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
claims not by the Lessor 1. E 6. B. Acceptance 19. Bishop Leases Land of his Bishoprick for years rendering Rent and dies the Successour accepts the Rent this shall binde him for the Bishop hath a Fee-simple and may have a Writ of Entry Sine assensu capituli otherwise in case of a Parson or Prebend who can have but a Juris utrum 2. E. 6. B. Acceptance 20. If a man be bound in an obligation to pay ten pound to the Obligee at Paris beyond Sea at a certain day if the Obligor pay at another place and the same day in England and the other accepts it t is good clearly 38. H. 8. B. Conditions 206. Acceptance of Rent by the Lord from the disseisor of the Tenant shall not bar him of his escheat otherwise if he had avowed for it in Court of Record c. See Tit. Escheat Action popular Note By the Statute the party which sues an Action Popular ought to sue it within the year after the offence done and not after and this as well of offences done against the Statute then made as against Statutes after to be made so see that it goes to a Statute after made B. Action Popular 6. Action upon the Case If I have a Mill in B. and another makes another Mill there by which I lose my Toll by going of divers to it yet no Action lies otherwise if the Mill disturb the water from coming to my Mill there I shall have an Action upon my Case 24. H. 8. B. Action upon the Case 42. the end In an Action upon the Case where the Plaintiff delivers goods to the Defendant and the Defendant for ten shillings promises to keep them safe and does not to the dammage c. And by Fitzherbert and Shelly Justices Non habuit ex deliberac ' is a good Plea 26. H. 8. B. Action upon the Case 103. Note in an Action upon the Case betwixt Awsten Plaintiff and Thomas Lewis Defendant for calling him false and perjured he justifies because that the Plaintiff was perjured in the Star-chamber in such a matter c. and a good Plea by the Court. 28. H. 8. B. Action upon the Case 3. more of this in the next Action upon the Case for calling the Plaintiff false perjured man the Defendant justifies that such a day and year in the Starchamber the Plaintiff was perjured and pleaded certain in what c. for which he called him false perjured man as afore as t was lawful for him and a good Plea by the Court in the Common Bench. Wherefore the Plaintiff said of his own wrong without that he swore in manner and form c. 30. H. 8. B. Action upon the Case 104. If a man bring debt of 10. l. the Defendant wages his Law and after the Plaintiff brings an Action upon the Case against the same Defendant that he promised to pay the 10. l. c. The Defendant may plead that for the same summ the Plaintiff brought before an Action of Debt in which the Defendant waged his Law Judgement if Action And a good Plea for he was once barred of the same summ And in Action upon the Case that the Defendant promised to pay 10. l. to the Plaintiff which he ought to him for a Horse and a Cow the Defendant may say That he promised to pay 10. l. to the Plaintiff which he did owâ— to him for a horse which he bought of him which summ he hath paid to the Plaintiff without that that he promised to pay 10. l. which he did owâ— to the Plaintiff for one Horse and one Cow as c. Or without that that he did owâ— to the Plaintiff 10. l. for a Horse and a Cow as c. 33. H. 8. B. Action upon the Case 105. Action upon the Case for that the Defendant found the Goods of the Plaintiff and delivered them to persons unknown there that he did not deliver them in manner and form is no plea without saying not guilty where the thing rests in doing And if the Action were That whereas the Plaintiff was possessed c. as of his proper goods and the Defendant found them and converted them to his proper use t is no Plea that the Plaintiff was not possessed as of his proper Goods but he shall say not guilty to the misdemeanour and shall give in evidence that they were not the goods of the Plaintiff and yet t is true not guilty against him 33. H. 8. B. Action upon the Case 109. In an Action upon the Case that the Goods of the Plaintiff came to the hands of the Defendant and he wasted them the Defendant saies that they came not to his hands c. and a good Plea and gives in evidence that they were not the proper goods of the Plaintiff 34. H. 8. B. Action upon the Case 103. the end Action upon the Case was brought in London by A. B. that whereas he was possessed of certain wine and other stuff and shews in certain in such a ship to the value c. and doth not shew the place certain where he was thereof possessed and yet good And alledged that the Defendant such a day year and place in London promised for 10. l. That if the said ship and Goods did not come safe to London and put upon the Land that then he would satisfie to the Plaintiff 100. l. and that after the ship was robbed upon the Trade on the Sea for which he brought the action for not satisfying and the truth was that the bargain was made beyond sea and not in London But in an action upon the Case upon an Assumpsit and the like which is not local the place is not material no more then in debt for he alledged that the said goods in the parish of S. Dunstons in the East London before they were set to land or c. were carried away by persons unknown c. and the action lies well in London though they were perished upon the high sea 34. H. 8. B. Action upon the Case 107. 'T was agreed That an Action upon the Case doth not lie against the Executors upon the Assumpsit of the Testator though they have assets 37. H. 8. B. Action upon the Case 4. the end In an Action upon the Case for a thing which lies in Feasans as for burning of Goods or Deeds and the like not guilty is a good plea contrary for non Feasons of a thing which he ought to do as to make or repair a Bridge House Park Pale scouring a Ditch and the like and doth it not there not guilty is no plea. 2. E. 6. B. Action upon the Case III. Action upon the Case for calling the Plaintiff false Justice of Peace vel his similia these words his similia were ordered to be struck out of the book by the Court for the incertainty 4. E. 6. B. Action upon the case 112. Action upon
Termor where land is recovered against him and the Lessor because they lose not any Free-hold and because that they are acquitted by W. Whorewood the Kings Attorney Yet by B. t is not reasonable where they are named and lose their interest yet it seems to him that he that is acquitted shall not have an attaint but if they are found disseisors they shall have an attaint by him Time H. 8. B Attaint 82. the end Note For Law where Trespass of battery goods carried away or a writing broken which are transitory is done in one County yet an action may be brought in an other B. Attaint 104. And so t was agreed in Trespass in London of breaking of at D. in London where indeed D. was in the County of E. for these are not local B. Lieu. 65. And therefore in Trespass transitory the place is not issuable nor traversable No more then in Trespass upon the case upon a promise and these may be continued B. Traverse c. 283. And in those cases the Jury of another County may take Conusance thereof but is not bound to it but if they take Conusance attaint lies not Otherwise of Trespass of Trees cut or Grass trod which are local and shall be brought in the proper County 2. Mar. 1. B. Attaint 104. Jurors 50. Note T is said that upon an Information for the King which passes upon the issue tried the King nor the informer shall not have an attaint for the informer is not fully party And when the Defendant hath answered the Kings Attorney replies for the King and after no further mention of the informer and therefore neither the one nor the other shall have an attaint 4. Mar. 1. B. Attaint 127. Where an attaint lies where not See Tit. Dammages And Tit. Fanxifier Attornment Note That Attornment may be made by Tenants to the Lord in his Court to the Steward in absence of the Lord or purchasor But Attornment to the servant of the purchasor out of Court and in absence of the Purchasor is not good but by payment of one penny for every Tenant to the servant of the Purchasor and in his absence in name of Seisen of their several Rents is a good attornment for a servant may receive Rent for his Master Quaere If no Rent then is due nor the rent day come 28. H. 8. B. Attornment 40. T was agreed That where Land is fold by Deed indented and inrolled according to the Statute of 27. H. 8. c. 10. there because the use is changed by the bargain and sale by the said Statute and the buyer in possession and hath no means to compel the Tenant to attorn there he may distrain and avow without attornment Otherwise upon a grant by Fine for there he may have a Writ of Por quae servitia 30. H. 8. B. attornment 29. the end Note That if a man hath Common of Pasture to a certain number or Common of Estovers to a certain number of Carts and with Grant them over they pass without attornment because they are not to be taken by the hands of the Tenant but by the mouth of beasts and by cutting and carrying So see that when no attendancy nor payment is to be made by the Tenant there the thing passes without attornment 31. H. 8. B. Attornment 59. See by Whorewood the Kings Attorney where a man Leases for forty years and after Leases the same Land to another to have from the end of the first Term for twenty years this needs no attornment otherwise where he grants the Reversion as afore there ought to be attornment Quaere and see after And if a man Leases for ten years and after Leases to another for twenty years this is good for ten years without Attornment otherwise if there were a word of Reversion 37. H. 8. B. attornment 41. A man Leases Land for twenty years the Lessee Leases over for ten years rendring Rent and after grants the Reversion of the Term and Rent to a stranger this shall not pass without attornment by reason of the attendancie of the Rent otherwise if no Rent were reserved upon the second Lease for ten years for then there is no attendancie to be made nor action of Waste nor the like to be brought For as B. seems attornment is not necessary but to have avowry or an action of Waste 2. E. 6. B. attornment 45. See by Mountague chief Justice and Townsend That by a Feoffment of a Mannor the services pass without attornment of the Free-holders But B. seems that the Tenants ought to attorn 4. E. 6. B. attornment 30. Note If a man let a house and 200 acres of Land for Term of life and after grant the Reversion to another to have the said House Land and Tenements a Festo Sancti Michaâ—lis prox-post mortem vel determinationem interesse of Tenant for life for twenty one years then next following the Tenant for life dies before attornment yet the grant of the Reversion is good because that the words in the Habendum of the house and land is intended to be a Lease and a Rent was also reserved upon it and so a good Lease without attornment By Brown Sanders and Stamphord Justices Yet by B. Chief Justice t is but a Grant of a Reversion and no Lease but yet the grant is good without attornment because that t is to Commence after the death of Tenant for life so that the Tenant for life shall not be attending to the Grantee nor shall he avow upon him nor have an action of Waste or the like by judgment of the Court. 3. Mar. 1. B. Attornment 60. Leases 73. Attorney In these Cases a man shall not make an Attorney except in special case viz. Attaint Premuniri Appeal Per quae servitia Quid juris clam Quem redd reddit Nor in assigning of Errors nor at the Plures in case of contempt nor the Tenant in a Cessavit upon tender of arrearages Nor the pray' to be received in a Pr. quod redd Nor in an assise nor in an attachment Nec contra finem levat nor in any case where the Defendant shall be imprisoned Audita querela A man seised of 20. acres is bound in a Statute Marchant and makes a Feoffment of 15. to several persons and Execution is sued against one of them he shall have an Audita querela upon his surmise to have the other Feoffees to be contributory with him But if execution be sued against the Conusor himself he shall not have such contribution for this is upon his own act B. Audita querela 39. Yet if the Conusor dies and the Conusee sues Execution against the heir he shall have Contribution of the Feoffee So every of them shall have of the heir 25. H. 8. B. Audita querela 44. the end Averments See Tit. Pleadings Note Where a man pleads a recovery by a strange
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
other and that A. brought a Formedon of thâ—â— tenements and pleaded certain c. anâ— recovered by Action tried and the estaâ—â— of the Plaintiff mean betwixt the title 〈◊〉 and his recovery judgemeâ—â— si of such an estate assize c. to whâ—â— the other said that every of the said 〈◊〉 and N. were Villes by themselves and 〈◊〉 at issue and 't was found that they weâ—â— several Villes and the seisin and disseisâ—â— by which 't was awarded that this tenaâ—â— then Plaintiff should recover And because that he hath recovered these sainâ— Lands against the Plaintiff himself in H. judgement si assise And Shelly Just. held strongly that this recovery of Land in H. is no plea in an assise of Land in N. and therefore the assise ought to be awarded and so it seems to B. 25 H. 8. B. Judgement 66. If A. infeoffs B. upon condition c. to re-enter there if a man impleads B. who vouches A. and so recovers or if A. re-enters upon B. without cause and â—s impleaded and loses there in the one case and the other the condition is determined for the Land is recovered against him who made the condition 26 H. 8. B. Judgement 136. Note by Bromley chief Just. that a Judgement where there is no original is void as in an assise the Plaintiff appears and after makes a retraxit and after the Justices of Assize record an agreement betwixt them in nature of a Fine this is void and coram non Judice and shall not be executed by reason that no Original was pending but was determined before by the retraxit For without Original they have not Commission to hold Plea and then they are not Judges of this cause 2 M. 1. B. Judgement 114. Issues joyns Issues joyned Trespass upon the case quod def assumpsit deliberat quer 4 pannos laneos and he pleads quod assumpsit liberare 4 pannos lineos without that qd assumpsit modo forma and so at issue And 't is found that he assumed to deliver 2 pannos laneos sed non 4 so see that this issue though that it comes in a traverse doth not amount but to the general issue the Pl. recovered dammages for the 2 and was barred and amercied for the rest But otherwise 't is if the issue be If A. and B. infeoffed the tenant in a Precipe quod reddat necne and 't is found that A. infeoffed him but that A. and B. did not infeoff him this is found against the tenant in toto or against him who pleads such Feoffment which is so found 32. H. 8. B. Issues joyns 80 Verdict 90. Informed in the Excheq against A. B. for buying Wools betwixt shearing time and the Assumption such a year of C. D. contra forma Statuti where 't is not cloth nor he did not make thereof cloth nor yarn He sees that he did not buy of C. D. contra formam Statut. propt c. And no issue for 't is not material nor traversable whether he bought of C. D. or of E. F. or of another but whether he bought them contra formam Statut. necne And therefore the Issue shall be that he did not buy modo forma c. 33. H. 8. B. Issues joyns 81. Negativa pregnans 54. Travers per 367. In waste issue was taken if the defendant cut twenty Oaks there if the Jury finde ten and not the rest the Plaintiff shall recover for the ten and shall be amercied for the rest 2 M. 1. B. Issues joyns 80. the middle Issues returns Issues returned See Tit. Intrusion Jurisdiction If the Lord of a Mannor claim the Tythes of such Lands in D. to finde a Chaplain in D. and the Parochians claim them also for the same purpose 't is said for Law that the Lay Court shall have jurisdiction betwixt them and not the Spiritual Court 25 H. 8. B. Jurisdiction 95. 'T was said where a man pleads a plea in Banco ultra mare it shall be condemned at this day because that it cannot be tried in England 36 H. 8. B. Jurisdiction 29. Jurors Trial of a Peer of the Realm arraigned upon an Indictment and appeal diversity See Tit. Trial and Tit. Enquest Where Jurors may take conusance and notice of a thing in another County See Tit. Attaint Jury took a Scroll of the Plaintiff which was not delivered to them in Court and passed for the Plaintiff and because that this matter appeared to the Court by examination therefore the Plaintiff shall not have Judgement 3 M. 1. B. Jurors 8. Leet NOte for Law if a pain be put upon a man in a Leet for to redress a Nusance by a day sub poena 10 l. and after 't is presented that he did it not and shall forfeit the pain this is a good presentment and the pain shall not be otherwise affeered And the Lord shall have an Action of Debt clearly but he cannot distrain and make avowry except by prescription of usage to distrain and make avowry 23 H. 8. B. Leet 37. Note where the Statute of Magna Charta cap. 25. saith Et visus de Franâ—hi-plegio tunc fiat ad illum Terminum St. Michaelis sine occasione this is â—â—tended the Leet of the Tourne of the Sheriff and not other Leets 25 H. 8. B. Leet 23 the end Leases By Fitz-James ch Just. Englefieldâ—ust â—ust and many others if tenant for life â—ases Land for yeers rendring rent and â—â—es the Lease is void and then the rent is â—etermined The same Law of a Parson â—nd though the successor receives the rent â—he Lease is not good against him for â—hen 't is void by the death of the Lessor 〈◊〉 cannot be perfected by no acceptance B. Leases 19. Debt 122. Otherwise 〈◊〉 seems of a Lease for life made by a Parâ—â—â— rendring rent and the successor accepts 〈◊〉 rent this affirms the Lease for life 24 〈◊〉 8. B. Leases 19. A man leases for ten yeers and the neâ— day leases the same Land to another foâ— twenty yeers this is a good Lease for thâ— last ten yeers of the second Lease 26 H. 8. B. Leases 48. Where a Lease for 300 or 400 yeeâ—â— shall be Mortm in See Tit. Mortmain A man leases a house cum pertin â— Land shall pass by these words cum perâ— Contrary if a man leases a house cuâ— omnibus terris eidem pertin there 〈◊〉 Lands to this used pass and many Graâ—â— are de omnibus terris in D. nuper Mâ— nasterii de G. pertin and especiallyâ— heavers that it hath pertained de temporâ— c. 31 H. 8. B. Leases 55. If a Parson of a Church leases for 〈◊〉 and dies the successor accepts fealty 〈◊〉 shall be bound by this during his 〈◊〉 Contra upon a Lease for yeers made 〈◊〉 him this shall not binde the successor 〈◊〉 acceptance of the rent for 't was void 〈◊〉 the death of the Lessor 32 H. 8. 〈◊〉
Dean 20. Encumbent 18. Leases 5â— Where a confirmation shall be by 〈◊〉 Bishop Dean and Chapt of a Lease 〈◊〉 by the Parson Et contra See Tit. Câ—â—â—firmation A man is a purchaser with his wife 〈◊〉 them and to the heirs of the husband 〈◊〉 after the husband leases for years and â—dies the wife enters this shall avoid the Lease for her life but if she dies during the term there the rest of the term is good to the Lessee against the heir of the husband And the same Law of a Rent-charge granted out of it for the husband had thee Fee-simple tempore c. and might well charge it And note by all the Justices that the GuardJan in Knights service shall not ouste the termor of the ancestor of the heir And the same Law of the Lord by Escheat 36 H. 8. B. Leases 58. If a man leases for life to I. S. and the next day leases to W. D. for twenty yeers the second Lease is void if it be not a grant of a Reversion with Attornment for in Law the Free-hold is more worthy and perdurable then a Lease for yeers Yet if the Lessee for life dies within the term the Lease for yeers is good for the rest of the yeers to come 37 H. 8. B. Leases 48. the end 'T was agreed per plures that where I. N. convenit concessit to W. S. that he shall have 28 acres in D. for 20 yeers that this was a good Lease for this word concessit is as strong as dimisit vel lâ—â—avit 37 H. 8. B. Leases 60. King tenant in Tayl makes a Lease for yeers or life his issue may avoid it See Tit. Discontinuance in possession If a Parson lets Land for term of yeers rendring rent and dies the successor receives the rent the Lease is not good against him for he hath not Fee-simple Nor he cannot have a Writ of Right but Juris utrum therefore the receipt of the rent by his successor doth not affirm the Lease for this was void by the death of the Parson who leased 38 H. 8. B. Leases 18. the end 'T was holden by Bromley Just. and others that if a man leases for 20 yeers and the next day leases for 40 yeers the second Lease shall take effect for 40 yeers s. after the twenty yeers past Time H. 8. B. Leases 35. the end 'T was agreed for Law in the Chancery by the Justices that if a Lease for yeers be made by a Bishop that 't is not void but voidable for he had a Fee-simple Otherwise of such a Lease by a Parson this is void by his death for he hath not the Fee-simple but 't is in abeyance And the Bishop may have a Writ of Right or a Writ of Entry sine assensu capituli where a Parson shall have but a Juris utrum And therefore if the successor of a Bishop Dean Prebend and 〈◊〉 like who have a Fee and Lease and 〈◊〉 accepts the Rent this affirms the Lease 〈◊〉 be good And otherwise of such acâ—â—ptance by the successor of a Parson who â—ade such Lease for this Lease is void â—resently But if a Chantry Priest makes â— Lease his successor shall avoid it notâ—ithstanding the predecessor had a Fee â—ecause that 't is donative or presentative â—nd then such Lease is not perdurable exâ—ept it be confirmed by the Patron in the 〈◊〉 case and by the Patron and Ordinaâ—y in the other case 2 E. 6. B. Leases â—3 the end A man leases for yeers habendum post â—imissionem in factaÌ„ to I. N. finitaÌ„ and 〈◊〉 truth I. N. hath no Lease in it there the Lease commences immediately by Halesâ—ust â—ust and many others And by him if â— Prebend makes a Lease for 21 yeers by â—ndenture rendring the usual rent this shall â—â—inde the successor by the Statute of Leaâ—es for where the Statute saith in Jure Ecclesiae and the entry for a Prebend est â—â—isitus in jure Prebende yet it shal bind by the equity 3 E. 6. B. Leases 62. An Executor hath a term and purchases the reversion in Fee whether the term be extinct or no. See Tit. Extinguishment Tenant of the King in Capite dies and the heir before Livery sued makes a Lease for yeers 't is good if no intrusion be found by Office and an Office found after which findes the dying seized and no intrusion hath not relation to thâ— death of the ancestor but for the profits and not to defeat the Lease for thâ— Free-hold and Inheritance remain in thâ— heir But if intrusion be found tunc nuâ—â—lum accrescit ei liberum tenementum and then the Lease and dower of thâ— wife of the heir are void 5 E. 6. B. Leases 57. A man possessed of a Lease for 40 yeerâ— grants so many of them as shall be behinâ— at his death 't is void See Tit. Grants Note by Bromley and others Justice 〈◊〉 if I let Land to W. N. habendum 〈◊〉 100 l. be paid and without Livery thâ— 't is but a Lease at will for the incertaintâ— But if he makes Livery the Lessee shâ— have it for life upon condition implied 〈◊〉 cease upon the 100 l. levied 2 M. 1. â— Leases 67. 'T is said that Bishops in the time 〈◊〉 E. 6. were not sacred and therefore we 〈◊〉 not Bishops and therefore a Lease 〈◊〉 yeers by such and confirmed by the 〈◊〉 and Chapter shall not binde the successâ—â—â— for such never were Bishops Contra of a Bishop deprived who was Bishop indeed at the time of the demise and confirmation made 2 M. 1. B. Leases 68. What shall be said to be a Lease in reversion and what a grant of reversion see Tit. Attornment 'T was holden by all if a man Leases Land to another till the Lessee hath levyâ—d 20l that 't is a good Lease notwithstanding the incertainty 3 M. 1. B. Leases 67. the end 'T was ruled in the Serjants case that if a man let Land 4 Ian. habend for forty years Reddend annuatim at Mich. and Easter 20. s. the tenant shall pay at Easter and at Mich. I. equales porciones and the Lessor shall not lose the rent at Easter 4. M. 1. B. Leases 65. Ley gager Law wager Detinue of a Deed indented where an obligation of a Lease for term of years the defendant shall not wage his Law for this concerns Land and a Chattel real And so 't was late adjudged in the Kings-Bench 34. H. 8. B. Ley gager 97. 'T was said for Law that a man shall not wage his Law in a Quo minus 35. H. 8. B. Ley 102. Quo minus 5. in finibus Licenses 'T was agreed that if a Bishop Deâ— and Chapter give their Land in Fee with out License of the King who is Founder and is found so by Office the King shalâ— have the Land And another Foundeâ— may have a
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
upon the sale 6 E 6. B Faits Inroll 9. Fauxifier Falsefying Where he in reversion shall falsifie a recovery had against Tenant for term of life where not See Tit. Entre Congeable Where the Feoffees may falsifie a recovery suffered by Cesty que use in tayl where not See Tit Entre Congeable 'T was holden that an attaint shall goe with the Land as a Writ of Error shall Time H 8. B Fauxifier 50. the end Faux Imprisonment false Imprisonment 'T is said That a man as Constable cannot Arrest another for an Affray after that the affray is past without Warrant contrary before the Affray and in the time of the Affray c. And the same Law of a Justice of Peace 38 H 8. B Faux Imprisonment 6. the end Faux Judgement False Judgement Note by Fitz for cleer Law That in a Writ of falfe Judgement in nullo est erratum is no Plea for they joyn issue upon some matter in fait certain alledged by the party and shall bee tryed by the Country for 't is no Record contra in Error 23 H 8. B Faux Judgement 17. Fealtie Note in the Chequer That if Land descend to me which is holden of I S by homage and I doe to him homage and after other Land descends to me by another Ancestor holden of him by homage I shall doe fealty but not homage again for I became to him his man before And if both the Tenements are holden of the King by homage he shall not respit both the homages in the Exchequer but one homage only 24 H 8. B Fealty 8. Note in the Exchequer That a Dean and Chapter and other bodies politique shall not doe homage for this shall be done in person And a Corporation cannot appear in person but by Attorney and homage cannot be done by Attorney but only in person 33 H 8. B Fealty 15. Feoffments A man makes a Feoffment of a house cum pertinentiis nothing passes by these words cum pertin but the Garden the Curtilage and Close adjoyning to the house and upon which the house is built and no other Land though other Land hath been occupied with the house 23 H 8. B Feoffments 53. Note by Fitz james ch Justice Englefield Just and divers others where a Disseizor makes a Feoffment for maintenance and takes the profits the Feoffment is void by the Stat of 1 R 2. ca 9. as to a Stranger which shall have an Action for he shall have it against the pernour of the profits but 't is not betwixt the Feoffor and the Feoffee And also a man who vouches by such Feoffment one of the Feoffees the Demandant shall counter-plead by the same Stat because the Feoffment was void And B seems that such Feoffment shall not be a remitter in prejudice of a third person 24 H 8. B Feoffments 19. If a man makes a Feoffment to four and the one of the four makes a letter of Attorney to I N for to take livery for him and his companions who doth it accordingly nothing passes but to him who made the Letter of Attorney only 27 H 8. B Feoffments 67. 'T was said for Law That if a man Leases Land for ten years and the same Lessee lets it over to another for four years the Lessor makes a Feoffment to a Stranger by sufferance of the second Lessee this is a good Feoffment without Attornment of the first Lessee 28 H 8. B Feoffments 68. 'T is said That a Feoffment of a moity is good 31 H 8. B Feoffments to uses 19. If a man makes a feofmēt of a house ac omnia terras tenemeta et hereditamēta eidem messuag pertinen aut cum eodem occupat locat aut dimiss existen by this the Land used with the house shall passe 32 H 8. B Feoffments 53. the end A man makes a Deed of Feoffment to another and delivers the Deed to him in the Land or upon the Land this is a good Feoffment by all the Justices in the Common-Bench 35 H 8. B Feoffments 74. If a man bee seized of one acre of Land in Fee and another is seized to his use in Fee of another acre and hee makes a Feoffment of both acres and Livery of the acre which he hath in possession by this the acre in use passes not though he made the Livery in the one in the name of both for this is not his acre but the acre of the Feoffees and the Stat saies that his feofment shall be good but 't is no Feoffment except hee makes Livery in the same Land Otherwise if Livery were made in the Land in use by reason of the Stat 37 H 8. B Feoffments 77. Feoffments to uses 55. If a Feoffment be made within the vJew when this is pleaded 't is said that expresse mention shall be made in the pleading that the Land was within the vJew Time H 8. B Feoffments 57. the end Feoffment is good of the Land by Deede by Livery of the Deed within the vJew so that the Feoffee enters accordingly But if the Feoffor dies before the Feoffee enters then the Land is discended to the Heir of the Feoffor and the Feoffment shall not take effect Time H 8. B Feoffments 72. A man makes a Feoffment by Deed to twenty and delivers the Deed and Seisin to one in the name of all this is good to all but if hee Infeoffs twenty without Deed and delivers Seisin to one in the name of all this is no feofment to any but to him who takes the Livery Time H 8. B Feoffments 72. Note that by the Stat of 1 R 2. where a Disseizor makes a Feoffment for maintenance and takes the profits the Feoffment is void by the Stat to all intents Lecture Whorwood 35 H 8. B. Feoffments 19. Feoffments to uses By Shelly Just Where the Father Infeoffs his Son and Heir apparent to the intent to defraud the Lord of his Ward this Feoffment was to the use of the Father during his life and hee takes the profits during his life and so see that uses were in antient times 24 H 8. B Feoffments to uses 20. the end A man makes a Feoffment in Fee to four to his use and the Feoffees make a gift in tayle without consideration to a stranger who had not conusance of the first use habend in tayle to the use of cestuy que use and his Heirs the tenant in tayle shall not be Seised to the first use but to his own use for the Stat of Westm 2 cap 1. wills quod Voluntas Donatoris in omnibus observetur that a man ought to refer his Will to the Lawe and not the Lawe to his Will Also none can bee Seised to the use of another but hee which may execute an Estate to cestuy que use which shall bee perfect in Law which tenant in tayle cannot doe for if hee executes an Estate his Issue shall have
marriage takes not effect by which the State is executed in the Heir of C by the Statute of uses made 27 H 8. notwithstanding that C was dead before the refusall of the marriage for now the use and possession vests in the Heirs of C for that the Indentures and Covenants shall have relation to the making of the Indentures for these Indentures binde the Land with the use which Indentures were in the life of C But by B quaere if the Heir of C shall bee in Ward to the Lord for hee is Heir and yet a Purchasor as it seemes 3 M 1. B Feofments to uses 59. Gift of Land for yeeres or of a Lease for yeeres to a use is good notwithstanding the Statute for the Statute is intended to avoide gifts of Chattells to uses for to defraude Creditors only and so is the preamble and intent of this Statute 3 M 1. B Feofments to uses 60. Fines levies Fines levied Note That 't was Covenanted that A shall make to B his wife daughter of I K a joynture by Fine and the Writ was brought by I K against A and B his wife and they offered to acknowledg to I to the intent that I should render to them for life of B and because B the wife was within age therefore shee was drawne out and rejected And then because that none can take the first estate by the Fine but those who shall be named in the Writ of Covenant but every Stranger may take a remainder therefore the Writ was made betweene I and A only by which A acknowledged the Tenements to bee the right of I ut illa que c. and I granted and rendred it to the said A for terme of his life without impeachment of Waste the remainder to the said B his wife for terme of her life the remainder to the said A and his Heirs 30 H 8. B Fines Levies 108. Fine with proclamation to bind Tenant in tail and his issue the time for to make proclamation c. See Tit Assurances If cestuy que use for term of life levies a Fine with Proclamation there none need to enter nor make claim within the five years because that 't is but a Grant of his Estate which is lawfull and no forfeiture for hee hath nothing in the Land nor hee cannot make a forfeiture of the use The same Law of a Fine levyed by Tenant for life in possession Yet B doubts thereof and thinks otherwise if hee levy it in Fee B Feoffments to uses 48. Fines levies 107. Et per plures if it be levyed by cestuy que use in tail it shall bind him and his Heirs but not cestuy que use in the reversion nor the Feoffees after the death of the Conusor for the Statute of 1 R 3. is That it shall bind him and his heirs and Feoffees clayming onely to the same which is not so here Quaere inde for B seems by the same Statute that tayl in possession is remedied by this Statute but not tayl in use for this seems to him to remain at Common-Law as a Fee-simple in use conditionall for 't is not a Gift of the Land yet quaere for by him by the equity of the Statute of W 2. of tayles devises in tayl are taken yet this is in nature of a Gift yet not at this day by the Statute of 32 H 8. fine with Proclamation by cestuy que use in tayl shall bind the tayl after Proclamation 30 H 8. B Fines levyed 107. the end Note That a Deed inrolled in London binds as a Fine at Common-Law but not as a Fine with Proclamation and there need not livery of Seisin upon such Deed And this is a discontinuance without livery because that by the custome there which is reserved by divers Parliaments it shall bind as a Fine 31 H 8. B Fines Levies 110. 'T was granted for Law where two are of the same name as if there bee two R B and the one levies a Fine of the others Land there the other shall avoid it by Plea s to say that there are two of the name and that the other R Blevied the Fine and not this R B 33 H 8. B Fines levies 115. the end Note that if the Writ of Dedimus potestatem to levie a Fine doth not beare teste after the writ of Covenant 't is Error for the Dedimus potestatem saies cum Breve nostrum de conventione pendet betwixt A B and C D c. 35 H 8. B Pines Levies 116. Note that 't was devised to have a Lease for yeeres to binde Tenant in taile that the tenant in taile and the Lessee should acknowledge the tenements to bee the right of one A a stranger and that A should grant and render by the same Fine to the Lessee for sixtie yeeres the remainder to the Lessor and his Heirs and 't was with Proclamation which shall binde the taile after proclamation made And so see that the Devise after will not serve for taile but for Fee simple for hee which takes by Fine shall not bee concluded if hee bee an Infant or Feme covert or the issue in tail of the Conusor And in this case no rent can bee reserved for A was a stranger to the Land by which the Lessee granted ten pound of rent and extra terra illa with a clause of distresse during the yeeres or terme aforesaid to the Lessor 36 H 8. B. Fines Levies 118. Lease may be made by Fine for term of yeeres rendring rent and first the lessee to acknowledg the tenements to be the right of the Lessor come ceo c. and then the other grant and render to him for terme of sixtie yeeres rendring therefore yeerely ten pound per annum c. And with Clause of Distresse Time H 8. B Fines Levies 106. Note by Fitz Just That a Fine levyed by A and B his wife where the name of the wife is M shall binde her by estoppell and the tenant may plead that shee by the name of B levyed the Fine and so 't was in ure by him and 't was pleaded according Time H 8. B Fines Levies 117. Note by Bromeley chiefe Justice and others That a Writ of Error was brought in the Kings bench because a Fine was acknowledged by Dedimus potestatem before one who was not a Judge Abbot Knight nor Sargeant and for this cause 't is refused to admit any which is taken by such for the Statute de finibus Attorn gives power to none except to Justices Abbot and Knight quaere by B if a Sarjeant at Law bee not taken as a Justice by the equitie of the Statute Time H 8. B Fines Levies 120. 'T was granted that a Fine may be levyed in a Hamlet for if a Scire fac lyes upon a Fine in a Hamlet as it appears 8 E 4. that it doth therefore a Fine is well levyed there
husband die the Warranty shall be collateral to the issues because that the land came by the Father and not by the Mother 31. H. 8. B. Garranties 79. Note if the husband discontinues the right of his wife and an ancestor collaterall of the wife releases with Warranty and dies to whom the Wife is heir and after the husband dies the wife shall be barred in a Cui in vita by this Warranty notwithstanding the Coverture because that she is put to her action by the discontinuance for Coverture cannot avoid Warranty but where the entry of the wife is lawful which is not upon discontinuance 33. H. 8. B. Garranties 84. If a man saies in his Warranty Et ego tenement a predict cum pertinent prefato A. B. the Donee Warrantizabo aud doth not say egâ— heredes mei he himselfe shall warrant it but his heir is not bound to warrant it because that heirs are not expressed in the Warranty 35. H. 8. B. Garrenties 50. Sir Robert Brudnel late Chief Justice of the Common Bench devised a Warranty now in use viz. That the warrantor for him and his heirs Warrantizabit contra ipsum heredes suos and by this the Feoffee shall rebut but not vouch Casus B. Garranties 30. the end Where upon a Formedon upon use there shall be a General Writ and special Declaration See Tit. Formedon General issue In an Assise or Trespass if a â—an entitles a stranger and justifies by his Commandment his ought to be pleaded and not given in evidence upon Nul tort or not guilty pleaded So of Common Rent Service Rent Charge Licence and the like these ought to be pleaded and not given in evidence upon a general issue Contrary of a Lease of Land for years upon not guilty pleaded the Defendant may give it in evidence B. General issue 81. otherwise of a Lease at will for this is as a Licence which may be Countermanded or determined at pleasure And if a Villen plead Free and of Free Estate he may give manumission in evidence for this is Manumission indeed But where he is Manumitted by act in Law as a suit taken against him by his Lord or an Obligation made to him by his Lord or a Lease for years and the like which are manumissions in Law of which the Jury cannot discuss and therefore these shall be pleaded 25 H. 8. B. General issue â—2 Debt upon an escape in the Exchequer against the Sheriffs of London for leting a man arrested by them by capias ad satisfaciendam and â—n Execution to escape the Defendants cannot say that he did not escape and give in evidence that he was not arrested for the arrest is confessed if he saies that he did not escape 34. H. 8. B. General issue 89. Grants Nota per plures Just. alios legis peritos That where a man grants an office of Bayliff Steward Receiver Parker and the like and a Fee certain for his labour onely there the Grantor may expulse such Officers But they shall have their Fee for t is but an Office of Charge But where the Steward Parker have profits of Courts Winde-Falls Dearâ—kinnes and the like casuâ—ll profits t is said that they cannot be expulsed and that of such Offices they may have an Assise And t is said that t was so taken in the time of James Hobert Attorney of King HENRY the 7. And the Officers may relinquish their Offices when they will but then their Fee ceases And Whorewood Attorney of King HENRY the 8. granted the Cases aforesaid 31. H. 8. B. Grants 134. T was said for Law That I may Ouste my Bayliff Receiver and the like giving to them their Fee foâ— it rests in Charge and no profit B. doubts of the Steward for an Assise lies of such Ousters 34. H. 8. B. Grants 93. the end What shall pass by a Grant of omnia â—ona sua See Tit. Done A man possessed of a Lease for term of fourty yeers grants so many of them to â— N. which shall be arrear tempore morâ—is suae and held void by Hales Just and others for the incertainty because it doth not appear how many shall be behinde at the time of his death for the Granter may live all the 40 yeers and then nothing shall be arrear at his death quare B. Grants 154. Leases 66. â—ut such Devise by Testament is good B. Grants 154. And 't is not like where a man leases Land for term of life and four yeers over this is certain that his Executors shall have four yeers after his death B. Leases 66. And also if a man leases his Land to have from his death for four yeers 't is good for this is certain and he hath authority to charge his own Land 7 E. 6. B. Grants 155. A man grants omnia terras tenementa sua in D. a Lease for yeers shall not pass Contrary if he grants omnes firmas suas there by this a Lease shall pass for of this an ejectione Firme lies and by this he shall recover the Term and therefore 't is a good word of Grant 7 E. 6. B. Grants 155. Hariots T Is said that for Hariot-custom a man shall always seise and if it be esloigned he may have detinue And for Hariot-service esloigned he may distrainâ— but not for Hariot-custom Time H. 8 B. Hariots 6. the end Heresie Note that 't was agreed by all the Justices and by Bake learned in the Law and Chancellor of the Exchequer and by Hâ—re learned in the Law and Masteâ— of the Rolls That by the Statute of Hereticks and Lollards that if a Heretick be convicted in presence of the Sheriff thâ— Ordinary may commit him to the samâ— Sheriff and he ought to burn him without having a Writ de haeretico comburendo But if the Sheriff be absent oâ— if the Heretick shall be burnt in another County in which he is not convicted therâ— in these cases the Writ de haeret comburend shall be awarded to that Sheriff 〈◊〉 Officer who shall make execution And â—e said Statute in the end wills that the â—heriff shall be present at the convictiâ—â— if the Bishop requires him And â—erefore the use is that the Ordinary shall â—ll the Sheriff to be present at the conâ—tion And so in the Writ de haeret â—mburend in the Nat. Brin that the â—â—chbishop and his Province in their Conâ—â—ation might and used to convict Hereâ—â—ks by the Common Law and to put 〈◊〉 to lay hands And then the Sheriffs Writ de haeret comburend burnt them â—t because that this was troublesome to 〈◊〉 the Convocation of all the Province was ordained by the Statute aforesaid â—hat every Bishop in his Diocess may â—â—nvict a heretick and after abjuraâ—â—n upon relapse put him to lay hands be burnt And B. seems that if the â—â—retick will not abjure at the first Conâ—â—tion that he may be burnt at the first
â—â—â—nviction without abjuration Otherâ—â—e if he will abjure for then he shall 〈◊〉 be burnt the first time but upon reâ—â—se he shall be burnt 2. M. 1. B. â—eresie Homage See Tit. Fealty Ideot BRent of the County of Sâ—â—merset who was presenâ—â—ed for an Ideot couâ—â— write Letters and Acquiâ—tances and the like anâ— therefore was adjudgeâ— an Unthrift but no Ideot Time E. Ideot 4. the end Imprisonment 'T was determined in Parliament thâ— Imprisonment almost in all cases is but retain the offender till he hath made Fine and therefore if he offers his Fiâ—â— he ought to be delivered presently 〈◊〉 the King cannot retain him in prison afâ—â—â— the Fine tendered 2 M. 1. B. Impâ—â—sonment 100 the end Incident Court-Baron is incident to a Manâ—â— and Court of Pipowders to a Fayr aâ— 't was sed arguendo that therefore Lord of the Mannor or Fayr cannot grâ—â— over the Court-Baron nor the Court Pipowders or if they grant the Mâ—â— â—â—or with the Fayr they cannot reserve â—â—ch Courts for they are incident c. 9 H. 8. B. Incidents 34. 'T was said that if a Seigniory rests in â—omage Fealty and Rent and a man â—â—covers the Rent by this is the Homage â—â—covered for a Precipe lies not of it â—ime H. 8. B. Incidents 24. the â—â—id Indictments An Indictment of Death ought to comâ—rehend the day of the stroke and day of 〈◊〉 death and the same Law of Poyâ—ning so that it may be known if he â—â—ed of the same stroke or not 24 H. 8. â— Indictments 41. By Fitz Just. a Justice of Record may 〈◊〉 indicted of taking of money and other â—â—ch falsity but not of that which goes in â—â—lsifying or defeating of the Record as 〈◊〉 say that he altered the Record from â—respass into Felony and the like which â—â—lsifies the Record Casus B. Indictâ—ent 50. the end Intrusion Tenant in Tayl of Lands holden of 〈◊〉 King aliens without license which found by Office the King shall have 〈◊〉 Issues of the Land à tempore inquisitiâ—â—nis capt and not before B. Alienatâ—ons 26. in medio But where the tâ—â—nant dies and hisâ— heir enters upon Offâ—â—â— found for the King of the dying seised the ancestor there the heir shall answâ—â— the profits taken by him before 26 H. B. Intrusion 18. the end Note where 't is found by Office thâ— I. N. tenant of the King was seized aâ— died seized and that W. his heir intrudeâ— and after by Act of Parliament the Kiâ—â— pardons all Intrusions in this case the eâ—try and the offence is pardoned but not 〈◊〉 issues and profits for the escheat or shâ—â— be charged of this by way of accouâ—â— whether he hath received them or not 〈◊〉 when the office is of Record he ought receive them except where 't is found the Office that such a man took the proâ—â— thereof But where the King pardoâ— where no Office is found the heir is â—â—â—charged as well of the issues and profâ—â— and also of Livery as of Intrusion by râ—â—son of the pardon for by this is pâ—â—doned And there though the Office comes after which findes the intrusion of the heir yet all is gone by the Pardon and this shall serve because all was pardoned before to which the King was intitled of Record 33 H. 8. B. Charters de pardon 71. Intrusion 21. Issues returns 22. Office shall have relation to the death of the ancestor as to Land descended to the heir of the Kings tenant and as to intrusion B. Relation 18. the end Otherwise as to alienation made by the Kings tenant without License this shall not relate before the finding of it B. Relation 18. Intrusion 19. And such entry by purchase is not called Intrusion but a Trespass and so are the words of the pardon thereof quod pardonamus transgression ' praedict c. 33. H. 8. B. Intrusion 19. Joyntenants If a Lease be made to three of Land at Common Law for term of life or for yeers habendum successivè yet this is a â—oynt estate and they shall hold in Joynture and successivè is void But where the custom of Copie-holds is that this word successive shall hold place this is good there by the custom 30 H. 8. B. Joyntenants 53. Leases 54. If a man infâ—offs two upon condition that they shall infeoff W. N. before Michael ' and the one dies the other sole makes the Feoffment this is good The same Law if two lease Land rendring rent and that if it bearrear by two months and lawfully demanded by the said Lessors that they may re-enter the one dies and the other that survives demands it and 't is not paid he may re-enter And the same Law if the Lease were made to two with words that if it be arrear and demanded of them two c. and the one dies and the Lessor demanded it of the other that survived and he doth not pay this is a good demand and the Lessor may re-enter 33 H. 8. B. Joyntenants 62. Journeys accounts Grantee of a next presentation brings a Q. impedit and dies after the six months past and his Executors bring another Q. impedit by Journeys accounts and by the Justices it will not lie See Tit. Q. impedit Judgement A man recovers by default against an â—â—fants and the Infant brings a Writ of â—â—rour and reverses it for his non-age â—therwise if he had appeared and lost 〈◊〉 plea or by voucher he shall not reâ—â—rse it for non-age B. 6 H. 8. Saver de fault 50. If I have Title by Formedon or cui vita and enter and the other recovers â—gainst me I am remitted to my first actiâ—â— But if a man recovers against me by â—â—lse Title by Action tried where I was by good Title I shall then have Error 〈◊〉 Attaint or a Writ of Right 23 H. 8. â— Judgement 111. Assise in Com. B. the tenant pleads in â—â—ar a recovery by Assise by him against 〈◊〉 Plaintiff of the same Tenements in â—om O. and this now Plaintiff then â—â—nant pleaded in Bar by release of the â—ncestor of the Plaintiff with Warranâ—â— which was void by non-age and â—his found for the Plaintiff by which he â—ecovered against this Plaintiff judgement si where he accepts the Land to be in the Country of O. now he shall be received to say that it lies in the County 〈◊〉 B. And 't was said in the Common Benchâ— that though this Land were then put 〈◊〉 vJew the Plaintiff shall not be bound 〈◊〉 the recovery for it cannot be intended one and the same Land 25 H. 8. â— Judgement 62. Assize of Land in N. the Defendanâ—â— said that once before he brought an assizâ— of the same Land in H. against the samâ— Plaintiff and these Lands put in vJew and this now Plaintiff then took the â—â—nancie and pleaded in Bar and said thâ— H. and N. are one and the same Ville an known by the one name and the
that Tail may be of a Copyhold and that a Formedon mayly of it in Discender by Protestation in nature of a Writ of Formedon in Discender at common Law and good by all the Justices for though that a Formedon in Discender was not given but by Statute yet now this Writ lies at common Law and it shall be intended that this hath been a custome there de tempore c. and the Demandant shall recover by advise of all the Justices 15 H 8. B Tenant per Copy 24. Where a Stuard or under-stuard may let by Copy e contra See Tit Court baron Note that if a man leases a Mannor for yeeres in which are Copy-holds and after a Copyholder dies the termer of the Mannor grants the land by Copy for three lives this is good for the custome through all England is that the Lord for the time being may demise by Copy c. and this notwithstanding that hee is but durante bene placit or at Will And 't is held that such Tenant of a Mannor cannot demise reserving lesse rent then the ancient rent but he ought to reserve the ancient rent or more quaere of that Tenant by sufferance see Tit Tenant at Will Tender 'T is said for Law that upon a Lease for yeers rendring rent with re-entry the Lessee ought to bee ready all the day and make attendance to offer it and it suffices for the Lessor to come any time of the day yet the entry is that the one and the other attended the intire day quaere inde 36 H 8. B Conditions 192. the end Entre Congeable 2. the end Note that 't was agreed in the Serjeants Case that where a man leases Land for yeeres rendring rent and for default of payment a re-entry it suffices for the Lessee to tender the rent upon the Land the last houre of the last day of the Moneth if the money may bee told in that time And so it sufficeth for the Lessor to demand it the same houre 4 M 1. B Tender 41. If a man Leases for yeeres rendring rent at Michaelmasse and other Covenants if hee bee bound in an obligation to pay the rent precisely there hee shall seeke the Lessor but if hee be bound to perform the Covenants c. The tender upon the land sufficeth for there the payment is of the nature of the Rent reserved Contrary in the first Case 6 E 6. B Tender 20. Tenures What shall bee a Tenure and what a Condition see Tit. Conditions What shall bee a Tenure in Capite of the King what not see Tit. Liverie A man makes a Feoffment of the moytie of his Land the Lessee shall hold of the Lord by the intyre services which the intire Land was holden before for the Statute of Quia emptores terrarum tenend pro particula holds not place here for a moytie is not particula the same Lawe of a third part and the like which goes by the halfe and the whole contrary of an acre or of two acres in certain And if a man holds two acres by a hauke and makes a Feoffment in Fee of one acre the Feoffee shall hold it by a hauke and the Feoffor shall hold the acre by another hauke 29 H 8. B Tenures 64. Restitution by Parliament revives a Seigniory or Tenure which was extinct by attainder of Treason by Parliament See Tit. Extinguishment See in the Exchequer 3 E 3. Ro 2. 't was found that a man held of the King in Knight service in capite ut de honore suo de Rayleghe and 't was taken no tenure in capite but a tenure of the honour and therefore his heir shall have ouster Omaine of his other Lands which should not be if it had been in capite for then the King shall have all in Ward by his Prerogative yet otherwise 't is if the Honour be annexed to the Crown for then the Honour is in capite And 11 H 7. the Honour of Rayleghe was annexed to the Crown therefore now 't is in capite And where the King gives Land to hold of him by fealty and 2 d. pro omnibus servitiis this is Socage in capite for 't is of the person of the King otherwise if it were to hold ut de manerio de R. 33. H 8. B Tenures 94. 'T is held that if a man made a Feoffment of land before the Stat of Quia emptores terrarum to hold of him and to make suit to his Court this is good if he hath a Court But a man cannot commence a Court by tenure made where he had not a Mannor before for there the services should be holden of his person B Tenures 34. And a man cannot make a Mannor at this day though that he gives Land in tayl to hold of him and by suit of his Court for he cannot make a Court for a Court cannot be but by continuance And so a Man may make a tenure but no Mannor nor Court for a Mannor and Court cannot be but by usage had de tempore cujus contrarium memoria hominum non existit Testament Testament by a Feme Covert of the assent of the husband See Tit Devise A man devises his Land to I S this shall be taken but for term of his life but if he saith paying a 100. l. to W N this shall be intended a Fee-simple and if he doth not pay it in his life yet if his Heir or Executor pay it that suffises Quaere of his Assignee 29 H 8. B Testament 18. If a man holds three severall Mannors of three severall Lords in Knight service and every of them of equall value he cannot make his will of two of the Mannors leaving the third Mannor to the Heir but of two parts of every Mannor for otherwise he shall prejudice the other two Lords 35 H 8. B Testament 19. Note by the Doctors of the Civill-Law and Serjeants of the Common-Law if a man makes his Testament and names no Executors this is no Testament but yet 't is a good Will of the Land in it for those are not Testamentary but in the first where Executors want yet the Legacies shall be paid But if it appears that he made part of the Testament and not the whole there the Legacies shall not be paid And where a man makes a Testament and Executors and they refuse yet the Legacies shall be paid for there is no default in the Testator and the Testament shall be annexed to Letters of Administration 37 H 8. B Testament 20. Note for Law by the Chancellor of England and Justices That if the Tenant who holds of the King in Knight service in capite gives all his Land to a Stranger by act executed in his life and dyes yet the King shall have the third part in Ward and shall have the Heir in Ward if he be within age And if of full age he shall have
the arrearages for they are reall and parcell of the rent or annuity But if the Judgment be of arrearages and dammages there he shall have his age B. age 50. And where he recovers in a Writ of annuity or assise as before Or hath avowed for a Rent which is Freehold and recovers the arrearages without costs and damages he shall not have an action of Debt of that but a Scire facias for t is real But where he hath Judgement of it with costs and dammages which go together so that that t is mixt with the personality then lies a Writ of Debt against the Heir of the arrearages and dammages and this B. thinks in default of Execution per curiam 23. H. 8. B. Debt 212. age 50. Note That of the Land of the Duchy of Lancaster and other Lands which the King hath as Duke or the like his age is material and he may have his age as another common person may for he hath them as Duke not as King B. Age 52. 78. As if the King alien Land parcel of his Dutchy of Lancaster within age there he may avoid it for Non-age for the reason aforesaid otherwise of Land which he hath as King for the King cannot be disabled by Non-age as a common person shall B. Prerogative 132. Yet by the Statute of 1. E. 4. which is a private act not printed but inrolled in the Dutchy Chamber by which King H. 6. was attainted of Treason and that all the Lands of the said Dutchy should be forfeited and should be a Dutchy separated and incorporated c. t is annexed to the Crown but by another private act 1. H. 7. t is disannexed and made as in the time of H. 4. 1. E. 6. B. Age. 52. Note t was in a manner granted by all the Justices in the Common Bench That if a Parson Prebend or the like be within age of 21 years and makes a Lease of his Benefice within age that yet this shall binde him for where he is admitted by the Law of holy Church to take it within age so the Common Law inables him to Demise his Benefice within age 4. Mar. 1. B. Age. 80. Alienations If the Tenant of the King alien in Fee without licence and die his Heir within age the King shall not have the Ward because that nothing is discended to him and that the Alienation is good save the Trespass to the King which is but a Fine by Seiser B. Alienations 29. Gard 85. But otherwise if the Alienor were Tenant in Tail and if the Alienation without licence be found by office the King shall have the Issues of the Land from the time of the Inquisition taken and not before B. Alienations 26. in medio But where the Tenant dies and his Heir enters upon an office found for the King of the dying seised of the Ancestor there the heir shall answer the profits taken by him before 26. H. 8. B. Intrusion 18. the end T is said for Law That a fine for alienation is one years value of the land aliened and the same Law of a Fine for intrusion upon the King But the Fine to have licence to alien is but the third part of the yearly value of the land which shall be aliened and for licence to alien in Mortmain the Fine is the value of the Land for three years 31. H. 8. B. Alienations 29. the end If a man obtain licence to alien the Mannor of D. and all his Lands Tenements in D. he cannot alien by Fine for the Fine shall be certain so many acres of Land so many of Meddow so many of Pasture and the like and the alienation ought not to vary from the Licence Yet by B. t is otherwise used with an averment that all is one 32. H. 8. B. Alienations 30. Note if there be two Joynt-tenants who hold of the King in Capite and one releases to the other all his right this is no alienetion nor doth he need Licence or pardon of it for he to whom the Release is made is in by the first feoffor and not by him that Released nor shall he Fine for such release and so t is used in the Chequer that t is no alienation But if three Joynt tenants are and the one Releases to one of the others there he is in of it by him that releases Contra if he had released to all his compagnions and where a man Releases by Fine to the Tenant of the King this is no alienation Otherwise of a Fine Sur Conusans de droit Com ceo c. for this is an estate made by Conclusion 37. H. 8. B. Alienations 31. Tenant of the King in Capite cannot alien for term of life without Licence for it alters the Freehold Time H. 8. B. alienations 22. the end Note That for Burgage Tenure of the King a man may alien without licence well enough 6. E. 6. B. Alienations 36. Note That a Devise by Testament was taken to be an alienation 3. Mar. 1. B. alienations 37. Alien See Tit. Denizen Note by the whole Court in the Kings Bench an alien may bring an action personal and shall be answered without being disabled because he is an alien born otherwise in an action real and the same B. seems in an action mixt and he may have a property and buy and sell. 38. H. 8. B. Denizen 10. Nonability 40. T was said in the Kings Bench That to say that the Plaintiff is an alien born Judgement if he shall be answered is no plea in an action personal otherwise in an action real Yet this hath been in question after this time in the same Court and t was said that an alien born is no plea in Trespass if he doth not say further That the Plaintiff is of allegiance of one such a one enemy to the King for t is no plea in an action personal against an alien that he is of the allegiance of such a Prince which is of amity with the King 1. E. 6. B. Nonability 62. If an alien born purchase the King shall have it but the purchase ought to be found by office and so t was in the case of Alien King and B. seems that an information in the Chequer will not serve in this case Time E. 6. B. Denizen 17. the end T was said in Parliament That if an alien born obtain a Lease for years that the King shall have it for he cannot have Land in this Realm of no estate 4. Mar. 1. B. Denizen 22. Amendment By Fitzherbert and the Court where a Writ of Error was sued to remove a Record out of the Common Bench into the Kings Bench betwixt an Abbot and I. N. the Warrant of Attorney varied in the Roll in the name of the Abbot and t was amended after Judgement and if they had not amended it they said that those of the
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
name of the thing demanded B. Averments 42. as if a Precipe quod redd be brought of the Mannor of B. or the like the Tenant pleads a Fine Recovery or the like of the Mannor of G. he ought to aver that the one and the other are one and the same Mannor not divers contrary if he pleads a Fine or recovery de predict Manerio de B. for this word predict is in effect an averment that all is one B. Pleadings 143. And where a man pleads a Recovery by a strange name of the parties he ought to aver that the first person and this person are all one and not divers Otherwise B. seems where he pleads it by this word predict 33. H. 8. B. Averments 24. T was said for Law That an averment is not necessary in an avowry viz. hoc parat est verificare for t is in lieu of a Declaration and the avowant is actor 3 M. 1. B. averment 81. Avowry Lord and Tenant by Fealty 3 pence Rent the Lord dies his wife is endowed of the Seigniory she may distrain for 1 peny the Heir for 2 pence so now the Land is charged with two distresses where it was charged but with one before but this is not inconvenient for he shall pay no more Rent then before The same Law where the Lordship is divided by partition between Heirs Females and the like 24. H. 8. B. Distresse 59. Avowry 139. If two Copartners make partition and give notice to the Lord he ought to make several avowries And if a man sell his land by Deed indented inrolled within the half year according to the Statute the avowry is not changed c. without notice no more then upon a Fine Yet B. doubts of of a Conusans de Droit com Ceo. c. but if a man recover against the Tenant or if the Tenant is deseised the disseisor dies seised and his heir is in by discent so that the entry of the disseisee is taken away the avowry shall be changed without notice The same law if the Tenant make a Feoffment and dies the Lord shall change his avowry without notice for nothing is discended to the heir of the Feoffor And where notice â—s necessary it shall be done upon the Land holden with tender of the arrearages for otherwise the Lord shall lose his arrearages if he avows or accepts service of the Feoffee c. before the arrearages paid Ideo caveatur inde 29. H. 8. B. avowry 111. 146. In a Replevin if the Defendant avows because that A. was Lord and was seised by the hands of B. then Tenant c. of such servises he may convey the estate of the said B. in the Tenancy to the Plaintiff in the Replevin by a que estate without shewing how but he cannot convey to himself of the said A. in the Seigniory by a que estate without shewing how for the Seigniory is there in demand and not the Tenancy 34 H. 8. B. avowry 7. que estate 2. the end Note That he which avows upon the Land as within his Fee or Seigniory by the Statute shall aleadge a seisen as in other avowry and then shall conclude his avowry upon the land as within his Fee and Seigniory and in such avowry every Plaintiff in the Replevin be he Termor or other may have every answer to the avowry as to traverse the Seisen the Tenure and the like which are a good answer in an avowry or plead a release or the like as Tenant of the Free hold shall though he be a stranger to the avowry for such avowry is not made upon any person certain therefore every one is a stranger to this avowry and so the Plaintiff may have every answer which is sufficient 34. H. 8. B. Avowry 113. 'T was agreed that to say That the place where c. is 4. acres which is and was the time of the caption his Freehold for which he distrained and took the beasts for dammage Feasent was a good avowrie 4. E. 6. B. avowrie 122. '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 falls he shall have the Wardship of the heir for the seisen 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. avowrie 96. the end Ward 69. Note That 't was agreed that at this day by the limitation of 32. H. 8. the avowry shall be made generally as was used before and if there were not seisin after this limitation then the Plaintiff in bar of the avowry may alleage it and traverse the seisin after the limitation B. avowry 107. Also where a man brings an action real or mixt or makes avowry or Conusance and issue is taken upon the seisin infra tempus Statuti and t is found against the Demandant Plaintiff or Avowant this is peremptory by the same Statute 1. M. 1. B. Peremptory 78. Averment is not necessary in an Avowry See Tit. Averment Barre WHere a Fine with Proclamation or a Recovery shall bar an estate tail where not and where the Reversion is in the King with other good matter concerning Fines See Tit. assurances Bastardie Note That t was taken by the Commons house of Parliament if a man marry his Cosin within the degrees of Marriage who have issue and are divorced in their lives by this the espousals are avoided and the issue is a Bastard Otherwise if the one die before divorce there divorce had after shal not make the issue a bastard for the espousals are determined by death before and not by the divorce And a dead person cannot bring in his proofs for divorce after the death of the parties is but ex officio to inquire de peccatis for a dead person cannot be cited nor summoned to it 24 H. 8. B. bastardie 44. D'arraignement 11. Battel T is said that if an appeal of Murther be brought in the Kings Bench the Defendant joyns battel it shall be before the Justices of the Kings Bench and not before the Constable and Marshal 5. M. 1. B. battail the end 16. Bill 'T was said That a Premunire shall be maintainable by Bil in the Kings Bench though that the party be not in custodia marescalli B. Bill 1. And 't was common that many Clerks were compelled to answer to bills there who were not in Custodia marescalli 22. H. 8. B. Premunire 1. Cerciorari T Was agreed in Chancery That there is no Certiorari in the Register to remove a Record out of a Court into the Common Bench immediatly but it shall be certified in the Chancery by Surmise then to be sent into the Common Bench by Mittimus And indictments may be removed out
and cannot finde the other by the day this shall not binde the others to whom t was not delivered And the reason B. seems because that in this case they might have made 3 parties and have delivered to every party one 37. H. 8. B. conditions 46. the end T is said by the Court in the Kings Bench in Debt upon an obligation to keep without dammage S. harmless where the Defend pleads that he hath saved him harmless t is no plea without shewing how for he which pleads a discharge or saving harmless ought to plead it certain when he pleads in the affirmative Otherwise where he pleads in the negative for if the Plaintiff be not dempnified he may plead quod non damnificatus est generally 37. H. 8. B. conditions 16. 198. in finibus If a man be bound in an Obligation to pay 10 l. to the obligee at Paris beyond Sea at a certain day if the Obligor pay at another place and the same day in England and the other accepts it t is good clearly B. conditions 206. And t is said in debt upon an obligation to acquit save without damage quod non damnificatus est is a good plea for t is in the negative and therefore good without shewing how but where he pleads that he hath kept him without dammage in the affirmative he shall shew how 38. H. 8. B. Conditions 93. the end If a man let land for term of life upon condition that if he doth not go to Rome by such a day that his estate shall be void and the lessor grants the reversion over the Tenant attorns and after he doth not go yet t is not void till entire by Bromley chief Justice 2. M. 1. B. Conditions 245. the end Confess and avoid Replevin the defendant said that B. was seised in fee and leased to E. for 40 years which E. granted his interest to the defendant 38. H. 8. by which he was possessed and distrained for damage feasant the plaintiff said that the same E. 28. H. 8. granted his interest to him he shall not traverse the Grant 38. for hee hath confessed and avoided it by the eldest grant obtained 2. E. 6. B. Confess and avoid 65. Confirmation Bishop charges or grants an office with the assent of the Deane and Chapter and dyes this is worth nothing by some for it ought to be confirmed by the Dean and Chapter And this fell out in the grant of the Stewardship of the Bishop of London betwixt Aldred Fitzjames and John Edmunds of the middle Temple where the Bishop granted the Stewardship of his lands to A. F. by the assent of the Dean and Chapter and died by which the grantee lost the office as t is said because the Dean and Chapter had not confirmed it yet more was in the grant of the Bishop as Misnosmer and the like for the said A. F. was named Etheldredus where it should be Aldredus and so he was misnamed Also there was a default in the Seale B. Charge 58. Confirmation 30 And also the Deed was Quod sigillum nostrum apposuimus which may bee referred to the Bishop onely and not to the Bishop Dean and Chapter And therefore by more to this day the grant was avoided for these causes and not for the other cause and so a grant with assent of the Dean and Chapter with all perfections is good 33. H. 8. B. Confirmation 30. the end If the bishop be patron and the parson makes a lease or grant by deed there the Bishop patron and the ordinary and the dean and chapter ought to confirm if the grant or lease shall be sure otherwise where a lay man is patron in fee and he and the ordinary confirmes this suffices without the dean and chapter for in the first case the Bishop patron hath an interest in inheritance to the Bishoprick But in the other case he hath but a judicial power therefore it suffices that he who hath the power at the time c. confirmes for t is a judicial act But in the other case it bindes the inheritance which he hath in jure Ecclesiae which he cannot do against his successor without confirmation by the dean and chapter 33. H. 8. B. Confirmation 21 Charge 40. Leases 64. Patet hic that the patron ought to have a fee simple and this juri proprio because of the dean and chapter to be joyned with the Bishop where he is patron B. Charge 40. Note that if the King for him and his heires grants Catalla felonum fugitivorum or the like which lie in grant and dies the grantee needs no confirmation of the new King But if it be a fair or market or the like and t is abused or misused as it may be or if it be a judicial or ministerial office or power as to be a Justice of peace Escheator or the like there he ought to have a confirmation of the new King B. Confirmation 19. 29. yet B. seems that the grant of a thing which lies in grant is good clearly without these words for him and his heires But of warranty covenant Annuity or the like there he ought to make it for him and his heirs 33. H. 8. B. Confirmation 19. Conscience If a man buyès land and the vendor executes an estate to the vendee Habendum sibi imperpetuum without words of heires where the intent of the bargain is to pass a fee simple and the vender upon request refuses to make other assurance there lies a writ of Subpaena 32. H. 8. B. Conscience 25. Audely Chancellor of England held clearly that if a man sell his land before the Statute of Uses this shall change the use of the fee simple And the same Law of a sale by Indenture by the Statute of 27. H. 8. without words heires Time H. 8. B. Conscience 25. the end Continuances Note that in the common recoveries by sufferance for assurances the Tenant tenders issue the demandant may imparle to a day in the same terme and then the Tenant is demandant and retracts and judgement is given for the demand against him and after the Tenant over in value upon the vouchee c. Regulae 22. H. 7. B. Continuances 69. Contract A man sells a lease of land and certain cloath for 10 l. the contract is intire and if the one of these were by defeasible Title yet the vendor shall have the intire summe though the one part were devested from the vendee for contract cannot be severed 24. H. 8. B. Contract 35. If a man be indebted to me upon contract and after makes to me an obligation for the same debt the contract by this is determined for in debt upon the contract t is a good plea that he hath an obligation for the same debt So if the obligation be made for parcell of the contract which is intire 3. H. 4. 17. But if a stranger makes an obligation to
Dalyson Justices Dyer Serjant and Griffine and Cordell Attorney and Soliciter And t was agreed that Counsellers who give evidence against Traytors are not accusers And by the Civill Law accusers are as parties and not witnesses for witnesses ought to be indifferent and not come till they are called but accusers offer themselves to accuse for t is a good challenge to witnesses to say that he was one of his accusers 4. M. 1. B. Corone 219 'T was said for Law that a man cannot abjure for high treason Quaere of petty treason for t is manifest in a Chronicle in the time of H. 6. that a woman that killed her Mistress abjured the Realm 5. M. 1. B. Corone 180. the end Manningt ' and another were indicted of felony in the high way in the County of Bedford for robbery of one Edward Keble Clerk with daggs the indictment and the body were removed into the Kings Bench and there they were arraigned and pleaded not guilty to the countrey and were tried But after a writ was sent with the body into the countrey with Nisi prius to trie them in the county of Bedford And this is a common course so to remove the body and the Record out of the Kings Bench to the countrey again 4. M. 1. B. Corone 230. A man takes Church and the Coroner comes to him and demands of him for what cause he does it who said that he would be advised by 40. days before that he would declare his cause the Coroner may draw him out presently but if he will confess to him felony he may remain there by 40 days before that he abjures Otherwise where he takes Sanctuary as Westm ' Knoll and the like for this may hold him for term of life except in case where a Statute changes it B. Corone 180. Sanctuary 11. But if he will abjure within the 40 days the Coroner shall give him a certaine day to doe it B. Corone supra None shall take priviledg of the church except that he be in danger of his life B. Corone 181. Nor none shall have the priviledg of Sanctuary except he in periculo vitae And note that Sanctuary cannot have a lawful commencement Nisi pro vita hominis as for treason felony or the like and not for debt therefore where a grant or prescription is to have Sanctuary for debt t is worth nothing for t is against the Law But if his body were in execution and he escapes and comes to a Sanctuary ordained for safeguard of the life of a man he shall enjoy it for by long imprisonment his life may be in jeopardy And if the church be suspended for bloodshed yet he which takes the church for felony shall enjoy it by 40 daies B. Sanctuary supra There are two manner of Sanctuaries S. private as Westminster Knoll and the like And general sanctuaries as every church B. Corone 181. the end Abjuration for felony discharges all felonies done before the abjuration A man cannot abjure for petty larceny but for such felonies for which he shall suffer death Lecture B. Corone 182. Note that these words Quod pred vitam membra in a Statute are intended felony without the word of felony in it Regula B. Corone 203. Corporations Note that the Justices of the common bench accords in case of a corporation that known by the one and the other in a suite by a name known is no plea for the plaintiff for he ought to acknowledge his proper name But if the defendant be named by the plaintiff by a name known though the defendant be corporate it suffices Yet Quaere if there be not a diversity betwixt an action real and an action personal 25. H. 8. B. Corporations 82. By Fitz. â—f the Abbot and Covent sel all the lands and the Abby yet the Corporation remains Quaere by B. of what he shall be Abbot for there is no church nor monastery And by him Quaere if the Abbot die if they S. the Covent may chuse another the house being dissolved 32. H. 8. B Corporations 78. See Tit Extinguishment The King makes a Duke or Earl and gives to him 20. l. of land or the like by the same name so that the creation and the grant is all by one and the same patent yet t is good And the same Law of making a corporation and giving to them land by the same patent and name 2. E. 6. B. Corporations 89. Costes Note by Spilman Justice that at common Law a man shall recover costs in a Quare impedit but otherwise after the Statute of Westm. 2. cap. 5. because the Statute gives great dammages in a Quare impedit 22. H. 8. B. costes 25. Note where an action penal is given by Statute to recover a great summ by action of Debt for ingrossing or the like there the Plaintiff shall not recover costs nor dammages in this action of Debt 35. H. 8. B. Dammages 200. costs 32. T was said That if a Lessor brings Debt against his Lessee for years for Rent and the Plaintiff is nonsuit or if the inquest pass against him he shall render costs to the Defendant by the Stat. for a Lease for years rendring rent is a contract 2. M. 1. B. costs 23. Covenant Where an assignee shall be charged with the Covenant of his Grantor See Tit. Assignee Plea of Covenants perform generally without shewing how is no good plea See Tit. conditions T is said by the Justices That a Writ of Covenant lies upon an Indenture without this word Covenant and grant for him his heirs and executors 1 M. 1. B. covenant 38. the end Coverture Note that a Statute Staple nor Deed enrolled shall not be accepted of a Fem Covert by the Common Law contrary by the custom in London of a Deed enrolled for this shall binde in London as a Fine at Common law B. coverture 59. 76. the end Nor a Fine Statute nor Deed enrolled shall not be suffered by an Infant 32. H. 8. B. coverture 59. the end Count. Precipe quod reddat against Tenant for life who prays in aid of him in reversion who appears gratis and joyns in aid and the Demandant counts de Nono against the Tenant and the Prayee and they vouch the common Voucher and suffer recovery for assurance And yet t is said That the Priee shall not have Oyer but of the Count. cusus 22. H. 7. B. count 87. Court Baron T was said that the Lord of a Mannor cannot hold Court nor do justice without two Suitors and if they die or if that there be but one suitor the mannor is determined for t is not a Mannor without Suitors 23. H. 8. B. Court baron 22. the end If an understeward holds a Court Baron and grants Copy-holds to the Tenants by Copy of Court Roll without authority of the Lord or high Steward this is a good grant for in
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
cause the owner may make rescous but if he impounds them the owner cannnot justifie the breaking of the pound and taking them out for they are in Custodia Legis 4. E 6 B. Distress 74. Rescous 12. the end Done Gift Devisee for life of a Chattell the remainder over he for life gives the Chattell whether this shall barr the remainder See Tit. Chattells T is said for Law that if a man gives omnia terras tenementa sua in D by this leases for years do not pass for these words lands and tenements shall be intended free hold at least 37. H. 8. B. Done 41. The difference betwixt a gift in Remainder Heredibus masculis de corpore rectis Heredibus See Tit. Discent T was granted by Shelly Justice and others that if the King give a Chattell without deed and the donee takes it by his commandment t is good 2. E. 6. B. Done 16. the middle If a man gives or grants omnia bona sua leases for years nor award shall not pass for they are Chattels reals And B. seems that a grant of Prox ' present Ecclesiae unica vice is a Chattell non bona for bona are goods moveable living and dead but not Chattels 4. E. 6. B. Grants 51. Done 43 Dower A woman shall not be endowed of a rent reserved upon a lease of her husband for term of life for the rent is not an inheritance and t is determinable upon the death of the Lessee and yet the heir shall have it for t is incident to the reversion And where a man seised in fee leases for years rendring rent and afterwards takes wife and dies the wife shall have dower of the land but shall not have execution during the term of years for elder title c. and she cannot be indowed of the rent for the cause aforesaid 1. E. 6. B Dower 89. Note by the Justices by the Statute where a man makes his wife joynt purchaser with him after the coverture of any estate of free-hold except it be to him and his wife and their heires in see simple this is barr of Dower if she agree to the joynture post mortem viri otherwise of fee simple for such joynture is not spoken in the Statute Nor a devise of land by the husband to the wife by testament is no barr to Dower for this is a benevolence and not a joynture 6. E. 6. B. Dower 69 Dum non fuit compos mentis Note that if a Judge or Justice be of non sane memory yet the Fines Judgements other records which are before him shal be good But otherwise of the gift of an office or the like by him for this is matter in fact and the others are matters of record for matters in fact may be avoided by non sane memory otherwise of matter of record 1. M. 1. B. Dum non fuit compos mentis 7. Ejectione Custod T Was said that a man shall have a Writ de Ejectione custodie of a rent and this before seisin of it for seisin in Law shall be thereof adjudged by reason that he cannot receive it before the rent day Yet otherwise of land for there he may enter 23 H 8 B. Quare ejecit infra terminum 5. Enquest Note betwixt the King and the Bishop of Rochester for Treason the Bishop shall not have Knights in his Jury where Knights ought to be returned when a Peer of the Realm as a Bishop and the like is party yet quaere if it were challenged 27. H. 8. B. Enquest 100. T was holden in the common Bench by the Prothonatories if a protection be cast at the day of Nisi prius and the Justices take the Jury de bene esse and at the day in bank the protection is allowed now though the first â—aking is void yet the Inquest shall not be recharged by resummons for when the Inquest is once sworn and give verdict they shall never be sworn again upon this issue 2. M. 1. B. Enquest 86. Entre congeable lawfull Entry Tenant for term of life aliens to B. to have to him and his heires for term of life of Tenant for term of life this is no forfeiture for all is but the limitation of the estate B. Forfeiture of lands 87. And if Tenant for terme of life suffers a recovery he in reversion cannot enter but is put to his Writ of Entrie ad terminum qui preteriit or Writ of Right and shall falsifie the recovery in it if he hath cause And if he will have it sure the Tenant for life ought to pray in aid of him in reversion and if he joynes in aid and both vouch over then well upon recovery had c. as betwixt Corbet and Clifford in the Countie of Buck ' this year But if Tenant for life be impleaded and prayes in aid of a stranger he in Reversion may enter for this is a forfeiture But if he doth not enter till the other hath recovered then he cannot enter but is put to his writ of Entrie ad terminum qui preteriit vel ingres ad communem legem and shall falsifie the recovery there 24. H. 8. B. Entrecongeable 115. Fauxifier 44. Forfeiture of Lands 87. the end Cestuy que use in tail suffers a recovery against him upon a faint title before the Statute of Uses and dies the Feoffees cannot falsifie it in an assise by way of entry but shall have a writ of entry ad terminum qui preteriit or a writ of right and shall falsifie it by this action B. Entre congeable 123. Fauxifier 49. And if he Leuies a fine with proclamation and dies if a stranger of his own head enters in name of the Feoffees or to their use within the 5 years this shall avoid the â—ine though the Feoffees did not command him for by this the freehold is in them till they disagree or till another enters 31. H 8. B. Entre congeable 123. the end T was doubted if a recovery had against cestuy que use in tail shall binde the heire in tail But by Hales Just. by such recovery the entry of the Feoffees seised to the use of the estate taile is taken away but after the death cestuy que use who suffered the recovery the Feoffees may have a writ of right or writ of entrie ad terminum qui preteriit in the post or the like And by some there is no use in tail but t is a fee simple conditional at the common Law as t was of a tail before the Statute of W. 2. And this Statute makes not mention but of gifts in tail which is tails in possession And therfore quaere if the tail in use cannot be taken by the equity of it yet t was doubted if the issues and the Feoffees shall be bound after the death of cestuy que use who suffered the recovery by reason of those words in the
Statute of 1. R. 3. which wills that the recovery shall be good against the vendor and his heires claiming only as heir and against all others claiming onely to the use of the vendor and his heires and this is intended by some of a fee simple and in the case afore the issue in tail claims as heir in tail in use B. Feoffements to uses 56. the middle Yet see the Statute of 32. H. 8. that a Fine with proclamation levied or to be levied by Tenant in tail in possession reversion remainder or in use after proclamation had shall binde those Tenants of those tails and their heire for ever And see that the same Statute is as well pro temporibus preteritis quam futuris 30. H. 8. B. Feoffements to uses 57. the end G. T. Knight seised in tail to him and the heires males of his body discontinues and retakes to him and E. his wife and to the heires of their two bodies and had issue T. and W. and died and after E. his wife survived and T. had issue E. nuptam T. W. and died and after W. by covin of E. his mother Tenant in joynture brings a Formedon upon the elder tail against his mother and she appeared the first day and W. recovered by Nihil dicit and T. W. and E. his wife heir to G. enters by the Statute of 11. H. 7. and the entry adjudged lawfull by the same Statute which wills such discontinuances alienation warranties and recoveries shall be void B. Entre congeable 140. Judgement 153. And it need not to say that the recovery was executed for because t was void it shal never be executed And E. the heir averred that he is the same person to whom the reversion appertained and shewed not how heir to it and yet good by Molineux and Hales Justices contra Brown and Mountague chief Justice of the Common Bench. But all agreed that t was a recovery by covin notwithstanding t was upon a true title And good notwithstanding he did not shew cause of covin 32. H. 8. B. Entre congeable 140. Collusion 47. Agreed for Law that if land escheat to the King which is in lease for years or charged with a rent charge and office is found for the King of the escheat the lease or grant not found in the office the lessee cannot enter nor the Grantee cannot distrian but if the King grant the land over the lessee may enter and the grantee may distraine But a man which claims free hold in the land cannot enter without traverse of the office by B. 33. H. 8. B. Entre congeable 124. Note that t is ruled in the Serjeants case that where a common person leases lands for years rendring rent with a clause of reentry and after grants the reversion over the tenant atturns the grantee may reenter for condition broken by the Statute by express words And the same Law of the grantees of the King E. 6. and all others heires to King H. 8. by the equitie of the said Statute which provides remedy for the patentees of the King H. 8. And for grantees of common persons 4. M. 1. B◠Entre congeable 139. T was said that where the interest of the King is certain and determined the party may enter quaere by B. Time H. B. Reseiser 36. the end Error 'T was said in the Kings Bench where a writ of Error beares teste before the first Judgement and the Record is certified in the Bench that 't is good and yet the Writ saith quod si judiciū reddit fit tunc Record process habeatis c. 5 E 6. B Errour Escape Debt upon an Escape against the Sheriffe who said That before the Escape the Prisoner was condemned in the said condemnation and in Execution ut in narratione in the time of a former Sheriffe who suffered him to Escape and after re-took and imprisoned him and was removed and this Defendant was made Sheriffe and after suffered him to Escape judgement is Of this second Escape you ought to have your Action and a good Plea for he hath confessed and avoided the Plaint for when the Prisoner first Escaped and the first Sheriffe re-took and imprisoned him This second Imprisonment is no Execution for the party but the Party is put to his Action for the Escape against the first Sheriffe 5 E 6. B Escape 45. Escheate Foundership cannot Escheate by death without Heir nor bee forfeited by attaindor of Felony or Treason for 't is a thing annexed to the blood which cannot be divided as 't was said after the augmentation Court took commencement for a man who is Heir to another cannot make another to be Heir Time H 8. B Corodies 5. the end Note by Brown Hales Cooke Justices if there bee Lord and Tenant by Fealty and Rent the Tenant is disseised and dies without Heir the Lord accepts the Rent by the hands of the said disseisor yet hee may enter for the Escheate or have a Writ of Escheate and the receipt of the Rent no barre for the Disseisor is in by wrong Otherwise if he had allowed for it in a court of Record or had taken corporall service as Homage c. So of acceptance of Rent by the hands of the Heir of the Disseisor or of his Feoffee which are in by Title 7 E 6. B Escheate 18. Essoign If the Tenant in a Praecipe quod redd prayes the vJew by Attorney his Attorney shall bee Essoyned upon the vJew But if he himselfe prayes the vJew in proper person then per plures none shall be Essoyned upon the vJew but the Tenant himself for after Processe upon a Voucher he himself shall bee Essoyned and by consequence in like manner shall be upon the vJew And note That granting of an Essoyn whereon Essoyn lyes not is not error Contrary of denying of Essoyn where it lyes 33 H 8. B Essoine 116. Estates The King gives Land to I S heredibus masculis suis and 't was adjudged by all the Justices in the Exchequer Camber that the Grant is void because the King is deceived in his Grant for it sounds in Fee simple whereas it seems the King intended but an estate tail which is not so expressed and therefore now he is but Tenant at will Otherwise in case of a common person 18 H 8. B Patents 104 Estates 84. 'T was said for Law That if a Feoffment bee made to W N during the life of I S these words during the life of I S c. shall be void for they are contrary to a Fee Contrary of a Feoffment in Fee so long as Pauls Steeple shall stand 21 H 8. B Estates 50. A man gives Land to two heredibus and doth not say suis This is no Fee-simple And 't was said that the reason is because that two are named in the Deed and therefore 't is incertain to which of them heredibus shall bee referred But if
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
6 E 6. B Fines Levies 93. Note that 't was agreed by the Justices that a Fine may be well levyed in a Hamlet and this notwithstanding all the houses are decayed but one The same of a Writ of Dower And the same Law of that which hath been a Ville and no wis decaid yet the name of the Ville remains as old Salisbury which hath at this day Burgesses of Parliament and the like 7 E 6. B Fines Levies 91. Forcible Entry Hee which hath been seized peaceably by three yeeres may retaine with force But if a Disseizor hath continued possession three yeers peaceably and after the Disseisee re-enters as he may lawfully and after the Disseisor re-enters hee cannot deteine with force because that the first disseisin is determined by the entry of the Disseisee and the Disseisee by this remitted and this Entry is a new Disseisin But if a man hath beene seised by good and just Title by three yeeres and after is disseised by wrong and after hee re-enters hee may retaine with force for he is remitted and in by his first Title by which hee first continued peaceably by three yeeres per quosdam for it seemes to them by the Proviso in the end of the Statute that this is good Lawe in the last Case and stands well with the Statute yet by some this is not Law therefore quaere 23 H 8. B Forcible entry 22. Forfeiture of Marriage 'T was said if a man brings a Writ of Intrusion maritagio non satisfac for the single value and makes mention in the Writ of tender of marriage to the Heir and that hee refused c. that the tender is not traversable Time H 8. B Forfeiture of Marriage 7. Intrusion 23. in finibus Forfeiture de Terre c. Forfeiture of Land c. What shall be a forfeiture of the Estate of Tenant for life what not See Tit Entry Congeable Richard Fermor of L was attainted in Premunire and his Lands forfeited in Fee in perpetuum and not only for term of life And so see 't is not only a forfeiture for life as in an attaint for the one is by Statute the other by the Common-Law 34 H 8 B Praemunire 19. the end Forfeiture 101. Note If a man bee attainted of Treason by Parliament by this his Lands and goods are forfeited without words of forfeiture of Lands or Goods in the Act 35 H 8. B Forfeiture 99. Foundership cannot Escheate nor be forfeited by attaindor of Felony or Treason See Tit Escheate Note by Hales Justice cleerly that â— Cleark convict shall lose his goods â— E 6. B Forfeiture 113. Formedon 'T is said that if the issue in taile bee â—arred by Judgement by reason of warranty and assets discended and afâ—er hee aliens the assets and hath issue â—nd dies the issue of the issue shall not â—ave a Formedon of the first Land tayâ—ed but if such thing happens before â—ee bee barred by Judgement the issue of the issue shall have a Formedon Time H 8. B. Formedon 18. Note If the Feoffees are infeoffed â—o the use of the Feoffor for terme of â—ife and after to the use of A in taile before the Statute of 27 H 8. of uses and after the Estates in uses are veâ—ted in possession by the same Statute and after the tenant for life dies and â—he tenant in tayle enters and disconâ—inues and dies and the issue brings a Formedon upon this matter hee shall â—uppose the Feoffor to be Donor and â—ot the Feoffees and the Writ shall â—ee generall quod dedit c. but the Declaration shall bee speciall and declare the whole matter That the Feoffor was seised in fee and enfeoffed thâ— Feoffees to uses ut supra and shew the Execution of the Estates by thâ— Statute of uses made 27 H 8. briefly and not at large and the seisin c. and the death of tenant for life and tenant in taile quod post mortem c. discend jus c. 2 E 6. B Formedon 49. Formedon upon a gift in Fee to thâ— use of the Feoffor and the Heirs of hiâ— body which is executed by the Statute of uses 27 H 8. and after thâ— Feoffor aliens and dies his issue shalâ— have a Formedon that the Feoffees 〈◊〉 derunt tenement predict to the father of the Demandant discendâ— jus c. for it cannot bee supposeâ— that the Feoffor gave to cestuy que usâ— which was himselfe for a man cannot give to himselfe and hee shaâ— make a speciall Declaration upon thâ— Feoffment to the use of the taile But where A makes a Feoffment in Fee to three to the use of a Stranger and the Heirs of his body which is exempteâ— by the Statute aforesaid and after who was cestuy que use aliens in feeâ— and dyes there his issue shall have a Formedon and shall say that the Feoffor gave to his father and not the Feoffees gave and shall make a speciall Declaration 7 E 6. B. Formedon 46. Generall Briefe 14. Note by Bromeley chief Justice That the Demandant in the case 2 E 6. before may declare generallly if he will and if the Tenant pleads ne dona pas the Demandant may reply and shew the speciall matter as appears there and conclude so he gave c. and good 1 M 1. B Formedon 49. the end Forme Note that Wood was put before Pasture in a Plaint of Assize and exception thereof taken and yet good though it be contrary to the Register Time E 6. B Faux Latin Forme 66. Franke-marriage Note that 't was said for Law that Land cannot bee given in Frank-marriage with a man who is Cosin to the Donor but it ought to be with a woman who is Cosin to the Donor Time H 8. B. Frank-marrige 10. Note 't is said for Law that a Gift in Frank-marriage the remainder to I N in Fee is not Frank-marriage for warranty and acquittall is incident to Frank-marriage by reason of the Reversion in the Donor which cannot be where the Donor puts the remainder and Fee to a Stranger upon the same Gift Time H 8. B Frank-marriage 11. Garde Warde IF the Kings Tenant Alien in Fee without licence and dyes his Heire within age the King shall not have the Ward because that nothing is discended to him and that the alienation is good save the Trespass to the King which is but a Fine by Seisure 26 H. 8. B Alienations 29. Garde 85. If the King hath an heir in Ward which is a Woman and marries her before the age of Fourteen years there she shall be out of Ward at Fourteen years and then may sue Livery for the Two years to make Sixteen years are not given but to tender to her marriage therefore when shee is married sooner shee shall be out of custody at Fourteen years 28. H. 8. B. Garde 86. Livery 54. A man
barre the demandant by which the demandant recovers and the tenant over in value that this land recovered in value shall not go to me in reversion after the death of the tenant for life nor the reversion of the land recovered in value shall not be in me in the life of tenant for life and so 't is holden at this day 25. H. 8. B. Recovery in value 33. Note by some where a writ of entry in the Post is brought against a husband and wife where the wifis tenant in taile and they vouch overe and so the demandant recovers against the husband and wife and they over in value if the wife tenant in taile dyes and the husband survives this shall not bind the issue in taile for the recompence shall go to the survivor and then it shall not bind the issue in taile Yet B. seems that this opinion is not law for the recompence shall go as the first land which was recovered should go And voucher by husband and wife shall be intended for the interest of the wife 25. H. 8. B. Recovery in value 27. the end Tenant for life the remainder over or tenant in taile the remainder over is impleaded by a writ of entry in the Post and he vouches a stranger the demandant recovers against the tenant and the tenant over in value this shall bind him in remainder by Monntague Just. and others for the recompence shall go to him in remainder But yet in the case of the Lord Zouch and Stowell in the Chancery the law was determined otherwise by all the Justices B. seems the reason because that when he vouches a stranger the recompence shall not go to him in remainder contrary if he vouches the donor or his heir who is privy But after this day many put inâ—ure to bind the remainder 27. H. 8. B. Recovery in value 28. Recovery against Feoffees seised to use in tailes See Tit Feoffements to uses 'T is held that where tenant for life is the remainder over in tail or for life and the tenant for life is impleaded and vouches him in remainder who vouches over one who hath title of Formedon and so the recovery passes by voucher there the issue of him who hath title of Formedon may bring his Formedon and recover against the tenant for life for the recompence supposed shall not go to the tenant for life and therefore he may recover for his ancestor warranted but the remainder and not the estate for terme of life and therefore the tenant for life cannot bind him by the recovery for he did not warrant to him And therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder and they to joyn and vouch him who hath title of Formedon and so to passe the recovery for there the recompence shall go to both 30. H. 8. B. Recovery in value 30. 'T was agreed that if tenant in taile the reversion to the King suffers a recovery this shall bind him and his issue but not the King by the common law See now the Statute of thereof that it shall not bind the issue 33. H. 8. B. Recovery in value 31. Taile 41. the end Relation Where an office found for the King shall relate where not See Tit. Intrusion Of the Relation of an Act of Parliament See Tit. Parliament Note that the attainder of Treason by Act of Parliament shall not have elder relation then to the first day of the Parliament except it be by speciall words that he shall forfeit his lands that he had such a day and after 35. H. 8. B. Relation 43. 'T is held for good Law that by attainder of felony by verdict a man shall forfeit all his lands that he had the day of his felony done or ever after for this shall have relation to the Act contra upon an attainder by out lawry For B. seems there that he shall not forfeit but those which he had the time of the outlawry pronounced or after for outlawry hath not relation as a verdict hath Time H. 8. B. Relation 42. the end Relation of an Inrolment See Tit. Faitz inrol Releases Husband and wife purchase in fee and after they lease for years by Indenture and after the husband releases to the lessee and his heirs this is no discontinuance and yet this gives a freehold to the lessee during the life of the husband Per plures without doubt 29. H. 8. B. Releases 81. G. Chancery was possessed of an Indenture and lost it and I. S. found it to whom the said G. C. released all actions and demands and after the said I. S. gave the same Indentrue to John Tison and after the said G. C. brought in action of detinue against the said I. T. who pleaded that the said I. S. found the Indenture and that the said G. C. released to the said I. S. all actions and demandes and after the said I. S. gave the said Indenture to the said I. T. Judgment if action And t' was agreed in the common Bench the case being of land demanded ibidem that this is a good barre and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land and of the property of the chattell which he had before And it was moved in the Kings bench and they were of the same opinion and said that the reason is because that entry in land and seisure of goods are demandes in Law 34. H. 8. B. Releases 90. Relief See Tit. Debt Remainder See Tit. Discent Remitter No Remitter against an Act of Parliament See Tit. Parliament Note a Per curiam if Tenant in Taile makes a Feoffement to his use in Fee before the statute of uses made 27. H. 8. and dyes before the said Statâ—te his heir within age and after the Statute is made before the full age of the heir by which the heir is in possession by the Statute he shall not be remitted by it Contrary of a discent after the Satute for this shall be a remitter 34. H. 8. B. Remitter 49 If a man hath a Tittle of entry and not a right of entry as by escheat mortâ—maine assent by a woman to a ravishoâ—â— and the like and takes an estate of thâ— terretenant he shall not be remited for he hath but a Tittle And a maâ— cannot be remitted but in respect oâ— a right before as where a man is diâ—seised and takes an estate of the disseisor he is remitted for he had a right of entry before And the same Law where a man decaies his Tenements or converts Land from tillage into pasture against the Statute and makes an estate for life to his Lord he shall have no other estate for he had but a Title of entry and not a right of entry Quaere for Non adjudicatur 34. H. 8. B.
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.
of England before the Conquest and other Armes after to his owne Armes and other pretences against the Prince and hee was tryed by Knights and Gentlemen and not by Lords nec per pares regni because that hee was not Earle by creation but by Nativity as Heir apparent of a Duke which is no dignity in Law for if hee had beene of dignitie by creation and Lord of Parliament he should be tryed by his Peeres 38 H 8. B. Treason 2. 'T was agreed that for misprision of Treason or if a man knowing counterfeit money and imports it out of Ireland into England and utters it in payment or the like a man shall lose his goods for ever and the profits of his Land for his life and shall be imprisoned for term of life 6 E 6. B Treason 19. the end Note that it appeares by divers Records and Presidents that these words compas or imagine the death of the King are large words for he that maliciously devises how the King shall come to death by words or otherwise and doth an act to explain it or the like this is Treason And hee who intends to deprive the King in this is intended the death of the King quaere of the depriving for by B a man may deprive and yet intend no death And for this cause a Statute was thereof made Time H 8. E 6. And the detayner of a Castle Fortresse or the like against the King is levying of warre against him all which words levying of warre and the others afore are in the Statute of 25 E 3. And adhering to the Enemies of the King ibm ayding and strengthening them 1 M 1 B Treason 24. 'T was agreed in Parliament that for misprision of Treason the Fine used to bee the forfeiture of all his goods and the profits of all his Land for his life and his body imprisoned ad voluntatem Regis for misprision is finable 2 M 1. B Treason 25. the end Note that if an alien borne of a Countrey which is in amity and peace with this Realme comes into the Realme with English Traytors and levies warre this is Treason in all contrary if the Country of the alien were in warre against England for then the alien may bee killed by Marshall Lawe 4 M 1. B Treason 32. Trespas Note that in the Register amongst the Writs of Trespas there are many Writs of Trespas quare vi armis equum suum apud D inventum cepit effugavit c. And so see that if they be taken in a Common or other land which is not to the owner of the beasts yet he shall have Trespas vi et armis but not quare clausum fregit 3 M 1. B Tenants 421. Tryall Peere of the Realme shall bee tryed by his Peeres if hee bee arraigned upon an Indictment contrary if he be arraigned upon an Appeale for at the suite of parties he shall not be tryed by his Peeres and so was Fines Lord Dacres of the South this yeere and hanged for Felony for the death of a man who was found in his company at a hunting in Sussex 33 H 8. B Jurors 48. the end Tryalls 142. Note that in a Court Baron the tryall is by wager of Law but they may bee by Jury ex assensu partium And the Maximes and generall Customes of the Realme which is the common-Law shall bee tryed by the Justices And the same Law of expositions of Statutes And by the Civill-Law the Judges have the construction of Statutes likewise But particular Customes shall not bee tried but per Patriam 33 H 8. B Trialls 143. Note that a Bishop is a Peere of the Realme and shall bee tryed per pares suos upon an arraignment of a Crime and so put in use therefore Knights shall be of the Jury and if not the Panel shall be quashed yet see 27 H. 8. that the Bishop of Rochester was not tryed by his Peers 2 M. 1. B. Trials 142. the end Variance Quare Impedit upon a grant de proximum presentatione granted to I N. Gentleman and in the writ brought by I. N. this word Gentleman is omitted and the Defend ' demanded Oyer of the Deed and had it and the variance no matter for the Action of quare Impedit is founded upon the disturbance and not upon the Deed as an action of Debt is founded upon the Obligation 2 E. 6. B. Variance 109. Verdict Note That the Court of Common Bench would not permit a Verdict at large in a writ of entry in nature of an assise because t was a Precipe quod reddat at which B. admires for it seemeth to him that upon every general issue a Verdict at large may be given 23 H. 8. B. Verdict 85. Special Verdict where the issue is upon an absque hoc See Tit. Issues Joynes Villeinage If a Villein comes to an Executor or to a Bishop Parson or the like in jure Ecclesiae and he purchases Land the executor enters he shall not have it jâ—re proprio but as Executor and it shall be Assets And if the Bishop or the Parson enters he shall not have it but in jure Eccesiae because that they had not the villein in jure proprio but in another right contrary if they had had the villein jure proprio 33. H. 8. B. Villeinage 46. The King shall not have the villein of another in ward and yet if there be an Ideot he shall have the villein of the other who is so Ideot Quaere And the King shall have the perquisite of a villein of another if he hath him as Ideot Lecture B. Villeinage 71. Voucher See B Tit. Voucher 84. Vsury Note that where a man for 100l sels his Land upon condition That if the Vendor or his heirs repaies the summ citra festum Pasche or the like tunc prox futur that then he may re-enter this is not usury for he may repay the day before or any time before Easter and therefore he hath not any gain certain to receive any profits of the Land and the same Law where a defeisance or Statute is made for the repayment citra tale festum E contra if the condition be that if the said vendor repays such a day a year or two years after this is usury for he is sure to have the Lands and the Rents or Profits this year or these two years And so where a Defeisance or Statute is made for the repayment ad tale festum which is a year or two after 29. H. 8. B. Vsury 1. If a man Mortgages his land upon defeasance of repayment to re-enter by which Indenture the Vendee Leases the same land to the Vendor for years rendring rent there if there be a conditition in the lease that if the Vendor repaies the summ before such a day that then the Lease shall be void this is not usury Otherwise if it be
plena curia Contrary if he doth it out of Court without such authority Yet the high Steward may demise customary land by copy out of Court by some Quaere thereof by B. if he hath not a special authority from the Lord to demise 2. E. 6. B. Court baron 22. Tenant by copie 26. Customs Information in the Exchequer against a Merchant for lading Wine in a strange Ship the Defendant pleads the licence of the King made to I. S. to do it which I. S. had granted his authority thereof to the Defendant quod habetur consuetudo inter mercatores per totam Angliam that one may assigne such a licence over to another and that the assignee shall enjoy it c. to which t was demurred in law and t was agreed for law That a man cannot prescribe a custom per totam Angliam for if it be per totam Angliam this is the Common law and not a Custom contrary if the custom had been pleaded to be in such a City or County as Gavelkinde Borrow-English Glocest. Fee and the like 35. H. 8. B. Customes 59. Dammages NOte in Trespass local That upon an inquest of Office to enquire of Dammages the Court may abridge or increase them But otherwise upon the Principall S. upon issue tryed betwixt party and party but there it may encrease costs For the party is at his attaint but upon an inquest of Office he cannot have an attaint 34. H. 8. B. dammages 144. See Tit. costs Default If a woman be received in default of her Husband and after shee makes default judgement shall be given upon default of the husband and no mention shall be made of the receit Time H. 8. B. default 85. Demurrer Inquisition found that I. S. held certain land of the King ut de honor suo Gloucester which is not in Capite upon which proces issued against W. S. who had intruded c. and to sue Livery and because that this Tenure is not in capite and therefore Livery not due the party demurred upon the record for t is no cause of Livery And where a man declares upon a Statute and recites it otherwise then t is or pleads it otherwise then t is the other may demur upon it for no such Law if it be misrecited 32. H. 8. B. Demurrer in Law 25. Denizen See Tit. Alien Note for Law That where an Alien born comes into England and brings his son with who was born beyond Sea and is an Alien as his Father is there the King by his Letters pattents cannot make the son Heir to his Father nor to any other for he cannot alter his law by his letters Pattents nor otherwise but by Parliament for he cannot disinherit the right heir nor disappoint the Lord of his escheat and the son of an Alien which son is born in England he is English and not an Alien 36. H. 8. B. Denizen 9. Deputie T is said that a Deputation of an Office which lies in grant ought to be by Deed and not by word 28. H. 8. B. Deputy 17. Detinue By Shelley and others if a man meddle with goods as by trover of them he shall be thereof charged though that he deliver them over before action brought 32. H. 8. B. Detinue de biens 1. The end Debt Where Debt lies and where a Scire facias See Tit. Age. Debt upon Indentures of Covenants where the Defendant had Covenanted to do many things and the Plaintiff the like to do many other things ad quas quidem conventiones per implendam uterque obligatur alteri in one hundred pound and the one breaks Covenant by which the other brings Debt and the Defendant pleads payment of ten pound to D. which was all to which he was bound judgement if action and no plea per curiam because he did not shew thereof a Deed where the Plaintiff declared upon the Indenture which is a Deed And yet otherwise in pleading of payment of Rent reserved upon a Lease for years made by Indentures For there he may levy it by distress and therefore an averment may come in ure But otherwise where all rises by specialty where it lies in payment 25. H. 8. B. Debt 173. Debt upon an obligation with Condition where the condition is not broken by which he is barred he shall never sue this obligation again for once barred est pro imperpetuo 29. H. 8. B. Debt 174. Administrator of a Lord brings an action of Debt for relief which fell tempore intestati and the Defendant pleaded in Bar and traversed the Tenure and so at issue And therefore B. seems that the action lies clearly for him for the Defend did not demur so if it be brought by an Executor of the Lord for relief due to the Testitor Rot. 5â—9 in the Common Bench. 32. H. 8. B. debt 193. Relief 11. the ends Devise Not that a Fem Covert with assent and will of her husband may make her Testament and devise the goods of her Husband yet if the Husband prohibit the probat of the Testament of the Wife after her death then all is void For the husband may countermand it B. devise 34. the end Testament 21. the end And a Devise by the husband to his Wife is good though they are one and the same person in the Law for the devise takes not effect till after the death of the husband and then they are not one person 24. H. 8. B Devise 34 T was agreed by all that if a man wills that I. S. shall have in his Land in date after the death of his Wife and dies now the wife of the Devisor by these words shall have the Land for her life by reason of the intent of the Will 29. H. 8. B devise 48. Note That in London a man may Devise by Testament to a common person though the Testament be not enrolled but if he Devises in Mortmain he ought to be a Citizen and a Freeman resident and the Testament oâ—ght to be enrolled at the next Hustings 30. H. 8. B. devise 28. A man Devises to two heredibus eorum and dies and after one of the Devisees dies and the other survives he shall not have the intire by Survivor but onely a moytie for this was the intent of the Devisor by Audley Chancellor of England B. devise 29. and by B. there the end If one devise to another in feodo simplicâ— the devisee hath a Fee simple 30. H. 8. A man wills that his land Devisable shall be sold by his Executors and makes four Executors and dies all the Executors ought to sell for the trust is put joyntly in them Quaere for B. seems That if one or two die that the three or two which survive may sell for there is the plural number Executors and death is the act of God B. Devise 31. and by him where
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