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
makes a Feoffment before the Statute of execution of Uses to the use of himself for term of his life the remainder to W. in Taile the Remainder to the right Heires of the Feoffor the Feoffor dyes and W. dyes without issue the right Heir of the Feoffor within Age he shall be in Ward for the Fee discended for the use of the Fee-simple was never out of the Feoffor And the same Law where a man gives in Taile the Remainder to the right Heires of the Donor the Fee is not out of him Otherwise where a man makes a Feoffment in Fee upon condition to re-infeoffe him and the Feoffee gives to the Feoffor for life the Remainder over in Taile the Remainder to the right Heirs of the Feoffor for there the Fee and the use of it was out of the Feoffor therefore he hath there a remainder and not a reversion 32. H. 8. B. Garde 93. Where a man holds certain land of the King in Soccage in Capite the King shall not have livery of more then the Soccage land The same where he holds of the King in Knights service and not in Capite the King shall not have more in ward but onely that which is holden of him immediately 32. H. 8. B. Garde 97. Note by all the Justices of England that a Lord in Knights service by nonage of the Heir shall not ouste the grantee of Wreck or de proxima presentatione nor the termors which are in by the father of the Heirs B Grants 85. Garde 66. Lease 31. in finibus So of a Lease for term of life 35. H. 8. B. Garde 61 the end A man dyes seised of lands holden in Knights service his brother and Heir within age the Lords seises the ward the wife of the Tenant privily with childe with a son and after the wife is delivered the brother is out of ward But if the Infant dye the brother yet within age there the brother shall be in ward again And the same Law where a daughter is heire and after a son is born the daughter is out of ward And if the son dies without issue the daughter within age she shall be in ward again so see that one and the same person may be twice in ward by two several ancestors But where the Lord seises the son for ward for land to him descended from his Father and grants the marriage of him to another and after other land holden in Knights service holden of the same Lord descends to the same son from his mother there B. seems that the Lord shall not have the ward again because he had him and granted his marriage before and the body is an intire thing 35. H. 8. B. Garde 119. 'T is granted by all the Justices that the King shal not ouste the termor of his tenant because he hath the heir of his tenant in ward by office found for him nor execution upon a Statute Merchant made against his tenant nor a rent charge granted by his tenant nor a grant de prox presentatione of an Advouson Time H. 8. B. Garde 44. If the son and heire of the Kings tenant or of another Lord be made a Knight in the life of his Father and after the Father dies the heir shall be in ward for otherwise the Ancestor may procure his son within age to be made a Knight by collusion to the intent to defraud the Lord of Ward which shal not be suffered And so it fell out of the Lord Anth. Brown of Surrey who was made Knight in the time of his Father who died the son within age and t was holden he should be in ward notwithstanding he was a Knight wherefore he agreed with the King for his marriage Otherwise B. seemes where hee is in ward and is made Knight in ward this shall put him out of ward and by him the Stat. which is Postquam haeres fuerit in custodiam cum ad aetatem pervenerit S. 21 annorum habeat hereditat suam sine relevio sine Fine Ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradict is intended where he is made Knight within age being in ward after the death of the Ancestor and not where he is made Knight in the life of the Ancestor 2. E. 6. B. Garde 42. 72. 'T was agreed for Law in the Common Bench that if the Lord hath not been seized of homage within time of memory but hath been seised of rent it suffices to have a Writ of Ward and to count that he died in his homage for there is seisin of something though it bee not of the intire services And for this cause and also for that the seizin is not traversable but the Tenure therefore the action lies without Seisin of the Homage 6. E. 6. B. Garde 122. the end T was holden by the Justices of both benches That where a man holds by Rent and Knights Service and the Lord and his ancestors have been alwaies seised of the Rent but not of the homage escuage nor of Ward yet if a Ward fall he shall have the ward of the heir for the seisin of the Rent suffices to be seised of the Tenure as to this purpose Yet otherwise B. seems to make avowry 7. E. 6. B. Avowry 96. the end Garde 69. Where a use vests in the heir as heir of his Father where the Father was dead before Whether the heir shall be in ward or not Quaere See Tit. Feoffments to uses 3. M. 1. Note that t was declared by the Doctors of the Civil Law That where an heir or other is married infra annos nubiles and after disassents at the age of discretion or after before assent to the Marriage that this suffices and the party may marry to another without divorce or witnessing of it before the Ordinary but the Ordinary may punish it per arbitrium judicis but the second espousals is good as wel by the Law of the Kingdom as by the Law of the Church 5. M. 1. B. Garde 124. Ward and marriage is by the Common Law and the Father shall have the Ward of his son or daughter and heir apparent before the King or other Lord and Soccage Tenure by 20 years and Knight service after B. Garde 120. the end If an estate be made to many and the heirs of one of them and he which hath the Fee dies his heir within age he shall be in Ward by the Statute of Wills notwithstanding the others survive which are Tenants by the Common Law Casus B. Garde 100. Garranties Warranties If the husband wife alien land of which she is dowable there to have collateral warranty t is good to have the Warranty of the Wife against her and her heirs and then if she hath issue by the husband and she and the
contra formam collationis And if he aliens sine assensu Decani Capituli then lies the Writ de inâ— gressu sine assensu Capituli 36 H. 8 B. Licenses 21. Lieu Place Place is not material in actions transitory See Tit. Attaint Where a Recognizance is acknowledged in London before a Justice of thâ— Common Bench and certified in bancoâ— and there ingrossed a Scire facias shalâ— be brought there directed to the Sherifâ— of London and not to the Sheriff oâ— Middlesex where the Bench is by all the Prothonotaries of the Common Bench. 4 M. 1. B. Lieu 85. Limitations Note that it seems cleer that the new Limitation and also the ancient Limitation extends to Copie-hold as well as to Free-hold for the Statute is that he shall not make prescription title nor claim c. And those who claim by Copie make prescription title and claim c. And also the plaints are in natura forma Brevis Domini Regis ad communem Legem c. And those Writs which now are brought at Common Law are ruled by the new Limitation and therefore the plaints of Copie-hold shall be of the same nature and form 6 E. 6. B. Limitations 2. Livery Note if the King hath a Ward because of Ward and the first Ward comes to full age and sues Livery the other Ward being within age there the Ward shall not sue Livery but ouster le maine for now the Seigniory of his Land is revived by the Livery so that he holds not of the King as afore but of his immediate Lord. But if the Ward because of Ward had been of full age before the first Ward he should sue Liveryâ— 25 H. 8. B. Livery 47. Where a woman out of Ward by Marriage shall sue Livery at fourteen yeers See Tit. Garde He which holds Land within the County Palatine of Lancaster of the King in Knight service ut de Ducato Lancastr shall sue Livery Contra of him who holds Land which lies out of the County Palatine of the King in Knight-service c. 28 H. 8. B. Livery 55. Note that general Livery cannot be but upon Office found but special Livery may be without Office and without probation of age but there he shall be bound to a rate and sum certain to be paid to the King B. Livery 56. And by B. ibidem 31. this cannot be claimed by the Common Law as general Livery may but is at the will of the King 28 H. 8. If the King purchases a Mannor of which I. S. held in Knight service the tenant shall hold as he held before and he shall not render Livery nor primer seisin for he holds not in Capite but holds ut de manerio And if his heir be in Ward by reason of that he shall have an ouster le maine at full age â—nd 't is said if the King after grant the â—annor to W. N. in fee excepting the â—â—rvices of I. S. now I. S. holds of the King â—sof the person of the King and yet he â—â—all not hold in Capite but shall hold 〈◊〉 he held before for the act of the King â—hall not prejudice the tenant But if the â—ing give Land to me in fee tenend miâ—i heredibus meis of the King c. â—nd expresses no certain services I shall â—old in Capite for 't is of the person of â—â—e King And note that tenure in Caâ—ite is of the person of the King 29 H. â— B. Livery 57. Tenures 61. Extent of livery is the value of the â—and by half a year But if he intrudes â—nd enters without livery he shall pay the â—early value by experience of the Exâ—hequer And where cestuy and use 〈◊〉 attainted of Treason and 't is enacted â—y Parliamen That he shall forfeit his â—and in possession and in use that â—here the King is but a purchaser and â—herefore those who hold of him that was â—ttainted shall not sue livery Quaere â—f it be enacted that he shall forfeit it â—o the King his heirs and successors Eâ—contra if he had been sole seised and â—ad been attainted by the Common Law â—or there the King hath the Land as King and there those who held â— shall sue livery And yet the Statute â— Si quis temerit de nobis de aliqua 〈◊〉 chaeta ut de honore Wallingford Boseâ— c. non faciet aliud servivum quaâ— fecit preantea And therefore this â— intended of a common escheat And aâ— so some Honours are in Capite as paâ— of Peverel and others 29 H. 8. â— Livery 58. The Kings tenant leases for years anâ— dies the heir shall sue livery notwithâ—standing the Lease indures And thâ— same where the Father declares his wiâ— of the Land for yeers and dies 30 H 8. B. Livery 59. If a man holds of the King before thâ— Statute of uses and infeoffs others 〈◊〉 his for term of life the rem ' over in taiâ— the rem ' to his right heirs and dies anâ— after the tenant in tail dies without issueâ— the heir of the Feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir anâ— if he hath it by descent he shall sue livery And the same Law and for the samâ— reason if at this day a man gives in tailâ— the rem ' to his right heirs Otherwise B. 2. seems where a man makes a Feoffment in fee in possession and dismisses â—â—mself of all and retakes for term of 〈◊〉 the rem ' in tail the rem ' to his â—â—ght heirs and dies and after the teâ—ant in tail dies without issue there the â—â—eir who is right heir is a purchaser â—nd if the King seises he shall sue â—ister le main and shall not be comâ—elled to sue livery But if the tenant 〈◊〉 tail had dyed without issue in the life â—f tenant for life and after the tenant â—or life dies there his heir shall sue livery for the fee simple was vested in the tenant â—or life by extinguishment of the mean â—em ' and therefore the fee simple descends And note livery is that the King â—hall have the value of the land by half â— year And ouster le main is a Writ â—o ouste the King of the Land without aâ—y profit given to the King 32 H. 8. B. Livery 61. Where a man holds certain Land of the King in Soccage in Capite the King shall â—ot have liberty of more then the Soccage-Land 32 H. 8. B. Garde 97. He which holds of the King in Knight service and not in Capite shall not sue livery because he holds not in Capite and there when the heir comes to full age he shall have an ouster le main for none can enter upon the King But if he be of full age at the time of the death of his ancestor then he shall render relief to the
primer sesin of the third part by vertue of that clause in the Stat Saving to the King Ward Primer sesin Livery and the like by which it appears that the intent of the act is that the King shall have as much as if the Tenant had made a will and had dyed seized yet by all after that the King is served of his duty of it the gift is good to the Donee against the Heir 2 E 6. B Testament 24. Note that 't was adjudged betwixt Vmpton and Hyde that the explanation of the Statute of Wills is not to take effect only from the time of the explanation but the first Stat which is explaned shall be so taken ab initio So that the Wills of Vmpton Gainesford and others which are excepted in the explanation shall be taken good by the Stat of 32 H 8. of Wills which was explaned 4 M 1. B Testament 26. Testmoignes Witnesses The age of Witnesses in an Aetate probanda is 42 years Lecture B Testmoignes 30. the end Titles Note that a man shall make a good title in an Assize to say that I N was seized in Fee to the use of T P which T P infeoffed the Plaintiff who was seized and disseized c. without shewing what person made the Feoffment to the use of T P or how the use commenced 36 H 8. B Titles 61. Travers of Office 'T is said for Law that none can traverse except he makes title to the same land in the premisses or close of his traverse 22 H 8. B Traverse d' Office 48. 'T was found that I S dyed seized by which W S his son comes and saith that the said I S in his life was seized in Fee and infeoffed A B in Fee to the use of the said I S and his Heirs and dyed and after by the Stat of uses 27 H 8. he was seized in possession without that that I S his father dyed seized pro ut c. and a good traverse And a Termor cannot traverse an Office by the Common-Law except it were found in the Office and then he might have a monstrans de droit and ouster L'main the King 29 H 8. B Travers d' Office 50. Where a man shall have a Petition where traverse See Tit Petition Where the King hath no other title but by false Office there the party who can make title may traverse as well against the King as against the party if the King had granted it over but now this is helpt by Stat 33 H 8. B Travers d' office 51. the end Where a Tenure is found of the King ut de Ducat suo Lancastrie which in truth is false yet this need not to be traversed for the King hath this Duchy as Duke not as King and a man shall not be put to traverse but where the Office is found for the King ut pro rege Angliae for then he hath a prerogative and as Duke none 1 E 6. B Travers d' Office 53. Non-suit or relinquishing of a traverse is peremptory contra of Non-suit in a Petition and the Judgement of traverse is no other sed quod manus domini Regis amoneantur et quod possessio restituatur to him that traversed Lecture B Travorse d' Office 54. Travers by c. What thing shall be traversable what not See Tit Issues joynes Action for making false clothes in Bartholomew-Fair contrary to the Stat The other saith that he made them well and truly at D in the County of F without that that he made them in Bartholomew-Fair in L pro ut c. and a good Plea 35 H 8. B Travers by c. 368. If in Assize the Tenant Pleads that his Father was seized in Fee and dyed by Protestation seized 'T is said that the Plaintiff may make title by a stranger without that that the father of the Tenant was seized in Fee c. 38 H 8. B Travers by c. 26. the end Information in the Chequer the Defendant Pleads a Plea and traverses a materiall point in the information upon which they are at issue there the King cannot waive this issue as he may in other cases where the King alone is party without an Informor ut supra by the Kings Attorney and â—thers learned in the Law 38 H 8. B Travers by c. 369. Tender not traversable in a Writ of â—ntrusion maritagio non satisfac for the single value See Tit Forfeiture of marriage Trespas The Defendant said that I N was seized in Fee and leased to him for twenty one years and gave colour the Plaintiff said that his father was seized and dyed seized c. and â—he entred and was seized untill the Trespas absque hoc quod dictus J N aliquid habuit tempore dimissionis and a bad traverse but he shall say without that that I N was seized in Fee modo forma pro ut c. in Communebanco 4 E 6. B Travers per 372. Assize The Tenant makes a barr by a Stranger and gives colour the Plaintiff makes title by the same person by which the Defendant made his barr s that I S was seized and gave in tayl to his father who infeoffed W N who infeoffed the Tenant upon whom A B entred and infeoffed the grandfather of the Plaintiff whose Heir he is in Fee who dyed seized and the Land discended to the Plaintiff so he was in in his Remitter until by the Defendant disseized And in truth A B never entred nor never infeoffed the Grandfather and yet 't was held cleerly that the Tenant in his barr to the title cannot traverse the Feoffment of A B but ought to traverse the dying seized of the grand-father of the Plaintiff which remitted him for this binds the entry of the Tenant and is the most notable thing in the title 4 E 6. B Travers per 154. Trespas The Defendant said that I was seized and infeoffed him and gave colour The Plaintiff may say that H was seized and leased to I at will who gave to the Defendant and R re-entered and infeoffed the Plaintiff he ought to say without that that I was seized in Fee modo forma pro ut c. Time E 6. B Travers per 217. the end Place not traversable See Tit Attaint Treason A Chaplaine had affixed an ancient seale to a Patent of non-residenee made by himselfe of the part of the King and was imprisoned in the Fleet for it And 't was holden misprision and no Treason by the Justices and he escaped and was not put to death for 't was said That because he did not counterfeit the Kings seale but tooke an ancient seale this is not Treason 37 H 8. B Treason 3. the end 5. Note that in January this yeere H Howard Earle of Surrey sonne and Heir apparent of Thomas Duke of Norfolke was attainted of high Treason for joyning the Armes
ancestors death ib Writ of ward without seisen infra tempus memoriae Tenure traversable 156 No seisen and yet ward 157 Assent and dissent to marriage ib Divorce ib Ordinary ib Warde and marriage 158 Tenure ib Two Joyntenants and the heir of the one in ward living the other ib Garranties Warranties 159 Collateral warranty ib Coverture shall not avoide a collateral warranty upon a discontinuance ib Warranty without heirs 160 Warranty to rebut but not to vouch ib General writ 161 General issue ib Things to be pleaded and not given in evidence ib Command ib Common ib Rent 162 Licence ib Lease for yeers and at will diversity ib Manumission in deed and in Law diversity ib Not escaped pleaded and not arrested given in evidence 163 Grants 164 Office of charge and of profit diversity ib Ousting the officers ib Quere 166 Grant void for incertainty 137 Diversity betwixt grant and devise ib Quere ib Lease for life and four yeers over ib What shall pass by grant of lands and tenements or omnes firmas ib Ejectione Firme bi HARIOTS 138 HAriot custome and service diversity ib Detinue ib Heresie 138 Where a writ de haeret comburend shall issue where not ib Abjuration 139 Diversity ib Homage see Tit-Fealty 139 IDEOT 1â—0 IDeot and unthrift diversiverty ib Imprisonment 140 Incident 140 Court Baron incident to a mannor Pipowders to a Faire ib Grants 141 Recovery of a rent service good titie to homage and fealty ib Indictments 141 Indictment of death and poysoning ib Justice indicted ib Diversity ib Alter trespas in felony ib Intrusion 142 Relation of an office diversity ib Where pardon of Intrusion excuses the issues livery c. where not ib Diversity 143 Joyntenants 143 Where successive holds place where not ib Habendum ib Reentry by two or against two where the one dyes 144 Journeys accompts 144 Judggment 145 Nonage saves default ib Recovery against an infant by default and by action tried diversity ib Where a man shall be restored to his first action and where he shall have error c. ib Recovery of land in one County which lies in another ib VJew 146 Intendement ib Assise in N. and recovery pâ—eaded in H. ib Condition determined by judgement 147 Judgement given with original ib Issues joynes Issues joyned 148 Action upon the case upon an assumpsit ib Special verdict where the issue is upon an absque hoc ib Americiament ib Issue found in part diversity ib Preignancy ib Issue in wast ib Americiament 149 Issues retornes Issues retorned 159 See Tit. intrusion Debate of tithes betwixt lay persons ib Spiritual Court ib Tryal of a thing ultra mare 150 Jurors 150 Jury took a scroule not delivered to them in Court ib LEET 150 PAin in the Leet for redressing anusance forfeited by presentment ib Where the Lord shal have debt upon a pain in a Leet and where distrain for it 151 Leet of the torne of the Sheriff ib Exposition of a Statute Leases 151 Void lease ib Acceptance by the successor of a Parson upon a lease for years for life diversity ib Lease during a lease 152 House ib Averment ib Lease for life by a Parson and lease for years diversity Lease determined for a time and yet good after ib GardJan in Chivalry nor Lord by escheat shal not ouste the Lessee 153 Lease for life and lease for years after ib Convenit ib Concessit ib Dimisit ib Locavit ib Acceptance of rent by the successor of a Parson 154 Parson shal not have a writ of right ib A man leases for twenty years and after leases for fourty years ib Lease of a Bishop ib Dean 155 Parson ib Prebend ib Confirmation ib Habend after such a lease ended where there is no such lease ib Lease of a Prebend Equity ib Lease for yeers before livery sued 156 Relation of office ib Where the wife shall lose her Dower ib Lease till a hundred pound be paid ib Diversity ib Lease by a Bishop not sacred and by a Bishop deprived diversity ib Confirmation 157 Lease till he hath levyed 20. pound ib Where the one Feast is put before another in a Lease ib Ley gager Law wager ibid Law in detinue of an Indent of Lease ib Law lies not in a Qâ—o minus ib Licences ibid Contra formam collationis 158 Lieu place ibid Scire facias upon a recognisance ib Limitations ib Copyhold 159 Livery ib Where ward because of ward shal not sue livery but ouster l' maine Seiginory revived by suing livery ib Where livery shal be of Dutchy land where not 160 General Livery and special diversity ib Mannor purchased by the King shall be in him as in the grantor ib Livery Primer seisin ib Garde 161 Ouster l'main ib Where a man shall hold of the King as of his person and yet not in Capite Et ècontra ib Extent of Livery and of intrusion diversity ib Attainder of Cestui que use by Parliament and of attainder of a sole Tenant by the Common-law diversity ibid Exposition of a Stat. 162 Livery by the heir during a leas or devise for years ib Where a man shall sue Livery where not ib What is Livery what Ouster l' main 163 Livery of Soccage land ib Tenure of the King in Knights Service and in Capite diversity ib Soccage in capite and Knights service in capite diversity 164 What Livery is ib What Primer seisin ib Livery in Wales and County Palatine ib Primer seisin of cestui que use 165 Will not performed ib MAINPRIZE SVrety upon arrest in London ib Priviledge ib Procedendo ib Revivings ib Where surety upon a Bil in Banco regis is discharged where not ib Repleader ib Power of the Justices of the Gaol delivery 166 Maintenance ib Maintenance by him in remainder or reversion ib Sale where he hath not been seised by a year ib Statute expounded Mannor 167 Making of a Mannor ib Court Baron ib Suitors ib Misnosmer misnamer 168 Statute avoided by misnamer ib Monstrans de faits Shewing of Deeds ib Shewing of Deeds and Records ib Mortdauneester ib â—eoffment to two and the heir of the one ib Mortdauncester ib Discent of reversion Dower ib Forfeiture Feoffment Right ib Mortmain ib When a remainder is granted in Mortmain and when a reversion diversity ib Claim ib Remainder waived Vse ib Appropriation without licence is Mortmain ib Lease for 300 or 400 years is Mortmain ib Otherwise of a covenant for so many years ib 99 or 100 is not Mortmain years ib Mortmain ib Deseisin and discent takes not away the entry of the Lord for Mortmain ib NONABILITIE ib Obligation for usury ib Conclusion ib Non suit King nonsuite ib Nonsuit upon demur ib Nontenure a good plea in an attaint for a stranger contra for a privy ib Where non Tenure shall be a good plea in attaint where not ib Entry in attaint after the last continuance ib Nonse name 214 Where a
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
Kings Bench would have amended it 23. H. 8. B. Amendment 85. the end Note That where a Warrant of Attorney varied from the name of the Corporation of the party and a Writ of Error was brought to those of the Common Bench they amended it presently and they said that those of the Kings Bench would have done the like 24. H. 8. B. Amendment 47. Note t was agreed by the Kings learned Councel That the King may amend his Declaration in another Term in omission and the like as where an information misrecites the Statute this may be amended for misrecital is the cause of Demurrer for if it be misrecited then there is no such Statute but he cannot alter the matter and change it utterly yet the same Term he may 4 Eliz Com. 243. by Weston 30. H. 8. B. Amendment 80. Appeal Note by the Justices of both Benches a man shall not have the plea in an appeal That the dead assaulted him and that he killed him in his defence but shall plead not guilty in manner and form and shall give this matter in evidence and the Jurie is bound to take notice of it and if they finde it he shall go acquitted in form aforesaid Nor he shall not have this for plea with a traverse of the murther for the matter of the plea is murther Nor murther cannot be justified and when the matter of the plea is worth nothing there a traverse the like B. Appeal 122. Corone 1. the end And where the Jury acquits the Defendant upon an Indictment before the Coroners they ought to finde that he killed the man and there they may say That the same Defendant killed him se defendendo but upon an Indictment before other Justices it suffices to say not guilty only without more 37. H. 8. B. Appeal 122 The Heir of a man killed shall have an appeal as well of Homicide of his ancestor as of Murther 2. E. 6. B. Appeal 124. Note if a woman who hath Title of an appeal of the death of her husband takes another husband he and the wife shall not have an appeal for the woman ought to have it sole for the cause of an appeal is that she wants her husband and the reason is because the wife wanting a husband is not so well able to live and therefore when shee hath another husband the appeal is determined for the cause ceasing the effect ceases B. Appeal 109. as where a woman hath a Quarentine and she marries within the 40. daies shee loses her Quarentine 1. Mar. 1. B. Appeal 109. Dower 101 Appeal of death may be commenced before the Coroner and Proces awarded to the Exigent but the plea shall not be determined before him Reading 113. B. Appeal 62. the end Corone 82. Apportionment T is said that if I sell my Horse and the Horse of W. N. to A. for ten pound and W. N. retakes his Horse that A. shall render to me the entire ten pound because a Chattel cannot upon a contract be apportioned 30. H. 8. B. apportionment 7. If the Kings Tenant of four acres alien one to the King Or if he hath two Daughters and dies and the one aliens to the King the Rent shall be apportioned if it be severable and this by the Common Law by some Quaere for the reading of Fitzjames is otherwise 32. H. 8. B. apportionment 23. Before the Statute of Quia emptores terrarum if the Lord had purchased parcel of the land holden of him his entire Rent was extinct though t was severable Yet now by the said Statute it shall be apportioned be it purchased by the Lord or by another But this doth not help a Rent Charge because the Statute is onely for the loss of the chief Lord. But of a Rent service upon recovery of parcel or of a discent of parcel and the like which are the acts of God or of the Law there was an apportionment at the Common Law contrary of his proper act as purchase because before the Stat. aforesaid it was of a rent service as t is at this day of a Rent charge which is extinct by purchase of parcel of the Land Reading B. Apportionment 28. Arbitrement Debt upon an Obligation the Defendant pleads the Condition if he shall stand to the award of I. and N. so that the award be made before such a day and saies that the award was not made by the day the Plaintiff may say That they made such an award before the day which the Defendant in such a point and shew in certain in what hath broken for he must shew the breach in some point certain otherwise the action lies not 31. H. 8. B. Arbitrement 42. Assets inter maines Assets in their hands See Tit. Extinguishment Note if Executors plead fully administred in an action of Debt and give in evidence payment of Legacies the Plaintiff may demur upon it for such administration is not allowable in Law before debts paid 33. H. 8. B. Assets inter maines 10. Where a perquisite of a Villain shall be Assets See Tit. Villeinage Assets per discent Assets by discent In an action of Debt against an Heir upon an obligation of his ancestor who pleaded nothing by discent and t was found that Land discended to him but not assets t was adjudged that the Plaintiff should have Execution of all his Lands as well of Land purchased as of Land discended and B. seems the reason to be for his false plea. 3. Mar. 1. B. Assets per discent 5. in the end Assignee A man Leases a house and Land for years and the Lessee Covenants that he and his Assignes will repair the house and after the Lessee grants over his Term and the assignee doth not repair an action of Covenant lies against the assignee for this is a Covenant which runs with the land B. Covenant 32. Deputy 16. and also it lies clearly against the Lessee after that he hath assigned over his Term and B. seems that if he bring several Writs of Covenant against both that there is no remedy till he takes execution against the one and then it seems to him that if he sues against the other he shall have an Audita Querela 25. H. 8. B. Covenant 32. Assise Assise the Tenant pleads not attached by fifteen daies the Bayliff was examined who said that he attached him by the horse of a Farmor which was a Termor to the Tenant of the land in plaint which matter was recorded and B. seems that t is no good attachment for the Tenant cannot forfeit the beasts of his Farmor and an attachment ought to be made of such things which the Tenant may forfeit by Outlary Note between Dudly and Leveson for the Mannor of Parton in the County of Stafford 31. H. 8. B. Assise 480. Note by the Justices in the Common Bench That in an assise against two the one takes the
words and if he have not then de bonis proprijs which words are not in the Record 'T was coÌ„manded by them to mend the Book for 't is contrary to the Record and so mis-reported 23 H 8. B Executors 22. A man makes two Executors and dyes the one Executor makes an Executor and the other survives and dyes intestate the Executor of the Executor shall not meddle for the power of his Testator was determined by his death and by the survivor of the other so that now the Ordinary shall commit the Administration of the goods of the Executor which survived de bonis non Administratis of the first Testator 32 H 8. B Executors 149. A man makes A and B his Executors and wills that B shall not meddle during the life of A and good for he doth not restrain his intire power for he may make one Executor of his goods in C and another Executor of his goods in D and so he may divide the time ut supra 32 H 8. B Executors 155. A man hath a Lease for yeers as Executor B and after purchases the reversion of the Land in fee the Lease is extinct But yet the Lease shall be against the Executor assets by Whorewood and Hales Justices B Extinguishment 54. Leases 63. Surrender 52. And if it shall bee extinct B seems to be a devastavit ad ultim 4 E 6. B Extinguishment 57. the end Exposition The severall exposition of infra terminum 10. annorum infra terminum predict See Tit Conditions Extinguishment If the Abbot and Covent give all their Lands and Possessions to another in fee yet the corporation remains by Fitz Justice 20 H 8. B Extinguishment 35. Lord and Tenant the Tenant is attainted of Treason by Act of Parliament and to forfeit all his Lands and after he is pardoned and restored by another Parliament habend sibi heredibus as if no such attainder nor former Act had been Or if the Heir of him who was attainted be restored by Parliament in such form now the Seigniory which was extinguished is revived and he shall hold of the common person as before and yet once the tenure was extinct by the forfeiture of the Land to the King 31 H 8. B Extinguishment 47. Revivings 8. Tenures 70. Lord and Tenant The Tenant holds by third three Acres of Land the Tenant infeoffs the Lord in fee of one Acre the Seigniory is extinct for the third part and remains for the other two parts but if the Tenant had let to the Lord one Acre for yeers there the Seigniory is suspended in the whole during the term for the Seigniory may be extinct in part but not suspended in part but for the intire 32 H 8. B Extinguishment 48. Where a Condition shall not be apportioned but extinct See Tit Conditions A man hath a Lease for yeers as Executor B. and after purchases the reversion of the Land in fee the Lease is extinct but yet the Lease shall be against the Executor assets by Whorwood and Hales Justices B Extinguishment 54. Leases 63. Surrender 52. And if it shall be extinct B seems to be a devastavit ad ultimum Extinguishment 57 the end But where he hath it as Executor there is a mean Lease in reversion for years and hee purchases the reversion in fee the first Lease remains by reason of the mean remainder B Leases 63. And by Hales If a man Leases to another for ten years and after Leases the same Land to another for twenty years the first Lessâ—e purchases the reversion in fee yet the first Lease is not extinct because that the second Lease which is for twenty years is mean betwixt the first Lease and the Fee-simple which is an impediment of the extinguishment 4 E 6. Extinguishment 57. Where an Action by Entry and Feoffment shall be extinguished See Tit Restor al primer action Faits Deeds NOTE If an Action be sued upon a Deed bearing date at Cane in Normandy 5 Dat apud Cane c. That the Plaintiffe shall count that the Deed was made at Cane in Com Kanc and good for the place is not traversable B Faits 95. the end And also where it truth it was written in Cane 't is suable in England where it beares date at large and at no place certaine But if it bee dat apud Cane in Normandy c. quaere If the Action lyes c. Time H 8. Note That 't was agreed by the Justices that this clause which comes after these words In cujus rei c. Sigillum apposui c. is not any part of the Deede though 't were written before the sealing and delivery 1 M 1. B Faits 72. Faits inroll Deeds inrolled Note that a Deed of Husband and Wife shall not be inrolled in the common Bench except for the Husband only and not for the Wife by reason of coverture Nor she shall not be bound with her Husband in a Statute-Marchant nor the like But if they make a Deed inrolled of Land in London and acknowledge it before the Recorder and an Alderman and the Wife examined this shall binde as a Fine at common-Law by their custome and not only as a Deede and it suffiseth without Livery of Seisin 29 H 8. B Faits inroll 14. 15. A man infeoffs the King by Deede and makes Livery this is worth nothing for the King shall not take but by matter of record But if he inroll the Deed then 't is good to the King without Livery for the King takes not by Livery 29 H 8. B. Faits inroll 16. Feoffments 69. Note by the Justices That where two joyn-Tenants are the one aliens all his Lands and Tenements in D after the Statute of Inrollments and before the Inrollment the other joyn-Tenant dies so that his moitie survives to the Vendor and after the Vendor within the halfe yeere inrolls the Deede yet nothing passes but the Moitie for the Inrollment hath relation to the making and delivery of the Deede so that it shall give nothing but that which was sold by it at the time of delivery of the Deede And by more Justices Where a man sells his Land by Deede Indented to one and after hee sells it by another Indenture to another and the last Deede is first Inrolled and after the first Deed is Inrolled within the halfe yeere there the first Vendee shall have the Land for it hath relation to make it the Deed of the Vendor and to passe the Land ab deliberatione facti for the Statute is That a Free-hold nor use of it shall not passe nor change from one to another by bargain and sale only except it bee by Deed Indented and Inrolled within the halfe yeere Ergo if it bee by Deede Indented and Inrolled within the halfe yeere it shall passe as the use might passe at common Law by sale of the Land which was presently
a Formedon And the best opinion that an Abbot Mayor and Commonalty nor other Corporations shall not bee seised to a use for their capacitie is only to take to their own use And also if the Abbot execute an estate the successor shall have a writ of Entry sine assensu capituli and those that are in the â—ost as by Escheate Mortmain Perâ—uisite of Villeine Recovery Dower by the courtesie and the like are seised to their own use and to another use And also the Stat of 1 R 3. is That all Gifts Feoffments Grants of cestuy que use shall be good against all c. saving to all persons their rights and interests in tayl as if this Stat had not been made and therefore Tenant in tayl shall not bee seized to a use And 't was agreed by the Court That the words in the end of the Stat of 1 R 3. saving such right and interest to the Tenant in tayl c. is taken Tenant in tayl in possession and not Tenant in tayl in use for cestuy que use in tayl hath no right nor interest And also here there is a Tenure betwixt the Donors and the Donees which is a consideration that the Tenant in tayl shall be seized to his own use And the same Law of Tenant for term of yeers and Tenant for life their fealty is due and where a rent is reserved there though a use be expressed to the use of the Donor or Lessor yet this is a consideration that the Donee or Lessee shall have it to his own use And the same Law where a man sells his Land for 20. l. by Indenture and executes an Estate to his own use this is a void limitation of the use for the Law by the consideration of money makes the Land to bee in the Vendee Et opinio fuit That a use was at Common-Law before the Stat of Quia emptores terrarum but uses were not common before the same Stat For upon every Feofment before this Stat there was a Tenure betwixt the Feoffors and the Feoffee which was consideration that the Feoffee shall be seized to his own use but after this Stat the Feoffee shall hold de capitali domino and there is no consideration betwixt the Feoffor and the Feoffee without mony paid or other especiall matter declared for which the Feoffee shall be seized to his own use For where the Stat of Marlebr is that a Feofment by the father Tenant in chivalry made to his son by covin shall not toll the Lords Ward c. In these Cases the Feoffor after such Feofment takes the profits of the Land all his life And the same Law by Shelley of a Feofment made by a Woman to a Man to marry her the Woman takes â—he profits after the esponsalls Quaere â—nde for this is an expresse consideration in it self And by Norwich If a man deliver money to I S to buy land for him and he buyes it for himself to his own use this is to the use of the buyer and to the use of him who delivered the mony and there is no other remedy but an action of deceipt 14 H 8. B Feofments to uses 40. Note if a Feofment be made to the use of W N for term of his life after to the use of I S and his Heirs their cestuy que use in remainer or reversion may sell the remain or reversion in the life of W N but hee cannot make a Feoffment till after his â—eath 25 H 8. B Froffments to uses 44. 'T is holden that if the Feoffees seised to the use of an Estate taile or other use are impleaded and suffer the common recovery against them upon bargaine this shall bind the Feoffees and their Heirs and cestuy que use and his Heirs where the buyer and recoveror hath not conusance of the first use And by Fitz it shall binde though they had notice of the use for the Feoffees have the Feesimple Et per plures if cestuy que use in tailâ— be vouched in a recovery and so the recovery passes it shall bind the taitâ— in use s cestuy que use and his Heirs and otherwise not And this B seem to be by the Stat which excepts tenant in taile which is intended tenant iâ— taile in possession and not cestuy que use in taile for cestuy que use in taiâ—â— is not tenant in taile 29 H 8. B Recovery in value 20. Feoffments to uses 56. Feoffees in use make a lease for yeers rendring rent to another who hath notice of the first use yet the Lease shall be only to the use of the Lessee himselfe And the same Law per plures though no rent be reserved And if a man makes a Feofment and annexes a Schedule to the Deed conteyning the use hee cannot change the use after and so if hee expresses the use in the Deed of Feofment but otherwise where hee declares the use by words of his Will s I will that my Feoffees shall bee seized to such a use there he may change this use because by Will c. And that if a Feofment be made to the use of the Feoffor in tail after he execute an estate to him in â—ee the use of the Estate taile is determined 30 H 8. B Feofments to uses 47. If A Covenants with B That when A shall be Enfeoffed by B of three acres of Land in D that then â—he said A and his Heirs and all others seized of the Land of the said in S shall be thereof seised to the use of the said B and his Heirs there if A makes a Feofment of his Land in S and after B Enfeofs A of the said three acres in D there the Feoffees of A shall bee seised to the use of B notwithstanding they had not notice of the use for the Land is and was â—ound with the use aforesaid to whose hands soever it shall come and 't is not like where a Feoffe in use sells the Land to one who had not notice of the first use for in this first Case the use had not being till the Feofment be made of the three acres and then the use doth commence 30 H 8 B Feoffments to uses 50. 'T was doubted if a Recovery had against cestuy que use in taile shall binde the Heir in taile 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 of cestuy que use who suffered the Recovery the Feoffees may have a writ of right or writ of entry ad terminum qui preteriit in the post or the like And by some there is no use in taile but 't is a fee-simple conditionaâ— at common Law as 't was of the taile before the Stat of W 2. And this Stat makes no mention but of gifts in taile which
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
remitter 50. Where a Devise shall take away a discent and will not remit See Tit Devise Repleder T was in use in the Kings bench though that the Jury be ready to pass there if there be a Jeofail aparent in the Record the Inquest shall be discharged 35. H. 8. B. repleder 54. Rescous See Tit. Distress Reservations If a man Leases his mannor except the wood and underwood by this the soile of the wood is excepted by Baldwine wine Chief Justice of the Common-Bench Fitz. Justice and Knightly and Mart Serjeants contrary Spilman and W. Conigs ' Just. 33. H. 8. B. Reservations 39. Restitution A man is attainted of Treason the King may restore the Heir to the Land by his Patent of Grant but he cannot make the heir to be heir of blood nor to be restored to it without Parliament for this is in prejudice of others 3. E. 6. B. Restitution 37. Restore al primer action Restored to the first action If a man enters where his entry is not lawful as the heir in Tail after discontinuance or the heir of a Woman or the Woman her self after discontinuance the other upon whom he enters recovers against him there they S. the heir in Tail or the woman or her heir is restor'd to their first action of Formedon or Cui in vita Yet if such who enters where his entry is not lawfull makes a Feoffment and the other upon whom he entered recovers now the first action is not restored to the issue in Tail nor to the Woman nor to her heir by reason of the Feoffment which extincts right and action But if he which so enters makes a Feoffment upon condition and for the condition broken re-enters before that he upon whom he entered hath recovered and then he recovers after the re-entry made by the condition there he which made the Feoffnient upon Condition is restored to his first action for the entry by the Condition extincts his Feoffment 23. H. 8. B. Restore al primer action 5. Retorne de avers Retorn of beasts Note by the opinion of the Court That if a man be nonsuited in a Replevin and a retorn is awarded and the Plaintiff brings a Writ of second deliverance and suffers it to be discontinued retorn irreplegible shall be awarded as well as if the Plaintiff had been non suited in the Writ of second deliverance 17. H. 8. B. Retorne de avers 37. Second deliverance 15. Revivings See Tit. Extinguishments Riot Rout and unlawful Assembly Note that Riot is where three or more do an unlawfull act in Deed and execute it as to beat a man enter upon possession or the like unlawfull Assemblie is where a man assembles people to do an unlawful act and doth not do it nor execute it in deed And Rout is where many assemble themselves for their own quarrel this is a Rout and against law though it be not executed as inhabitants of a Town for to break down a hedge wall or the like to have Common there or to beat a man who hath done to them Common displeasure or the like Lecture B Riots 5. Sanctuary See Tit. Corone Saver default Saving default See Tit. Judgement Scire facias Of a thing Executory a man shall have Execution for ever by scire facias See Tit. Execution Where Debt lies and where a scire facias See Tit. Debt Where a scire facias upon a Recognisance shall be brought See Tit. Lieu ' Second Deliverance See Tit. Retorn de avers Seisin If a man holds of the King and holds other Land of another Lord and dies his heirs within age who intrudes at his full age and pays the rent to the other Lord this is a good Seisin and shall bind him after he hath sued livery for the Seigniory was not suspended by the possession of the King but onely the distress for after Livery the other Lord may distrain for the arrearages due before per optim opinionem tune See now the Statute thereof That the officers of the King shall render yearly the rent to the Lord and the heir shall not be charged with it by distress after upon livery sued as he was at Common Law 34. H. 8. B. Seisin 48. Several precipe T was agreed that a man may have Debt and Detinue by one and the same Writ by several Precipe the one shall be Debet the other Detinet Tim. H. 8. B. several precipe 5. the end Several Tenancie In an Assise several Tenancy is no plea and the same Law in other actions â—here no land is demanded in certain 24. H. 8. B. several Tenancy 18. Statute Merchant T was said for Law That if a man sues Execution upon a Statute Merchant or Statute staple and part of the Land is extended nomine omnium terrarum which is retorned according and the party accepts it he shall never have an Extent nor re-extent of the rest And that upon a Nihil retorned upon a Testatum est he may have Proces in another County for there the judgement shal be quod habeat exeontionem de terris quousque summa Levitur Yet B. seems otherwise of such retorn of Goods 29. H. 8. B. Statute Merchant 40 Note if a Statute staple be extended and so remains by seven years without Deliberate made yet he may have a Deliberate at the end of 7 years but he who hath the land delivered to him by liberate upon a Statute cannot make a surrender conditional to the conusor enter for the condition broken after the time of the extent incurred as land of 10 l. per an is delivered in execution for 40l this may incurre in 4. years there the Conusee by such condition cannot enter after the four years incurred for he ought to take the profits upon his Extent presently And he shal not hold over his time nisi in speciali casu as where the Land is surrounded with water sudden tempest or the like And the judgement shall be Quod teneat terram ut liberum tenementum suum quousque denarii leventur 33. H. 8. B. Statute Merchant 41. T is said for Law That if the Conusor upon a Statute Staple hath a Reversion and grants it over and after the Tenant for life dies this Land shall not be put in execution for the Reversion was never extendable in the hands of the Conusor 33. H. 8. B. statute Merchant 44. the end Note by Bromley Hales and Portman Justices and Rich who was first Chancellor of England Apprenticius Curiam That if the Conusee purchases parcel of the Land after the Statute acknowledged or Recognised this â—s no discharge of the Statute against the Conusor himself But the Feoffees of â—he Conusor of other Parcels shall be â—here of discharged But if the Conusee â—ath the Land delivered in Execution â—nd purchases parcel of the land of the Conusor this is a discharge of the inâ—ire Statute 36.