such will is made and some of the Executors refuse and the other prove the Testament those or he which proves the Testament may sell by the Statute B. devise 29. 31. where t is expressed that t was doubted at Common Law if the sale by one executor were good or not B. Devise 31. And by some where a man wills that the Land shall be sold post mortem I. S. by his Executors and makes four Executors and dies and after two of the Executors dies and after I. S. dies there the two Executors that survive may sel for the time is not com til now 30. H. 8. B. Devise 31. T was said that Baldwin Shelley and Montague Justices determined for Law That where a man hath Feoffees to his use before the Statute of uses made 27. H. 8. and after the same Statute and also after the Statute of 32. H. 8. of Wills he wills that his Feoffees shall make an estate to W. N. and his heirs of his body and dies that this is a good Will and devise ratione intentionis c. 38. H. 8. B. Devise 48. the end If a man devises his land to be sold by his Executors and dies the heir enters and after is deseised yet the Executors may sell and the Vendee may enter B. Devise 36. Entre congeable 134. the same Law if the heir suffer a Recovery or levies a Fine And the same law by some where a man disseises the heir dies seised and his heir enters the Executors shall sell and by the vendee may enter for he hath no right nor no action is given to him for he hath but a Title of entry by the sale and therefore he may enter for otherwise he hath not any remedy by Hales Justice 1. E. 6. B. Devise 36. Agreed for good Law that the occupation of a Chattel may be devised by way of Remainder but if the thing it self were devised to use the Remainder is void for a gift or devise of a Chattel for an hour is for ever and the donee or devisee may give sel and dispose it the remainder depending upon it is void Time H. 8. B Devise 13. the middle Where a man devises that W. O. shal have the occupation of his plate for term of his life and if he dies that it shal remain to I. S. this is a good remainder For the first hath but the occupation the other after him shal have the property 2. E. 6. B. Devise 13. the end Note if a man hath issue 3. sons and devises his Lands S. one part to the two of his Sons in Tail and another part to the third son in Tail and that none of them sell any part but that every one shal be heir to the other dies that in this case if one dies without issue his part shall not revert to the eldest son but shall remain to the other son for these words That every one shall be heir to the other implies a Remainder because that t is a Will which shal be intended and adjudged according to the intent of the Devisor 7. E. 6. B. devise 38. Done 44. A man Devises his Land to another for to give sell or to do with it at his pleasure this is a Fee-simple for his intent shall be taken to give a Fee-simple 7. E. 6. B. Devise 38. Note by Bromley Chief Justice and others where a man Devises his land to a stranger for Term of years the Remainder to his son in Fee and dies the son may waive the Devise and claim by discent and yet he shall not avoid the Term No more then where a man Leases for years and dies the Lease is good and yet the dying seised is good also to toll the entry B. devise 41. And B. seems where the Father devises to his son and heir in Fee that the heir may waive the Devise and take himself to the discent â— Discent 4. Contrary where the Father Devises to his son in Tail the remainder to a stranger in Fee there the Heir shall not claim in Fee nor waive the Devise for the loss and prejudice of him in remainder in Fee 2. M. 1. B. Devise 41. Tenant in Tail of Land Devisable discontinues in Fee and retakes in Fee and Devises to a stranger in Fee and dies the issue in Tail is remitted for nothing is discended to him by reason of the Devise which Tolls the discent except that the Devisee waives it 4. M. 1. B. Devise 49. Remitter 52. Divorce What divorce may Bastardize the issue what not See Title Bastardie Note for Law That where the husband and wife are divorced where shee is an Inheritrix yet mean acts executed shall not be reversed by the divorce as waste receit of Rents taking of Ward presentment to a Benefice gift of goods of the wife otherwise of inheritance as if the husband had discontinued or charged the land of his wife cui ante Divorcium lies The same of a release of the husband or Manumission of villains or the like And if the husband and wife purchase joyntly and are disseised the husband releases and after are divorced the wife shall have the Moytie though there were not Moyties before the divorce for the divorce converts it into Moyties 32. H. 8. B. Deraignment 18. Discent If Land be given for Term of life the Remainder to the right heirs of W. N. which W. N. is attainted of Felony and dies and after the Tenant for life dies the Remainder shall not take effect nor none shall have the Land for he hath not heir ratione attincturae And though all be a name of purchase yet none can take it but he which is heir B. Discent 59. Done 42. And where Land in Gavelkinde is given to one for life or in tail the Remainder to the right heirs of W. N. who hath issue 4. sons and dies and after the Tenant for life or the Donee dies the eldest son shal have the land for he is right heir at Common Law this is a name of purchase which shall be ordered by the Common Law But otherwise of discents to heires in Gavil kinde for then it shall goe to all the sons 37. H. 8. B. Discent Done 42. Nosme 6. Note that Sir John Hussey Knight enfeoffed certain persons in fee to the use of Anne his wife for terme of her life and after to the use of the heirs males of his body and for default of such issue to the use of the heires males of the body of Sir William Hussey his father and for default of such issue to the use of his right heires and after had issue William Hussey the elder and after Sir John was attainted of Treason 29. H. 8. and put to execution and after Anne died and the said William Hussey the son prayed an Ouster l'main of the King And by Whorewood the Kings Attorney he
shall have it for this name heires males of the body is but a name of purchase and Sir W. H. shall not have it as heir to Sir John but as purchaser B. Nosme 1. Livery 1. Discent 1. As if land is given to a man and his heires males of his body and he hath issue 2 sons the eldest hath issue a daughter and the father and the eldest son dies the younger brother shal have the land and yet he is not heir to his father And the same Law where land is given to a man and to his heirs females of his body and he hath a son and daughter and dies the daughter shall have the land and not the son B. Nosme 1. 40. And so where Tenant in tail is attainted of Treason before the Statute of 26. H. 8. his son shall have the land for he doth not claim onely as heir but by the Statute and per formam doni B. Nosme 1. Yet some were of a contrary opinion and took a Diversity where the gift is to the father himself and where t is to the heires of his body by remainder B. Nosme 1. 40. And therefore in 9. H. 6. if lands are given for term of life the remainder to the heires females of the body of I. S. who is dead and hath issue a son and daughter and after the Tenant for life dies the daughter shal not have the land for she is not heir for by Hare Master of the Rolls an antient apprentice there is a difference betwixt a gift in possession to a man and his heires females c. and a gift to a stranger the remainder to the heirs females of another for there he ought to be heir indeed when the remainder falls or otherwise the rem ' is void for ever B. Done 61. for though that the case holds place in the two cases put by Whorewood this is because that the gift was once vested which was in the father and therefore good law there otherwise in the principall case where the rem ' is not vested Yet by some the opinion of Whorewood is the better for where land is given to a man and his wife for term of life the rem ' to the heires males of the body of the man this remainder cannot be vested in the life of the wife for t is not a tail in the man by reason of the estate of the wife yet if he hath issue 2 sons and the eldest hath issue a daughter and dies the father and mother dies the younger son shall have the land as heir male and yet he is not heir indeed The same Law if such gift were the rem ' to the heirs females of the body of the man who hath a son and daughter and dies the daughter shall have the land though she is not heir The same Law where land is given to W. N. for life the remainder to I. S. for life the remainder to the heires males of the body of the said W. N. who hath 2 sons the eldest hath issue a daughter and dies W. N. and I. S. die the younger son shall have the land as heir male yet he is not heir indeed but his Neece is heir to his father for t is not matter of the first vesting nor of the remainder for where the first estate for term of life is executed the remainder over ut supra the remainder may depend in abeyance quousque c. ut supra But otherwise of a remainder to the right heires for none can have that but he which shall be heir indeed B. Nosme 40. and therefore t was agreed that the 2 remainders to the right heires of Sir John Hussey was forfeited by the attainder 37. H. 8. B Nosme If land discends to the daughter within age and after she is disseised the disseisor dies and his heir enters and after a son is born he born shal avoid the discent for he claims not as heir to his sister nor was he in esse at the time of the discent Lecture B. Discent 40. Discontinuance of Possession Recovery against Tenant in tail the reversion or remainder in the King in fee shall binde the Tenant in tail and the issue in tail but not the King But now by the Statute it shall not binde the issue in tail but that he may enter 32. H. 8. B. Discontinuance of possession 32. Note that t was agreed in the case betwixt the King and Anthony Lee Knight if the King Tenant in tail of the gift of another makes a lease for years or for life and hath issue and dies the issue may make another grant without reciting them for they are void by the death of the King Tenant in tail who granted and the heir of the King shall avoid it so that this shall not binde but during the life of the grantor for a grant without warranty or livery is no discontinuance and the King upon his grant doth not make livery And also every discontinuance is a wrong which the King cannot do the same law if he had granted in fee t is no discontinuance B. Patents 101. Discontinuance of Possession 35. Tail 39. Leases 61. And so see that the King may be Tenant in tail for when a man gives to the King in tail he cannot have a greater estate then the donor will depart with to him 38. H. 8. B. Tail 39. Release no Discontinuance See Tit. Releases Discontinuance of Proces Note that a Discontinuance puts the party to a new originall but where the Parol is without day this may be revived by a re-summons or re-attachment for the originall remains Regulae B. Discontinuance of proces 43. Dismes Tythes T was said that if a Parson demise his Glebe to a lay man there he shall pay Tythes contrary of the Parson himself that reserves them in his proper hands And that land first discharged of Tythes shall be ever discharged of them Yet if he which hath purchased a Mannor and Rectory which is discharged of Tythes Leases part of his demeanes the lessor shall have Tythes of that because that he hath the Parsonage 32. H. 8. B Dismes 17. Disseisor T was said for Law if A. leases the land of I. N. to me for years rendring rent the lessee enters and payes the rent to the lessor the lessor is a disseisor for countervails a commandment to enter and he which commands is a disseisor which note by his void lease 23. H. 8. B. Disseis ' 77. Distress Where land shall be charged with 2 distresses by Dower of part and so of partition See Tit. Avowry Note for Law that he which distrains beasts may put them into a close house if he will feed them for the distress in pound overt is but to the intent that the owner may feed them 33. H. 8. B. Distress 66. T was agreed for Law by the Justices that if a man distrain without
there were but one in the Deed then it shall be referred to the one only But in a Devise 't was said by some that the words afore are a Fee-simple Contrary in a Gift and Feoffment for the one shall bee taken by intendment the other not 31 H 8. B Estates 4. A man gives land to a Husband and Wife for terme of their Lives diutius eorum vivent the remainer to the Heirs of their bodies this is a taile executed by reason of the immediate remainer notwithstanding the words of the Statute quod voluntas Donatoris in omnibus observetur by all the Justices 35 H 8. B Estates 78. By opinion in the kings Bench If a man deviseth his Land to W N solvend ten pound to his Executors and dies the Devisee hath a Fee-simple by reason of the payment without words Heredibus or in perpetuum and this shall be intended the intent of the Devisor The same Law if a man sell his Land to W N for twenty pound this shall be intended a sale in Fee-simple without words Heirs for Conscience c. est equum bonum which is a ground in every Law 4 Ed 6. B. Estates 78. Estoppell If a man hath Liberties Rent Common or the like by prescription and after takes a grant thereof of the King by Patent or of another by Deede this determines his prescription by conclusion B Prescription 102. Estoppell 210. for Writing shall determine Contracts and matter in Fait 33 H 8. B Prescrip 102. 'T was agreed that a stranger to a Fine or Recovery shall not pleade it for Estoppell contra If hee claim the same Land under the Fine or Record by those which were parties or claims the same Estate or part of it and that this estate continues for then he is privy in the Per 36 H 8. B Estoppell 216. the end If two joyn-Tenants are which hold of the King in chiefe and the one releases to the other in Fee and after both respit Homage in the Exchequor by this he which released hath gained the moity by conclusion as it shall be where two joyne in suite of livery out of the hands of the King where the one hath nothing by the opinion of some And the same of Partition by two where the one hath nothing 37 H 8. B Estoppell 218 Note that a man which Leases by Deede poll for yeeres or by Parol may avoid this Lease to say That hee had nothing in the Land tempore dimissionis Contrary Upon a Lease by Indenture for this is an Estoppell 38 H 8. B. Estoppell 8. If a man Indicted of Extortion or Trespasse puts himself upon the grace of the King and makes a Fine and after the party sues him for it by Bill or Writ and he pleades Not Guilty hee shall have the Plea and the making the Fine to the King shall not estop him for there the Entry is quod petit se admitti per Finem and doth not confesse it precisely and therefore no Estoppell Yet B seemes to make the Fine by protestation that hee is not guilty and then 't is all cleere Time H 8. Estoppell 82. A man pleads a Pardon of the King in the Exchequer for alienation without License where the Land is not holden of the King in capite This is an Estoppell to him to say after that He doth not hold in capite 7 Ed 6. B Estoppell 222. By Hales and Montague If a man Leases to N his own Land by Deed intended the Indenture is no Estoppell but during the Lease and not after Casus B Estoppell 221. Estranger A is bound to B in a 100. l. and B makes a Defesance to W S That if W S payes 40. l. that the Obligation shall be void This is worth nothing per opinionem because that A that should plead it is a Stranger to the Deed But where two are bound to me and I make a Defesance to one this shall serve the other to plead if he can shew it as in Trespas against two a release to one shall serve the other if he can shew it 34 H 8. B Estranger al fait 21. Estray If a man takes Beasts as an Estray and keeps them three quarters of a yeer and after they stray from him and another happens on them the first Lord which kept them for three quarters cannot take them again because that he had no property in them till hee had kept them a yeer and a day and Proclamation passed in the two next Market Towns and two Market dayes the one in the one Town and the other in the other for the possession of the second Seizor is good against him who hath no property 33 H 8. B Estray 11. Executions Note by Fitz and the Court If a man recover in a Writ of Annuity he shall have a Fierifacias of the Arrearages incurred within the yeer and a Scire fac after as soon as the Annuity is Arrear and never a Writ of Annuity again for 't is executory and the same Law of an Action and Judgement upon composition which is executory de tempore in tempus and the like And in every Scire fac in which he recovers after the first Judgement he shall have execution of the Arrearages within the yeer by Fiere fac for every one is founded upon the Judgement 23 H 8. B Executions 119. Scirefac 213. By the whole Court in the Common-Bench If two are bound in an Obligation conjunctim divisim the Obligee impleads the one and hath execution of his body and after impleads the other and condemns him hee may have execution against him also for the taking of the body is a good execution but 't is no satisfaction and therefore hee may take the other also But if the one satisfie the Plaintiff hee shall not have execution after and therefore this Order That the Plaintiff upon an Obligation shall have but one execution is intended such execution which is a satisfaction and where both are impleaded by one originall by severall Precipes c. 29 H 8. B Execution 132. Scire fac upon recovery of Debt and Damages the Defendant said that once the Plaintiff sued a Capias ad satisfaciend by which the Sheriff had took his body Judgement c. And there 't is said That a Capias ad satisfaciend is not of Record before the retorn of it therefore no Plea Yet B seems the Plea good by the taking of the Body though no Writ bee returned 37 H 8. B Executions 6. Executors 'T was noted by Fitz and others That in an Action of Debt against an Executor 34 H 6. upon an Obligation of his Testators who pleaded not his Deed and found against him the Judgement by the Record was That the Plaintiff should recover of the dead if hee hath any and for that the book at large fol. 24. is reported further in these
felony ib Removing of the prisoner out of the Kings bench to the Countrey 78 A man takes the Church and will not abjure ib Church serves for forty dayeâ— 79 Abjuration and day to doe it ib Sanctuary pro vita hominis ib Grant or prescription to have Sanctuary for debt good and where not 80 Church suspended ib Church and Sanctuary ib Abjuration discharges felony ib Abjure for petty larceny ib Judgement of life and member is felony ib Corporations Fail of the name of corporat ex parte quer ex parte def diversity ib Quere 81 Abbie extinct ib Quere ib Creation and gift in one patent ib Patent to two intents ib Costes 71 Costes in a Quare impedit 72 Penalty given by Statute ibid Nonsuit ib Defendant shall have costs by Statute ib Covenant 72 Covenant without words of Covenant for him his heirs and execut ib Coverture 73 Deed inrolled by a feme cover by the common Law and by custom diversity 73 London ib Count 73 Count against the tenant and prayee in aid 73 Court Baron 74 T is no Mannor without Suitors ib Where Steward or under Steward may let by copy and ècontta ib Quere ib Customs 74 Custom per tot Angliam and Custom in a City or County Diversity 74 Damages 76 Damages abridged and increased upon inquest of office ib Contra upon issue tried betwixt parties ib Costes ib Where attaint lies where not Default Default after réceit 76 Demurrer 77 Demur upon office ib For what tenure livery due to the King ib Misrecital of a Statute 77 Denizen See Tit Alien 77 Denizen and Alien ib King cannot alter his Law by his Patent ib Escheat ib Deputie 78 Office assigned over 78 Detinu Debt 78 Debt upon Indent of Covenant in which are words obligat ib Where payment is a good plea in Debt without acquittance or writing ècont Shewing of deed ib Once barred upon an obligation t is for ever ib Debt for release ib Devise 80 Testament by a feme covert by assent of the husband ib Countermandable after her death ib Devise by the husband to the wife ib Estate for life by intent and devise good by implication ib Devise to a common person in London and devise in Mort. in London Diversity 81 Where survivor shal not hold place in a devise ib In feodo simplici ib Where all the executors shal sel and where one may ib Quere ib Devise that his executors shal sel post mortem I. S. 82 Devise that the Feoffees shal make an estate where he hath no Feoffees ib Sale of Land by executors after disseism recovery 82 Fine levied or discent 83. Title of entry and right of entry diversity ib Where the property is devised and where the occupation diversity ib Devise the occupation ib Devise that every one shal be heir to the other ib Words to make a remainder 84 Devise to do at his pleasure ib Where the heir may waive a devise and ècontra Discent ib Diversity ib Devise tols a discent and no remitter 85 waive devise ib Divorce 85 Acts executed before the divorce ib Diversity ib Cui ante divorcium ib Discent 86 Remainder to the right heirs ib None can be heir to a man attaint ib Gavelkind ib Diversity ib Casus Sir John Hussey 87 Ouster l' main ib Heirs males name of purchase ib Treason 88 Diversity where the ancestor hath some estate where not ib Remainder 89 Remainder ib Remainder ib Remainder in abeyance 90 Remainder Heredibus Mascul de corp rectis hered Diversity ib Discent to an heir in ventre mirs ib Recovery against Tenant in tail the reversion in the King ib The King tenant in tail cannot discontinue by grant by patent 91 So t was determined in the case of the Lord Barkley ib Discontinuance of proces 92 Diversity betwixt discontinuance and parol saus jour ib Dismes Tythes 92 Lay man shal pay Tythes for spiritual land otherwise of a man spiritual ib Disseisor 93 Lease of land of another man ib Commander is a disseisor ib Distress Pound overt ib Pound breach ib Done Gift 94 What passes by words omnia terras tenementa ib Gift of a Chattel by the King ib What passes by grant of omnia bona ib Dower 95 Dower of a rent reserved upon a lease for years and for life ib Judgement cesset executio ib What Joynture shal be a bar of Dower and what not ib Devise by the husband to the wife ib Dum non fuit compos mentis 96 Fine levied before a Judge off non saue memory and a gift of an office by him diversity ib Ejectione Custod 96 Ejectione custod of a rent before seisin ib Contra of land ib Enquest 97 Where a Peer of the Realm is party Knight shal be in the Jury ib Quere ib Enquest taken de bene esse ib Enquest recharged after Verdict ib Entre Congeable Lawfull Entry 97 Land given habend to the grantee and â—eâ—â—ditâ—pro termino no vita ib Where he in reversion shal falsifie recovery had against tenant for life where not 98 Aid prayer of a stranger is cause of forfeiture ib Entry Lawfull where not ib Recovery against Cestuy que use in tail ib Recovery against Cestuy que use in tail 99 And the entry of the feoffes tolled ib Use in tail ib Quere 100 Equity ib Exposition of a Statute ib Fine by ten in tail in use or possession ib Casus Wimbish ib Recovery void 101 Averment ib Recovery upon a true title falsified ib Covin ib Entry or distrain upon the Patentee of the King contras upon the King ib Who shal travsere an office ib Entry by a purchasor of a reversion for condition ib Equity ib Error 103 Teste misordred in a writ ib Escape First Sheriff suffers the escape and retakes and the second Sheriff suffers him to escape again ib Escheat 104 Foundership escheated or forfeited ib Heir ib Writ of escheat where the Tenant died not seised ib Right of entryâ— escheat ib Acceptance ib Disseisor 10 Diversity ib Acceptance ib Alience ib Essoigne Essoign upon the vJew or voucher ib Error ib Diversity ib Estates Casus Sir T. Lovel heredib mascul by Patent of the King and in grant of a common person diversity 106 Estate in fee during the life of I. S. ib Grant or Feoffment and devise diversity ib Diversity ib Tail executed by reason of an immediate remainder 107 Deviâ—ee shal have fee without words heredibus or imperpetuum ib Estoppel Prescription gon by acceptance of a grant ib Who shal plead a Record for estoppel ib Privity 108 Respit of homage by 2. ib Livery ib Partition ib Lease confessed and avoided ib A man makes a fine upon an indictment of extortion or trespass and after pleads not guilty 109 The entry in making a Fine ib Protestation ib Estoppel by pardon pleaded ib Quamdiu lease for years of his own land shall be an estoppel ib Stranger 110
of the Countrey by Cerciorari to the Chancery and may be sent to the Justices of the Kings Bench by Mittimus and then they shall proceed upon it 36. H. 8. B. Certiorari 20. the end Certificate of the Bishop 'T was holden that if the Bishop certifies that such a person paid not his Tenths according to the form of the Statute which wills That ipso facto the Benefice shall be void that in this case a man shall not have an averment contrary to the certificate Time H. 8. B. Certificate devesque 31. the end Challenge Note by the Exchequer and both Benches where the parties are at issue in a plea of land where the land lies in three or four hundreds there if the Juror hath land in any of the hundreds or dwells in any of the hundreds it suffices 4. M. 1. b. Challenge 216. In Treason t is a good challenge to witnesses to say that he was one of his accusers b. Corone 219. And note that by the Statute of 33. H. 8. a peremptory challenge is ousted in case of high Treason yet by the said Statute Queen Mary t is enacted That all tryals of Treason shall be according to the order of the Common Law and not otherwise And therefore it seems that he may have a challenge peremptory as at Common Law S. 35. Jurors 4. M. 1. B. Challenge 217. Trials 151. the end Where a Grant of the Bishop or charge by him with the assent of the Dean and Chapter shall binde the successor and where not See Tit. Confirmation Charters of Pardon Note if a man be attained of murther or Felony by Outlawry or otherwise and the King pardons him all Felonies Murthers and Executions eorundem and Outlawries and Waivings and Sectam pacis And a pardon and release of all Forfeitures of Lands and Tenements and of Goods and Chattels shall serve but for the life and for the land if no Office be thereof found But it shall not serve for the goods without restitution or gift For the King is intitled to them by the Outlawry without Office but the King is not intituled to the Land till Office found And if an Office be found after yet the pardon shall serve for it shall have relation to the judgement then the mean pardon serves well contrary where an Office is found before the pardon granted for then the King is seised by the Office and there a release or pardon cannot give it but there ought to be a Gift or Grant 29. H. 8. B. Charters of Pardon 52. Note if alienation without licence be pardoned by Act of Parliament the party may enter without Ouster l'main or amoveas manum Otherwise by another pardon by letters Pattents 29. H. 8. B. Charters of Pardon 53. If intrusion by the heir post mortem antecessoris be found by Office and after the King pardons it by act of Parliament or by letters Pattents yet the heir shall sue Livery for this is not restored to him by a pardon but if the pardon were granted before Office found and at the making of the pardon the heir is of full age he shall retain the land and the Office found after the pardon shall not hurt him 30. H. 8. B. Charters of Pardon 54. Chattels If Lessee for years devise his Term or other his Chattel or Goods by Testament to one for term of his life the Remainder over to another and dies and the Devisee enters and aliens not the Term nor gives or sels the Chattel and dies there he in Remainder shall have it but if the first Devisee had aliened given or sold it there he in the Remainder had been without remedie for it B. Chattels 23. Done 57. And so B. seems if they be forfeit in his life he in remainder hath no remedy 33. H. 8. B Done 57. the end Choice in Action Thing in Action Note where the Statute of 31. H. 8. gives to the King the possessions of Abbies and all rights of Entries Actions Conditions and the like which the Abbies might have had and that he shall be in possession without office and that he shall be adjudged in actual and real possession of them in such plight and sort as they were at the time of making of the Statute Yet if an Abbot were disseised of 4 acres of land the King cannot grant it over before entry made by him in it because t is a thing in action real and not like to a thing in action personal or mixt as debt ward and the like by some And some è contra by reason of these words That the King shall be in possession Yet by B. this seems that he shall be in such possession as the Abbot was S. of a thing of which the Abbot had possession the King hath of this actual possession of such of which the Abbot had but a cause of entry or right in action of these the King shall be vested of a Title of entry and Title of action But the thing to which he hath such cause of entry or of action is not for this in him in possession and therefore cannot pass from the King by general words but B. seems if the King recites the diseisen and how the right and action thereof is given to him by the Statute and grants it specially that t is good 33. H. 8. B. Choice in Action 14. 'T was said for Law That the King may grant a thing in action which is personal as debt and dammages and the like or a thing mixt as the ward of body but not a thing real as an action of land and the like as Rights Entries Actions and the like which Abbots might have And that the King shall have these by the Statute of dissolution of Abbies 31. H. 8. These things in action the King cannot grant Yet by B. see if there be not words in this Statute to put the King in possession though the Abbot were put to his action 33. H. 8. B. Pattents 98. Clergy No man shall have his Clergy but where his life is in jeopardie and therefore not in petty larceny And the Bishop is Ordinary all Priests Abbots and others inferior to him which demand Clergy or have Clergy and if the Bishop hath his Clergy the Metropolitan shall keep him as his Ordinary and if the Metropolitan offend and hath his Clergy the King shall have him and keep him the same is of Laps Reading B. Clergy 19. Corone 183. Note That at this day Bigamus shall have his Clergy by the Statute but a man attainted of Heresie shall not otherwise of a man excommunicated and a Jew nor Turk shall not have their Clergy and a Greek and Roman who use not our letters shall have their Clergy and shall stay till a book of letters of their countrey comes B. Clergie 20. And if a man who is captus oculis prayes his Clergy he shall have it if he
is taile in possession and therefore quaere if the taile in use cannot be taken by the equity of it yeâ— 't was doubted if the issues and the Feoffees shall be bound after the death of cestuy que use who suffered the Recovery by reason of those words in the Stat of 1 R 3. which will that the Recovery shall bee good against the Vendor and his Heirs clayming only as Heir and against all others clayming only to the use of the Vendor and his Heirs and this is intended by some of a Fee simple And in the case aforesaid the issue in taile claymeth as Heir in taile in use B Feofments to uses 56 the middle yet see the Stat of 32 H 8. That 〈◊〉 Fine with Proclamation levyed or to be levyed by tenant in taile in possession Reversion Remainer or in Use after Proclamation had shall binde â—hose tenants of those tayles and their Heirs for ever And see that the same â—tat is as well for the time past â—s to come 30 H 8. B. Feofments to uses 57. If Covenants and Agreements are â—onteined in Indentures and not uses â—nd 't is Covenanted by the Indentures â—hat A shall recover against B his Land in D to the use of the recoveror â—nd his Heirs and to the uses of the Covenants and Agreements in the Indentures there if he recovers the reâ—overy shall be to the use of the recoveror and his Heirs and not to the uses of the Covenants and Agreements in the Indentures where no uses are in the Indentures But otherwise if uses are conteined in the Indentures â—nd 't is Covenanted That A shall recover to the use of A and his Heirs and to the uses in the Indenture there the recovery shall goe according and shall be executed by the Stat 32 H 8. B Feoffments to uses 58. 'T was agreed by all the Justices upon great deliberation in the case of Mantel Esq of the County of North who was attainted with the Lord Dacres of the South for the death of a man which see Tit Corone that where he at his marriage 31 H 8. after the Stat of uses made 27 H 8. Covenanted That for a 100. l. and in consideration of marriage that hee and his Heirs and all persons seized of his Lands and Tenements in H shall bee thereof seized to the use of his wife for term of her life and after to the Heirs of his body by her ingendred that this shall change the use well enough and very good And by this the Land was saved and was not forforfeited 34 H 8. B Feoffments to uses 16. the end A man purchases Land and causes an Estate to bee made to him and his wife and to three others in Fee this shall bee taken to the use of the husband only and not to the use of the wife without speciall matter to induce it And so see a Woman may be seized to the use of her husband and by him such Feofment was 3 H 7. and intended as aforesaid 34 H 8. B Feoffments to uses 51. A man makes a Feofment in Fee to his use for term of life that after his decease I N shall take the profits this makes a use in I N contrary if he saies that after his death his Feoffees shall take the profits and deliver them to I N this doth not make a use in I N for he hath them not but by the hands of the Feoffees 36 H 8. B Feoffments to uses 52. A man cannot sell Land to I S to the use of the Vendor nor let Land to him rendring rent habend to the use of the Lessor for this is contrary to Law and Reason for he hath recompence for it And by Hales a man cannot change a use by a covenant which is executed before as to covenant to bee seised to the use of W S because that W S is his Cosin or because that W S before gave to him twenty pound except the twenty pound was given to have the same Land But otherwise of a consideration present or future for the same purpose as for one hundred pounds paid for the the Land tempore commentionis or to bee paid at a future day or for to marry his daughter or the like 36 H 8. B Feoffments to uses 54. Note a Recovery was suffered by Graseley of the County of Stafford by advice of Fitz Serjeant and others and he was only cestuy que use in tail and after he died without issue and his brother recovered the Land in the Chancery for at this time 't was taken that a Recovery against cestuy que use in taile should not serve but for term of his life by which 't is not but a grant of his estate Time H 8. B Feoffments to uses 48. the end By Fitz Just if the Feoffees to the use of an Estate taile sell the Land to him that hath notice of the first use yet the buyer shall not be seised to the first use but to his own use by reason of the bargaine and sale for the Feoffees have the Fee simple and therefore their sale is good Time H 8. B Feoffments to uses 57. the middle Note per plures If a man makes a Feofment in Fee before the Stat of uses or after this Stat to the use of W and his Heirs till A pay fourty pound to the said W and then to the use of the said A and his Heirs and after comes the Stat of uses and executes the Estate in W and after A paies to W the 40. l. there A is seised in Fee if he enters yet by some A shall not be seized in Fee by the said payment except that the Feoffees enter B doubts thereof and therefore it seems to him best to enter in the name of the Feoffees and in his name and then the one way or the other the entry shall be good and shall make A to bee seised in Fee and also see by B that a man at this day may make a Feoffment to a use and that the use shall change from one to another by act ex post facto by circumstance as well as it should before the said Statute 6 E 6. B Feofments to uses 30. 'T was holden per plures in the Chancery if a Recovery bee had in which cestuy que use in taile is vouched and the demandant recovers then this shall bind the issue Time E 6. B Feofments to uses 56. the end If a Covenant bee by Indenture that the sonne of A shall marry the daughter of C for which C gives to A a hundred pound and for this A covenants with C That if the marriage takes not effect that A and his Heirs shall bee seised of a hundred and fiftie acres in D to the use of C and his Heirs quo usque A his Heirs or Executors repaies the hundred pound and after C hath issue within age and dies and after the
King and goe quite as if he had holden of a common person Contra of Tenure in Capite 32 H. 8. B. Livery 62. Note that the heir of him who holds of the King in Capite in Soccage shall not render primer seisin to the King for all his Lands but onely for those Lands holden in Soccage in Capite Contrary of him who holds in Knight service in Capite by the experience of the Exchequer And the heir which sues Livery shall have in every County a several livery And note that livery is where the heir hath been in Ward and comes to full age he shall have livery extra manus Regis And primer seisinâ— is where the heir is of full age at the time of the death of his ancestor or where his tenant holds in Soccage in Capite and dies there the King shall have primer seisin of the Land which amounts to the like charge to the heir as the livery is 38 H. 8. B. Livery 60. Note that a man cannot sue livery in the Chancery for Land in Wales Nor in a County Palatine by experience Time H. 8. B. Livery 63. If the heir of cestuy que use be of full age at the time of the death of his ancestor the King shall not have primer seisin for 't is not given by the Stat. but onely the ward of Land and body And if a will were declared by cestuy que use which is not performed during the nonage of the heir there the King shall not have the Land but the heir at full age shall prove his age and shall goe quite by experience in the Exchequer Casus B. Livery 77. the middle Mainprise IF a man be arrested in London and finds sureties to the Plaintiff there and after is dismissed in banco by Writ of priviledge and after a Procedendo comes in the same suit to the court of London this shall not revive the first mainprise or suretiship for once dismissed and always dismissed And 't is said that after a man hath found mainprise to a Bill in the Kings Bench and after is at issue or demurrer and after is awarded to replead and to make a new declaration the Mainprise is by this discharged Contrary where they manuceperunt usque ad finem pliti and where the original remains 32 H. 8. B. Mainprise 96. If a man be convicted of Felony and remains in prison and after the King pardons him there the Justices of Goal-delivery may bail him till the next Sessions oâ— Goal-delivery so that he may then comâ— with his Pardon and plead it 2 E. 6. B Mainprise 94. Maintenance Note by all where Tenant in Tayl oâ— for term of Life is impleaded he in remâ— or reversion may maintain and give of his proper money to maintain for safeguard of his interest for 't was agreed that he who hath an interest in the Land may maintain to save it 1 E. 6. B. Maintenance 53. Note that upon the Statute of buying Titles and to maintain that a man shalâ— not buy Land except the vendor hath been in possession c. by a yeer before 't was agreed by Mountague chief Justice and by all of Serjeants Inne in Fleet-street that if a man morgages his Land and redeems it he may sell his Land infra unum annum prox c. without danger of the State aforesaid for so is the intendment of the Statute for the ancient Statutes are That none shall maintain and yet a â—an may maintain his Cousin and so of â—e like for 't is not intended but of unâ—wful maintenance and so of a pretenâ—d Title and not of that which is clear â—itle 6 E. 6. B. Maintenance 38. Mannor A man cannot make a Mannor at this â—ay notwithstanding that he gives Land 〈◊〉 many severally in Tayl to hold of him 〈◊〉 Services and suit of his Court for he â—ay make a Tenure but not a Court for â— Court cannot be but by continuance cuâ—â— contrarium memoria hominum non â—â—sist it And 't is said for Law that if a â—annor be and all the Free-tenures esâ—eat to the Lord but one or if he purâ—hases all but one there after this the Mannor is extinct for there cannot be a Mannor except there be a Court-Baron 〈◊〉 it And a Court-Baron cannot be â—olden but before Suitors and not before 〈◊〉 Suitor therefore one Free-holder â—â—ely cannot make a Mannor 33 H. 8. â— Comprise 31. Mannor 5. Misnosmer Misnamer A Statute was acknowledged by man in the name of I. S. de D. in Coâ— E. Butcher and he was taken upon Prâ—cess and said in avoydance of the Statutâ— that he was always dwelling at S. aâ—â— not at D. and was a Husbandman and nâ— a Butcher and that I. S. of D. acknowledged the Statute without this that he the same person that acknowledged iâ— which Plea was refused for a great inconvenience that might fall upon it 36 H. B. Misnosmer 34. the end Monstrans de faits Shewing of Deeds See that he which pleads a Deed Record or which declares upon a Deed Record it behoves him to shew it Oyer of those is always to be had by 〈◊〉 which is charged by it Regulae Monstrans 165. Oyer de Recordes 1â— the end Mortdauncestor By the best opinion in the Commâ—â— Bench if two purchase jointly to them â— to the heires of one and he which hath the Fee dies and after the other dies the heir of the first shall not have a Mortdauncestor and B. seems the reason to be because the Fee was not executed in Possession by reason of the survivor of the other and t is in effect now but the discent of a reversion and the wife of him who had the Fee shall not have Dower and yet he might have forfeited the Fee simple or given it by Feoffement but not by grant of the Reversion 12. E. 4. 2. and joyn the Mise in a Writ of Right for he in Reversion and the Tenant for life may do it Quaere if he may release it 29. H. 8. B. Mortdauncestor 59. Mortmain Lord and Tenant the Tenant leases for life to I S. the remainder to an Abbot and his successors the Lord need not to make claim till the Tenant for life be dead for if he will wave the Remainder t is not Mortmain But of a grant of a Reversion with Attornment t is otherwise And if the Tenant makes a Feoffment in Fee to the use of A. for life and after to the use of an Abbot and his successors there t is not Mortmain till the Tenant for life in use dies and he in Remainder takes the profits Note that appropriation of an advowson without licence is Mortmain 25. H 8. B. Mortmain 37. If a man leases to an Abbot and his successors or to another Religious person for a 100 years and so from a 100. years to a 100 years untill 300 years be incurred this is one Lease
H. 8. B. Statute Merchant 42. T was said for Law that if the Conusee upon a Statute staple dies and â—is executors sue execution in the name â—f the Testator as if he were in life â—nd the Sheriff takes the body in the â—ame of the Testator c. yet this is â—ot execution for the executors but â—hey may after have execution in their â—wn name for the first execution in â—he name of him that was dead before â—he Teste of the Writ was void and â—he body cannot remain to satisfie him who was dead before Nor the Sheâ—iff cannot deliver the land nor goods â—o him who is dead juxta formam breâ—is And by B. in the book of Enâ—ies the executors of the Conusee shall have execution upon a Statute Merchant without Scire Facias and this upon surmise as it seems to him And if the Conusor be retorned dead yet execution shall proceed of his Lands and Tenements without Scire Fac ' against his heir And the extenâ— and Liberate shall be served imediatly Yet by B. no remedy appears there for the goods of the Conusor when the conusor is dead to have any execution of them 36. H. 8. B. Statute Merchant 43 T is said if a Writ of execution with extendi facias issues upon a Statute Merchant that the Writ ought to be retorned and the land upon thiâ— delivered to the Conusee by Liberate inde Time H. 8. B. Statute Merchant 32. the end Supercedias T was holden for Law thâ—â—â— a writ of attaint a man shall â—ot have a Supercedias for to â—isturb execution for the â—erdict shall be intended true â—ntill t is reversed c. And â—â—at the Register which gives 〈◊〉 Supercedias there is not Law Contrary upon a Writ 〈◊〉 Error for it may be intenâ—ed that Error is for the suit â—f the Defendant c. 33. H. B. Supercedias 24. Sureties Where Sureties in Londonâ—â—all â—â—all remain after the action â—emoved è contra See Tit. â—â—ocedendo Affirmatur pro lege that â—uretie of the Peace is discharged by the death of the King for t is to observe tâ— peace of that King and when he dead t is not his peace 1 M. 1. Surety 20. Surrender Tenant for term of life surrenders him in reversion out of the land which he agrees the free hold by thâ— is in him presently and he is Tenaâ— to the action by precipe quod reddâ— without entry but he shall not haâ— Trespass without Entry 31. H. 8. â— Surrender 50. Where tail shall be extinct by suâ—â—render of Letters Patents where noâ— see Tit Patents Note in the Case of Culpeper twâ— said that the King himself cannot râ—â—cord or receive a surrender of land 〈◊〉 Letters Patents made to him extrâ— curiam but this ought to be beforâ— his Chancellor or other Justice to thâ— authorized 2. E. 6. B. Surrender 53. thâ— end If a man leases for years the remainder over for years and after the firâ— Termor grants his interest to the Leâ—sor this is no surrender by reason 〈◊〉 〈◊〉 mean interest of the term in reâ—â—inder And a Termor makes his essor his Executor and dies this is no â—â—rrender for he hath this to another 〈◊〉 contra whorewood inde 2. E. 6. B. â—â—rrender 52. Note where a man leases land for 〈◊〉 of years the remainder over for 〈◊〉 the remainder over in fee or reâ—â—rving the reversion there he in remainder for term of life may surrenâ—er to him in reversion or to him in remainder in Fee and the estate for â—erm of years is no impediment for â—â—ough it cannot give the possession of 〈◊〉 land yet it gives the possession of 〈◊〉 free hold which is in the thing â—hich was surrendred 3. M. 1. B. Surrender 55. Suitor T was said for Law in the Star-Chamber betwixt Brown Justice and â—ion Grocer of London that a Court 〈◊〉 may be holden before two suiâ—â—rs for the plurall number suffices â—ime H. 8. B. Suit 17. Tail REcovery upon voucher against Tenant in tail is a bar by reason of the recompence in value And a recovery bâ— writ of entry in the post by single voucher doth give but the estate which the tenant in tail hath in possession temporâ— recuperationis so that if it were in oâ— another estate then the tail there the tail is not bound against the heir But the double voucher is to make the tenant in tail to discontinue and to bring the writ of entry against the feoffee and then the feoffee shall vouch the tenanâ— in tail and he shal vouch over and so shal lose and this shal binde all interests and tails that the vouchee had 23. H 8. B. Tail 32. Tenant in tail hath issue and asiens with warranty and leaves assets dies the issue cannot recover by Formedon for the warranty and assets is a barr And if the issue aliens the assets yet he shall not have a Formedon But if he hath issue and dies there the issue of the issue shal have a Formedon because that the assets is not discended to him Yet is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement and aliens the assets and dies his issue shall not have a Formedon because that his father was barred by judgement B. Tail 33. And if the tenant in tail hath issue two sons by divers venters and discontinues and dies and an ancestor collateral of the eldest son releases with warranty and dies without issue and the eldest son dies without issue before 〈◊〉 Formedon brought the younger son may recover by Formedon for he is not heir to the warrantor and his brother was not barred by judgement Yet B. doubts thereof for it seems to him that the discent of the Collateral warranty extincts the tail But if the eldest had been barred by judgement then clearly the younger is gon also 24. H. 8. B. Tail 33. Formedon 18. Tenant in tail the reversion to the King suffers a recovery operaturâ—y â—y it See Tit. Discontinuance de possession Recovery in value If the King gives lands in tail by his Letters Patents and after the donee surrenders his letters patents to the K. the Tail by this is not extinct 35. H. 8 B. Tail 38. The King Tenant in Tail cannot discontinue by grant by Patent See Tit. Discontinuance de Possession Tenant at Will Note for Law that there is no Tenant by sufferance but he that first enters by authority and lawfully as where a man leases for years or for term of anothers life and holds over his term after the term expired or after the death of cestuy que vie And Tenant at will is where a man leases his land to another at will for he who enters of his own head is a Disseisor Time H. 8. B. Tenant per copy 15. the end Tenant by Copy Note that t was said for Law
Difference betwixt Riot Rout and Assembly ib Sanctuory See Tit Corone saving default See Tit. Judgement Scire fac ias Second deliverance See Tit. Retorn de aeverse Seisin 262 Seisin by the hands of an intrudor ib Livery ib Distress suspended not Seigniory 262 Seisin of the King loses not the arrerages ib Several precipe Debt and deâ—inue in the same Writ ib Several tenancy 263 Uncertain demand in an assise Statute Merchant Part of the land extended in the name of all no reextent ib proces in another County upon a nihil returned upon a testatum est ib Deiberate ib Surrender ib When a man may hold the land beyond his term upon a Statute 264 Judgement ib Reversion not extendable ib Diversity betwixt a purchase after the Statute and before execution and where t is purchased after execut ' had 265 Execution by Executors in the name of the Conusee who is dead ib Execution for the Executors of the Conusee 267 Conusor returned dead ib Retorn of extendi facias liberate ib Supercedias 268 Attaint ib Sureties Death of the King id Surrender 268 Surrender extra terram ib Trespas ib The King cannot record a surrender ib Surrender by the first termor ib Termor makes the Lessor his Executor 279 He in remainder surrenders where there is a Lease for years in possession ib Suitor Two suitor onel Coyurt Baron ib Taile 270 Single voucher and double voucher diversitie ib Where the assets aliend shall be a bar in a Formedon where not 271 Two sons by divers venters ib Collateral warranty by release ib Quere ib Taile extinct ib Surrender ib Tenant at will 272 Tenant by sufferance and at will ib Disseisor ib Tennant by Copy ib Formedon in discender by a copy-holder ib Intendment ib Where Tenant at will or a termor of a Mannor may grant copy-hold for life 273 Demise rendring the ancient rent or more ib Tenant by sufferance See Tit. Tenant at will ib Tender ib What shall be the attendance in a condition ib Diversity 274 Condition of reentry for non payments ib At what time the lessee ought to make tender ib Tender upon the land â—e contra ib Tenures 275 Tenant makes a Feoffment of a moyety this is not pro praticula The like matter in the Cheq 5. H. 6. Ro. 4. ex parte ib Remember Thesaurarij 276 Tenure in capite ib Et de honore diversity ib Ouster I' main ib Socage in capite ib Diversity ib To hold by suite of court ib Court Mannor 277 Testament 277 Where a man shall have for life and where see simplely devise ib Payment by the Heir Executor or Assignee ib Quere ib Will of 3 Mannor by the stat 32. H. 8. 278 Testament cannot be without Execut. ib Where a legacy or devises shall be good though the devisor names no Executors ib Feoffment of all after the Stat. of 32 H. 8. ib Ward 279 Primer Seisin ib Explanation of Wills by Stat. 34 and 35 H. 8. ib. Testmoignes Witnesses 279 Age of Witnesses in Etate proband ib Titles 280 See Tit. Pleadings ib Travers of Office 280 Title made upon traverse tendered ib Traverse dying seized found by Office ib Termor cannot traverse 281. Monstrance de droit ib Traverse against the King ib Where the King shall have Prerogative where not ib. Non-suit in Traverse and Petition diversity ib. Judgement in Traverse ib. Travers by c. 282 Action upon the Case for making of false clothes ib. Seisin in Fee Traversed in Assize ib. The King shall waive his issues contra of an Informer ib. Without that that he had any thing 283 The mean conveyance in the Title shall not be traversed where the Plaintiff in his Title binds the Defendant ib. Remitter ib. Seisin in Fee traversed 284 Treason Misprision of Treason ib. Where Tryall shall be per pares 285 Forfeiture for misprision of Treason 286 Compasse or imagine ib. What shall be said Treason ib. Deprive ib. Quaere ib. Fine for misprision of Treason ib. Alien commits Treason 287 Diversity ib. Trespas 287 Quare vi armis of taking in anothers soil ib. Tryall 288 Tryal of a Peer of the Realm arrained upon an Indictment and appeal diversity ib. Tryall in Court Baron by wager of Law ib. Tryall of the Law shall bee by the Justices and of a particular custome per patriam ib. Tryall of a Bishop 289 Variance 289 Quare imped and the Writ and the Deed vary ib. Verdict 289 Verdict at large in a Writ of entry ib. Villeinage 290 Asserts in their hands ib. Diversity ib. Where the King shall have the Villeine of another in Ward or Ideot ib. Quaere ib. Voucher 291 See B. Tit. Voucher ib. Usury 291 Diversity where the day is certain and where incertain to make usury ib. Defeasance ib. Usury and where not 292 Waife 292 Waives his proper goods for Fellony ib. Waste 29â— Waste by a Termor who dyes before action broughâ— ib. Cutting of Beech of 20. 0â— under 20. yeers of age shall be Waste 293 Locus vastat waste in hedg-rows ib. Where the Termor may take all the under-wood eâ— contra ib. Silva cedua 294 Waste for not covering of a new frame and house ib. Waste by the Heir ib. A man shall be named Heir or Executor in the Premises and not in the alias dictus ib. Conclusion to the Writ 295 Abridgment HOlden by the Prothonatories of the Common Bench in Trespass of Battery That of such matters which lie in Conusance of the Justices they may increase dammages after a Verdict upon Issue otherwise of such matter which lies not in their Conusance as Trees cut But yet there they may increase costs 3. Mar. 1. B. Abridgement 36. the end Acceptance Note By Fitzjames and Englefield Justices if Tenant in Dower Leases for years rendring rent and dies the Lease is void and acceptance by the Heir of the Rent will not make the lease good for t was void before otherwise of voidable Leases 22. H. 8. B. Acceptance 14. If Tenant in Taill Leases his land for twenty years rendring rent and dies and the Lessee leases to another for ten yeares and the issue accepts the rent of the second Lessee this is no affirmance of the Lease for there is no privity between the second Lessee and him contrary if he paies it as Bayliff of the first Lessee and B. seems if the first Lessee had Leased over all his Term in parcel of the land let and this Assignee paies the rent to the issue in tail that this affirms the entire Lease for Rent upon a Lease for years is not apportionable 32. H. 8. B. Acceptance 13. Tenant in Tail the Remainder over Leases for years rendering Rent and dies without issue he in the Remainder accepts the rent this shal not binde him because that when the tail is determind all that is comprised within it is determined and so the Lease void and he in the Remainder
B. commission 9. Commission of the peace is made to 4. in the County of N. and after the King makes I. S. Justice of Peace there for term of his life the first Commission is determined B. Commission 10. If Justices sit by Commission and do not adjourn it the Commission is determined And see a Statute where new Commissioners of Gaol delivery may sit upon the Records of the ancient Commission of the Gaol which is determined And when a Commission of Oyer and Terminer is determined the Records of that shall be sent into the Kings Bench but Records of the Justices of Gaol delivery shall remain with the Custos rotulorum of the County And the next Justices of Gaol delivery shall proceed upon them upon judgement of death by the said Statute Quaere if they should proceed by the words to allowance of Clergie or Sanctuary it seems so by the equity B. Commissions 11. Conditions Debt upon an Obligation with a condition to perform all covenants contained in certain Indentures the defendant cannot plead the condition and reherse the covenants and say generally that he hath performed all the covenants without shewing how by the Prothonotaries 20. H. 8. B. conditions 2. If a man devise 20. l. to W. S. to be paid in four years after his death and dies and after the Devisee dies within the four years yet the Executor of the Devisee shall have the Money or the rest of it by suit before the Ordinary in the court Spiritual for t is a duty by the Testament or devise 24. H. 8. B. Devise 27. 45. conditions 187. By Fitz. if a man before the Statute of Tenures had made a gift of Land to one in Fee for to repair a Bridge or for to keep such a castle or for to marry yearly a poor virgine of S. this is a Tenure and not a condition and the Donor may distrain and make avowrie But if a woman give land to a man for to marry her this is a condition in effect and no Tenure which no bodie denied 24. H. 8. B. condition 188. tenures 53. If a man Mortgage his land to W. N. upon condition that if the Mortgager and I. S. repay 100 l. by such a day that he shall re-enter and he dies before the day but I. S. paies by the day the condition is performed and this by reason of the death of the Mortgager notwithstanding that the payment were in the copulative otherwise if it were not in the case of death 30. H. 8. B. conditions 109. By many if a man make a Feoffment in Fee ad intentionem to perform his will this is no condition but a Declaration of the purpose and will of the Feoffer and the heir cannot enter for non performance 31. H. 8. B. conditions 191. If a man be bound in a bond to pay 20 l. the Obligor in whose discharge the condition goes ought to be ready at the place c. all the day and the Obligee may come any time of the day 32. H. 8. B. conditions 192. A man gives land in Tail or Leases it for life or for years rendring rent with a condition of re-entry for default of payment there if he Leases part of the land to the Donor or Lessor or if the Donor or Lessor enter in part of the land he cannot re-enter for the rent arrear after for the condition is wholly suspended for a condition cannot be apportioned nor divided 33. H. 8. B. Extinguishment 49. conditions 193. Debt upon an obligation to perform all covenants contained in certain Indentures t is no plea that he hath performed all the covenants generally S. Quod performavit omnes singulas conventiones inindentura pred specificat ex parte sua perimplend if they be in the affirmative but must shew in certain in every point how he hath performed them B. condition 198. covenant 35. And where in a Covenant the Defendant saies that the covenants are that he shall pay 10 l. by such a day and infeoff him by the same day quas quidem conventiones idem defensoris bene perimplevit this is no good plea for he must shew in certain how he hath performed it 33. H. 8. B. covenants 35. the end Note for Law That Proviso semper put on the part of the Lesse upon the words of Habendum makes a condition otherwise of a Proviso of the part of the Lessor as t is covenanted in the Indenture That the Lessee shall make the reparations Proviso semper That the Lessor shall finde the great Timber this is no condition Nor by some tis no condition when it comes amongst other covenants on the part of the Lessee as t is covenanted after the Habendum and after the Reddendum That the Lessee shall scowre the ditches or the like Proviso semper That the Lessee shall carry the Dung from it to such a field this is no condition to forfeit the Lease for not doing of it contrary if such proviso be put imediately after the habendum which makes the estate or after the redendum Quaere by B. conditions 195. 35. H. 8. If a man Mortgage his land upon defeisance of repayment to re enter and the bargain to be void and the vendee Leases the Land to the vendor for ten years by Indenture of defeisance and further grants to him That if he paies 100 l. infra terminum dict 10 annorum that then the sale shall be void c. and the Lessee surrenders the Term yet the tender of the 100 l. is good within the ten years because that the ten years is certain though the lease is surrendred or forfeited Otherwise if it were to repay infra terminum predict without these words ten years for in the one case the Term S. the Lease is the limitation of payment and in the other case the ten years by Whorewood in his Reading in the Lent B. conditions 203. Defeasans 18. The same law if B. holds certain land for term of ten years of A. and t is covenanted betwixt A. and B. That if B. pay 100 l. to A. within the said ten years that then he shall be seised to the use of B. in Fee and B. surrenders his term to A. and after payes him 100 l. within the ten years there B. shall have Fee for the years are certain otherwise where t is covenanted That if he payes 100 l. infra terminum predict and he surrenders and after payes the 100 l. this is nothing worth for the Term is determined but in the other case the ten years remain notwithstanding the surrender 35. H. 8. B. Exposition 44. T was holden clear in the Kings Bench that where M. and other two are bound to stand to the award of I. N. so that it be made and delivered by the Arbitrators in writing to the parties before Michaelmas they make the award and deliver it to one by Michaelmas
cause the owner may make rescous but if he impounds them the owner cannnot justifie the breaking of the pound and taking them out for they are in Custodia Legis 4. E 6 B. Distress 74. Rescous 12. the end Done Gift Devisee for life of a Chattell the remainder over he for life gives the Chattell whether this shall barr the remainder See Tit. Chattells T is said for Law that if a man gives omnia terras tenementa sua in D by this leases for years do not pass for these words lands and tenements shall be intended free hold at least 37. H. 8. B. Done 41. The difference betwixt a gift in Remainder Heredibus masculis de corpore rectis Heredibus See Tit. Discent T was granted by Shelly Justice and others that if the King give a Chattell without deed and the donee takes it by his commandment t is good 2. E. 6. B. Done 16. the middle If a man gives or grants omnia bona sua leases for years nor award shall not pass for they are Chattels reals And B. seems that a grant of Prox ' present Ecclesiae unica vice is a Chattell non bona for bona are goods moveable living and dead but not Chattels 4. E. 6. B. Grants 51. Done 43 Dower A woman shall not be endowed of a rent reserved upon a lease of her husband for term of life for the rent is not an inheritance and t is determinable upon the death of the Lessee and yet the heir shall have it for t is incident to the reversion And where a man seised in fee leases for years rendring rent and afterwards takes wife and dies the wife shall have dower of the land but shall not have execution during the term of years for elder title c. and she cannot be indowed of the rent for the cause aforesaid 1. E. 6. B Dower 89. Note by the Justices by the Statute where a man makes his wife joynt purchaser with him after the coverture of any estate of free-hold except it be to him and his wife and their heires in see simple this is barr of Dower if she agree to the joynture post mortem viri otherwise of fee simple for such joynture is not spoken in the Statute Nor a devise of land by the husband to the wife by testament is no barr to Dower for this is a benevolence and not a joynture 6. E. 6. B. Dower 69 Dum non fuit compos mentis Note that if a Judge or Justice be of non sane memory yet the Fines Judgements other records which are before him shal be good But otherwise of the gift of an office or the like by him for this is matter in fact and the others are matters of record for matters in fact may be avoided by non sane memory otherwise of matter of record 1. M. 1. B. Dum non fuit compos mentis 7. Ejectione Custod T Was said that a man shall have a Writ de Ejectione custodie of a rent and this before seisin of it for seisin in Law shall be thereof adjudged by reason that he cannot receive it before the rent day Yet otherwise of land for there he may enter 23 H 8 B. Quare ejecit infra terminum 5. Enquest Note betwixt the King and the Bishop of Rochester for Treason the Bishop shall not have Knights in his Jury where Knights ought to be returned when a Peer of the Realm as a Bishop and the like is party yet quaere if it were challenged 27. H. 8. B. Enquest 100. T was holden in the common Bench by the Prothonatories if a protection be cast at the day of Nisi prius and the Justices take the Jury de bene esse and at the day in bank the protection is allowed now though the first â—aking is void yet the Inquest shall not be recharged by resummons for when the Inquest is once sworn and give verdict they shall never be sworn again upon this issue 2. M. 1. B. Enquest 86. Entre congeable lawfull Entry Tenant for term of life aliens to B. to have to him and his heires for term of life of Tenant for term of life this is no forfeiture for all is but the limitation of the estate B. Forfeiture of lands 87. And if Tenant for terme of life suffers a recovery he in reversion cannot enter but is put to his Writ of Entrie ad terminum qui preteriit or Writ of Right and shall falsifie the recovery in it if he hath cause And if he will have it sure the Tenant for life ought to pray in aid of him in reversion and if he joynes in aid and both vouch over then well upon recovery had c. as betwixt Corbet and Clifford in the Countie of Buck ' this year But if Tenant for life be impleaded and prayes in aid of a stranger he in Reversion may enter for this is a forfeiture But if he doth not enter till the other hath recovered then he cannot enter but is put to his writ of Entrie ad terminum qui preteriit vel ingres ad communem legem and shall falsifie the recovery there 24. H. 8. B. Entrecongeable 115. Fauxifier 44. Forfeiture of Lands 87. the end Cestuy que use in tail suffers a recovery against him upon a faint title before the Statute of Uses and dies the Feoffees cannot falsifie it in an assise by way of entry but shall have a writ of entry ad terminum qui preteriit or a writ of right and shall falsifie it by this action B. Entre congeable 123. Fauxifier 49. And if he Leuies a fine with proclamation and dies if a stranger of his own head enters in name of the Feoffees or to their use within the 5 years this shall avoid the â—ine though the Feoffees did not command him for by this the freehold is in them till they disagree or till another enters 31. H 8. B. Entre congeable 123. the end T was doubted if a recovery had against cestuy que use in tail shall binde the heire in tail But by Hales Just. by such recovery the entry of the Feoffees seised to the use of the estate taile is taken away but after the death cestuy que use who suffered the recovery the Feoffees may have a writ of right or writ of entrie ad terminum qui preteriit in the post or the like And by some there is no use in tail but t is a fee simple conditional at the common Law as t was of a tail before the Statute of W. 2. And this Statute makes not mention but of gifts in tail which is tails in possession And therfore quaere if the tail in use cannot be taken by the equity of it yet t was doubted if the issues and the Feoffees shall be bound after the death of cestuy que use who suffered the recovery by reason of those words in the
the first Patent is not material Time H. 8. B. Patents 96. By Mervin Justice a Constat is pleadable contrary of an Inspeximus for in the one case the Patent remains and in the other t is lost And by B. in the Book of entries a Constat was pleaded and aid granted of the King upon it 1. E. 6. B. Patents 97. the end Peace A man is bound to the peace and procures another to break the peace this is a forfeiture of his Bond as t was said Time H. 8. B. Peace 20. Peremptorie A man recovers debt or damages and after brings thereof a Scire Fac ' the first return of Nihil against the Defendant is peremptory if he makes default 24. H. 8. B. Peremptorie 63. Where a man brings an Action real or mixt or makes an avowry or conusans and issue is taken upon the seisin infra tempus statuti and t is found against the demandant Plaintiff or avowant this is peremptory by the same Statute 1. M. 1. B. Peremptorie 78. Petition T is held for Law if the King be Intitled by double matter of Record as t is enacted by Parliament that I. S. shal be attainted of Treason or Felony and shall forfeit all his Lands and also an Office is found thereof there the party who hath right cannot traverse but is put to petition And the same Law if the King grant it over after the double matter of Record found 33. H. 8. B. Petition 35 Trovers de office 51. Note That Petition was at Common Law but Traverse is by Statute Lecture B. Petition 41. Travers de office 54. See Tit. Travers de Office Pledges A man gages his goods in pledge for 40 l. borrowed and after the Debtor is convicted in 100 l. in debt to another these goods shall not be taken in Execution till the 40 l. be paid for the Creditor hath an interest in them and also goods taken for Distress cannot be taken in Execution 34. H. 8. B. pledges 28. Pleadings Note that it is said for Law That he which pleads a Recovery by default ought to aver his Title of his Writ And also that the Defendant in the Recovery was Tenant of the Free-hold die brevis but if the recovery were by action tried he needs not to take the one averment or the other Yet t was said that in a quod ei deforce at he that pleads the recovery by defalt need not aver the party tenant of the Freehold tempore brevis sui for t is proved that he was Tenant tempore c. by the use of the Quod ei deforceat for this is the effect of this action because that the Demandant in this action lost by default in the first action yet he shall aver the Title of his Writ And he which pleads a Recovery in a Writ of Waste by default needs not to aver the party Tenant for Non Tenure in this action is no Plea 24. H. 8. B. Pleadings 6. He which pleads an entry for to defeat a Collateral Warranty ought to aver that he entred in the life of the Ancestor And in Dower if the Tenant pleads a disseism by the husband and the wife pleads a Feoffment by I. N. to the husband who after infeoffed the Tenant and after disseised him she shal say that the Feoffment of I. and the seisin of the husband were during the coverture and he which derives an interest by Lease from Tenant for life or in Tail ought to aver the life of the Tenant for life or in Tail 26. H. 8. B. pleadings 147. Where a man ought to aver that the one and the other are one and not divers See Tit. Averments Where a stranger to a Deed may plead it where not See Tit. Estranger Note for Law That t is good pleading to say that I. N. and W. N. were seised in Dominico pro ut de Feodo ad usum T. P. and his Heirs without shewing the Commencement of the useâ— as to say that A. was seised in Fee and infeoffed I. N. and W N. ad usum T. P. c. But a man cannot plead that A. B. was seised in Tail without shewing the gift for the one is a particular estate and not the other 36 H. 8. B. Bleadings 160. Plenartie Note when there is no Patron aâ— where the Patron is a Priest and is admitted to this Benifice himselfe Oâ— where my Advowson is aliened in Mortmain and appropriated to 〈◊〉 House of Religion and the like in these cases I. may have a Quare impedit and there Plenarty by six Month is no plea 6. H. 8. B. Plenartie 10. Premunire Premunire by Bil in the Kings bench See Tit. Bill A Prohibition lies often where a Premunire lies not as of great Trees vel pro decimis de ceptima parte prohibition lies and not a Premunire for the nature of the action belongs to the Spiritual Court but not the cause in this form But where t is of a lay thing which never appertained to the Spiritual Court of this a Premunire â—ies as of Debt against Executors upon a simple contract or pro lesione fidei upon a promise to pay 10 l. by such a day 24. H. 8. B. Premunire 16. Where a man attainted in a Premuâ—ire shall forfeit his Lands in Fee imperpetuum See Tit. Forfeiture de â—erre c. Prerogative A man hath land in use of which part is holden of A. by prioritie and the rest of the King by Posterity in Knights service and dies the King shal have the ward of the body by his prorogative and by the Statute of 4. H. 7 which gives the ward of Cestuy que usâ— where no will is declared and per preâ—rogativam regis Yet otherwise t is saiâ— of land in use holden of a common perâ—son for the Tenant in use dyed noâ— seised and therefore out of the case oâ— Prerogative for the Land 21. H. 8. B Prerogative 29. Note by Whorewood the Kings Attorney and others where an information is in the Exchequer upon a penaâ— Statute and the Defendant makes bar and traverses the Plea that thâ— King is bound to stand to the first traâ—verse which tenders an issue and canâ—not waive such issue tendered and traverse the former matter of the Plea 〈◊〉 he may upon a traverse of an office anâ— the like where the King is sole party and intitled by matter of Record foâ— upon the information there is no officâ— found before and also a subject is paâ—â—ty with the King for to recover thâ— moytie or the like 34 H. 8. B. Preroâ—gative 116. Shelley Just. was precise that a giâ—â— of the King is good of Chattels moveaâ—bles without writing as of a horseâ— â—nd the like 35 H. 8. B. Praerogat 60. â—nd 71. the ends Note by some the King shall not â—ave a Precipe quod redd as a Writ of Escheat but his Title shall be found
barre the demandant by which the demandant recovers and the tenant over in value that this land recovered in value shall not go to me in reversion after the death of the tenant for life nor the reversion of the land recovered in value shall not be in me in the life of tenant for life and so 't is holden at this day 25. H. 8. B. Recovery in value 33. Note by some where a writ of entry in the Post is brought against a husband and wife where the wifis tenant in taile and they vouch overe and so the demandant recovers against the husband and wife and they over in value if the wife tenant in taile dyes and the husband survives this shall not bind the issue in taile for the recompence shall go to the survivor and then it shall not bind the issue in taile Yet B. seems that this opinion is not law for the recompence shall go as the first land which was recovered should go And voucher by husband and wife shall be intended for the interest of the wife 25. H. 8. B. Recovery in value 27. the end Tenant for life the remainder over or tenant in taile the remainder over is impleaded by a writ of entry in the Post and he vouches a stranger the demandant recovers against the tenant and the tenant over in value this shall bind him in remainder by Monntague Just. and others for the recompence shall go to him in remainder But yet in the case of the Lord Zouch and Stowell in the Chancery the law was determined otherwise by all the Justices B. seems the reason because that when he vouches a stranger the recompence shall not go to him in remainder contrary if he vouches the donor or his heir who is privy But after this day many put inâ—ure to bind the remainder 27. H. 8. B. Recovery in value 28. Recovery against Feoffees seised to use in tailes See Tit Feoffements to uses 'T is held that where tenant for life is the remainder over in tail or for life and the tenant for life is impleaded and vouches him in remainder who vouches over one who hath title of Formedon and so the recovery passes by voucher there the issue of him who hath title of Formedon may bring his Formedon and recover against the tenant for life for the recompence supposed shall not go to the tenant for life and therefore he may recover for his ancestor warranted but the remainder and not the estate for terme of life and therefore the tenant for life cannot bind him by the recovery for he did not warrant to him And therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder and they to joyn and vouch him who hath title of Formedon and so to passe the recovery for there the recompence shall go to both 30. H. 8. B. Recovery in value 30. 'T was agreed that if tenant in taile the reversion to the King suffers a recovery this shall bind him and his issue but not the King by the common law See now the Statute of thereof that it shall not bind the issue 33. H. 8. B. Recovery in value 31. Taile 41. the end Relation Where an office found for the King shall relate where not See Tit. Intrusion Of the Relation of an Act of Parliament See Tit. Parliament Note that the attainder of Treason by Act of Parliament shall not have elder relation then to the first day of the Parliament except it be by speciall words that he shall forfeit his lands that he had such a day and after 35. H. 8. B. Relation 43. 'T is held for good Law that by attainder of felony by verdict a man shall forfeit all his lands that he had the day of his felony done or ever after for this shall have relation to the Act contra upon an attainder by out lawry For B. seems there that he shall not forfeit but those which he had the time of the outlawry pronounced or after for outlawry hath not relation as a verdict hath Time H. 8. B. Relation 42. the end Relation of an Inrolment See Tit. Faitz inrol Releases Husband and wife purchase in fee and after they lease for years by Indenture and after the husband releases to the lessee and his heirs this is no discontinuance and yet this gives a freehold to the lessee during the life of the husband Per plures without doubt 29. H. 8. B. Releases 81. G. Chancery was possessed of an Indenture and lost it and I. S. found it to whom the said G. C. released all actions and demands and after the said I. S. gave the same Indentrue to John Tison and after the said G. C. brought in action of detinue against the said I. T. who pleaded that the said I. S. found the Indenture and that the said G. C. released to the said I. S. all actions and demandes and after the said I. S. gave the said Indenture to the said I. T. Judgment if action And t' was agreed in the common Bench the case being of land demanded ibidem that this is a good barre and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land and of the property of the chattell which he had before And it was moved in the Kings bench and they were of the same opinion and said that the reason is because that entry in land and seisure of goods are demandes in Law 34. H. 8. B. Releases 90. Relief See Tit. Debt Remainder See Tit. Discent Remitter No Remitter against an Act of Parliament See Tit. Parliament Note a Per curiam if Tenant in Taile makes a Feoffement to his use in Fee before the statute of uses made 27. H. 8. and dyes before the said Statâ—te his heir within age and after the Statute is made before the full age of the heir by which the heir is in possession by the Statute he shall not be remitted by it Contrary of a discent after the Satute for this shall be a remitter 34. H. 8. B. Remitter 49 If a man hath a Tittle of entry and not a right of entry as by escheat mortâ—maine assent by a woman to a ravishoâ—â— and the like and takes an estate of thâ— terretenant he shall not be remited for he hath but a Tittle And a maâ— cannot be remitted but in respect oâ— a right before as where a man is diâ—seised and takes an estate of the disseisor he is remitted for he had a right of entry before And the same Law where a man decaies his Tenements or converts Land from tillage into pasture against the Statute and makes an estate for life to his Lord he shall have no other estate for he had but a Title of entry and not a right of entry Quaere for Non adjudicatur 34. H. 8. B.