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
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
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
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
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
ancestors death ib Writ of ward without seisen infra tempus memoriae Tenure traversable 156 No seisen and yet ward 157 Assent and dissent to marriage ib Divorce ib Ordinary ib Warde and marriage 158 Tenure ib Two Joyntenants and the heir of the one in ward living the other ib Garranties Warranties 159 Collateral warranty ib Coverture shall not avoide a collateral warranty upon a discontinuance ib Warranty without heirs 160 Warranty to rebut but not to vouch ib General writ 161 General issue ib Things to be pleaded and not given in evidence ib Command ib Common ib Rent 162 Licence ib Lease for yeers and at will diversity ib Manumission in deed and in Law diversity ib Not escaped pleaded and not arrested given in evidence 163 Grants 164 Office of charge and of profit diversity ib Ousting the officers ib Quere 166 Grant void for incertainty 137 Diversity betwixt grant and devise ib Quere ib Lease for life and four yeers over ib What shall pass by grant of lands and tenements or omnes firmas ib Ejectione Firme bi HARIOTS 138 HAriot custome and service diversity ib Detinue ib Heresie 138 Where a writ de haeret comburend shall issue where not ib Abjuration 139 Diversity ib Homage see Tit-Fealty 139 IDEOT 1â—0 IDeot and unthrift diversiverty ib Imprisonment 140 Incident 140 Court Baron incident to a mannor Pipowders to a Faire ib Grants 141 Recovery of a rent service good titie to homage and fealty ib Indictments 141 Indictment of death and poysoning ib Justice indicted ib Diversity ib Alter trespas in felony ib Intrusion 142 Relation of an office diversity ib Where pardon of Intrusion excuses the issues livery c. where not ib Diversity 143 Joyntenants 143 Where successive holds place where not ib Habendum ib Reentry by two or against two where the one dyes 144 Journeys accompts 144 Judggment 145 Nonage saves default ib Recovery against an infant by default and by action tried diversity ib Where a man shall be restored to his first action and where he shall have error c. ib Recovery of land in one County which lies in another ib VJew 146 Intendement ib Assise in N. and recovery pâ—eaded in H. ib Condition determined by judgement 147 Judgement given with original ib Issues joynes Issues joyned 148 Action upon the case upon an assumpsit ib Special verdict where the issue is upon an absque hoc ib Americiament ib Issue found in part diversity ib Preignancy ib Issue in wast ib Americiament 149 Issues retornes Issues retorned 159 See Tit. intrusion Debate of tithes betwixt lay persons ib Spiritual Court ib Tryal of a thing ultra mare 150 Jurors 150 Jury took a scroule not delivered to them in Court ib LEET 150 PAin in the Leet for redressing anusance forfeited by presentment ib Where the Lord shal have debt upon a pain in a Leet and where distrain for it 151 Leet of the torne of the Sheriff ib Exposition of a Statute Leases 151 Void lease ib Acceptance by the successor of a Parson upon a lease for years for life diversity ib Lease during a lease 152 House ib Averment ib Lease for life by a Parson and lease for years diversity Lease determined for a time and yet good after ib GardJan in Chivalry nor Lord by escheat shal not ouste the Lessee 153 Lease for life and lease for years after ib Convenit ib Concessit ib Dimisit ib Locavit ib Acceptance of rent by the successor of a Parson 154 Parson shal not have a writ of right ib A man leases for twenty years and after leases for fourty years ib Lease of a Bishop ib Dean 155 Parson ib Prebend ib Confirmation ib Habend after such a lease ended where there is no such lease ib Lease of a Prebend Equity ib Lease for yeers before livery sued 156 Relation of office ib Where the wife shall lose her Dower ib Lease till a hundred pound be paid ib Diversity ib Lease by a Bishop not sacred and by a Bishop deprived diversity ib Confirmation 157 Lease till he hath levyed 20. pound ib Where the one Feast is put before another in a Lease ib Ley gager Law wager ibid Law in detinue of an Indent of Lease ib Law lies not in a Qâ—o minus ib Licences ibid Contra formam collationis 158 Lieu place ibid Scire facias upon a recognisance ib Limitations ib Copyhold 159 Livery ib Where ward because of ward shal not sue livery but ouster l' maine Seiginory revived by suing livery ib Where livery shal be of Dutchy land where not 160 General Livery and special diversity ib Mannor purchased by the King shall be in him as in the grantor ib Livery Primer seisin ib Garde 161 Ouster l'main ib Where a man shall hold of the King as of his person and yet not in Capite Et ècontra ib Extent of Livery and of intrusion diversity ib Attainder of Cestui que use by Parliament and of attainder of a sole Tenant by the Common-law diversity ibid Exposition of a Stat. 162 Livery by the heir during a leas or devise for years ib Where a man shall sue Livery where not ib What is Livery what Ouster l' main 163 Livery of Soccage land ib Tenure of the King in Knights Service and in Capite diversity ib Soccage in capite and Knights service in capite diversity 164 What Livery is ib What Primer seisin ib Livery in Wales and County Palatine ib Primer seisin of cestui que use 165 Will not performed ib MAINPRIZE SVrety upon arrest in London ib Priviledge ib Procedendo ib Revivings ib Where surety upon a Bil in Banco regis is discharged where not ib Repleader ib Power of the Justices of the Gaol delivery 166 Maintenance ib Maintenance by him in remainder or reversion ib Sale where he hath not been seised by a year ib Statute expounded Mannor 167 Making of a Mannor ib Court Baron ib Suitors ib Misnosmer misnamer 168 Statute avoided by misnamer ib Monstrans de faits Shewing of Deeds ib Shewing of Deeds and Records ib Mortdauneester ib â—eoffment to two and the heir of the one ib Mortdauncester ib Discent of reversion Dower ib Forfeiture Feoffment Right ib Mortmain ib When a remainder is granted in Mortmain and when a reversion diversity ib Claim ib Remainder waived Vse ib Appropriation without licence is Mortmain ib Lease for 300 or 400 years is Mortmain ib Otherwise of a covenant for so many years ib 99 or 100 is not Mortmain years ib Mortmain ib Deseisin and discent takes not away the entry of the Lord for Mortmain ib NONABILITIE ib Obligation for usury ib Conclusion ib Non suit King nonsuite ib Nonsuit upon demur ib Nontenure a good plea in an attaint for a stranger contra for a privy ib Where non Tenure shall be a good plea in attaint where not ib Entry in attaint after the last continuance ib Nonse name 214 Where a
Difference betwixt Riot Rout and Assembly ib Sanctuory See Tit Corone saving default See Tit. Judgement Scire fac ias Second deliverance See Tit. Retorn de aeverse Seisin 262 Seisin by the hands of an intrudor ib Livery ib Distress suspended not Seigniory 262 Seisin of the King loses not the arrerages ib Several precipe Debt and deâ—inue in the same Writ ib Several tenancy 263 Uncertain demand in an assise Statute Merchant Part of the land extended in the name of all no reextent ib proces in another County upon a nihil returned upon a testatum est ib Deiberate ib Surrender ib When a man may hold the land beyond his term upon a Statute 264 Judgement ib Reversion not extendable ib Diversity betwixt a purchase after the Statute and before execution and where t is purchased after execut ' had 265 Execution by Executors in the name of the Conusee who is dead ib Execution for the Executors of the Conusee 267 Conusor returned dead ib Retorn of extendi facias liberate ib Supercedias 268 Attaint ib Sureties Death of the King id Surrender 268 Surrender extra terram ib Trespas ib The King cannot record a surrender ib Surrender by the first termor ib Termor makes the Lessor his Executor 279 He in remainder surrenders where there is a Lease for years in possession ib Suitor Two suitor onel Coyurt Baron ib Taile 270 Single voucher and double voucher diversitie ib Where the assets aliend shall be a bar in a Formedon where not 271 Two sons by divers venters ib Collateral warranty by release ib Quere ib Taile extinct ib Surrender ib Tenant at will 272 Tenant by sufferance and at will ib Disseisor ib Tennant by Copy ib Formedon in discender by a copy-holder ib Intendment ib Where Tenant at will or a termor of a Mannor may grant copy-hold for life 273 Demise rendring the ancient rent or more ib Tenant by sufferance See Tit. Tenant at will ib Tender ib What shall be the attendance in a condition ib Diversity 274 Condition of reentry for non payments ib At what time the lessee ought to make tender ib Tender upon the land â—e contra ib Tenures 275 Tenant makes a Feoffment of a moyety this is not pro praticula The like matter in the Cheq 5. H. 6. Ro. 4. ex parte ib Remember Thesaurarij 276 Tenure in capite ib Et de honore diversity ib Ouster I' main ib Socage in capite ib Diversity ib To hold by suite of court ib Court Mannor 277 Testament 277 Where a man shall have for life and where see simplely devise ib Payment by the Heir Executor or Assignee ib Quere ib Will of 3 Mannor by the stat 32. H. 8. 278 Testament cannot be without Execut. ib Where a legacy or devises shall be good though the devisor names no Executors ib Feoffment of all after the Stat. of 32 H. 8. ib Ward 279 Primer Seisin ib Explanation of Wills by Stat. 34 and 35 H. 8. ib. Testmoignes Witnesses 279 Age of Witnesses in Etate proband ib Titles 280 See Tit. Pleadings ib Travers of Office 280 Title made upon traverse tendered ib Traverse dying seized found by Office ib Termor cannot traverse 281. Monstrance de droit ib Traverse against the King ib Where the King shall have Prerogative where not ib. Non-suit in Traverse and Petition diversity ib. Judgement in Traverse ib. Travers by c. 282 Action upon the Case for making of false clothes ib. Seisin in Fee Traversed in Assize ib. The King shall waive his issues contra of an Informer ib. Without that that he had any thing 283 The mean conveyance in the Title shall not be traversed where the Plaintiff in his Title binds the Defendant ib. Remitter ib. Seisin in Fee traversed 284 Treason Misprision of Treason ib. Where Tryall shall be per pares 285 Forfeiture for misprision of Treason 286 Compasse or imagine ib. What shall be said Treason ib. Deprive ib. Quaere ib. Fine for misprision of Treason ib. Alien commits Treason 287 Diversity ib. Trespas 287 Quare vi armis of taking in anothers soil ib. Tryall 288 Tryal of a Peer of the Realm arrained upon an Indictment and appeal diversity ib. Tryall in Court Baron by wager of Law ib. Tryall of the Law shall bee by the Justices and of a particular custome per patriam ib. Tryall of a Bishop 289 Variance 289 Quare imped and the Writ and the Deed vary ib. Verdict 289 Verdict at large in a Writ of entry ib. Villeinage 290 Asserts in their hands ib. Diversity ib. Where the King shall have the Villeine of another in Ward or Ideot ib. Quaere ib. Voucher 291 See B. Tit. Voucher ib. Usury 291 Diversity where the day is certain and where incertain to make usury ib. Defeasance ib. Usury and where not 292 Waife 292 Waives his proper goods for Fellony ib. Waste 29â— Waste by a Termor who dyes before action broughâ— ib. Cutting of Beech of 20. 0â— under 20. yeers of age shall be Waste 293 Locus vastat waste in hedg-rows ib. Where the Termor may take all the under-wood eâ— contra ib. Silva cedua 294 Waste for not covering of a new frame and house ib. Waste by the Heir ib. A man shall be named Heir or Executor in the Premises and not in the alias dictus ib. Conclusion to the Writ 295 Abridgment HOlden by the Prothonatories of the Common Bench in Trespass of Battery That of such matters which lie in Conusance of the Justices they may increase dammages after a Verdict upon Issue otherwise of such matter which lies not in their Conusance as Trees cut But yet there they may increase costs 3. Mar. 1. B. Abridgement 36. the end Acceptance Note By Fitzjames and Englefield Justices if Tenant in Dower Leases for years rendring rent and dies the Lease is void and acceptance by the Heir of the Rent will not make the lease good for t was void before otherwise of voidable Leases 22. H. 8. B. Acceptance 14. If Tenant in Taill Leases his land for twenty years rendring rent and dies and the Lessee leases to another for ten yeares and the issue accepts the rent of the second Lessee this is no affirmance of the Lease for there is no privity between the second Lessee and him contrary if he paies it as Bayliff of the first Lessee and B. seems if the first Lessee had Leased over all his Term in parcel of the land let and this Assignee paies the rent to the issue in tail that this affirms the entire Lease for Rent upon a Lease for years is not apportionable 32. H. 8. B. Acceptance 13. Tenant in Tail the Remainder over Leases for years rendering Rent and dies without issue he in the Remainder accepts the rent this shal not binde him because that when the tail is determind all that is comprised within it is determined and so the Lease void and he in the Remainder
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
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
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
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. 〈◊〉
jâ—â—â—dicial jurisdiction and another is 〈◊〉 that these are sufficient causes to eleâ— new ones wherefore they did so 〈◊〉 the Kings Writ out of the Chancer comprising this matter which was aâ—â—mitted and accepted in the Commoâ— House of Parliament 38. H. 8. B. Parâ—â—â—ament 7. Parnour Taker of the profits An Office is found after the death Cestuy que use that he died seised and the heir is in ward of the King and after a Recovery is had against the Heir during the Possession of the King as against the Pernour of the profits before the Statute of Uses 27. H. 8. the Feoffees traverse the office or sue an Ouster l'main this Recovery shall binde the heir but the Recoverer cannot enter during the Possession of the King 29. H. 8. B. Pernour 32 A man cannot aver another Pernour of the Profits of other things which are not in demand B Pernour 4. the middle Patents The King gives Land to I S. Et heredibus masculis suis the grant is void See Tit Estates If the King Licences his Tenant to alien his Mannor of D and he aliens it except one acre the licence shall not serve it for the King is not assertained of his Tenant of all And if I have a Licence to impark 200 acres and do it according and after increase by other 10 acres there this is not a Park 23. H. 8. B. Patents 76. If the King grants omnia terras tenementa sua in D. this is a good grant these general words 30. H. 8 B. Patents 95. The King gave to the Earl of Rutland in Tail and after intended to give to him in Fee simple and to extinct the Tail and t was doubted that the surrender of the Letters Patents of the Tail and the cancelling of them and of the Inrollment and Bill assigned will not extinct the Tail for the Tail executed may be averred without shewing the Patent And a Formedon lies after the Tail executep without shewing the Patent And t was taken that t was not a good surety for the King for his services to give the reversion to to hold the reversion by such services when it vests and to except the first services during the Tail for when the reversion is gone the Rent and Services reserved upon the Tail are gone as wel in case of the King as a common person And therefore the devise was that the King by a new Patent reciting the first Patent shall give the Reversion and the first Rent and Services to have in Fee to hold by such Services and rendring such Rent and by this the King shall have the new Tenur presently and the Grantee shal not be charged with double Services and Rents during the Tail and t was agreed for Law that if a man loses his Letters Patents he shall have a Constat of the Letters Patents out of the Inrolment and Bill assigned which remains in the Chancery And therefore B. seems that the Inrolment shall not be cancelled B. Patents 97 And t was agreed by Whorewood the Kings Attorney optimos legis peritos that if Tenant in Tail of the Gift of the King surrenders his Letters Patents this shal not extinct the Tail for the Inrolment remains of Record out of which the issue in Tail may have a Constat and recover the Land wherefore they made the Devise aforesaid viz that the King shall grant to the said Earl Tenant in Tail the Fee simple also and then a Recovery against him will barr the Tail Otherwise the Reversion being in the King B. Surrenders 51. And t is said for Law if the King gives in Fee or in Tail or for life the Patentee Leases for years or grants Leases or gives part of the Land or of the Interest to another and after surrenders his Patent by which t is cancelled this shall not prejudice the third person that he shall lose his interest by it for he may have a Constat out of the enrolment which shall serve him Quaere inde because a Statute is made of it And Quaere if the Common Law shall not serve for it appears in the book of Entries fo that a man pleaded a Constat 32. H. 8. B. Pattents 79. the end Surrender 51. What thing in action the King may grant what not See Tit. Choise in action If the King grant a Balywick or sheriffwick to I. S. absque compotoreddend the word absque compot is worth nothing for t is contrary to the Nature of the thing granted 36. H. 8. B. pattents 99. If Conusance of plea be granted by the King he ought to shew where as in Guild-hall or the like and before whom as before his Steward c. And the King may grant Toll Fair Market and the like but not to have Assise of Fresh force nor Toll traverse nor Through Toll nor that the Land shall be Devisable Borrough-English Gavelkinde nor the like for these are by Custom which cannot commence at this day by grant for the King cannot make a Law by his grant and that by grant of Conusance of pleas he shall not hold plea of an assise nor of a certificate of assise And t is said for Law That a false consideration in Letters patents shal not avoid them as where the King for ten pound to him paid gave such Land and the ten pound is not paid the patent is not void shall not be repealed Contrary of a patent granted upon a false surmise as to falsifie that the land came to the King by attainder of I. S. which is not true or the like Quaere the diversity 37. H. 8. B. patents 100. Where the King Tenant in Tail cannot discontinue or charge by grant by patent See Tit. Discontinuance de possession Note that t was agreed That where the King grants Land which is in Lease for tearm of years of one who was attainted or of an Abby and the like that the grant is good without recital of the Lease of him who was attainted or of the Abby for he shall not recite any Lease but Leases of Record Time H. 8. B. patents 93. T was granted in the case of Thomas Inglefield Knight where the King Receits quod oum A. B. tenet manerium de B. protermino vitae suae de concessione nostra c. Sciatis nos concessisse C. S. reversionem manerii predict c. Habendum c. that this is a good Grant Therefor B. seems that if the King mis-recites the date of the first Letters Patents or the like yet if he well recites the estate and the thing and the name of the Lessee that then the Grant of the Reversion is good For where the King takes notice of his Tenant for term of life and of his estate and grants the Reversion he is not deceived in his Grant for he takes upon him notice of the former Interest for life and then the date of
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.
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
of the Countrey by Cerciorari to the Chancery and may be sent to the Justices of the Kings Bench by Mittimus and then they shall proceed upon it 36. H. 8. B. Certiorari 20. the end Certificate of the Bishop 'T was holden that if the Bishop certifies that such a person paid not his Tenths according to the form of the Statute which wills That ipso facto the Benefice shall be void that in this case a man shall not have an averment contrary to the certificate Time H. 8. B. Certificate devesque 31. the end Challenge Note by the Exchequer and both Benches where the parties are at issue in a plea of land where the land lies in three or four hundreds there if the Juror hath land in any of the hundreds or dwells in any of the hundreds it suffices 4. M. 1. b. Challenge 216. In Treason t is a good challenge to witnesses to say that he was one of his accusers b. Corone 219. And note that by the Statute of 33. H. 8. a peremptory challenge is ousted in case of high Treason yet by the said Statute Queen Mary t is enacted That all tryals of Treason shall be according to the order of the Common Law and not otherwise And therefore it seems that he may have a challenge peremptory as at Common Law S. 35. Jurors 4. M. 1. B. Challenge 217. Trials 151. the end Where a Grant of the Bishop or charge by him with the assent of the Dean and Chapter shall binde the successor and where not See Tit. Confirmation Charters of Pardon Note if a man be attained of murther or Felony by Outlawry or otherwise and the King pardons him all Felonies Murthers and Executions eorundem and Outlawries and Waivings and Sectam pacis And a pardon and release of all Forfeitures of Lands and Tenements and of Goods and Chattels shall serve but for the life and for the land if no Office be thereof found But it shall not serve for the goods without restitution or gift For the King is intitled to them by the Outlawry without Office but the King is not intituled to the Land till Office found And if an Office be found after yet the pardon shall serve for it shall have relation to the judgement then the mean pardon serves well contrary where an Office is found before the pardon granted for then the King is seised by the Office and there a release or pardon cannot give it but there ought to be a Gift or Grant 29. H. 8. B. Charters of Pardon 52. Note if alienation without licence be pardoned by Act of Parliament the party may enter without Ouster l'main or amoveas manum Otherwise by another pardon by letters Pattents 29. H. 8. B. Charters of Pardon 53. If intrusion by the heir post mortem antecessoris be found by Office and after the King pardons it by act of Parliament or by letters Pattents yet the heir shall sue Livery for this is not restored to him by a pardon but if the pardon were granted before Office found and at the making of the pardon the heir is of full age he shall retain the land and the Office found after the pardon shall not hurt him 30. H. 8. B. Charters of Pardon 54. Chattels If Lessee for years devise his Term or other his Chattel or Goods by Testament to one for term of his life the Remainder over to another and dies and the Devisee enters and aliens not the Term nor gives or sels the Chattel and dies there he in Remainder shall have it but if the first Devisee had aliened given or sold it there he in the Remainder had been without remedie for it B. Chattels 23. Done 57. And so B. seems if they be forfeit in his life he in remainder hath no remedy 33. H. 8. B Done 57. the end Choice in Action Thing in Action Note where the Statute of 31. H. 8. gives to the King the possessions of Abbies and all rights of Entries Actions Conditions and the like which the Abbies might have had and that he shall be in possession without office and that he shall be adjudged in actual and real possession of them in such plight and sort as they were at the time of making of the Statute Yet if an Abbot were disseised of 4 acres of land the King cannot grant it over before entry made by him in it because t is a thing in action real and not like to a thing in action personal or mixt as debt ward and the like by some And some è contra by reason of these words That the King shall be in possession Yet by B. this seems that he shall be in such possession as the Abbot was S. of a thing of which the Abbot had possession the King hath of this actual possession of such of which the Abbot had but a cause of entry or right in action of these the King shall be vested of a Title of entry and Title of action But the thing to which he hath such cause of entry or of action is not for this in him in possession and therefore cannot pass from the King by general words but B. seems if the King recites the diseisen and how the right and action thereof is given to him by the Statute and grants it specially that t is good 33. H. 8. B. Choice in Action 14. 'T was said for Law That the King may grant a thing in action which is personal as debt and dammages and the like or a thing mixt as the ward of body but not a thing real as an action of land and the like as Rights Entries Actions and the like which Abbots might have And that the King shall have these by the Statute of dissolution of Abbies 31. H. 8. These things in action the King cannot grant Yet by B. see if there be not words in this Statute to put the King in possession though the Abbot were put to his action 33. H. 8. B. Pattents 98. Clergy No man shall have his Clergy but where his life is in jeopardie and therefore not in petty larceny And the Bishop is Ordinary all Priests Abbots and others inferior to him which demand Clergy or have Clergy and if the Bishop hath his Clergy the Metropolitan shall keep him as his Ordinary and if the Metropolitan offend and hath his Clergy the King shall have him and keep him the same is of Laps Reading B. Clergy 19. Corone 183. Note That at this day Bigamus shall have his Clergy by the Statute but a man attainted of Heresie shall not otherwise of a man excommunicated and a Jew nor Turk shall not have their Clergy and a Greek and Roman who use not our letters shall have their Clergy and shall stay till a book of letters of their countrey comes B. Clergie 20. And if a man who is captus oculis prayes his Clergy he shall have it if he
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
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
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
and such Lease is Mortmain by the words of the Statute de religiosis 7 E 1â— S. colore termini for the said Statute is quod nullus emeret vel sub colore donationis aut termini aut ratione alterius tituli ab aliquo reciperi aut arte vel ingenio sibi appropriare presumat c. And the same Law oâ— a Lease for 400 years or the like Contrary if a man leases for a 100 years or the like and covenants that he or his heirs at the end of a 100 years will make another Lease for another 100 years and so further this is not Mortmain for t is but one Lease for a 100 years and the rest is but a Covenant but in the first case for that is for 300 years at first in effect and all by one and the same Deed B. Mortmain 30. Leases 49. And 99 years is not Mortmain And also a Lease for a 100 years is not Mortmain by B. for t is a usual term 29. H. 8. B. Mortmain 30. By Br. if an alienation in Mortmain be and the alienee is disseised and the disseisor dies seised his heir is in by discent yet the Lord may enter within the year for he hath but onely a Title of Entry and cannot have an Action But otherwise of him who hath right of Entry and may have an Action 1. E. 6. B. Mortmain 6. the end Negativa preignans see Tit. Issues joyns Non-ability VVHere and in what Case aâ—â— Alien is disabled from bringing of an Action what not See Tit Alien Non est factum Note that in Debt upon an obligation made for Usury and the Defendant pleads this matter he shall conclude and so the obligation is void Judgement si action and shall not conclude non est factum 7. E. 6. B. Non esâ— factum 14. the end Nonsuit Note that the King cannot be non-suited Yet B. seems that he who tam pro Domino rege quam pro seipso sequitur may be nonsuited 25. H. 8. B. Non-suit 68. Note when the parties in an Action have demurred in judgement and have a day over there at that day the Plaintiff may be demanded and may be â—onsuited as well as at a day given after issue joyned 38. H. 8. B. Nonsuit 67. Nontenure Where a man is barred by a false verdict and brings an attaint against the first Tenant nontenure is no plea for he is privy contrary of a stranger as where the Tenant infeoffs a stranger after 19. H. 8. B. Nontenure 6. In an attaint Non tenure is no plea â—or a privy to the first action contraâ—or â—or a stranger to the first Action B. Nontenure 16. And t is said that t is â—o plea in an attaint to say that the Plaintiff in the Attaint hath entered â—fter the last continuance 20. H. 8. B. Nontenure 22. Nontenure is no plea in Waste See Tit. Waste Nosme Name What shall be a good name of Purchase See Tit. Discent Note if a Dutchess or other such state marries with a Gentleman or an Esquire she by this shal lose her dignity and name by which she was called before as in the case of the Lady Powes and Dutches of Suffolk the one espoused R. Haward and the other S. the Dutches AdrJan Stokes and therefore Writs were abated in their Cases For by the book of Heralds quando mulier nobilis nupserit ignobili desinit esse nobilis 4. M. 1. B. Brief 546. Nosme 69. Notice The Patron shall take notice of every voidance of an Advowson except resignation and of this the ordinary shall give him notice Lecture Frowick B. Notice 27. Office devant c. Office before c. NOTE by those of the Exchequer where a man is attainted by Parliament and all his Lands to be forfeited and doth not say that they shall be in the King without Office there they are not in seisure of the King without Office for non constat of Record what Lands they are 27. H. 8. B Office devant 17. If the King grant Land for term of life after the Patentee dies yet the King cannot grant it over till the death be found by office this by reason of the Stat. that a grant before office shall be void 29. H. 8. B. Office devant â—6 If an Office finde the death of the Kings Tenant and that his heir is of full age and doth not say when there it shall be intended that he is of full age tempore captionis inquisitionis but that he was within age tempore mortis tenentis and therefore it ought to be expressed certain when he was of full age 29. H. 8. B. Office devant 58. Note that t is an antient course in the Exchequer that if it be found by Office that I S. was seised in Fee and died sed de quo vel de quibus tenementa tenentur ignorant that a Commission shall issue to enquire of it certainly de quo c. and if it be found that of W. N. then the party shall have Ouster l'main of the King But if an Office be found quod tenetur de Rege sed per que servitia ignoratur this is good for the King and it shall be intended to be holden in Capite per servitium Militare for the best shall be taken for the King But now in these cases a Melius in quirendum shall be awarded by the Statute 30. H. 8. B. Office devant 59 Land was given by the King pro erectione Collegii Cardinalis Eborum and the Colledg was not erected and upon office found thereof the King seised Time H. 8. B. Office 4. the end T was agreed by the Justices that the King is not intitled to the land of his ward without office though he hath in it but a Chattell yet it comes ratione tenure which is a seigniory and free hold in the King 5. E. 6. B. Office devant 55. Note that of a Chattell the King is in possession without office And â—contra of land and of free hold except of a term And sometimes he shall be in possession of inheritance without office yet the King shall not have the land of his ward without office though he hath in it but a Chattel for the ward comes by reason of the tenure which is a seigniory and free hold in the King and therefore a difference betwixt this and a lease for years of a man outlawed For if a man hath a term for years or a ward and is outlawed this is in the King without office Lecture B. Office devant 60. Officer Note for Law if a man hath a fee of a Lord and after is made Justice this fee is not void by the Law but after the making of him Justice he is not to take any fee but of the King and the same law of him who hath an office of Steward and after is
Writ and count how that the grant was made to the Testator and he brought a Quare imped and dyed and that they broughâ— this Writ and for that reason pertineâ— ad ipsos presentare and the Defendanâ— ipsos impedit and then this imports thaâ— this is of a disturbance made to themselvs after the 6 months past the nthâ—â— Writ lies not for all ought to havâ— been comprised in the Writ and couâ—â— specially and demand a writ to the Bâ—â—shop upon the presentation and wrâ— of the Testator quia non ideo malâ— and nothing thereof comes in the caâ— aforesaid betwixt Mark Ogle anâ— Harriston by B. 4. E. 6. B. Quare inâ— ped 160. Que estate whose estate c. T is said for Law That if a man recovers land against I Sâ— or disseises I. S. he may plead that he hath his estate and yet he is in in the Post 31. H. 8. B que estate 48. Que estate in another person of the the Tenancy without shewing how not so in Seigniory See Tit Avowrie T was agreed that a Que estate shall not be allowed in one who is mean in the conveyance as to say that A. was seised in Fee and Feoffed â— whose estate C. hath who Infeoffed the Defendant for the que estate shall be allowed onely in the Defendant or Tenant himself S. whose estate the Tenant hath 1. E. 6. B. Que estate 49. Note that t was agreed by the Justices That a man cannot convey an interest by a Que estate of a particular Estate as Tail for life or for years without shewing how he hath this estate be it of the part of the Plaintiff or Defendant 7. E. 6. B. que estate 31. Quinzisme T was agreed in the Exchequer That Cities Boroughs shall pay at Tenths and Uplands at Fifteens 34. H. 8. B. quinzisme c. 8. Note by Exposition of those of the Exchequer That Tax and Tallage is not other but Tenth Fifteen or other Subsidie granted by Parliament And the Fifteen is of the Layitie and the Tenth is of the Clergy and is to be Levyed ofâ— their Land And the Tenth and the Fifteen of the Layity is of their goods S. decimam partem bonorum in Civitatibus Burg. Et quinsesimam partemâ— bonorum of the Layity in patria which was Levyed in ancient time upon their goods S. of the beasts upon their lands which was very troublesom But now t is levyed Secundum rat terrarum suarum by verges of Land other quantities so that now all know their certainty in every Town and Countrey throughout the Realm But t is yet Levyed in some places upon their goods but in most places upon their Lands which was granted by the Barons 34. H. 8. B. quinzisme 9. 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. the ends Rationabile Parte c. T Was said for Law That the Writ de Rationabili parte bonorum is by the Common Law and that it hath been often put in ure as a Common Law and never demurred to therefore B. seems that t is the Common Law 31. H. 8 E. Rationabili parte 6. the end Recognizance Agreed for clear Law in the Chancery if a man acknowledge a Statute staple and after infeoffs the Recognisee he makes a Feoffment over now the Land is discharged for the Feoffee is but a stranger But if the Cognisor repurchases the Land it shall be put in Execution and yet t was once dicharged Time E. 6. B. Recognizance 9. the end Note that it did appear by search of the Records of the Common Bench that the Justices of the Bench may take and Record Recognizance as well out of Term as within Term and as well in any County of England as at Westminster 4. M. 1. B. Recognizance 20. Note That the King himself cannot take a Recognizance for he cannot be Judge himself but ought to have a Judge under him to take it And none can take a Recognizance but a Justice of Record or by Commission as the Justices of the two Benches Justice of Peace and the like for a Conservator of the Peace which is by the custom of the Realm cannot take surety of the Peace by Recognizance but by obligation the same Law of a Constable Lecture B. Recognizance 14 Record A man shall not pleadia Record except it be in the same Court where the Record remains without shewing the Record exemplified sub magno sigillo Angliae if it be denied for it ought to come into the Chancery by Cerciorare and there to be exemplified sub magno sigillo for if it be exemplified sub sigillo de communi banco Scaccario or the like these are but evidence to a Jury 22. H. 8. B. Record 65. 'T is said that he that pleads a recovery in a writ of right in a court baron in barre of an Assise before the Justice of Assise he ought to shew it exemplified sub sigillo cancell otherwise 't is no plea. But of a Recod in the common bench he may vouch it there and have day to bring it in the same law by B. of any other court of Record Yet otherwise in a court baron for there 't is a recovery but no Record for 't is not a court of Record Time H. 8. B. Record 66. the end Note that in the Kings bench they have divers presidents that in a writ of error upon a fine the Record it self shall be certified so that no plures proclam shall be made for if nothing be removed but a Transcript they may proceed in the common-bench notwithstanding that and if it be reversed this makes an end of all but if it be affirmed then the Record shall be sent into the common-bench by Mittimus to be proclaimed and ingrossed 4. M. 1. B. Record 49. Recovery in value Recovery against husband and wife by writ of entry in the Post where the wife is tenant in taile and they vouch over and so the demandant recovers against the husband and wife and they over in value this shall binde the taile and the heir of the wife 23. H. 8. B. Recovery in value 27. Where a writ of entry in the Post is against tenant for terme of life to bind the fee simple he ought to pray in aide oâ— him in reversion and then they to vouch upon the joynder c. And such recovery with voucher is used for to docâ— the taile in ancient demesne upon a writ of right and voucher over and this of freehold there Yet B. doubt of such recovery upon a plaint there oâ— land of base tenure for this cannot be warranted Ideo quaere 23. H. 8. B. Recovery in value 27. the middle Note that t' was taken if my tenant for life vouches a stranger who enters into the warranty and cannot
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
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
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