E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt 3. Both Littleton and the book in 7 Ed. 3. giveth the tenant power without any excuse to be shewed to finde an able and sufficient man and oftentimes Jura publica ex privato promiscue decidi non debeut Praepostera lectio praepropera praxis are enemies to learning fol. 70. b. Cessante ratione legis cessat ipsa lex If Mayor and Commonalty convey over their Lands holden by Knights service to any natural man and his heirs now homage-Homage-ward c. belong to the Tenure c. Note That every Bishop in England hath a Barony and that Barony is holden of the King in Capite and yet the King can neither have Wardship or relief Nemo militans Deo implicetur ' secularibus negotiis Ferdwit in Saxon ' significat quietanciam murdri in exercitu Worscet signifieth Liberum esse de oneribus armorum fo 71. a. Fleta lib. 1. cap. 42. Miles haec tria curare debeat corpus ut validissimum perniciosissimum habeat arma apta ad subita imperia caetera Deo Imperatori curae esse Livius Sapiens non semper ita uno gradu sed una via non se mutat sed aptat Qui secundos optat eventus dimicet arte non casu In omni conflictu non tam prodest multitudo quam virtus Vegetius Est optimi ducis scire vincere cedere prudenter tempori Multum potest in rebus humanis occasio plurimum in bellicis Polibius Quid tam necessarium est quam tenere semper arma quibus tectus esse possis Vegetius Concerning the point in Law demurred in judgement in the 7 Ed. 3. here mentioned by Littleton The Law accounteth the beginning of the 40 daies after the King entreth into the Forrein Nation for then the Warre beginneth c. Vide c. The knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his own understanding And as the Bucket in the depth is easily drawn to the uppermost part of the water for nullum elementum in suo proprio loco est grave but take it from the water it cannot be drawn up but with great difficulty for albeit the beginnings of this study seem difficult yet when the Professor of the Law can dive into the depth it is delightfull easie and without any heavy burthen so long as he keep himself in his own proper element Justiciari de banco c. Communia placita non sequantur Cur ' nostram sed teneantur in aliquo certo loco Mag. Charta He which demurreth in law Moratur or Demoratur in lege Matters in Law are decided by the Judges and matters in fact by Juries Now as there is no issue upon the fact but when it is joined between the parties so there is no Demurre in law but when it is joyned c Vide quaere fol. 71. b. In some cases a man shall alledge special matter and conclude with a Demurre as in an action of Trespass brought by I. S. for the taking of his Horse the defendant pleads that he himself was possessed of the Horse untill he was by one I.S. dispossessed who gave him to the Plaintiff c. the Plaintiff saith that I. S. named in the Barre and I.S. the Plaintiffe were all one person and not diverse and to the Plea pleaded by the Defendant in the manner he demurres in law and the Court did hold the Plea and Demurrer good for without the matter alledged he could not demurre Now as there may be a demurre upon Counts and Pleas so there may be of Aid Prior Voucher Resceit Waging of Law c. There is a generall Demurre that is shewing no cause and a speciall Demurre which sheweth the cause of his Demurrer Also there is a Demurre upon pleading c. and there is also a Demurre upon Evidence Vide Lib. fol. 72. a. Sect. 97 98. and 99. No escuage was assessed by Parliament since the eighth year of the reign of Edw. 2. fol. 72. b. Quemadmodum incertitudo scutagii facit servitium militare ita certitudo scutagii facit socagium Si home parle generalement descuage il ser entend ' c. descuage noncertaine que est service de Chivaler tiel escuage trait a luy homage fealty car fealty est incident a chesc ' maner de service forsque a le tenant in Frankalmoigne Verba equivoca in dubio posita intelliguntur in digniori potentiori sensu Tenure in capite ex vitermini is a Tenure in Gross and it may be holden of a subject but being spoken generally it is secundum excellentiam intended of the King for he is caput reipublicae fol. 73. a. Escuage can be assessed only by Parliament and not by the King Sect. 101. Les seignieurs poient distrein per Escuage assess per Parlament ou ils en asc ' cases purront au breve le roy direct ' as viconts de in les counties c. de levier tiel Escuage per eux Vide de Regist Writs are the foundations whereupon the whole Law doth depend Fitzherbert in his Preface to his Nat. Br. Breve sicut regula juris rem quae est breviter enarrat non tamen ita breve esse debeat quin rationem vim intentionis contineat Bract. lib. 5. fo 413 c. Of Writs some be Original and some be Judicial Also of Originals Quaedam sunt formata sub suis casibus de cursu de communi consilio totius regni concessa approbata quae quidem nullatenus mutari poterint absque consensu voluntate eorum quaedam sunt Magistralia saepe variantur secundum varietatem casuum factorum quaerelarium As Actions upon the Case which vary c. Item brevium originalium alia sunt realia alia personalia alia mixta Item c. alia sunt patentia sive aperta alia clausa Certain it is that the Original Writs are so artificially and briefly compiled as there is nothing redundant or wanting in them of which one said That it was impossile to comprehend so much matter so perspicuously in fewer words Brevia judicialia saepius variantur secundum varietatem placitorum proponentis respondentis Sect. 102. Mareschallus exercitus in Saxon Marischalk i.e. equitum Magister Marshal is either derived of Mars or of Marc an horse which signifieth in the Saxon tongue a Master or Governor I reade of six kindes of Certificates allowed for Tryals by the Common Law The first whereof Littleton speaketh in time of War out of the Realm by the Marshal c. 2. In time of Peace out of the Realm As if it be alleaged in avoidance of an Outlawry That the Defendant was in Prison at Bourdeaux c. it shall by tryed by the Certificate of the Mayor c. 2
untill 14. years to be in ward 14. years to be out of ward if she attained thereunto in the life of her ancestor 16. years for to tender her marriage if she under the age of 14. at the death of her Ancestor and 21. years to alienate her Lands goods and Chattels Fo. 78. b. 35. H. 6. 40. Bract. l. 2. c. 37. A man also by the Law for severall purposes hath divers ages assigned unto him viz. 12. years to take the oath of Allegiance in the Torn or Leet 14. years to consent to marriage 14. years for the heir in socage to chuse his gardian and 14. years is also accounted his age of discretion 15. years for the Lord to have aid pur faire fitz Chivaler under 21. to be in ward to the Lord by Knights service under 14. to be in ward to guardian in socage 14. to be out of ward of Guardian in Socage and 21. to be out of ward of Guardian in Chivalrie and to alien his Lands Goods and Chattels 34. E. 1. St. 3. F. N.B 202. But put case the Lord cannot have the wardship of the Land as if the Lord before the age of 14. grant over the wardship of the body the grantee cannot have the two years because he cannot hold over the Land and the Lord which hath the wardship of the land only should lose the benefit of the two years because he hath the lands only and cannot tender any marriage therefore in this cause the heir female shall enter into her land at her age of 14. years Cessante causa cessat effectus cessante ratione legis cessat beneficium legis Vide c. If the Lord tender a convenable marriage to the heir within the two years and she marry elsewhere within those two years the Lord shall not have the forfeiture of the marriage for the Statute giveth the two years only to make a tender Lib. 6. fo 71. Lord Darcies Case And if after such tender c. the heir female refuseth then the Lord shall hold the Land untill her age of 21. years and further untill he hath levied the value of her marriage Statute of West 1. 31. Ass p. 26. The tender of a marriage to an heir female before the age of 14. is void i.e. where the Lord may hold the Land for the said two years for then the Statute appointeth the time of tender but where the Lord cannot have the two years he may tender c. At any time after the age of 12. and before 14. for so he might have done at the common Law L. 6. 71. Darcy Le Seignor naūa les 2. ans apres les 14. ans mes lou l' heire female est dens l' age de 14. ans nient marrie al temps de Mort son Ancestor Sect. 104. and 105. The time of agreement or disagreement when they marry infra annos nubiles is for the woman at 12. or after and for the man at 14. or after and there need no new marriage if they so agree but disagree they cannot before c. But if a man of the age of 14. marry a woman of the age of 10. at her age of 12. he may as well disagree as the may though he were of the age of consent because in contracts of Matrimony either both must be bound or equal election of disagreement given to both and so è converso if the woman be of the age of consent and the man under Dominus non maritabit minorem in custodia sua nisi semel Fo. 79. b. Vide c. Sect. 107. and 108. Per le stat de Merton ca. 6. nul disparagement est mes lou celuy que est en gard ē marie deins lage de 14. ans There be four kindes of disparagements 1. propter vitiū animi 2. Sanguinis 3. Corporis 4. propter jacturam privilegii Vide Libr. Of disparagements at large Vide Libr. in Fo. 80. c. Magna Charta is Charta libertatum magnum in parvo Et magna fuit quondam magnae reverentia Chartae Periculosum existimo quod bonorum viror non comprobatur exemplo Usage is a good interpreter of Laws non usage is an intendment that the Law will not bear it Sect. 110. and 111. It is in the election of the Lord whether for the single value the Lord will tender a marriage or no for he shall have the single value without any tender Lib. 6. fo 70. L. Darcies Case If the heir male before any tender marrieth himself within age he shall pay but the single value of the marriage Fo. 82. b. Vide Libr. He that holdeth by Castlegard holdeth by Knights service but not by Escuage for Escuage is due when the King maketh a voyage royall out of this Realme and the Tenant maketh default but Castlegard is to be done within the Realm c. l. 4. Luttrels Case and l. 6. Gregories Case Relief is no service but an improvement of the service or an incident to the service for the which the Lord may distrein but cannot have an action of debt but his executors or Administrators may have an action of debt and cannot distrein A Knights Fee consisteth of 20l land and he payeth for his relief for a whole Knights Fee the 4th part of his Fee viz. Five pound and so according to the rate In some case the heir shall pay relief when he was within age at the time of the death of his Ancestor The Lord upon every discent ought to have either wardship or relief Fo. 83. b. Vide c. And in some case one Lord of the heir of one Tenant shall have both wardship during his Minority and relief at his full age Vide lib. c. Sect. 114. Nul ser ingard de son corps a asoū Seignior vivant son pier c. Fo. 84. a. Where the Lord hath a double interest in the wardship of the body one as Lord and another as Father in that case the wardship by reason of nature cannot be waived and claim made in respect of the Seigniory Vide lib. c. 35. H. 6. 55. l. 7. fo 13. Calvins Case Sect. 115. and 116. L' estatute de ann 4. H. 7. ca. 17. done le Gardianship del use sicome del seisin in demesne Gardian en droit en chivalry est lou le Seignior ē seise de gard de terre de heire per cause de lon Seigniory Mes ore si il grant le gard c. le grantee est appell gardian en fait Fol. 85. a. Br. t. grant 85 Dyer 371. 381. If a man make a Lease for years of a villeine this cannot be done without Deed neither can the Lessee assign it over without Deed because it is derived out of a Freehold that lieth in grant but the warship of the body is an originall Chattell during the Minority derived out of no Freehold and therefore as the Law createth it without Deed so it may be
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
if Tenant in tail make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granted a rent-charge out of the reversion and after Tenant for life dyeth whereby the grantor becometh Tenant in Tail again and the reversion in fee defeated yet because the grantor had a right of the intail in him cloathed with a defeasible fee simple the rent charge remaineth good against him but not against his issue which diversity is observable 11 H. 7. 21. Edriches case If the heir apparent of the disseisee disseise the disseisor and grant a rent charge and then the disseisee dieth the granter shall hold it discharged for there a new right of entry doth descend unto him and therefore he is remitted So if the Father disseise the grandfather a grant and rent charge and dyeth now is the entry of the grandfather taken away if after the grandfathet dyeth the Sonne is remitted So as where our authour putteth his example of a fee taile it holdeth also in case of fee simple and Littleton que la terre est discharge del rent c. But the whole grant is not thereby avoided for the grantee shall have notwithstanding a writ of annuity and charge the person of the grantor Lib. 2. fo 36. b. Wards case Also Littleton here puts his case of things granted out of the Land But if the issue at full age by Deed Indentâ—â—â— or Deed Poll make a Lease for years of the land and after by the death of tenant in tail he is remitted It is holden that he shall not avoid the Lease because it is made of the Land it self and the Land is become by the Lease in another then it is in the case of a grant of a rent charge 33 H. 8. Dy. 51. b. and vide Sect. 289. * Sect. 661. Fo. 349. b. Regularly a man shall not remitted to a right remediesse for the which he can have no action l. 3. f. 3. Marquesse of Winchesters case Neither an action without a right nor a right without an action can make a remittance As if Tenant in tail suffer a common recovery in which there is errour and after Tenant in tail disseise the recoveror and dyeth here the issue in tail hath an action viz. a writ of error but as long as the Recovery remaineth in force he hath no â—ight and therefore in that case there is no remittance If B. purchase an Advowson and suffer an usurpation and six â—oneths to passe and after the usurper grant the Advowson to B. and his heirs B. dieth his heir is not remitted because his right to the Advowson was remedilesse a right without an action Tenant in tail of a Manor whereunto an Advowson is appendant maketh a discontinuance the disconâ—â—ee grants the Advowson to Tenant in tail and his heirs Tenant in tayl dyeth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before he recovered the Manour whereunto the Advowson was Appendant 5 H. 7. 35. And so it is of all other inheritance regardant appendant or appurtenant a man shall be remitted to any of them before he recontinueth the Manor c. whereunto they are regardant appendant c. Car nul ne poit claimer droit en les appurtenances ne en les accessories que nul droit ad en le principall Brit. fo 126. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the discontinuee or other wrong doer and therefore if Tenant in tail be of a Manor whereunto an Advowson is appendant and infeoffeth A of the Manor with the appurtenances A. re-enfeoffeth the Tenant in tail saving to himself the Advowson Tenant in tail dieth his issue being remitted to the Manor is consequently remitted to the Advowson although at that time it was severed from the Manor So it is in the same case if Tenant in tail had been disseised and the disseisor suffer an usurpation if the disseisee enter into the Manor he is also remitted to the Advowson 8 R. 2. Qu. imp 199. 2 H. 4. 18. 14 H. 6. 15 16. FNB. 25. b. 36. f. 33 H. 8. Dy. 48. b. 24 E. 3. discontinuance 16. Sect. 663 664. Fo. 350. If the discontinuee after the death of Tenant in tail make a charter of feoffment to the issue in tail being within age who hath right and to a stranger in fee and make livery to the infant in name of both the issue is not remitted to the whole but to the half for first he taketh the fee-simple and after the remittance is wrought by operation of Law and therefore can remit him but to a moity Vide Sect. 288. Si Tenant in tale infeoffe sou heire apparent l'heire evant de plein age al temps de feoffment puis le Tenant en taile mor ceo nest remitter al heire pur ceo que il fuit sa folly que il evant de plein age voile prender tiel feoffment c. By this feoffment albeit the heir apparent hath some benefit in the life of his Ancestor yet if he thereby besides his own subject during his life to all charges and incumbrances made or suffered by his Ancestors 40. E. 3. 44. 18. E. 4. 25. Sect. 665. Fo. 351. a. Nota that the estate which doth in this case work the Remitter could not have continuance after the decease of the wife and so on the other side if the husband make a discontinuance and take back an estate to him and his wife during the life of the husband this is a Remitter to the wife presently albeit the estate is not by the limitation to have continued after the decease of the husband which case is proved by the reason of the case which our Author here putteth If a man take to wife a woman seised in fee he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a Remitter and yet the estate which the husband gaineth depending upon uncertainty and consisteth in privity 13. H. 4. 6. 18. E. 4. 5. 11. H. 7. 19. 10. H. 6. 11. 7. H. 6. 9. b. For if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the Felony be committed after issue had 4. Ass p. 4. 4. E. 3. Ass 166. vide S. 58. Also if the husband be attainted of felony the King gaineth no freehold but a pernancy of the profits during the Coverture and the freehold remaineth in the wife 2. If she were possessed of a terme for yeers yet he is possessed in her right but he hath power to dispose thereof by grant or demise and if he be outlawed or attainted they are gifts in Law Pl. Cam. 260. b. Dame Hales case 50. Ass 5. 21. E. 4. 35. 7. E. 4. 6.
PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
grantee shall not use one of them and leave the party to the other But where the grantee hath but one remedy that remedy cannot be barred by any proviso for such a proviso should be repugnant to the grant 28 H. 8. Dyer 9. b. And if a man by his Deed grant a rent Charge out of land provid that it shall not charge the Land albeit the grantee hath a double remedy yet the proviso is repugnant because the Land is expresly charged with the rent but the Writ of annuity is but implyed in the grant and therefore that may be restrained without any repugnant and sufficient remedy left for the grantee for which cause Littl. putteth his case of the restraint of bringing a writ of annuity Also our Author putteth his case of a rent charge continuing and of a rent charge issuing truly out of Land 9 H. 11. 53. 11. H. 8. c. mala grammatica non vitiat cartā For the Law that principally respecteth substance doth judge sometimes a double negative to be a negative according to the intent of the parties and not according to grammaticall construction Sect. 221. A. grants that B. shall distrein for such a yearly summe of money in his mannor of D. in judgemeet of Law the Mannor is charged with the rent but the person of the grantor cannot be charged because he expresly granteth no rent * for that would charge his person but that the grantee should distreine c. which onely chargeth the land Fo. 146. b. If a rent be granted out of the Manor of D. and the grantor grant over That if the rent be behind the grantee shall distrein c. in the Manor of S. this is but a penalty in the Manor of S. But both Manors are charged the one with the rent the other with the distresse for the rent the one issuing out of the land and the other to be taken upon the land lib. 7. fo 23 c. in Buts Case Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est And if in this case this shall amount to the grant of a rent out of the Manor of S. then the grantor shall be twice charged and so the Law by construction against the words and the intention of the parties shall doe injury to the grantor c. fo 147. a. And there is no diversity in this case when the Manor of S. lyeth in the same county and when it lyeth in another county for the words in both cases are all one and there is no reason to say that he shall fail of a Recovery by Assize lib. 7. f. 3. Bulwars Case 1. Ass p. 10. Vide c. If a man grant a rent out of three acres and grant over that if the rent be behind that he shall destrain c. in one of the acres this rent is entire and cannot be a rent seck out of two acres and a rent charge out of the third acre and therefore it is a rent seck for the whole and yet he shall distrain for this in the third acre vide qu. A. doth bargain and sell land to B. by Indenture and before Inrolment they both grant a rent charge by Deed to C. and after the Indenture is inrolled by the operation of the Statute it shall be the grant of B. and the confimation of A. But if the Deed had not been inrolled it had been the grant of A. and the confirmation of B. and so quancunque via data the Grant is good Home seise de 20 acr grant rent 20 s hors de chesc acre c. le grantee aūa 20 l. 22. H. 6. 10. b. Sect. 222 c. Si home ad un rent charge a luy a ses heires issunt hors de cert ' terre sil purchase asc ' parcel de cel a luy a ses heires tout le rent charge est extinct l'annuity auxi pur ceo que rent charge ne port estr per tiel Manor apportion mes si tiel parcel discend c. S. 224. a le fits auterment est Auxi per purchase de parcel c. rent service point estre apportion A rent charge by the act of the party may in some case be apportioned As if a man hath a rent charge of 20 s. he may release to the tenant of the land 10 s. and reserve part for the grantee dealeth not with the land as in case of purchase Hill 14. Eliz. in Communi Banco F. N. B. 152. d. e. If tenant pur auter vie by his Deed grant a rent charge to one for 21 years Cesty que vie dyeth the rent charge is determined and yet the grantee may have during the years a Writ of annuity for the arrerages incurr after the death of Cesty que vie because the rent charge did determine by the act of God and by the course of Law Actus leg is nulli facit injuriam Wards cited in lib. 2. In Heywards case fo 36. There be divers kinds of rent services which are not within the Statute of Quia empt terrae and yet such rent services are apportionable by the common Law As if the lessor recover part of the land c. in an action of waste or enter for a forfeiture in part c. Lib. 6. f. 1. c. Bruerton c. Lib. 8. f. 105. c. Talbots case So likewise if the lessor grant part of the reversion to a stranger the rent shall be apportioned for the rent is incident to the reversion Lib. 8. fo 79. Wildes case A rent service may be extinct for part and apportioned for the rest but a rent service cannot be suspended in part by act of the party and in esse for other part For if the lessor desseise the lessee the rent is suspended for the whole and cannot be apportioned for any part But otherwise it is where the lessor enters lawfully as upon a surrender forfeiture c. Where the rent is lawfully extinct in part 21. E. 4. 29. And yet by act in Law a rent service may be suspended in part and in esse for part As if the tenant give a part of the tenancy to the Father of the Lord in taile the Father dieth and this discends to the Lord in this case by act in Law the Seigniory is suspended in part and in esse for part and the same Law is of a rent charge 30. Ass p. 12. And when the Guardian in chivalry entreth into the Land of his ward within age now is the Seigniory suspended but if the wife of the tenant be endowed c. Now shall she pay to the Lord the third part of the rent 33. E. 3. Dower 138 this case I should have put first Tho. More Item a Seigniory may be suspended in part by the act of a stranger as if two jointenants or corperceneis be of a Seigniory and one of them disseise the Tenant of the Land the other
joyntenant or copercener shall distreine for his or her moity 27. E. 3. 88. Concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of rent 22 H. 4. 17. A man against his own grant shall not take advantage of the weakness of his own estate in part vide lib c. Fo. 148. 6. And note a diversity between a rent in grosse and a rent incident to a reversion If a man grant a rent charge out of two acres and after the grantee recovereth one of the acres against the grantor by a Title Paramount the whole rent shall issue out of the other acre But if the Recovery be by a feint Title by Covine then the rent is extinct in the whole because he claimeth under the grantor Doct. Stud. l. 2 c. 17. And yet in some cases a rent charge shall not be wholly extinct where the grantee claimeth from and under the grantor As if B. make a lease of one acre for life to A. and A. is seised of another acre in fee A granteth a rent-charge to B. out of both acres and doth waste in the acre which he holdeth for life B. recovers in waste the whole rent is not extinct but shall be apportioned c. for that Nullus Commodum capere potest de injuria sua propria If the King give two acres of land of equall value to * another in fee fee tail for life or for years reserving a rent of Two shillings and the one acre is evicted by a Title Paramount the rent shall be proportioned F. N. B. 234. b. If an entire service be pro bono publico as Knights service Castlegard c. though the Lord purchase part the service remains but when entire services are for the private benefit of the Lord it is otherwise lib. 6. fo 1 2. Bruertons Case Sed vide lib. c. fo 149. a. Sect. 223. and 224. Reg. it holdeth That quae in partes dividi nequeunt solida à singulis praestantur Vide los reports Bruertons Case lib. 6. Talbots Case l. 8. f. 104. It there be Lord and Tenant by Fealty and Herriot service and the Lord purchase part of the land the Herriot service is extinct and yet it is not annual because it is entire and valuable But otherwise it is of Herriot Custome fo 149. b. If the tenant giveth to the father of the grantee of a rent charge part of the rent in tail and this descend to the grantee the rent charge shalll be apportioned and so by act in law a rent charge may be suspended for one part and in esse for another 30. Ass p. 12 fol. 149. b. And so it is if the father be grantee of a rent and the son purchase part of the land charged the father dyeth and the rent descends to the son the rent shall be apportioned and so it is if the grantee grant the rent to the tenant of the land and to a stranger the rent is extinct but for a moity 34. H. 6. 41. b. If a man hath Issue two daughters and grant a rent Charge to one of them out of his land and dyeth the rent shall be apportioned and if the grantee in this case infeoffeth another of her part of the land yet the moity of the rent temaineth issuing out of her Sisters part because the part of the grantee in the land by the descent was discharged of the rent But in all these Cases where the rent charge is apportioned by act in law yet the Writ or Annuity faileth for if the grantee should bring a Writ of Annuity he must ground it upon the grant by Deed and then must he bring it for the whole 9 Ass 22. 5. R. 2. Annuity 21. Annua nec debitum judex non separat ipsum Also in respect of the reality the rent is apportioned but the personality is indivisible c. If Execution be sued c. upon a Statute Merchant or Staple and after the inheritance of part of those lands descend to the Conusee all the Execution is avoyded for the duty is Personall and cannot be divided by act in Law Pl. Com. 72. 15. E. 4 5. If the father within age purchase part of the land charged and alieneth within age and dyeth the Son recovereth in a Writ Dum fuit infra aetat or entreth in this case the act of the Law is mixt with the act of the party and yet the rent shall be apportioned for after the recovery or entry the Son hath the land by descent fo 150. vide c. A relation or fiction of Law shall never work a wrong or charge to a third person but in fictione juris semper est aequitas lib. 3. fo 29. Butler and Bakers Case â—s if the Feoffee grant a rent charge al feoffer son seme al heires del Baron ' feme recover Dower le rent charge ferra apportion ' el distreinam c. Sect. 225. If there be Lord and Tenant by Fealty and Rent and the Lord by his Deed reciting the Tenure release all his Right in the Land saving the said rent the seigniory remains and he shall have the rent as a rent service and the fealty incident to it c. 12 E. 4. 11. 9 E. 3. 1. If the Donee hold of the Donor by fealty and certain rent and the Donor grant the services to another and the tenant attorn the rent shall passe as rent seck fol. 150. b. If there be Lord and Tenant by fealty and certain rent and the Lord grant the rent in tail or for life saving the fealty and further grant That the grantee may distrain for it albeit the reversion of the rent be a rent service yet the Donee or Grantee shall have it but as a rent seck and shall not distrain for it 7 E. 3. 2 3. adjudg Whereas in an Assize for a rent service all the tenants of the land need not be named but such as did the disseisin yet in Assize for the rent seck which sometimes was a rent service all the tenants must be named as in case of a rent charge albeit he was disseised but by one sole tenant 4 E. 2. Ass 449. 26 H. 8. Dyer 31. But if the Lord of a Manor release the Fealty to his Tenant saving the rent or that a Mesnalty become a rent by Surplusage those that are now seck and sometimes were service are part of the Manor but a rent charge cannot be part of a Manor 31 Ass 23. 22 Ass 53. Sect. 226 c. If there be Lord and Tenant by Fealty and Rent the annual rent which is a profitable service is of higher and more respect in Law than the fealty and therefore by the grant of the rent the Fealty shall pass as incident c. but it is an incident separable and therefore may be by a saving as Littleton hath said separated by it And so when the Tenure is by Fealty
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
the profits rising out of the land or doing of Trespasse upon the land as here by the Examâ—naâ—â—â—â—s do appear for the right is several and the taking of the profits in common 21 E. 4. 11. 22. 22 H. 6. 50. 58. 10 H. 7. 16. F.N.B. 117. a. The second diversity is between Chattels reals that are apportionable or severable as leases for years Wardship of Lands Interest of Tenements by Elegit Statute Merchant Staple c. of Lands and Tenements and Chattels reals entire as Wardship of the body and a Villain for years c. for if one Tenant in common take away the Ward or Villain c. the other hath no remedy by action but he may take them again Another diversity is between chattels reals and chattels personals for if one Tenant in common take all the chattels personals the other hath no remedy by action but he may take them again And herein the like Law is concerning chattels reals entire and chattels personals for this purpose But of chattels entire as of a Ship Horse or any other entire chattel real or personal no survivor shall be between them that hold them in common 10 H. 4. Trespasse 178. 11 H. 4. 3. And Tenants in common shall not joyn in an Eject ' firme c. for that such actions concern the Right of Lands which are several 21 E. 4. 11. 12. fo 200. a. If two Tenants in common be of a Dove-house and the one destroy the old Doves whereby the flight is wholly lost the other Tenant in common shall have an action of Trespass and he cannot plead in barre Tenancy in common 47 E. 3. 22. b. And so it is if one Tenant in common c. destroy all the Deer in a Park c. 4 E. 2. Trespasse 233. And so it is if one Tenant in common carry away the meer stones c. 1 H. 5. 1. 2 H. 5. 3. And if two Tenants in common be of a folding and the one of them disturb the other to erect Hurdles c. 13 E. 3. Trespass 212. 18 H. 6. 5. If two several owners of houses have a River in common c. if one of them corrupt the Water River the other shall have an action upon his Case 13 H. 7. 26. If two Tenants in common or joyntenants be of an house or Mill and it fall in decay and the one is willing to repair the same and the other will not he that is willing shall have a Writ de reparatione fac pro bono publico F. N. B. 127. All those Books which affirm that an action of Account lieth by one Tenant in common or joyntenant against another must be intended when the one maketh the other his Bayliff for otherwise never his Bayliff to render an Account is a good plea F.N.B. 118. 1. 10 H. 7. 16. 2 E. 4. 25. Westm 2. cap. 23. If there be two Tenants in common of a Wood Turbary Piscary c. and one of them doth waste against the will of his companion his companion shall have an action of Waste vide lib. fo 200. b. Nota. Some do hold that an action of Waste doth not lie upon the Statute W.C. 23. against Tenant in common c. for destroying the whole flight of Doves 47 E. 3. 22. 50 E. 3. 3. Note that one Tenant in common may infeoff his companion but not release because the Freehold is several Joyntenants may release but not infeoff because the Freehold is joynt but Coparceners may both infeoff and release because their seisin to some intents is joynt and to some several Sect. 324. Quant un home voile merrer un feoffment fait a luy ou un done en taile ou lease pur vie d'ascun terres c. la il dirra par force de quel feoffment c. il fuit seisee c. Mes lou un voile plead un lease ou grant fait a luy de chattel real ou personal la il dirra per force de quel il fuit possesse c. When a man pleads a lease for life c. which passeth by livery he is not to plead an entry for he is in actuall seisin by the livery it self Otherwise it is of a lease for years CHAP. V. Of Estates sur Condition Sect. 325. COnditio dicitur cum quod in casum incert ' qui potest tendere ad esse aut non esse confertur Condic ' est 2 ex 1. Facti i. e. upon a condition expressed by the party in legal terms of Law 2. Juris i. e. Tacitè created by law without any words used by the party Littleton subdivideth Condition in Deed into Condition precedent of which it is said Condic ' adimpleri debet priusquam sequatur effectus and Condition subsequent Again of Condition in Deed some be Affirmative and some Negative and some in the Affirmative which imply a Negative Some make the estate whereunto they are annexed voidable by Entry or Claim and some make the estate void ipso facto without entry c. Also of Condition in Deed some be annexed to the rent reserved out of the land and some to collateral acts c. some be single some in the conjunctive some in the disjunctive Mirror cap. 2. 8. 15. 17. fol. 101. b. Sur Condic ' en fait eÌ„ sicome un home per fait indent infeoffa un auter in fee render certain rent c. Here Littleton putteth one Example of six several kindes of Condition 1. Of a * Condition * single in Deed. 2. Of a Condition subsequent to the estate 3. Of a Condition annexed to the rent And 4. a Condition that defeateth the estate 5. A Condition that defeateth not the estate before entry And 6. a Condition in the Affirmative which implyeth a Negative as behind or unpaid implyeth a Negative viz. not paid Bendloes en Trespass 5 Mar. Et en cest case si le rent ne soit pay c. The Land is the principall debtor for the rent issueth out of the Land and that is the place of demand appointed by Law and the demand must ever be made at the most notorious place and the last time of demand of the rent is such a convenient time before the Sun-setting of the last day of payment as the mony may be numbred and received 40 Ass 11. 49. Ass 5. 15. Eliz. Dy. 329. lib. 4. Burroughes c. f. 72. c. Pl. Com. 70. and 172. Hill and Granges c. Lib. 5. f. 114. Wades c. If a rent be granted payable at a certain day and if it be behind and demanded that the grantee shall distrein for it in this case the grantee need not demand it at the day but if he demand it at any time after he shall distrein for it Lib. 7. f. 28. Maundes c. Mich. 40 41. El. Stanly c. Regularly it is true that he that entreth for a condition broken shall be seised in his first estate or of that estate which he had
facit reruÌ„ nisi mens sit rea et furiosus solo furore punâ—tur And so it is of an Infant untill he be of the age of 14. Fo 247. b Also if the Father disseise the Grandfather and make a Feoffment in fee c without warranty the Grandfather dyeth albeit the right descend to the Father yet he cannot enter against his own Feoffment but if he die his Son shall enter and avoid the State of the Feoffee 16 Ass 27 21 H 7 31 Stanf. â—6 b 8 E 3 2 Coron 413 414 351 22 E 3 ibid 12 4 2 H. 7 2 3 E 3. enter Cong Statham 12 E 4 8. 39. H â— 4 Abbr ass 89. 39. H. 6. 43. 15. E. Discent 30. If Lands â—e given to two and to the heirs of one of them he that haâ—h the fees shall not have an action of waste upon the Satut of Gloc. against the joynt tenant for life but his heire shall maintaine an action of waste against him Sect. 406 407 408. A Dum fuit infra aetat ' lyeth as well for the Ancestor himselfe after his full age as for his heir And note where an Infant disseisor aliens the lands in fee that if the discent be cast the Infant being within age he may enter at any time either within age â—or after his full age And so it is if an Infant make a feoffment c. he may enter c and so in both cases may his heir 43 E 3 Enter cong vet N B 126 b F N B 192. 45 E 3 21. Sect 40â— fol 2â—8 a. Tenant in Capite makes a Feoffment in fee to the use of the feoffee and his heirs until the feoffor pay 100 l. to him or his heirs the feoffee dyeth his heir within age now hath the King the Wardship of the body and is intituled to the guard of the land But if the feoffor pay the 10â— l. according to the limitation the Wardship is devested both for the body and the land and so it is in case of a Condition for the discent which is the cause of Wardship is utterly defeated and Cessante causa cessat causatum Dyer 13 Eliz fo 298 299 So as there is no difference where the discent is disaffirmed by a Right Paramount as where the estate was never lawful as in the case of an Infant and where the discent is affirmed for a time the estate being lawfull and being after defeated by matter ex post facto by a Title of re-entry Sect. 410. Disseisor ad issue enter en Relâ—gion c. This discent shall not barre the entry of the disseisee for that the discent cometh by the Deed of the Father And the Law respects the original â—ct and that is his entry inâ—o Religion which is his own act whereupon the profession followed whereby the discent happened for Cuiusque rei potissima pars principium est And Origo rei inspici deâ—et Pl. Dame Hales Cases 6 E. 3. 4â— c. But it is said in the case of a bastardeigne and Mulier puisnâ— sâ—ch a discent shall binâ—e the Mulier and such an heiâ— by discent shall have his age to E 3. 55 fo 248. b. Nota if a man be Tenant or Defendant in a real or personall â—ction and hanging the suit the Tenant or Defendant enter into Religion by this the Writ is not abated because it is by his own act And so it is of a Resignation but otherwise it is of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c was the cause thereof Sed in praesumptione legis judicium redditur in invitum â—8 E. 4. 19. 9 E. â— 25. 52. 7 E. 4. 15. Bract. lib. 4. fol. 189. Sect. 411. No discent or dying seised can be of a Chattel A man seised of an Advowsâ—n in â—eâ— grants three Avoidances one after another and after the Church becomes void and the Grantor presents and his Clerk is admitted and instituted and after the Church becomes void again the Grantee may present to the second Avoidance for that he was not put out of possession thereof for as the lessor having the Freehold and Inheritance cannot disseise his lessee for yeâ—rs having but a Chattel that any discent may be cast to take away his entry so in the said case the Grantor hath the Franktenement and the Fee of the Advowson rightfully so as he cannot make any usurpation to gain any estate c. Also in respect of the privity c. the usurpation of the Grantor not put the Grantee out of possession for the two latter Avoidances Hill 18 El. Com. Banco Claim daver terres pur terme d'ans nest pas expulsment de le franktenement del heire que est eins per discent Sect. 412 413. Time of Peace is the time of Law and Right and time of War is the time of Violent Oppression which cannot be resisted by the equal Course of Law Cum silent leges inter arma fo 249. b. Successioâ— of Bodies Politique or Corporate is in the post and the heir of the natural man is in the per 7. E 3. 25 a. 5 E. 3. 13. 3â— A Body Politique is so called because it is to take in Succession framed as to that capacity by Policy and it is also called a Corporation or a body incorporate because the persons are made into a Body and are of capacity to take and grant c. And this body Politique or Incorporate may commence and be established three manner of ways viz. by Prescription by Letters Patents or by Act of Parliament Every Body Politique or Corporate is either Ecclesiastical or Lay Ecclesiastical either Regular as Abbots Priors c. or Secular as Bishops Deans Archdeacons Parsons Vicars c. Lay as May or and Commonalty Bayliffs and Burgesses c. Also every Body Politique or Corporate is either Elective Presentative Collative or Donative and again it is either sole or aggregate of many And this Politique c. Body aggregate of many is by the Civilians called Collegium or Vniversitas Lib. 3. fo 73. Dean and Chapter of Norwich CHAP. VII Continual Claim Sect. 414 c. SI disseisee fait Continual Claim a les tenemenes in la vie le disseisor comment que le disseisor de vie seisee en fee la terre discendist a son heire encore pâ—it le disseisee enter sur la possession le â—erre c. Nul poâ—t faire continnal Claime mes quant il ad title dâ—vant c. S 416. And yet in some cases a Continuall Claim may be made by him that hath Right and cannot enter If Tenant for years Tenant by Statute Staple Merchant or Elegit be ousted and he in the reversion disseised the lessor or he in reversion may enter to the intent to make his Claim and yet his entry as to take any Profits is not lawfull during the Term And the lessor or he in the reversion in that case may enter
disseisin c. mes la ley eÌ„ lou home ad droit dentr par case dâ—asc ' aut title c. Here is implyed abators or intrudors and not only their disseissors but the Feoffees or donees of disseissors abators or intruders or any other so long as the entry is cong and here title is taken in his large sense to include a right V Sect. 650. and 659. Si tenant in taile immediate puis tiel claime continua son occupation en les tenements ceo eÌ„ un disseisin c. a celuy que sist tiel claime sic par conseque le tenant adonques ad fee simple Sect. 430 431. The disseisee shall have an action of trespasse against the disseissor and recover his damages for the first entry without any regresse but after regresse â—e may have an action of trespasse with a continuando and recover as well for all the mean occupation as for the first entry and note that Littleton doth here include costs within dammages Ou il poit aver un breve sur lestat 5 R. 2. ca. 7. Supposant par son breve que son adversary avoit entry en les terres c. celuy que fist le claime c. par tiel action il recover ses dammages c. i.e. that he shall recover dammages for the first tortious entry but not for the mean profits though he made a regresse 37. H. 6. 35. 2 E. 4. 18. 21 E 4. 5. 74. 38. Ass 9. 44. E. 3. 20. 10. H 7. 27. Keilwey 1. b. And here note that also he shall recover his costs of suit 2 E. 4. 24. b. 9. E. 4. 4. b. 16. H. 7. 6. a. Fo. 257. a. One or more may commit a force three or more may commit an unlawfull assembly riot or rout A multitude is not restrained to a certain number but left to the discretion of the Iudges A writ of forcible entry is grounded upon the Statute of 8 H. 6. ca. 9. and lieth where one entreth with force or where he enters peaceably and detaineth it with force or where he enters by force and detaineth it by force and in this action without any regresse the plaintiffe shall recover treble dammages as well for the mean occupation as the first entry by force of the Statute and he shall recover treble costs also 3 E 4-19 24. F. N. B. 240. c. 11 E. 4. 11. b 6 H 7. 12. 22 H 6. 57 If three or foure goe to make a forcible entry albeit one alone use the violence all are guilty of force 10 H 7 1â— Note that there is a force implyed in Law as every trespass Rescous et disseisin implyeth a force and is vi et armis and there is an actuall force as with weapons number of persons c. and when an entry is made with such actuall force an action doth lie upon the said Statute Vide Sect. 240 54 H 6 20. Sect. 433. Qui per alium facit per seipsum facere videtur If an infant or any man of full age have any right of entry into any lands any stranger to the use of the infant c. may enter into the lands and this Reg. shall vest the lands in them without any commandment prâ—cedent or agreement subsequent But if a disseisor levy a fiâ—e with proclamation according to the Statute a stranger without a Commandment c. within the five yeers cannot enter in the name of the disseisee to avoid the fine and that resolution was grounded upon the construction of the Statute of 4 H. 7. ca. 24. But an assent subsequent within the five years should be sufficient omnis enim ratihabitio c. 7 E 3 69 11. Ass p 11 39. Ass p 18 10 H 7 12. a. 3 H 8. entry conque et faux recovery 29. lib. 9. fo 106 a. L. Audeleyes case 45 E 3. Release 18. and Breve 589 20 E 3. 62 par Thorp Sect. 434. Reg. it is true that where a man doth lesse than the commandment or authority committed unto him there the act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest Impotentia autâ—n excusat legem 1 H. 4 3. 12 Ass 24. 26. Ass 39 V. S 419. 46. E 3. petition 18. 33. H. 6. 8. Lex non permittit aliquod inconveniens Albeit the Recluse or Anchorite be shut up himself c. yet to avod a discent he must command one to make claim and such a recluse shall alwayes appear by Atturney in such cases where others must appear in proper person 43 E 3. 8. b. 30. a. Sect. 436. Quant home est in prison est disseise le disseisor mor feign c. The disseisee shall not be bound in this case for that by the intendment of Law he is kept without intellâ—gence of things abroad and also that he hath not liberty to goe at large to make entry or claim or seek counsell and so note a diversity between a Recluse who might have intelligence and a man in prison Pl. Com. 360. Stowels case But if he be disseised when he is at large and the discent is cast during the time of his imprisonment this discent shall bind him 9 H 7. 24. Vide lib. fo 259. a. Sect. 437. Si tâ—el que est en prison soit utlage en action de debt ou trespass ou en apucal de Robbery il reveria tiel utlage per bâ—eve de error Outlawries may be reversed either by plea or by writ of error By plea when the defendant commeth in upon the Caput utlagati c. he may by plea reverse the same for matters apparent as in respect of a supersedeas omission of processe varience or other matter apparent in the Record and yet in these cases some hold that in another term the defendant is driven to his writ of error 2 E 4. 1 4 E 4. 10. a 1 E 4. 73 11 H 7. 5 21 H 6. 50 9 H 4â— â—3 El. Dy. 192. 2 El. 176. 37. H 6. 19. But for any matters in fact as death imprisonment service of the King c. he is driven to his writ of error unlesse it be in case of felony and there in favorem vitae he may plead it But albeit imprisonment be a good cause to reverse an outlawry yet it must be by processe of Law in invitum and not by consent or covin for such imprisonment shall not avoid the outlawry because upon the matter it is his own act 8. H 4. 7 21 H 7. 13 39 H 6. 1 H 7. 1. 1 E 4. 2 27 H 8. 2 38. Ass p. 17. V S. 439. Sect. 438. Auxi si un recovery soit per default vers tiel que est en prison il avoidam le judgement per breve de error c. For he shall have no writ of discent because the summons was according to
in Curia nostra rite acta sunt debitae executioni demandari debent parum est latam esse sententiam nisi mandetur executioni Executio juris non habet injuriam Executio est fructus finis legis Juris effectus in executione coufistit Prosecutio legis est gravis vexatio executio legis coronat opus Boni judicis est judicium fine dilatione mendare executioni Favorabiliores sunt executiones aliis processibus quibuscunque When Littleton wrote by force of certain Acts of Parliament execution mtght be had of lands besides by force of the Elegit upon Statute Merchant Statute Staple and Recognizances taken in some Court of Record and since he wrote upon a Recognizance or Bond taken by force of the Statute 23. H. 8. before one of the Chief Justices or the Mayor of the Staple and Recorder of London out of Term which hath the effect of a Statute Staple 11. E. 1. Stat. de Acton Burnel 13. E. 1. de Mercat 27. E. 3. c. 22. 23. H. 8. cap. 6. 25. E. 3. 53. vide 32. H. 8. c. 5. a profitable Statute concerning executions of Lands Tenements c. Sed opus est interprete Vide fo 289. lib. 4. fo 66. Fulwoods Case If a man have a Judgement given against him for debt or damage or be bound in a Recognizance and dyeth his heir within age or having two daughters and the one within age no execution shall be sued of the Lands by Elegit during the minority albeit the heir is not specially bound but charged as Terre-tenant 15. E. 3. Age 95. 24. E. 3. 28. 29 Ass 37. 29. E. 3. 50. 47. Ass 4. 47. E. 3. 7. lib 3. f. 13. Brook Age 33. And so against an heir within age no execution shall be sued upon a Statute Merchant or Staple nor upon the obligation or recognizance upon the Statute 23. H. 8. for it is excepted in the processe against the heir Neither if the heir within age endow his mother shall execution be sued against her during his minority Temps E. 1. 402. 417. fo 290. a. Vide le statute 13. Eliz. cap. 5. made against fraudulent Feoffments gifts grants c. Judgements and Executions as well of lands and tenements as of goods and chattells to delay hinder or defraud Creditors and others of their just and lawfull Actions Suits Debts Damages Penalties Forfeitures Heriots Mortuaries and Releases Sed opus est c. Lib. 3. fo 80. c. Troyns Case l. 5. f 67. Gooches Case l. 6. f. 18. Pakemans Case l. 10. f. 56. the Chancellor of Oxfords Case See the Statute of 3. H. 7. c. 4. 50. E. 3. c. 6. M. 12. 13. Eliz Dyer 295. 18. Eliz. 451. Dyer Elegit is a judicial Writ and is given by the Statute either upon a recovery for debt or damages or upon a Recognizance in any Court The words of the writ be Elegit sibi liberari c. By this Writ the Sheriff shall deliver to the Plaintiff Omnia catalla debitoris exceptis bobus afris Carucae medietatem terrae And this must be done by an Enquest to be taken by the Sheriff W. 2. c. 18. W. 2. c. 18. Fieri fac is a Writ mentioned in the said Statute but is a Writ of Execution at the Common Law and is called a Fieri fac because the words of the Writ directed to the Sheriff be quod fieri fac de bonis catallis c. But note that a Capias ad satisfac is not mentioned in the said Statute because no Capias ad satisfac did lie at the Common Law upon a Judgement for debt c. or damages but only when the originall action was Qu. vi armis c. but later Statutes have given a Capias ad satisfac where debt c. or damages are recovered Lib. 3. fo 11. Sir William Herberts Case And note that these three Writs of Execution ought to be sued out within the year and the day after Judgment but if the Plaintiff sueth out any of them within the year he may continue the same after the year untill he hath execution And to none of these Writs of executions the Defendant can plead but if he hath any matter since the Judgment to discharge him of execution as a release of all executions c. he may have an Audita querela and relieve himself that way Sect. 505. Fol. 290. b. Scire fac is a judiciall Writ and properly lieth after the year and day after Judgment given But because the Defendant may thereupon plead this Scire fac is accounted in Law to be in nature of an action and therefore a release of all actions is a good bar of the same and so is a release of executions c. 19. H. 6. 3. 4. 18. E. 4. 7. This Writ was given in this case by the Statute of W. 2. c. 45. for at the Common Law if the Plaintiff had surceased to sue execution by fieri fac or levari fac a year and a day he had been driven to his new Originall 8. E. 3. 297 298. 18 E. 3. 33. l. 3. 12. Note that every Writ whereunto the Defendant may plead be it Originall or Judiciall is in Law an action Sect. 507. Fol. 291. a. Note a diversity between a release of all actions and a release of all suits If a man release all suits all execution is gone for no man can have execution without prayer and suit but the King only 26. H. 6. Exec. 4 l. 8. f. 153. Ed. Althams case Brook tit Rel. 87. So if the body of a man be taken in execution and the Plaintiff release all actions yet shall he remain in execution but if he release all debts or duties it is otherwise 26. H. 6. Exec. 7. If A. be accountable to B. and B. release him all his duties this is no bar in an action of account for what shall fall out upon the account is incertain but duties do extend to all things due that is certain and therefore dischargeth Judgments in personall actions and executions also 20. H. 6. per Paston Sect. 508 509 510 511. Fol. 291. b. 292. a. There be two kinds of Demands or Claims Pl. Com. Stiles Case 359 c. 1. Express or in deed as in all reall actions 2. Implyed or in Law as 1. In all actions personall 2. In actions of Appeals 3. Of execution 4. Of Title or right of Entry either by force of a condition or by any former Right 5. Of a rent service rent charge common of pasture c. verte fol. All which Littleton here and in the two next Sections following putteth but for example for by the release of all Demands other things also be released as rents seck all mixt actions a Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons and profit appender Conditions before they be broken or performed or after Annuities
H. 6. 33. 48 E. 3. 23. But now the Statute of 4 H. 7. 32 H. 8. having given a further strength to Fines to barre the issue in Taile the reason of the Common Law being taken away tâ—e Tenant in this case shall be compelled to attorn Windams Case ubi suprà Sect. 576. 577. fol. 319. a. Where a lease is made for life saving the reversion to the lessor if the lessor disseise the lessee and make a feoffment in fee if the Tenant for life enter and make Wast the feoffee shall have a Writt of Wast without any other Attornment for the lessee shall not be misconusant of the Feoffments that were made of and upon the same land And the reason of the Attornment is because the whole fee simple pass by the feoffment and the lessee by his Regress leaveth the reversion in the feoffee which is a good attornment The same Law it is of a Tenant by statute merchant or Staple or Elegit and so it is of a lease for yeares 46 E. 3. 30. b. 2 H. 5. 4. 5 H. 5. 12. Brasbritches case P. 15 Eliz. Some doe hold that in that case if the lessee for life doe recover in assize this is no Attornment because he comes to it by course of Law and not by his voluntary act And yet in that case as in the case of the Fine the state of the reversion is in the feoffee But others doe hold it all one in case of a recovery and a regres 18 E. 3. 48. b. lib. 6. fol. 60. b. Sir Moyle Fiuches Case If the lessor disseise Tenant for life or ouste Tenant for years and make a feoffment in fee by this the rent reserved upon the lease for life or years is not extinguished but by the regress of the lessee the rent is revived because it is incident to the reversion But if a man be seised of a rent in fee and disseise the Tenant of the land and make a feoffment in fee the Tenant re-enter the rent is not revived And so note a diversity between a rent incident to a reversion and a rent not incident to a reversion 9 H. 6. 16. Dean of Pauls Case 20 Eliz. If a man make a lease for life and then grant the reversion for life and the lessee attorn and after the lessor disseise the lessee for life and make a feoffment in fee and the lessee re-enter this shall leave a reversion in the grantee for life and another reversion in the feoffee and yet this is no Attornment in Law of the grantee for life because he doth no act nor assent to any which might amount to an Attonement in Law Et res inter alios acta alteri nocere non debet Neither hath the grantee for life the land in possession So as he may well be misconusant of the feoffment made upon the land and so out of the reason of Littleton But yet the reversion in fee doth pass to the feoffee Sect. 578 579. fo 319. b. 320. a. Where the Ancestor taketh an estate of Freehold and after a remainder is limited to his right heires the fee simple vesteth in himselfe as well as if it had been limited to him and his heirs for his right heirs are in this case words of limitation of estate and not a Purchase Otherwise it is where the Ancestor taketh but an estate for yeares As if a lease for years be made to A. the remainder to B. in Tail the remainder to the right heirs of A. there the remainder vesteth not in A. but the right heirs shall take by purchase if A. dye during the estate Tail for as the Ancestor and the heir are Correlativa of Inheritances so are the Testator and Executor and the Intestate and Administrator of Chattels Quod vanum inutile est lex non requirit Vide Sect. 194. 273. fo 320. a. The Conusee of a Fine before Attornment cannot distrain because an Avowry is in lieu of an action and thereunto privity is requisite So likewise and for the same cause he can have no action of Waste nor Writ of Entry ad Com. legem or in consimili casu or in casu proviso Writ of Customs and Services nor Writ of Ward c. 8 E 3. 44. 34 H. 6. 7. 12 E. 4. 4. 40 E. 3. 7. 5 H. 5. 12. 3 E. 2. Droit 33. But if a man make a lease for years and grant the reversion by Fine if the lessee be ousted and the Conuse disseised the Conusee without Attornment shall maintain an Assize for this Writ is maintained against a stranger where there needeth no privity and such things as the Lord may seise or enter into without suing any action there the Conusee before any Attornment may take benefit thereof as to seise a Ward or Heriot or to enter into the Lands or Tenements of a Ward or escheated to him or to enter for an alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his disherison Sect. 580 581 582. Fo. 320. a.b. It is said in our Books that if Tenant for life have a priviledge not to be impeachable of Waste or any other priviledge if he doth attorn without saving his priviledge that he hath lost it which is to be understood where he attorneth in a Quid juris clamat brought by the Conusee of a Fine for that the Writ supposeth him to be but a bare Tenant for life and by his generall Attornment according to the Writ he is barred for ever to claim any priviledge but a bare estate for life But if upon a grant of the reversion by Deed the Tenant for life doth attorn he loseth no priviledge for there can be no conclusion or barre by the Attornment in palis and so it is of an Attornment in Law As if the lessor disseise the lessee for life and make a Feoffment in fee and the lessee re enter c. 43 E. 3. 5. 45 E. 3. 6. 39 H. 6. 25. F.N. B. 136. b. But in the Quid juris clamat if the Plantiff be within age so as he cannot acknowledge the priviledge the Tenant shall not be compelled to attorn untill his full age when he may acknowledge it 43 E. 3. 5. But otherwise it is as some hold if a Quid juris clamat be brought by Baron and feme the priviledge shall be entered into the Roll notwithstanding she is a feme covert 45 E. 3. 11. a. Vet. N. B. in per que servitia 39 H. 6. 25. 18 E. 4. 7. And in a per que servitia brought by the Conusee of the Mesne the Tenant may shew that he held by Homage Auncestrel and saving to him his Warrant and Acquitall he is ready to attorn So if the Tenant hath any other Acquittall and the Mesne levy a Fine to one for life the remainder to another in fee the Tenant for life bringeth a per que servit and the Tenant is ready to
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
the Warranty is a barre And so it is of a Feme covert if her entry be not lawfull a Warranty descending on her during the coverture doth bind her and albeit the husband be within age at the discent of the warranty yet if the entry of the wife be taken away the warranty shall bind the wife 8 Ed. 3. 3. 3 H. 7. 9. Br. tit War 54. 33 H. 8. War Br. 84. l. 1. f. 67. a. Aâ—chers Case and 140. Chudleys Case Note a diversity between matters of Record done or suffered by an Infant and matters in fait for matters in fait he shall avoid either within age or at full age but matters of Record as Statute Merchant Staple Recognizances knowledged by him or a Fine levied by him Recovery against him by default in a reall action saving in Dower must be avoided by him viz. Statute c. by Audita querela and the Fine and Recovery by Writ of Error during his minority and the like because they are judiciall acts and taken by a Court or a Judge therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and and not by the Countrey 20 Ed. 3. Audita querela 27. F.N.B. 104. k. 6 Ed. 3. 39. 17 Ass 53. 17. 21 E. 2. 4. 15 E. 4. 5. 8 Hen. 6. 30. 1 Hen. 7. 15. 6 Hen. 8. Saver default Br. 50. 3 Hen. 6. 10. 1 Mar. Dyer 104. And for that this nonage must be tryed by inspection this cannot be done after his full age But if the age be inspected by the Judges and Recorded that he is within age albeit he come of full age before the Reversall yet may it be reversed after his full age P. 13. Ja. R. in Banco Reg. fol. 380. b. No negligence shall be adjudged in an Infant where he is thereby to be barred of his entry in respect of a former right as by a discent or of his former right as Littleton doth here put an Example by a Warranty where his entry is congeable But otherwise it is of Condition Charges and Penalties going out of or depending upon the Originall Conveyance for the laches or negligence shall be adjudged in those cases as well in the Infant as in any other vide Pl. Com. 355 c. Stowels Case And see further there where an Infant being Tenant for life or years shall be punished for doing or suffering of waste and where he claimeth by purchase a Cessavit shall lie against him if he pay not his rent by two years And some have said if he have the Tenancy by discent and he himself cesse a Cessavit doth lie and he shall not have his age because it is of his own cesser 31 Ed. 3. Age 54. But other Books as some conceive them be against that vide 9 Edw. 3. 50. 28 Ed. 3. 99. 14 Ed. 3. Age 88. 2 Ed. 2. Age 132. and others which Books doe not prove that the Cessavit doth lie in that case but the contrary that he shall have his age to the end he may at his full age certainly know what to plead or what arrerages to tender for the land was originally charged with the Seigniory and Services Sect. 728. ** Note three things concerning the construction of Statutes 1. That it is the most naturall and genuine Exposition of a Statute to construe one part by another c. for that best expresseth the meaning of the makers Pl. Com. 75. 7 Ed. 3. 89. As here the question upon the generall words of the Statute is Whether a Fine levied only by a husband seised in the right of his wife with Warranty shall barre the heir without Assets And it is well expounded by the former part of the Act whereby it is Enacted That Alienation made by Tenant by the Curtesie with Warranty shall not barre the heir unlesse the Assets descend Bract. lib. 4. fol. 321. Fleta lib. 5. cap. 34. And therefore it should be inconvenient to intend the Statute in such manner as that he that hath nothing but in the right of his wife should by his Fine levied with Warranty barre the heir without Assets and this Exposition is ex visceribus actus 2. The words of an Act of Parliament must be taken in a lawfull sense as here the words being Whereof no Fine is levied in the Kings Court are to be understood whereof no Fine is lawfully or rightfully levied c. and therefore a Fine levied by the husband alone is not within the meaning of the Statute for that Fine should work a wrong to the wife but a Fine levied by the husband and wife is intended by the Statute for that Fine is lawfull and worketh no wrong Pl. Com. 246. Seignieur Barklays case l. 9. fol. 26. Abbot de Strata Marc. and generally the Rule is Quod non praestat impedimentum quod de jure non sortitur effectum Vide fol. 381. b. 11 H. 4. 80. 3. That constructions must be made of a Statute in suppression of the mischief and in advancement of the remedy as by this case it appeareth For a Fine levied by the husband onely is within the letter of the Law but the mischief was the heir was barred of the Inheritance of his Mother by the warranty of his Father without Assets and this Act intended to apply a remedy viz. That it should not barre unlesse there were Assets and therefore the mischief is to be suppressed and the remedy advanced Et qui haeret in littera haeret in Cortice Sect. 731. Fol. 383. a. Nullius hominis autoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit 8 E. 2. gar 81. 18. E. 3. 51. 7 E. 3. 84. Pl. Com. 57. The Judge if he knoweth it ought not to take knowledge of a Fine that worketh a wrong to a third person 33 H. 6. 52. 5 E. 3. 56. 2 El. Dyer 178. 1 H. 8. 1. M. 89. 4 E. 3. 41. 7 El. Dyer 246. Sect. 733. Fo. 383. a. The feoffor may by expresse words warrant the land for the life of the feoffee or of the feoffor c. but the Recovery in value shall be in fee. 38 E. 3. 14. Et ego haeredes mei Warrantiâ— tali haered suis tantum vel tali haered assign haered assignatorum vel assig assignator eorum haered acquietabimus defendemus c. Bract. fo 37. 248. l. 5. 380 381. Brit. 106. Per hoc autem quod dicit acquietabimus obligat se haeredes suos ad acquietand si quis plus petierit servitii vel aliud servitium quà m in carta Donationis continetur Per hoc autem quod dicit Defendemus obligat se haeredes suos ad defend fi quis velit servitutem ponere rei datae contra sormam suae donationis If a man be bound to A. in an Obligation to defend such lands to A. whereof the Obligor hath infeoffed him for 12
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth