he hath a Deed or if it be by parol then an action upon his Case or an action of deceipt c. The proces whereby the vouchee is called is a Summon ad Warr. whereupon if the Sheriff return that the vouchee is summoned and he maketh default Mag. Cape ad valentiam is awarded when if he make default again then judgement is given against the Tenant and he over to have in value against the vouchee But if the Sheriff return that he hath nothing then after Writs of Alias and pluries a Writ of sequatur sub suo periculo shall be awarded c. and the demandant shall not have judgement to recover in value because the vouchee was never warned Vide Libr. Fo. 101. b. When the tenant being impleaded within a particular jurisdiction as in London c. Voucheth one to warr and prayes that he may be summoned in some other County out of the jurisdiction of that Court this is called a forrain voucher By the Civil Law every man is bound to warrant the thing that he selleth or conveyeth albeit there be no expresse warrant but the Common Law bindeth him not unlesse there be a warranty either in Deed or in Law for Caveat emptor c. There be three kindes of disclaimer i. e. in the Tenancy in the bloud and in the Seigniory F.N.B. 197. 151. b. In the case of Homage Auncestrel which is a special warranty in Law by the authority of Littleton the Lands generally that the Lord hath at the time of the voucher shall be liable to execution in value whether he hath them by discent or purchase But in the case of an expresse warranty the heir shall be charged but only for such Lands as he hath discent from the Auncestrel which created the warranty F.N.B. 152. And note the Lands of the vouchee shall be liable to the warranty that the vouchee hath at the time of the voucher for that the voucher is in lieu of an action and in a Warr. Cartae the Land which the defendant hath at the time of the Writ brought shall be liable to the warranty Fo. 102. a. Upon a judgement in debt the Plaintiff shall not have execution but only of that Land which the Defendant had at the time of the judgement for that the action was brought in respect of the person and not in respect of the Land Vide Lib. c. If a man give Lands in Fee with warranty and binde certain Lands specially to warranty the person of the Feoffor is hereby bound and not the land unlesse he hath it at the time of the voucher 32. E. 1. voucher 292. Sect. 146. En Chesc ' case lou le Seignior poit disclaymer c. Et de ceo poit disclaimer en Court de Record son Seigniory ē extinct le rerant tiendra del Seignior procheine Paramount c. Meliorem conditionem Ecclesiae suae facere potem praelatus deteriorem nequaquam and again Ecclesiae suae condici melior facere possunt sine consensu deteriorem non possunt sine consensu Expedit reipublicae ut sit finis litium vide fol. 103. a. If an action of Debt upon an Obligation against an Abbot the Abbot acknowledgeth the action and dieth the successor shall not avoid Execution though the Obligation was made without the assent of the Covent for he cannot falsifie the Recovery in an higher action Et res judicata pro veritate accipitur and this is but a Chattel 7 Reg. 2. tit Abbot 7. Sect. 147 and 148. If the tenant make a feoffment in fee upon condition and dieth his heir performeth the condition and re-entreth the Homage ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate 1. Mich. 14 15 El. Tenant que fist homage al pere ne ferre homage al fits fo 103. b. vide le except a ce rule Sect. 149 150 c. Fealty est incident a chesc ' atturnment del tenant grant le seigniory est grant None shall do homage but the tenant of the Land to the Lords of whom it is holden fol. 104. a. 8 Ed. 4. 27. b. * The recovery of the seigniory differeth from the alienation of the Lord which is his own act or the descent of the seigniory to the heir which is an act in law for that by the Recovery the state of him that received the homage is defeated for it shall not lie in the mouth of the tenant to falsifie the recovery which was against his Lord c. for that the tenant had nothing therein c. If a man had made a Lease for years to begin at Michaelmas reserved a rent and he had suffered a Common Recovery before Michaelmas the Recoverer should distrain for rent which the lessor before the recovery could not 28 H. 8. Dyer 41. fol. 104. b. The tenant ought to seek the Lord to do him homage c. for this service is personal c. but rent may be paid and received by other and therefore a tender of the rent upon the land is sufficient fo 105. a. CHAP. VIII Grand Sergeanty Sect. 153. GRand Sergeanty est lou home tient ses terres del Roy per les services que il doit faire en son proper person com de port le banner del Roy out sa lance c. Ceo tenure en ten per service de Chivalry mes le livery paiam al Roy pur reliese le value ouster les charges reprises des terres pur an S. 154 158. Magna Sergeanty i. e. Magna Servitium because it is greater and more worthy than Knight service for this is Revera servitium Regale and not Militare onely This Tenure hath seven special properties 1. To be holden of the King onely 2. It must be done when the tenant is able in proper person 3. This service is certain and particular 4. The Relief due c. differeth from Knights service 5. It is to be done within the Realm 6. It is subject to neither Aid pur faire fits Chivaler or file mariage And 7. it payeth no Escuage fo 105. b. 11 H. 4. 34. F.N. B. 83. There were divers Lords Marshals of England before the reign of R. 2. yet King R. 2. created Tho. Moubrey Duke of Norfolk and first Earl Marshal of England per nomen Comitis Marischalli Angliae in Rot. pat 20. R. 2. Thesaurus Regis rospicit Regem Regnum And Census Regis est anima reipub fol. 106. a. Dyer 4 El. 213. Where the Grand Sergeanty is to be done to the Royal person of the King or to execute one of those high and great Offices there his tenant cannot make a Deputy without the Kings license c. But he that holdeth to serve him in his War within the Realm or by Cornage may make a Deputy fol. 107. a. vide libr. c. qu. CHAP. IX Petit Sergeanty Sect. 159. PEtit Serjeanty est lou home tient c. del
donques il est le fait d'ambideux c. The feoffee is no way made party to make it being made in the first person but onely by the clause of putting his Seal thereunto Vide Lib. c. Sect. 374. If A. by Deed indented between him and B. let lands to B. for life the remainder to C. in fee reserving a rent Tenant for life dyeth he in remainder entreth into the lands he shall be bound to pay the rent because he agreeth to have the lands by force of the Indenture 50 E. 22. 3 H. 6. 26. b. fo 231. a. An Indenture of lease is ingrossed between A. of the one part and D. and R. of the other part which purport a demise for years by A. to D. and R. A. sealeth and delivereth the Indenture to D. and D. seal the Counterpane to A. but R. did not seal and deliver it And by the same Indenture it is mentioned that D. and R. did grant to be bound to the Plaintiff in 20 l. in case that certain conditions comprised in the Indenture were not performed And for this 20 l. A. brought an action against D. onely and sued forth the Indenture The Defendant pleaded That it is proved by the Indenture that the demise by Indenture was made to D. and R. which R. is in full life and not named in the Writ Judgement of the Writ The Plaintiff replied That R. did never seal and deliver the Indenture and so his Writ was good against D. sole And there the Counsel of the Plaintiff took a diversity between a rent reserved which is parcel of the lease and the land charged therewith and a sum in gross as here the 20 l. is for as to the rent they agreed That by the agreement of R. to the lease he was bound to pay it but for the 20 l. that is a sum in gross and collateral to the lease and not annext to the land and groweth due onely by the Deed and therefore R. said he was not chargeable therewith for that he had not sealed and delivered the Deed. But in as much as he had agreed to the lease which was made by Indenture for the same sum in gross and for that R. was not named in the Writ it was adjudged that the Writ did abate 38 E. 3. 8. a. vide 44 E. 3. 11 12. Qui sentit commodum sentire debet onus transit terra cum enere Sect. 375. Le feoffer poit pledere condition en fait Poll pur ceó que il est privy al fait c. Felix qui potuit rerum cognoscere causas Et ratio melior semper praevalet Fol. 231. b. If the Deed remain in one Court it may be pleaded in another Court without shewing forth Quia lex non cogit ad impossibilia 40 Ass 34. l. 5. 75. b. Wymarks 12 H. 4. 8. F. N. B. 243. Sect. 376. When divers do a Trespass the same is joynt or several at the will of him to whom the wrong is done yet if he release to one of them all are discharged because his own Deed shall be taken most strong against himself but other wise it is in case of Appeal of Death c. As if two women be joyntly and severally bound in an Obligation if the Obligee release to one of them both are discharged and seeing the Trespassers are parties and privies in wrong the one shall not plead a Release to the other without shewing of it forth albeit the Deed appertain to the other 27 E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. 22 E. 4. 7. 13 H. 8. 10. 34 H. 8. estrange al fait 21. Sect. 377. Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem c. Ratio est radius divini luminis If a man hath an Obligation though he cannot grant the thing in action yet he may give or grant the Deed viz. the Parchment and Wax to another who may cancel and use the same at his pleasure Omnia praesumuntur legitimè facta donec probetur in contrarium Injuria non praesumitur fo 232. b. There be three kindes of unhappy men 1. Qui scit non docet Infelix cujus nulli sapientia prodest 2. Qui docet non vivit Infelix qui recta docet cum vivit inique 3. Qui nescit non interrogat Infelix qui pauca sapit spernitque doceri Inter cuncta leges percunctabere doctos Sect. 378. Estates que homes ont sur condition en ley sont tiels estates que ont un condition per la ley a eux annex comment que ne sont specifie en escript sicome home grant person fait a un auter le office del Parkership pur terme de son vie le estate que il ad en le office sur condition en ley sc que le Parker bien loialment gardian le Park c. issint est de offic ' de Seneschalship c. auterment bien lirroit al grantor a ses heires de luy ouste c. Quia in eo quo quis delinquit in eo de jure est puniendus 15 E. 4. 3. l. 5 E. 4. 26. 28 H. 8. Bendloes c. Lib. 6. fo 50. 95. 96 99. Mich. 33 E. 1. Coram Rege in Thesaur ' levesque de Durhams Case Forresta est tuta ferar'mansio non quarumlibet sed silvestrium non quibuslibet in locis sed certis ad hoc ideonis unde Foresta E. mutata in O. quasi feresta hoc est ferarum statio Ockam vide Bract. fo 231. 316. Non-user of it self without some special damage is no forfeiture of private Offices but Non-user of publike Officers which concern the administration of Justice or the Commonwealth is of it self a cause of forfeiture Pl. 379 380. 2 H. 7. 11. 30 H. 6. 32 c. There is a diversity between Officers that have no other profit but a collateral certain fee for there the grantor may discharge him of his service as to be a Baily Receiver Surveyor Auditor c. the exercise whereof is but labour and charge to him but he must have his Fee for the main Rule of Law is That no man can frustrate or derogate from his own grant to the prejudice of the grantee 18 E. 4. 8. 31 H. 8. Grants Br. 134. 34 H. 8. ibid. 93. 11 El. Dyer 285. But in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his office fee profit and all There is another diversity where the grantee besides his certain fee hath profits and avails by reason of his Office as the Office of Stewardship of Courts there the grantor cannot discharge him of his service or attendance for that should be to the prejudice of the grantee 22 H. 6. 10. 3. 6 E. 6. Dyer 72. Conditions in Law be of two natures i.e. by the Common Law and by Statute and those
a good bar in a Qu. imp because it is a mixt action 22. H. 6. 27. b. A disseisor that hath nothing in the land may plead a release of actions personalls because damages are to be recovered against him 11. Ass 9. 18. E. 3. 2. 23 24. And the Tenant in an Assize shall plead a release of actions personalls to the disseisor for that plea proveth that the Plaintiff hath no cause of action against him 13. H. 4. 2. a. If the disseisee release to the disseisor all actions realls and the disseisor maketh a Feoffment in fee and an Assize is brought against them the Feoffee shall not plead the release to the disseisor for that he is not privy to the Release for a release of actions shall only extend to privies If the disseisee release all actions to the disseisor and dye this doth bar him but for his life So note a diversity between a release of right and a release of actions 19. H. 6. 23. a. Sect. 496. Fol. 286. a. If the disseisee release all actions to the heir of the disseisor which is in by discent he hath no remedy to recover the land but yet the disseisee hath a right for that he hath released his actions and not his right If the heir of the disseisor make a Feoffment in fee to two and the disseisee release to one of the Feoffees all actions the survivor shal not plead this Release Note when a man hath severall remedies for one and the self-same thing be it reall personall or mixt albeit he release one of his remedies he may use the other 19. Ass 3. 30. E. 3. 19. 6. 21. H. 7. 23. Sect. 498. Fol. 286. b. If the Plaintiff in an action of Detinue of Charters which concern the inheritance of his land can declare of one Charter in especiall the Defendant shall not wage his Law 41. E. 3. 2. 8. H. 6. 18. 28 29. 10. H. 6. 20. 21. H. 6. 1. 14. H. 6. 4. 14. H. 4. 23 24 27. An action of Detinue for Charters doth sound in the realty for therein Summons and severance lieth and in Detinue of goods a Capias doth lye but for Charters in speciall a Capias lieth not and yet a release of actions personalls in a Writ of Detinue of Charters is a good barre 20. H. 6. 45. 19. E. 3. Severance 14. Sect. 499. Fol. 287. a. In a Writ of Dower the Tenant pleaded that before the Writ purchased A. was seised of the Land c. untill by the Tenant himself he was disseised and that hanging the Writ A. recovered against him c. Judgement of the Writ and adjudged a good plea in which plea the Tenant confessed a disseisin in himself 15. E. 4. 4. b. Sect. 500. Fol. 287. b. Placitorum criminalium alia majora alia minora alia maxima secundum criminum quantitatem sunt enim crimina majora dicuntur capitalia eò quod ultimum inducunt supplicium c. Minora verò quae fustigationem inducunt vel poenam pilloralem vel tumboralem vel carceris inclusionem c. Bract. lib. 3. 101. b. Criminalium quaedam sententialiter mortem inducunt quaedam verò minime Fleta lib. 1. c. 15. Appellum signifieth Accusatio and the Appellant Accusator is peculiarly in legall signification applied to Appeals of three sorts 1. Of wrong to his Ancestor whose heir male he is and that is only of death whereof our Author here speaketh The 2. is of wrong to the husband and is by the wife only of the death of her husband to be prosecuted The 3. is of wrongs done to the Appellants themselves as Robbery Rape and Mayheme The word Apellum is derived of Appeller to call because Appellans vocat reum in judicium Glanv l. 7. c. 9. aestimatio capitis i.e. so much as one paid for the killing of a man Fleta lib. 1. cap. 42. Hoved. fol. 344. You shall not read of any Insurrection or Rebellion before the Conquest when the view of Frankpledge and other ancient Laws of this Realm were in their right use A release of all actions reall and personall cannot barr an Appeal of Death because that release extendeth to common or civill actions and not to actions criminall 21. H. 6 16. Roberia is a felonious taking away of goods de la Robe that is from the person 22. Ass 39. W. 1. c. 20. Sect. 502. Fol. 288. a. En appeale de Mayhem un release de touts maners actions personalls est bone plea c. for that every action wherein damages only are recovered by the Plaintiff is in Law taken for an action personall 21. H. 6. 16. Sect. 503. Fol. 288. b. Before that time that the Outlary appear of Record the Defendant doth not forfeit his goods nor the Plaintiff can be disabled nor any Writ of Error doth lie in that case 28. Ass 49. 12. E. 3. Vtlage 3. M. 4. 5. Eliz. Dyer 222. S. 197. If a man by process upon the Originall be Outlawed there he shall be restored to nothing in the personalty against the Plaintiff But whereby the Outlawry he forfeited all his goods and chattells to the King he shall be restored to them also thereby he shall be restored to the Law and to be of ability to sue c. but if the Plaintiff in a personall action recover any debt c. or damages and the Defendant be Outlawed after Judgment there in a Writ of Error brought by the Defendant upon the principall Judgment a release of all actions personalls is a good plea. And so it is where a Judgment is given in a reall action a release of all actions realls is a good bar in a Writ of Error thereupon And in this speciall case here put by Littleton wherein the Plaintiff is to recover or to be restored to nothing against the party yet for that the Plaintiff in the former action is privy to the Record a release of a Writ of Error to him is sufficient to bar the Plaintiff in the Writ of Error of the Suit and vexation by the Writ of Error And so note that an action reall or personall doth imply a recovery of something in the realty or personalty or a restitution to the same but a Writ implyeth neither of them 1. H. 4. 6. 13. E. 4. 1 2. 26. H. 8. 3. b. 29. Ass 35. 47. E. 3. 6. 35 H. 6. 19. Sect. 504. fol. 289. a. b. A release of all actions reg is no bar of execution for the execution doth begin when the action doth end And therefore the foundation of the first is an Originall Writ and doth determin by the Judgment and Writs of execution are called Judiciall because they are grounded upon the Judgement 13. H. 4. Rel. 53. 19. H. 6. 3. Where a Capias ad Sat. lieth at the Common Law and where it is given by Statute vide Sir William Herberts case lib. 3. fo 11 12. Maximes in the Law concerning Executions Ea quae
Negative pleas that be issues of themselves wherunto the Demandant or Plaintiff cannot reply no more than to a generall Issue which is Et praedictus A similiter As if the tenant do vouch and the Demandant counterpâ—â—ad That the Vouche or any of his Ancestors had any thing c. whereof he might make a feoffment he shall conclude Et hoc petit quod inquir ' per patriaÌ„ praed ' tenens similiter So in a fine Pleaded by the tenont c. the Demandant may say quod partes finis nihil habuerunt hoc petit c. And so in a Writ of Dower the Tenant plead unques seisie Dower he shall conclude Et de hoc point se c. 22. H. 6. 57. 59. 3. H. 7. 9. 12. E. 4. 13. Filiatio nou potest probari and therefore the issue must be whether the wife was ensenit the day of her husbands death 41. E. 3. 11. b. A protestation availeth not the Party that raketh it if the issue be found against him except in some speciall Case * as if a man enter into warranty and taketh by protestation the value of the Land albeit the plea be found against him yet the protestation shall serve him for the value 10 E. 4. Protest 5. Vid. S. 192. * 30 E. 3. 14. Sect. 194. Si le Seignior Mayhem son villeine il ser de ceo endite a le suit del roy sil soit de ceo attaint il ferr un fine al roy Mes le villein nava c. appeal de Mayhem because that in appeal he shall recover but damages which the Lord after execution might take again and so the judgment inutile illusory and the Law never giveth an action when the end of it can bring no profit or benefit to the pl. 1 H. 4. 6. b. Mahemium i. e. membri mutilatio Endite i. e. an accusation found by an equest of 12. or more upon their oath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse Finis Sumitur tripliciter 1. For a pecuniary punishment for an offence c. against the King 2. For a sum given by the Tenant to the Lord 3. For the highest best assurance of lands If a praecipe be brought against an infant and hanging the Plea he commeth of full age he shall be amerced for the delay after his full age Lib. 5. fo 49 Vaughans Case So if the demandant or plaint be nonfute or judgement given against him he shall be likewise amerced pro falso clamore Vide lib. fo 126. b. c. If a Writ do abate by the act of the demandant or plaintiff or for matter of form the demandant or plaintiff shall be amerced but if it abate by the act of God as by the death of one c. it is otherwise Lib. 8. fo 60. b. Bechers Case Wit wita Bote wera or were old Saxon words signifie amerciament or compensation c. Ransome ne forsque redemption de paine corporel pro fine des deniers Mirror ca. 1 S. 1. and 3. Ransome is ever when the Law inflicteth a corporall punishment by imprisonment and so is also a fine but otherwise it is of an amerciament Alwaies at the common Law when the Defendant should lose life or member the writ said Felonice c. And now albeit the Law be changed for the Plantiff shall recover but damages yet the writ of appeal saith still felonice Vita membra sunt in manu seu protestate regis Bract. Lib. 1. fo 6. This offence of Mayhem is under all felonies deserving death and above all other inferior offences Inter crimina majora minimum inter minora maximum Inutilis labor fine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit à fine Lex non praecîpit inutilia Therefore the Law forbiddeth such recoveries whose ends are vaine chargeable and unprofitable Sect. 195. Demandant and Tenant in reall actions plantiff and defendant in actions personall and mixt In a personall action brought by A. B. against C.D. the defence is and praed C.D. defendit vim injuriam quando c. Et damna quicquid quod ipse defendere debet Vide libr. c. fo 127. b. The defendant in this and the like action can plead no Plea at all before he make himself party by this part of the defence 1 E. 4. 15. Sect. 196. c. 6. Maners de homes y sont queux sils suont action judgement poit estr demand sils serront respous c. 1. Lou villein suist action euvers son Seignior 2. Lou hom est utlage sur act de debt trns. c. ou enditement 3. Vn alien c. 4. Un home que per judgment done envers luy sur un breÌ„ de premunire facias c. eÌ„ hors del protection le roy 5. Un home enter c. en Religion 6 Un home que est excommenge per le ley de St. Esglise Sils sorront respondus c. This is the legall conclusion of the plea when the plea is in disability of the person Fo. 128. a. By the common Law the plaintiffe or defendant the demandant or Tenant could not appear by attorney without the Kings speciall Warrant by Writ or Letters Patents Abusion eÌ„ a reteiner Attorny sans breÌ„ de la Chancery Mirr ca. 5. Attorneys point estr touts ceux aux queux le voile suffer fems ne poient este Attor ne ensans ne serfs ne nul que eÌ„ en garde non auterment faut de foy ne nul criminous ne nul essoigne ne nul que nest a le foy le roy nul que ne poit este Counter c. Mir. ca. 2. Sect. 21. If an executor c. Sueth any action utlary in the plaintiffe shall not disable him because the suit is in auter droit 21 E. 4. 49. b. 21 H. 6. 30. b. In a Writ of error to reverse an utlary utlary in that suit or at any strangers suit shall not disable the plaintiffe because if he in that action should be disabled if he were outlawed at severall mens suits he should never reverse any of them 7 H. 4. 40. When any man pleads an outlawry in disability of the person he must shew forth the Record of the Outlawry Maintenant sub pede figilli because the plea is dilatory unless the Record be in the same Court But if he plead an outlawry in bar if it be denyed he shall have a day to bring in 6 Eliz. Dyer 228. F.N.B. 241. Stanf. pl. cor 105. Note there be two kind of appearances before the Quinto exactus to avoid the outlawry viz. an appearance in Deed i.e. to render himself c. and the other is by apparance in Law i. e. by purchasing a supersedeas out of the Court where the Record is c. Tr. 44. El. in Co. banco inter Mere dolburie If the ground or cause of the action be forfeited by
the rent is behind the grantee hath election to bring a Writ of annuity * and charging the person only c. or to dâ—straine upon the Land and to make it reall * and charging the person onely to make it personall Put case that A. be seised of Lands in fee and he and B grant a rent charge to one in fee this prima facte is the grant of A and the confirming of B. but yet the grantee may have a VVrit of Annuity against both Two men grant an annuity of 20 l. per an to another although the persons be severall yet he shall have but one annuity But if the grant be Obligam nos utrumque nostr The grantee may have a VVrit of Annuity against B either of them but he shall have but one satisfaction 16 E. 2. tit annuity 47. If a rent charge be granted to a man and his heires he shall not have a Writ of annuity against the heire of the grantor albeit he hath Assets unlesse the grant be for him and his heires 2 H. 4. 13. Dyer 17 Eliz. 344. b. Vide c. Fo. 144. b. But Littl. is to be understood with some limitation for of a rent granted for owelty of partition a writ of annuity doth not ly because it is of the nature of the Land descended Also of such a rent as may be granted without Deed a Writ of annuity doth not lye though it be granted by Deed. 29 Ass p. 23. Note as to elections these diversities following 1 When nothing passeth to the Feoffee or Grantee before election c. There the election ought to be made in the life of the parties c. But when an estate or interest passes immediately to the Feoffee Donee or Gaantee there the Election may be made by them or by their heirs or executors Lib. 2. fo 36. c. Sir Row Haywards c. 2 When one and the same thing passeth c. and the Donee or grantee hath election in what manner or degree he will take this there the interest passeth immediately and the party his heires or executors may make election when they will 3 When election is given to severall persons there the first election made by any of the persons shall stand 4 In case an election be given of two severall things alwaies he which is the first agent and ought to doe the first Act shall have the. election 2 H. 7. 23. a. 5 When the granted is of things annuall and are to have continuance there the election remaineth to the grantor in case where the Law giveth to him election as well after the day as before otherwise it is when the things are to be performed unica vice 9 E. 4. 36. and â—3 E. 4. Grantee for life c. ought to bring his Writ of annuity in the disjunctive else the judgment c. shall determine his election for ever herein Fitzh is mistaken 6 The Feoffee by his act and wrong may lose his election and give the same to the Feoffer as if one infeoffe another of two acres to have and to hold the one for life and the other in tail and he before election make a Feoffment of both in this case the Feoffer shall have election to enter into which of them he will c. Note that this determination of the election of the grantee must be by action or sure in Court of Record If the grantee doth bring a Writ of annuity and at the returne thereof appear and account this is a determination of his election in Court or Record albeit he never proceedeth any further F.N.B. 152. a. 5 H. 7. 33. b So if the grantee bring an Ass for the rent and make his plaint he shall never after bring a Writ of annuity 10 E 4. 17. For an Anvowry in Court of Record which is in nature of an action is a determination of his election before any judgment given F. 145. b. It is a generall rule that the plaintiffe must have the property of the goods in him at the time of the taking 3 E. 3. 74. 6 H. 4. 2. But yet if the goods of a villain be distreined the Lord of the villain shall have a Replevy because the bringing of a Replevy amounts to a claim in Law and vests the property in â—he plaintiff But in that case if the goods of a villain be taken by a trns. the Lord shall have no Replevy because the villain had but a right 33 E. 3. Repl. 43. F.N. B. 69 F. Property ought to be tryed by Writ 30 E. 3. 22. A man cannot claim property by his Bayliffe or servant for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself for nemo punitur pro alieno delicto 5 E. 3 38. 11 H. 4. 4. fo 145. b. In a speciall case a man may have a Replevy of goods not distreined as if the Mesner put in his catrell in lieu of the cattel of the tenant peravaile that he is bound to acquite he shall have a Replevy c. 34 H. 6. 47. It is against the nature of a distresse taken c to be irreplevisable 31 E. 3. Gage DeliuÌ„ 5. And Bract. Lib 4. fo 233. a. and b. Saith Eâ—dem modo de via obstructa per breve quod justiciet propter coÌ„em utilitatem ne transeuntes ire diu impediantur quia hoc esset commune damnum in hoc vicecomes Justiciarii faciant sicut super detensionem averior contra vadium plegii propter commune utilit ne animalia diu inclusa pereant If the beasts of divers severall men be taken they cannot joyn in a Repleg but every one must have a severall Repl. and so in a Repleg it is a good plea to say that the property is to the plaintiff and to a stranger and where there be two plaintiffes that the property is to one of them 28 E. 3. 92. 2 E. 4. 23. Electio semel facta placitum cestatum oÌ„ patitur regressum Quod semel in electionibus placuit amplius displicere noÌ„ potest Note a diversity between the case * fo 65. a. aforesaid of the grant of the rent where he may take it either reall or personall and when a man may have election to have several remedies for a thing that is meerly personall or meerly reall from the beginning As if a man may have an action of account or an action of debt at his pleasure and he bringeth an action of account and appear to it and after it Nonsuit yet may he have an action of debt afterwards because both actions charge the person So it is of an Ass and of a Writ of entry in the nature of an Ass c. 28 E. 3. 98. b. 27 E. 3. 89. b. Fo. 146. a. Sect. 220. By this Section it appeareth that when in a general grant the Law doth give two remedies that the grantor may provide that the
them taketh husband and dyeth yet the terme shall survive for though all chattels realls are given to the husband if he survive yet the survivor between the joynt-tenants is the elder Title and after the marriage the feme continued sole possessed for if the husband dyeth she shall have it and not the executors of the husband but otherwise it is of personall goods fol. 185. b. vide c. Inprimis autem debet quilibet qui testaverit dominum suum de meliore re quam habuerit recognoscere postea ecclesiam de alia meliore c. Fleta lib. 2. cap. 50. Sect. 288. Chesc ' joint est sei del terre que il tient joint per my per tout sic totum tenet nihil tenet sc totum conjunctim nihil per se separatim and albeit they are so seised yet to divers purposes each of them hath but a right to a moity as to enfeoffe give or demise or to forfeit or lose by default in a Praec 40. Ass 79. Brit. cap. 35. A communi observantia non est recedendum If two joyntenants be and both they make a feoffment in Fee upon condition and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgment of Law passed from him and so it is of a gift in taile or a Lease for life c. Pl. com Brownings c. If two joyntenants make a feoffment in fee and one of the feoffors die the feoffee cannot plead a feoffment from the survivor of the whole because each of them gave but his part but otherwise it is on the part of the feoffees 14 E. 4. 5. fol. 186. a. Two joyntenants de terres c. And one of them by Deed indentâ—â— bargain and sell the Lands and the other joyntenant dyeth and then the Deed is inrolled there shall passe but a moity 6 E. 6. Tit. Faits inroll 9. Br. Sect. 289. En grant de rent charge per joint c. les tenements demurg touts foits come ils fuer adevat sans ceo que asc ' ad asc ' drt. dauÌ„ asc ' parcel de les tenem fo rs eux me les tenem sont en tiel plite come ils fueront devant le charge c. mes ou leas eÌ„ ft. per un joint a un aut per terme de ans c. maint per force de lease le lessee ad drt. en m. la terre se de tout ceo que a son lessor affiert dauÌ„ ceo per force de lease durant son Feme Fo. 186. b. If two joyntenants be of an Advowson and the one present c. and his Clark is admitted and instituted this in respect of the privity shall not put the other out of possession but if that joyntenant that presenteth dyeth it shall serve for a tittle in a Qu. Imp. brought by the survivor 11 H. 4. 54. 10 E. 4. 94. 1 H. 7. 1. b. 9 El. Dyer 259. 6 E. 4. 10. b. Doct. St. 116. F. N. B. 34. u. But yet if one jointenant or tenant in common present or if they present severally the ordinary may either admit or refuse c. such a presentee unlesse they joyne in a presentation and after the six moneths he may present by lapse But if two coperceners be c. and they cannot agree to present the eldest shall present and if her sister doth disturbe her she shall have a qu. imp and so shall the issue and the Assignee of the eldest and yet he is tenant in common with the youngest and so tenant per Curtesie of the eldest shall present 38 H. 6. 9. 5 H. 5. 10. F.N.B. 34. Sect. 290. Jointenants fils violont faire partition c. But this partition must be by Deed. Vide Sect. 249. 318. But jointenants for years may make partition without Deed 18 Eliz. 350. b. Dyer Since Littleton wrote joyntenants and tenants in common are compellable to make partition by writ Stat. 31 H. 8. c. 1. 32 H. 8. c. 32. Sect. 264. 247. 259. F.N.B. 9. b. 62. b. lib. 6. Fo. 12 13. Morrices c. If one joyntenant or tenant in common disseise another and the disseisee bring his Ass for the moity though the plaintiffe prayeth it yet no judgment shall be given to hold in severaltie for then at the common Law there might have been by compulsion of Law a partition bteween Joyntenants and tenants in common and by rule of Law the plaintiffe must have judgement according to his plaint or demand 187. a. Sect. 291. c. Baron feme sont forsq un person en ley vir axor sunt quasi unica persona quia caro una sanguis unus Lib. 4. fo 68. Tokers c. Pl. com 483. Nicholls ca. If an estate be made to a man and a woman and their heirs before marriage and after they marry the husband and wife have moities between them If a Feoffment be made to a man and a woman and their heires with warranty and they entermarry and after are impleaded and vouch and recover in valew moities shall not be between them for though they were sole when the warranty was made notwithstanding at the time when they recovered and had execution they were husband and wife in which time they cannot take by moities Fo. 187. b. Vide c. A right of Action and a right of entry may stand in jointure Vide Sect. 302. F.N.B. 193. k. A right of action or a bare right of entry cannot stand in joynture with a freehold or inheritance in possession and therefore if the husband make a Feoffment of the moity this was a discontinu of that moity and the other joyntenant remained in possession of the freehold and inheritance of the other moity which for the time was a severance of the joynture Statute of 32 H. 8. ca. 1. If two joyntenants be of a rent and one of them disseise the tenant of the Land this is a severance of the joynture for a time for the moity of the rent is suspended by unity of possession and therefore cannot stand in joynture with the other moity in possession Pl. com 419. Nihil de re accrescit ei qui in re quando jus accresceret habet A State of Freehold cannot stand in joynture with a terme for years nor a reversion upon a Freehold with a Freehold and inheritance in possession Neither can a seisin in the right of a politick capacity stand in joynture with seisin in a naturall capacity 37 H. 8. 8. 3 E. 4. 10. Fo. 188. a. Vide c. In all cases where the joyntenants pursue one joynt remedy and the one is summoned and severed and the other recover he that is summoned c. shall enter with him but where their remedies be severall there the one shall not enter with the other till both have recovered Littleton cap. Remitt the last
Case lib. fo 252 b. But if a disseiser had letten severally three acres to three persons for years there the entry upon of the the lessees in name of all the three acres shall recontinue and revest all the three acres in the disseisee for that the disseisee might have had one Assize against the disseisor because he remained Tenant of the Freehold for all the three acres 7 Ass 18. 12 E. 4. 10 36 H 6. 27. 32 Ass p 1 If I infeoffe one of one acre of ground upon Condition and at another time I infeâ—ffe the same man of another acre in the same county upon Condition also and both the Conditions are broken an entry into one acre in the name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare Title But an entry into one part of the land in the name of all the land subject to one Condition is good although the parcels bee several and in severall Towns And so nâ—â—e a diversity between several rights of entry and several Titles of entry by force of a Condition 11 H. 7. 25. Dyer 16 El. 33â— Ennosme de tout c. dont il ad Title d'entry here in a large sence Title of entry is taken for a Right of entry If I bâ—iâ—g an Assize of two acres if I enter into one hanging the Writ albeit it shall revest that onely acre yet the Writ shall abate 5 H. 7 7. 4 E 4 19. 12 E 9 11. a Sect. 418 Nota A man may make a feoffment of lands in another County and make livery of seisin within the view albeit he might peacably enter and make actual livery and so may he shew the Recognitors in an Assize the view of lands in another County But a man cannot make an entry into lands within the view where he may enter without any fear for it is one thing to invest and another to devest 3â— E 3 11 38 Ass 3 fo 253 a If livery of seisin be made of parcel of the Tenements c. in one Town in the name of all c. All the said Tenements c. pass by force of the said livery c. Agr. à minore ad majus if it be so in a Feoffment passing a new right à multo fortiori it is for the restitution of an ancient right as the worthier and more respected in Law which holdeth Affirmative Vide S. 438. Sect. 419 Fear of imprisonment sufficeth to avoid a Bond or a deed for the Law hath a special regard to the safety and liberty of a man But note a diversity between a Claim or an Entry into Land and the Avoidance of an act or deed for fear of Battery 4 E 4 7. 11 H 4 6 8 Ass 25 vide S 434 10 2 cap 49. 13 H â— Dures 2â— If a man hath Title to enter into any Lands or Tenements if he dares not enter c. for doubt of maiming c. if hee goeth and approach as near to the Tenements as he dare for such doubt and by word claim the lands to be his this entry in Law is as forcible iâ— Law as an entry in Deed and upon such an entry in Law an Assiâ—e doth lie as well as upon an entry in Deed and such an entry in Law shall avoid a Warranty c. vide S 378. 11 H 6 5â— But note a diversity here between an entry in Law and an entry in Deed for that aâ—â—ontinual Claim of the disseisee being an entry in Law shall vest the possession and seisin in him for his advantage but not for his disadvantage And therefore if the dissâ—isee bring an Assize and hanging the Assize he make Continual Claim this shall not abate the Assize but he shall recover damages from the beginning but otherwise it is of an entry in Deed. Vide S 442. Pl. Com. 93. Parson of Hony lanes Case Arg. ab autor ' est fortissimum in lege 38 Ass p 13 Sect 421 422. Where a Continual Claim shall devest an estate in any other person in any lands or tenements there he that maketh the Claim ought to enter into the land or some part thereof But where the Claim is to briâ—g him that maketh it into actual possession there a Claim within the view sufficeth as upon a discent the heir having the Freehold in Law may claim land within the view to bring himselfe into actual possession and in that sense is the opinion of Hull and the Court to be intended 9 H 4 5 c. But yet the entry in to some parcel in the name of the residue is the surest way vide S. 177. 11 H 6. accord with Liâ—tleton 51. At the Common Law upon a fine or fâ—â—ll judgement given in a writ of right the party grieved had a yeare and a day to make his claime So the wife or heire hath a yeare and a day to bring an appeale of death c. After judgement given in a â—eaâ—â— action the plâ—iâ—tiffe within the yeare and day may have habere sac sâ—siâ—am and in an action of debt c. a Capias fieri fac or a Lâ—vari facias A protection shall be allowed but for a year and a day and no longer and in many other casâ— Vid. S. 385. 426. 14. H 4. 36. 7. E. 3. 37. Pl. 356. 357. 367 Brit. fo 45. b. Sect. 423 424. 426. Il covient a luy que fist claime c. de faire un cl ' deins chese ' an jour prochein apres chesc ' claime fait durant la vie son adversarie dâ—â—â—uâ—s a quecunque temps que son Adversary mor. Seisee son â—ntry ne ser toll per nul tiel dis cent Brit. fo 209. Dy. 17. Eli. 345. Si disseisor mor. Seiseâ— dein l'an jour c. per que les tenements discend a son heire â—n ceÌ„ case l'enter le disseisee eÌ„ toll car l'an le jour que aâ—droit le lessee en tiel case ne serre pris de temps de title dent a luy accrue mes tautsolment del temps de claime per luy fait en le maner avantd pur cest causeil serre boâ—e pur tiel disseisee pur faire son claâ—me en auxi breve temps queil puissoit apres le disseisin c. This in case of a disseisor is now holpen by the Statute of 37. H 8. ca. 33. For if the disseisor dye seised within five years after the disseisin though there be no cont claim made it â—â—all not take away the entry of the disseisee but after the five years there must be such continuall claime as was at the Common Law But that Statute extended not to any Feoffee or donee of the disseisor immediate or mediate but they â—maine still at the common Law Vi. S. 385. 422. Sect. 428 429. Item sicome eÌ„ dit en les cases mises lou home ad title dent pur caus dun
in tail to A. the remainder to his right heirs A. dyeth without issue the Collaterall heir of A. shall have a writ of right of the seisin of A. 4. E. 3. 16. 17. And so note a diversity between a seisin to cause posses fratris c. for there is required a more actuall seisin and a seisin to maintain a writ of right 40. E. 3. 8. 42. E. 3. 20. 37. Ass 4. 14. E. 4. 24. 7. H 5. 4. 11. H. 4. 11. Sect. 483. 484. Note a diversity where the issue taken goeth to the point of the writ or action there modo and forma are but words of form as in Littletons case of the writ of entry in casu proviso and so is the c. well explained in this Section But otherwise it is when a collaterall point in pleading is traversed as if a feoffment be alleadged by two and this is traversed modo and forma and it is found the feoffment of one there modo and forma is materiall So if a feoffment be pleaded by deed and it is traversed absque hoc quod feoffavit modo forma upon this collaterall issue modo forma are so essentiall as the Jury cannot find a feoffment without deed 9. H. 6. 1. 40 E. 3. 35. 21. E. 3. 4. 22. F.N.B. 205. 206. g. 40. E. 3. 5. 32. H. 8. issue Br. 80. 12. E. 4. 4. Here is another diversity to be observed that albeit the issue be upon a collaterall point yet if by the finding of part of the issue it shall appear to the Court that no such action lieth for the plaintiffe no more then if the whole had been found there modo forma are but words of forme as here in the case which Littleton putteth of the Lord and Tenant appeareth 10. E. 4. 7. 8. E. 4. 15. 20. and 21. E. 4. 3. Merlbr cap. 3. If the matter of the issue be found it is sufficient and this rule holds in criminall causes Pl. Com. 101. v. 6. E. 3. 41. b. 9. H. 7. 3. 13. H. 7. 14. 8. E. 3. 70. 8. Ass 29. 39. 5. H. 4. 22. 7. H. 4. 11. Pl. Com. 92. 3. Mar. Dyer 115. 116. 40. E. 3. 35. 31. E. 3. account 58. 28. Ass 48. The lessee covenants with the lessor not to cut downe any trees c. and binds himself in a bond of 40. l. for performance of covenants the lessee cuts down ten trees the lessor brings an action of debt upon the bond and assigneth a breach that the lessee cutteth down twenty trees whereupon issue is joyned and the Jury find that the lessee cut down ten judgment shall be given for the Plaintiff for sufficient matter of the issue is found for the Plaintiff Sect. 485. 486. An assault battery or taking of goods c. alledged in another county cannot be traversed without speciall cause of justification which extendeth to some certain place as if a Constable of a Town in another county arrest the body of a man that breaketh the peace there he may traverse the county but he must not rest there but all other places saving in the Town whereof he is Constable And so it is of taking of goods the Defendant justifies for damage feisant in another county he must as before traverse But where the cause of the justification is not restrained to a certain place that is so locall as it cannot be alledged in any other Town c. then albeit the action be brought in a forraigne county yet he must alledge his justification in the county where the action is brought In an action upon the case the Plaintiff declared for speaking of slanderous words which are transitory and laid the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the counties of England saving in London and traversed the speaking of the words in London the Plaintiff in his Declaration denied the concord whereupon the Defendant demurres and Judgment c. for the Plaintiff Tr. 30. El. Kings Bench. Inglebert and Jones Com. Pleas. Pasche 38. El. Rot. 1656. It is an ancient Principle in Law That for transitory causes of action the Plaintiff might alledge the fame in what place or County he would It is better that it be turned to a default then the Law should be changed or any innovation made 2. H. 4. 18. 38. E. 3. 1. A man did grant a rent that the grantee should hold the distress against gages and pledges and yet he shall gage delivery for otherwise by this new invention all Replevins shall be taken away 4. E. 3. cap. 5. 4. H. 4. cap. 2. Where the Jury is bound to find as well locall things in many cases as transitory in other Counties Vide lib. 6. fol. 46. Dowdales Case 3. E. 3. Ass 446. 14. H. 4 35. 5. H. 5. 2. 37. H. 6. 2. 7. E. 4. 45. 18. E. 4. 1. 13. H. 7. 17. 2 Mar. Br. att 104. 20. El. Dyer 171. 19. H. 6. 48. 28. H. 8. Dyer 29. 12. H. 8. 1. Reg. by the Common Law if the Defendant hath cause of justification or excuse then can he not plead Not guilty for then upon the evidence it shall be found against him for that he confesseth the battery and upon that issue cannot justifie it but he must plead the speciall matter and confesse and justifie the battery If in battery the Defendant may justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall issue and so of the like In trespasse of breaking his close upon Not guilty he cannot give in evidence that the beasts came through the Plaintiffs hedge which he ought to keep nor upon the generall issue justifie by reason of a rent charge common c. 25. H. 8. Br. In Detinue the Defendant pleaded non detinet he cannot give in evidence that the goods were pawned to him for money and that it is not paid but must plead it but he may give in evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods 22. H. 6. 33. 20. El. Dyer 276. 2. M. Dyer 212. If two men be bound in a bond joyntly and the one is sued alone he may plead matter in abatement of the Writ but he cannot plead Non est factum for it is his Deed though it be not his sole deed lib. 5. fo 119. Whelpdales case vide c. fo 283. a. Reg. whensoever a man doth any thing by force of a Warrant or Authority he must plead it But all that hath been said must be under two cautions 1. That whensoever a man cannot have advantage of the speciall matter by way of pleading there he shall take advantage of it in the evidence For example the Rule of Law is That a man cannot justifie in the killing or death of a man and therefore he shall be received to give the especiall matter in evidence as that it
in Curia nostra rite acta sunt debitae executioni demandari debent parum est latam esse sententiam nisi mandetur executioni Executio juris non habet injuriam Executio est fructus finis legis Juris effectus in executione coufistit Prosecutio legis est gravis vexatio executio legis coronat opus Boni judicis est judicium fine dilatione mendare executioni Favorabiliores sunt executiones aliis processibus quibuscunque When Littleton wrote by force of certain Acts of Parliament execution mtght be had of lands besides by force of the Elegit upon Statute Merchant Statute Staple and Recognizances taken in some Court of Record and since he wrote upon a Recognizance or Bond taken by force of the Statute 23. H. 8. before one of the Chief Justices or the Mayor of the Staple and Recorder of London out of Term which hath the effect of a Statute Staple 11. E. 1. Stat. de Acton Burnel 13. E. 1. de Mercat 27. E. 3. c. 22. 23. H. 8. cap. 6. 25. E. 3. 53. vide 32. H. 8. c. 5. a profitable Statute concerning executions of Lands Tenements c. Sed opus est interprete Vide fo 289. lib. 4. fo 66. Fulwoods Case If a man have a Judgement given against him for debt or damage or be bound in a Recognizance and dyeth his heir within age or having two daughters and the one within age no execution shall be sued of the Lands by Elegit during the minority albeit the heir is not specially bound but charged as Terre-tenant 15. E. 3. Age 95. 24. E. 3. 28. 29 Ass 37. 29. E. 3. 50. 47. Ass 4. 47. E. 3. 7. lib 3. f. 13. Brook Age 33. And so against an heir within age no execution shall be sued upon a Statute Merchant or Staple nor upon the obligation or recognizance upon the Statute 23. H. 8. for it is excepted in the processe against the heir Neither if the heir within age endow his mother shall execution be sued against her during his minority Temps E. 1. 402. 417. fo 290. a. Vide le statute 13. Eliz. cap. 5. made against fraudulent Feoffments gifts grants c. Judgements and Executions as well of lands and tenements as of goods and chattells to delay hinder or defraud Creditors and others of their just and lawfull Actions Suits Debts Damages Penalties Forfeitures Heriots Mortuaries and Releases Sed opus est c. Lib. 3. fo 80. c. Troyns Case l. 5. f 67. Gooches Case l. 6. f. 18. Pakemans Case l. 10. f. 56. the Chancellor of Oxfords Case See the Statute of 3. H. 7. c. 4. 50. E. 3. c. 6. M. 12. 13. Eliz Dyer 295. 18. Eliz. 451. Dyer Elegit is a judicial Writ and is given by the Statute either upon a recovery for debt or damages or upon a Recognizance in any Court The words of the writ be Elegit sibi liberari c. By this Writ the Sheriff shall deliver to the Plaintiff Omnia catalla debitoris exceptis bobus afris Carucae medietatem terrae And this must be done by an Enquest to be taken by the Sheriff W. 2. c. 18. W. 2. c. 18. Fieri fac is a Writ mentioned in the said Statute but is a Writ of Execution at the Common Law and is called a Fieri fac because the words of the Writ directed to the Sheriff be quod fieri fac de bonis catallis c. But note that a Capias ad satisfac is not mentioned in the said Statute because no Capias ad satisfac did lie at the Common Law upon a Judgement for debt c. or damages but only when the originall action was Qu. vi armis c. but later Statutes have given a Capias ad satisfac where debt c. or damages are recovered Lib. 3. fo 11. Sir William Herberts Case And note that these three Writs of Execution ought to be sued out within the year and the day after Judgment but if the Plaintiff sueth out any of them within the year he may continue the same after the year untill he hath execution And to none of these Writs of executions the Defendant can plead but if he hath any matter since the Judgment to discharge him of execution as a release of all executions c. he may have an Audita querela and relieve himself that way Sect. 505. Fol. 290. b. Scire fac is a judiciall Writ and properly lieth after the year and day after Judgment given But because the Defendant may thereupon plead this Scire fac is accounted in Law to be in nature of an action and therefore a release of all actions is a good bar of the same and so is a release of executions c. 19. H. 6. 3. 4. 18. E. 4. 7. This Writ was given in this case by the Statute of W. 2. c. 45. for at the Common Law if the Plaintiff had surceased to sue execution by fieri fac or levari fac a year and a day he had been driven to his new Originall 8. E. 3. 297 298. 18 E. 3. 33. l. 3. 12. Note that every Writ whereunto the Defendant may plead be it Originall or Judiciall is in Law an action Sect. 507. Fol. 291. a. Note a diversity between a release of all actions and a release of all suits If a man release all suits all execution is gone for no man can have execution without prayer and suit but the King only 26. H. 6. Exec. 4 l. 8. f. 153. Ed. Althams case Brook tit Rel. 87. So if the body of a man be taken in execution and the Plaintiff release all actions yet shall he remain in execution but if he release all debts or duties it is otherwise 26. H. 6. Exec. 7. If A. be accountable to B. and B. release him all his duties this is no bar in an action of account for what shall fall out upon the account is incertain but duties do extend to all things due that is certain and therefore dischargeth Judgments in personall actions and executions also 20. H. 6. per Paston Sect. 508 509 510 511. Fol. 291. b. 292. a. There be two kinds of Demands or Claims Pl. Com. Stiles Case 359 c. 1. Express or in deed as in all reall actions 2. Implyed or in Law as 1. In all actions personall 2. In actions of Appeals 3. Of execution 4. Of Title or right of Entry either by force of a condition or by any former Right 5. Of a rent service rent charge common of pasture c. verte fol. All which Littleton here and in the two next Sections following putteth but for example for by the release of all Demands other things also be released as rents seck all mixt actions a Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons and profit appender Conditions before they be broken or performed or after Annuities
to her it is commonly taken for the third part which she hath of her husbands lands c. After his decease lib. rub c. 70. Bract. l. 2. s 92. To the consummation of this dower three things are necessary viz. Marriage seisin and the death of her husband s 31. a. Secundum consuetudinem regni mulieres viduae c. Debent esse quietae de tallagiis c. doti ejus parcatur quia praemium pudoris est Ockam f. 40. Where lands or tenements descend to the husband before entry he hath but a seison in law and yet the wife shal be endowed for it lieth not in the power of the wife to bring to be an actuall seison as the husband may doe of his wifes land when he is Tenant by the Curtesie F. N. B. 149. Grandfather Father and Son the Grandfather and father die c. In this Case dos de dote peti non debit if lands descend to the Father otherwise is it in a purchase if the Grandfather infeoffe the Father c. Vide lib. 5. E 3. t. Douch 249. Paris c. Non debent mulieribus assignari in dotem castra quae fuerunt virorum suorum quae de guerra existunt vel etiam homagia servitia aliquorum de guerra existentia Fo. 31. b. Pat. 1. E. 1. Part. 1. m. 17. Tenant in Fee Taile generall maketh a feoffment in Fee and takes back an estate to him and to his wife and to the heirs of their two bodies and they have issue and the wife dieth the husband taketh another wife and dieth the wife shall not be endowed for during the Coverture he was seised of an estate Tail special and yet the issue which the second wife may have by possibility may inherit Vide lib. 41. E. 3 30. Dier 41. Albeit of many inheritances that be entire whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet she shall be endowed thereof in a special and certain manner As of the third part of a piscary tertium piscem vel jactum retis tertium c. Fo. 32. a. 17. E. Dow. 104. A woman shall not be endowed of a common sans nomber en grosse nor of an annuity c. Nor of Rents c. If the freeholds of the Rents were suspended before the coverture But a woman shall be endowed of Tithes of the third part of profits of Courts Fines Heriots c. De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad viâ—lentiam Brac. 97. Brit. 146. If the heire improve the value of the Land by building c. And on the other side if the value be impaired in the time of the heire she shall be endowed according to the value at the time of the assignment and not according to the value as it was in the time of her Husband 30. E. 1. Vouch. 298. It is not necessary that seisin should continue during the coverture for albeit the husband alieneth the Lands c. or extinguisheth the Rents c. Yet the woman shall be endowed But it is necessary that the marriage continue for if that be dissolved the Dower ceaseth Vbi nullum matrimonium ibi nulla dos but this is to be understood when the husband and wife are divorced à vinculo matrimonii as in case of precontract consanguinity affinity c. And not à mensa thoro onely as for Adultery In case of elopement shee shall lose her Dower but shee is not barred of her appeal Sponte virum mulier fugiens adultera facta dote sua careat nisi sponso sponte retracta Fol 32. b. Mirr ca. 5. Sec. 5. li. Intract 224. If a man seised of Lands in Fee took a wife and infeoffed eight persons Writ of Dower was brought against these eight persons and two confesse the action and the other six plead in Barre and descend to issue the demandant shal have judgment to receive the third part of two parts of the land in eight parts to be divided and after the issue being found for the demandant against the six the demandant shal have judgement to recover against them the third part of six parts of the same land in eight parts to be divided and so in some cases where the husband was sole seised the wife shall not be endowed in severalty by metes and bounds M. 2. and 3. Eliz. Dier 187. b. Nota. The endowment by metes and bounds according to the common right is more beneficiall to the wife then to be endowed against common right for there shee shall hold the land charged in respect of a charge made after her title of Dower It is necessary for the wife after the decease of her husband as soon as she can to demand Dower before good testimony for otherwise she may by her own default lose the value after the decease of her husband and her dammages for detaining of her dower Vide lib. Et Dotes suas habere non possunt sine placito The mean values and dammages are to be recovered against the Tenant in a Writ of Dower M. 8. and 9. Eliz. Rot. 904. conj Banco Vid. c. If the wise be past the age of 9 years at time of the the death of her husband albeit he were but 4 years old she shall be endowed quia minor non potest dotem promereri neque virum sustinere nec obstabit mulieri petenti minor aetas viri So that albeit concensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen Yet this inchoate or imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shal give Dower to the wife Fo. 33. a. Est uxor de facto de jure Fol. 33. b. Vid. c. Onely she that is a wise de jure in favorem vitae shall have an Appeale c. But a wife de facto shall have Dower if divorce be not had c. 50. E. 3. 15 10. E. 3. 35. Sect. 37. Rationabilis dos est cujuslibet mulieris de quocunque tenemento tertia pars omnium tium c. quae vir suus tenuit in dominico suo ut de feodo c.. By the custome of Gavelkind the wife shall be endowed of the moity so long as she keep her self sole and without child which she cannot wave and take her thirds for her life for consuetudo tollit communem legem Stat. de consuet Canciae c. And as customs may inlarge so it may abridge and restrain it to a fourth part c. Senentia signifieth widowhood fo â—3 b. in fine marg Sect. 39. Affidare est fidem dare sponsalia dicuntur futurarum nuptiarum repromissio conventio But this Dower ad ostium ecclesiae is ever after marriage
gratum ingratum Fortescue cap. 46. fol. 137. b. There be some cases whâ—re the Villain shall be privileged from the seisure of the Lord c. 1. Ratione loci as if a Villain in the ancient Demesn of the King a year and a day without claim or seisure of the Lord the Lord cannot seise him c. so long as he remains and continues there 39 E. 3. 6. b. F.N. B. 79. a. 2. Ratione professionis as if he a Monk be c. Glaâ—v l. 5. cap. 5. 3. Ratione dignitatis if he be made a Knight c. Britt fo 79. 4. Ratione matrimonii as if a Neife marry a free-man she is priviledged during the marriage c. But if the Lord himself marry the Neife then she is infranchised for ever Mirr c. 3. sect 18. acc Doct. Sâ—u. 141. If a Niefe â—e regardant to a Manor and she taketh a free-man to husband by license of the Lord and the Lord make a feoffment in fee of the Manor the husband dyeth the feoffor shall have the Neife for that during the marriage she was severed from the Manor * and so is lib. 29. Ass which is falsely prinâ—ed to be understood If two Coparceners be of a Villain and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Coparcener but after the decease of her husband she shall 16 H. 3. Nuper ob 17. When the Lord enableth the Villain to have an action against him as for Debt or Annuity c. or if he sue against his Villain an Action of Debt or of Covenant c. or giveth to the Villain a certain and fixed estate in Lands c. as a lease for years by Deed or without Deed this is an infranchisement for ever But if the Lord atturn to his Villain c. or if he release all his right in black Acre and the Villain is not thereof seised this is no infranchiâ—ement because it is void and can give no cause of action fol. 138. a. 11 H. 7. 13. Sect. 208. The Tenant infeoffs the Villain of the Lord and a stranger * upon by Collusion in this case although the Lord may enter upon the Villain for the moity yet may he have a Writ of Ward against them both without infranchisement of the Villain for if the Lord should enter upon the Villain then should the seigniory be suspended and then could he not have a Writ of Ward against the other vide c. There is a Nonsure before appearance at the return of the Writ or after appearance at some day of continuance A Nonsute is ever upon a demand made when the Demandant or Plaintiff should appear and hee makes default A Retraxit is ever when the Demandant or Plaintiff is present in Court c. and this is either Privative as upon demand made that he depart in despight of the Court having made default c or Positive as when he saith that he will not prosecute his plea c. sed abinâ—e omnino se retraxit c. fol. 139. a. * Also a Retraxit is a bar of all other actions of like or inferior nature qui semel actionem renunciavit amplius repetere non potest But Reg. a Nonsute is not so but that he may commence an action of like nature c. again lib 8. fo 58. Bechers Case But yet for some speciall reasons Nonsute in some actions is peremptory as in a qu. imp if the Plaintiff be Nonsute after appearance the Defendant shall make a Title and have a Writ to the Bishop c. and the Incumbent that commeth in by that Writ shal never be removed 5 E. 3. 35. lib. 7. fo 27. b. Sir Hugh Portmans c. So it is in a Writ de Nativo habendo in favorem libertatis 6 E. 2. Vill. 26. F. N. B. 78. c. And in an appeal of Murther Rape Robbery c. in favorem vitae 9 H. 4. 1. Pl. Com. 148 a. 171. And in an appeal of Mayhem for the Writ saith Feloniâ—è Mayhemavit 43 Ass 39. And in Attaint and the reason is for the faith that the Law gives to the Verdict and for the fearfull Judgement that should be given against the first Jury if they should be convicted and therefore upon the Nonsute the Plaintiff shal be imprisoned and his pledges amerced but if the Process in an attaint be discontinued the Plaintiff may have another Writ of Attaint because upon the Nonsute there is a Judgement given but not upon the discontinuance F. N. B. 108. d. 32 Ass 13. Nonsuit before appearance is not peremtory in any case for that a stranger may purchase a Writ in the name of him that cause of action hath * In realor mixt actions the Nonsuit of one Demandant is not the Nonsuit of both but he that makes default shall be summoned and severed but Reg. in personal actions the Nonsuit of one is the Nonsuit of both unless it be in certain particular cases * F. N. B. 35. b. as in personall actions brought by Executors c. lib. * 6. fo 25. Ruddocks Case And in an Aud. quaer concerning the personalty * vide qu. lib. fo 139. a. In a quid Juris clamat the Nonsuit of the one is the Non-suit of both because the tenant cannot attorn according to the grant 20. E. 3. Severance 17. Some actions follow the nature of those actions whereupon they are grounded as the Writs of Error attaint Scire fac ' c. If a reall action be brought by severall Praecipes against two or more if the Demandant be Nonsuit against one he is a nosuit against all for as to the Demandant it is but one Writ under one Teste 47. E. 3. 6. b. Severance is twofold viz. by Summons ad sequend ' simul and that is when one of the Demandants or Plantiffs never apeared and by award of the Court of Nonsuit without any Summons and that is after appearance fo 149. b. At the Common Law upon every continuance or day given over the Plantiff might have been Nonsuit and therefore after Verdict given if the Court gave a day to be advised at that day the Plantiff was demandable and therefore might have been Nonsuit which is now remedied by the Statute of 2 H. 4. cap. 7. But after demurre in law joyned if the Court doth give a day over at that day the Demandant or Plantiff is Demand and may be Nonsuit for that is not holpen by any Statute 2 H. 5. 5. and after an award to account the Plantiff may be Nonsuit and so note a diversity between an interlocutory award of the Court and a finall Iudgement l. 11. fo 39. 41. Medcalfs Case Albeit the Lord be Nonsuit yet the infranchisment of the villain doth remain for that grew by the appearance to the Writ So it is if the Writ do abate Wheresoever the Lord giveth to the villain a just cause of action he is
and rent and the rent be recovered the Fealty shall includedly be recovered 44 E. 3. 19. 26 Ass 38. 8 E. 4. 28. So long as Homage continues the Fealty cannot be divided from it vide lib. c. 151. a. Note a diversity between these corporeal services of Homage Fealty and Escuage which cannot become seck or dry but make Tenure whereunto Distresses Escheats and other Profits be incident and other corporeal services ast â—o Plough Repair Attend c. And all Rents whatsoever for they may become seek and make no Tenure Rent and Fealty are incident to the Reversion viz. Rent separably and Fealty inseparably 12 E. 4. 3. Doct. Stud. lib. 2. c. 9. The incident shall pass by the grant of the Principal but not è converso Accessorium non ducit sed sequitur suum principale fo 152. a. If the Tenant infeoff the Lord Paramount and his wife and their heires in this case the Mesnalty is but suspended for if the wife survive both Mesnalty and Seignory are revived 7 Ass 2. 7 E. 3. 20. It is said that if there be Lord Mesne and Tenant each of them by Fealty and 6 d. the Lord confirm the state of the Tenant to hold of him by Fealty and 3 d. that the Mesnalty is extinct So it is if â—he Lord release to the Tenant for whether the Lord purchase the Tenancy or the Tenant the Seigniory the Mesnalty is extinct 8 H. 6. 24. fo 152. b. So if there be Lord and Tenant and the Tenant make a gift in tail the remainder to the King the Seigniory it extinct 4 5 P. M. Dyer 154. Lex citius tolerare vult privatum damnum quam publicum malum 13 H. 4. 3. 40. Ass p. 27. No man can hold one and the same land immediately of two severall Lords And one man cannot of the same land be both Lord and Tenant It is Reg. true Res inter alios acta alteri nocere non debet Et factum unius alteri nocere non debet which are true with this Exception unless an inconvenience should follow c. Quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest And therefore if a man maketh a lease for life reserving a rent and binde himself in a Statute and the Cognisee hath the rent extended and delivered to him he shall distrain for the rent because he commeth to it by course of Law 13 H 4 Avowry 237. La ley voet plus toft suffer un mischiefe que un inconvenience pur ceo si Mesne tient per 12 d. tenant per 5 s. le seignieur purchase le tenancy le seigniory del Mesnalty eÌ„ extinct Et le mesne auÌ„a 4 s. come rent seck de le seignieur Sect. 233. Si home que ad rent seck est un foits sei d'asc ' parcel de le rent apurs le tenant ne voile payer le rent aver il auÌ„a ass de novel diss A rent seck or rent charge may be demanded after it is behinde at any time c. for Remedies for Rights are ever favourably expounded M. 41. E. 4 adjudged If the demand be made upon the land and the rent is not paid whether the tenant be present or absent yet this is a denyall in Law c. Disseisina is a putting out of a man out of seisin and ever implyeth a wrong But dispossessing or ejectment is a putting out of possession and may be right or by wrong Bract. l. 4 f. 161. Mirr c. 2. s Disseisin est un personal trespass de tortius ouster del seisin Where the Statute of Merton 20 H. 3. saith Disseisitus de libero tenemento Littleton expounds it to extend to a rent seck or rent charge albeit they be against common rights yet a man hath a Freehold in them 40. Ass 23. ac And he that granteth omnia tenementa sua a rent charge or a rent seck doth pass 14 E. 4. 4. 11 H. 6. 22. Recuperare i. ad rem per injuriam extort ' sive detentam per sententiam Judicis restitui Execution is the obtaining of actuall possession of any thing acquired by Judgement of Law or by a Fine executory levied whether it be by Sheriff or by the entry of the party vide Sect. 504. If the Recovery in Assize c. be had against one and hee and another redisseise the Plaintiff he shall not have a Redisseisin for heâ—e is alius and hee cannot have a Redisseisin against the former disseisor alone because he is joynt-tenant with another For joynt tenancy in a Writ of Redisseisin is a good plea and a stranger shall not be subject to double imprisonment and double damages 33 E. 3 Redisseâ—st 17. 9 H. 4. 5. F.N.B. 118. e. A Redisseisin doth lye against the disseisor which doth redisseise and his Feoffee after the second disseisin for otherwise the redisseisor might prevent the Plaintiff of his redisseisin If the Mesne recovereth a rent when it is a rent service and after the rent becommeth a rent seck by surplusage and doth redisseise him of the rent hee shall have a redisseisin for the substance of the rent remains though the quality be altered Sect. 234. He that is of a Jury must be liber legalis homo 9. E 4. 16. First hee ought to be dwelling most neare to the place where the question is moved 2. He ought to be most sufficient both for understanding and competency of estate 3. To bee least suspitious that is to be indifferent as he stands unsworn Vide S. 102. 193. Ad questionem facti non respondent Indices Ad quaestio juris non respondent luâ—atores Calumniare to challenge i. e. to except against them in Court that are returned to be Iurors Fo. 155. b. It is most necessary that Iurors be omni exceptione majores forasmuch as mens lives c. are to be tried by them Nota that there is a principall cause of challenge to the array and a challenge to the favour Fol. 156. a. Vide nota The challenge to the array is in respect to the cause of unindifferency or default in the Sheriff or other officer that made the returne and not in respect of the persons returned where there is no default in the Sheriff c. for if the challenge to the array be found against the party that takes it yet he shall have his particular challenge to the Polls that is to the particular persons and these be of four kinds i.e. peremptory principall which induce favour and for default of hundredors fo 156. b. A man may challenge peremptorily without shewing any cause and this only is in case of Felony c. In favorem vitae Vide c. Principall challenges to the Poll may be reduced to foure heads 1. Propter honoris respectum as no Peer of the realme is to be sworn on Juries l. 6. 52. 2. Propter
part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
person attainted of misprision of Treason Murther or Felony is dowable since our Author wrote by the Statute of 1 E. 6. cap. 13. 5 E. 6. cap. 11. 5 El. ca. 1. 11. 18 El. cap. 1. 12 H. 4. 3. Vide Sect. 55. So if a Seigniory be granted with warranty and the Tenancy escheat the Seigniory whereunto the warranty was annexed is extinct and consequently the warranty defeated and it shall not extend to the land sic in similibus 6 H. 4. 8. 45 E. 3. vouch 72. Pl. Com. 292. 16 E. 3. Age 46. 28 H. 3. vouch 281. 23 E. 3. garr 77. Vide Sect. 200. If a collaterall Auncestrel release with warranty and enter into Religion now the warranty doth binde but if after hee be deraigned now it is defeated Sect. 748. Fol. 393. Per release de touts manners de garr ou de touts covenants reall ou de touts demandes le garr est extinct Et mults auters cases matters y sont per queux home poit defeate garr c. As by a defeasance as other things executory may Also a warranty may lose his force by taking benefit of the same 43 E. 3. 17. Pl. Com. Brownings case In a Precipe the tenant voucheth and at the sequatur sub suo periculo the tenant and the vouchee make default whereupon the demandant hath judgement against the tenant and afterwards the demandant brings a Scire facias against the tenant to have execution In this case the Tenant may have a War Cartae And if in that case a stranger had brought a praecipe against the Tenant hee might have vouched again for by the judgement given against the Tenant the warranty lost not his force but if the Tenant had judgement to recover in value against the vouchee he should never vouch again by reason of that warranty because he had taken advantage of the warranty and it is to be observed that upon the processe of Summon ad warr if the Sheriffe return the vouchee summoned and he make default the Tenant shall have a Capias ad val but if he return that the vouchee had nothing then after the Sicut alias plures a seq sub suo periculo shall issue and there if the vouchee make default the Tenant shall not have judgement to recover in value for he was never summoned and it appeareth of Record that he hath nothing but in the Cap. ad Val. it appeareth that he had Assets and he had been summoned before But in some speciall cases there shall be two recoveries in value upon one warranty As if a disseisor give lands to the husband and wife and to the heirs of the husband the husband alieneth in fee with warranty and dieth the wife bringeth a Cui in vita the Tenant vouch and recover in value if after the death of the wife the disseisee bring a praecipe against the Alienee he shall vouch and recover in value again So it is where the wife bringing a Writ of Dower against the Alienee he shall recover in value and after her death hee shall recover in value again upon the same warranty 45 E. 3. vouch 72. In the same manner it is if a man be seised of a rent by a defeasible title and release to the Tenant of the Land all his right in the Land and warrant the Land to him and his heirs if he be impleaded for the rent he shall vouch and recover in value for the rent and if after he be impleaded for the Land he shall vouch c. again for the Land But in these and the like cases the reason is in respect of the severall Estates recovered but for one and the same estate he shall never recover but once in value and though the Land recovered in value be evicted yet he shall never take benefit of that warranty after and as warranty may be defeated in the whole so they may be defeated as to the party of the benefit that may be taken of the same As he that maketh a warranty may make a defeasance not to take any benefit by way of voucher In the like manner that he shall take no advantage by way of Warrantia Cartae or by way of Rebutter 7 H. 6. 43. 13 Ass 8. 13 E. 3. gar 24 25. 3. 7. 22 H. 6. 51. 8 H. 7. 6. Sect. 749. If Tenant in Tail alien with warranty and leave Assets to discend if the issue in Tail doth alien the Assets and die the issue of that issue shall recover the Land because the lineall warranty descends onely to him without Assets for neither the pleading of the warranty without Assets nor Assets without warranty is any barre in the Formedon in the descender But if the issue to whom the warranty and Assets descended had brought a Formedon and by judgement had been barred by reason of the warranty and Assets In that case albeit he alieneth the Assets yet the estate Tail is barred for ever for a barre in a Formedon in the descender which is a Writ of the highest nature that an issue in Tail can have is a good barre in any other Formedon in the descender brought afterwards upon the same gift Temps E. 1. gar 89. 34 E. 1. ib. 88. 11 E. 2. ib. 3. 4 E. 3. 24. 5 E. 3. 14. 40 E. 3. 9. 14 H. 4. 39. 24 H. 8. a. Br. 33. 4. M. Dy. 139. l. 10 37 38. Mary Portingtons case Epilogus Nulla virtus nulla scientia locum suum dignitatem conservare potest sine modestia Ratio est anima legis If by study and industry we make not the reason of the Law our own it is not possible for us to retain it in our memories And we must couple arguments and reasons together Quia Argumenta ignota obscura ad lucem rationis proferiaâ—â— reddunt splendida Sir Richard Hankford 11 H. 4. 37. Home ne scavera de quel mettal un campane est sine soit bien bate ne le ley bien conus sans disputation Jeo aye disputir cest matter pur la apprender la ley 41 E. 3. 22. Kirton Vide Sect. 377. Lex plus laudatur quando ratione probatur Lex est sanctio sancta jubens honesta prohibens contraria Vide cest definitio Lib. 1. fo 131. Chudleighs Case Al unique Dieu gloire FINIS An Alphabetical Table A ALien may purchase what and how p. 2 Attainder how it corrupteth the blood 7 Arguments legal 11 Arguments from Statutes ib. Advocatio what 15 123 Advocatio medietatis ib. Armories how descendable 20 Authority with interest or without the difference 63 Attorney to deliver seisin ib. Accessaries where 67 Ages their several purposes in the Law 95 Agreement and Disagreement the time for the confirming Matrimony the equal Obligation 96 Agriculture its commendation 98 Actus Legis 100 Aetas Legitima 101 Alienatio restricta 106 Acquittal quotuplex 107 Appendant and Appurtenant their differences 125 126 Alienee plead where