Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	case_n	heir_n	tail_n	2,529	5	9.7722	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A78485	Certaine proposals of divers attorneys of the Court of Common-Pleas, for the regulating the proceedings at law, and remedying some inconveniences: whereby the clyent will be much secured, the processe shortned, the greatest part of the charge of most suits abated, many unnecessary suits in law and equity prevented, and the creditor and purchaser well provided for: and thereby lending, trade and commerce advanced: which is the end and desire of the proposers. / Presented to the honourable committee for the regulating proceedings in law Decemb. 5. 1650.		1651 (1651)	Wing C1728; Thomason E622_7; ESTC R206432	18,583	22

They humbly conceive it fit There is by reason the Civil Law hath no compulsary Processe no remedy but in Chancery for Legacies where if the Legacy be smal it is quickly spent with a great overplus that some legal course were provided for the recovery of Legacies and that the Clyent should not be forced to an equitable course in Chancery for every petit Legacy the remedy whereby often proves worse then the disease They therefore humbly propose that an Action of debt Trover detinue or other action as the case requires may lye at common Law for the same and that therein the thing demanded upon due proof made upon the tryal may be recovered with costs and dammages and like defence and processe may be had therein as in such other Actions are or shal be used at Common Law 13. As the Law now stands the heire may defeat all creditors for if he fear the debts of the Ancestor he may alien the same day his Ancestor dies and leave the creditor no medium to bring his action and though it is true that fraud may be averred yet few frauds are hard to be proved They humbly conceive it very hard to the creditor that the bare alienation of an heir should defeat him of a just debt the same being often done meerely in fraud when perhaps the creditors money purchased the Land discending and therefore they humbly propose that an Action of debt may lye against the heire in all cases as wel after as before alienation and that his Person Goods and Land may be subject to the execution for the debt of his Auncesters upon specialty to the value of the Land discending in Fee simple or Fee tayle and that such action and this proposall may if the Parliament shall conconceive meet be extended to the heires of Copy-holders as wel as Freeholders 14. Many persons run into debt to buy Land gaine liberty in prison and there live upon other mens Estates and laugh them to scorne which this it is hoped may provide against They humbly propose that in case any debtor shal continue in prison upon any execution or Processe of Law for due debt above a year or continue outlawed after judgement above a year after notice thereof that then at the prayer of the Plaintiffe a Writ in the nature of a fierifacias may issue out of the Court from whence the Processe issued whereupon he continued so in prison directed to the Sheriffe whereby the said Sheriffe shal be impowred to levy the said debt and costs by the sale of the Lands Goods Tenements and other estate which such debtor shal have in possession use or trust in the hands of another and satisfie the creditor therewith so far as the same wil extend and then the prisoner thereupon to bee discharged And whereas the Creditor is often defrauded of his just debt by the frauds and coven of Executors and Administrators For remedy thereof they humbly propose that in all cases where Executors or Administrators shall suffer Judgement by Nihil dicit nonsum informatus or confession that Assets shall be presumed and execution issue immediately against their Persons and estates and that upon all Tryalls of plene administravit the defendant shall exhibite a true Inventory and the Judge before whom such Tryall shall be had may be authorized to examine such defend or defendants upon oath to the truth of the same or other wise Assets to be presumed provided that in case the party defendant shall happen to besick or have necessary occasion to be absent at the time of the said Tryall that then if the defendant or defendants shall come be-before fore any Judge of the same Court where such cause shall be depending before the said Tryall At this day if an executor give Judgment by default the plaintiffe must either procure the Sherriffe to returne a devastavit which will not be had but by bribes and security or else he must proceede by way of inquiry which is a very questionable way and as seemes very dangerous for defendants for if an Inquest of office finde assetts the defendant hath legally no remedy though in strict Law he hath no way to avoyd it having no day in Court after judgement nor attaint against the Jury and now because the Civil Law hath no compulsatory processe it is hard to charge Executors or Administrators with an Inventory and those that are then delivered in are carelesly received and the oath for the truth thereof too often not duly administred and exhibite an Jnventory and be examined to the truth therof upon oath or shall come before any two Justices of the Peace of the County where such cause shall be tryed giving the plantiffe or his Attorney notice therof and shall there exhibite an Inventory and be examined upon oath to such reasonable questions as the plaintiffe or his Attorney or such Justice on his behalf in his absence shall propound concerning the truth thereof that then such Inventory shall be as effectuall as if the same had beene exhibited in forme aforesaid upon Tryall of the said cause and that the Judges and Justices aforesaid may be impowred to administer and examine upon oath as aforesaid 15. They humbly propose The present inconvenience concerning Tythes is very great the Civil Law not having power to proceed and the Common Law onely for predial Tythes wherein though treble dammage be given yet because there is no costs they are not worth suing for unlesse of some considerable value and Justices of Peace few of them being Lawyers cannot wel judge therein that in case the Parliament shal thinke fit to continue payment of Tythes that then an Action of debt detinue or trespasse may lie generally at Common Law for the same as wel before setting forth as after wherein dammage and costs may be recovered as in other like Actions at Common law 16. They humbly propose that for the avoyding of unnecessary and frivolous suits at Law that it may be enacted that if any Attorney or Sollicitor shal deposite in the defence or prosecution of his Clyents cause any other or larger summe or summes then so much as the charge thereof shall surmount unto in Easter Terme Trinity Terme and the short Vacation or in one other Terme and Vacation that then such Attorney or Sollicitor shall be without all remedy to recover the same against the Clyent at Law 17. And for the further avoyding of the frivolous suits at Law In Replevin at Common-law tender of amends before impounding in all cases was a good barre and by the Statute 21. Jac. in trespasse for involuntary trespasses tender of amends is made a good plea being done before Action brought but because many times impoundings and actions are made and brought perhaps before the Defendant hath any knowledge of the trespasse this proposall is presented But for voluntary trespasses it is conceived fit to leave them at the Common Law to prevent

greater inconveniencies they humbly propose that tender of sufficient amends with costs for all involuntary Trespasses may be a good barre in all Replevins and Actions of Trespasse brought for the same so that the same be done before the Rules be out for pleading in such Action 18. And for the reliefe of distressed Widdows that have no Joyntures By the Common Law the Widdow cannot intermedle with the Inheritance of her husband till her dower assigned or recovered by Action and the processe is so delatory therein as that she may perhaps be two or three yeeres before she shall have her Dower assigned by Law besides the great charge and twenty accidents may abate the suit to set her how to begin and lose her costs as death of Tenants marriage entry upon any part of the Lands c. they humbly propose that it may be lawful for them to hold and enjoy all the Lands whereof the husband died seized of any estate in Fee-simple or Fee taile in Demesne in common with the heire until such time as the heire shal assigne her or them Dower to the value of a ful third part thereof in severalty and that of all Rent and other Inheritance and services whatsoever whereof she is Dowable and the husband dies seized she may take and seize or have and maintaine all Action of Debt or distreine and avow for a third part thereof until such assignment And that this proposall may extend to Coppyhold Lands where the wife is Dowable as wel as Freehold 19. And for the avoyding many unnecessary At Common Law solvit ad diem or nil debet is no plea to a simple obligation or Bil because the same is not of so high a nature so that if the Plantiffe were knavish in all the cases in this proposition he might force the Defendant into Chancery where both Plaintiffe and Defendant spend on the Defendants part prolix and costly suits in Equity they humbly propose that to all Bils Bonds and other specialties for payment of money or delivery of goods or ware which are payd or delivered and accepted by the Plaintiffe though not at the time and place nil debet per primam may be a good plea for the Defendant And that in all other cases the Defendant may plead or alledge quae prist à payer and tender in Court the principall debt or other duty with Interest and charges or if part onely be paid or delivered and accepted the Defendant may be admitted to alledge the same and alledge prist à payer or deliver for the residue and tender in Court the residue of the debt or other duty with interest and costs and that in both cases the Plaintiffe shal accept thereof or be clearly barred of his Action in case he shal take issue thereupon and it be found against him and that like pleading and tender may be allowed and received upon Mortgages within seven yeeres or some other certaine time or number of yeers after forfeitures and that after such time elapsed no Mortgage may be redeemable either at Law or in Equity 20. And further they humbly propose that to take away occupacy estates for life may be deviseable By the Law at this day if a man that holds for another mans life happen to die and have not assigned over his Estate he that next happens possession though a stranger in strict Law goes away with the state wherein though the Law directs the state upon very just ground viz. that in equali jure melior est conditio possidentis yet because many inconveniences happen hereby this Proposall is submitted to judgement and in fault thereof discendable to the heire and make the heire subject and lyable to the debt of his Ancestor to the value thereof 21. And lastly where as the Parliament hath lately enacted that the Defendant may in all eases plead the generall Issue For if the Defendant being an Executor shall plead non est factum to a Bond which is conceived to be the generall Irsue the plaintiffe shal be put to prove the Bond sealed and delivered that the Defendant administred and hath assets and then the Defendant may prove payment or that the Bond was made per dures c. and many other cases are brought within the same mischiefe and give the speciall matter in evidence which they humbly conceive may be of great benefit and ease to the Defendant yet it may be of infinite inconvenience to the Plaintiffe who thereby wil be necessitated to very great charge in bringing to the trials of such Issues many witnesses that otherwise might have been spared besides the many dangers that wil inevitably fall upon the Plaintiffs to the losse or hazzard of their causes For the preventing of which mischiefe it is humbly proposed that by way of supplement to that Act it may be provided that in all cases where the Defendant shal plead the general Issue and intends upon the trial to relie upon any speciall matter the Defendant or his Attorney pleading such plea shal upon the tender of the said plea or at least fourteen daies before the trial of such Issue give a note in writing under one of their hands to the Plaintiffe or his Attorney of the contents of such special matter whereupon the Defendant wil relie at the trial of the said cause and to be concluded to give in evidence any other special matter whatsoever and that the Defendant may not upon any trial relie upon two special matters of justification and that that act may not extend to Replevins nor that the Plaintiffes put to prove any thing in relation to the maintenance of his Action that such speciall matter had admitted if duely pleaded FINIS

assigned in the Count And that for the future there may be no more recitall of the Originall Writ other then in the forme ensuing that is to say A. B. attach fuit ad respondend C. D. de placito tr or de placito tr super casum or the like as is observed in the Upper Bench and the Originals in all personal actions to be made accordingly without repetition of the speciall matter 6. They humbly conceive Many Judgements are daily reversed for want of Originals which sometimes happens because the Attorney rather then he wil pay a post Terminum or more which is twenty pence a Terme he wil hazzard his Clyents cause which Fee was originally intended as a punishment upon the Attorney for his neglect but it turnes too oft to the destruction of the Clyent and therefore the Proposers have proposed the punishment to returne to the Clyents reliefe and not destruction Other times this mischiefe happens because an Attorney pethaps may forget in due time to sue out the Originall and after when he sees the default he would amend it but the Creditors holding a course for their own benefit that no Originall Writ can be sued forth returnable of a former Terme but within the first weeke of the ensuing Terme the Attorney is therefore restrained to doe his duty to his Clyent that by reason Originall Writs are not duely sued forth and filed many judgements are daily reversed and in the time to come are subject to the like inconvenience by the carelesnesse neglect or forgetfulnesse of the Attorney or Clark or to save post Terminunis which turnes much to the prejudice of the Clyent And therefore they humbly propose that from henceforth there may be no restraint but that the Plaintiffe may at any time before the want thereof assigned for Error sue forth and fyle any Originall Writ or other Writ to make good or warrant any judgement And that for the fyling of originall Writs no post Terminum be demanded or payd and that then if any Judgement happen to be reversed for default of Original Writ the Clark or Attorney in whose default the same shall be shall and may be fined in such summe to be payd to the party grieved as the Court shall having respect to the quality of the offence think meet and impose They hvmbly conceive also that the not due fyling of Warrants of Attorney The Warrant of Attorney originally seemed of good use but now it is onely fyled by the Attorney and is of no use at all but puts the Clyent to some charges and much hazzard for that the want thereof is sufficient cause to reverse a Judgement and the fyling now of no use which through forgetfulnesse or carelesnesse is often neglected is very dangerous to the Clyent and yet of no benefit or use at all and therefore they humbly submit it to the judgement of the Parliament whether the same be not fit to be discontinued and the penall Statutes for the enjoyning thereof repealed 8. This is the most unreasonable charge upon the Clyent that can be invented which is the tenth part of what dammage soever the Plaintiffe recovers as if the Defendant upon a bargaine promise to give the Plaintiffe a 1000 li. which he recovers in dammage the Prothonotary shall have 100 li. and doth nothing for it nor can justifie the giving of any costs for it was originally as is conceived exacted by the Clergy as a personall Tythe the Clergymen being the Clerkes that Writ to all or the most of the Courts at Westminster They humbly conceive that Dammage Cleare is both a great and unreasonable burden to the Clyent who after a long and tedious suit must have his Debt or other duty Tythed a duty anciently belonging to the Clergy but is now converted to an improper use as they humbly conceive And therefore they humbly propose that the same may be taken away and no more payd or demanded 9. They humbly conceive The ordinary charge of a Fine comes to about three pound besides the fine and post sine which is the fourth part of the yearly value and the ordinary charges of a recovery comes to about 4 l. besides the fiue which comes to a tenth part of the yearely value but if done by attor ney and not in person amounts to much more and these so dangerous too that the carelessenesse or knavery of an Attorney or Officer may leave them at fast and loose and the satisfaction a purchasor can receive by them is nothing at all for that no man but the parties privy can tel of what Lands they be sued forth off when as a deed inrolled may be inrolled in both offices for a ten or twenty shillings charge that shal containe all certainties and subject to no error and though Statutes by reason of the general Office may be found yet purchasors shal never be secured against judgements and recognizances without such course perhaps it may be objected that many that owe moneys and make morgages would be loath that their conditions should be known and that it would be a hinderance to commerce and trade to which it is answered that it is better that such commerce should be lost whereby much honest trade wil be advanced for that men wil freely and frankly trade lend buy c. when they know they cannot be cozened in their assurances but here as in all other cases the proposers leave fines and recoveries being very ancient and authentick conveyance to the Clyent to use or not to use that Fines and Recoveries for cutting off Intailes are both a great charge to the Clyent and very dangerous in point of Error and the same containe not any such certainty of the lands as were necessary to satisfie and secure Purchasors and Creditors and that also Intailes are very dangerous to them and were first obtained and since continued to avoid forfeitures which they humbly conceive is not proper to a well governed Common-wealth and therefore they humbly propose that Tennant in tayle may be impowred to alien as if he had the absolute Feesimple and that as well the Lands of the Tenant in tayle as also the Copyhold Estate of Copyholders may be subject to their debts in whose hands soever they come as other Freehold Lands in Fee simple are and that such Alienation by Tennant in tayle and all other Estates made of any Lands Tenements or other Hereditaments or of any rent or other profit issuing out of the same shall not be valued as against any creditor or purchasor for valuable consideration before the same be inrolled in some inrollment Office to be established in the proper County and transcribed and also inrolled in some generall Office of Inrollments in or about London or Westminster and to be of effect as against such purchasors and creditors onely from the time of the inrollment thereof and that Offices be erected as well for the doing thereof as also for the