release is a bar to the writ of Error So if a judgment be given upon a false verdict in a reall action a release of all actions reall is a bar in an attaint By a release of all actions personall without more words are Of actions personall Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending and all causes of personall actions wherein a personall thing only is to be recovered and therefore hereby are discharged all causes of suing out of actions of debt trespasse detinue or the like Also all mixt actions as actions of wast Quare Impedit an assise of novel disseisin writ of annuity appeal of maihme and the like And if debt c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict and the defendant bringeth awrit of attaint or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution by this release the defendant in both cases is barred of his suit Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only as debt damage or the like as if the plaintiffe in a personall action recover any debt c. or damages and be outlawed after judgement in this case in a writ of Error brought by the defendant upon the principall judgement this release will bar him But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing this release is no bar as if a man be outlawed in an action personall by processe upon the originall and bring a writ of Error and then release this is no barre to him If a man by wrong take or find my goods or they be delivered Lit. Sect. 497 498. 500. to him and I release to him all actions personall notwithstanding this release I may in this case take my goods again albeit I be barred of my action by this release Neither is this release a bar in an appeal of robbery or death Neither will it bar in any case where a release of all actions will not bar Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release Nor for any rent of sum of nomine pene when the release is before the same day or nomine pene happen Neither is it a bar in such reall actions wherein damages are recoverable only by the statute and not by the common law as in a writ of dower entry sur disseisin in le per Mordancester Aile c. By a release of all debts without more words are discharged Of debts Co. super Lit. 76. 291. Fitz. Audita Querela 3. and released all debts then owing from the relessee to the relessor upon especialties or otherwise all debts due also upon statutes And therefore if the conusor himself or his land be in execution for the debt and he hath such a release he must be discharged and so he cannot be upon a release of all actions By a release of all duties without more words is a relessor Of duties Co. 8. 153. super Lit. 291. barred and the relessee discharged of all actions judgements and executions also of all obligations And if the body of a man be in execution and the plaintiffe make him such a release hereby he shall be discharged of execution because the duty it selfe is discharged And if there be rent or services behind to the Lord from his tenant and the Lord make such a release to his tenant by this it seems the arrearages are released This word is of somewhat a more large extent then actions Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits for by a release of all suits without more words is released and discharged as much as by a release of all actions And hereby also are discharged al executions in the case of a subject But in the case of Prerogative the King it doth not release executions And this doth not release a covenant before it be broken By a release of all quarrels without more words all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates quarrells controversies reall and personall and all causes of such actions are released and discharged So likewise by the release of all controversies or by the release of all debates But this will not bar the relessor of any causes of suit that shall arise after and was not at the time of the release as the breach of a covenant which shal be after albeit the covenant be before is not discharged hereby By a release of all covenants without more words all covenants Of Covenants Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged Qui destruit medium destruit finem And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case to him at the end of the terme as it was at the beginning of the terme and the lessor before the end of the terme release to the lessee all covenants this doth discharge the covenant But this release doth discharge nothing else but covenants By a release of all Statutes from the conusee to the terre-tenant Of Statutes Co. 10. 47. without more words the Statute is discharged And yet if he release all his right in the land of the conusor this will not discharge the land of execution By a release of all errors and writs of error all errors and Co. 2. 16 Lit. Sect. 503. Of Errors writs of error and that before they be brought are extinct and discharged And if a man be outlawed in a personall action by processe upon originall and make such a release this will barre him By a release of all warranties or covenants reall all warranties Lit. Sect. 148. Of Warranties then made and being are for ever discharged By a release of all legacies without more words a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies barre himselfe of all the legacies given him in presenti or futuro so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular this is a barre to him of this legacy for ever And yet a release of all demands in this case is no discharge of this legacy By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent the day of paiment be come or not But a release of all actions will not
hath assets in his hands to pay all men and besides untill this be done he cannot deduct to satisfie his own debt first and barr other men by Plea But of the other side when he hath made and exhibited a true and perfect Inventary of all the goods and chattels it shall be presumed against him that he hath so much as is contained in the Inventary and no more unlesse more can be proved by Witnesses 3. The third thing whereof the Executor or Thirdly in Probate of the Will See Probate infra at Numb Administrator is to take care is to prove the will if there be any And this the Ordinary will compell him to do but otherwise he may do any thing as Executor save only sue actions as well before Probate as after 4. The fourth thing whereof the Executor or Administrator must take care is to sell and make money of the goods Fourthly in payment of Debts and Legacies and the order of payment of Debts and Legacies Coo. 9. 88. Plow 184. 545. Dyer 80. Doct. St 75. 76. 77. 78. 132. Stat. 33. H. 8. cap. 39. Coo. 5. 28. 4. 54. 59. 60. 8. 132. Dyer 232. 32 21 Ed. 4â— â—21 Bâ—oo Executors 88. 172. Coo. 8 132. Dyer 32. Plow 279. 280. Broo. Executâ—rs 103. Kelw. 74. and chattels and to receive the debts due to the deceased and then to pay the Debts and Legacies due to the Creditors and Legataries wherein the Executor or â—dministrator must be very cautious and wary And for this purpose let him observe That all the debts must be paid before any Legacies be paid or delivered and if there be not enough besides to pay the debts any thing given by way of Legacy may be sold to make money to pay the debts and the Legataries must loose their Legacies for Lâ—gatarii contendunt de lucro captando Crediteres autem de damno vitando And in payment of debts this decorum must be observed 1. Amongst persons that are Creditors the executor or administrator himselfe shall be preferred so that if any debt be due to him he may deduct to satisfie himselfe first albeit others loose their whole debt thereby and especially then when his debt is in equall degree with others debts 2. After the executor or administrator is served and satisfied his debt then the King is to be preferred so that if there be any debt due to him and he begin his Suit for it before any other man can get a Judgement for his debt against the executor or administrator his debt shall be paid before any others 3. After the King is served and satisfied his debt then the debts of common persons must be paid And these also must be paid in this order or manner 1. The debts due by Record by any judgement had against the deceased in any judiciall proceeding in any Court of Record 2. The debts due by Statutes or Recognisances ented into by the deceased for the debts due upon judgements must be satisifed before these sit judâ—cium prius velposterius 3. The debts due by Obligations and penall and single Bils for these are in equall degree and these are to bee paid after Statutes and Recognisances And yet if the Statute or Recognisance be only for performance of Covenants and no Covenant is broken an Obligation for the payment of present money shall be discharged before it 4 The debts due for rent upon Leases of Land or grants of rents but some say that debts due for rent in the Testators life time be the rent reserved upon Leases made by or without deed for years or at will are in equality of degree with debts due upon Especialties 5. The debts due for servants wages and workmen 6. The debts due upon shop-books and verball Contracts and yet it is said Addition to Iust Dodridge 92. by some That Legacies are to be paid before debts due by shop-books bills unsealed or contracts by word Quod non credo And amongst debts also that are in equality of degree those that are due are to be paid before those that are not due and those whose day of payment is already come before those whose day of payment is not yet come And yet if the Creditor whose day of payment is already come doe not sue for his debt untill his debt whose day of payment is at a day to come become due the Executor or Administrator may satisfie which of them he will first And amongst debts that are due and already to be paid those that are first sued for are to be first paid Or if the Creditors begin their Suites together the Executor or Administrator may pay which he will of them first and to pay debts in any other order is dangerous And therefore for the purpose if the deceased are two severall debts of 10l a piece to two severall Creditors by severall Obligations and the Executor or Administrator hath enough only to pay one of them he that can first get Iudgment and Execution shall first be satisfied and if the Executor or Administrator doe afterwards pay the other his debt he must satisfie the first out of his own estate If one that hath a debt due to him from the deceased upon a simple Contract or the like sue the Executor or Administrator for it and there bee debts due to others upon bonds and bills unsatisfied in this case the Executor or Administrator may not pay this debt nor may hee suffer the Plaintiffe to recover in his Action for if he doe and he have not Assets besides to satisfie the debts due upon Bills and Bonds he must satisfie so much out of his own estate as hee hath so paid or suffered to bee recovered from him for in the case of an Action brought he is to plead and to set forth these debts upon Especialties and to say that he hath no more but what is sufficient to satisfie them c. and thereby he shall barre the Plaintiffe in his Action In like manner it is if one that hath a debt due to him from the deceased upon an Obligation sue the Executor or Administrator thereupon and there be debts due to others upon Iudgements Statutes or Recognisances and the Executor or Administrator suffer the Plaintiffe to recover the debt due upon the Obligation for want of pleading the Iudgements c. or doth voluntarily pay that debt and he hath noâ— Assets besides to pay the debts due upon Iudgements c. in this case he must pay so much out of his own estate towards the satisfaction of the said debts due upon Iudgements c. as he hath paid of the debt due upon the Obligation But here it must be noted that no Iudgement or Statute that is discharged or is left and suffered to lie by agrement to barre others of their debts shall be any barre to others that sue for their due debts upon Obligations c. and Covin therefore if any Executor or Administrator shall
134. Dye 185. 32. returned by the Sheriffe against the executor or administrator and not before a new execution is directed to the Sheriffe to levie the debt de bonis Testatoris and if there be none of them to be found in his hands then to levie them de bonis propriis And therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a plenè administravit generally or plead specially that he hath no more but to satisfie a Iudgement or the like and upon tryall this issue is found against him and it is found he hath in all or part enough to satifie the debt in these cases the Judgement is de benis Testatoris and thereupon an Execution is as in other cases to levie the debt de bonis Testatoris in the hands of the Executor or Administrator and for the costs de bonis propriis And upon the returne of the Sheriffe a speciall execution doth issue forth to levie the money de bonis Testatoris Et si constare poterit that he hath wasted the goods then that he shall make the execution d bonis propriis And hâ—reupon also the Plaintiffe may if he will have a Capias against the body or an Elegit against the lands of the Executor or Administrator and no other course of proceeding can or may be had against the Executor or Administrator in this case An action of debt was brought against two Executors and one Dyer 21â— of them did appeare and confesse the action and the other made default and thereupon Judgement was given to recover against them both de bonis Testatoris in their hands and execution accordingly and upon this execution the Sheriffe did returne a Devastavit against the Executor that made default only and hereupon a Scire facias went out against him alone and afterward an execution against him alone de bonis propriis Assets in this case is said to be where one dieth indebted and Termes of the Law Coo. super Litt. 374. maketh his Executor or dyeth intestate and the Executor or Administrator Assets Quid. hath sufficient in goods or chattels or other profits to pay the debts or some part thereof this is said assets in his hands and for so much he shall charged All those goods and chattels actions and commodities which were the deceaseds in right of action or possession as his own and 3â— What shall be said to be Assets in the hands of an Executor or Administrator to charge him Or not so continued to the time of his death and which after his death the Executor or Administrator doth get into his hands as duly belonging to him in the right of his Executorship and Administration and all such things as do come to the Executor and Administrator in liew or by reason of that and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargable to a Creditor or Legatee And herein these things are to be known 1. That Assets in the hands of one of the executors shall be said to be Assets in the hands of all the executors Kelw. 51. 2. That Assets in any part of the world shall be said to be Assets Coo. 6. 47. in every part of the world and therefore if that point be in issue and it appeare that there is Assets in the hands of any one of the executors or in any County or place whatsoever the Iury must find that there is Assets 3. All goods and chattels of what nature or kind whatsoever that are valuable as oxen kine corne c. Coo. super Litt. 388. shall be esteemed Assets But such things as are not valuable as a Presentation to a Church and the like shaâ—l not be accounted assets 4. All the goods and chattels that come to the executor or administrator in the right of their executorship or administration and Coo. super Litt. â—88 5. 3â— that are by Law given to them by vertue thereof in the right of the deceased for which See before at Numb 25. and which Dyer 361. Kelw. 63. are in possession shall be esteemed Assets in his hands a Coo. super Litt. 54. Dyer 36â— And therefore if a Feoffment be made to the use of the Feoffor for life and after to the use of his executors and assignes for 20 yeares in this case it seemes this 20 yeares shall be said to be assets in the hands of the executor of the Feoffor b 20 H. 7. 4. Broo. aâ—sets 22. And goods pledged to the deceased and not redeemed or the money wherewith it is redeemed when it is redeemed shall be said to be assets in the hands of the executor or administrator c See Before Numb And if the deceased doth appoint that the executors shall sell his land to pay his debts the money that is made of the land when it is sold shall be said to be assets in his hands 5. All the goods and chattels in action or in possibility Coo. super Litt. 124. 5. 31. Broo. Assets 24. Dyer 264. 121. 2 H. 4. 21. Coo. 6. 58. Kelw. 63. Dyer 362. at the time of the death of the deceased that are afterwards recovered and are gotten in possession into the hands of the executot or administraror when they are so recovered ate esteemed assets in his hands But they are never accounted assets untill they are recovered and come in possession and therefore if there be debts owing to the deceased upon Statutes or Obligations or otherwise these are never esteemed assets in the hands of the executor or administrator untill he hath recovered them So likewise if there be debt or damages recovered by a Iudgement had by the deceased but no execution is done untill execution be made this shall not be esteemed assets in the hands of the executor or administrator So if the executor bring an action of trespasse against another de bonis asportatis in vita Testatoris and he have a Iudgement for damages in this case untill he hath recovered it by execution it shall not be esteemed assets in his hands And if the Indgement be erroneous and the execution avoidable in this case albeit it bee recovered and gotten in possession yet it shall Curia Mich. 13. B. R. not be esteemed assets And therefore if one sue another and recover against him as Administraror of I S and after a Testament made by I S is produced and proved and thereby an Executor is made in this case the money recovered by the Administrator shall not be said to be assets in his hands as to any of the Creditors because the Executor may recover it from him or the debtor will have it againe And if the Executor or Administrator do never recover and get the thing into his possession he shall never bee Coo. 1. 98. Plow 84. 292. charged especially there where he hath done his best to get
with Proclamations and he in the remainder suffer the 5. yeares to passe in this case he is barred of his entrie upon the alienation for the forfeiture but it hath been held that if the tenant for life die that he shall have another 5. years time to bring his Formedon in the remainder So if the husband make a feoffement of his wives Plow 357. 368. 372. land to another upon condition which is broken and he levieth a fine of this land and the husband hath issue by his wife and dieth and the first 5. yeares passe and then his wife dieth hereby he is barred of the title by the condition but he shall have 5. yeares more to make his claime as heire to his mother But if lands be given to H for the life of A the remainder to B for life the remainder to H in fee and H is disseised and after the disseisor levie a fine and 5. years passe in this case H is barred both of his present and future estate and shall have no further time to make his claime c. and yet if Cestuy que vie and he in the meane remainder die H shall have another 5. years to make his claim to preserve his remainder In like manner it is if land be given to H for the life of A the remainder to him for the life of B the remainder to him for the life of C and he is disseised and the disseisor levieth a fine with Proclamations in this case some say H for his present right shall have 5. years by the first saving of the Statute and 5. years after the death of A by the second saving of the Statute If one disseise a feme sole and after mary her and have issue by her and the husband is disseised before mariage or after and then a fine is levied with Proclamations and the husband dieth first and afterwards the wife dieth within the 5. years the issue being of full age the 5. years passe hereby he is bound as heire to his father but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case â—â— How a fine shall enure and work feoffement or the like there the fine shall not passe any thing nor work by way of Estoppell but only by way of corroboration and shall be guided by the precedent agreement And therefore if a feoffement be made to two and their heires and after a fine is levied to them two and the heires of one of them this shall enure as a release and shall not alter the estate but if there be no precedent agreement it shall work as it may Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent and by indenture at the same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment and after a fine is levied sur conusance de droit come ceo c. accordingly in this case this fine shall enure as a fine sur release because the Conusee hath the fee before and it shall not enure by way of Estoppell albeit it bee a fine sur conusance de droit come ceo c. And Estoppell Extinguishment therefore the rent and condition shall remaine in this case and not be extinct A fine may be avoided for many causes as by the death of the parties See before at Numb 6. part 2. F. N. B. 20. f. Stat. 23. El. ch 3. after the conusance before the recording of it or by covin in the 12. Where a fine may be avoided or not And how 1. By a writ of error procuring of it Also it may be avoided for other causes as for some error in the proceeding in the suing out of the fine and this is done by writ of error but this error then that shall not make a fine voidable must be notorious because the thing is done by consent and it is a rule in Law Consensus tollit errorem And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine and both of them be within age whiles either of them be within age they may avoid the fine as against them both But if there be tenant for life and he in remainder in taile being an Infant and they two levie a fine and he in the remainder reverse it for infancy this shall not avoid the fine as to the tenant for life also A fine also is and may be sometimes avoided or at Plow 358. 359. Co. 9. 106. least lose much of his force by the claim entry or action of him that hath right to the land for if the estate contained in a fine be 2. By a claime entrie c. And by whom a claim c. may be made once within 5. years after Proclamations lawfully defeated the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations In like manner if there be tenant for life the remainder for life the remainder in fee and the first tenant for life alien and the alienee levie a fine with Proclamations and the second tenant for life claim or enter c. this doth make void the fine both against him and against him in remainder also for it is a rule That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied may make a claime or entrie to prevent the bar of the fine As tenant for his own or for anothers life tenant for years he in reversion or remainder after an estate for life or years a Copyholder or the Lord a Gardian in nature or nurture may avoyd a fine And this they may do for themselves and others for others without authority precedent or assent subsequent and the claim of one of them in this case shall availe the other And by authority also any other man may make a claim entry c. in this case for him that hath right and so he may doe also without any authority precedent if the party for whom he doth it doe afterwards agree and assent unto it But a stranger of his owne head unlesse perhaps it bee for an Infant cannot make such a claime or entry to prevent the barre of a fine except hee that hath the right doe give him authority before it be done so to doe or doe agree
same Court A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41 42. Doct. et Stud. 41. 49 50. stat 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use nature and operation of it fine and such a thing as whereof the law taketh notice for it is now become a formall and orderly manner of Assurance of lands and one of the Common Assurances of the Kingdome or a common way and meanes to passe land from one to another And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate an use may be averred upon it as well as upon Forfeiture Averment Covin a fine and it may be avoyded for covin as well as any other kind of conveyance But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon And because many of the Inheritances of the kingdome doe depend upon this Assurance and it is oft times the greatest security purchasors have for their money therefore it hath much favour from the law at this day And therefore the law will not endure it shall be disputed against for Communis error facit jus And hence it is that it shall not be avoyded for small errors for it is another rule of law Consensus tollit errorem And if a recovery be suffered by a tenant in taile hereby he hath not only discontinued barred and destroyed the estate taile and so defeated himselfe and his issues the former owner of the land and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only but also all former estates leases and charges made by him in remainder or reversion Co. 1. 62. 25. Doct Stud. 49. 44 Ed. 3. 22â— for as when the estate taile in possession is not barred by a recovery the estates in reversion or remainder are not barred for Quod non in magis propinquo non in magis romoto valebit So it is è converso where the estate taile in possession is barred by the recovery all the remainders and the reversions Conditions charges incumbrances and estates dependent upon it are barred also except it be in some speciall cases where the remainder or reversion is in the King And therefore if A be tenant in taile the remainder to B in taile the remainder to C in fee and B or C doth make a lease for years of the land or grant a rent charge out of the land or enter into a Statute or the like or grant the remainder or reversion upon condition and after A doth suffer a common recovery of the land and after dieth without issue in this case the recoveror shall hold the land discharged of all these estates and charges in remainder But otherwise it is if A himselfe make a lease or enter into a Statute and then suffer a common recovery of the land in this case this recovery doth not avoyd but affirme the lease or charge for whereas it was before voydable by the issue in taile or him in remainder or reversion now it is good against them all and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile This kind of Assurance therefore is in some respects better then a fine for a fine will barre the heire in taile but not him that is in the remainder or reversion but a recovery will barre them all In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery And who shall be barred and bound thereby or not West Sym. ubi supra Co. super Lit. 372. requisite 1. That there be a demandant a tenant and a vouchee as the efficient causes thereof for if either of these be wanting it is not a compleat recovery And therefore if a common recovery be had against a tenant in taile without a voucher this is voyd And for this it is to be knowne that such persons and by such names may be demandants tenants and vouchees in recoveries as may be cognisors and cognisees in fines a Benets case Hobarts Rep. 275. Pasc Pasc 9 Jac. Earle of Newports case adjudged And therefore a recovery suffered by an Infant appearing by his Guardian is good and will Infant Woman covert bind him and all others b Co. 10. 43. Plow 515. 2 Doct. stud 52. Co. 5. 40 41. West ubi supra So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others 2. That there be land demanded as the matter and that the thing be demandable And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had a writ of entry for the suffering of a recovery may be had save only it may not be de fossato stagno piscaria un ' Carucat ' terre estoveriis homag fidelitat ' de servitiis â—aciendis de bovata marisci de selion ' terre de gardino cottagio crofto virgata terre fodina minerae mercatu nec de superiori camera And yet of some of these also it may be by other names Also a recovery may be had of a rent common advouson franchises and the like but not of an annuity 3. That it be had and Co. 3. 3. stat 23 Eliz. cap. 3. suffered in that order and forme as law requireth viz. that there be a writ of entry brought an appearance of the tenant in fait a voucher and an appearance of the tenant in Law the vouchee Judgement and Execution in manner as aforesaid for if there be any substantiall defect in these things the recovery may be thereby avoided by writ of error but if it be only in forme it will not hurt 4 That there be a lawfull tenant to the Precipe i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the â—reehold either by right i. that hath an estate for life at least in the land or by wrong i. that is a disseifor of the land demanded and whereof the recovery is had And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow 514 Doct. Stud. 49. See infra in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together the fine is sued out first for this doth make the Conusee tenant of the free-hold of the land and then the recovery is had against him And when the recovery is to be had of a reversion and that there is an estate for life in being
one grant tot ' ill'Maner ' de D. C if it be but one manor the words shall be taken for totum illud Manerium Fit Grant 41. Plo. 317. Co. 5. 12. 22. ass Pl. 61 Perk. Sect. 110. if two manors then it shall be taken for tota illa maneria And here note that most of all these rules run through all the cases Note of exposition he reafter following * The exposition of the severall parts of the deeds of grant And how the words and sentences therein shall be taken 1. In the premisses and what doth passe by the grant of a thing Touching things granted these rules are first to be known 1. When any thing is granted all the means to attaine it and all the fruits and effects of it are granted also and shall passe inclusive together with the thing by the grant of the thing it selfe without the words cum pertinentiis or any such like words Cuicunque aliquid conceditur conceditur etiam id sine quores ipsa non esse potuit As by the grant of Conusance of pleas is granted the Ordinary processe to bring causes to judgment By the grant of a ground is granted a way to it By the grant of Trees is granted with all power to cut them down and take them away by the grant of Mines is granted power to digge them and by the grant of fish in a mans pond is granted power to come upon the banks and fish for them Co. super Lit. 152. Lit. Sect. 572. 229. Co. 4. 86 87. 8 H. 7. 4. Bro. Grant 86. 144. 43 Ed 3. 22. Co. 10. 10. 64. super Co. Lit. 307. 2. The incident accessary appendant and regardant shall in most cases passe by the grant of the principall without the words cum pertinentiis but not è converso for the principall doth not passe by the grant of the incident c. Accessorium non ducit sed sequitur suum principale And therefore by the grant of a reversion without naming the rent the reversion after an estate taile for life or years and the rent reserved upon the estate will passe so as the tenant atturne to the grant but by the grant of the rent the reversion will not passe So by the grant of a manor the Court Baron therunto belonging wil passe by the grant of a house or ground the wayes thereunto belonging doe passe by the grant of errable land the common appendant thereunto will passe by the grant of Mills the waters flood gates and the like that are of necessary use to the Mills do passe by the grant of a house the estovers appendant thereunto will passe by the grant of a manor the advowsons appendant and villaines regardant thereunto passe by the grant of a Faire the Court of Pipowders will passe by the grant of homage or rent the fealty will passe and by the grant of Escuage homage and fealty will passe But divers things that by continuall enjoyment with other things are only appendant to others as warrens leetes waifes estraies and the like these will not passe by the grant of those other things and therefore if one have a Warren in his land and grant the land by this the warren doth not passe And yet if in these cases he grant the land cum pertinentiis or with all the profits priviledges c. thereunto belonging by this grant perhaps these things may passe And here know that a reversion may be parcell or appendant to a thing in possession and passe by the grant of it but a possession cannot be parcell or appendant â—8 H. 6. 38. Co. 11. 47. 50. Plow 103. Bro. Grant 60. 129. Co. 1. 7. 28. to a thing in reversion And therefore if one make a lease for life of a manor excepting 20. acres of it and after grant the reversion of the manor by this grant the 20. acres will not passe So if one be disseised of an acre parcell of a manor or of common appendant to the manor and before an entry or recontinuance of the acre or common he grant the manor to a stranger by this the acre of land or common will not passe But otherwise it is in case where a lease for years only is made of parcell of a manor And if a lease be made for life of 20. acres parcell of a manor and after the manor it selfe is granted by this the reversion of the 20. acres is granted and will passe also And if a man make a feoffment in fee of an acre of land parcell of a manor and after repurchase it and then grant the manor this acre will not passe by this grant for it is not united by the new purchase But it is otherwise of trees for if a man make a lease for life of a manor or other land excepting the trees and after grant the reversion of the manor or land to another hereby the trees doe passe And if a man make a feoffment in fee of a manor excepting the trees and after the feoffee buy the trees in this case the trees are united againe so that if the feoffee sell the manor the trees shall passe with it If I lease an acre of land to which an advowson is appendant for terme of life reserving the advowson and after doe grant the reversion of that acre with the appurtenances hereby the advowson doth not passe But if I grant the advowson for terme of life reserving the acre and after grant the acre with the advowson cum pertinentiis by this the advowson doth passe If land be appendant to an office there by grant of the office with the appurtenances the land will passe without livery of seisin And if an office be appendant to land there by the grant of the one the other will passe 3. That which is parcell or 14 H. 8. 25. Co. 11. 50. of the essence of a thing albeit at the time of the grant it be actually severed from it doth passe by the grant of the thing it selfe And therefore by the grant of a Mill the milstone doth passe albeit at the time of the grant it be actually severed from the Mill. So by the grant of a house the dores windows locks and keyes do passe as parcell of it albeit at the time of the grant they be actually severed from the house 4. By the grant of the land or ground 14 H. 8. 1. Co. super Lit. 4. it selfe all that is supra as houses trees and the like is granted for Cujus est solum ejus est usque ad coelum also all that is infra as Mines earth clay quarres and the like And by the grant of a 12 H. 7. 25. house the ground whereon it doth stand doth passe 5. When any matter of interest or profit is granted the grant shall be taken largely But when any matter of ease or pleasure only is granted Plow 289. 19 H. 6. 4. as a walk or the like
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
If two Executors sue together and one of them is summoned and severed in this case he that is summoned may before Iudgement Dyer 310. 210. 16 H. 7. 4. release the duty but if the other prosecute to Iudgement first and then he that is severed acknowledg satisfaction this will not benefit the Defendant nor barr the rest that are Plaintiffes in the Iudgement And if 3 Executors sue and 2 are summoned and severed and the 3 recover and dye in this case the other two shall have execution See more at Numb 27. supra â— One Executor or Administrator cannot give or sel any of the goods or chattels of the deceased to another Executor or Administrator 〈◊〉 What act one Executor may do to another And what remedy or action one Executor or Administrator may have against another or not 27 H. 8. 21. 6 H. 7. 5. Plow 343. â—itz Executors 6. and therefore they may not make division of the goods amongst themselves and regularly one of them cannot sue another of them And therefore if one keep give or sell all the goods release debts or the like in the disturbance of the execution of the Will or due Administration of the estate it seemes the other hath no remedy against him except it be in the case of Covin before But if all the residue of the goods and chattels after debts and legacies paid be given to one of the Executors alone and after the debts and legacies paid the rest do detaine it or any part of it from him in this case perhaps hee may have some remedy against them If the Debtor make his Creditor and another his Executors and 〈◊〉 483. the Creditor doth refuse the executorship and the other doth accept it in this case the Creditor may sue the executor for this debt But if both prove the Will and the Debtor dye the surviving Co-executor cannot sue the executor of the debtor for this debt And if one make a woman and two others his executors and a Creditor before shee doth accept of the executorship doth marry her in this case hee may sue the other executors for this debt but if shee have accepted of the executorship first contra 32. Devastavâ—t Qâ—id What shall be said a Devastavit and wasteing of the goods of the deceased by an Executor or Administrator And how he shall be charged thereupon 〈◊〉 5â—3 â—oo 532. Doct. St. 75. Perk se 488. 570. Kelw. 59. A Devastavit or waste in an executor or administrator is when he doth misimploy the estate of the deceased and misdemean himselfe in the managing thereof against the trust reposed in him And this may be done divers wayes as 1. When the Executor or Administrator doth bestow more upon the Funerals of the deceased then is meet having respect to his degree and estate 2. When he doth pay Legacies in money or assent to Legacies given in other things before the debts are paid and hath not enough besides to pay the debts 3. When he doth not pay the debts in that order and manner as is before set down but doth pay them first he should pay last and he hath not enough to pay them all 4. When he doth release a debt or duty due to the deceased before he doth receive it or when the goods of the deceased being taken from him he doth release to him that doth take them the action whereby he may recover them 5. When he doth sell the goods of the deceased much under value especially if it be with covin as to his near friends to his own use to have money under hand or the like but otherwise to sell them under value especially where he cannot conveniently make more of them is no waste All Dyer 185. Coo. 5. 32. Old B. of Entries 11. these and such like acts as these are said to be a waste in an Executor or Administrator and being discovered against him by the returne of the Sheriffe or as some think by enquest of office it will produce this effect to make the Executor or Administrator chargable for so much as he hath misimployed and wasted de bonis propriis so that any Creditor may charge him for the debt due to him from the Testator as for his own proper debt and for so much the execution shall be made against him upon own body lands and goods And yet so as one Executor or Administrator shall not be Dyer 210. Doct. St. 78. charged for the waste of another for if there be many Executors and one of them only doth commit the waste he only shall be punished for this waste And the Executor or Administrator if he do commit a waste in the gift or sale of goods shall answer it alone for he to whom the goods are given or sold shall not be punished for it neither shall the executor or administrator of the executor or administrator be punished for it after his death And howsoever the husband shall be charged in a Devastavit for the waste of himselfe or his wife where she is an executrix whiles they both live 2 H. 7. 15. Coo. 5. 2â— M 3. Ia. B. R. together yet if a woman executrix take a husband and during the marriage he or she doth commit a waste and after she die in this case it seemes the husband shall not be charged for the waste himself or his wife did Sed quere of this For if a void Administration be committed and the Administrator do waste the goods Coo. 6. 1â— and after the Administration is committed to another in this case the first Administrator mae be charged by the Creditors for the waste done in his time But an executor or administrator may lawfully sell or convert the goods of the deceased to his own use Dyer 2 187. Plow 543. so as he convert the money to the use of the deceased in payment of debts or the like and pay so much of his own money as the goods so converted to his use are worth and these acts are not esteemed a waste in him Also he may sell any speciall Legacy that is given and this is no waste in him â—owbeit it is a wrong to the Legatee if there be assets to pay debts besides And when he hath enough to pay all the debts and Legacies then he may dispose of the whole estate how he will without any prejudice to himself at all An executor of his own wrong is one that is neither lawfull executor nor administrator and yet doth take upon to do and act such Termes of the Law Kelw. 59. 93. Dyer 105. 157. 255. Coo. 5. 32. â—â—oo Executor 162. things as are only fit for and proper to an executor or administrator 33. Executor of his owne 〈◊〉 Who shall be said to be so And what act shall make him so to be accounted And what act such an Executor may do And how hee shall be charged or not as to take
to it after it is done And therefore if a stranger of his owne head will make an entry or claime into land whereof a fine is levied whereunto I have right and he doe it to my use and I doe not agree to it within the 5. yeares this entrie or claime will not avoid the fine And yet it was held by Just Dodridge M. 2 Car. B. R. that if a stranger enter in my name and to my use that have the right that this doth vest the estate in me before agreement and I shall be said to agree untill I doe disagree A fine also is and sometimes may be avoided by plea As by Stat. 4 H. 7. c. 24. Co. 3. 141. 88. Dyer 334. 3. By a plea. Averment of the continuance of seisin of the Land in another at and before the time of the fine levied and that partes finis nihil habuerâ—nt tâ—mpore levationis finis and then he must shew in whom the estate was As if lessee for yeares or a disseisee levie a fine to a stranger that hath nothing in the land or A be disseised by B and B bee disseised by C and B levy a fine to D or one that hath a right of a remainder only or a disseisor make a gift in taile and the donee make a feoffement to A and after levie a fine to a stranger that hath nothing in the land But this plea it seems neither parties nor privies albeit they bee issues in taile may have at this day but strangers only and therefore in the last case the disseisor and not the issue in taile may avoyd this fine by this plea. But if a Collaterall Ancestor of whom the issue in taile doth not claim the land levie such a fine the issue may by this plea avoid it It seems also the issue in taile may have this plea to a fine Sur Release only Also there is a plea by which as it seems a fine hath been avoidable which in effect is nothing else but an averment of seisin still Co. 3. 84. Dyer 334. 290. Stat. 27 E. 1. c. 1. in the demandant or plaintiffe or his heires before at and after the time of the fine levied And this plea as it seems no man may have at this day but the issue in taile only to avoid a fine levied Sur grant Render by the Ancestor in taile and not to avoid a fine levied Sur Conusance de droit come ceo que il ad de son done c. And a feme Covert to avoid a fine levied by her husband alone If there be two of one name and one of them levie a fine of the land of the other or a stranger levie a fine in the name of him 34 H. 6. 19. 19 H. 6. 44. that is owner of the land in both these cases the fine may be avoyded by pleading the speciall matter And yet some hold that in this case the party hath no remedy but by action of disceit A fine also is and sometimes may be avoided by the sentence of 4. Pâ—a Vacat a Court when it appeareth to be gotten and obtained by some notorious fraud or practise And now it is high time we come to the second kind of common assurances made by matter of record viz. a Common Recovery CHAP. III. Of a Common Recovery A Recoverie in generall is the obtaining of any thing unjustly 1. Common Recovery Quid. Co. super Lit. 154. See the Preamble of the stat of 23 H. 8. cap. 10. 23 Eliz. cap. 3. Doct. Stud. 41. West Sym. tit Recovery taken or detained by judgment or triall of Law And it is either a common recoverie which is such a recovery as is used for a common assurance of land or other recovery which is not used as an assurance of land And the common recovery that is used for the assurance of land is nothing else but â—ictio juris or a certaine forme or course set downe by Law to be observed for the better assuring of lands and tenements to men And this is somewhat after the example of the recovery upon Title which is without consent and contrary to the will of him against whom the same is had for Recoveror Recoveree Vouchee there is in this a colourable suit wherein there is a demandant which is called the Recoverer and a tenant which is called the Recovere and one that is called to warrant upon a supposed warranty which is called the Vouchee The common recovery is somtimes with a single voucher which 2 Quotuplex is when the writ is brought against him that is to passe the land immediately and he doth vouch over the common vouchee And sometimes it is with a double voucher which is when the writ is brought against another to whom he that is to passe the land hath aliened it and he doth vouch him that is to make the assurance and he doth vouch over the common vouchee and this is the â—urest way and the saâ—est kind of recovery In this formality of a common 3 The manner and order of suffering a Common Recovery recovery the course is that by agreement of the parties a reall See the places before Co. 1. â—4 10. 43. 45. action is begun by a writ of entry brought by him that is to have the land assured against him that is to make the same assurance if it be with a single voucher or if it be with a double voucher against him to whom he that is to make the assurance hath aliened the land And in this suit the recoveror that doth bring the action doth â—urmise that the tenant against whom the writ is brought hath no right to the land but that the recoveror hath right thereunto and that the tenant came to it from such a stranger whom the demandant doth name And to this the tenant doth appeare in person or by Atturney and then doth enter into defence of the land but in pleading doth vouch to warrant i. doth alleage that he bought the land of I. S. a stranger who in the conveyance thereof bound himselfe and his heirs to warrant and make good the title to him or them to whom it is conveyed and thereupon he prayeth that I. S. may be called in to defend the title and then hee is allowed by the Court to call in I. S. to say what he can for the justifying of his right to the land before he so conveyed it And hereupon I. S. doth appeare and make shew as if he would defend the title but doth pray a further day may be assigned him to make his defence which being granted him by the Court at the day appointed he by agreement covin and assent of the parties doth not come in but make default And thereupon the land is to be recovered by him that brought the writ against the tenant and he is left for his remedy to I. S. upon his warranty and accordingly
judgment is given by the Court that the demandant or recoverer shall recover the land demanded against the tenant and that the tenant shall recover so much land of I. S. of his own land in recompence for the land recovered from him which he ought to have warranted and defended but suffered to be lost And this recovery over is called Recovery in value or pro Rata Quid. F. N. B. 1 34 Co 9. 6. a recovery in value or pro Rata But if the recovery be with a double voucher or a treble voucher I. S. is upon his appearance to call or vouch to warrant I. D. and to alleage in the same manner as the tenant doth and so pray that I. D. may come in and thereupon I. D. doth appeare and make default And so if there be more vouchers and then there must be severall recoveries over in value against every one of them but he that is the last vouchee is alwaies the common voucher who is one of the â—ryers of the Court of Common Pleas a man not worth any thing and one that hath no land to render in value upon the supposed warranty And by his devisei grounded upon the strict Principles of law the first tenant doth wllingly let goe the land for the assurance of the Purchasor and yet in truth hath no recompence over because the vouchee hath no land to â—ender in value And by this meanes if one have â—n estate taile in lands which he is desirous to sell or to convert into an estate in fee simple the same is commonly done for the tenant in taile doth cause the purchasor or some friend of his to bring a writ of entry against him for this land and he appeareth to the writ and in pleading â—aith that the land came to him or his Ancestors from such a man or his ancestors who in the conveyance bound themselves to warrant it And thereupon that man is called in who doth appeare and make default and thereupon Judgement is had against him in manner as aforesaid Or if he would have the recovery with a double voucher then doth he by fine feoffement or deed of bargaine and sale inrolled discontinue the land and then cause the recoveror that is to have the land to bring his writ of entry against the discontinuee and he doth vouch the tenant in taile who doth vouch over the common vouchee and so it is done and by this the estate taile that the tenant in taile hath or had is barred and bound for that it appeareth now he had no power to entaile the land whereunto he had no just title and besides â—â—e shall recover a recompence over in value and this is adjudged in law to goe in succession of estate as the land should have done which is the reason why the recovery is a barre to all that are in remainder and reversion aswell as to the issues in taile And in the suffering of these recoveries the tenants and vouchees Experientia doe appeare most commonly in person in Court and so the recovery is finished in the court presently without more doing but sometimes they will not or cannot appeare in person and then they doe use to appear and suffer the recovery by Atturney And in that case there must be a Conusance for a warrant of Atturney Warrant of Atturney taken to authorize the Atturney or Atturneys in this manner if it be for a treble voucher Glouc'ss Prec ' A S B uxori ejus quod juste c. redd ' C D Manerium West Sym. ubi supra de N cum pertinen ' c. que clam ' esse jus â—t hered suam in que iidem A B non habent ingress nisi post disseisinam quam H H injuste fine Judicio fecit prefat ' C infra 30. Annos jam ultim ' â—lapsos c. ut dic ' c. Glouc'ss A S B po lo suo W W R R Aâ—tornat sâ—â—os conjunctiâ— divisim versus C D de placito terre Glouc'ss M M gen quem A S B vocant ad warrant po lo. suo I I L L Attornat ' suos conjunctim divisim versus C D de placito terre Glouc'ss G W gen quem M M voc inde ad warrant ' po lo. suo R G R S Attornat ' suos conjunctim divisim versus C D de placito terre And in these cases to make two atturneys at the least and to Co. 10. 43. Co. 1. 94. give them an authority joyntly and severally that if one of them dye before the recovery be suffered the other may have power to doe and dispatch it And these warrants of Atturney for the suffering of recoveries are to be knowledged and certified in the same manner as the conusances of fines knowledged in the Country are save only that Recognisances for warrants or atturney for recoveries may be taken by any Judge of the Court of Common Pleas or any Serjeant at law without a Dedimus Potestatem But if any others take it they use to doe it by a speciall Dedimus Potestatem Dedimus Potestatem which is to command the Commissioners therein named to come to such persons and to take the names of their atturney or atturneys in the suit and to certifie the same into the Chancery under their Seales such a day And if there be any woman covert that is to make the conusance it seemes shee is to be examined as in the Examination case of the conusance of a fine And when this is done the recoveries may be suffered by the atturneys without the personall appearance of the parties And this is as good a recovery as the other which is suffered by the persons themselves appearing in Court but that it will require longer time for the perfection of it for in this case there must goe forth a Summoneas ad warran ' which must have nine Returnes ere the recovery can be perfected and by that time one of the parties may be dead And when the recovery is thus suffered by the parties in person or by their atturneys the same is to be entred by some one of the Clarks of the Court of Common Pleas upon the Rolles of the same Court there to remaine upon Record And herein there must goe forth a writ of Execution called an Habere facias seisinam which is sent to the Sheriffe of the Habere facias seisinam County where the land doth lye to put the Recoveror in possession of the land except the recovery be of a reversion of land after a lease for years of it in which case the reversion shall be in the recoverors by a claime without any writ And this writ the Sheriffe doth returne as executed according to the contents thereof albeit in truth he never doe any thing upon it And after this all the same proceeding is to be Exemplified by the Clarke of the