may not be apportioned nor divided B. extinguishment 49. conditions 193. Suspension If a Lease be made for yeares rendantrent upon condition of non payment by such entry of the lessor into parcell of the land leased the condition is suspended in all And if the Lessor after such entry make an alienation of this parcell to a stranger the condition is thereby destroyed and extinct in all for the condition which is a thing entire may not be apportioned by the act of him which is to take a vaile thereof But by the act of the Law or by the Act of him which is charged with the condition the condition may in some speciall cases be apportioned An Obligation is made solvendum numquam this solvendum is void and the thing presently due 21 E. 4. 36. Obligation A. is bound to B. solvendum eidem A. this is a good obligation and the solvendum is void for the plaintiff may declare upon a solvendum to himselfe 4 E 4. 29. An annuity granted pro concilio impendendo or a Feoffment ad erudiendum filium or ad solvendum ten shillings is a condition without words conditionall Condition otherwise the party hath no remedy If the Lessor enter upon his Lessee for terme of yeares and make a Feoffment in Fee with Livery the rent is suspended for ever Suspention of rent Re-entry upon such as faile to pay their Rent at the day although the Lessee re-enter for it is a tortious entry And if it happen c. That then and from thenceforth this present Demise and grant onely in respect and having regard to the state and interest demised or granted or hereby mentioned or intended to be demised or granted to the said A.B. C. and D. and every of them which shall make default of payment of the said yearely rent in such manner and forme as is aforesaid aforesaid to be utterly void and of none effect and that then and from thenceforth at all times then after it shall and may bee lawfull to and for the said Lessor his heires and Assignes into the said Messuages or tenement Lands Tenements Hereditaments and Premises with their and every of their appertenances onely in respect and having regard to the estate and interest demised and granted or hereby mencioned c. to such of the said A. B. C. D. as shall make default of payment of the said rent aforesaid in manner and forme aforesaid wholly to re-enter and the same to have againe and repossesse as in his or their former estate and every such of the said A. B. C. D. as shall make default of payment of the yearely rent aforesaid in manner and forme aforesaid utterly to expell a move and put out any thing in these present Indentures to the contrary therof contained in any wise notwithstanding Tithes To the Parson belongeth of common right the tenths of all manner of yearely encrease which we call Dismes or Tithes and therefore by a Lease of Rectoria the Lessee shall have the Dismes and Offerings of the same Church for they are incident unto it 15 H. 7. 8 Fitz. Na. Br. 175. And if a Parson demise his Gleeb to any man hee shall pay tithe because they are of common right Heire This word Heires in the plurall number is worthy observation for if a man give Lands to one and to his heire in the singular number he hath but an estate for life for his heir cannot take a Fee-simple by discent because he is but one and therefore in that case his heire shall take nothing and observeable is this conjunctive Et. for if a man give lands to one to have to him or his heires he hath but an estate for life for the incertainty ses suis If a man give Lands to two to have and to hold to them heredibus omitting suis they have but an estate for life for the incertainty But it is said if land be given to a man heredibus omitting suis a Fee-simple passeth But follow Littleton Cokes Litt. fo 8. b. Such unity which is within the Branch of the said Act ought to have four qualities Tythes What vnity is sufficient within the Statute of 31 H. 8. to discharge the Land of Tythe first the unity ought to Iusta and rightfull and not by wrong secondly it ought to be equall that is in Fee one with the other for if the Abbots Priors c. have holden by Lease time out of memory that is no unity within the statute thirdly it ought to be perpetuall time out of memory c. and fourthly it ought to be free from payment of any tithes for if their Farmours at will for yeares c. have paid tithes unto them the unity perpetuall shall not serve Coke 11. pars fol. 9. Pruddy and Nappars Case An Abbot is Parson imparsonee and hath Lands within the same Pasonage and all commeth to the King by suppression and the King grants the personage to one and the land to another this was argued upon demurrer in the Kings Bench and the opinion of the Justices there was that Tithes should not be paid more now then the Abbey paid before the suppression The King shall not pay Tithes for Lands which are in his hands although the Leviticall Law saith that every one shall pay Tithes ut dicitur No Tithes shall be paid for Sea-coles which a man findes and diggeth in his Land for it is not yearely profit ut accidit in W. C. and Master Leech Fitz. Na. Br. 53. and Register 54. Note that by the Statute of 27. Eliz. cap. 1. it is ordayned vacua Henry the second granted unto the Abbot of York the tenth of all his Venison in York shire by his Charter By this it appeareth that for Wild Beasts there was no Tythe due for then might not the King have granted another mans Tythe c. Itner Pickering fo 170. b. The Prior of Lancaster did claime the Tythe of Venison and the Tythe of pawnage viz. decimam bestiam in carne corio per manus ministrorum de sorresta and the tenth penny of the pawnage when the pawnage of the Forrest was collected and he made his by vertue of a grant made by the Lord of the Forrest unto one of his Predecessors and his claime was allowed of for good Itin. Lanc. anno 10. Ed. 3. fo 64. b. c. No prohibition lieth where a Parson demandeth Tithes of Horne-beam Sallows Hasells Maples and such like although they be of the Age of 40. yeares for they will not serve to build otherwise it is of Oakes Ashes Elmes and such like and also of their bowes which are above the age of twenty yeares Coment Plowden fo 470. It was never seen that any Tythes should be paid of great trees because they are parcell of the inheritance and this is proved by the Statute of 45. E 3. Cap. 3. in that such case a prohibition lieth If Timber Trees have
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he
his wife and to the heires of A. of her body by I. to be begotten * Tail generall in the husband the wife for life only Habendum to I. and A. his wife and to the heires which I. shall beget upon the body of A. his wife both have estate taile because these words heires is not limited more to one then to the other * The wife hath taile generall the husband frank tenement Both have estate taile Taile speciall in both Habendum to I. and A. his wife and to the heires of their two bodies this is taile speciall as well in the husband as in the wife But if I. give Lands to I. A to his heires which he shall beget of A. his wife here A. hath but estate for life and I. hath estate in taile speciall but in this case if he had said to the heires and not to his heires then either of them should have had an estate in taile speciall because these words heirs is referred as well to the one as to the other If Tenant in taile speciall hath issue and die the issue is forthwith remitted to the taile generall and such issue and all his issue shall stand so seised for evermore Vses 27. H. 8. cap. 10. Creation of estates taile raised by way of limitation of uses The expression of divers and sundry uses TO have to the said Feoffees their heirs and assignes for ever by the severall uses intents and purposes and under and upon the conditions provisoes and limitations hereafter in and by these presents limited and declared and to no other use intent or purpose that is to say the aforesaid Mannors of Compton c. withall and singular their and every of their rights members and appurtenances whatsoever to the use and behoofe of the said H. P. for the terme of his life without impeachment of c. For sale of Lands to pay debts and Legacies and after his decease to the use and behoof of the abovenamed Feoffees and their heirs in trust and confidence and to the intent purpose that they the said Feoffees and the survivors or Survivor of them shall and will by sale of such parts and parcels of the Premises as they or the survivors or survivor of them or their heirs shall think fit to bee sold and by the issues and profits of the residue pay and discharge all the Debts Legacies and Funeral expences of the said Sr. H. P. and after payment and discharge of the same debts Legacies and expences shall and will conveigh and assure all the residue of the Premises limited to their use For intailing of Lands to the tenth generation and remaining unsold unto the said H. P. Esq sonne of the said Sir H P. and the heires of his body issuing and for default of such heires to the use of the said La. F. P. La. S. and I. F. and the heires of their severall bodies issuing and for default of such issue to the use of the right heires of the said Sir H. Poole for ever To the use of the first son of the body of the said K. P. lawfully to be begotten and of the heires males of the body of such first son issuing Entaile first to the issue male and then to the issue female when they shall come to the age of 〈◊〉 And the said Mannors of S. P. C. c. and all other the Premises whereof and wherein there is not any use in and by these presents already specially lymited and declared to the use and behoofe of the said Sir H. P. Knight for the terme of his life without impeachment c. And from and after his decease to the use and behoofe of the said H P. son of the said Sir H P. for the tearme of the life of the said H P. the son without impeachment c and from and after his decease to the use of the first son to be begotten of the said H. P. son of the said Sir H. P. and of the heires males of the body of the said first son issuing and so on to the tenth son and for default of such heires to the use of every other the sons to be begotten by the said H. son of the said Sir H P. as they shall be in seniority or age and of the heirs males of the severall bodies issuing that is to say as for and concerning the Mannors of c. with their and every of their severall rights members and appurtenances to the use of him the said H. P. for and during the tearme of his naturall life without c. and from and after his decease to the use of the first son of the body of the said H P lawfully to be begotten A Fine was levied to the A. uses of and the heries males of his body untill hee or the heirs males of his body have done such an act and after such a thing or act done to the use of another in taile died without issue without anything done and it was adjudged that the remainder was in contingency shall never fall Coke 10. a part fo 85. Uses Jointer for the Wife Taile speciall and of the heires males of the body of such first son issuing and so to the tenth son And for default of such issue then to the use of every other the sons c. and for default of such issue to the use of B P. the now first begotten daughter of him the said H P. from and after such time as the shall accomplish the age of sixteen yeares for and during the terme of her life and after her decease to the use of the first Son of her body which shall be begotten by such her husband which shall be of the sirname and blood of the Pooles and of the heires males of the body of such her first son issuing and so to the tenth son Then entaile the lands in forme aforesaid to the first 2. 3. 4. 5. and tenth daughter and this limitation following and to the use of the Executors of him the said H P. for and untill such time as the severall daughters which shall take any benefit by vertue of these presents shall accomplish their severall ages of 16. yeares respectively and after the death of the said H P. without issue male or female qualified as aforesaid Then to the use of Dame F P wife of one Sir N P Knight sister of the said H P for and during the terme of her naturall life and after her decease to the use of H P. Esq the first son of the said sir N. P. and Dame F and of the heires males of the body of the said H issuing and so to the tenth son And for default of such issue then to the use of the right heires of the said H P party to these presents for ever And as for and concerning the Mannors of C and S to the use of the said H P for
Heires so that his Heire may not have it by discent and the King shall not have it because he that did the Treason had not the Fee at the time of the Treason or afterward Plowden 562. 556. If a man do lease or assure his land to another and all the Mynes and Pits thein for life or yeares the lessee may open and dig the ground for Coale Morter Stone c. and take and carry away the same although there were not any Myne open at the time of the lease for by this assurance it appeareth that the lessor was contented that waste should be made in any part of the ground leased by myning or digging And in this case the lessee may sell and dispose the same Coale Stone Marle Morter c. at his pleasure for it is as much as if the lease had been made without impeachment of any manner of waste to be committed by Myne Pits or digging Lessee for life the Remainder for life the Remainder in Fee the first doth waste that is not punishable by him which hath the Fee by reason of the meane Remainder otherwise it is if the meane estate be for years If Lessee for life be the Remainder for life and the Lessee for life doth Waste this Waste is dispunishable at this time for the advantage of him in Remainder for life And where a Lease for life is granted and then the Reversion is granted for life and the Tenant attorneth an Action of Waste lyeth not yet vide the Register 75. that Waste lyeth where there is a mean estate for life in Remainder And though the Waste be unpunishable in the first case yet it seemeth the Chancery may enjoyne him upon complaint against the first Lessee that he shall not do Waste for that he ought not to do Waste by the Law although no Action lyeth The Process in Waste is Summons Attachment and Distresse and if he appeare not at the Distresse then a Writ to the Sheriff to enquire of the Waste by the Oath of twelve men There are two kinds of Waste viz. Voluntary or permissive Waste in houses Waste may be done in houses by pulling them downe or by suffering them to be uncovered whereby the Spars or Rafters Planchers or other Timber of the house are rotten But if the house be uncovered when the Tenant cometh in it is no Waste in the Tenant to suffer the same to fall downe But though the house be ruinous at the Tenants income yet if he pull it downe it is Waste unlesse he reedifie it againe if Glasse-Windowes though glazed by the Tenant himselfe be broken downe or carried away it is Waste for the Glasse is part of the house And so it is of Wainscot Benches Doores Windowes Furnaces and the like annexed or fixed to the house either by him in Reversion or the Tenant Though there be no Timber growing upon the ground yet the Tenant at his perill must keep the house from wasting If the Tenant do Waste or suffer Waste to be done in houses yet if he repaire them before an Action brought there lyeth no Action of Waste against him but he cannot plead Quod non fecit vastum but the speciall matter Waste in Gardens and Orchards If the Tenant cut downe or destroy any Fruit-trees growing in the Garden or Orchard it is Waste but if they grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Lopping of Trees by a Copyholder is not a forfeiture but a Copyholder may not lop and burne them in another house of the Land or Mannor nor sell the Lops unlesse by the Custome he may do waste Kitchin forfeiture 125. Waste in building of a new house If the Tenant build a new house it is Waste and if he suffer it to be wasted it is a new Wast if the house fall downe by tempest or be burned by the lightning or prostrated by enemies or the like without a default of the Tenant or was ruinous at his coming in and fall downe the Tenant may build the same againe with such matterials as remain and with other Timber which he may take growing on the ground for his habitation but he must not make the house larger then it was if the house be uncovered by tempest the Tenant must in convenient time repaire it Waste in Dove-houses Parks Ponds c. Waste in Timber-trees If the Tenant of a Dove-house Warren Parke Ponds or the like do take so many as such sufficient store be not left as he found when he came in this is Waste Waste properly is in houses Gardens Timber-trees viz. Oke Ash and Elme and these be Timber-trees in all places either by cutting them downe topping them or doing any act whereby the timber may decay Also in Countries where timber is scant and Beeches or the like are converted to building for the habitation of man or the like they are also accounted timber that is if the Tenant cut downe timber-trees or such as are accounted timber as is aforesaid this is Waste And if he suffer the young Gerignes to be destroyed Wast in cutting Beeches c. this is destruction Cutting down of Beech Willowes Birch Aspe Maple or the like standing in the defence and safeguard of the house is destruction if there be a Quick-set fence of Whit-thorne if the Tenant stub it up or suffer it to be destroyed this is destruction and for all these and the like destructions an Action of Waste lyeth turning of Trees to Coales for Fewell when there is sufficient dead Wood is waste If the Tenant suffer the houses to be wasted Waste digging for Gravell Cole c. and then fell downe timber to repaire the same this is a double waste digging for Gravell Lyme Clay Brick Earth Stone or the like or for Mynes of Mettall Coale or the like hid in the Earth and were not open when the Tenant came in is waste but the Tenant may dig for Gravell or Clay for reparations of the house as well as he may take convenient Timber-trees If the Tenant convert arrable land into Wood Wastin converting arrable into wood or Meadow into arrable or wood into arrable or Meadow into arrable it is waste The Tenant may take sufficient wood to repaire the Walls Pales Fences Hedges and Ditches as he found them but he can take no new and he may also take sufficient Plow-bote Fire-bote and other House-bote The Tenant cutteth downe Trees for reparations and selleth them and after buyeth them againe and imployes them about necessary reparations yet it is waste for the Sale he cannot sell Trees and with the money cover the house burning of the house by negligence or mischances waste An Occupant shall be punished for waste and so if an estate be made to A. and his Heires during the life of B. A. dieth the Heire of A. shall be punished in an action of waste If a Lease be
to some of the neighbours of the towne where the goods were by them safely to be kept and by the opinion of M. Brook tit forfeiture 44. this order ought to be observed concerning the goods of every one which committeth felony untill he be attainted but yet the felon must have reasonable maintenance out of them for himselfe and his family in the meane time Plowden 68. Sur Statute Merchant of the body Lands and Goods Statute Staple of the body Lands and Goods Recognizance Elegit Of the moietie of the Lands and al the goods Executions Of the moiety of the Lands and of all the Goods of the Debitor Capias ad satisfact Of the body only Fieri facias Of the goods only Levare Facias Of the profits of the Lands and Goods Statute Merchant AN execution finall is when the Defendants lands are extended or his goods sold and delivered to the Plantiff who accepting this in satisfaction ends the suit Execution finall quousque An execution with a quousque and not finall is in the case of a Capias ad satisfaciendum where the body is taken to the intent to satisfie the Plantiffe but is no satisfaction but a pledge for the debt Note that the statute Merchant is a bond or obligation of record acknowledged before the Major of London York Bristoll or of other City or before the Bayliffe of any Burrough or Towne or before other persons there to that purpose appointed and it is sealed with the seale of the Debitor and of the King the forme wherof see Wests pre 106. If a Statute Merchant be not sealed by the party non valet 6 R. 2. Fitz. Execution 131. If a man be bound in a Statute Merchant and doe not pay the debt at the day execution shall be done thereof in this manner How the Statute Merchant shall be executed the money being unpaid at the day First the Connusee may come to the Major or other Officer before whom the Statute was acknowledged and pray him to certifie the same into the Chancery under his seale c. and if he will not certifie it then a Writ of Certiorare must be sued forth of the Chancery directed to the said Officer of the place where the Statute was knowledged to certifie the acknowledgement of the same Statute into the petty-bag Office in the Chancery Executions shall be of body and upon the certification a Writ of Execution ss a capias shall goe out against the body only of the Cognisor si laicus sit to take his body and command the Sheriff to keepe him safely in Prison untill he hath agreed for or fully satisfied the debt But the debitor after he is taken hath liberty given him within a quarter of a yeare to sell his lands and goods to discharge his debts and if he do not agree for his said debt within the next quarter Lands and Goods then all his lands and goods shall be delivered by the Sheriff to the Creditors upon a reasonable extent to hold untill the debt be paid and yet neverthelesse the body of the debitor shall remain in Prison untill the debt be paid And this Writ may be returnable into the Court of Common Pleas or into the Kings Bench. But upon the returne by the Sheriff of that Shire to whom the capias was directed quod laicus est non est inventus in Bal. sua then shall go out an extent against all the Connusors lands and goods and against his body see the Register 247. And upon such an extent come to the Sheriffs hands the Sheriff shall or may presently cause the moveable goods of the debitor to be prized and sold as far as the debt doth amount and the debt without delay to be paid Stat. Acton Burnell 13 E. 1. Note that if the Sheriff can finde no buyer he shall cause the same goods to be delivered to the Creditor at a reasonable price as much as doth amoūt to the debt and if the Prizers of the goods doe set an over high price to the damage of the Creditor then shall the things so prized be delivered to the prizors at the same price and they shall be forthwith answerable to the Creditor for his debt But the Sheriff must sell the goods to them which offer most for them And yet if the Sheriff shall sell them at an underprice it seemeth the Debitor hath no remedy Fitz. Extent 7. see the Statute of Acton Burnell If the Debitor have no moveables whereupon the debt may be levied then shall his body bee taken and kept in prison untill he hath made agreement 13 E. 1. If the Sheriff doe not returne the Capias or do return that the Writ came too late or that he directed it to the Bayliffe of some Franchise he shall be punished and yeild damages to the party grieved according to the Statute of Westminster 2. cap. 39. If the Sheriff returne that the Debitor is a Clark then shall there go out an extent against his lands and goods onely to be delivered upon a reasonable extent as aforesaid but his body shall not be taken If the Debitor found sureties which acknowledged themselves to be principall debitors after the day passed they shal be ordered in all things as the principall debitors scil for their bodies and delivery of lands and goods Stat de mercator But so long as the debt may be fully levied of the goods of the Debitor the sureties shall receive no losse Stat. de Acton Burnell And if any of these Debitors being in prison shall happen to escape the Sheriffe or Goaler must answer the body or the debt and therefore it behooveth the Sheriffe and Goler that the prisoners be safely kept Statute de mercator Note that when any Statute Merchant is certified into the Chancery and thereupon a Writ awarded to the Sheriff and returned into the Common place and the Statute there once shewed that howsoever the process after the same shewing be discontinued that at what time the party sueth to have the process recontinued and to have execution of the same Statute that the Justices of the Bench where the Statute was once shewed may upon the same Record make and award full Execution of the Statute Merchant aforesaid without having the sight thereof another time 5 H 4. cap. 12. And the Dier fo 180. Terminum Pasche anno 2. Eliz. where the Connusee of a Statute Merchant having the same certificate into the Chancery upon a certiorari directed to the Major thereupon sued a Capias against the Connusor returnable into the Bench at which day the Sheriffe returned non est inventus and the connusee there shewed the Statute as he ought and had another Capias before the returne whereof the Connusee died and it was doubted whether his Executors should have a scire facias against the Connusor or that they should begin of new ss to sue a new speciall Writ out of the Chancery
c. those which are meere Recognizances are not sealed but are inrolled And sometimes are sealed with the seale of the party and may be with condition annexed or may bee single and then to have indentures of defeasance Also the King may by his commission give authority to any man to receive connusance of another man and to returne it in Chancery and by vertue of such commission if the man knowledge it before a commission any debt to another to be paid to him at a certain day and that certifieth into the Chancery with the commission c. Now upon certificate made of this connusance if he doth not pay the debt at the day he shall have an elegit upon this recognizance so taken aswell as if it were taken in the Chancery Upon a Recognizance there shall not goe a Capias but a Scire facias returnable in Chancery and upon the returne thereof they use to award a Capias a fieri facicias or an Elegit at the election of the Connusee 48 E. 3. fo 14. Upon a Recognisance the connusee may not have an action of debt against the heire for the recognizance is quod tunc vult concedit quod dictae pecuniae summa de bonis catall terr tenementis c. levetur so that the charge is imposed upon his Goods and Lands so that debt lieth not therupon against the heire co 3. 15. Yet upon a recognizance acknowledged to the use of the King although the words of the recognizance are de bon catt terr tenemenntis c. levetur the King shal have liable to his execution as wel the body as the lands goods of his Debitor see co 3. 12. b 11 93. a. Execution by force of a Recognizance in case of a common person shall bee of all the Goods and Chattels of the Connusor except his Plowcattle and implements of husbandry and of the moietie of his lands west 103. Note that this word Recognizance extendeth oftentimes in our Books to Statute Merchant and Statute staple Execution by Elegit AN Elegit is a Writ judiciall and lieth for him that hath recovered debt or damages in the Kings Court and must be sued within the yeare Tearmes de ley By force of an Elegit the Sheriff may take in Execution and deliver unto the party scil unto the cerditor the one halfe of the lands of the Connusor and all his good and chattels praeter Boves affros de carvia sua saving onely his Oxen and beasts of his plow untill the debt be levied upon a reasonable price or extent And this is by force of the Statute of Westminster 2. cap. 18. which is the first statute that did subject land to be taken in execution or upon a recognizance which is in the nature of a judgement 13 E. 1 ca. 18. co 3. 12. This Statute of Westminster 2. which giveth the Elegit provideth quod Vicecomes liberet ei omnia cattalla c. medietatem terrae suae quousque debitum fuerit levat per rationabile praetium extentum which last word praetium is to be referred to Chattels extentum to be referred unto lands rationabile praetium extentum ought to be sound by inquisition and verdict scil the apprizing of the goods and the extent or valuation of the Lands ought to be per sacram 12. probor legalium hominum c. for the Sheriff himselfe cannot appraise the goods nor value nor extend the lands upon an elegit neither can the Sheriff upon an elegit deliver any goods in Execution or extend any lands but onely such as are appraised and valued by the Jurors of the inquisition Co. 4. 74. otherwise it seemeth of all other sorts of Executions The words of this Statute of Westminster 2 ca. 18. are thus liberent ei medietaeem terrae debiteris which by construction of Law is the moietie of all that he hath at the time of the judgment given or at any time after Co. 7. 19. and by the equity of that Statute the Sheriff may deliver to the Creditor or Connusee the moietie of the Rents Br. Parliament 10â— Plow 178. Also these words in the said statute quousque debitum fuerit levatum shall be intended be or might be levied for if the Conusee or tenant by elegit or tenant by statute Merchant or Staple neglect to take the profits yet when the connusee might have been satisfied of his debt according to the extent the connusor shall have againe his land but it seemeth he may not enter in such case but is put to his scire facias Co. 4. 82. If Tenant by elegit be outed by a stranger there the time shall on and he is put to his remedie against the trespasser ibm If the Connusee be outed by wrong by the connusor or by any other claiming under him for life or years c. the connusee shall hold over co 4 66. If the lands delivered in execution be lawfully recovered taken or evicted from the possession of the connusee before his debt be satisfied he shall have a scire facias and upon that a new writ of Execution Statute 32 H. 8. ca. 5. co 3. 87. This Statute of Westminster 2. cap 18. that giveth the elegit doth not extend to Copyhold Lands for it should be prejudiciall to the Lord and against the custome of the Mannor that a stranger should have interest in the land holden by copy where by the custome it may not be transferred to any without c. co 3. 9. Terme for yeares may not be extended by the Sheriff upon elegit without finding the beginning and certainty of the terme by inquisition for execution by elegit ought to be by inquisition and if it be found by the inquisition that the debitor was possessed of certain land per terminum quorandum annorum ad tunc ventur This inquisition is insufficient for they ought to find the certainty and the reason is because that after the debt satisfied the party is to have again his terme if any part thereof remaine which certainty of terme ought to appear upon the returne of the Sheriff as it seemeth Cok. 4. 74. But upon a Fieri facias the Sheriff may sell the lease or terme without reciting any certainty scil the Sheriff may recite that the Debitor hath a terme of such a thing pro terminis diversis annorum ad nunc ventur and that he sold that by force of a fieri facias to I. S. and that is good so if the Sheriff sell all the interest that the Debitor hath in the Land that is good notwithâ—standing misreticall for by the common intendment the Sheriff may not have precise connuzance of the certainty of the commencement and certainty of the end of the terme but if he take upon him to recite the terme and mistake it reciting it falsly and sell the same terme this sale is void because there is not any
cast up will shew you the yeare of our Lord in which the years shall end so that if your Lease commenced at Michaelmas it will end at Michaelmas in the same yeare Or if it begin the twenty fourth of March in that yeare which is but one day before the end and change of the yeare then it will end the twenty forth of March the said yeare As for example A Lease began Michaelmas Anno. 7. Eliz. 1564. to endure for the terme of ninetie yeares I demand how many yeares is to come of this Lease and when the same terme of yeares will be determined first I set downe the day of the Month and the yeare of our Lord in which the Lease tooke his commencement as at Michaelmas 1564. unto which summ I adde the number of yeares which was granted by the Lease being ninety yeares which being cast up maketh the summe to be one thousand six hundred fifty four in which yeare at Michaelmas the yeares will be expired and the Lease determined then to know how many yeares are to come of the same Lease I set downe the Lease will expire and then substract out of that summe the yeare of our Lord which then is as for example one thousand six hundred twenty eight whereby I find the substracted number to be twenty six and so many yeares there is yet to come from Michaelmas 1628. A Lease was made for eighty yeares to commence at Michaelmas 1567 80 1647. the Lease will end The yeare of our Lord 1628 substracted sheweth that 0019. there is 19. yeares to come at Michaelmas 1628. A Warrant to Summon a Court of Surveigh THese are to will and in his Highnesse name to require you to give notice warning to be given to all singular the Tenants aswell Freeholders as Copiholders and they that hold by Lease or at Will of or within his Highness Mannor of C. in the County of S. that they and every of them do make their personal appearance at his highnes Court of Surveigh there to be holden upon Wednesday next being the 16. of July 1655. by 8. of the Clock in the forenoone of the same day at the usuall place of keeping the Court of the same Mannor and that they and every of them do then and there bring and shew forth or cause to be brought and shewd forth all their Deeds Leases Copies of Court-Rolles and all other their evidences whereby they and every of them doe pretend or claime to hold any Lands and Tenements whatsoever of or belonging to the said Mannor And also that they and every of them doe then and there bring and shew forth all such Rentalls Court-rolls Surveighes Terrats Suit-rolls and all other Escripts Writings Minuments and Records which they or any of them have any way concerning the said Mannor or any part member or parcel of the same and to give such further attendance in and about his Highnesse said service of survey as shall be of them and every of them necessarily required wherof faile not as you tender his Highnesse service dated c. Your loving friend I. N. To the Bayliff of his Highnesse Mannor of C. or to his deputy or to every of the Tenants of or belonging to the said Mannor and the members thereof Cause this to be published in the Church at the time of divine service and cause the under Tenants to give notice to them whose undertenants they are that dwell remote ARTICLES to be enquired of at a Court of Survey and Court-Baron for the Mannor c. 1. IMprimis you shall declare the true circuit and generall Boundarie or Boundaries of this Mannor Butts and Bonds and how farr and into what place or places doth the same extend and upon what other Lords Lands doth the same bound and border aswell on the East West North and South sides and whether have any of the generall or utmost bounds Meers or Markes been altered and by whom and where Concealments 2. Item whether do any person or persons within the precinct of this Mannor or any other whatsoever covenously conceale and wrongfully occupy any part or parts of this Mannor and who the same persons be and where and in what place and what be the names of the grounds concealed or encroached and in whose occupation be they and how long have the same been concealed or enclosed The mansion house demean lands 3. Item you shall enquire of the chiefe Scyte and Capitall Mansion house of this Mannor with the perticular Members and buildings and what demeane Lands Meadowes Pastures Arable Grounds Woods Underwoods hereditaments whatsoever are belonging to the same what be their severall names and where and in what parts of the Mannor doe the same lie and how be they butted and bounded and who be now the occupiers thereof and under what Estates Rents Herriots or services to your knowledge 4. Item what free-hold Lands Freehold Tenements or hereditaments be holden of this Mannor who be they that be seised thereof and what Rents reliefes workes customes or other duties do they pay or ought to pay for the same and by what tenure to your knowledge doe they and every of them hold and how are they butted and bounded and what quantity and number of Acres do the same containe and what is the true yearly value thereof 5. Item Copy-hold lands what Lands or Tenements be holden by Copy of Court-Roll within this Mannor who they be that are seised thereof and what Rents Herriots works customes or other duties do they pay or ought to pay for the same and what quantity and number of Acres do the Tenants severally hold and the quality therof and what is the true yearly value of the same 6. Item Tenants at will Tenants by Indenture Who be they that be tenants at will or tenants by Indenture what lands or tenements doe they hold or what rents or duties do they pay or ought to pay for the same and what is the quantity or yearly value therof 7. Item Decay of houses whether there be within this mannor any ancient houses decaied or fallen downe or any houses or buildings out of reparations and where and how long have the same been ruinous decayed or out of reparations and in whose default and to what charge or value would the new erecting or repairing of them or any of them amount unto 8. Item you shall enquire of all the falling down Wast Woods destruction and wasts of any Woods Underwoods or Trees in and upon the said Mannor or any part or parcell thereof made or done by any person or persons and by whom where and when and to what value Names of commons c. 9. Item what be the names of the Lords VVasts Heaths or Commons of what name or kind soever belonging to this Mannor which of them are free for the Lord of this Mannor to use in severalty and who be they that doe enter-common
with the tenants of this mannor in any part or parts thereof and with what Chattle and where and bywhat right custome or duty to your knowledge Enter commoners 10. Item VVhether may the Lords and Tenants of this Mannor enter-common in the VVasts Downes Heathes Moores or commons of any other Mannors or Lordship And if they may then with what kinde of Cattle and what be the names of the Mannors and commons and who is now seised thereof to your knowledge Exchange of Land 11. Item what exchanges have been made of any land within this Mannor by whom when and where were the same exchanges made and what lands and for what terme Lands forfeited or escheated 12. Item whether have any parts or members of this Mannor been forfeited or escheated or ought have been unto the Lord of this Mannor and not yet seised to his use by reason of any death Bastardy granting of Leases without license aliening of copy-hold land by feoffment Wast Demise or otherwise what and were be the same lands and who do occupy the same and how and in what manner were the same so forfeited or escheated 13. Item what Herriots reliefs or other duties Herriots reliefs c. are or ought to be due unto the Lord of the Mannors upon the decease of any tenant of what estate soever or upon any alienation or surrender and whether such as doe hold under divers rents ought to pay diverse Herriots And if they doe of what kind or kinds be the said Herriots or ought the same to be to your knowledge 14. Item what quit rents workes Quit-rents work customes c. customes or other duties are or have been of old time of right paid out of this manner and to what person or persons and upon what cause 15. Item you shall enquire if any evidences Court-Roles or writings belonging to this Mannor Writings or Court-Rolles concealed are with-holden or kept back from the Lord of this Mannor and by whom The interpretation explanation and meaning of divers words used in ancient Charters c. Fleta Sock A Power to seek after Thieves and to do justice upon them after such inquisition Also a Liberty to have Suitors to their Courts that have the same Also it is taken for a company of Tenants which live within such a Liberty and they are by the same exempted from the common services of the Prince and Country whereunto other Subjects are ordinarily bound Sochemans Are men to whom some special Liberties are given Ham Socha Is the dwelling of a Farmer Dr. Cowel Ham is a Town and from thence comes Hamlet Sack Signifieth Causa and from thence cometh this saying For whose sake scilicet For whose cause Skene de verb. signif Lam. f. 132. Sack Is called Placitum emenda de transgressione hominum in curia nostra It is the Amerciament paid by him which denieth the thing proved against him to be true or affirmeth the contrary to the truth Fleta Sack Significat acquietantiam de Secta ad Comitatum hundredum l. 1. c 47. Cassaneus in consuetudine Thol or Toll Tolvetum alias Theo onium hath two significations viz. 1. A Liberty to buy or sell within a certain precinct which importeth to a Fair or Market 2. And in the second it is a Liberty to take Toll as to be free from the payment thereof He that is infeoffed with Toll is Custome-free and payeth no custome Skene when it is written Hoc est quod vos homines vestri de toto homagio vestro fint quieti de omnibus mercanciis de tolveto de omnibus rebus emptis venditis Privy contracts were held unlawfull and therefore the Lord of the Fair or Market in testimony of the contract received toll Is a power to have slaves which are called Nativi Bondi Villani Teame alias Theme And all Baronies infeoffed with Theam hath the same power for unto them their Bond-men their Children Goods and Chattels properly belong It is a Royalty granted onely by the King himself A compound of three Saxon words Infangthef the Preposition In fang to take thef a Felon Infangthef est Justicia cognoscentis latroniâ— de homine suo si captus fuerit super terram suam Illi vero qui non habent has consuetudines coram Justicia regia rectum faciant in Hundredis Wapentagiis vel Shiris An out-taken-thief Vtfangthef Bracton l. 2. c. 24. diciturlatro extraneus veniens aliunde de terra aliena qui captus fuerit in terra ipsius qui tales habet libertates Significat acquietanciam misericordiae intrationis in domum alienam vi injuste Handsok Fleta l. 1. c 47. Grith a word of the old Angles signifying Peace Brich quasi Breach Grith brich Rastal expositione verborum Those amerciaments due for Bloudshed Blout in Saxon est Sanguis Wite est Culpa Blodwite D. Cowel A liberty to take amerciaments pro melletis Flitwite Bona utlegatorum Fredwite Significat quietanciam misericordiae de latrone suspenso absque consideratione Hengwite Fleta l. 1. c. 27. Cowel Cowel est muleta pro homine injuste suspenso Liâ—…wite Is a liberty to take amends of him that defiles your Bond-woman Flemene frith A liberty to challenge the Cattel or amerciaments of your man a Fugitive Forstall To be quit of amerciaments and cattle arrested within your lands and the amerciaments thereof coming Gidel Grest A kinde of purgation in old time whereof there was two sorts viz. per ignem aquam Henfare An amerciament for flight for murder Vetito namio is power to have Pleas of Withernam that is if any of his men or Tenants to whom such power is given be arrested in another Liberty the next man of that liberty that comes into his Fee shall be taken and deteined untill the other be freed In a Charter of King Edward the Third dated at Walton 25. Junii Anno Regni sui 12. reciting divers former Charters doth declare and grant That by the obscure and dubious and general words in the former Charters the Grantees should have all amerciaments as well of Free-men as of Villains and that they should receive all that the King ought to have for any fault or transgression to be amerced in the Court of the King before the Barons of the Exchequer before the Justices of the Bench or before his Justices Itinerant at Common Pleas or before his Justices assigned to take Assizes or to deliver Goals or to whatsoever Inquisitions to be made or amerced before any other Justices Sheriffs Inquisitors Reeves Bayliffs or other ministers as well of the Forrests as others to whatsoever Office they were deputed by the King And that they have the Goods and Chattels of Utlaws Condemned persons and Fugitives and of Felons as wâ—ll of themselves as of all other Felons
And that they have all the Goods and Chattels forfeited of all their men and Tenants resident or not resident and of all others resident within or upon their Tenements Lands or Fees There are divers Immunities granted by divers old Charters as to be quit de Geldiâ—… Danageldis Hildagiis Carucagiis Auxilis Wardpenny Averpenny Thething penny Theolonio Pontagio Passagio Pavagio Cestagio Tallagio Carriagio c. And are explained in that which follows Certain Saxon words in Doomsday Book expounded by Mr. Agar of the Receit in the Exchequer A. ALneâ—um a place where Alder-trees grow Alodium the old translation of the Saxon Laws useth this word for Bockland Aloacii or rather as I take it Alodacii they that hold Bockland or Charter-land Arabant they that held by tenure of Plowing and Tilling ground Arpens the Frenchmen say that an hundred Perches make an Arpent 18. Foot a Perch 12. Inches a Foot Columel l. 5. c. 1. Demi-arpent they take for Jugum or Jugerum Arsura concerning Coynage Avera Service or Avarage B. BAtsweines we call them Botswains or Bothouls Berewich I am of Mr. Cambden's minde in his Book that it signifieth a Town-parcel or belongin to another Berquarii I take it for to be Shepheards we call Bercarium a Shepherd both seem to come from the French Beragiâ—… Bordacii they be Tenants that occupy part of the Demesns which are called Bordlands i. Terra ad mensam Bruaria we call that which the Latines term Erica Bruere Heath Burse or Colibti it may be this word is written for Bury which sometime I reade in this Book Bure is that which the Dutchmen call a Bore Colâ—…s a Paysant Burgheristhe I think it should be Burgberiche Violatio Pacis in villa Buzecatle Bursecapls or Botsecals the same that Botswain Merchiner or Shipmen C. CAballa I think it should be Caballus a Horse Caruca a Plough Carucata a Plough and Land Censarii such as might be taxed Cervisarii the Saxons had a duty called Drinkleum that is retributio potus Canutus Laws c. 8. 28. 38. whereupon such Tenants may be called Cervisarii Circset the Saxons call it Cirikseat but Fleta calleth it Circseâ— quasi semen ecclesiae Corn paid to the Church Coliberts see Burf Cosez Cottages Cotemans Cotigers of Coten or Coath an house Cuna servicii a Kan of Drink B. DEna terrae a hollow place between two Hills Drenchs in Cheshire a Fermor F. FOrtgingels Ferthindel is the fourth part of an Acre or Penny or any thing else Ferlingi a quantity of Land in Huntingdon Somerset and Hampt Feudum that which we call Feodum Firma Rent in money or victual but properly in victual in the Charter of Edgar to Ely it is limited for a penalty to pay one nights ferm if the privileges be broken by any man Foristell Forestall the stopping of ways that is now used for such as buy things before they come at the market Fraxmetum a place where Ashes grow Frustum terrae a piece of Land G. GAllum the Saxons called it Gasell custom paid to the King or rent Garb Garben a Sheaf of corn Garsum â—…e a Fine or Amerciament Goldum Solutio Gribrige Grith brecbe Fractio pacis H. HAga est in Burgo vel in Civitate Hangennita Hanguits Latro suspensus sine indicoÌ„ Harduices in Burgo Glouc. ubi sunt currucat terrae villanni Hede or rather a Hide a port or landing-place Henfare an amerciament for flight for murder Hesthas a service to the King in Closhaw Hasta I think rather it should be so written Henewarde a duty to the King in Cambridgshire Hominacio it may be called Dominacio many use Hominum where we use Homagitum Huscarbus Famulus a servant in your house Hida an uncertain quantity of arable land in several Counties I. INewardus one attending the King in Hereford and Cambridgshires Inland so the Saxons call the Demesns of a mannour and the Lands that were holden of them Vtland Jugum half an Arpent 50. Perches nota that in one place of Doomesday Book it is said tenet unum jugum terrae ust di car L. LAgeman that is homo habens legem Lagh is Law Landgeble the Saxons call both rents and customary payments of works or other things and tribute Gastel and they had special names for sundry sorts as Beregavel payment of Burly-cheese Gavel rent-cheeses Pridgavel the Welchmen use for Landgavel Legruita or rather Lethervita but more usually Lierwite punishment for lying with a woman Lenna A mesne of a mile of Land Lenga A mesne of a mile of Land Lennides A mesne of a mile of Land Libras arsas pensatas a quantity of coin M. Mansum Houses Mansura Houses Marsum a quantity of of coin quâ—…re P. PAracium the tenure that is between parceners viz. that which the youngest oweth to the eldest Pasuagium money taken for mast or feeding of Hogs we call it Pannage Bracton calleth it Pessona Pensa in Saxon Peza a weigh of cheese or other thing Q. QVarentena that which the Saxons call Furlang is translated Quarentena in divers places O RAdechenistres Bracton amongst other tenures speaketh of Rhode Knights which I suppose this word expresseth Radechenight for che is writen often-in Doomesday Book for C. or K. as Chent for Kent their tenure is to ride with their Master or Mistris the Saxons call Padâ—…ayarney Radmans I think it all one with the former word unless peradventure this be derived from Reade counsel and so Readmans signifieth Counsellours Relevacion Revalementum a French word of Celever to lift up again for the Land by the Tenants death is as it were fallen into the Lords hands and the Heir raiseth it up again but that which the Book of Doomesday mentioneth seemeth rather to express the Harriot or Heryate of the Saxons spoken of in Canutus's Laws c. 69 Reveland that is reaved from the King S. SAca Conusans of Pleas in causes concerning his own Tenants Sâ—ca Suit to ones Court or Mill or any other liberty Scangium exchange quaere Scotum solutio Sochemans Sochi Sochemanni men to whom some special liberties and privileges are given Solin Solus 400. acr di faciunt 2. Solinos di T. TAilla Taxes or Tallages Taini thegnes ministri Regis vel aliorum Taniland terra quam tenuerunt Thani Trabes Thraves Corn 24. Sheafs make a Thrave vel potius a weigh of Corn. The four Termes with their Returnes Hillary Terme beginneth Jan. 23. and endeth Feb. the 12. In 8 daies of St. Hillary Jan. 20 Jan. 21. Jan. 22. Jan. 23. From the day of St. Hillary in 15. daies Jan. 27. January 28. January 29. Jan. 30. In the morrow of the Purification of the blessed Mary Feb. 3. Febr. 4. Febr. 5. Feb. 6. In 8. daies of the Purification of the blessed Mary Feb. 10. Feb. 10. Feb. 11. Feb. 12. Easter terme begins 17. daies after Easter and ends and returnes FRom the day of Easter in 15. daies From the day of Easter in three weekes From the day of Easter