Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	party_n	writ_n	1,964	5	9.6172	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A33630	The compleate copy-holder wherein is contained a learned discourse of the antiquity and nature of manors and copy-holds, vvith all things thereto incident, as surrenders, presentments, admittances, forfeitures, customes, &c. necessary both for the lord and tenant : together, with the forme of keeping a copy-hold court, and court baron / by Sir Edward Coke, Knight.; Complete copy-holder	Coke, Edward, Sir, 1552-1634.	1641 (1641)	Wing C4912; ESTC R1843	72,284	184

these Grants an estate tayle passeth in the first without the word heires in the second without the word body in the third without either If the King by his Steward granteth a Copyhold to a man and to his heires males or heires females no Fee-simple passeth because the Lord never intended to passe such an estate If a Copyhold be Granted to an Abbot and to his heires an estate for life onely passeth So if I Grant a Copyhold to a man in Fee-simple ac sanguini suo imperpetum or sibi assign suis impe●pectum yet the word heires wanting no greater estate than for life passeth The same Law is if a Copyhold be granted to a man and to his heires as long as I. S. shall live this is onely an estate per anter vie a rend limitted upon this estate is good But if a Copyhold be granted to a man and to his heires as long as such a tree shall grow in such a ground this is a good Fee and a render limitted upon it is void If a Copyhold be granted to I. S. and I. N. haeredibus they are joynt Tenants for life and no inheritance passeth unto either because of the uncertainty for want of this word suis but if a Copyhold be granted to I. S. onely haerend a good Fee-simple passeth without the word suis If a Copyhold be granted to a man haered bus an estate tayle doth not passe for want of the words de corpore And if a Copyhold be granted to a man liberis aut puer suis de corpore an estate taile doth not passe for want of this word heires for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditionall but this could be no Fee-simple conditionall before the Statute without the word heires and therefore no intayle since the Statute And for the same reason if a Copyhold be granted to a man and to the issues males of his bodie an estate for life onely passeth If a Copyhold be granted to a man without expressing any certaine estate by implication of Law an estate for life onely passeth and if I grant a Copyhold to three habendum successive they are joynt Tenants unlesse by speciall Custome the word successive make their estates severall Thus much touching the creation of Copyhold estates SEC L. THe discents of Copyhold of inheritance are guided and directed by the rules of the Common Law as well as the creation of Copyhold estates If a Copyholder in Fee-simple having issue a sonne and a daugher by one venter and a sonne by an other venter dieth and the sonne by the first venter entreth and dieth the Land shall discend to the daughter Quia-possessio fratris de feodo simplici facit sororem esse haeredem But if a Copyholder in tayle have issue a son and a daughter by one venter and a son by another venter dieth and the sonne by the first venter entreth and dieth the sonne of the second venter shall inherit If a man having issue a sonne and a daughter by one venter and a sonne by another venter the eldest sonne purchaseth a Copy-hold in Fee and dieth without issue the daughter shall have the Land not the yonger sonne because he is but of the halfe blood to the other If a man hath a Copyhold by discent from his mothers side if he die without issue the Land shall goe to the heires of the mothers side and shall rather escheate than goe to the heires of the fathers side but if I purchase a Copyhold and die without issue the Land shall goe to the heires of my Fathers side but if I have no heires of my fathers side it shall goe to the heires of my mothers side rather than escheate If there be Father Vnckle and Sonne and the sonne purchaseth a Copyhold in Fee and dieth without issue the Vncle shall inherit and not the Father because an inheritance may lineally discend but not ascend If there be three brothers and the middle brother purchaseth a Copyhold in Fee and dieth without issue the eldest shall inherit because the worthiest of blood If there be two Coparteners or two Tenants in Common of a Copyhold and one dieth having issue the issue shall inherit and not the other by the survivership but otherwise it is of two joynt Tenants Should I give way to my Penne and write of this Theame till I wanted matter to write on I should make a large Volume in dilating this one point therefore I will contract my selfe intreating you to supply by your private cogitations what I have either willingly or unwittingly passed over in silence onely take this caveat by the way Though all qualities necessarily incident to estates at the Common Law are likewise incident to Copyhold estates yet the Law is not so of collaterall qualities without speciall Custome Co. 4. fo 22. a. and therefore a Copyhold shall be no assets to the heire A discent of a Copyhold shall not toll an entry A surrender made by Tenant in tayle admit a Copyhold may be intayled or by a Baron of a Copyhold which he hath in right of his wife shall make no discontinuance because these are collaterall qualities and not necessarily incident Thus much of the severall estates of Copy-holds together with their severall qualities incident to their severall estates I come now in the first place to examine how Copyholders are to impleade and be impleaded SEC LI. A Copyholder cannot in any Action reall or that savoureth of the realty or hath a dependance upon the realty implead or be impleaded in any other Court but in the Lords Court for or concerning his Copy-hold but in actions that are meerely personall he may sue or be sued at the Common Law If a Copyholder be ousted of his Copyhold by a stranger he cannot implead him by the Kings Writ but by Plaint in the Lords Court and shall make protestation to prosecute the sute in the nature of an Assize of novell disseisin of an Assize of Mort D'ancestor of a Formedon in the Discender Reverser or Remainder or in the nature of any other Writ as his cause shall require and shall put in pleg de prosequend If a Copyholder be ousted by the Lord he cannot maintaine an Assize at the Common Law because he wanteth as Franck-Tenant but he may have an action of trespasse against him at the Common Law for it is against reason that the Lord should be Judge where he himselfe is a party If in a plaint in the Lords Court touching the tytle of a Copyholder the Lord giveth false judgement he cannot maintaine a Writ of false judgement for then he should be restored to a Francke-Tenant where he lost none No Copyholder of base Tenure in ancient Demesne can maintaine a Writ of droit close or a Writ of Monstravêrunt but Tenants of Francke-tenure in ancient demesne can A Copyholder that may cut downe Timber trees by Custome by

were deprived of that dignity which was inherent to their names yet their Courts retaine still the name of Court Barons because they were originally erected for such personages as were Barons neither hath time beene so injurious as to eradicate the whole memory of their auncient dignity in their name there is stamps left of their nobility for they are still intituled by the name of Lords These Courts differ from Court Leets in diverse respects In this that Court Barons by the Law may be kept once every three weekes or as some thinke as often as it shall please the Lord though for the better ease both of Lords and Tenants they are kept but very seldome but a Court Leete by the Statute of magna Charta is to bee kept but twice every yeare one time within the moneth after Easter Magna Charta C. 35. 31. E. 3. Ca. 15. and another time within a moneth after Michal 2. In this that Court Barons may bee kept in any place within the Manor contrary to the opinion of Brian But a Court Leete by the Statute of Magna Charta is to be kept in certo loco ac determinato within the Precinct 3. In this that originally Court Barons belonged unto inferior Lords of Manors but Court Leets originally belonged unto the King 4. In this that Court Barons are incident unto e●●●y Manor so that every Lord of a Manor may keepe a Court Baron but few have Leets for inferiour Lords of Manors cannot keepe Court Leetes without speciall prescription or some speciall Patent from the King 5. In this that in Court Barons the suitors are Iudges but in Court Leets the Steward is Iudge 6. In this that in Court Barons the Iewrie consisteth oftentimes of lesse than twelve in Court Leets never the reason of that is because none are impanelled upon the Iewrie but Freeholders in Court Barons of the same Manor but in Court Leets strangers are oftentimes impanelled 7. In this that Court Barons cannot subsist without two suitors adminimum but Court Leets can well subsist without any suitors 8. In this that Court Barons enquire of no offences committed against the King but Court Leetes inquire of all offences under High Treason committed against the Crowne and dignity of the King In many other respects they differ as that a writ of errour lyeth upon a judgement given in a Court Leete but not in a Court Baron So in a Court Leete a Capias lyeth but in a Court Baron in steade of a Capias is used an Attachment by goods So in a Court Baron an action of debt lyeth for the Lord himselfe because the suitors are Judges but in a Court Leete the Lord cannot maintaine any action for himselfe because the Steward is Iudge but omitting these with many more I come to the Etymologie of a Manor Some derive the word Manor a manendo and then it taketh his name either from the Manor-house which the Lord maketh his dwelling place or else a manendo quia Dominus ac tenentes in Manerii sui circuit cohabitant ac manent Some thinke t is termed Manor from manuring the ground and then it taketh its name either from the Lords Demesnes which the Tenants are bound to Manure or else from the Land remaining in the Tenants hands which are likewise tilled and manured others are of opinion that it is derived of the French word mesner which signifieth to governe or guide because the Lord of a Manor hath the guiding and directing of all his Tenants within the limits of his jurisdiction and this I hold the most probable Etymologie and most agreeing with the nature of a Manor for a Manor in these dayes signifieth the jurisdiction and royalty incorporate rather than the Land or Scite Thus much touching the Etymologie A word touching the division of a Manor A Manor is twofold re nomine 2. Nomine tantum re nomine as where the two materiall causes of a Manor the efficient cause causa sine qua non doe meete and joyne together nomine tantum as where any of these causes is wanting as to insist in the two materiall causes if the Lord will transferre over to some stranger the services of all his Tenants and reserve unto himselfe the Demesnes or if he will passe away the Demesnes and reserve the services in both causes the Lord peradventure hath a Manor nomine but not otherwise because in the one cause he wanteth Demesnes in the other services So if a Manor discendeth to Co-parteners and they make partition and the intire Demesnes are allotted to the one and th' intire services to the other the Manor is now in suspence for neither of them hath any Manor but in name onely but if part of the Demesnes and part of the Services be allotted to each one then have they each of them a Manor not nomine tantum but re nomine To insist in the efficient causes If the King at this day will grant a great quantitie of land to any Subject injoyning him certaine duties and services and withall willeth that this should beare the name of a Manor howsoever this may chance to gaine the name of a Manor yet it will not be a Manor in th' estimation of the law to insist in this cause sine qua non If the King grant away a Manor to I. S. excepting the Courts and perquisites the Grantee hath a Manor in name onely So if all the Freeholders dye but one if the Lord purchase all the Freeholders land or passe away the Services of the Freeholders or release unto his Freeholders all their services notwithstanding the Demesnes and the Services of the Copiholders yet the Lord hath but a Manor in name because the Freeholders are wanting which are the maintainers and upholders of the Court Baron and consequently necessary helpe to the perfection of a Manor So if the Lord granteth away the inheritance of all his Copyholders or demiseth all his lands granted by Copie to another for 2000. yeares the Grantee in the one case and the lessee in the other have a kinde of Seigniority in grosse and may keepe a Customary Court where the Steward shall be Judge and shall take surrenders and make admittances and this in the eye of the world is a Manor though in the judgement of the law it cometh far short of one Thus much touching the division of a Manor I might here handle many collaterall jurisdictions appropriated to Lords of Manors as that our erecting Dove-houses of proving the Wills of their Tenants deceased within their Precincts in many places of inclosing Common leaving sufficient besides for the other Commoners with many of the like Sed haec lubens libensque omitio And thus closing up this part of my Treatise touching Manors I come to the other part touching Copyhold SEC XXXII INeede not stand to discourse at large th'antiquitie of the Copyholders for if you cast your eye backe to that is past

Lease had beene determined living the Son by the first Venter and afterwards he had dyed before any actuall entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred therefore where some have imagined that nothing should be invested in the Heire before admittance because every admittance of an Heire upon a Discent amounteth to a Grant and so may be pleaded they are in an errour for though it be true that after admittance the Heire may in pleading alledge this as a Grant and that hath beene allowed to avoid the inconveniencies that otherwise should ensue For if the Copyholder should be driven in pleading to shew the first Grant Co. 4. fo 22. b. either that being made before the memory of man is not pleadable or since the memory of man and then Custome failes for this reason the Law hath allowed a Copyholder in pleading to alledge any admittance aswell upon a Discent as upon a Surrender as a Grant and yet he may if he will alledge the admittance of his Ancestors as a Grant and shew the Discent to him and that he entred and well without any admittance but the Heire cannot plead that his Ancestor was seised in Fee at the will of the Lord by Copy of Court Roll of such a Manor according to the Custome of the Manor and that he dyed seised and that the Copyhold discended upon him because in truth such an interest is but a particular interest at will in judgement of Law although it bee discendable by Custome So that I conclude that an admittance is principally for the benefit of the Lord to intitle him to his Fyne and not much necessary for strengthning of the Heires title Then will some say if the benefit which the Heire shall receive by the admittance will not countervaile the charges of the Fyne he will never come in and take up his Copyhold in Court and so defeat the Lord of his Fyne I assure my selfe if it were in the election of the Heire to be admitted or not to be admitted he would be best contented without admittance but the Custome in every Manor is compulsary in this point for either upon paine of forfeiture of their Copihold or of incurring some great penalty the Heires of Copyholders are inforced in every Manor to come into Court and be admitted according to the Custome within a short time after notice given of their Ancestors decease And thus much of the Grant it selfe A word of the things granted SEC XLII THings that lye not in Tenure are not Grantable by Copy As Rents Bailiwickes Stewardships Common in grosse Advowsions in grosse and such like All which are incorporate Hereditaments and therefore no Rent can issue out of them neither can they be held by any manner of Service but an Advowsion appendant a Common appendant or a Faire appendant may passe by Copy by reason of the principall thing to which they are appendant and generally what things soever are parcell of the Manor and are of perpetuity may be granted by Copy according to the Custome as Vnderwoods growing upon the Manor being things of continuance for after they are cut they will grow againe Co. 4 fo 31. ex stipitibus may well be granted by Copy and so of herbage or any other profit of the Manor and sometime of the grant of a Copyhold things shall passe that are severed from the Manor As if the Lord of a Manor grant his Manor for yeares except bosc sabosc growing in certaine Copyhold ground and the Lessee by his Steward granteth a Copyhold within which Manor there is a Custome that every Copyholder may take within his Copyhold Woods and Vnderwoods growing upon the ground for his necessary fuel notwithstanding this exception in the Lease of the Manor the Copyholder may cut downe Woods or Vnderwoods according to the Custome though by exception severed from the Manor for though the Lessee of the Manor in respect of the exception could not meddle with the Woods or Vnderwoods and so it might seeme p●ima facie very probable that the Copyholder comming in by the voluntary admittance of the Lessee should have no more Authority nor interest then the Lessee himselfe had yet because the Copyholder being once in by Custome and so his title being grounded upon Custome is paramount the exception Therefore the exception in the Lease of the Manor though preceeding the Grant of the Copyhold cannot any way touch or prejudice the Copyholder And so if there be a Custome within a Manor that Copyholders have used to have Common in the Wastes of the Lord and the Lord granteth away his Wastes and after granteth a Copyhold the Copyholder shall have Common but in alledging the Custome he shall not say Quod infra Maner praed talis habetur consuetudo but that till such a time viz. before the severance talis habebatur toto tempore c. consuetudo and then shew the severance If there be an incertainty in the things granted the Grant is not therefore insufficient for by the election of him that is the first Agent it may be made certaine As if I grant by Copy twenty loads of Hasell or twenty loads of Maple in the disjunctive to bee cut downe Co. 4. fo 31. a Co. 2 fo 37. a and taken by the Grantee in my Manor of Dale there the Grantee hath election to make choyce of which he pleaseth because he is to performe the first Act of cutting downe and taking them but if I am to cut them downe and deliver them to the Grantee then have I the election and observe this difference touching this point of election If a Grant be made in the dis-junctive of two annuall things and things of continuance if the election belong to the Grantor and he faileth at the day to make election yet his election is not determined but continueth the same after the day that it was before the day but otherwise it is where things are not annuall but are to be performed unica vice tantum Therefore if the Lord of a Manor granteth by Copy twenty trees growing upon Black-acre or Whiteacre to be cut downe yea●●ly by himselfe and to be delivered to the Grantee at such a day though the Grantor faile at his day to make his election yet his election is not gone because the things granted are annuall but had these trees beene to be delivered to the Grantee once onely and not yearely then by the failor of the Grantor at the day the election is devolved to the Grantee SEC XLIII ANd thus much of the thing granted a word of the Instruments through whose hands as through Conduit-pipes the Lands are gradatim conveyed to the purchasor I will not speake of those men that are used as Instruments by speciall Custome to present in Court surrenders taken out of Court These I have sufficiently spoken of already I will here point onely at these persons