defectum patriae libertatis liberi tenementi Hundredorum for vicini vicinorum facta praesumuntur scire 3. Propter affectum and this is either working a principall challenge or to the favour and again a principall challenge is either by judgement of Law without any act of his as if the Juror be of bloud or kindred to either party Brit. f. 135. if the Juror have part of the Land that dependeth upon the same title Bract. fo 18 If a witnesse named in the Deed be returned of the Jury c. f. 23. Ass 11. Fo. 157. a. Vide nota Or upon his own act as if the Juror had given a verdict before for the same cause albeit it be reversed by Writ of error or if after verdict Judgement were arested So if he hath given a former verdict upon the same title or matter though between other persons 8 H. 5. 10. 18. E. 4. 12. 21. E. 4. 74. fo 157. b. Vide c. If a Juror hath been an arbitrator chosen by the plaintiff or defendant in the same cause and have been informed of or treated of the matter this is a principall challenge 9. E. 4 46. But a Commissioner chosen by one of the parties for examination of witnesses c. may upon cause he challenged so favour l. 9. fo 71. Peacocks Case Challenge concluding to the favour must be left to the conscience of the triors c. As if the Juror bee of kindred or under the distresse of him in the reversion or remainder or in whose right the Avowry or justification is made c. These be no principall challenges because he in reversions c. is not party to the Record otherwise it is if they were made parties by Aide Rescepit or voucher and yet the cause of favour is apparant so it is of all principall causes if they were party to the Record 10. E. a. 12. vide c. 4. Propter delictum as if the Juror be attainted or convicted of treason or felony c. for repellitur à sacramento infamis So it is if a man be outlawed in trespasse c. Mirror cap. 3. d' attaint Fol. 158. a. Vide c. Nota the array of the Tales shall not be challenged by any one party untill the array of the principall be tried but if the plaintiff challenge the array of the principall the defendant may challenge the array of the Tales and there the one of the principall and the other of the Tales shall try both arrayes after one hath taken a challenge to the Poll hee cannot challenge the array 9. E. 4. 27. 9. H. 5. 11. If a pannell upon a ven fac be returned and a Tales and the array of the principall is challenged the Triors which try and quash the array shall not try the Array of the Tales for now it is as if there had beene no appearance of the principall pannel but if the riors affirm the array of the principall then they shall try the array of the Tales 9 E. 4. 46. 7. E. 6. Dyer 78. When any challenge is made to the Polls two triors shall be appointed by the Court and if they try one indifferent and he be sworne then hee and the two triors shall try another and if another bee tried indifferent and he be sworne then the two triors cease and the two that be sworne in the Jury shall try the rest 22. E. 4. Chal. 61. 62. If the plaintiffe challenge ten and the defendant one and the twelfth is sworne because one cannot try alone there shall be added unto him one challenged by the plaintiffe and the other by the defendant 7. H. 4. 41. If the cause of challenge touch the dishonour or discredit of the Juror he shall not be examined upon his oath but in other cases he shall be examined upon his oath to informe the triors 49. E. 3. 1. 2. Fems ne serfs ne enfans ne nul infamys ne nul que neÌ„ fise tenant ne poet estr bone summonere Brit. ca. 121. Vide libr. Fo. 158. b. Of an Ass of no disseim Vide l. 8. f. 45. Iehu Webbs case Whensoever a Statute giveth a forfeiture or penalty against him which wrongfully detaineth or dispossesseth another of his duty or interest in that case he that hath the wrong shall have the forfeiture c. and not the King P. 29. Eliz. between the Queen and Wood and so it was adjudged c. M 4. Ia. Re. and note that the Act of Parliament doâ—h give a temporall remedy at the Common Law to Parsons c. for an ecclesiasticall duty and to lay men proprietaries of tithes the like remedy but they have election either to sue for the treble value at the Common Law or for the double value in the Ecclesiasticall Court or for substraction of tithes there also Vide nota 159. a. c. 2. E. 6. ca. 13. Donee treble value al party grieve p. praediall dismes detaine per tort c. Sect. 235. 236. Payment of any money or of any valuable thing in the name of seisin of a rent seck before any rent become due is a good seisin of the rent to have an Ass of no disseis when it is due and that which is given in the name of seis c. worketh his effect to give seisin and yet it is no part of the rent nor shall be abated out of the rent S. 565. The grant and delivery of the Deede and atturnement is no seisin of the rent and a seisin in Law which the grantee hath by the grant is not sufficient to maintaine an Ass or any other reall action but there must bee an actuall seisin Fo. 160. a. Also of a rent seck and so it is of a rent charge home poit aver ass de mortd ou Bre. de Ayel ou de Cosinag touts auters manners dactions reals come la case gift sicome i poet auÌ„ daesc ' auter rent Hereupon some have gathered that a man shall have a Writ of right of a rent seck or of a rent charge albeit they be against common right F. N. B. 6. 14. E. 4 5. Sect. 237. Sont 3. causes de disseisine de rent service sc rescous replevin inclosure car per tiels choses le Seignior eÌ„ disturbe de le meane per que il doit auÌ„ vener a son rent sc de le distresse But you may make six disseisins of a rent service Rescous of a distresse resistance to distrein Repl. inclos counter pleading of the title and vouching of a Record and sailing Fo. 160. b. In some cases the Tenant may make Rescous c. 1. if no rent be behind when the distress is taken 2. If the Tenant tender the rent to the Lord when he is to take the distresse and yet the Lord will distreine c. 3. If the rent be behind and the Lord destreine the Cattell of the Tenant in the high way within his Fee 4. If the
although he can have no heire but of his body 39. E. 3. 11. 24. 17. E. 3. 42. 35. As 13. 41. E. 3. 19 An office which concernes the benefit or safety of the commonwealth c. granted to a man which is unexpert and hath no skill or science to exercise or execute the same the grant is merely void and the party disabled by law to take the same pro commodo regis populi Dier 150. An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion No man though neven so skilful c. Is capable of a judiciall office in reversion but must expect untill it fall in Possession l. 11. 2. Sect. 378. The King is capable of an office not to use but to grant A purchase is c. when one cometh to lands by conveiance or title and not by tort as by disseisin c. Note that purchasers of lands tenants leases and hereditaments for good and valuable consideration shall avoid all former fraudulent and convin conveiance estates grants charges and limit of uses of or out of the same Stat. 27 El. cap. 4. 3. b. 13 El c. 5. l. 3. 80. Twines c. States of inheritances of lands are either certain or unmoveable whereof Littl. here speaketh or incertain and moveable as if partition be made between two Co-partners of one and the self same land that the one shall have it the first year and the other the second year alternis vicibus c. 4. 2. l. 1. 87. F. N. B. 62. Between pastura pascuum the legal difference is this that pastura in one signification containeth the ground it selfe called pasture and by that name is to be demanded Pascuum is wheresoever cattel are fed of what nature soever the ground is and cannot be demanded in a praecipe by that name 4. b. many things may pass by a name that by the same name cannot be demanded by a praecipe for that doth require a more perscript form but whatsoever may be demanded by a praecipe may pass by the same name by way of grant Ibid. 5. b. If the feoffor be bound to warranty and so to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such charters as may serve him to deraign the warranty paramount but other evidences which concern the possession and not the title of the land the Feoffee shall have them 6. a. l. 1. 1. 2. There have been eight formal or orderly parts of a deed of feoffment viz. 1. The premises 2. Habendum 3. Tenendum 4. Reddend 5. The clause of warrant 6. The in cujus rei testimonium sigillum c. 7. The date 8. The clause of his testibus The office of the premise of the deed is twofold 1. Rightly to name the feoffor and the feoffee and 2. to comprehend the certainty of the lands to be conveied c. Either by express words or which may by reference be reduced to a certainty for certum est quod cert reddi potest c. Vide libr. The Seal is of the essential part of the deed The date many times antiquity omitted for that the limitation of prescript or time of memory did often in processe of time change and the law was then holden that a deed bearing date before the limited time of prescript was not pleadable and therefore they made their deeds without date to the end they might alledge them within the time of prescription The date was commonly added in the Reign of Ed. 2. 3. 6. a. quae sunt minoris culpae sunt majoris infamiae Reg. he that loseth liberam legem becometh infamous and can be no witness As if a Champion in a writ of right become recreant or coward But oftentimes a man may be challenged to be of a Jury that cannot be challenged to be a witness and therefore though the witness be of the nearest alliance or kinred or of counsel or tenant or servant to either party or any other exception that maketh him not infamous or to want understanding or discretion or a party in interest though it be proved true shall not exclude the witness to be sworn 22 Ass 12. 41. If a witnesse be outlawed in a personal act hee cannot be joyned to the Jury but yet that is no exception against him to exclude him to be sworn as a witnesse to the Jury for that he with others should join in verdict with the Jury in affirmance of the deed the party should be barred of his attaint because there is more then twelve that affirm the verdict But note there must be more then one witnesse that shall be joyned to the enquest Inst 6. b. Max. Witnesses cannot testifie a negative but an affirmative when a trial is by witnesses the affirmative ought to be proved by two or three witnesses as to prove a summons of the Tenant or the challenge of a Juror c. But when the trial is by verdict of 12 men there judgement is not given upon witnesses c. but upon the verdict c. Probatio duplex viva sc per testes mortua par chartas c. presumptio triplex 1. Violenta 2. Probabilis 3. Levis seu temeraria Many time Juries together with other matters are much induced by presumptions In case of a Charter of feoffment if all the witnesses be dead c. Then violent presumption which stands for a proof is continual and quiet possession for ex diuturnitate temporis omnia praesumuntur solenniter esse acta Also the deed may receive credit per collationem sigillorum scripturae c. Glan l. 10. c. 12. A wife cannot be produced either against or for her husband quia sunt duae animae in carne una In some cases women are by law wholly excluded to bear testimony as to prove a man to be a Villain Mulieres ad probationem Status hominis admitti non debent Fleta l. 2. c. 44. In an information upon the statute of usury the party to the usurious contract shall not be admitted to bee a witnesse against the usurper for in effect he should be testis in propria causa and should avoid his own bonds c. Smiths case T. 8. J. in C.B. Brit. 134. He that challengeth a right in the thing in demand cannot be a witness for that he is a party in interest Britton fol. 134. 6. b. Tenementum is a large word not only to passe lands and other inheritances which are holden but also offices rents commons profits apprehender out of lands c. wherein a man hath any franktenement and whereof he is seised ut de libero tenemento But haereditamentum is the largest word of all in that kind for whatsoever may be inherited is an haereditamentum be it corporeal or
Affirmative of the common Law there as well as a man may prescribe c. Against the common Law so a man may do against such a Statute Fo. 115. a. Vide qu. M. Carta c. 35. None shall cut down any trees of his own within a forrest without view of the Forrester Statute 34 E. 1. 4. Forrest Rast But a man may prescribe to cut down his woods c. 16 El. in le Escheq The common Law appeareth in the Statute of Mag. Cart. and other ancient Statutes which for the most part are Affirmative of the Common Law in originall writs in judiciall Records and in our books of termes and yeares Acts of Parliament appear in the Rolls of Parliament and for the most part are in Print Particular customes are to be proved Fo. 115. b. Sect. 171. Every City is a Burgh but every Burgh is not a City And it appeareth by Littleton that a Town is the Genus and a Borough is the species for he saith that every Borough is a Town but every Town is not a Borough Et sub appellatione villarum continentur Burgi Civitates Fortescue cap. 24. CHAP. XI Tenure en Villenage Sect. 172. TEnure en Vill vnage eÌ„ pluis properment qut un villein tien terres c. Solonq le custome del Manner ou auterment a la volunt son Seignior de faire a son Seignior villeine service Nul terre tenus en villenage ne unqs fer home franke villaine Villaine à villa quia villae adscriptus est And therefore a Tenure in Villenage is twofold one where the person of the Tenant is bond and the Tenure servile the other where the person is free and the Tenure servile Serva terra liberos de sanguine existentes villanos facere non potest quia licet faciunt opera servilia tamen non faciunt ea ratione personarum sed ratione tenementorum c. A villain is called Nativus à nascendo quia plerumque natus est servus Fo. 116. b. Est autem libertas naturalis facultas cjus quod cuique facere libet * nisi quod de jure aut vi prohibetur Servitus est constitutio de jure gentium qua quis domino alieno contra naturam subjicitur Bract. l. ca. 6. It was ordained for the cruelty of some Lords that he that killed his villein should have the same judgement as if he had killed a freeman and thereupon they were called Servi quia servabantur à dominis non Occidibantur non à serviendo Servitude was first inflicted upon Cham for dishonouring of his Father Noah Ante vini inventionem inconcussa libertas non esset hodie servitus si ebrietas not fuisset Ambrose When the villain hath an estate of any thing certain the Lord shall have it as a Rent Commons Certain c. But the Lord shall not take advantage of any Obligation or Covenant or other thing in action made to the villaine because they lye in privity and cannot be transferred to others D. St. c. 43. 22. Ass p. 37. Quicquid acquiritur servo acquiritur Dom. Fo. 117. a. The Statute of Donis Condic giveth remedy to the issues of the Donee in Taile that have capacity and power to take and retain such a gift Pl. C. 555. Walsing c. Modus conventio vincunt legem Sect. 174. Aliud est tenere liberè aliud tenere per liberum Servitium Fleta l. 3. c. 13. Mirr ca. 2. Sect. 18. Sect. 175 Chesc villaine ou est un villeine pur tille de prescription sc que il ses Ancestors ont este villeines de temps dont memorie ne Court ou il est villaine per son confession dem en court de Record And every Court of Record is the Kings Court albeit another may have the profit wherein if the Judges do erre a Writ of error doth lie But the County Court the 100 Court c. are no Courts of Record and therefore the proceedings therein may be denied and tried by Jury and upon their judgements a Writ of error lieth not but a Writ of false judgement for that they are no Courts of Record because they cannot hold Plea of debt or treâ—â—â—â—s if the debt or dammages do amount to 40. s. or of any trespasse Vi armis l. 6. 11. 12. Jentlemans Case Sect. 177. I l serr adjudge le folly del seignieur s'il neutra pas quent les terres c. sont en le maine de son villeine For before entry the Lord hath neither jus in re nec jus ad rem sed nullum tempus occurrit Regi The act of law i. e. the descent or escheat may as well prevent the Lord of his entry as the act of the party by alienation fo 118. a. 9 H. 6. 21. Goods or Chattels are either personal as a horse and other beasts houshold-stuff c. or real as terms for years of Lands c. Wardships the interest of tenant by Statute Staple c. Nota That as the title of the Lord to his villains lands beginneth by his entry so his title to the goods beginneth by the seisure of them Si le seignieur claime les biens feisist parcel en nosm de seisin de touts les biens que le villeine ad ou aver poit c. Such a claim doth not only vest the goods which the villain then hath but also which he after that shall acquire and get Sect. 179. Le seignieur poit maintenant claime le reversion de son villaine car en aulter forme il ne poit vener al reversion And the Lord cannot claim the reversion but upon the Land and he by his coming upon the Land for that purpose is no Trespasser Sect. 180. Issent le seignieur c. poit vener al esglise claim le Advowson ac son villein c. for every claim or demand to devest any estate or interest must be made in that place which is most apt for that purpose Advowson of a Church is the Right of Presentation or Collation to the Church Every Church is either Presentative Collative Donative or Elective If the Church be Presentative the Church is full by admission and institution against any common person but against the King it is not full before induction fo 119. b. Incumbent of incumbo i.e. to be diligently resident id est obnixe operam dare 10 H. 6 7. A Church Presentative may become void five manner of waies viz. 1. By Death 2. By Creation 3. By Resignation 4. By Deprivation 5. By Cession as by taking a Benefice incompatible fo 120. a. F.N.B. 31 32. By the Statute of 31 Eliz. the Presentation Admission Institution and Induction into a Benefice by Simony are made void which before were but voidable by Deprivation Note If the Church becometh void albeit the present avoidance be not by law grantable over yet may the Lord of the villain present c. and thereby gain
12 years or more be vide c. Reg. Orig. 132. 3 H. 5. tit Vtlawry Statham Sect. 187 c Lex Angliae nunquam matris sed semper patris conditionem imitari partum judica Surculus totum alimentum aÌ„ stipite capit poma tamen edit sua Fortescue c. 42. Si mulier serva copulata sit libero c. quod partus habebit hereditatem mater nullum dotem quia mortuo vito libero redit iu pristinum statum servitutis nifi haeres ei dotem secerit de gratiaâ— Bract lib. 4. fo 298. b. A child was born after the father deceased per undecim dies post ultimum tempus legitimum sc nine moneths or forty weeks mulieribus constitutum and it was adjudged Quod dici non debet filius c. Trin. 18. E. 1. Rot. 61. Beaf coram Rege Un villeine n'avar action envers son seigneiur mes en special cases c. il poit aver action c. sicome appeal de mort son pere c. Auxi un Niefe avant un appeale de Rape en vâ—rs sa seignieur W. 1. c. 13. W. 2. cap. 35. Sect. 191 and 192. The Villain shall have an action as Executor against his Lord and it is no plea for the Lord to say that the Plaintiff is his villain for he shall not be enfranchised by the user of this action because he hath it by a gift in Law to the use of the Testator and not to his own use Note Damages recovered by the Executor in an action of Trespass shall be assets and yet they were never in the Testator 21 E. 4. 4. b. 1 H. 4. 6. Not onely tenant in tail and tenant for life of a Villain shall have the perquisite of the Villain in fee but tenant for years and tenant at will also shall have it in fee for the law respecteth not the quantity of the estate but the law respecteth the quality for in what right he hath the Villain in the same right he shall have the perquisite c. For if a man hath a Villain in the right of his wife and after he is intitled to be tenant by the Curtesie in his own right he shall have the perquisite to him and his heires vide lib. c. fo 124. b. Protestation is an exclusion of a Conclusion that a party to an action may by pleading incur or it is a safegard to the party which keepeth him from being concluded by the plea he is to make if the issue be found for him but in this case without a Protestation albeit the issue be found for the Lord the Villain shall be en franchised S. 192 Pl. c. 276. in Greysbrooks Case Sect. 193. Three things be favored in Law Life Liberty Dower Tryal is to find out by due examination the truth of the point in issue or question between the parties whereupon Judgement may be given Quaestio juris shall be tryed by the Judges either upon a Demur speciall Verdict or Exception for cuilibet in sua arte perito est credendum quod quisque norit in hoc se exerceat ad quaestionem juris non respondeant juratores But quaestio facti shall be tryed by the Verdict of Twelve men fo 125. a vide c. If the Jury cometh out of a wrong place or returned by a wrong Officer and give a Verdict Judgement ought not to be given upon such a Verdict qu. c. Every 〈◊〉 must come out of the Neighborhood of a Castle Manor Town or Hamlet or place known out of a Castle c. as some Forrests c. for that the inhabitants c. may have the better and more certain knowledge of the fact 3 E. 3. 73. 20. H. 6. 30 7. H. 4. 27. Every plea concerning the person of the Plaintiff c. shall be tryed where the Writ is brought Where the matter alleged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common Law In an action against two the one pleads to the Writ the other to the action the plea to the Writ shall be first tryed for if that shall be found all the whole Writ shall abate and make an end of the business 8 E. 4. 24. In a plea personall against divers Defendants the one Defendant pleads in barre to parcell c. and the other pleads a plea which goeth to the whole sc to both Defendants this last plea shall be first tryed for in a personall action the discharge of one is the discharge of both but in a plea reall it is otherwise 15 E. 4. 25. b. c. vide lib. c fo 125. b. 9. H. 6. 46. Where an issue is joyned for part and a Demurre for the residue the Court may direct the tryall of the issue or judge the Demurre first c. l. 5. 36 b. Omnis consensus tollit errorem fol. 1126. a. * Issue exitus a single certain and materiall point issuing out of the allegations or pleas of the Plantiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold A speciall Issue as here in the case of Littleton or generall as in Trespas Not guilty in Assise nul tort nul disseisin c. And as an Issue naturall cometh of two severall persons so an Issue legal issueth out of two severall Allegations of adverse parties vide Sect. 414. An Issue being taken generally referreth to the Count and not to the Writ 7. E. 3. 34. vide c. A speciall Issue must be taken in one certain materiall point which may be best understood and best tryed 20 E. 3. Issue 31. 22. E. 4â— 28. An Issue shall not be taken upon a Negative pregnant which implieth another sufficient matter but upon that which is single and simple as Ne dona pas par left imply a gift by Parol therefore the Issue must be Ne dona pas mo do forma 21. H. 6. 9 b. 16. E. 4 5. An Issue joyned upon an Absque hoc c. ought to have an Affirmatâ—ve after it Two Affirmatives shall not make an Issue unless it be left the Issue should not be tryed 18. Eliz Dyer 253. 22. H. 6. 19. 11. H 4. 79. Some Issues be good upon matter Affirmative and Negative albeit the Affirmative and Negative be not in precise words as in Debt upon a lease for yeares the Defendant pleads that the Plaintiff had nothing at the time of the lease made the Plaintiff replies that he was seised in fee c. this is a good Issue 2 H. 7. 4. 5. H. 7. 12. 26. H. 8. in formedon Where the Issue is joyned of the part of the Defendant the entry is de hoc ponit se super patriam but if it be of the part of the Plaintiff he entry is hoc petit quod inquiratur per patriam 26 H. 8. 3. 18 Eliz. Dyer 353. There be
dictum l. 8. fo 155. l. 9. f. 13. l. 11. f. 10. Ex facto jus oritur fo 266. Vide c. Omnis conclusio boni veri judicii sequitur ex bonis veris promiss dictis Jurator Trin. 33 E. 1. in Thesaur utile per inutile non vitiatur M. 28 El. 29. Gomershall account in Ban. R. 32 E. 3. Cessavit 25. 5. 484 485. If the matter and substance of the issue be found it is sufficient S. 58. 35 Ass 8. 1 H. 4. 6. b. 27 H. 8. 22. b. Pl. 515. l. 4. f. 53. Raulins case and Pledols case H. 31. El. Sutton c. Com ban Estopper which bind the interest of the Land as the taking of a lease of a mans own land by deed indenture c. being specially found by the Jury the Court ought to judge according to the speciall matter for albeit estopper Reg. must be pleaded and relied upon by an apt conclusion and the Jury is sworn ad verit dicendam yet when they finde veritatem facti they pursue well their oath and the Court ought to judge according to law So may the Jury find a warranty being given in evidence though it be not pleaded because it bindeth the right unlesse it bee in a writ of right when the Mesc is joyned upon the Meer right 34 E. 3. Droit 29. After the verdict recorded the Jury cannot vary from it Pl. Fremans case 11 H. 4. 2. 20 Ass 12. 5 H. 7. 22. An issue found by verdict shall always be intended true untill it be reversed by attaint and thereupon c. no Supersedeas is grantable by Law If the Jury after evidence at Bar c. do at their own charges eat or drink either before or after they be agreed on their verdict it is finable but it shall not avoid the verdict P. 24 H. 8. Just Spilman Ban. R. 29 H. 8. 37. Dier P. 6 E. 6. Com. Ban. 11 H. 4. 16 17. 24 E. 3. 75. The King cannot be Nonsuit for he is ever present in Court in judgement of Law 21 E. 3. 18. The condition is executed by re-entry and yet the Lessor after his re-entry shall not plead the condition without shewing the deed because he was party and privy to the condition for the parties must shew forth the Deed unlesse it be by the act and wrong of the party but an estranger which is not privy to the condition nor claimeth under the same shall not after the condition is executed in pleading be forced to shew forth the Deed. Pl. 92. 9 H. 7. 3. Lib. 9. 12 13. Downams case 31 Ass p. 21. 10 H. 4. 9. Note that a speciall verdict or at large may be given in any action and upon any issue be the issue generall or speciall 8 E. 4. 29. 11 Eliz. Dyer 283 284. Discretio ē discernere per legem quid sit justum Si à jure discedas vagus eris erunt omnia omnibus incerta l. 10. fo 4. case de Sewers Sect. 367. A verdict is twofold 1. A verdict at large or a speciall verdict because it findeth the speciall matter c. Or leaves it to the judgement of the Court. 2. A generall verdict that is generally found according to the issue as if the issue be not guilty to finde the party guilty or not guilty generally c. There is also a verdict given in open Court and a privy verdict given out of Court before any of the Judges of the Court. To finde the speciall matter is the safest way for the Jury where the case is doubtfull Sect. 369. Lease pur vie rendt rent re-entry sur condition c. ceo est sans fait lessor enter pur non payment c. lessee enter sur le lessor et luy disseist c. en cē case le disseisee navera Ass et enc ' si le lessee soit pl ' et le lessor defendant il bar se lessee par verdict de Ass c. Mes en ceo case lou lessee est defendant sil ne voile plead le lease pur vie c. en bar mes plede nultort nul diss donques le lessor recovera per Assize 4 El. Dyer 207. 8 El. Dyer 246. A lease for life the reversion to the Plaintiff was a good barre in Assize and also that a lease for years the reversion to the Plaintiff might be pleaded in an Assize and so of a Feoffment with Warranty And note a diversity viz. of a lease for life the Tenant shall plead it in barre But in case of a lease for years or of an estate of Tenant by Statute or Elegit the Defendant shall not plead in barre as to say Ass non c. but justifie by force of the lease c. and conclude issint sans tort And if the Tenant of the Freehold be not named he shall plead Nul tenant de franktenement nosme en le breve and in the case of the Feoffment with Warranty he must relye upon the Warranty 18 E. 4. 10. 12 Ass 38. Sect. 370. Si Indenture soit bipartite ou tripartite c. touts les parts del endent ' ne sont que un fait en ley chesc ' part del endent ' est auxi de grand force effect sicome touts les parts ensemble l. 5. fol. 20. Stiles Case An Indenture may be without words but not by words without indenting A Deed poll because it is cut even polled c. Note That if the Feoffor Donor or Lessor seal the part of the Indenture belonging to the Feoffee c. the Indenture is good albeit the feoffee never sealeth the Counterpart belonging to the feoffor fo 229. a. 9 E. 4. 18. Pl. 134. Sect. 371 372. A communi observantia non est recedendum minimè mutanda sunt quae cert ' habuerunt interpretationem Magister rerum usus 17 El. Dyer 342. 12 H. 4. 12. 30 Ass 31. It is provided by the Statute of 38 E. 3. cap. 4. That all penal bonds in the third person be void wherein some of our books seem to differ c. But the Statute was principally intended of the Courts of Rome in which Courts bonds were taken in the third person So as such bonds made out of the Realm are void but other bonds in the third person are Resolved to be good as well as Indentures in the third person 40 E. 3. 1. 2 H 4. 10. 8 E. 4. 5. Brevis via per exempla longa per praecepta It is a safe thing to follow approved Presidents for Nihil simul inventum est perfectum Sect. 273. Fol. 230. b. Si en l'endenture fait en le 3. person ou en le 1. person mention foit fait que le grantor avoit mise solement son seale nemy le grantee donques est l'endent ' tantsolement le fait le grantor Mes lou mention est fait que le grantee ad mise son seale c.
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