THE READING Of that famous Lawyer Sr. Robert Brook Kt. Upon the Statute of LIMITATIONS 32. H. 8. Cap. 2. London Printed for Hen. Twyford and are to be sold at his Shop in Vine-Court in the Middle-Temple 1647. THE WORDS OF THE STATUTE OF 32. Hen. 8. Cap. 2. of Limitations NO person shall sue have or maintaine any writ of right or make any prescription title or claime to or for any Mannors Lands Tenements Rents Annuities Commons Pensions Portions Corodies or other Hereditaments of the possession of his or their Ancestors or predecessors and declare and alleadge any further seisin or possession ofhis or their ancestor or predecessor but onely of the seisin or possession of his Ancestor or predecessor which hath beene or now is or shall bee seised of the said Mannors Lands c. or other Hereditaments within sixtie yeares next before the teste of the same writ or next before the said prescription title or claime so sued commenced brought made or had No person or persons shall sue have or maintaine any Assesse of Morduncestor Cosinage Ayel writ of entrie upon dissease done to any of his Ancestors or predecessors or any other action possessory upon the possession of any of his Ancestors or predecessors for any Mannors Lands Tenements or other Hereditaments of any further seisin or possession of his or their Ancestor or predecessor but onely of the seisin or possession of his or their Ancestor or predecessor which was or hereafter shall be seised of the same Mannors Lands Tenements or other Hereditaments within 50. yeares next before the teste of the originall of the same writ to bee brought No person nor persons shall sue have or maintaine any action for any Mannors Lands Tenements or other Hereditaments of or upon his or their owne seisin above 30. yeares next before the teste of the originall of the same writ to be brought c. Nor shall make any avowry or cognisance for any Rent suite or service and alleadge any seisin of any suite or service in the same avowry or cognisance in the possession of his or their Ancestors or predecessor or predecessors or inhis owne possession or in the possession of any other whose estate he shall pretend or claime to have above fiftie yeares next before the making of the said Avowry or cognisance All formedous in reverter formedous in remainder and Scire facias upon fines of any Mannors Lands Tenements or other Hereditaments shall bee sued and taken within fiftie yeares next after the title and cause of action fallend and at no time after the said fiftie yeares passed If any person or persons doe at any time sue any of the said actions or writs for any Mannors Lands Tenements or other Hereditaments or make any avowry cognisance prescription title or claime of or for any rent suite service or other Hereditaments and cannot prove that he or they orhis or their Ancestors or predecessors were in actuall possession or seisin of or in the same Mannors Lands Tenements and Hereditaments and at any time within the yeares before limited in this act and in manner and forme aforesaid if the same be traversed or denied by the partie person or defendant then after such tryall therein had all every such person and persons and their heires shall from thenceforth be utterly barred for ever of all and every the said writs actions avowries cognisance prescription title and claime hereafter to be sued had or made of and for the same Mannors Lands c. or other the premisses or any part of the same Provided alwayes that every person and persons which now have any of the said actions writs avowries Scire facias Com. cognisance title claim or prescription depending or that shall hereafter bring any of the said actions or make any of the said avowries prescription title c. at any time before the Feast of the Ascention of our Lord 1546. shall alleadge the seisin of his or their ancestors or predecessors and his owne possession and seisin and have also all other like advantage to all intents and purposes in the same writs actions avowries cognisances and prescriptions titles and clayme as he or they might have had at any time before the making of this Statute Provided also that if any person being within the age of 21. yeares covert baron or in prison or out of this Realme of England nor having cause to sue or bring any of the said writs actions or to make any avowries cognisances prescriptions titles or claymes that such person or persons may sue commence or bring any of the said writs or actions or make any of the said avowries cognisances prescriptions titles or claime at any time within six yeares next after such person nor being within age shall accomplish the age of 21. yeares or within six yeares next after such person now being in prison shall bee enlarged or never being out of the Realme come into the Realme And that every such person in their said actions writs avowries cognisances prescriptions title or clayme to be made c. within the said six yeares shall alleadge within the said six yeares the seisin of his or their Ancestors or predecessors or of his owne possession or of the possession of those whose estate hee shall thenclayme And also within the same six yeares shall have all and every such advantages in the same as he or they might have had before the making of this act Provided also that if it happen the said person now being within age convert baron in prison or out of this Realme having cause to sue or bring any of the said writs avowries cognisances descriptions c. to die within age or during condition c. or to decease within six yeares next after such person shall attaine his full age or be at large c. and no determination or judgement had of such titles actions or rights to them so accrued then the next heire to such person or persons shall have and enjoy such liberty and advantage to sue c. within six yeares next after the death of such person or persons now imprisoned c. insuch manner as the same infant after his full age or the said woman covert after c. should or might have had within six yeares then next ensuing by vertue of the provision last before rehearsed Provided also that if any person before Ascension 1546. sue or commence any of the said writs c. or make any avowry c. and the same happen by the death of any of the sayd parties to bee abated before judgement or determination thereof then the same person or persons being demandants or avowants or making such title prescription c. being then alive and if not then the next heire of such person so deceased may pursue his action and make his avowry c. upon the same matter within one yeare next after such action or suite abated and shall enjoy all such
doth not lye Because he is to recover the villein and a termor shall not have his action by Fitzherb quaere inde butis a writ of Right in its nature or an action possessorie at the least A writ of Ne injustè vexes brought against the Lord to avoid an incroachment gained 61. yeares past the action lyeth Because it is onely to discharge the land and to recover nothing and yet it is a writ of right A man brought a writ of Mesne upon a deed of acquitall made 61. years past the action lyeth Because it is onely in discharge and is to recover nothing and is not properly a writ of right because battell nor grand assise doth not lie in it and he shal recover nothing but his acquitall and he is supposed in possession of his acquitall and it is not of the possession of the plaintife because it may be that neither he nor his ancesters were never acquited and that the Lord Paramount never demanded the services untill now and therefore the action is not restrained One brought a Quare Impedit and declared of the seisin of his ancestour 61 yeeres past by presentation and that afterward the Church became void and the Bishop presented by lapse and now his Clarke is dead c. the action well lyeth Because the avoidance which is the title is within the time of limitation because the lapse did not set him out of possession and he shall recover the presentation A man brought a Quo jure and declared of a time 61. yeares past the action lyeth Because though it be a writ of Right yet it is onely in discharge and to recover nothing A Warrantia Chartae is brought by one Quia timet implacitari and declares upon a warrantie made 61. years past the action well lyeth Because he shall recover nothing but his warrantie and if hee lose afterwards then he shall have in value by a Scire facias which is another action and also he must vouche afterwards c. and if he be impleaded in an Assise he shall give notice c. so that there shallbe other circumstances before that he shall recover A man brought an Assise of Nusance and declared of a Nusance levied by the defendant 32. yeeres past the action well lyeth Because he shall recover nothing but remove the Nusance A man brings a Quid juris clamat or a Per quae servitia against the tenant upon a fine levied of a reversion or services 62. yeeres past the action lyeth Because the reversion and services are in him and he demands nothing but attornement A Formedon in the Discender is brought of cause of action accrued 62. years past and within 60. yeares the action doth not lie Because that is an action possessorie and not a writ of right ut videtur Vide Dyer 278. 291. that a Formedon in Reverter and Remainder is not within the statute because the gift is the title A writ of Waste is brought of waste made 60. yeeres past the action lyeth Because no land is expresly demanded and he declares of no seisin A man brought a plaint in a base Court of customarie land and made protestation in the nature of a writ of Right at the Common Law and declares of a seisin 61. yeeres past the action doth not lie Because this is ruled by the equity of this Statute and so it was by the ancient limitation and also the declaration is in the nature of such a writ at the Common Law and every writ at the Common Law is ordered by this Statute Yet quaere whether this Statute extend to Copieholders as to the avowrie for services for it seemeth that it doth not but onely to free-holders because they shall not alledge seisin in his or their auncesters according to the words of the Statute but onely in the Lord A man brings a plaint in a priviledged Court or in Wales or in the Cinque-ports where they have authority to hold pleas per querelam and declares upon the ancient limitation it lyeth well Because the Statute speaks of the teste of the Writ so that it must be by Writ which this is not A man brought a writ of right close in ancient demeane he cannot declare of the ancient limitation Because the Statute speaks from the teste of the Writ In a writ of right of Warde the plaintife declared of seisin of service and seigniory c. 61. yeeres past and that his tenant died his heire within age and that the defendant deforced him this is a good declaration notwithstanding the Statute Because he was possessed of his seigniory until the deforcement which is within 61. yeeres and he shall recover but a chattell onely A man recovers certaine land by a Praecipe quod reddat or by another action the tenant dieth his heire enters the 61. yeares passe the demandant or his heire may have a Scire facias to execute the judgement Because this is not an action possessorie nor in the droit but a writ of execution and therefore out of the Statute A woman brought a writ of right of dower of the seisin of her husband 61. years past the action lyeth Because that is not of her owne seisin nor of none of her ancestors nor predecessors neither is it an action possessorie and it is not prohibited by the statute A writ of Right of Disclaimer is brought and declareth of a Disclaimer 61. yeeres past this is a good declaration Because it is not of the seisin of his Ancestour nor predecessour but ratione dominii because this seisin shall be referred to the land and not to the seigniory as appeareth by expresse words of the Statute in the end of the third Article because the Statute speaks where he or his ancesters or predecessors were seised of the same land or tenements or hereditaments within 60. yeeres And also the Writ doth not demand land and yet it may recover land Tenant by the courtesie of England of a Mannour with estovers appendant is disturbed and after is outlawed of felony the King enters by office the tenant by curtesie dyeth 61. yeares after the utlawry the heire shall not have a Quod permittat Because it is a writ of right and to recover the common of estovers and the time is past and in this action he shall alledge seisin A man seised of an advowson presents and his Clarke is instituted and inducted and dyeth 61. yeeres after this statute the patron presents and is disturbed and he brings a writ of right of advowson he may declare of a seisin 61. yeeres past notwithstanding this statute Because he shall recover possession of the advowson and the possession of the presentation afterwards is a seisin for the patron in the patronage and also in this case he was seised within 60. yeares because he was seised untill the usurper disturbed him and that was within 60. yeares A Formedon of ten acres of land which passed against the tenant and judgement
a bar at large the plaintife makes title for that the same defendant in the life of his father sold the land c. to the plaintife by Indenture and delivers to him the Deed and afterwards the father dyeth within the 6. moneths and the defendant enrols the Deed within the 6. moneths by which the plaintife enters and was seised and disseised c. this is no good title upon this statute Because a man may confesse and avoid a Deed enrolled as to say that he had nothing at that time c. butnot by Infancie Ideocie Non sanae memoriae or the like and the Deed takes its perfection by the livery and not by the inrolment for if one make a grant when he hath nothing the land and he hath before attornement this doth not make the grant good and the Indenture is not an estoppell because where a man releaseth to I. N. being in full seisin yet he may say that he had nothing at the time of the grant c. And the same law is it of a lease by Indenture in the time of his father and by 12 H. 4. f. 12. a man may confesse and avoid a deed inrolled In an Assise the tenant makes a barre at large the plaintife makes title because that I.N. was seised in fee and leaseth to W. X. and T.S. for terme of life and after grants his reversion which he had depending upon the estate of T. S. to the plaintife the tenants attorne and dye and the plaintife enters and was seised and disseised and all is within 20 yeeres this is not a good title upon this statute Because the Grantor shall not have such a reversion Mayor and Comminalty by their name of Corporation and not by their proper name may make title after this Statute by 80. yeares past Because that is of their own possession and not of the seisin of their ancestour nor predecessour And the same law of Deane and Chapter but contrary of Bishop and Parson upon a seisin of his Predecessour because that is expresly within the words of the Statute Nota. DIVISIO 2da OR The second dayes Reading or Lecture Where a man shall prescribe according to the ancient forme and where not and what prescriptions shaâ— be good upon this limitation anâ—… what not A Man may prescribe thâ—â— he and his ancestors 〈◊〉 predecessors or thoâ—â— whose estate c. werâ— seised from the time thâ—â— contrary whereof c. as before thâ—â— Statute yet he shall not alledge or declare in the record of a seisin within 6â—… yeeres before the confession of the prescription yet it seemeth that he shall take advantage in evidence of the prescription of an ancient seisin before 60. yeeres with a seisin alledged within 60. yeeres without elder commencement And therefore the prescription as it seemeth ought to be elder but he cannot alledge nor declare in the record but within 60. yeeres but may enforce it in evidence at large quod nota And by the generall ancient forme of prescription it shall be intended meant as a prescription of which part of the seisin is within 60. yeares according to this Statute In a Quod permittat the plaintife prescribes in him and those whose estate he hath in the Manour of D. for common appointment from the time of King Rich. the first he may doe it well notwithstanding this statute Because the Statute doth not extend to a prescription by whose estate c. but to a prescription in him his ancestors and predecessors A Quo Warranto the plaintife prescribes in him and his ancestors for toll traverse from the time c. to have a peny for every load of stuffe carryed overmy land to his Mannour c. this is a good prescription Because this is to goe overthwart my land but through toll is to goe over the way through my land and therefore contrary there and the prescription shall serve as a new title by the usage afterwards Assise of common the plaintife made title to common appendant in the Mannour of the defendant the defendant prescribes that he c. and all his ancestors whose heire he is c. have used from the time of Rich. the first to put forth of their Commons such cattle which were not levant and couchant upon the same lands to which c. and for that that those cattle were not levant c. he put them forth c. this is a good prescription Because it is not to recover any thing but to discharge onely In a Quo Warranto c. the plaintife prescribes in him and his ancestors Lords of the Manour of D. from the time c. to take a peny for every load of through toll of those which carry through his Mannour this is a good prescription For the reasons before alledged and because it is contrary to common right In a Quo warranto the party prescribed in him and his ancestors Lords of the Mannor of D. to have cognisance of pleas and to hold plea in the Court of the Mannour aforesaid from the time of c. this is a good prescription Because he cannot prescribe in the grant of pleas Assise of land the def. disclaimes in the survey and prescribes that he and his ancestors seised of the Mannor of D. have used from the time of R. 1. c. that when such a gutter which conduceth water to such a house was ruinous to enter into this land and to repaire it and that he therefore entred to repaire this is a good prescription notwithstanding this Statute Because he is not to recover anything but to have easement because the Statute doth not speake but only of prescription to lands tenements commons rents portions pensions and hereditaments A quod permittat of common theplantife made title by prescription from the time of R. 1. c. the defendant said that he c. have been within age successively de tempore c judgement c. this shall not avoid the prescription Because this is a Law as a condition or recovery A man hath had a Faire and one Market by prescription from the time of R. 1. c. which is seised into the Kings hands 60. yeeres past by non-claime in a Quo Warranto before this Statute c. he shall never have the liberties again by prescription nor otherwise Because he might replevie them within 50. yeeres A man which had a Leet and Warren and Wreck by the Kings grant made no claime to the same before the Justices in Eyre 62. yeeres past by which his liberties are seised into the Kings hands and yet he and his heires continually used the same afterwards and in a Quo Warranto his heire made title to that by prescription according to this limitation he shall not have his liberties by this prescription A man hath had catalla felonum fugitivorum from the time of R. 1. c. and hath had allowance in Eyre and afterwards makes his
claime in Eyre by prescription c. he shall not have those liberties c. Because a man cannot prescribe in those things which touch the Crowne A man hath had a Faire and Market by prescription certaine dayes and afterwards the King grants the same liberty to him by his Letters Patents 40. yeeres before the Ascension 1546. and in a Quo Warranto a month after the Ascension c. he makes his claime to that by prescription by an usage before c. this is not a good prescription upon the matter Because the grant determines the prescription as an obligation determines a grant or contract A man prescribes that he c. ancient tenants of D. and all lands of D. from the time of R. 1. c. have been quit of toll this is a good prescription notwithstanding this statute Because that it goeth in discharge and to recover nothing In a Serta molendini the plaintife after Ascension c. made his declaration that he and all those whose estate he hath in the Mannour of D. have had suit of their tenants to their Mill within his Mannour from the time of R. 1. this is a good prescription Because he prescribes per que estate which is not restrained by the Statute Assise of Common the plaintife prescribes that he hath been seised of Common for all cattell in the place where c. by all the time of this limitation this is not a good prescription Because the Statute sayes that he shal not make prescription but of the seisin of his auncestors or predecessors within 60. yeares before the making c. and his ancestour was not seised within the 60. yeares but himselfe c. such a prescription is not warrantable either by this Statute or by the Common Law In a Replevin the defendant prescribes in him and his auncesters to have amerciaments of all his tenants of D. fromthe time c. in quibuscunque curiis and may distrain make avowry for them this is a good prescription upon this Statute notwithstanding that it be of an amerciament in Curia Regis In a Quo Warranto the plaintife makes his title by prescription in him and his auncestours that they have used to have waifes from the time of c. and to retaine them notwithstanding fresh suit from the time c. this is no good prescription Because it is contrary to common right and cannot have any lawfull beginning A man makes a prescription in trespasse c. that he and his auncesters from the time c. to have the escapes of cattell in another mans land in driving to such a Park without amends made from the time of Rich. 1. this is a good prescription notwithstanding this Statute Because it is not to recover any inheritance but onely by way of discharge An Assise of Nusance for stopping of water by reason whereof 20. acres ofland are surrounded the defendant prescribes that he and his Auncesters Lords of the Mill of Dale have used from the time of R. 1. c. to stop during the re-edifying and repaire of their Mill this is a good prescription Because it goeth by way of easement and to recover nothing A man prescribed that hee c. Lords of the Mannour of D. have had â—… way over the land of another partie from the time of R. 1. c. to the Church of D. this is a good prescription Because it is neither tenement nor he reditament but easement because an Assise doth not lye of a way nor if a man give omnia tenementâ— hereditamenta sua the way doth not passe In an Assise a man prescribes in common c. in him and his auncestors de tempore c. upon which they are at issue and it is found that he and his ancestours have beene seised by 10. years and have been disturbed by another 10. years alternis vicibus de tempore c. he shall not recover upon this verdict and prescription Because the interruption is equall with the seisin In an Assise the tenant prescribed in him and his auncestours tenants of such land in D. to enter into the land of the plaintife and to abate the Nusance as often as the plaintife or his auncestours estop such a river de tempore c. this is not a good prescription Because where the Common Law will serve him he shall not prescribe 9 Ed. 4. Quo Warranto the Bailiffes and Comminalty of S. claim to make Fraternities of themselves by Master and Brethren by usage de tempore c. and the same being so made shall so implead and be impleaded c. this is no good prescription upon this Statute 9 E. 4.3 An Assise by Master and Confreres of D. the defendant said that there were no Master and Confreres there the plaintife said that he and his predecessours have been Masters and Confreres there and capable by that name and have used to implead and be impleaded by that name from the time of R. 1. and continually afterwards this is a good prescriptionafter this Statute c. Because he cannot prescribe in a Corporation and this prescription is to enable him and is not made to the land and therefore out of the case of the Statute Lord of a Mannour and tenant by homage fealty and 10. shill. rent the Lord releases the services of the tenant saving the rents and afterward is seised of the rent and disseised and brings an Assise and makes title that he and his auncesters c. de tempore c. have been seised of the rent this is a good prescription upon the Statute 31 E. 3. p. 33. Because in a rent service a man shall not prescribe because he may make another title by the Common Law contrary for a rent seck In a Replevin the defendant avowed because that it had been used by him and his ancestours whose heire c. Lord of the Mannour of D. for to distreine for Heriot custome upon the death of every tenant of the Manour de tempore c. and for Heriot custome after the death of I.W. c. he avoweth c. this is not a good prescription upon this Statute Because for Heriot custome the property is in him and he may seise it and may have an action and a man may not prescribe in his owne goods Dower by a woman the defendant said that the husband was attainted of felony c. the plaintife said that it had been used in this Manour from the time of R. 1. that the wives of a man attainted shall have dower this is a good prescription upon this Statute 8 H. 3. the like in Gavelkind of which the heire shall inherit And this prescription is not made of the seisin of him nor of his ancestours and therefore out of the case of the Statute A replevin for an amerciament in a leete for not comming to be sworne to the King the defendant prescribes that the usage is there to be
reversion may fanxesie the recovery in another point which was not tryed as to say that another had title to the seigniory and not the avowant and so the seisin void In a Mortdauncestor the Tenant traverseth the seisin the Jury finde that the grandfather dyed seised and that afterwards the father of the demandant dies before that any stranger enters and afterdies and the Tenant abates this is good proofe of seisin but yet it shall not serve but this triall shall binde the demandant c. Because the Stat. speakes of an actuall seisin and this is a seisin in Law Lord measne and tenant the Tenant traverseth the seisin in an avowry against the measne which is tryed for him and afterward forejudgeth the measne there the Lord may distraine and make avowry and shall not be bound by the said triall Because he avoweth for his seigniory and he is not heire to the measne A woman seignioresse measne and tenant the measne is bound to acquittall she takes a husband the tenant releaseth to the woman and his heires acquit the husband and wife have issue the wife dies the tenant brings a Writ of measne against the husband contrary to his acquittall by prescript in the wife and her auncestors the husband traverseth the seisin which is found against him and hee dies the heire shall not bee bound by this tryall in another Writ of measne Because he hath a release to plead and hath the menalty as heire to his mother and not as heire of his father and may falsifie ut supra And this action is not to recover Land Tenements nor Hereditaments but goeth by way of discharge Tenant for life the reversion to another in fee is impleaded by a praecipe c. and traverseth the seisin which is found against him upon a faint title by covin and the demaundant recovers the Tenant for life surrenders he in the reversion shall be bound by this triall viz. during the life of the Tenant which surrenders and not afterwards notwithstanding the Statute of 32. of Recoveries by covin as where Tenant for life grants a rent and surrenders c. And Nota that he in the reversion may falsifie in a title in another point which was not tryed but he which may have an attaint cannot falsifie in the same point which was tryed and he in the reversion may have an attaint and error by the Statute of R. 2. and this recovery is as a purchase A Segniory is given to two and to the Aires of one he which hath the fee dies hee which survives distraines and makes an avowry the tenant traverseth the seisin which is found for him the Defendant dies and the heire of the other distraines and makes an avowry upon the same seisin he shall not be bound by the first triall Because the first judgement is not to be barred of the seigniory but onely to recover dammages and also hee is not heire to him which was party to the trial but to another which had the fee yet he had a reversion at the time c. And he in the reversion and those which may have error or attaint are bound by the common Law and shall not falsifie the point which was tried by verdict contrary in other points and contrary of them which cannot have error nor attaint note the difference by many books and by the Statute of 9. R. 2. c. 3. A feme Covert brought a Writ of Aile after Ascens c. the tenant traverseth the seisin which is found for him and after the husband and wife die and the heire brings a Writ of cosenage he shall be bound by this tryall Because albeit the barre be at liberty yet it is contrary of the wife An Infant brings a precipe by Attourny as a man of full age the tenant said that he is an infant judgement if he shall be by Attourney and yet the Court admits him by Attourney the tenant traverseth the seisin which is found for him the demandant and his heires shall bee bound by this triall for ever Because this is not errour and an infant is not excepted in the Statute Lord and tenant the tenant is disseised the Lord brings a Writ of Customes and services against the desseisor who traverseth the seisin which is found against the Lord the desseisee reenters the Lord distraines him makes an avowry upon the first seisin the disseise shall have advantage to barre him by the first tryal Because he made plede per que estate and bind the Lord because the judgement was given against the Lord and so he barred A man seized in right of his wife makea feoffment in fee the husband dies the feoffee is impleaded and traverseth the seisin which is found for him the wife brings a cui in vita and recovers the demandant in the first precipe brings another precipe against the woman she shall have advantage of the first triall Because the demaundant was once barred and so his right extinguished A man makes a feoffment in fee upon condition the feoffee is impleaded after Ascention c. and traverseth the seisin which is found for him the feoffor enters after the condition broken the demaundant brings a new Writ against him the feoffor shall have advantage of the first tryall for the reason aforesaid Avowry by the Lord upon the tenant for x. s. rent and alleageth seisin within 50. yeares the plantife alleageth a confirmation by the deed of the father of the Lord 60. yeares past tenend. by iiii d for all rents and services besides fealty this is a good barre notwitstanding this Statute Because the Statute saith onely that a man shall not have a writ nor makea prescription title nor claime beyond that limitation but it doth not speak of bars in defence of possession and therfore it seemeth that the eldest barre shall be tryed by the intention of that Statute because the words of the preamble are that the eldest seisin shall not be disturbed Avowry for Rent upon this limitation the Plaintiffe pleads a Release of all actions made 51. yeares past by the Avowant to the Plaintiffe this is a good Plea and shall be tried notwithstanding this Statute Tit. bar in Fitz. 8. H. 6.10 27 E. 3. ibid. that it is a good barre Lord and tenant of 3. Acres of Land by fealty and two shillings the Lord distraines in the Acre and avoweth for xii d the Plaintiffe saith that 60. yeares past he leased the other Acre to the Lord for 60. yeares which are yet induring judgement if hee shall avow for any thing in the other Acre during the terme this is a good Plea and shall bee tryed notwithstanding that it be out of the limitation Because a suspention of part is a suspention of all contrarie of an extinguishmentof part because there may be an apportionment in that case A Mortdancester of a seisin within 50. yeares the tenant said that the demaundant himselfe leased for terme of
action personall Attaint lyeth contrary in an action reall Fitz. tit. Attaint 41 N. 77. In a Cessavit upon this new limitation brought by the Bishop of L. the tenant pleads overt to his distress the Jury is charged therewith and with the collusion and the overture found against the tenant which is true and as to the collusions that he had ceased by collusion which is false the demandant had judgement and enters the Lord Parramont enters upon him for the Mortmayn the demandant shall not have an Attaint of the collusion Because that the enquiry of the collusion was but of office and also it seemeth that the judgement is erroneous by reason of the collusion c. and therefore may have errour tamen videtur that notwithstanding that the judgement be erroneous yet if the verdict be false attaint lyeth because the other cannot compell the party to bring a Writ of errour 18. E. 4.9 but it seemeth otherwise if the Court be deceived in judgement A Mordancester upon the new limitation the tenant said that he himself is Heir to the Ancestor and not the Demandant and so at issue And upon that the Tenant gives in evidence to the Iury that he was Heir by the second wife of the same Ancestor because that the first wife by which the demandant is Heir was divorced the Iury found the demandant heir notwithstanding the divorce the Tenant shall not have an Attaint Because they are not bound to finde the divorce for it is a spirituall Record Certain Observations out of Law-Books in Print upon this Statute THE first four branches of the Statute use the word seisin indefinitely and therefore if the Statute had not gone farther the word seisin should have been construed Secundum subjectam materiam viz. sometimes for actual seisin and sometimes for seisin in Law And therefore as to a writ of right mordancestor Ayle Assise c. it shall be intended of an actuall seisin and not of a seisin in Law so that the threefirst branches are to be intended of an actuall seisin And the fourth branch concerning Avowries extends to seisins in law as well as to seisins in fayt or actual seisins But the words upon which farther doubt may arise are contained in the 6. branch of the said Statute in these words viz. If any person or persons do at any time sue any of the said actions c. or make any avowry c. and cannot prove that some of his ancestors or predecessors were in actuall possession or seison of the said lands tenements c. within the time limited c. if that be traversed or denied by the plantiffe demandant c. that after such triall the party and his heirs shall be barred to all such Writs actions c. Upon which said words it was objected that whereas at the Common Law before this Statute a seisin in Law was sufficient for avowries yet now by the express words there must be an actual seisin for that the words actual possession or seisin excludes a seisin in law and the rather for thatan actuall seisin is the sure badge of right But it was resolved that a seisin in law was sufficient for an avowry within the intention of this Act For the intention of the Act was only to limit a time within which seisin ought to be had and not to exclude any seisin which was a good seisin at the Common Law as appeareth by the preamble of the Statute neither did the former Statutes of limitations of Westminster 1. cap. 38. or of W. 2. cap. 2 46. exclude a seisin in Law or any seisin which was a sufficient seisin at the common Law Also whereas the three first branches extend to actuall seisin only and the 4. branch extends as well to a seisin law as to an actuall seisin And the sixth Article speaks by words dis-junctive of actuall possession or seisin makes a distinction betwixt actuall possession which referres to the three first branches and seisin which referreth to the fourth branch for that the words subsequent are in manner and forme aforesaid It was also resolved that this Statutedoth not extend to such rent or service which by common possibility cannot happen or become due within 60 years As a signiory consisting upon homage and fealty only for that the tenant may live above 60 years after that they were made and so of casuall services as to go to war with the Lord and the like of a Formedon in discender for that the tenant in taile may live 60 years after discontinuance and albeit that the tenant in taile do dye so that the issue may bring his Formedon within the time c. yet that altreth not the case but that the issue may bring his Formedon in discender at any time as it was adjudged in Fitz Williams case Dy. 278 and the same law is of homage and fealty and all other accidentall services or where there was an impossibility to have seisin within the limitation And in this case of Bevill it was agreed f. 11. a. that a Writ Esolvert Cessavit or Rescous are not within this statute for that in those Writs the seisin as not traversable but the tenure and by those VVrits theland is demanded and the demandant cannot alleadge any seisin c. for he commeth to them in the post And the statute extendeth only to such writs where a seisin may be alleadged and 21 H. 6.22 that seisin shall not be alleadged in those writs for that the land is demanded by reason of the signiory and not by reason of seisin of the land and accordingly it is resolved Dy. 11. Eliz. 278. If a man had been out of possession of land by 60 years yet if his entry be not taken away he may enter and bring any action of his own possession because the first clause doth not barr any right but prohibits that no person shall sue or maintain any writ of right or make any prescription c of the possession of his ancestor or predecessor but only of the seisin of some of his ancestors within 60 years which doth not inhibit but that if his entry be lawfull and he doth enter he may have an action of his own possession And note that the 1. 2. clauses of the statute extend only to seisin Ancestrall and not to a writ of right of his own seisin And the third branch extends only to actions of his own possession and not to entries The fourth to Avowries c. And forasmuch as the services of homage fealty are not within this statute and that the seisin of rent or other annuall service is a seisin of homage and that likewise a seisin of homage or fealty is a seisin of all services annuall or not annuall that therefoee when the tenant hath done homage or fealty that shall be a seisin of all other services as to Avowrie which of right ought to be made notwithstanding that the Lord or