Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	estate_n	rent_n	tenant_n	1,388	5	9.6310	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43423	Lent, 1638 the learned reading of John Herne Esq., late of the Honourable Society of Lincolns-Inne, upon the Statute of 23 H. 8 cap. 3 concerning commissions of sewers / translated out of the French manusctipt [sic].	Herne, John, fl. 1644.; Herne, John, fl. 1660.	1659 (1659)	Wing H1572; ESTC R12243	16,099	37

a scire fac die solis not good but the difference does not hold onely between ministeriall and judiciall acts but between judiciall acts and civil cases and cases of necessity for judiciall acts propter necessitat pro bone publico upon that day are good as upon the approach of an enemy the taking up of armes lawful so if fire happen the same reason of water which is an enemy not to be repealed but in this court and the danger as well in one case as in the other equal iminent Mich 16. Iac. the Hundred of Stoke was charged with a robbery Die solis it is common experience that Coronors Die solis sate upon the dead corps which by delay would become noysome 5. The Mill erected during the time of inundation well prostrated for it was an impediment and hindrance of water so that the land for a long time continued surrounded and then it is a nusance to be prostrated And it was lately resolved where the Lord Popham having a Mill which did not grind during the inundation he was advised to re-edifie a new one to grind for such a time the Mil so continued untill the time of Sir Francis and after observing the prejudice and nusance as aforesaid the pulling it down was resolved to be good 6. The tenant disclaimes the avowry yet well taxed for notwithstanding the disclaimer he continues tenant and there is a difference between a disclaimer in reall actions 18. H. 6. 10. and in avowries for in reall actions there being a demand of the tenancy upon a disclaimer it shall be judged to the demandant 16. H. 7. 10 and the plea of the disclaimer in the case of the Abbot is not because Mortmaine which implyes mutation of possession but in an avowry the Frank tenemnt is not altered by the disclaimer but the Lord ought to have his writ of right of disclaimer and by that shal recover the land The Lord after the disclaimer cannot be taxed neither for the land or for the rent for the tenancy continues and yet the rent by the disclaimer is immediately lost and as to this there is a difference between a Cesser and a disclaimer for after Cesser the tenant may tender his rent to save his tenancy but after disclaimer the Lord notwithstanding any tender shall recover the Land That C. is not well taxed within this Law 1. Hee cannot bee charged in respect of the Mill for the damage did not happen by his default neither hath he damage by the inundation Qu●s wherefore he is not taxed for the land on which the Mill stood for then he might onely grind neither hath he profit by the repairation because the mill is pulled downe As to tythes I conceive them not chargeable for notwithstanding the generall words of status cujusque status c. yet without particular words of Ecclesiastical livings they shall not be charged onere seculari as they are excepted from toll Otherwise of Glebe land for that is not so sacred but comes through temporal hands And as to the cases of contribution for finding of armes relieveing of the poor N. B. 228. is in respect of particular cases concerning it so of subsidies in respect of their particular grants so of wayes so that without a special statute tythes shall not be contributory to temporal charges otherwise as to Ecclesiastical but if they shal be contributory to shipmoney Querie For there was instructions taken with the writ that the taxe upon Clergie men should not be any prejudice as to their legall exemption from temporall charges Also tythes are lyable to a temporall charge or taxe after that they come into temporall hands but here they continue spiritual wherefore not well taxed Also the arable land doth not appear to be surrounded and then neither damage or profit 8. The Levellers chargable notwithstanding particular tenure yet I agree the tenure to be good 11. H. 7. 12. 1. Rep. Porters case But here it appears the tenant to be unable for he hath but an acre where all the wall is broken also the Diruption is per impetum maris The Second Day How a tax shall be assest by this Law A Man shall not be taxed according to his ability by no Law or Statute but the 27. Eliz. Cap. 13. where by the express words upon a robbery done those of the Hundred shall be taxed according to their abilities 12 Iac. B. R the parishoners of Tuttenham assesse a Merchant of London a parishoner there for the repairing the Church and the tax was according to his abilities and notwithstanding they pretended custome yet the Kings Bench awarded a prohibition because the customes was against law for if so then perchance one or two should onely be burthened where the benefit would be in common against this reason Quod omnes tangit ab omnibus supportari debet shall be expounded according to the quality as in the statute of Quia reputores c. for the rate ought not to be Arithmeticall but Geometricall And note the intention of the Statute is not magna or parva but media He cannot be double charged as a Copy-holder can nor be taxed for his Copy-hold 11. H 4 35. and the Lord for his Frank-tenement and if there be a distress upon the Lord trespass lies against the Officer non obstante the colour of this Commission Lord and Commoners may be both charged for they have severall profits the tenant may be taxed for the land and the Lord for the rent so the Grantee of a rent charge or a Rent seck but the commissioners are not bound to examin the particular estates or incumbranees but they may taxe the land severally and upon complaint of the tenant he shall be received by equitie and the taxe shall be devided for otherwise the tenant might be charged above the value of the profits of the land by him received Differences of repair They are annual and accidental ordinary and extraordinary A Reversioner having a rent shall be taxed for the rent as well to ordinary as extraordinary repairs and if he have no rent yet he shall contribute to extraordinary but if it be a remainder or a reversion upon a lease for years onely there shall be a contribution to ordinary repairs The Case After Survey and presentment made that the port of A. was greivously in decay and not repairable but upon unusuall charge and that B. for cause of frontage and C. for cause of a passage and the Village of A by custom have used joyntly to repair it and that D. a Merchant of London tradeing there had promised to one of the commissioners that if they duely executed their commission he would stand charged to pay 100. pounds towards the repair The commissioners thereupon tax B. and C. and the Village of A. and four other Villages in the High-lands adjoyning severally to repair the part and D. the 100. pounds and make warrants to

traversable because it is the act of the court and it is done as Judge and not by special authority as commissioners of bankrupts And if a Justice of peace survey the force and makes a record of it that is not traversable because 't is done as Judge of it Prescription for non reparando is good for the words of the ancient commission are Cujuscunque status condition c. so the words of the statute Every man which shall reap benefit although a prescription pro modo is good and according to the special matter his prescription may be good as if B. had pleaded that his land had lain between the sea and the sea-bank prescribes for discharge of his land there the prescription is good Otherwise of a prescription generally Joynt-tenancy is not a good plea for repairation being a publike work and of necessity it shall not be pleaded but all the land shall be charged in gross 9 Rep. Conyers case 4 Infancy no good plea for the manner because it is after the Decree which is the final judgement and he is put to his bill of review before the commissioners 44 E. 3. 22 5 That the issue shall be bound as aforesaid A rent granted by tenant in tail for release of him who had the right this shall bind the heir because 't is for his benefit And in our statute there is the word Heir which would be void unless it included the Estates tail Also this plea is void for the manner Rationa predict of Infancy The Fifth Day VVas upon the power of the Commissionsioners to determine and what Lands and for what causes they may be sold what persons liable to be charged LAnds to be charged within the decree ought to be within the bounds of the Commissioners but there is a difference between locality for a decree for a distress for the distress may be in any part of the Realm Non compos mentis Infants c are bound by this statute so of a Parson Prebend c. and other corporations but as to their successors the corporation within the statute of 13 Eliz. is out of this statute for they cannot by any act to be done or suffered prejudice their successors The Case A. seised of lands left by the sea B. and C. tenants in common of other lands and D. copy-holder of another acre A. is assest 2 d. B. C. 20 s. for their acre and D. to 20 s. for his acre A. B. and D refuse payment and the commissioners decree the sale of the acre of A and the moyety of the acre of C and D The POINTS The Decree for none of these sales is good Lands left by the sea is not within this commission for there is a difference between lands gain'd from the sea and land left by the sea for the lands absolutely gained may be more beneficial and it is within the level but this land left is between the sea and the sea-banks so that there can be no benefit by the repairation 2 The sale of the copyhold land is not good for then the copy hold estate should be altered without the privity of the Lord Otherwise of a tax 3 Tenants in common being taxed and refuse the sale of the moyety is not good for the tax is joint and shall not double as upon a grant of a rent and then the tax being intire and no partition of the Estate a division by sale of the moyety is not good and warrantable for a tenant in common cannot prejudice his companion as to his land and upon every sale Commissioners ought to take notice of Estates Otherwise upon a tax The sixth day nothing was done but repetition of the former days exercise FINIS

will was made before the time of E.M. and then they ought not to prostrate it but if they can make a record that is not traversable for it is made by them as Judges for commissioners of Sewers are a court of Oyer and Terminer 14 H. 8. 7 H. 4. and what a man does as Judge that is not traversable for it is presumed to be just If Justices of Peace view the high-wayes i Mar. Dyer Vernous case 19 Ass 6. 1 H. 4. and make entries of it it is equivalent to a presentment and there no traverse So of surveys of the commissioners who are made Judges But a presentment of a Jury without question is traversable The commission of Sewers is part of the general power of the general commission of Oyer and Terminer Rep. 2. Marquess Winchest case but the question is If the prescription of a non reperando be good it is void at common Law for it is against reason but as before Quod omnes tangit ab omnibus deb●t supportari a Clergy man may prescribe in non decimando but a Layman cannot because he was not capable of taking of tythes and of a clergy man it was reason because it might be that he was discharged anciently by contract but in our case the King has interest and therefore it belongs to him to discharge prescription is not good against him but if it were good at common law yet this statute takes it away because the words are general Rinney Marsh Cha. fol. 13. 39. Every man rich or poor c. For Wreck there may be a prescription Non obstante the statute of prerogative In London there is a custom and they prescribe That he that serves an apprentiship to one trade may set up any 5 Eliz. 5. Noy said That that statute being general in the negative takes away such customs But the same was over all the realm C. pleads that he and F. ought to join in the repair No good plea For among joynt-tenants every one is charged with the repair of the whole for there is to be no division amongst them for when one possesses all it would be inconvenient and difficult to find all the Joynt-tenants True it is for avoiding of damages joynt-tenancy is a good plea for there he cannot help himself but in our case the commissioners have a court of equity and have power to relieve and make distribution There might have been the Writ De reparation faciend N.B. 234. 235 de onerand pro rata portion so the statute of Marleborough for suit to have the other tenants contribute So upon 27 Eliz. 13. upon Hue and cry contribution 3 Infancy at the time of the Decree no good plea but the sale shall bind the Infant in perpetuum Littleton sayes that in such a case Latches shall not prejudice the Infant Now where the benefit of the Common-wealth is concerned and the words of the statute are general there the infant is to be bound for the Common-wealth is the greater favourite of the Law statute 4 H. 7. of Fines that shall bind Infants for there is no express saving for them So the statute of Limitations 19 H. 8. but there is a difference where the statute charges the possessions of the Infant there he shall be bound but the person of the Infant is more favoured But though they may not during his non-age 7 E. 3. age 88. Plow 359. 459. 21 E. age 54. yet at his full age they shall be charged for the default of his infancy so of the statute of waste but the person of the infant shall be excused As the statute of Westm. 2. enacted that he that pleaded a record and failed of it should be imprisoned yet an infant shall not Now in our case where the statute is made pro bono publico 4 H. 7. 1● Fitz. ass 443. Imprison 17. 14 Ass 18. 21. and the infants person not touched by the Decree neither is there any prejudice to the infant because the commissioners are Judges intrusted by the Law to do equity Also so it is of a Feme Covert so I conceive for the reasons aforesaid that he is bound by this statute 5 The heir of a gift in tale is chargeable upon a Decree against his ancestor but that ought to be supposed upon a complaint to be relieved in equity that it cannot be a plea against the decree is determined The question is grounded upon the statute De donis conditionalibis which sayes that neither Factum nor Feoffament of the Donee shall prejudice his issue Now there are many statutes that do not extend to prejudice these Estates the statute of 16 R. 2. of forfeiture of all lands upon Premunire extends not to taile because the general words of the statute are meerly penal but statutes that are for the publike good if they be general extend to it as 4 H. 7. of Fines 3 Rep. 8. and the Law takes it that a demise of a tenant in tail should bind the issue until the 34 H. 8. and upon the 42 Eliz. of charitable uses a conveyance by Donee shall bind the issue in tail because it is beneficial to him but the 26 H. 8. for forfeiture for treason shall not bind the Estate tail because 't is penal Now our statute being any Estate if it should not reach to estates tail the words would operate nothing and it may be all the Lands chargeable may be in taile at the same time and then there would be no lands chargeable if the statute did not extend to tails and so be sold yet I conceive there be som lands that cannot be sold by this law as of a corporation that makes default their lands shall be sold within this law if it be such a corporation which may perpetually charge their successor otherwise of a corporation that cannot bind themselvs as a Prebend Parson Dean and Chapter and Bishop c. For the statute of 13 Eliz. sayes that no act or conveyance by them to be made or suffered shall bind their successors But the general words of our statute makes the successors chargeable And although the statute de Donis c. protects the issue yet they may be well charged within this law The Reader If A. by survey being found faulty for non-feasance he may traverse it by this law this law hath two surveyors the commissioners themselves who may come and survey 2 Officers as assistants and Jurors If the Jury make a presentment that J. S. ought to repair by reason of his tenure that presentment is void for the jury ought not to enquire of that but if they present that J. S. hath nor repaired as he was charged to do that 's good and in this case to the presentment of the Jury the party may tender his traverse because the Jurors are onely assistants to the Court for occasion but not Judges but the survey of the commissioners themselves shall not be