of Treason and that all the Lands of the said Dutchy should be forfeited and should be a Dutchy separated and incorporated c. t is annexed to the Crown but by another private act 1. H. 7. t is disannexed and made as in the time of H. 4. 1. E. 6. B. Age. 52. Note t was in a manner granted by all the Justices in the Common Bench That if a Parson Prebend or the like be within age of 21 years and makes a Lease of his Benefice within age that yet this shall binde him for where he is admitted by the Law of holy Church to take it within age so the Common Law inables him to Demise his Benefice within age 4. Mar. 1. B. Age. 80. Alienations If the Tenant of the King alien in Fee without licence and die his Heir within age the King shall not have the Ward because that nothing is discended to him and that the Alienation is good save the Trespass to the King which is but a Fine by Seiser B. Alienations 29. Gard 85. But otherwise if the Alienor were Tenant in Tail and if the Alienation without licence be found by office the King shall have the Issues of the Land from the time of the Inquisition taken and not before B. Alienations 26. in medio But where the Tenant dies and his Heir enters upon an office found for the King of the dying seised of the Ancestor there the heir shall answer the profits taken by him before 26. H. 8. B. Intrusion 18. the end T is said for Law That a fine for alienation is one years value of the land aliened and the same Law of a Fine for intrusion upon the King But the Fine to have licence to alien is but the third part of the yearly value of the land which shall be aliened and for licence to alien in Mortmain the Fine is the value of the Land for three years 31. H. 8. B. Alienations 29. the end If a man obtain licence to alien the Mannor of D. and all his Lands Tenements in D. he cannot alien by Fine for the Fine shall be certain so many acres of Land so many of Meddow so many of Pasture and the like and the alienation ought not to vary from the Licence Yet by B. t is otherwise used with an averment that all is one 32. H. 8. B. Alienations 30. Note if there be two Joynt-tenants who hold of the King in Capite and one releases to the other all his right this is no alienetion nor doth he need Licence or pardon of it for he to whom the Release is made is in by the first feoffor and not by him that Released nor shall he Fine for such release and so t is used in the Chequer that t is no alienation But if three Joynt tenants are and the one Releases to one of the others there he is in of it by him that releases Contra if he had released to all his compagnions and where a man Releases by Fine to the Tenant of the King this is no alienation Otherwise of a Fine Sur Conusans de droit Com ceo c. for this is an estate made by Conclusion 37. H. 8. B. Alienations 31. Tenant of the King in Capite cannot alien for term of life without Licence for it alters the Freehold Time H. 8. B. alienations 22. the end Note That for Burgage Tenure of the King a man may alien without licence well enough 6. E. 6. B. Alienations 36. Note That a Devise by Testament was taken to be an alienation 3. Mar. 1. B. alienations 37. Alien See Tit. Denizen Note by the whole Court in the Kings Bench an alien may bring an action personal and shall be answered without being disabled because he is an alien born otherwise in an action real and the same B. seems in an action mixt and he may have a property and buy and sell. 38. H. 8. B. Denizen 10. Nonability 40. T was said in the Kings Bench That to say that the Plaintiff is an alien born Judgement if he shall be answered is no plea in an action personal otherwise in an action real Yet this hath been in question after this time in the same Court and t was said that an alien born is no plea in Trespass if he doth not say further That the Plaintiff is of allegiance of one such a one enemy to the King for t is no plea in an action personal against an alien that he is of the allegiance of such a Prince which is of amity with the King 1. E. 6. B. Nonability 62. If an alien born purchase the King shall have it but the purchase ought to be found by office and so t was in the case of Alien King and B. seems that an information in the Chequer will not serve in this case Time E. 6. B. Denizen 17. the end T was said in Parliament That if an alien born obtain a Lease for years that the King shall have it for he cannot have Land in this Realm of no estate 4. Mar. 1. B. Denizen 22. Amendment By Fitzherbert and the Court where a Writ of Error was sued to remove a Record out of the Common Bench into the Kings Bench betwixt an Abbot and I. N. the Warrant of Attorney varied in the Roll in the name of the Abbot and t was amended after Judgement and if they had not amended it they said that those of the
Statute of 1. R. 3. which wills that the recovery shall be good against the vendor and his heires claiming only as heir and against all others claiming onely to the use of the vendor and his heires and this is intended by some of a fee simple and in the case afore the issue in tail claims as heir in tail in use B. Feoffements to uses 56. the middle Yet see the Statute of 32. H. 8. that a Fine with proclamation levied or to be levied by Tenant in tail in possession reversion remainder or in use after proclamation had shall binde those Tenants of those tails and their heire for ever And see that the same Statute is as well pro temporibus preteritis quam futuris 30. H. 8. B. Feoffements to uses 57. the end G. T. Knight seised in tail to him and the heires males of his body discontinues and retakes to him and E. his wife and to the heires of their two bodies and had issue T. and W. and died and after E. his wife survived and T. had issue E. nuptam T. W. and died and after W. by covin of E. his mother Tenant in joynture brings a Formedon upon the elder tail against his mother and she appeared the first day and W. recovered by Nihil dicit and T. W. and E. his wife heir to G. enters by the Statute of 11. H. 7. and the entry adjudged lawfull by the same Statute which wills such discontinuances alienation warranties and recoveries shall be void B. Entre congeable 140. Judgement 153. And it need not to say that the recovery was executed for because t was void it shal never be executed And E. the heir averred that he is the same person to whom the reversion appertained and shewed not how heir to it and yet good by Molineux and Hales Justices contra Brown and Mountague chief Justice of the Common Bench. But all agreed that t was a recovery by covin notwithstanding t was upon a true title And good notwithstanding he did not shew cause of covin 32. H. 8. B. Entre congeable 140. Collusion 47. Agreed for Law that if land escheat to the King which is in lease for years or charged with a rent charge and office is found for the King of the escheat the lease or grant not found in the office the lessee cannot enter nor the Grantee cannot distrian but if the King grant the land over the lessee may enter and the grantee may distraine But a man which claims free hold in the land cannot enter without traverse of the office by B. 33. H. 8. B. Entre congeable 124. Note that t is ruled in the Serjeants case that where a common person leases lands for years rendring rent with a clause of reentry and after grants the reversion over the tenant atturns the grantee may reenter for condition broken by the Statute by express words And the same Law of the grantees of the King E. 6. and all others heires to King H. 8. by the equitie of the said Statute which provides remedy for the patentees of the King H. 8. And for grantees of common persons 4. M. 1. B◠Entre congeable 139. T was said that where the interest of the King is certain and determined the party may enter quaere by B. Time H. B. Reseiser 36. the end Error 'T was said in the Kings Bench where a writ of Error beares teste before the first Judgement and the Record is certified in the Bench that 't is good and yet the Writ saith quod si judiciū reddit fit tunc Record process habeatis c. 5 E 6. B Errour Escape Debt upon an Escape against the Sheriffe who said That before the Escape the Prisoner was condemned in the said condemnation and in Execution ut in narratione in the time of a former Sheriffe who suffered him to Escape and after re-took and imprisoned him and was removed and this Defendant was made Sheriffe and after suffered him to Escape judgement is Of this second Escape you ought to have your Action and a good Plea for he hath confessed and avoided the Plaint for when the Prisoner first Escaped and the first Sheriffe re-took and imprisoned him This second Imprisonment is no Execution for the party but the Party is put to his Action for the Escape against the first Sheriffe 5 E 6. B Escape 45. Escheate Foundership cannot Escheate by death without Heir nor bee forfeited by attaindor of Felony or Treason for 't is a thing annexed to the blood which cannot be divided as 't was said after the augmentation Court took commencement for a man who is Heir to another cannot make another to be Heir Time H 8. B Corodies 5. the end Note by Brown Hales Cooke Justices if there bee Lord and Tenant by Fealty and Rent the Tenant is disseised and dies without Heir the Lord accepts the Rent by the hands of the said disseisor yet hee may enter for the Escheate or have a Writ of Escheate and the receipt of the Rent no barre for the Disseisor is in by wrong Otherwise if he had allowed for it in a court of Record or had taken corporall service as Homage c. So of acceptance of Rent by the hands of the Heir of the Disseisor or of his Feoffee which are in by Title 7 E 6. B Escheate 18. Essoign If the Tenant in a Praecipe quod redd prayes the vJew by Attorney his Attorney shall bee Essoyned upon the vJew But if he himselfe prayes the vJew in proper person then per plures none shall be Essoyned upon the vJew but the Tenant himself for after Processe upon a Voucher he himself shall bee Essoyned and by consequence in like manner shall be upon the vJew And note That granting of an Essoyn whereon Essoyn lyes not is not error Contrary of denying of Essoyn where it lyes 33 H 8. B Essoine 116. Estates The King gives Land to I S heredibus masculis suis and 't was adjudged by all the Justices in the Exchequer Camber that the Grant is void because the King is deceived in his Grant for it sounds in Fee simple whereas it seems the King intended but an estate tail which is not so expressed and therefore now he is but Tenant at will Otherwise in case of a common person 18 H 8. B Patents 104 Estates 84. 'T was said for Law That if a Feoffment bee made to W N during the life of I S these words during the life of I S c. shall be void for they are contrary to a Fee Contrary of a Feoffment in Fee so long as Pauls Steeple shall stand 21 H 8. B Estates 50. A man gives Land to two heredibus and doth not say suis This is no Fee-simple And 't was said that the reason is because that two are named in the Deed and therefore 't is incertain to which of them heredibus shall bee referred But if
Defeasance to a stranger and where to the defendant ib Diversity ib Shewing of deeds ib Estray 110 Who shal have property in an Estray ib Executions 111 Of a thing executory a man shal have execution for ever by Scire fac ib Execution upon an obligation conjunctim devisim and satisfaction diversity ib Vinica executio 112 Capias ad satisfaciend not retorned ib Executors 112 Executors denied the deed of their testator ib Judgement thereon 113 Executor of executor ib Two executors the one not to meddle by a certain time ib Executor hath a term and purchases the reversion in fee 114 Assets ib Exposition Extinguishment Corporation ib Restitution by Parliament revives a seigniory or tenure which was extinct by attainder of Treason by Parliament 115 Extinguishment and suspension Diversity ib Seigniory ib Executor hath a term and purchases the reversion in fee 116 Assets ib Devastavit ib Diversity ib The first lessee for years purchases the fee simple ib Faits Deeds 117 Deed bears date beyond sea ib Place traversable ib Verba post in cujus rei c. ib Faits inroll Deeds inrolled 117 Deed inrolled by a feme covert by the common Law and by custom diversity ib London 118 Examination ib Fine levied ib Livery of seisin ib Feoffment to the King ib Relation of an inrolment ib Fauxefier Falsifying 120 Who shal have attaint or error ib Faux imprisonment False imprisonment Authority of a Constable or a Justice of Peace ib In nullo est erratum ib Tryal in false judgement and in writ of error diversity ib Fealtie 121 A man shal not doe 2 homage for 2 tenures to a man nor to the King ib King ib Homage ib Corporation ib Feoffements 122 Feoffement of a house cum pertinen ib Feoffement for maintenance ib Exposition of a Statute ib Remitter 123 Feoffement to four and livery to the Attorney of the one for all ib Second Lessee suffers Livery ibid Feoffement of a moyty ib Feoffement and delivery of the Deed upon the Land 124 Acre in possession and another in use ib Plead Feoffement infra visum Feoffement infra visum terre 124 Feoffement to many and livery to one in the name of all Diversity 125 Feoffement void by Statute ib Feoffements to uses 125 Fitz. seised to the use of the Father ib Tenant in Taile shall not be seised to anothers use 126 1. ibid Use express ibid 2. ibid Who shall be seised to anothers use who not ibid Corporation cannot be seised to a use ib In the post 127 Mortmaine ibid Escheate ib Perquisite ib Recovery ibid Dower ib 3. ibid Courtesie ib Use in Taile ibid 4. ibid Tenure is consideration in Law ibid Termor shall do fealty ibid Rent reserved a good consideration ib Use changed by buying ib Use at common Law 128 Tenure ibid To whose use the Feoffee shall be seised before Statute of Tenures and to whose after diversity ib Feoffee by collusion shall be seised to a use Warde ib Feoffee causa matrimonii prelocut seised to a use Quere 129 Deceite ib Cestuy que use in â—remainder or reversion may sell but not make a Feoffement ib Recovery against Feoffees to a seisen Taile ib Notice of the use ib Statute expounded 130 Notice of the use material ib Et è contra ib When a man may change a use when not ib Use in taile determined ib To make a use to commence expectant by covenant 131 Mesne to bind Lands with a use to whose hands soever they shall come ib Notice of the use ib Recovery against Cestuy que use in Taile And the entry of the Feoffees taken away ib Use in tail 132 Quere ib Equity ib Exposition of a Statute ib Fine by Tenant in Tail in use or possession ib Recovery to the use of Covenants and agreements in Indent c. 133 Where a Covenant shal change a use ib A woman seised to the use of her husband 134 Where these words shal take the profits makes a use and where è contra 135 Use cannot be contrary to the consideration ib What is sufficient covenant to change a use ib Recovery against Cestuy que use in tail by sufferance 136 Vendee shal have fee though he hath notice of the use ib Use to alter the free hold from one to another by Statute ib Entry ib Quere ib Ex post facto 137 Recovery to binde the Tail in use ib Use vests in the heir as heir of his father where the father was dead before the use came ib Relation 138 Quere ib Warde ib Gift of Chattels to a use ib Statute expounded ib Fines levies Fines levied 139 Covenant for assurance of a Joynture by fine 139 Infant shal not levy a fine ib Who shal take the first estate by fine who the remainder ib Fine sur conusance de droitame ceo by A. to I. and I renders to A. the remainder to the wife of A. who was not party to the Writ ib Fine levid by Cestuy que use for life 140 Use forfeit ib quaere ib Fine levied by cestuy que use in Tail ib Use in tail Quere ib quaere ib London 141 Deeds inrolled ib Another of the same name levies the Fine ib Error ib Dedimus potestat 142 Conventio ib Lease for years by Fine to bind the tenant in tail ib Estoppel ib Infancy ib Coverture ib Reservation to a stranger ib Distress ib Lease for years made by Fine 143 Who may take a fine by the Statute de finibus attornatis ib Quere 144 Fine in Hamlet ib Fine in Hamlet or ville decayed ib Writ of dower ib Forcible Entry Where a man may hold with force where not ib Remitter 145 Quaere ib Forfeiture of marriage ib Tender not traversable ib Forfeiture de terre c. ferfeiture of Land c. 146 Forfeiture in an attaint and premunire diversity ib Attainter by Parliament 146 Clerk convict shall forfeit his goods ib Formedon 147 Diversity 147 Formedonupon taile which commenced in use and is executed upon the Stat. 27. H. 8. ib General writ and special declation ib Formodon upon a use general writ and special declaration 148 Diversity ib Form 149 Wood before pasture in plaint of Assise ib Frankmarriage 150 Frankmarriage with a man ib Frankmarriage the rem in Fee ib GARDE WARDE VVHere the heir within age shall be in ward where not ib Woman out of ward by mariage ibid Livery at fourteen yeers ib Remainder to the right heirs 152 Reversion and remainder diversity ib Livery of Soccage Land 151 Lord in Knights service shall not ouste the termor c. ib Where one person shall be twice in ward where not ib Grant of a ward 15â— King shall not ouste a terme of his tennant because he hath his heir in ward 155 Knight in ward ib Viscount Mountague ib Diversity where an heir is made Knight within age in the like of the anncestor and where Knight within age after the
Kings Bench would have amended it 23. H. 8. B. Amendment 85. the end Note That where a Warrant of Attorney varied from the name of the Corporation of the party and a Writ of Error was brought to those of the Common Bench they amended it presently and they said that those of the Kings Bench would have done the like 24. H. 8. B. Amendment 47. Note t was agreed by the Kings learned Councel That the King may amend his Declaration in another Term in omission and the like as where an information misrecites the Statute this may be amended for misrecital is the cause of Demurrer for if it be misrecited then there is no such Statute but he cannot alter the matter and change it utterly yet the same Term he may 4 Eliz Com. 243. by Weston 30. H. 8. B. Amendment 80. Appeal Note by the Justices of both Benches a man shall not have the plea in an appeal That the dead assaulted him and that he killed him in his defence but shall plead not guilty in manner and form and shall give this matter in evidence and the Jurie is bound to take notice of it and if they finde it he shall go acquitted in form aforesaid Nor he shall not have this for plea with a traverse of the murther for the matter of the plea is murther Nor murther cannot be justified and when the matter of the plea is worth nothing there a traverse the like B. Appeal 122. Corone 1. the end And where the Jury acquits the Defendant upon an Indictment before the Coroners they ought to finde that he killed the man and there they may say That the same Defendant killed him se defendendo but upon an Indictment before other Justices it suffices to say not guilty only without more 37. H. 8. B. Appeal 122 The Heir of a man killed shall have an appeal as well of Homicide of his ancestor as of Murther 2. E. 6. B. Appeal 124. Note if a woman who hath Title of an appeal of the death of her husband takes another husband he and the wife shall not have an appeal for the woman ought to have it sole for the cause of an appeal is that she wants her husband and the reason is because the wife wanting a husband is not so well able to live and therefore when shee hath another husband the appeal is determined for the cause ceasing the effect ceases B. Appeal 109. as where a woman hath a Quarentine and she marries within the 40. daies shee loses her Quarentine 1. Mar. 1. B. Appeal 109. Dower 101 Appeal of death may be commenced before the Coroner and Proces awarded to the Exigent but the plea shall not be determined before him Reading 113. B. Appeal 62. the end Corone 82. Apportionment T is said that if I sell my Horse and the Horse of W. N. to A. for ten pound and W. N. retakes his Horse that A. shall render to me the entire ten pound because a Chattel cannot upon a contract be apportioned 30. H. 8. B. apportionment 7. If the Kings Tenant of four acres alien one to the King Or if he hath two Daughters and dies and the one aliens to the King the Rent shall be apportioned if it be severable and this by the Common Law by some Quaere for the reading of Fitzjames is otherwise 32. H. 8. B. apportionment 23. Before the Statute of Quia emptores terrarum if the Lord had purchased parcel of the land holden of him his entire Rent was extinct though t was severable Yet now by the said Statute it shall be apportioned be it purchased by the Lord or by another But this doth not help a Rent Charge because the Statute is onely for the loss of the chief Lord. But of a Rent service upon recovery of parcel or of a discent of parcel and the like which are the acts of God or of the Law there was an apportionment at the Common Law contrary of his proper act as purchase because before the Stat. aforesaid it was of a rent service as t is at this day of a Rent charge which is extinct by purchase of parcel of the Land Reading B. Apportionment 28. Arbitrement Debt upon an Obligation the Defendant pleads the Condition if he shall stand to the award of I. and N. so that the award be made before such a day and saies that the award was not made by the day the Plaintiff may say That they made such an award before the day which the Defendant in such a point and shew in certain in what hath broken for he must shew the breach in some point certain otherwise the action lies not 31. H. 8. B. Arbitrement 42. Assets inter maines Assets in their hands See Tit. Extinguishment Note if Executors plead fully administred in an action of Debt and give in evidence payment of Legacies the Plaintiff may demur upon it for such administration is not allowable in Law before debts paid 33. H. 8. B. Assets inter maines 10. Where a perquisite of a Villain shall be Assets See Tit. Villeinage Assets per discent Assets by discent In an action of Debt against an Heir upon an obligation of his ancestor who pleaded nothing by discent and t was found that Land discended to him but not assets t was adjudged that the Plaintiff should have Execution of all his Lands as well of Land purchased as of Land discended and B. seems the reason to be for his false plea. 3. Mar. 1. B. Assets per discent 5. in the end Assignee A man Leases a house and Land for years and the Lessee Covenants that he and his Assignes will repair the house and after the Lessee grants over his Term and the assignee doth not repair an action of Covenant lies against the assignee for this is a Covenant which runs with the land B. Covenant 32. Deputy 16. and also it lies clearly against the Lessee after that he hath assigned over his Term and B. seems that if he bring several Writs of Covenant against both that there is no remedy till he takes execution against the one and then it seems to him that if he sues against the other he shall have an Audita Querela 25. H. 8. B. Covenant 32. Assise Assise the Tenant pleads not attached by fifteen daies the Bayliff was examined who said that he attached him by the horse of a Farmor which was a Termor to the Tenant of the land in plaint which matter was recorded and B. seems that t is no good attachment for the Tenant cannot forfeit the beasts of his Farmor and an attachment ought to be made of such things which the Tenant may forfeit by Outlary Note between Dudly and Leveson for the Mannor of Parton in the County of Stafford 31. H. 8. B. Assise 480. Note by the Justices in the Common Bench That in an assise against two the one takes the
upon the sale 6 E 6. B Faits Inroll 9. Fauxifier Falsefying Where he in reversion shall falsifie a recovery had against Tenant for term of life where not See Tit. Entre Congeable Where the Feoffees may falsifie a recovery suffered by Cesty que use in tayl where not See Tit Entre Congeable 'T was holden that an attaint shall goe with the Land as a Writ of Error shall Time H 8. B Fauxifier 50. the end Faux Imprisonment false Imprisonment 'T is said That a man as Constable cannot Arrest another for an Affray after that the affray is past without Warrant contrary before the Affray and in the time of the Affray c. And the same Law of a Justice of Peace 38 H 8. B Faux Imprisonment 6. the end Faux Judgement False Judgement Note by Fitz for cleer Law That in a Writ of falfe Judgement in nullo est erratum is no Plea for they joyn issue upon some matter in fait certain alledged by the party and shall bee tryed by the Country for 't is no Record contra in Error 23 H 8. B Faux Judgement 17. Fealtie Note in the Chequer That if Land descend to me which is holden of I S by homage and I doe to him homage and after other Land descends to me by another Ancestor holden of him by homage I shall doe fealty but not homage again for I became to him his man before And if both the Tenements are holden of the King by homage he shall not respit both the homages in the Exchequer but one homage only 24 H 8. B Fealty 8. Note in the Exchequer That a Dean and Chapter and other bodies politique shall not doe homage for this shall be done in person And a Corporation cannot appear in person but by Attorney and homage cannot be done by Attorney but only in person 33 H 8. B Fealty 15. Feoffments A man makes a Feoffment of a house cum pertinentiis nothing passes by these words cum pertin but the Garden the Curtilage and Close adjoyning to the house and upon which the house is built and no other Land though other Land hath been occupied with the house 23 H 8. B Feoffments 53. Note by Fitz james ch Justice Englefield Just and divers others where a Disseizor makes a Feoffment for maintenance and takes the profits the Feoffment is void by the Stat of 1 R 2. ca 9. as to a Stranger which shall have an Action for he shall have it against the pernour of the profits but 't is not betwixt the Feoffor and the Feoffee And also a man who vouches by such Feoffment one of the Feoffees the Demandant shall counter-plead by the same Stat because the Feoffment was void And B seems that such Feoffment shall not be a remitter in prejudice of a third person 24 H 8. B Feoffments 19. If a man makes a Feoffment to four and the one of the four makes a letter of Attorney to I N for to take livery for him and his companions who doth it accordingly nothing passes but to him who made the Letter of Attorney only 27 H 8. B Feoffments 67. 'T was said for Law That if a man Leases Land for ten years and the same Lessee lets it over to another for four years the Lessor makes a Feoffment to a Stranger by sufferance of the second Lessee this is a good Feoffment without Attornment of the first Lessee 28 H 8. B Feoffments 68. 'T is said That a Feoffment of a moity is good 31 H 8. B Feoffments to uses 19. If a man makes a feofmēt of a house ac omnia terras tenemeta et hereditamēta eidem messuag pertinen aut cum eodem occupat locat aut dimiss existen by this the Land used with the house shall passe 32 H 8. B Feoffments 53. the end A man makes a Deed of Feoffment to another and delivers the Deed to him in the Land or upon the Land this is a good Feoffment by all the Justices in the Common-Bench 35 H 8. B Feoffments 74. If a man bee seized of one acre of Land in Fee and another is seized to his use in Fee of another acre and hee makes a Feoffment of both acres and Livery of the acre which he hath in possession by this the acre in use passes not though he made the Livery in the one in the name of both for this is not his acre but the acre of the Feoffees and the Stat saies that his feofment shall be good but 't is no Feoffment except hee makes Livery in the same Land Otherwise if Livery were made in the Land in use by reason of the Stat 37 H 8. B Feoffments 77. Feoffments to uses 55. If a Feoffment be made within the vJew when this is pleaded 't is said that expresse mention shall be made in the pleading that the Land was within the vJew Time H 8. B Feoffments 57. the end Feoffment is good of the Land by Deede by Livery of the Deed within the vJew so that the Feoffee enters accordingly But if the Feoffor dies before the Feoffee enters then the Land is discended to the Heir of the Feoffor and the Feoffment shall not take effect Time H 8. B Feoffments 72. A man makes a Feoffment by Deed to twenty and delivers the Deed and Seisin to one in the name of all this is good to all but if hee Infeoffs twenty without Deed and delivers Seisin to one in the name of all this is no feofment to any but to him who takes the Livery Time H 8. B Feoffments 72. Note that by the Stat of 1 R 2. where a Disseizor makes a Feoffment for maintenance and takes the profits the Feoffment is void by the Stat to all intents Lecture Whorwood 35 H 8. B. Feoffments 19. Feoffments to uses By Shelly Just Where the Father Infeoffs his Son and Heir apparent to the intent to defraud the Lord of his Ward this Feoffment was to the use of the Father during his life and hee takes the profits during his life and so see that uses were in antient times 24 H 8. B Feoffments to uses 20. the end A man makes a Feoffment in Fee to four to his use and the Feoffees make a gift in tayle without consideration to a stranger who had not conusance of the first use habend in tayle to the use of cestuy que use and his Heirs the tenant in tayle shall not be Seised to the first use but to his own use for the Stat of Westm 2 cap 1. wills quod Voluntas Donatoris in omnibus observetur that a man ought to refer his Will to the Lawe and not the Lawe to his Will Also none can bee Seised to the use of another but hee which may execute an Estate to cestuy que use which shall bee perfect in Law which tenant in tayle cannot doe for if hee executes an Estate his Issue shall have
â—â—â—nviction without abjuration Otherâ—â—e if he will abjure for then he shall 〈◊〉 be burnt the first time but upon reâ—â—se he shall be burnt 2. M. 1. B. â—eresie Homage See Tit. Fealty Ideot BRent of the County of Sâ—â—merset who was presenâ—â—ed for an Ideot couâ—â— write Letters and Acquiâ—tances and the like anâ— therefore was adjudgeâ— an Unthrift but no Ideot Time E. Ideot 4. the end Imprisonment 'T was determined in Parliament thâ— Imprisonment almost in all cases is but retain the offender till he hath made Fine and therefore if he offers his Fiâ—â— he ought to be delivered presently 〈◊〉 the King cannot retain him in prison afâ—â—â— the Fine tendered 2 M. 1. B. Impâ—â—sonment 100 the end Incident Court-Baron is incident to a Manâ—â— and Court of Pipowders to a Fayr aâ— 't was sed arguendo that therefore Lord of the Mannor or Fayr cannot grâ—â— over the Court-Baron nor the Court Pipowders or if they grant the Mâ—â— â—â—or with the Fayr they cannot reserve â—â—ch Courts for they are incident c. 9 H. 8. B. Incidents 34. 'T was said that if a Seigniory rests in â—omage Fealty and Rent and a man â—â—covers the Rent by this is the Homage â—â—covered for a Precipe lies not of it â—ime H. 8. B. Incidents 24. the â—â—id Indictments An Indictment of Death ought to comâ—rehend the day of the stroke and day of 〈◊〉 death and the same Law of Poyâ—ning so that it may be known if he â—â—ed of the same stroke or not 24 H. 8. â— Indictments 41. By Fitz Just. a Justice of Record may 〈◊〉 indicted of taking of money and other â—â—ch falsity but not of that which goes in â—â—lsifying or defeating of the Record as 〈◊〉 say that he altered the Record from â—respass into Felony and the like which â—â—lsifies the Record Casus B. Indictâ—ent 50. the end Intrusion Tenant in Tayl of Lands holden of 〈◊〉 King aliens without license which found by Office the King shall have 〈◊〉 Issues of the Land à tempore inquisitiâ—â—nis capt and not before B. Alienatâ—ons 26. in medio But where the tâ—â—nant dies and hisâ— heir enters upon Offâ—â—â— found for the King of the dying seised the ancestor there the heir shall answâ—â— the profits taken by him before 26 H. B. Intrusion 18. the end Note where 't is found by Office thâ— I. N. tenant of the King was seized aâ— died seized and that W. his heir intrudeâ— and after by Act of Parliament the Kiâ—â— pardons all Intrusions in this case the eâ—try and the offence is pardoned but not 〈◊〉 issues and profits for the escheat or shâ—â— be charged of this by way of accouâ—â— whether he hath received them or not 〈◊〉 when the office is of Record he ought receive them except where 't is found the Office that such a man took the proâ—â— thereof But where the King pardoâ— where no Office is found the heir is â—â—â—charged as well of the issues and profâ—â— and also of Livery as of Intrusion by râ—â—son of the pardon for by this is pâ—â—doned And there though the Office comes after which findes the intrusion of the heir yet all is gone by the Pardon and this shall serve because all was pardoned before to which the King was intitled of Record 33 H. 8. B. Charters de pardon 71. Intrusion 21. Issues returns 22. Office shall have relation to the death of the ancestor as to Land descended to the heir of the Kings tenant and as to intrusion B. Relation 18. the end Otherwise as to alienation made by the Kings tenant without License this shall not relate before the finding of it B. Relation 18. Intrusion 19. And such entry by purchase is not called Intrusion but a Trespass and so are the words of the pardon thereof quod pardonamus transgression ' praedict c. 33. H. 8. B. Intrusion 19. Joyntenants If a Lease be made to three of Land at Common Law for term of life or for yeers habendum successivè yet this is a â—oynt estate and they shall hold in Joynture and successivè is void But where the custom of Copie-holds is that this word successive shall hold place this is good there by the custom 30 H. 8. B. Joyntenants 53. Leases 54. If a man infâ—offs two upon condition that they shall infeoff W. N. before Michael ' and the one dies the other sole makes the Feoffment this is good The same Law if two lease Land rendring rent and that if it bearrear by two months and lawfully demanded by the said Lessors that they may re-enter the one dies and the other that survives demands it and 't is not paid he may re-enter And the same Law if the Lease were made to two with words that if it be arrear and demanded of them two c. and the one dies and the Lessor demanded it of the other that survived and he doth not pay this is a good demand and the Lessor may re-enter 33 H. 8. B. Joyntenants 62. Journeys accounts Grantee of a next presentation brings a Q. impedit and dies after the six months past and his Executors bring another Q. impedit by Journeys accounts and by the Justices it will not lie See Tit. Q. impedit Judgement A man recovers by default against an â—â—fants and the Infant brings a Writ of â—â—rour and reverses it for his non-age â—therwise if he had appeared and lost 〈◊〉 plea or by voucher he shall not reâ—â—rse it for non-age B. 6 H. 8. Saver de fault 50. If I have Title by Formedon or cui vita and enter and the other recovers â—gainst me I am remitted to my first actiâ—â— But if a man recovers against me by â—â—lse Title by Action tried where I was by good Title I shall then have Error 〈◊〉 Attaint or a Writ of Right 23 H. 8. â— Judgement 111. Assise in Com. B. the tenant pleads in â—â—ar a recovery by Assise by him against 〈◊〉 Plaintiff of the same Tenements in â—om O. and this now Plaintiff then â—â—nant pleaded in Bar by release of the â—ncestor of the Plaintiff with Warranâ—â— which was void by non-age and â—his found for the Plaintiff by which he â—ecovered against this Plaintiff judgement si where he accepts the Land to be in the Country of O. now he shall be received to say that it lies in the County 〈◊〉 B. And 't was said in the Common Benchâ— that though this Land were then put 〈◊〉 vJew the Plaintiff shall not be bound 〈◊〉 the recovery for it cannot be intended one and the same Land 25 H. 8. â— Judgement 62. Assize of Land in N. the Defendanâ—â— said that once before he brought an assizâ— of the same Land in H. against the samâ— Plaintiff and these Lands put in vJew and this now Plaintiff then took the â—â—nancie and pleaded in Bar and said thâ— H. and N. are one and the same Ville an known by the one name and the
can speak latine congruously Quaere for he cannot be a Priest nor he cannot Minister Casus B. clergie 21. A Bastard shall have his Clergy for he may be a Priest by licence Casus B. clergie 22. Colour Note That Colour ought to be matter in law or doubtful to the lay people and shall be given to the Plaintiff and not to one who is mean in the conveyance and shall not be given to a stranger who infeoffed the Plaintiff nor shall be given to the Defendant and shall not be given by a possession determined S. where it appears in the pleading that the possession is determined but shall be given by an estate defeated and where the Defendant bindes the right of the Plaintiff by Feoffment with Warranty Release Fine Recovery Disseisin and Re-entry and the like there needs not any colour And he which claims no property in the thing but takes it as a distress and the like shall not give colour Colour shall not be given but upon a plea in bar B. colour 64. Colour shall not be given but by him by whom you commence your Title and not by a mean in the conveyance He which pleads to the Writ shall not give Colour It behoves that colour be such so that if it be true that of such possession the Plaintiff or Demandant may have their action He which justifies as servant and conveys Title to his Master shall give colour colour by possession in law is good Regulae Commission Note for Law That where a Commission of the peace issues to I. N. and others and after I. N. is made Knight yet the Commission remains for him Yet Anno primo E. 6. cap. 7. is a Statute made That making of the Plaintiff Knight shall not abate the action nor the Commission in which such person is named And where a man learned in the same Law is put in Commission and after is made Serjeant at Law yet he remains in authority by the same Commission And when a Justice of the Bench is made Knight yet he remains Justice and this Commission shall serve him 36. H. 8. B. Commissions 22 Note by coming of a Commission of Oyer and Terminer the Commission of Gaole Delivery is not determined for the one stands with the other Otherwise where the one Commission is contrary to the other As of a Commission of the Peace where there is a former Commission thereof to others this is contrary that every of them should be Commissioners of one and the same thing and both in force And the Commission of Gaole Delivery is onely to deliver the Gaole Commission of Oyer and Terminer hath words ad inquirendam audiendam determinandam But most commonly the Justices of Gaol delivery are also in the Commission of the Peace and by this they indict and after deliver the Gaol as well of them as of others And note That the Justices of Oyer and Terminer cannot by this authority arraign no Prisoners but those which are indicted before them but contrary if they have Commission of Gaol delivery also for these both may be executed simul semel 3. M. 1. B. Commission 24. If a Justice of the Common Bench be made Justice of the Kings Bench though that it be intended but Pro illa vice as t was of Sir James Dier this year yet this shall determine his pattent of the Common Bench though he surrenders the Pattent of the Kings Bench the next day for the Kings Bench is the highest Court and if the Common Bench erre this shall be controlled by the Kings Bench. And therefore a man cannot be Judge of the one Bench and the other together to reverse his own judgement And as often as a Justice of the Common Bench is made Justice of the Kings Bench as it hath been often seen the Commission of the Common Bench by this is determined for the one Court is within the controlment of the other but a man may be a Justice of the Common Bench chief Baron of the Exchequer together may be Justice of the Common Bench Justice in Oyer and Terminer or of Gaol delivery together for none of these Courts hath controlment of the other And if an Incumbent of a Benefice be made a Bishop the first Benefice is void for he which hath the office of Soveraignty cannot have the office of inferiour by some of the Justices Yet B. doubts for a Justice de banco regis may be a Justice in Oyer or of Oyer and Terminer or of Peace or of Gaol delivery and yet if they err in their pleas in the Oyer or Oyer and Terminer or in their Proces or outlawry before Justice of Peace Writ of Error lies thereof before the King in his Bench. But the Pleas in the King Bench are holden coram rege ubicunque fuerit in Anglia and so the Kings Bench is a Court removable and by the Statute the Common Pleas teneatur in loco certo then t is contrary of the Oath of the Justice of the one Court and the other for the one is certain and the other incertain 5. M. 1. B. Commissions 25. Where a Justice of Peace is made Knight or takes other dignity yet his authority shall remain And so of a Justice of the Gommon Bench made Knight his Commission remains in force 1. E. 6. c. 7. B. Commission 4. If the King grant to a Major and Commonalty and their successors to be Justices of Peace in their Town and after makes a Commission of the Peace to another there yet the first Commission shall remain in force because that t is a grant to them and their successors and so not revocable as a Commission is B. Commission 5. If a new Commission of the Peace be proclaimed or read in full County the ancient Commission of the Peace is determined And all the Justices ought to take notice and if they sit by the ancient Commission all they do is void And if a Commission be directed to A. and B. who are not in rerum natura or are dead at the time of the Teste c. The ancient Commission remains in Force for this new Commission is void If a Commission be directed to N. pro hac vice this shall determine the ancient Commission of these matters And yet the new Commissioners cannot sit but Vnica vice B. Commission 6. If a commission be directed to hear and determine Felonies this shall determine the ancient commission of the Peace as to Felonies but not as to the Peace and so determined in part in part not B. Commission 7. commission in Eyer is made to the county of N. and Proclamation there this determins the Commission of the Peace B. commission 8. Commission of the Peace is in the county of N. and the Kings Bench comes there this shall not determine the Commission of the Peace contrary if they make Proclamation of the coming of the Kings Bench
B. commission 9. Commission of the peace is made to 4. in the County of N. and after the King makes I. S. Justice of Peace there for term of his life the first Commission is determined B. Commission 10. If Justices sit by Commission and do not adjourn it the Commission is determined And see a Statute where new Commissioners of Gaol delivery may sit upon the Records of the ancient Commission of the Gaol which is determined And when a Commission of Oyer and Terminer is determined the Records of that shall be sent into the Kings Bench but Records of the Justices of Gaol delivery shall remain with the Custos rotulorum of the County And the next Justices of Gaol delivery shall proceed upon them upon judgement of death by the said Statute Quaere if they should proceed by the words to allowance of Clergie or Sanctuary it seems so by the equity B. Commissions 11. Conditions Debt upon an Obligation with a condition to perform all covenants contained in certain Indentures the defendant cannot plead the condition and reherse the covenants and say generally that he hath performed all the covenants without shewing how by the Prothonotaries 20. H. 8. B. conditions 2. If a man devise 20. l. to W. S. to be paid in four years after his death and dies and after the Devisee dies within the four years yet the Executor of the Devisee shall have the Money or the rest of it by suit before the Ordinary in the court Spiritual for t is a duty by the Testament or devise 24. H. 8. B. Devise 27. 45. conditions 187. By Fitz. if a man before the Statute of Tenures had made a gift of Land to one in Fee for to repair a Bridge or for to keep such a castle or for to marry yearly a poor virgine of S. this is a Tenure and not a condition and the Donor may distrain and make avowrie But if a woman give land to a man for to marry her this is a condition in effect and no Tenure which no bodie denied 24. H. 8. B. condition 188. tenures 53. If a man Mortgage his land to W. N. upon condition that if the Mortgager and I. S. repay 100 l. by such a day that he shall re-enter and he dies before the day but I. S. paies by the day the condition is performed and this by reason of the death of the Mortgager notwithstanding that the payment were in the copulative otherwise if it were not in the case of death 30. H. 8. B. conditions 109. By many if a man make a Feoffment in Fee ad intentionem to perform his will this is no condition but a Declaration of the purpose and will of the Feoffer and the heir cannot enter for non performance 31. H. 8. B. conditions 191. If a man be bound in a bond to pay 20 l. the Obligor in whose discharge the condition goes ought to be ready at the place c. all the day and the Obligee may come any time of the day 32. H. 8. B. conditions 192. A man gives land in Tail or Leases it for life or for years rendring rent with a condition of re-entry for default of payment there if he Leases part of the land to the Donor or Lessor or if the Donor or Lessor enter in part of the land he cannot re-enter for the rent arrear after for the condition is wholly suspended for a condition cannot be apportioned nor divided 33. H. 8. B. Extinguishment 49. conditions 193. Debt upon an obligation to perform all covenants contained in certain Indentures t is no plea that he hath performed all the covenants generally S. Quod performavit omnes singulas conventiones inindentura pred specificat ex parte sua perimplend if they be in the affirmative but must shew in certain in every point how he hath performed them B. condition 198. covenant 35. And where in a Covenant the Defendant saies that the covenants are that he shall pay 10 l. by such a day and infeoff him by the same day quas quidem conventiones idem defensoris bene perimplevit this is no good plea for he must shew in certain how he hath performed it 33. H. 8. B. covenants 35. the end Note for Law That Proviso semper put on the part of the Lesse upon the words of Habendum makes a condition otherwise of a Proviso of the part of the Lessor as t is covenanted in the Indenture That the Lessee shall make the reparations Proviso semper That the Lessor shall finde the great Timber this is no condition Nor by some tis no condition when it comes amongst other covenants on the part of the Lessee as t is covenanted after the Habendum and after the Reddendum That the Lessee shall scowre the ditches or the like Proviso semper That the Lessee shall carry the Dung from it to such a field this is no condition to forfeit the Lease for not doing of it contrary if such proviso be put imediately after the habendum which makes the estate or after the redendum Quaere by B. conditions 195. 35. H. 8. If a man Mortgage his land upon defeisance of repayment to re enter and the bargain to be void and the vendee Leases the Land to the vendor for ten years by Indenture of defeisance and further grants to him That if he paies 100 l. infra terminum dict 10 annorum that then the sale shall be void c. and the Lessee surrenders the Term yet the tender of the 100 l. is good within the ten years because that the ten years is certain though the lease is surrendred or forfeited Otherwise if it were to repay infra terminum predict without these words ten years for in the one case the Term S. the Lease is the limitation of payment and in the other case the ten years by Whorewood in his Reading in the Lent B. conditions 203. Defeasans 18. The same law if B. holds certain land for term of ten years of A. and t is covenanted betwixt A. and B. That if B. pay 100 l. to A. within the said ten years that then he shall be seised to the use of B. in Fee and B. surrenders his term to A. and after payes him 100 l. within the ten years there B. shall have Fee for the years are certain otherwise where t is covenanted That if he payes 100 l. infra terminum predict and he surrenders and after payes the 100 l. this is nothing worth for the Term is determined but in the other case the ten years remain notwithstanding the surrender 35. H. 8. B. Exposition 44. T was holden clear in the Kings Bench that where M. and other two are bound to stand to the award of I. N. so that it be made and delivered by the Arbitrators in writing to the parties before Michaelmas they make the award and deliver it to one by Michaelmas
there were but one in the Deed then it shall be referred to the one only But in a Devise 't was said by some that the words afore are a Fee-simple Contrary in a Gift and Feoffment for the one shall bee taken by intendment the other not 31 H 8. B Estates 4. A man gives land to a Husband and Wife for terme of their Lives diutius eorum vivent the remainer to the Heirs of their bodies this is a taile executed by reason of the immediate remainer notwithstanding the words of the Statute quod voluntas Donatoris in omnibus observetur by all the Justices 35 H 8. B Estates 78. By opinion in the kings Bench If a man deviseth his Land to W N solvend ten pound to his Executors and dies the Devisee hath a Fee-simple by reason of the payment without words Heredibus or in perpetuum and this shall be intended the intent of the Devisor The same Law if a man sell his Land to W N for twenty pound this shall be intended a sale in Fee-simple without words Heirs for Conscience c. est equum bonum which is a ground in every Law 4 Ed 6. B. Estates 78. Estoppell If a man hath Liberties Rent Common or the like by prescription and after takes a grant thereof of the King by Patent or of another by Deede this determines his prescription by conclusion B Prescription 102. Estoppell 210. for Writing shall determine Contracts and matter in Fait 33 H 8. B Prescrip 102. 'T was agreed that a stranger to a Fine or Recovery shall not pleade it for Estoppell contra If hee claim the same Land under the Fine or Record by those which were parties or claims the same Estate or part of it and that this estate continues for then he is privy in the Per 36 H 8. B Estoppell 216. the end If two joyn-Tenants are which hold of the King in chiefe and the one releases to the other in Fee and after both respit Homage in the Exchequor by this he which released hath gained the moity by conclusion as it shall be where two joyne in suite of livery out of the hands of the King where the one hath nothing by the opinion of some And the same of Partition by two where the one hath nothing 37 H 8. B Estoppell 218 Note that a man which Leases by Deede poll for yeeres or by Parol may avoid this Lease to say That hee had nothing in the Land tempore dimissionis Contrary Upon a Lease by Indenture for this is an Estoppell 38 H 8. B. Estoppell 8. If a man Indicted of Extortion or Trespasse puts himself upon the grace of the King and makes a Fine and after the party sues him for it by Bill or Writ and he pleades Not Guilty hee shall have the Plea and the making the Fine to the King shall not estop him for there the Entry is quod petit se admitti per Finem and doth not confesse it precisely and therefore no Estoppell Yet B seemes to make the Fine by protestation that hee is not guilty and then 't is all cleere Time H 8. Estoppell 82. A man pleads a Pardon of the King in the Exchequer for alienation without License where the Land is not holden of the King in capite This is an Estoppell to him to say after that He doth not hold in capite 7 Ed 6. B Estoppell 222. By Hales and Montague If a man Leases to N his own Land by Deed intended the Indenture is no Estoppell but during the Lease and not after Casus B Estoppell 221. Estranger A is bound to B in a 100. l. and B makes a Defesance to W S That if W S payes 40. l. that the Obligation shall be void This is worth nothing per opinionem because that A that should plead it is a Stranger to the Deed But where two are bound to me and I make a Defesance to one this shall serve the other to plead if he can shew it as in Trespas against two a release to one shall serve the other if he can shew it 34 H 8. B Estranger al fait 21. Estray If a man takes Beasts as an Estray and keeps them three quarters of a yeer and after they stray from him and another happens on them the first Lord which kept them for three quarters cannot take them again because that he had no property in them till hee had kept them a yeer and a day and Proclamation passed in the two next Market Towns and two Market dayes the one in the one Town and the other in the other for the possession of the second Seizor is good against him who hath no property 33 H 8. B Estray 11. Executions Note by Fitz and the Court If a man recover in a Writ of Annuity he shall have a Fierifacias of the Arrearages incurred within the yeer and a Scire fac after as soon as the Annuity is Arrear and never a Writ of Annuity again for 't is executory and the same Law of an Action and Judgement upon composition which is executory de tempore in tempus and the like And in every Scire fac in which he recovers after the first Judgement he shall have execution of the Arrearages within the yeer by Fiere fac for every one is founded upon the Judgement 23 H 8. B Executions 119. Scirefac 213. By the whole Court in the Common-Bench If two are bound in an Obligation conjunctim divisim the Obligee impleads the one and hath execution of his body and after impleads the other and condemns him hee may have execution against him also for the taking of the body is a good execution but 't is no satisfaction and therefore hee may take the other also But if the one satisfie the Plaintiff hee shall not have execution after and therefore this Order That the Plaintiff upon an Obligation shall have but one execution is intended such execution which is a satisfaction and where both are impleaded by one originall by severall Precipes c. 29 H 8. B Execution 132. Scire fac upon recovery of Debt and Damages the Defendant said that once the Plaintiff sued a Capias ad satisfaciend by which the Sheriff had took his body Judgement c. And there 't is said That a Capias ad satisfaciend is not of Record before the retorn of it therefore no Plea Yet B seems the Plea good by the taking of the Body though no Writ bee returned 37 H 8. B Executions 6. Executors 'T was noted by Fitz and others That in an Action of Debt against an Executor 34 H 6. upon an Obligation of his Testators who pleaded not his Deed and found against him the Judgement by the Record was That the Plaintiff should recover of the dead if hee hath any and for that the book at large fol. 24. is reported further in these