solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
331. 20 E. 3 Estop 187. 2. That every Estopple because it concludeth a man to alleage the truth must be sertain to every intent and not to be taken by argument or inference 21 E. 4. 4. 23. Ass 14. 17 H. 6. Estop 273. 18 E. 3 30. 7 H. 6. 7. 16. 3. Every Estoppel ought to be a precise Affirmation of that which maketh the Estoppel and not be spoken impersonally as if it be said Vt dicitur quia impersonalitas non concludit nec ligat 46. 3 E 33. 29 Asse 38. Pl. Com. 398. neither doth a recital conclude because it is no direct Affirmation 35. H. 6. 33. 46. 3 E 12 49 E. 3. 14. 8. Ass 3. 45. Ass 5. 3. El. Dyer 196. 11 El. Dyer 280. 9 H. 6. 60. 4. A matter alleaged that is neither traversable nor material shall not estop 5 E. 4. 7. 8 E. 4. 19. 10 E. 4. 12. 22 E. 4. 38. 32 Ass 9. 35 H. 6. 20. 5. Regularly a man shall not be concluded by acceptance or the llke before his Title accrued 33 H. 6. 16. 4 E. 3. 22. 6 H. 4. 7. 31 E. 1. Gard 155. F.N.B. 142. E. 6. Estoppel against Estoppel doth put the matter at large 12 H. 7. 4. 20 H. 6. 29. 3 H. 4. 9. 41 E. 3. 4 11 H. 4. 30. 7. Matters alleaged by way of supposal in Counts shall not conclude after Non-suit otherwise it is after Judgement given and after Non-sute albeit the supposal in the Count shall not conclude yet the Barre Tittle Replication or other pleading of either party which is precisely alleaged shall conclude after Non-suit and hereby are the Books reconciled 2 R. 3. 14. 2 R. 2. Estop 10. 40 E. 3. 21. 128..4 13. 18 E 3. 31. 35. 44 E. 3. 45. 17 Ass 27. 45 E. 3. 2. 21 H. 7. 14. 5 E. 4. 7. â— E. 4. 19. 3 E. 4. 11. 4 E 3. 54. 7 E. 6. Br. Fstop 162. 11. H. 4. 30. 30 E. 3. 21. 31 Ass 14. 8. Where the verity is apparent in the same Record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth when the truth appeareth of Record If a Fine be levied without any Original it is voidable but not void but if an Original be brought and a Retraxit entred and after that a concord is made or a Fine levied this is void in respect the veriety appeareth of Record 37 Ass 17. 38 H 12. 3 El. Dyer 222. An Impropriation is made after the death of an Incumbent to a Bishop and his Successors the Bishop by Indenture demiseth the Personage for fourty yeers to begin after the death of the Incumbent the Dean and Chapter confirm it the Incumbent dyeth this demise shall not conclude for that it appeareth he had nothing in the Impropriation till after the death of the Incumbent 7 Eliz. Dyre 244. 9. Where the Record of the Estoppel doth run to the disability or illegittimation of the person there all strangers shall take benefit of the Record as Outlawry excommengement Profession Attainder of Praemunire of Felonies c. Bastardy Mulierty and shall conclude the party though they be strangers to the Record Vide Sect. 196. 197 e. But of a Record concerning the name of the person quality or addition no stranger shall take advantage because he shall not be bound by it But Nota Reader That in case of the Mulierty prima facie an estranger shall take benefit of it c. But yet because he may be a Mulier by the Ecclesiastical Law and a Bastard by the Common Law therefore against such a Certificate pleaded the adverse party may alleage the special matter and confesse the Certificate of the Bishop according to the Ecclesiastical Law and alleage further the special matter according to the Common Law whereunto the adverse party must answer and so are the Books reconciled Bract. fo 420. 26 Ass 64. 39 Ass 10. 11 H. 4. 84. 7 H. 6. 7. 33 Ass 5. 11 E. 3. Estop 2 29. 21 E. 3. 39. 19 R. 2. Estop 28. 2. 3 E. 23. 3. ib. 33 E. 3 Estop Statham Stat. 9 H. 6. c. 11. 30 H. 6. 2. D. St. 69. 34 H. 6 39. 18 E. 4. 2 b 10 E. 4. 16. Sect. 669. Fol. 353. a. When a feme covert is received she shall plead as if she were sole and this is regularly true yet holdeth not in all cases for if a feme covert be received in an Assize and plead a Record and fail therefore she shall not be adjudged a disseisor as she shoud be if she were sole c. 37 Ass 1. So if a feme covert onely levy a Fine executory and a Scire fac is brought against her and her husband if she be received upon the default of her husband she shall barre the Conusee which if she had been sole she could not do and in some other cases 17 Ass 17. 29 E. 3. 43. 5 E. 3. 138 Voucher Again If the husband levy a Fine of his wives land and the Conusee grant and render the land to the husband and wife although the wife be not party to the Original nor to the Conusans and therefore she ought not by the Law to take any present estate but by way of remainder onely yet here it is proved by Littleton That the grant and render de fecto to the wife in presenti is not void for then it could not work a Remitter but voidable by Writ of Error and that avoidable estate doth work a Remitter T. 27 El. inter Owen Morgan Rot. 276. in Com. B. l. 3. f. 5. Marg. of Winchesters Case 7 E. 3. 64. 13 E. 3. Vouch. 119. Vide Sect. Sect. 670. Fo. 353. b. Si Baron feme fesont un conusance de droit a un auter c. ou fesoyent un grant render a un auter ou release per fine a un auter c. lou le droit del feme passera del feme per forne de mas le fine en tout tiels cases le feme serre examin devant que le fine soit accept pur ceo que tiels fines concludont tiels femes coverte a touts jours c. mes lou riens est move en le fine forsque tantsolement que le Baron la feme pregnant estate per force de mes le fine ceo ne concludam la feme pur ceo que en tiel case el jameres ne serre my examine c. 15 E. 4. 28. 14 E. 3. 31. Therefore if the husband and wife be Tenants in speciall Tail and they levy a Fine at the Common Law and after the husband wife take back an estate to them and their heirs in this case the estate Tail is not barted and yet against a feme levied by her self she cannot be remitted because thereupon she was examined but in that case if the land descend to her issue he shall be remited â—9 E. 3. 43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
to her it is commonly taken for the third part which she hath of her husbands lands c. After his decease lib. rub c. 70. Bract. l. 2. s 92. To the consummation of this dower three things are necessary viz. Marriage seisin and the death of her husband s 31. a. Secundum consuetudinem regni mulieres viduae c. Debent esse quietae de tallagiis c. doti ejus parcatur quia praemium pudoris est Ockam f. 40. Where lands or tenements descend to the husband before entry he hath but a seison in law and yet the wife shal be endowed for it lieth not in the power of the wife to bring to be an actuall seison as the husband may doe of his wifes land when he is Tenant by the Curtesie F. N. B. 149. Grandfather Father and Son the Grandfather and father die c. In this Case dos de dote peti non debit if lands descend to the Father otherwise is it in a purchase if the Grandfather infeoffe the Father c. Vide lib. 5. E 3. t. Douch 249. Paris c. Non debent mulieribus assignari in dotem castra quae fuerunt virorum suorum quae de guerra existunt vel etiam homagia servitia aliquorum de guerra existentia Fo. 31. b. Pat. 1. E. 1. Part. 1. m. 17. Tenant in Fee Taile generall maketh a feoffment in Fee and takes back an estate to him and to his wife and to the heirs of their two bodies and they have issue and the wife dieth the husband taketh another wife and dieth the wife shall not be endowed for during the Coverture he was seised of an estate Tail special and yet the issue which the second wife may have by possibility may inherit Vide lib. 41. E. 3 30. Dier 41. Albeit of many inheritances that be entire whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet she shall be endowed thereof in a special and certain manner As of the third part of a piscary tertium piscem vel jactum retis tertium c. Fo. 32. a. 17. E. Dow. 104. A woman shall not be endowed of a common sans nomber en grosse nor of an annuity c. Nor of Rents c. If the freeholds of the Rents were suspended before the coverture But a woman shall be endowed of Tithes of the third part of profits of Courts Fines Heriots c. De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad viâ—lentiam Brac. 97. Brit. 146. If the heire improve the value of the Land by building c. And on the other side if the value be impaired in the time of the heire she shall be endowed according to the value at the time of the assignment and not according to the value as it was in the time of her Husband 30. E. 1. Vouch. 298. It is not necessary that seisin should continue during the coverture for albeit the husband alieneth the Lands c. or extinguisheth the Rents c. Yet the woman shall be endowed But it is necessary that the marriage continue for if that be dissolved the Dower ceaseth Vbi nullum matrimonium ibi nulla dos but this is to be understood when the husband and wife are divorced à vinculo matrimonii as in case of precontract consanguinity affinity c. And not à mensa thoro onely as for Adultery In case of elopement shee shall lose her Dower but shee is not barred of her appeal Sponte virum mulier fugiens adultera facta dote sua careat nisi sponso sponte retracta Fol 32. b. Mirr ca. 5. Sec. 5. li. Intract 224. If a man seised of Lands in Fee took a wife and infeoffed eight persons Writ of Dower was brought against these eight persons and two confesse the action and the other six plead in Barre and descend to issue the demandant shal have judgment to receive the third part of two parts of the land in eight parts to be divided and after the issue being found for the demandant against the six the demandant shal have judgement to recover against them the third part of six parts of the same land in eight parts to be divided and so in some cases where the husband was sole seised the wife shall not be endowed in severalty by metes and bounds M. 2. and 3. Eliz. Dier 187. b. Nota. The endowment by metes and bounds according to the common right is more beneficiall to the wife then to be endowed against common right for there shee shall hold the land charged in respect of a charge made after her title of Dower It is necessary for the wife after the decease of her husband as soon as she can to demand Dower before good testimony for otherwise she may by her own default lose the value after the decease of her husband and her dammages for detaining of her dower Vide lib. Et Dotes suas habere non possunt sine placito The mean values and dammages are to be recovered against the Tenant in a Writ of Dower M. 8. and 9. Eliz. Rot. 904. conj Banco Vid. c. If the wise be past the age of 9 years at time of the the death of her husband albeit he were but 4 years old she shall be endowed quia minor non potest dotem promereri neque virum sustinere nec obstabit mulieri petenti minor aetas viri So that albeit concensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen Yet this inchoate or imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shal give Dower to the wife Fo. 33. a. Est uxor de facto de jure Fol. 33. b. Vid. c. Onely she that is a wise de jure in favorem vitae shall have an Appeale c. But a wife de facto shall have Dower if divorce be not had c. 50. E. 3. 15 10. E. 3. 35. Sect. 37. Rationabilis dos est cujuslibet mulieris de quocunque tenemento tertia pars omnium tium c. quae vir suus tenuit in dominico suo ut de feodo c.. By the custome of Gavelkind the wife shall be endowed of the moity so long as she keep her self sole and without child which she cannot wave and take her thirds for her life for consuetudo tollit communem legem Stat. de consuet Canciae c. And as customs may inlarge so it may abridge and restrain it to a fourth part c. Senentia signifieth widowhood fo â—3 b. in fine marg Sect. 39. Affidare est fidem dare sponsalia dicuntur futurarum nuptiarum repromissio conventio But this Dower ad ostium ecclesiae is ever after marriage
vide c. The Custome that enableth the Lord of a Manor to grant a greater estate enableth him to grant a lesser Omne majus continet in se minus H. 36. El. R. 492. Barnes B. R. A letter of Attorney may be contained in a Deed of feoffment beginning Omnibus Christ fidel c. for one continent may contain divers Deeds to severall persons but if it be by Indenture c. it is otherwise Though the Attorneys warrant be generall to deliver seisin yet hee cannot deliver seisin within the view for his warrant is intendable or implyed in law of an actuall and expresse livery and not of a livery in law P. 3. El. in C.B. in Yachams case Oportet quod donationem sequatur rei traditio etiam in vita donatoris donatorii Bract. l. 2. fo 16. Therefore a letter of Attorney to deliver livery of seisin after the decease of the Feoffor is voyd But this is to be understood of sole persons c. and not of a Congregation aggregate of many persons capable 18. H. 8. 3. 11. H. 7. 19. Sect. 67. There be two kinds of Wasts viz. Voluntary and Actuall or Permissive Waste may be done in houses by pulling them down or by suffering the same to be uncovered If the Tenant do or suffer Waste to be done in houses yet if he repair them before any action brought there lieth no action of Waste against him but he cannot plead quod non fecit vastum but the speciall matter If the tenant build a new house it is waste and if he suffer it to be wasted it is a new waste 42. E. 3. 21. If the tenant suffer the houses to be wasted and then fell down Timber to repair the same this is a double waste 44. E. 3. 44. F. N. B. 59. B. Note there is a waste Destruction and Exile Waste properly is in houses gardens and in timber-trees either in cutting of them down or topping of them or doing any act whereby the timber decaies The cutting of dead wood that is ubi arbores sunt aridae mortuae cavae non existentes marhemiuÌ„ nec portantes fructus nec folia in aestate is no Waste Dier 332. If the tenant cut down underwood as he may by law yet if he suffer the young germins to be destroyed this is destruction 20 E. 3. Waste 32. 10 H. 7. 2. Exile or destruction of Villains or tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is Waste fol. 53. a. b. vide libr. If the estate of the reversion continueth not but is altered the action of Waste for Waste done before which consists in privity is gone An action of waste doth lie against the Assignees of tenant by the Curtesie and of tenant in Dower and against the Assignee of the Guardian in Chivalry in all other cases the action of waste shall be brought against him that did the waste fo 54 a. vide c. An Infant a Baron and Feme shall be punished for waste done by a stranger and so shall the wife that hath the estate by survivor for waste done by the husband in his life time if she agree to the estate F.N.B. 36. b. If a lease be made to A. for life the remainder to B. for life the remainder to C. in fee After the death or surrender of B. in the mean remainder an Action of waste doth lie But if a lease for life be made the remainder for years the remainder in fee an Action doth lie presently during the term in remainder But if a man make a lease for life or years and after grant the reversion for years the lessor shall have no Action of waste during the years for he himself hath granted away the reversion in respect whereof hee is to maintain his Action Otherwise it is if hee had made a lease in reversion which had been but a future interest c. Vide c. 4. E. 3. 18. F. tit Waste No Action of waste lieth against a Guardian in Soccage but an action of trespasse Nor against Tenant by Statute Staple c. or Elegit Stat. Marlebridge cap. 17. F. N. B. 59. E. See in the Register five severall writs of waste Two at the Common law for waste done by Tenant in Dower or the Guardian and three by speciall or statute Law for waste done by Tenant for life for years and Tenant by the courtesie Qui haeret in littera haeret in cortice Vide c. As tenant for half a yeer is within the remedy of Stat. Gloc. ca. 5. which giveth waste against a lessee for life or yeers Lessee for life the remainder to him for 21 yeers he hath both estates in him so distinctly as he may grant away either of them For a greater estate may uphold a lesser but not è converso fol. 54. b. If a man make a lease for life to one the remainder to his Executors for twenty one years the term for yeers shall vest in him For even as an Ancestor and an Heir are correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in taile the remainder to the right heires of A. the fee vesteth in A. as if it had been limited to him and his heires even so are the Tâ—stators and Executors Correlativa as to any Chattel CHAP. VIII Of Tenant at will Sect. 68. EVery lease at will must be in law at the will of both parties Possessio precaria nuda pro voluntate domini potest revocari fol. 55. a. Fleta l. 3. Tenant at will shall reap the crop which he sowed in peace albeit the lessor doth determine his will before it bee ripe for that the estate of the lessee is uncertain and it is good for the Commonwealth that the ground be sown And this is not onely proper to a lessee at will but to every particular tenant that hath an estate incertain And therefore if tenant for life soweth the ground and dyeth his executors shall have the Corn. And the same law is for lessee for yeares of tenant for life So if a man be seised of land in the right of his wife c. his executor shall have the Corn. But if husband and wife bee joynt-tenants of the land and the husband soweth the ground and the land surviveth to the wife it is said that she shall have the Corn Dier 316. But where the estate of the lessee being incertain is defeasible by a right Paramount or if the lease determine by the act of the lessee as by Forfeiture Condition c There he that hath the right Paramount or that entreth for any forfeiture c. shall have the Corn. fol. 55. b. l. 5 106 If a disseissor sow the ground and sever the Corn and the disseissee re-enter he shall have the Corn because he entreth by a former title and severance or removing
of the Corn altereth not the case for the regresse is a continuation of the Freehold in him in judgment of law from the beginning If the husband and wife make a lease at will of the wifes land reserving a rent and the husband dye yet the lease continueth So if a lease be made by two to two others at will and the one of the lessors or of the lessees dye the lease at will is not determined c. l. 5. 10. Hensteads case Dier 269. b. * Quando lex aliquid alicui concedit concedere videtur id fine quo res ipsa esse non pâ—test 14. H. 8. 2. If the lessee at will be disturbed of his free entry egresse and regress to carry away his Corn c. he shall have his action upon his case and recover his damages for whensoever the law giveth any thing it giveth also a remedy for the same fo 56. a. Any Inhabitant of Southwark having by custom a watring place for Cattel which being stopped may have an action c. Sect. 69. and Sect. 70 71 72. Messuagium containeth Buildings Curtelage Orchards and Garden A Praecipe lieth not de Domo but de Messuagio Nothing that is contrary to reason is consonant to Law Si home fait un ft. de feoffment de terre c. a un auter deliver a luy le fait mes nemy livery de seisin en ceo case le feoffee enter tener a volunt c. The lessor hath no remedy at all against tenant at will for permissive Waste fo 57. a. If tenant at will grant over his estate and the grantee enter he is a desseisor and the lessor may have an action of trespasse against him though the grant is void for the will is determined A Trespass or Transgression passeth that which is right Transgressio est cum modus non servatur nec mensura debet enim quilibet in suo facto modum habere mensuram Nota in the lowest offences there are no Accessaries but all are Principals as in Riots Routs Forcible entries c. and so in the highest offence which is Crimen laesa Majestatis there be no Accessaries but in Felonies there be Accessaries both before and after Si le lessor sur tiel leas a volunt reserve a luy un annuall rent il poit distr per se rent arere ou aver de ceo un action de debt Note he may distrain c. and yet it is no rent service for no Fealty belongeth thereunto but a rent distrainable of common right fo 57. b. Tenant at will is always by right and tenant at sufferance entreth by a lawfull lease and holdeth over by wrong Sic vide diversitatem Note a diversity between particular estates made by the terretenant and particular estates created by act in law as if a Guardian after the full age of the heir continueth in possession he is not tenant at sufferance but an Abator against whom an Assize of Mortdanc doth lie c. F.N.B. 196. CHHP. IX Tenant by Copy Sect. 73. TEnantes per Copie de Court-Roll out use dauÌ„ terres c. a eux a lour heirs in fee fee taile ou a terme de vie c. a volunt le sur solonque le custome del Manor Eundum veteres aut ex scripto qui Bockland aut fine scripto qui Folkland dicebatur possidebant Curia Court is a place where Justice is judicially administred and is derived à cura quia in curiis publicis curas gerebant Court Baron so called of the Baron who is Lord of the Manor fo 58. a. or for that it hath relation to the Freeholders As there may be a Court Baron of Freeholders onely without Copiholders and then is the Steward the Register So there may be a customary Court of Copiholders only c. then is the Lord or his Steward the Judge And when the Court Baron is of this double nature the Court Roll containeth as well matters appertaining to the customary Court as to the Court Baron Manerium dicitur a manendo secundum excellentiam sedes magna fixa stabilis Et sciendum est quod Manerium poterit esse per se ex pluribus edificiis coadjuvatum five villis Hamletis adjacentibus Poterit etiam esse Manerium per se cum pluribus villis cum pluribus Hamletis adjacentibus quorum nullum dici poterit Manner perse sed villae suae Hamlettae poterit etiam esse per se Manerium Capitale plura continere sub se Maneria non Capitalia plures villas plures Hamlettas quasi sub uno Capite aut dominio suo Bract. l. 4. fo 212. Tenant for years Tenant by Statute Merch Staple Elegit Gardian in chivalry c. who are not properly seised but possessed are domini pro tempore not only to make admittance but to grant voluntary Copies of ancient Copihold Lands which come into their hands Fo. 58. b. And in some special Case an estate may be granted by Copy by one that is not dominus pro tempore c. As if the Lord of a Manor by his will in writing deviseth that his executor shall gâ—ant the Customary Tenements of the Mannor according to the custome of the Mannor for the payment of his debts and dieth the executor having nothing in the Mannor may make grants c. Consuetudo properly signifieth a custome as here c. But legally it signifieth also Tolles Murage Pontage c. Sect. 74. and 75. Et tiel Tenant ne poit alien sa terre per fait c. Fo. 59 a. But when a man hath but a right to a Copihold he may release it by Deed or by Copie to one that is admitted Tenant de facto l. 4. 24. b. Kite Queinton For is facere i.e. extra legem seu consuetudinem facere to do a thing against or without Law or Custome and that legally is called a forfeiture Si tiel tenant voit alien sa terre a un aut il covient c. de surrender les tenements en asc ' Court c. en le main le signior al use celuy que at avera le state Ils nont auter evidence concernant lour tenements forsque le Copies des Rolles de Court. Of Fines due to the Lord by the Copyholder some be by the change or alteration of the Lord and some by the change of the Tenant the change of the Lord ought to be by the Act of God otherwise no Fine can be due but by the change of the Tenant either by the act of God or by the Act of the party a Fine may be due Of Fines taken of Copyholders some be certain by custome and some be incertain but that Fine though it be incertus yet must it be rationabilis Fo. 59. b. Vide c. The Lord of a Manor is described by Fleta as he ought to be in these words Fleta lib. 2. ca.
Roy de rend al Roy annualment un arke ou un Espee c. petit choses touchant le guerre Et tiel service ne forsque Socage en effect If one holdeth Land of a common person in gross as of his person and not of any Manor c. and this Seigniory escheateth to the King yea though it be by Attainder of Treason he holdeth of the person of the King and not in Capite because the original Tenure was not created by the King And therefore it is directly said That a Tenure of the King in Capite is when the Land is not holden of the King as of any Manor Castle Honor c. but of his Crown Nota. A man may hold of the King in Capite or of his Crown as well in Socage as by Knights service fol. 191. 4. CHAP. X. Tenure en Burgage Sect. 162. ESt lou les tenants deins le Burgh sont tenus del seignieur del Burgh per cert ' rent c. tiel tenure ne forsque tenure en Socage Burgh is an ancient Town holden of the King or any other Lord which sendeth Burgesses to the Parliament fo 109. a. l. 10. 123. Major de Lynns C. A City is a Borough incorporate which hath or within time of memory have had a Bishop and though the Bishoprick be dissolved yet the City remaineth as Westminster Cambridge an ancient City Mich. 7. R. 1. Rot. 1. vide libr. fo 109. b. Cities were instituted for three purposes 1. For conservation of Laws whereby every man enjoyeth his own in peace 2. For tuition and defence of the Kings Subjects and for keeping the Kings peace in time of sudden uproar And 3. For defence of the Realm against outward and inward hostility There is lex consuetudo Parliamenti quae quidem lex quaerenda est ab omnibus ignorata à multis cognita à paucis Of the Members of this Court of Parliament some be by descent as ancient Noblemen some by creation as Nobles newly created some by succession as Bishops some by election as Knights Citizens and Burgesses fol. 110. a. ante Sect. 3. The Jurisdiction of this Court is so transcendent that it maketh enlargeth diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritine c. None can begin continue or dissolve the Parliament but by the Kings Authority Of this Court it is said Que il enim de tresgrand honor justice de que nul doit imaginer chose dishonorable Habet Rex Cur ' suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia unicuique justitia prout meruerit retribuetur Pl. c. 398. b. d. Pet. St. c. 55. fo 164. Flet. l. 2. c. 2. The King of England is armed with divers Counsels as first Commune Concilium and that is the Court of Parliament 2. Magnum Concilium and this is sometime applied to the Upper House of Parliament and sometime out of Parliament time to the Peers of the Realm 3. The Privy Councel And 4. the Kings Councel for Law matters and they are his Judges of the Law Sect. 165 c. Ascun Burghs ont tiel Custome que le puisne fits inherita c. Consuetudo quandoque pro lege servatur in partibus ubi fuerit more utentium approbata vicem legis obtinet longae vi enim temporis usus consuetudinis non vilis authoritas Longa possessio sicut jus parit jus possidendi tollit actionem vero domino Bracton Of every Custom there be two essential parts Time out of minde and Continuance and peaceable usage without lawfull interruption If Lands be within a Manor Fee or Seigniery the same by the Custom of the Manor c. May be devisable or of the nature of Gavelkinde or of Borough English 21. Ed. 4. 53. 54. otherwise is it In an upland Town c. Nota That in special Cases a Custome may be alleadged within a Hamlet a Town a Burgh a City a Manor an Honour an Hundred and a County but a Custom cannot be alleaged generally within the Realm c. For that is the Common Law Fo. 110. b. F.N.B. 122. Dyer 54. By some Customes the youngest brother shall inherit Sect. 166. and 167. Item en asc ' Burghs per le oustom feme avera pur sa Dower touts les tenement que feront a sa baron c. And this called Franke Banke Here is imployed by c. that in some places the Wife shall have the moity of her Husbands Lands so long as she lives unmarried as in Gavelkind And of Lands in Gavelkind a man shall be Tenant by the Curtesie without having of any issue In some places the Widdow shall have the whole or halfe Dum sola casta vixerit c. F.N.B. 150. Item home poit deviser ses terres qui il ad en Fee simple deins mesme le Burgh c. A devisor per son Testam is to speake by his Testament what his mind is to have done after his decease Testamentum est duplex 1. In Scriptis 2. Nuncupatinum seu fine scriptis The devisee cannot take goods c. without the assent of the Executors otherwise it is of Lands devised by Custome If a man hath Lands holden by Knights service in Capite and lands in Socage he can devise but two parts of the whole But if he hold lands by Knight-service of the King and not in Capite or of a meane Lord and hath also Lands in Socage he may devise two parts of his Land holden by Knights service and all his Socage Lands Vide lib. quaere Fo. 111. b. If a man make a Feoffment in Fee of his Lands holden by Knights service to the use of such person and persons and of such Estate and estates c. As he shall appoint by his Will in this case by operation of Law the use and State vests in the Feoffor and he is seised of a qualified Fee In this Case if the Feoffor limit Estates by his will by force and according to his power there the use and the Estates growing out of the Feoffment are good for the whole and the last will is but directory Vide Lib. c. If a gift in Taile or a Lease for life be made the remainder in Fee this remainder is not within the Statute Sect. 168. Fo. 112. By no conveyance at the Common Law a man could during the Coverture either in possession reversion or remainder limit an estate to his Wife But a man may by his Deed Covenant with others to stand seised to the use of his wife or make a Feoffment c. to the use of his Wife and now the state is executed to such uses by the Statute of 27 H. 8.
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
Carta autem de confirmatione est illa quae alterius factum consolidat confirmat nihil novi attribuit quandoque tamen confirmat addit Flet. l. 3. ca. 14. En asc ' case un fait de confirmation est bon available lou en tiel case un fait de release nes pas bon c. Car release ne pas available mes lou est un privity c. And note that where a confirmation shall enlarge an estate there privity is required as well as in the case of the Release 9 H. 6. 22. Release 44. Littleton in this Chapter putteth eight diversities betweene a confirmation and release And in this Chapter is also to be observed eight cases wherein a release and confirmation have the like opperation in Law Vid. Sect. 516 c. fo 296. a. If the disseisor make a Lease for years to begin at Michaelmos and the disseisee confirme his estate this is void because hee hath but interesse termini and no estate in him whereupon a confirmation may enure 4 H. 7. 10. by read 22. E. 4. 39. Sect. 519. c. Fo. 296. b. Si le desseisee confirme lestate le disseisor a aver tentant a luy pur terme de sa vie enc'le disseisor ad fee simple c. pur ceo que quant son estate fuit confime donque il avoit fee tiel fait ne pâ—it change son estate sans enter fait sur luy c. alia ratio quia confirmare idem est quod firmum facere 19 H. 6. 22. 6 E. 3. confirmation 4. Sect. 520. Fo. 297. a. Nota a diversity betweene a bare assent without any right or interest and an assent coupled with a right or interest and therefore an attonement cannot be made for a time nor upon condition but if the person make a Lease for a 100 years the Patron and ordinary may confirme 50 of the yeares for they have an interest and may charge in time of vacation Lib. 5. fo 81. Fordes case If tenant for life make a lease for a 100 yeares the lessor may confirme either for part of the terme or for part of the land But an estate of freehold cannot be confirmed for part of the estate for that the estate is intire and not severall as years be Sect. 521. Fo. 207. b. If the disseisor make a gift in taile the remainder for life the remainder to the right heires of tenant in taile this extendeth only to the estate taile c. If the disseisor infeoffe A and B and the heires of B if the disseisee confirme the estate of B for his life this shall not onely extend to his companion but to his whole fee simple because to many purposes he had the whole fee simple in him and the confirmation shall be taken most strong against him that made it If a feme disseiseresse make a feoffment in fee to the use of A for life and after to the use of her selfe in taile and the remainder to the use of B in fee and then taketh husband the disseisee and he release to A. all his right this shall enure to B. and to his own wife also for by the rule of Littleton it must enure to all in the remainder But A. lets Land to B. for life and B. maketh a Lease to C. for his life the remainder to A. in fee if A. release to C. all his right this is good to perfect the estate of C. for his life But when C. dyeth A. shall be in of his old estate c. and note that in these two cases the fee is devested and vested all at one instant c. Vide fo 297. b. Pur ceo que le remainder est dependant c. by this some have gathered that if a disseisor make a Lease for life reserving the reversion to himselfe and the disseisee confirme the estate of the disseisor that he may enter upon the lessee because the estate of him in the reversion dependeth not upon the estate for life as the remainder but all is one for by the confirmation made to him in the reversion all the right of him that confirmeth is gone as well as when he maketh it to him in remainder and he cannot by his entry avoid the estate of the lessee for life but he must avoid the estate of the lessor which against his own confirmation he cannot doe and it hath been adjudged that if a disseisor make a Lease for life and after levy a fine of the reversion with proclamations and the five years passe so as the disseisee is for the reversion barred he shall not enter upon the Lessee for life Reported by Sir Jo. Popham chief Justice Where the particular estate and the remainder depend upon one title there the defeating of the particular estate is a defeating of the remainder But where the particular estate is defeasible and the remainder by good title there though the particular estate be defeated the remainder is good As if the lessor disseise A. lessee for life and make a Lease to B. for the life of A. the remainder to C. in fee albeit A. reenter and defeate the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the lessor should have the remainder againe against his own livery So it is if a lease be made to an Infant for life the remainder in fee the Infant at his ful age disagree to the estate for life yet the remainder is good Pl. Com. Colthirsts Case fo 298. a. If a lease be made to A. for the life of B. the remainder to C. in fee A. dyeth before an Occupant enter here is a remainder without a particular estate and yet the remainder continueth 17 E. 3. 48. A rent is granted to the Tenant of the land for life the remainder in fee this is a good remainder albeit the particular estate continued not for coinstante that he tooke the particular estate eo instante the remainder vested and the suspension in Judgement of Law grew after the taking of the particular estate 3 E. 3. Abb. Ass If a man grant a rent to B. for the life of Alice the remainder to the heirs of the body of Alice this is a good remainder and yet it must vest upon an instant 7. H. 4. 6. Sect. 522 523 524. Fol. 298. 2. A Release is more forcible in Law then a Confirmation if the disseisee and a stranger disseise the heir of the disseisor and the disseisee confirm the estate of his companion this shall not extinguish his right that was suspended So as if the heir of the disseisor re-enter the right of the disseisee is revived And so it is if the grantee of a rent charge and a stranger disseise the Tenant of the Land and the grantee confirm the estate of his companion the Tenant of the land re-enter the rent is received for
the Confirmation extendeth not to the rent suspended otherwise it is of a release in both cases Est bone sure chose en chesc ' confirmation d'aver ceux parolls a aver tener les tenements c. en fee ou en fee tail ou pur terme de vie ou pur terme dans solonque eo que le case est c. Note the diversity between a Confirmation of the estate for life in the land to have and to hold the said state in the land to him and his heirs this cannot enlarge his estate for his estate being but for life cannot be extended to his heirs But in that case if he confirme the state for life in the land in the premises of the Deed and the habendum is to have and to hold the land to him and his heirs this shall create in him a fee simple 18 E. 3. 40. Sect. 525. If a man letteth land to the husband and wife to have and to hold the one moity to the husband for terme of his life and the other moity to the wife for her life and the lessor confirm the estate of them both in the land to have and to hold to them and to their heirs by this Confirmation as to the moity of the husband it enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are joyntenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation But if such a lease for life be made to two men by several moities and the lessor confirm their estates in the land to have and to hold to them and to their heirs they are Tenants in Common of the Inheritance for reg the Confirmation shall enure according to the quality and nature of the estate which it doth enlarge and encrease 18 Ass p. 3. 18 E. 3. Confirmation 17. fol. 299. b. If a lease for life be made to A. the remainder to B. for life and the lessor confirm c. A. taketh one moity to him and his heirs and therefore of the one moity he is seised for life the remainder to B. for life and then to him and his heirs of the other moity A. â—is seised for life the immediate inheritance to B. and his heirs because as to the moity which B. takes the same is executed 39 H. 6. 9 If lands be given to two men and to the heirs of their two bodies begotten and the Donor confirm their two estates in the land to have and to hold the land to them two and to their heirs in this case some are of opinion that they shall be joyntenants of the fee simple because the Donees were jointenants for life and the Confirmation must enure according to the estate which they have in possession and that was joynt But others hold the contrary For 1. They say that the Donees have to some purposes severall inheritances executed though between the Donees survivor shall hold for their lives 2. They say that when the whole estate which comprehended severall inheritances is confirmed the Confirmation must enure according to the severall inheritances which is the greater and most perdurable estate and therefore that the Donees shall be Tenants in Common of the inheritance in this case Albeit in this case of Littleton the husband by the Confirmation gaineth an estate for life in remainder yet if the husband doth waste an action of Waste shall lie against him and his wife notwithstanding the mean remainder because the husband himself committeth the wast and doth the wrong 17 E. 3. 68. b. Sir Edward Caries Case lib. 5. fo 76. b. Sect. 526 527. Fol. 300. a. Note a diversity between a lease for life and a lease for years made to a feme covert for her estate of Freehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Chattels reals as leases for years Wardships c. are not given to the husband absolutely as all Chattels personals are by the intermarriage but conditionally if the husband happen to survive her and he hath power to alien them at his pleasure but in the mean time the husband is possessed of the Chattels reall in her right 5 E 3. 17. b. Pl. Com. 418. b. 24. H. 4. 12. Pl. Com. Dame Hales Case 50 Ass p. 15. 4 H. 6. 5. 7 H. 6. 1. 21 H. 7. 29. 21 E. 4. 40. 26 H. 8. 7. Such a thing as I may defeat by my Entry I may make good by my Confirmation 11 H 7. 28. 3 H 4. 10. If the feoffee upon condition grant a rent charge en fee and the feoffor confirm it and after the Condition is broken and the feoffor enter he shall not avoid the rent charge And so it is if the heir of the diffeisor grant a rent charge and the disseisee confirmeth it and after recover the Land he shall not avoid the rent And yet in neither of these cases his entry was congeable at the time of the Confirmation Lib. 1. fo 147. c. Anne Mayowes case Sect. 528. Fol. 300. b. Persona is said to be seised in jure Ecclesiae and the Law had an excellent end herein viz. that in his person the Church might sue for and defend her right and also be sued by any that had an elder and better right and when the Church is full it is said to be plena consulta of such a one person thereof that may vicem seu personam gerere ejusdem Ecclesiae Brit. fol. 234. b. F.N. 48. A. Parson of D. is Patron of the Church of S. as belonging to his Church and presents B. who by consent of A. and of the Ordinary grant a rent charge out of the Gleab this is not good to make the rent charge perpetuall without the assent of the Patron of A. no more then the assent of the Bishop who is Patron without the Dean or Chapter or no more then the assent of the Patron being Tenant in Tail or for life as Littleton saith And Littleton here saith that the Patron that confirms must have a fee simple meaning to make the charge perpetuall And Littleton after saith that in the case of the Parson the fee is in abeiance and seeing the consent of the Patron is in respect of his interest as heir it appeareth by Littleton he may consent upon Condition otherwise it is of an attornment because it is a bare assent Also if the state of the Patron be conditionall and he confirmeth and after the Condition is broken his Confirmation is void Lib. 2. 39 24 l. 1. 153 l. 4 23 24. l. 5. 31. 81. l. 10. 6. l. 11. 19. l. 6. 34. Note a diversity between a sole Corporation as Parson Prebend Vicar c. that have not the absolute fee in them for to their grants
attorn saving his Acquitall and the Plaintiffe acknowledge it and thereupon Tenant attorn Tenant for life dyeth in this case albeit Reg. the Attornment to the Tenant for life is an Attornment to him in remainder yet in this case he in the remainder shall not distrain till he hath acknowledged the Acquitall which must be in a per que servit brought by him against the Tenant vide S. 557. Sect. 583. Fol. 321. a. Note a diversity between an act in Law that giveth one inheritance in lieu of another and an act in Law that conveyeth the estate of the Conusee only Of the former Littleton here putteth an Example of the escheat of the Mesnaâ—ty which drowneth the Seigniory Paramount and therefore reason would that the Lord by this act in Law should have as much benefit of the Mesnalty escheated as he had of the Seigniory that was drowned and he hath no remedy to compell the Tenant to Attornment Also the Lord cometh to the Mesnalty by a Seigniory Paramount and therefore needeth no Attornment As if lessee for life be of a Manor and he surrender his estate to the lessor there needs no Attornment of the Tenants because the lessor is in by a Title Paramount Temps E. 2. Attor 18. 39. H. 38. per Prifot lib. 6. f. 68. Sir M. Finches Case 5 H. 7. 18. per Cur. But if the Conusee dye and the Law casteth his Seigniory upon his heir by Discent he shall not be in any better estate then his ancestor was because he claimeth as heir meerly by the Conusee Sect. 584. Fol. 321. b. vide c. If a man make a lease for life or years and after levy a Fine to A. to the use of B. and his heirs B shall distrain and have an action of Waste albeit the Conusee never had any Attornment because the reversion is vested in him by force of the Statute and hath no remedy to compell the lessee to attorn 27 H. 8. c. 10. Sect. 585. 586. Fol. 322. a.b. Here doth Littleton put a case where a man may have a Seignory rent reversion or remainder meerly by the act of the party and may distrain and have any action without any Attornment and that is by devise of Lands deviseable by Custom when Littleton wrote by the last Will aad Testament of the owner 34 H. 6. 6. 5 H. 7. 18 F N B. 121. n. Omne Testamentum morte consummatum ultima voluntas testatoris est perimplenda secundum veraÌ„ intentionem suam reipublicae interest suprema hominum testamenta rata haberi The Will of the Devisor expressed by his Testament shall be performed according to the intent of the Devisor and it shall not lie in the power of the Tenant or lessee to frustrate the Will of the Devisor by denying his Attornment vide S. 167. Brit. fol. 78. 212. b. Sect. 587 588 589. Fol. 323. a b The disseisor cannot disseise the Lord of the Rents or Services without the Attornment of the Tenants to the disseisor for seeing an Attornment is requisite to a feoffment and other lawfull Conveyances A fortiori a disseisor or other wrong doer shall not gain them without Attornment The like Law is of an Abator and an Intrudor But albeit the disseisor hath once gotten the Attornment of the Tenants and payment of their rents yet may they refuse afterwards for the avoiding of their charge And here the Attornment of the Tenant of a Manor to a disseisor of the Demesns shall dispossess the Lord of the rents and services parcell of the Manor because Demesns Rents Services make but one intire Manor and the Demesns are the principall but otherwise it is of rents and services in gross 6 H. 7. 14. 11 H. 7. 28. 11 H. 4. 14. a.b. For a man cannot be disseised of a rent service in gross rent charge or rent seck by Attornment or payment of the rent to a stranger but at his election for the Rule of Law is Nemo redditum alterius invito Domino percipere aut possidere potest vide S. 237 238 239 240. What be disseisins of rent services rent charge and rent secks and payment to a stranger is none of them but at the Lords election 24 E. 3. 4. 1 E 5. 5. A discent of a rent in gross bindeth not the right owner but that he may distrain albeit he admitted himself out of possession and determined his election as by bringing of an Assize c. 5 E. 4. 1. 23 H. 30. Ass 439. 16 Ass p. 15. *** CHAP. XI Of Discontinuance Sect. 592. Fol. 325. a. DIscontinuare nihil aliud significat quà m intermittere desuescere interrumpere 8 H. 4. 8. b. 11 H. 4. 85. b. A discontinuance of estates in Lands or Tenements is properly in legall understanding an alienation made or suffered by Tenant in Taile or by any that is seised in auter debit whereby the issue in Tail or the heir or successor or those in reversion or remainder are driven to their action and cannot enter I have added properly by good warrant of our Author himself for Sect. 470. he useth Discontinuance for a devesting or displacing of a reversion though the entry be not taken away Also vide the Stature of 1 E. 6. c. 7. 31. Eliz. c. 2. lib. 7. fo 30 31. le case de Discontin de processe When Littleton wrote the estate in Lands and Tenemens might have been discontinued five maner of ways viz. By Feoffment by Fine by Release with Warranty Confirmation with Warranty and by suffering of a Recovery of a Praecipe quod red and this was to the prejudice of five maner of persons viz. of Wives of Heirs of Successors of those in Reversion and of those in Remainder But for Wives and their Heirs and for Successors the Law is altered by Acts of Parliament since Littleton wrote Sect. 593. Fol. 325. b. Nota that in Law the Covent albeit they be Regular and dead persons in Law yet are they said in Law to be Capitulum to the Abbot as well as the Dean and Chapter that be Secular to the Bishop But it is to be observed That a sole Body Politick that hath the absolute right in them as an Abbot Bishop c. may make a discontinuance but a Corporation aggregate of many as Dean and Chapter Warden and Chaplains c. cannot make any discent for if any joyn the grant is good and if the Dean Warden c. make it alone where the Body is aggregate of many it is void and worketh a disseisin 21 E. 4. 86. vide Sect. 528 648. By the Statute of 1 Eliz. c. 10. 1 Iac. c. 3. Bishops and all other Ecclesiasticall persons are disabled to alien or discontinue any of their Ecclesiasticall Livings Sect. 594. Fo. 326. a. By the pur vieu of the Statute of 32 H. 8. c. 28. the wife and her heirs after the decease of her husband may enter into the Lands and Tenements of the
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
quid sig 363 Discontinuance by Tenant in Tail 366 367 368 Dum fuit infra aetatem 368 Discontinuance who may make it 375 E Escheat unde p. 12 quomodo ibidem quid 103 Escheat upon Indictment and Appeal difference 12 Escheat none from a Corps politique ib. Elopement loseth Dower 32 Estoppel quid quotuplex 390 391 392 Excambium its incidents necessary and convenient 62 289 Escuage quid quomodo praestandum ubi 86 87 Escuage when assessed and where it ought to be 90 Escuage certain what 99 Excommunication 141 who shall certifie it ib. Exitus quid 129 quotuplex est ib. 130 Electio cujus est quomodo quando 151 152 Extortio quid quomodo 417 Executio quid Executed and Executory differ 206 Executors are bound though not named not an heir 212 Executors not Assignees in Law where 213 Entry upon Condition given to stranger by Statute 38 H. 8. cap. 34. with conclusions and limitations 218 219 Who claim meerly by act in Law cannot 219 And where the Condition respects a thing collateral to the Law not 220 Exemplifications are pleadable 232 Estoppel restrains not the Jurors 233 Execution against issue in tail 405 Estate by wrong makes no degree in a Writ of Entry 251 Entry followeth the nature of Action 270 Entry of one Coparcener is the entry of both 257 Entry sur Bastard to defeat his estate who shall do it 259 Entry into part for all where it is good where not 271 272 Entry forcible what 274 Damages in it ib. Englands extent 277 out of it how far it excuseth 278 acts out of it how tryable ib. Execution 318 Elegit 320 within a year ib. Executor may release before any Probate c. 322 Evidence given what 336 Ecclesia fungitur c. 374 Entry ad terminum qui praeteriit ib. F Fee simple what p. 1 Fee simple divided ib. Fee its extent of signification ib. Fee simple personal what 2 Feoffment efficacious when other Conveyances fail 9 Feoffment improperly call'd ib. Fee simple gained by Agreement where 10 Frankmarriage its incidents and properties 17 Forfeiture for Felony 52 53 Fine onely for Alienation by the Kings Tenant no forfeiture 55 Freehold quotuplex ratione subjecti in quo 68 Fidelitatem quis faciet cui quomodo quando 85 86 quis non faciet 103 Frank-Almoigne quid ib. qua relatione 106 Forum ratione Actionum agentium quotuplex 105 Forresters view where c. 120 Forfeiture in a Praemunire 135 Feme sues sans baron 140 Favorites of Law 128 Finis sumitur tripliciter 131 Felonicè where to be used 132 Fictio Juris quale 159 Forfeiture to whom 165 Frankmarriage by the Common Law 183 Forfeiture by alienation c. how and where 267 268 Fine who bound by it 279 Fraudulent feoffments c. 319 Fine barres a wife after five years after death de baron 358 Feme alien within the Statute 11 H. 7. c. 20. vide 359 Fine of things which properly lie in grant make no Discontinuance 365 Feme covert received how she shall plead 393 Felon convict what he forfeiteth 461 G Grants how to be expounded p. 8 Guardian in Socage cannot present to Adv. 14 Gavelkinde Custom special 22 Guardian may endow 31 Guardian pur cause c. 100 Guardian in Socage who ib. Goods stoln c. at whose peril 101 Guardian in Socage shall account ib. when he is chargeable 102 Grant what 178 when void ratione rei 216 Guardian shall take benefit of a Condition for the advantage of the heir 20 Guardianship devested 263 Grants by Spiritual Corporations restrained 332 Grant of a Rent by particular Tenant with confirmation of him in reversion where good 231 332 Grant when it ought to take effect 339 Gleab-land where the Fee is 374 H Haereditamentum its extent 6 Haeres quis 7 Heir none propter delictum ib. propter defectum subjectionis ib. Heir cannot be of Goods and Chattels ib. Haeres astrareus quis 8 Haeres apparens ib. Heirs what is affected by the word ib. Haereditas est duplex ib. Heirs when necessary to pass a Fee 9 10 Heir claiming how 11 Heir-loom what 15 Heirs n limitation the effect 17 Homagium quid quotuplex 83 quis praestaret cui 84 85 Homagium Ancestrale quid 108 incidentia 108 interruptum decidit 111 Hyberniae Leges 148 Heir by descent and by purchase the difference 171 Hotchpot what 182 183 Habendum Haeres quis per Leg. Civil Com. 248 Heir not chargeable during minority where 319 Hospitals divers matters resolved concerning them 376 Husband doth gain a Freehold in his wives right where 387 Husband seised in droit fa feme attaint what is forfeited ib. Husband what is given to him by Law by Marriage 387 388 389 Heir chargeable by the Bond of his Ancestor in respect of the land onely 431 Heir not bound unless the Ancestor be 447 I Jus Coronae where it is 13 Inheritance what where 14 Inheritances entire 25 Joynture its efficacy 27 how concluding 29 Joynture what is required to make it good 29 30 Jus aequale quid utilitatis 100 Incidens quoâ—uplex 103 Interpretatio quomodo habenda 117 Jour generale speciale 141 Infant amerced where 131 Infant sues by whom 143 Judicium finale interlocutorium qui distant Inconvenience not sufferable 161 Juror how he ought to be qualified 162 Infant to what he shall be bound to how 177 348 what oath he shall take 178 For what he is punishable 437 Joyntenants who by what Conveyances 184 Joynture severed where 187 196 197 Jus accrescendi 189 190 Joyntenant his right 191 Joyntenant may make partition 192 Joynt heir what will stand in it 193 Joyntenants reserve a rent how it shall enure 196 Issue when found sufficiently 233 It is always intended true untill reversed 133 Juror eat or drink its fineable 233 what land he ought to have 296 Infelix quis 237 Jus quotuplex 285 381 Jus nudum quid 286 Interesse termini before entry 293 Intensio quid 302 quotuplex 303 Issue when well found 309 Jurors bound to finde things local and transitory when 311 Justification pleadable where ib. where not b. 312 Placita quotuplicia sunt ratione objecti actionis 313 Interpretationes benignae c. 333 Incidents pass with the things themselves 338 Infant not have his age where 371 437 Juris utrum 374 Jus sive Rectum quid significat 381 Interest quid cui 381 Judgement against a man for Felony 45â— Infant en ventre sa mere vouche 460 K King capable of an office how 3 Knights Service Tenure is priledged 31 32 King never deins age 55 Knights Service its incidents what they are 337 L Linea recta its priviledge 10 Lineal assent prohibited ib. Legum diversitas ratione objecti circa quod versatur 11 Limitations to estates 54 Law its construction in an uncertainty what 55 Liberum tenementum quasi where 56
incorporeal real or personal or mixt 6. a. If a man by deed give lands to another and to his heirs without more saying this is good ut res magis valeat quam pereat if he put his seal to the deed deliver it and make livery accordingly So it is if A give lands to have and to hold to B and his heirs this is good by construction of the Law but when form and substance concur then is the deed fair and absolutely good fol. 7. a. In ancient charters c. there was never mention made of the delivery of the deed or any livery of seisin indorsed for the witnesses named in the deed were witnesses of both ib. Witnesses are very necessary for the better strengthning of deeds fol. 7. b. Haeres legitimus est quem nuptiae demonstrant and is he to whom Lands Tenemenrs and Hereditaments by the act of God right of bloud do descend of som estate of enheritance for Solus Deus facere potest haeredem non homo haeres ab haerendo nam qui haeres est haeret vel dicitur ab haerendo quia haereditas sibi haeret c. Vide libr. Partus cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter bene debet inter liberos connumerari Si inutilia nostra reddidit ut si membra tortuosa habuerit non tamen is partus monstrosus Bract. l. 5. f. 437. A denizen by the Kings Letters Patents cannot be heir c. But otherwise is it if he be naturaliz'd by Act of Parliament and if one be made denizen the issue that he hath afterwards shall be heir to him An alien cannot he heir c. Propter de sectum subjectionis Fol. 8. a. Where the Sons by no possibility can be heir to the Father the one of them shall not be heir to the other as if an alien cometh into England and hath issue c. l. 7. Calvins Case A man attainted of Treason or Felony can be heir to no man nor any man heir to him propter delictum A man hath issue two sons and after is attaint c. And one of the sons purchase Lands and dieth without issue the other brother shall be his heir for the attainder c. corrupteth the lineal bloud only not the collateral bloud between the brethren which was vested in them before the attainder But if a man after he be attainted have issue c. Autrement est In case where filiatio non potest probari the child may choose his Father A man by the common law cannot be heir to Goods or Chattels for haeres dicitur ab haereditate Haeres astrarius so called ab astre i. e. an harth of an house cum Antecessor restituat haeredi in vita sua haereditatem c. fol. 8. b. Si uxor dicit se esse praegnantem de ipso defuncto cum non sit habeat haeres brevium de ventre inspic nemo est haeres viventis apparens dicitur If a man give land unto two haeredibus omitting suis they have but an estate for life for the uncertainty 10 H. 6. 7. Pl. Com. 28. b. Ceux parolx ses heirs tantsolement font lestate denheritance en touts Feoffments and grants Here Littleton treateth of purchases by natural persons and not of bodies politique or corporate As the heir doth inherit to the ancestor so the successor doth succeed to the predecessor and the executor to the Testat An ancient grant must be expounded as the law was taken at the time of the grant 17 E. 3. 25. b. Sub vocabulis haeredibus suis omnes haeredes propinqui comprehenduntur remoti nati nascituri fo 9 a. Fleta l. 3 c. 8. The law is precise in prescribing certain words to create an estate of inheritance for avoiding of uncertainty the mother of contention and confusion Pl. Com. 163. There bee many words so appropriated as that they cannot be legally expressed by any other words c. Some to estates of lands some to tenures some to persons some to offences some to forms of Originall Writs some to warrant c. Satus dicitur à stando An estate of inheritance granted by the great Seal c. is descendible according to the cours of the common law Hereditas est duplex Corporata viz. Of Lands and Tenements which may pass by Livery by Deed or without Deed. Incorporata as Advowsons Commons c. which cannot pass by livery but by Deed. The Deed of incorporaet inheritances doth equal the livery of corporeate al I. S. habend sibi succes sive haered suis ē fee s. Si. soit per Letters Patents A conveiance by feoffment cleareth all disseisins abatements intrusions and other wrongful or defeasible estates where the entry of the feoffor is lawful which neither fine recovery nor bargain and sale by deed indented and inrolled doth Sometime when an estate of freehold only doth pass improperly it is called a feoffment Done est nosme general plus que nest feoffment car done est general à touts choses moebles nient moebles Feoffment est riens forsque del soil If a man devise lands to a man in perpepetuum or to give and to sell c. A fee simple doth pass by the intent of the devisor Fol. 9. b. A man deviseth land to one sanguini suo that is a fee simple but if it be semini suo it is an estate tail Br. tit tail 21. So that ceux parolx ses heirs tantsolement c. Extend not 1. To last Wills and Testaments 2. Not to a fine sur conusans de droit come ceo c. 3. Nor to certain releases 4. Nor to a recovery 5. Nor to a creation of Nobility by Writ But out of This rule of our Author the Law doth make divers exceptions as 1 If the Son infeoff the Father as fully as the Father infeoffed him 2. In respect of the consideration as if lands be given in frankmarriage generally 3. If a feoffment or grant be made to any corporation aggregate of many persons capable 4. In case of a sole corporation as if a feoffment in fee be made to a Bishop habendum c. In libera elemosina 5. In grants sometimes as if one coparcenor for owelty of partition grant a rent to the other generally c. Ipsae etenim leges cupiunt ut jure regantur 6. By the Forrest Law if an Assart be granted by the King to another habendū tenend sibi in perpetuū he hath a fee simple without this word heirs fol. 10. a. And this rule c. extendeth to the passing of estates of inheritances in exchanges releases or confirmations that enure by way of enlargement of estates warranty bargains and sales by Deed indented and inrolled c. In which this word heirs is also necessary for they do taptamount to a Feoffment or grant ubi eadem ratio ibi idem jus A man may purchase lands to
him and his heirs 1. By Feoffment 2 By Grant 3. By Fine which is a Feoffment of Record 4. By common recovery in nature of a Feoffment of recovery 5. By Exchange 6. By Release to a particular Tenant 7. By confirmation c. which are in nature of Grants c. 9. By bargain and sale by Deed c. Ordained by Statute 10. By devise by custome of some particular place and by Will in Writing generally by authority of Parliament 27 H. 8. ca. 16. 32 H. 8. ca. 2. 34 H. 8. cap. 5. If a disseisin abatement or intrusion be made to the use of another if cesty que use agreeth thereunto in pays by this bare agreement he gaineth a Fee Simple without any livery of seisin c. Sect. 2. Linea recta semper praefertur transversali Proximus excludit propinquum propinquus remotū remotus remotiorem fol. 10. b. Proximum Sumitur duplici sc Jure propinquitatis and he that is thus next c. is mediately inheritable Jure representationis and so one is immediately inheritable and accounted in Law next of bloud A Lease for life is made to A. the remainder to his next of bloud in this case he that is next of bloud and capable by purchase shall have the remainder though he be not legally next to take as heir by discent note the diversity Sect. 3. Maxime so called quia maxima est ejus dignitas certissima autoritas atque quod maximè omnibus probetur Pl. com 27 Lineal ascent is prohibited by the law but not Collateral c. fo 11. a. Littletons proofs and arguments drawn from the common law are first from the maxims rules intendment and reason of the common law 2. Ab autoritate pronūciatis 3. A rescriptis valet argumentum 4. From the form of good pleading 5. From the right entry of judgments 6. A praecedentibus approbatis usu 7. A non usu 8. Ab artificialibus argumentis consequentibus conclusionibus 9. A communi opinione jurisprudentium 10. Ab inconvenienti 11. A divisione vel ab enumeratione partium 12. A Majore ad minus à minore ad majus à simili à pari 13. Ab impossibili 14. A fine 15. Ab utili vel inutili 16. Ex absurdo 17. A natura ordine naturae 18. Ab ordine religionis 19. A communi praesumptione 20. A lectionibus jurisprudentium From Statutes his Arguments and proofs are drawn 1. From the rehearsal or preamble of the Statute 2. By the body of the law diversly interpreted sometimes by other parts of the same statute which is benedicta expositio ex visceribus causae Sometime by reason of the common Law But ever the general words are to be intended of a lawful act and such interpretation must ever be made of all statutes that the innocent may not be damnified c. fol. 11. b. There be divers laws in England As first lex Coronae 2. Lex consuetudo Parliamenti 3. Lex naturae 4. Lex communis Angliae 5. Statute Law 6. Consuetudines 7. Jus belli in republica maximè conservanda sunt jura belli 8. Ecclesiastical or Canon Law in Courts in certain cases 9. Civil Law in certain cases only in Courts Ecclesiastical but in the Courts of the Constable and Marshal and of the Admiralty 10. Lex Forestae 11. The Law of Marque or Reprisal 12. Lex Mercatoria 13. The Laws and Customs of the Isles of Jersey Gernsey and Man 14. The Law and priviledge of the Stannery 15. The Laws of the East West and middle Marches which are now abrogated A man that claimeth as heir in fee simple to any man by discent must make himself heir to him that was last seised of the actual freehold and inheritance where the unckle cannot get an actual possession by entry or otherwise there the Father cannot inherit c. Warranties shall descend to him that is heir at the common law Fol. 12. a. And a warranty shall not go with Tenements whereunto it is annexed to any special heir but to the heir at the common law Sect. 4. None shall inherit any lands as heir but only the bloud of the first purchaser Plow 447. refert à quo fiat perquisitum Fleta l. 6. c. 1. 2. Bract. l. 2. fo 65. 67. Multa transeunt cū versitate quae par se non transeunt vid. libr. fo 12. b. 5 E. 2. Avowry 207. Whensoever lands do descend from the part of the Mother the heirs of the part of the Father shall never inherit è converso 39 E. 3. 29. fol. 13. a. Escheat i.e. cadere excidere vel accidere quod accidit duobus modis aut perfectū sanguinis aut per delictū tenentis atque illud est Per judicium 〈◊〉 modis aut quia suspensus per collū aut quia abjuravit regnū aut quia utlegatus In an appeal of death c. hanging the Process the defendant conveyeth away the land after is outlawed the conveiance is good shall defeat the Lord of his escheat but otherwise is it if a man be indicted of felony c. for in the case of Appeal the Writ containeth no time when the felony was done and therefore an escheat can relate but to the outlawry pronounced but the indictment containeth the Time when the Felony was committed and therefore the escheat upon the outlawry shall relate to that time If lands holden of I. S. be given to a Dean and Chapter Major and Commonalty and to Their successors c. And after such body politick or incorporat is dissolved the donor shall have again the Land for that the cause of the gift or grant faileth and not the Lord by Escheat But no such condition is annexed to the estate in see simple vested in any man in his natural capacity but in case where the donor or feoffor reserveth to him a tenure and then the law doth imply a condition in law by way of escheat fol. 13. b. Sect. 5. Descent is a means whereby one doth derive him title to certain lands as heir to some of his Ancestors Quod prius est dignius est qui prior est tempore potior est jure Sect. 6. Nul aūa trē de fee simp per discent come heir c. Si non que il soit heir dentier sanke The half bloud is no bloud inheritable by descent being not compleat and perfect Fol. 14. a. Sect. 8. Lands c. shall descend to him that can make himself heir to him that was last actually seised of the Freehold of the land c. Fol. 15. a. Whether the seisin of a rent reserv'd upon a seise for life be such an actual seisin of the land in the eldest son as the sister in a writ of right may make her self heir of this land to her brother admitting there be son and daughter by one venter and a son by another venter Vid. lib. Qu. 7 H.
assigned over without Deed the wardship of an Advowson cannot be granted without Deed. Causa qua supra Vide Divers CHAP. V. Socage Sect. 117. OMnium rerum ex quibus aliquid exquiritur nihil agricultura melius nihil uberius nihil dulcius nihil libero homine dignius Cicero lib. 1. offic Virg. Lib. 1. Georg. O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima tellus Nullum laborem recusant manus quae ab aratro ad arma transferuntur c. Fortior autem Miles ex confragoso venit sed ille unctus nitidus in primo pulvere deficit Seneca in Epist In the Book of Doomesday Land holden by Knights service was called Taniland and Land holden by Socage was called Reveland Fo. 86. a. Nota that the legall signification of agium in composition termineth service or duty as Homagium the service of the man c. Vide Libr. a woundy mistake fignum pro termino Ex donationibus autem feoda militaria vel magnam serjeantiam non continentibus oritur nobis quoddam nomen generale quod est socagium It is a presumption where homage is due that the land is holden by Knights service Sect. 118. and 119. Home poit tener per fealty tantum est a tener en Socage Car chescun tenure que nest pas in Chivalry est tenure en Socage Here Littleton speaketh of Tenures of common persons for grand Serjeanty is not Knights service and yet is not a Tenure in Socage Vide c. And note That some Tenures in Socage are named à causa and some and the greater part ab effectu Socagium idem est quod servitium Socae Soca idem est quod caruca s un soke ou un carve As carucata terrae a plough land may contain houses mils pasture meadow wood c. as pertaining to the plough so under the service of the Plough all services of tillage or husbandry are included Although the cause whereupon the name of Socage first grew be taken away yet the name remains the same it hath been and is used to distinguish this Tenure from a Tenure by Knights service Nomina si perdas certè distinctio rerum perditur Sect. 120. and 121. Escuage certain is not in rei veritate servit ' scuti which is to be done by the body of a man but it is servitium Crumenae of money which is to be drawn out of the purse and that is in effect a Tenure in Socage If a rent be paid for Castlegard it is clear a Socage Tenure but if a sum in gross or other thing be voluntarily paid or given by the tenant and voluntarily received by the Lord in lieu of Castlegard yet the Tenure by Knights service remaineth vide lib. 4. fo 88. in Lutterels Case Rent service is accompanied with some corporal service as fealty at the least Sect. 122. Sect. 123. If lands holden in Soccage be given to a man and the heirs of his body and he dieth his heir within age the next Cosin of the part of the father albeit he be worthier shall not be preferred before the next Cosin of the part of the mother but such of them as first seiseth the heir shall have his Custody fo 88. a. If A. be Guardian in Soccage of the body and lands of B. within age of 14 years A. shall be Guardian per cause de gard But an Infant c. that is not in the custody of another cannot be Gardian en Soccage because no Writ of Account lieth against an Infant Alium regere non potest qui seipsum regere non novit Bract. lib. 2. fo 88. Minor minorem custodire non debet alios enim presumitur male regere qui seipsum regere nescit Fleta lib. 1. cap. 10. Haeres sokmamii sub custodia capitalium dominorum non erit sed sub custod ' consanguineorum suorum propinquorum hoc est eorum qui conjuncti sunt jure sanguinis non jure successionis ex parte quor ' non descendit haereditas c. Hereby not only an immediate descent but all possibility of descent is excluded Vide lib. fo 88. b. The father Guardian in Soccage must by law be accountable to the son both for his marriage and also for the profits of his lands which he should not if he had the custody c. in this case as father in respect of nature And the act of the law never doth any man wrong sic vide diversitatem c. Guardian in Soccage shall not forfeit his interest by outlawry or attainder of Felony or Treason because he hath nothing to his own use but to the use of the heir Legitima aetas as the Statute of Merlebridge 52 H. 3. speaketh or plena aetas as the Writ of Account doth render it are to be understood secundum subjectam materiam that is of the heir of Soccage land whose lawfull and full age as to Guardianship is 14 years And as to the recitall of the Statute it is evident That an action of Account did lie against Guardian in Soccage at the Common Law Vide lib. fo 89. a. * If the Guardian receive the rents and profits c. and he be robbed without his default or negligence he shall be discharged thereof But otherwise it is of a Carrier for he hath his hire and thereby implicitely undertaketh the safe delivery of the goods delivered to him H. 38. Eliz. inter Woodlief Curteis Note it is necessary for any that receiveth goods to be kept to receive in this special manner viz. To be kept as his own or to keep them at the peril of the owner To be kept and to be safely kept is all one in Law sic vide diverfit ' Pascha 43 Eliz. Southcote and Bennet The Gardian en Socage shall account for the marriage of the heir so for so much as any man bona fide had offered for the marriage unto him Le enfant al age de 18 years poit faire son testament c. Nota Executors could not have an action of Account at the Common Law in respect of the privity of the account but the Statute of Westm. 2. cap. 23. hath given the action of account to Executors the Statute of 25. E. 3. cap. 5. to Executors of Executors and the Statute of 31 E. 3. cap. 11. to Administrators The Gardian en Socage is bounden by Law That the heir be well brought up and that his Evidences be safely kept Sect. 124. and 125. Sed quaere si apres lage de 14 ans c. This quaere came not out of Littletons quiver for it is evident That after the age of 14 years Gardian en Socage shall be charged Bayliff at any time when the heir will either before his age of 21. years or after Gardian en Chivalry ad le gard a son proper use Gardian en Socage nad
he hath a Deed or if it be by parol then an action upon his Case or an action of deceipt c. The proces whereby the vouchee is called is a Summon ad Warr. whereupon if the Sheriff return that the vouchee is summoned and he maketh default Mag. Cape ad valentiam is awarded when if he make default again then judgement is given against the Tenant and he over to have in value against the vouchee But if the Sheriff return that he hath nothing then after Writs of Alias and pluries a Writ of sequatur sub suo periculo shall be awarded c. and the demandant shall not have judgement to recover in value because the vouchee was never warned Vide Libr. Fo. 101. b. When the tenant being impleaded within a particular jurisdiction as in London c. Voucheth one to warr and prayes that he may be summoned in some other County out of the jurisdiction of that Court this is called a forrain voucher By the Civil Law every man is bound to warrant the thing that he selleth or conveyeth albeit there be no expresse warrant but the Common Law bindeth him not unlesse there be a warranty either in Deed or in Law for Caveat emptor c. There be three kindes of disclaimer i. e. in the Tenancy in the bloud and in the Seigniory F.N.B. 197. 151. b. In the case of Homage Auncestrel which is a special warranty in Law by the authority of Littleton the Lands generally that the Lord hath at the time of the voucher shall be liable to execution in value whether he hath them by discent or purchase But in the case of an expresse warranty the heir shall be charged but only for such Lands as he hath discent from the Auncestrel which created the warranty F.N.B. 152. And note the Lands of the vouchee shall be liable to the warranty that the vouchee hath at the time of the voucher for that the voucher is in lieu of an action and in a Warr. Cartae the Land which the defendant hath at the time of the Writ brought shall be liable to the warranty Fo. 102. a. Upon a judgement in debt the Plaintiff shall not have execution but only of that Land which the Defendant had at the time of the judgement for that the action was brought in respect of the person and not in respect of the Land Vide Lib. c. If a man give Lands in Fee with warranty and binde certain Lands specially to warranty the person of the Feoffor is hereby bound and not the land unlesse he hath it at the time of the voucher 32. E. 1. voucher 292. Sect. 146. En Chesc ' case lou le Seignior poit disclaymer c. Et de ceo poit disclaimer en Court de Record son Seigniory ē extinct le rerant tiendra del Seignior procheine Paramount c. Meliorem conditionem Ecclesiae suae facere potem praelatus deteriorem nequaquam and again Ecclesiae suae condici melior facere possunt sine consensu deteriorem non possunt sine consensu Expedit reipublicae ut sit finis litium vide fol. 103. a. If an action of Debt upon an Obligation against an Abbot the Abbot acknowledgeth the action and dieth the successor shall not avoid Execution though the Obligation was made without the assent of the Covent for he cannot falsifie the Recovery in an higher action Et res judicata pro veritate accipitur and this is but a Chattel 7 Reg. 2. tit Abbot 7. Sect. 147 and 148. If the tenant make a feoffment in fee upon condition and dieth his heir performeth the condition and re-entreth the Homage ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate 1. Mich. 14 15 El. Tenant que fist homage al pere ne ferre homage al fits fo 103. b. vide le except a ce rule Sect. 149 150 c. Fealty est incident a chesc ' atturnment del tenant grant le seigniory est grant None shall do homage but the tenant of the Land to the Lords of whom it is holden fol. 104. a. 8 Ed. 4. 27. b. * The recovery of the seigniory differeth from the alienation of the Lord which is his own act or the descent of the seigniory to the heir which is an act in law for that by the Recovery the state of him that received the homage is defeated for it shall not lie in the mouth of the tenant to falsifie the recovery which was against his Lord c. for that the tenant had nothing therein c. If a man had made a Lease for years to begin at Michaelmas reserved a rent and he had suffered a Common Recovery before Michaelmas the Recoverer should distrain for rent which the lessor before the recovery could not 28 H. 8. Dyer 41. fol. 104. b. The tenant ought to seek the Lord to do him homage c. for this service is personal c. but rent may be paid and received by other and therefore a tender of the rent upon the land is sufficient fo 105. a. CHAP. VIII Grand Sergeanty Sect. 153. GRand Sergeanty est lou home tient ses terres del Roy per les services que il doit faire en son proper person com de port le banner del Roy out sa lance c. Ceo tenure en ten per service de Chivalry mes le livery paiam al Roy pur reliese le value ouster les charges reprises des terres pur an S. 154 158. Magna Sergeanty i. e. Magna Servitium because it is greater and more worthy than Knight service for this is Revera servitium Regale and not Militare onely This Tenure hath seven special properties 1. To be holden of the King onely 2. It must be done when the tenant is able in proper person 3. This service is certain and particular 4. The Relief due c. differeth from Knights service 5. It is to be done within the Realm 6. It is subject to neither Aid pur faire fits Chivaler or file mariage And 7. it payeth no Escuage fo 105. b. 11 H. 4. 34. F.N. B. 83. There were divers Lords Marshals of England before the reign of R. 2. yet King R. 2. created Tho. Moubrey Duke of Norfolk and first Earl Marshal of England per nomen Comitis Marischalli Angliae in Rot. pat 20. R. 2. Thesaurus Regis rospicit Regem Regnum And Census Regis est anima reipub fol. 106. a. Dyer 4 El. 213. Where the Grand Sergeanty is to be done to the Royal person of the King or to execute one of those high and great Offices there his tenant cannot make a Deputy without the Kings license c. But he that holdeth to serve him in his War within the Realm or by Cornage may make a Deputy fol. 107. a. vide libr. c. qu. CHAP. IX Petit Sergeanty Sect. 159. PEtit Serjeanty est lou home tient c. del
Negative pleas that be issues of themselves wherunto the Demandant or Plaintiff cannot reply no more than to a generall Issue which is Et praedictus A similiter As if the tenant do vouch and the Demandant counterpâ—â—ad That the Vouche or any of his Ancestors had any thing c. whereof he might make a feoffment he shall conclude Et hoc petit quod inquir ' per patriaÌ„ praed ' tenens similiter So in a fine Pleaded by the tenont c. the Demandant may say quod partes finis nihil habuerunt hoc petit c. And so in a Writ of Dower the Tenant plead unques seisie Dower he shall conclude Et de hoc point se c. 22. H. 6. 57. 59. 3. H. 7. 9. 12. E. 4. 13. Filiatio nou potest probari and therefore the issue must be whether the wife was ensenit the day of her husbands death 41. E. 3. 11. b. A protestation availeth not the Party that raketh it if the issue be found against him except in some speciall Case * as if a man enter into warranty and taketh by protestation the value of the Land albeit the plea be found against him yet the protestation shall serve him for the value 10 E. 4. Protest 5. Vid. S. 192. * 30 E. 3. 14. Sect. 194. Si le Seignior Mayhem son villeine il ser de ceo endite a le suit del roy sil soit de ceo attaint il ferr un fine al roy Mes le villein nava c. appeal de Mayhem because that in appeal he shall recover but damages which the Lord after execution might take again and so the judgment inutile illusory and the Law never giveth an action when the end of it can bring no profit or benefit to the pl. 1 H. 4. 6. b. Mahemium i. e. membri mutilatio Endite i. e. an accusation found by an equest of 12. or more upon their oath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse Finis Sumitur tripliciter 1. For a pecuniary punishment for an offence c. against the King 2. For a sum given by the Tenant to the Lord 3. For the highest best assurance of lands If a praecipe be brought against an infant and hanging the Plea he commeth of full age he shall be amerced for the delay after his full age Lib. 5. fo 49 Vaughans Case So if the demandant or plaint be nonfute or judgement given against him he shall be likewise amerced pro falso clamore Vide lib. fo 126. b. c. If a Writ do abate by the act of the demandant or plaintiff or for matter of form the demandant or plaintiff shall be amerced but if it abate by the act of God as by the death of one c. it is otherwise Lib. 8. fo 60. b. Bechers Case Wit wita Bote wera or were old Saxon words signifie amerciament or compensation c. Ransome ne forsque redemption de paine corporel pro fine des deniers Mirror ca. 1 S. 1. and 3. Ransome is ever when the Law inflicteth a corporall punishment by imprisonment and so is also a fine but otherwise it is of an amerciament Alwaies at the common Law when the Defendant should lose life or member the writ said Felonice c. And now albeit the Law be changed for the Plantiff shall recover but damages yet the writ of appeal saith still felonice Vita membra sunt in manu seu protestate regis Bract. Lib. 1. fo 6. This offence of Mayhem is under all felonies deserving death and above all other inferior offences Inter crimina majora minimum inter minora maximum Inutilis labor fine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit à fine Lex non praecîpit inutilia Therefore the Law forbiddeth such recoveries whose ends are vaine chargeable and unprofitable Sect. 195. Demandant and Tenant in reall actions plantiff and defendant in actions personall and mixt In a personall action brought by A. B. against C.D. the defence is and praed C.D. defendit vim injuriam quando c. Et damna quicquid quod ipse defendere debet Vide libr. c. fo 127. b. The defendant in this and the like action can plead no Plea at all before he make himself party by this part of the defence 1 E. 4. 15. Sect. 196. c. 6. Maners de homes y sont queux sils suont action judgement poit estr demand sils serront respous c. 1. Lou villein suist action euvers son Seignior 2. Lou hom est utlage sur act de debt trns. c. ou enditement 3. Vn alien c. 4. Un home que per judgment done envers luy sur un breÌ„ de premunire facias c. eÌ„ hors del protection le roy 5. Un home enter c. en Religion 6 Un home que est excommenge per le ley de St. Esglise Sils sorront respondus c. This is the legall conclusion of the plea when the plea is in disability of the person Fo. 128. a. By the common Law the plaintiffe or defendant the demandant or Tenant could not appear by attorney without the Kings speciall Warrant by Writ or Letters Patents Abusion eÌ„ a reteiner Attorny sans breÌ„ de la Chancery Mirr ca. 5. Attorneys point estr touts ceux aux queux le voile suffer fems ne poient este Attor ne ensans ne serfs ne nul que eÌ„ en garde non auterment faut de foy ne nul criminous ne nul essoigne ne nul que nest a le foy le roy nul que ne poit este Counter c. Mir. ca. 2. Sect. 21. If an executor c. Sueth any action utlary in the plaintiffe shall not disable him because the suit is in auter droit 21 E. 4. 49. b. 21 H. 6. 30. b. In a Writ of error to reverse an utlary utlary in that suit or at any strangers suit shall not disable the plaintiffe because if he in that action should be disabled if he were outlawed at severall mens suits he should never reverse any of them 7 H. 4. 40. When any man pleads an outlawry in disability of the person he must shew forth the Record of the Outlawry Maintenant sub pede figilli because the plea is dilatory unless the Record be in the same Court But if he plead an outlawry in bar if it be denyed he shall have a day to bring in 6 Eliz. Dyer 228. F.N.B. 241. Stanf. pl. cor 105. Note there be two kind of appearances before the Quinto exactus to avoid the outlawry viz. an appearance in Deed i.e. to render himself c. and the other is by apparance in Law i. e. by purchasing a supersedeas out of the Court where the Record is c. Tr. 44. El. in Co. banco inter Mere dolburie If the ground or cause of the action be forfeited by
of Weyland being abjured the Realm for Felony in the year before Margery de Mose his wife and Richard son of the said Tho. exhibited their Petition of Right into the Parliament Anno 19. E. 1. for the Manor of Sobbir wherein her husband had but an Estate for life joyntly with her and the inheritance in Richard the son by fine The Earl of Glocester Lord of the fee who claiming the land by Escheat had taken the possession thereof alleged Quod non fuit jure consonum quod aliqua foemina intraret in aliquas terras vivente marito suo c. Tamen Coram Consilio Domini R. vocat ' Thesaurar ' Baron Justiciariis de utroque Banco concordat ' est quod praedicta Margeria rehabeat talem seiseinam c. secundum perportum finis praedict ' c. Vide lib. fo 33. a. If the husband had aliened the land of his wife and after had been abjured the Realm for Felony the wife shall have a Cui in vita in his life time 31 E. 1. Cui in vita 31. The wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a feme sole by the Common Law And such a Queen hath many Prerogatives as she shall find no pledges for such is her dignity as she shall not be amerced 18 E. 3. 1 2. The Queen shall pay no Toll N. B. 235. The Writ of Right shall not be directed to the Queen no more than to the King but to her Bayliff F.N.B. 1. F. But a Protection shall be allowed against the Queen but not against the King neither shall the Queen be sued by Petition but by a Praecipe 21 E. 3. 13. 11 H. 4. 76. b. If A. be bound to the Abbot of D.A. is professed a Monk in the same Abbey and after is made Abbot thereof he shall have an action of Debt against his own Executors 4 E. 4. 25. 6 E. 4. 4. 22 H. 6. 5. 45 E. 3. 10. a. 5 H. 7. 25. b. Sect. 201. Excommunicato interdicitur omnis actus legitimus ita quod agere non potest nec aliquem convenire licet ipse ab aliis possit conveniri Excommunicatio nihil aliud est quam Censura à Canone vel judice ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque hominum Bract. lib. 5. fo 415. 426 c. F.N.B. 64. F. None can certifie Excommengment but onely the Bishop or one that hath Ordinary Jurisdiction and is immediate Officer to the Kings Courts As the Archdeacon of R. or the Dean and Chapter in time of vacation The Common Law disallows all acts done in disability of any Subject of this Realm by any forren power as things not authentique wherof the Judges should give allowance 16 E. 3. Sxcom 4. N.B. 64. For the manner of Election of Bishops vide le statute of 25 H. 8. None but the Kings Courts of Record as the Kings Bench c. Justices of Gaol-delivery c. can write to the Bishop to certifie Bastardy Mulierty loyalty of Matrimony c. for it is a rule in Law That none but the King can write to the Bishop to certifie Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bract. l. 3. 106. Jour is the day of appearance of the parties or continuance of the plea. And in all Summons upon the Original there be 15 daies after the Summons before the appearance But if the Original be returned tarde and Sommons alias goeth forth there be nine Returns between the Teste and the Return 8 H. 6. 20. 8 Eliz. Dyer 251. And before the Statute of Articuli super Chart. cap. 15. 28 E. 1. in all Summons and Attachments in plea of Lund there shall be contained the term of 15 daies But by consent other than common dayes may be taken 11 H. 6. 23 The use of the Kings Bench at this day is That if the offence be committed in another county than where the Bench sits and the Indictment be removed by Certiorari there must be 15 daies between every Process and the Return thereof c. Lib. 9. 118 Zanchers Case fo 134. b. vide c. There is dies specialis as in an Assize in the Kings Bench or Common Pleas the Attachment need not be 15 daies before the appearance F. N.B 177. cap. The day of Nisi prius and the day in bank is all one day as to pleading but not to other purposes 21 H. 6. 10. 20. vide qu. fo 135. a. Resummons or Reattachments are Writs that the Demandant or Plaintiff after he hath obtained the Letters of his Absolution may sue out to bring the Tenant or Defendant again into Court to have day to answer unto him and these Writs do lie in all cases when the plea is discontinued or put without day either in this case or in case where the Demandant or Tenant hath his age or for the non venue of the Justices or in case of a protection or Essoign de service le Roy c. Bracton lib. 5. 425. Brit. cap. 74. l. 7. 29 30. Note That in the case of Excommengement the Writ shall not abate but the plea to be put without day untill the plaintiff purchase his Letters of Absolution c. but in the other five cases sc of a Villain c. ante fo 55. a. the Writ shall abate fo 135. b. But in the case of Outlawry the writ shall abate if he obtain not his pardon 44 E. 3. 27. At this day Ideots Madmen c. may sue for the Sutes must be in their name but it shall be followed by others An Ideot shall not appear by Guardian or Prochein amy or Atturney but hee must be ever in person 33 H. 6. 18. F. N. B. 27. G. But an Infant or a minor shall sue by Prochein amy and defend by Guardian 27 H. 8. 11. 20 E. 4. 2. F. N. B. 27. H. Sect. 202 203 204. Si lenfant al age de 14 ans enter en religion est professe le gaodein nad auer remedie quant al gard le corps forsque breve de ravishment de gard enveâ—s le soveraigne del meason l'entry d'asc ' estaut de pleine age que eÌ„ heire lenfant eÌ„ congeable legardein en tiel case nad asc ' remedie pur le terre c. Manumittere idem est quod extra manum vel extra potestatem alterius ponere Every Manumission is an infranchisement but every infranchisement is not a Manumission Mirr cap. 2. Sect. 18. There be two kindes of Manumissions 1. Express when the Villain by deed in express words is manumissed and made free 2. Implyed by doing some act that maketh in judgement of Law the Villain free c. Libertinum ingratum leges civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum judicant
the rent is behind the grantee hath election to bring a Writ of annuity * and charging the person only c. or to dâ—straine upon the Land and to make it reall * and charging the person onely to make it personall Put case that A. be seised of Lands in fee and he and B grant a rent charge to one in fee this prima facte is the grant of A and the confirming of B. but yet the grantee may have a VVrit of Annuity against both Two men grant an annuity of 20 l. per an to another although the persons be severall yet he shall have but one annuity But if the grant be Obligam nos utrumque nostr The grantee may have a VVrit of Annuity against B either of them but he shall have but one satisfaction 16 E. 2. tit annuity 47. If a rent charge be granted to a man and his heires he shall not have a Writ of annuity against the heire of the grantor albeit he hath Assets unlesse the grant be for him and his heires 2 H. 4. 13. Dyer 17 Eliz. 344. b. Vide c. Fo. 144. b. But Littl. is to be understood with some limitation for of a rent granted for owelty of partition a writ of annuity doth not ly because it is of the nature of the Land descended Also of such a rent as may be granted without Deed a Writ of annuity doth not lye though it be granted by Deed. 29 Ass p. 23. Note as to elections these diversities following 1 When nothing passeth to the Feoffee or Grantee before election c. There the election ought to be made in the life of the parties c. But when an estate or interest passes immediately to the Feoffee Donee or Gaantee there the Election may be made by them or by their heirs or executors Lib. 2. fo 36. c. Sir Row Haywards c. 2 When one and the same thing passeth c. and the Donee or grantee hath election in what manner or degree he will take this there the interest passeth immediately and the party his heires or executors may make election when they will 3 When election is given to severall persons there the first election made by any of the persons shall stand 4 In case an election be given of two severall things alwaies he which is the first agent and ought to doe the first Act shall have the. election 2 H. 7. 23. a. 5 When the granted is of things annuall and are to have continuance there the election remaineth to the grantor in case where the Law giveth to him election as well after the day as before otherwise it is when the things are to be performed unica vice 9 E. 4. 36. and â—3 E. 4. Grantee for life c. ought to bring his Writ of annuity in the disjunctive else the judgment c. shall determine his election for ever herein Fitzh is mistaken 6 The Feoffee by his act and wrong may lose his election and give the same to the Feoffer as if one infeoffe another of two acres to have and to hold the one for life and the other in tail and he before election make a Feoffment of both in this case the Feoffer shall have election to enter into which of them he will c. Note that this determination of the election of the grantee must be by action or sure in Court of Record If the grantee doth bring a Writ of annuity and at the returne thereof appear and account this is a determination of his election in Court or Record albeit he never proceedeth any further F.N.B. 152. a. 5 H. 7. 33. b So if the grantee bring an Ass for the rent and make his plaint he shall never after bring a Writ of annuity 10 E 4. 17. For an Anvowry in Court of Record which is in nature of an action is a determination of his election before any judgment given F. 145. b. It is a generall rule that the plaintiffe must have the property of the goods in him at the time of the taking 3 E. 3. 74. 6 H. 4. 2. But yet if the goods of a villain be distreined the Lord of the villain shall have a Replevy because the bringing of a Replevy amounts to a claim in Law and vests the property in â—he plaintiff But in that case if the goods of a villain be taken by a trns. the Lord shall have no Replevy because the villain had but a right 33 E. 3. Repl. 43. F.N. B. 69 F. Property ought to be tryed by Writ 30 E. 3. 22. A man cannot claim property by his Bayliffe or servant for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself for nemo punitur pro alieno delicto 5 E. 3 38. 11 H. 4. 4. fo 145. b. In a speciall case a man may have a Replevy of goods not distreined as if the Mesner put in his catrell in lieu of the cattel of the tenant peravaile that he is bound to acquite he shall have a Replevy c. 34 H. 6. 47. It is against the nature of a distresse taken c to be irreplevisable 31 E. 3. Gage DeliuÌ„ 5. And Bract. Lib 4. fo 233. a. and b. Saith Eâ—dem modo de via obstructa per breve quod justiciet propter coÌ„em utilitatem ne transeuntes ire diu impediantur quia hoc esset commune damnum in hoc vicecomes Justiciarii faciant sicut super detensionem averior contra vadium plegii propter commune utilit ne animalia diu inclusa pereant If the beasts of divers severall men be taken they cannot joyn in a Repleg but every one must have a severall Repl. and so in a Repleg it is a good plea to say that the property is to the plaintiff and to a stranger and where there be two plaintiffes that the property is to one of them 28 E. 3. 92. 2 E. 4. 23. Electio semel facta placitum cestatum oÌ„ patitur regressum Quod semel in electionibus placuit amplius displicere noÌ„ potest Note a diversity between the case * fo 65. a. aforesaid of the grant of the rent where he may take it either reall or personall and when a man may have election to have several remedies for a thing that is meerly personall or meerly reall from the beginning As if a man may have an action of account or an action of debt at his pleasure and he bringeth an action of account and appear to it and after it Nonsuit yet may he have an action of debt afterwards because both actions charge the person So it is of an Ass and of a Writ of entry in the nature of an Ass c. 28 E. 3. 98. b. 27 E. 3. 89. b. Fo. 146. a. Sect. 220. By this Section it appeareth that when in a general grant the Law doth give two remedies that the grantor may provide that the
grantee shall not use one of them and leave the party to the other But where the grantee hath but one remedy that remedy cannot be barred by any proviso for such a proviso should be repugnant to the grant 28 H. 8. Dyer 9. b. And if a man by his Deed grant a rent Charge out of land provid that it shall not charge the Land albeit the grantee hath a double remedy yet the proviso is repugnant because the Land is expresly charged with the rent but the Writ of annuity is but implyed in the grant and therefore that may be restrained without any repugnant and sufficient remedy left for the grantee for which cause Littl. putteth his case of the restraint of bringing a writ of annuity Also our Author putteth his case of a rent charge continuing and of a rent charge issuing truly out of Land 9 H. 11. 53. 11. H. 8. c. mala grammatica non vitiat cartā For the Law that principally respecteth substance doth judge sometimes a double negative to be a negative according to the intent of the parties and not according to grammaticall construction Sect. 221. A. grants that B. shall distrein for such a yearly summe of money in his mannor of D. in judgemeet of Law the Mannor is charged with the rent but the person of the grantor cannot be charged because he expresly granteth no rent * for that would charge his person but that the grantee should distreine c. which onely chargeth the land Fo. 146. b. If a rent be granted out of the Manor of D. and the grantor grant over That if the rent be behind the grantee shall distrein c. in the Manor of S. this is but a penalty in the Manor of S. But both Manors are charged the one with the rent the other with the distresse for the rent the one issuing out of the land and the other to be taken upon the land lib. 7. fo 23 c. in Buts Case Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est And if in this case this shall amount to the grant of a rent out of the Manor of S. then the grantor shall be twice charged and so the Law by construction against the words and the intention of the parties shall doe injury to the grantor c. fo 147. a. And there is no diversity in this case when the Manor of S. lyeth in the same county and when it lyeth in another county for the words in both cases are all one and there is no reason to say that he shall fail of a Recovery by Assize lib. 7. f. 3. Bulwars Case 1. Ass p. 10. Vide c. If a man grant a rent out of three acres and grant over that if the rent be behind that he shall destrain c. in one of the acres this rent is entire and cannot be a rent seck out of two acres and a rent charge out of the third acre and therefore it is a rent seck for the whole and yet he shall distrain for this in the third acre vide qu. A. doth bargain and sell land to B. by Indenture and before Inrolment they both grant a rent charge by Deed to C. and after the Indenture is inrolled by the operation of the Statute it shall be the grant of B. and the confimation of A. But if the Deed had not been inrolled it had been the grant of A. and the confirmation of B. and so quancunque via data the Grant is good Home seise de 20 acr grant rent 20 s hors de chesc acre c. le grantee aūa 20 l. 22. H. 6. 10. b. Sect. 222 c. Si home ad un rent charge a luy a ses heires issunt hors de cert ' terre sil purchase asc ' parcel de cel a luy a ses heires tout le rent charge est extinct l'annuity auxi pur ceo que rent charge ne port estr per tiel Manor apportion mes si tiel parcel discend c. S. 224. a le fits auterment est Auxi per purchase de parcel c. rent service point estre apportion A rent charge by the act of the party may in some case be apportioned As if a man hath a rent charge of 20 s. he may release to the tenant of the land 10 s. and reserve part for the grantee dealeth not with the land as in case of purchase Hill 14. Eliz. in Communi Banco F. N. B. 152. d. e. If tenant pur auter vie by his Deed grant a rent charge to one for 21 years Cesty que vie dyeth the rent charge is determined and yet the grantee may have during the years a Writ of annuity for the arrerages incurr after the death of Cesty que vie because the rent charge did determine by the act of God and by the course of Law Actus leg is nulli facit injuriam Wards cited in lib. 2. In Heywards case fo 36. There be divers kinds of rent services which are not within the Statute of Quia empt terrae and yet such rent services are apportionable by the common Law As if the lessor recover part of the land c. in an action of waste or enter for a forfeiture in part c. Lib. 6. f. 1. c. Bruerton c. Lib. 8. f. 105. c. Talbots case So likewise if the lessor grant part of the reversion to a stranger the rent shall be apportioned for the rent is incident to the reversion Lib. 8. fo 79. Wildes case A rent service may be extinct for part and apportioned for the rest but a rent service cannot be suspended in part by act of the party and in esse for other part For if the lessor desseise the lessee the rent is suspended for the whole and cannot be apportioned for any part But otherwise it is where the lessor enters lawfully as upon a surrender forfeiture c. Where the rent is lawfully extinct in part 21. E. 4. 29. And yet by act in Law a rent service may be suspended in part and in esse for part As if the tenant give a part of the tenancy to the Father of the Lord in taile the Father dieth and this discends to the Lord in this case by act in Law the Seigniory is suspended in part and in esse for part and the same Law is of a rent charge 30. Ass p. 12. And when the Guardian in chivalry entreth into the Land of his ward within age now is the Seigniory suspended but if the wife of the tenant be endowed c. Now shall she pay to the Lord the third part of the rent 33. E. 3. Dower 138 this case I should have put first Tho. More Item a Seigniory may be suspended in part by the act of a stranger as if two jointenants or corperceneis be of a Seigniory and one of them disseise the Tenant of the Land the other
joyntenant or copercener shall distreine for his or her moity 27. E. 3. 88. Concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of rent 22 H. 4. 17. A man against his own grant shall not take advantage of the weakness of his own estate in part vide lib c. Fo. 148. 6. And note a diversity between a rent in grosse and a rent incident to a reversion If a man grant a rent charge out of two acres and after the grantee recovereth one of the acres against the grantor by a Title Paramount the whole rent shall issue out of the other acre But if the Recovery be by a feint Title by Covine then the rent is extinct in the whole because he claimeth under the grantor Doct. Stud. l. 2 c. 17. And yet in some cases a rent charge shall not be wholly extinct where the grantee claimeth from and under the grantor As if B. make a lease of one acre for life to A. and A. is seised of another acre in fee A granteth a rent-charge to B. out of both acres and doth waste in the acre which he holdeth for life B. recovers in waste the whole rent is not extinct but shall be apportioned c. for that Nullus Commodum capere potest de injuria sua propria If the King give two acres of land of equall value to * another in fee fee tail for life or for years reserving a rent of Two shillings and the one acre is evicted by a Title Paramount the rent shall be proportioned F. N. B. 234. b. If an entire service be pro bono publico as Knights service Castlegard c. though the Lord purchase part the service remains but when entire services are for the private benefit of the Lord it is otherwise lib. 6. fo 1 2. Bruertons Case Sed vide lib. c. fo 149. a. Sect. 223. and 224. Reg. it holdeth That quae in partes dividi nequeunt solida à singulis praestantur Vide los reports Bruertons Case lib. 6. Talbots Case l. 8. f. 104. It there be Lord and Tenant by Fealty and Herriot service and the Lord purchase part of the land the Herriot service is extinct and yet it is not annual because it is entire and valuable But otherwise it is of Herriot Custome fo 149. b. If the tenant giveth to the father of the grantee of a rent charge part of the rent in tail and this descend to the grantee the rent charge shalll be apportioned and so by act in law a rent charge may be suspended for one part and in esse for another 30. Ass p. 12 fol. 149. b. And so it is if the father be grantee of a rent and the son purchase part of the land charged the father dyeth and the rent descends to the son the rent shall be apportioned and so it is if the grantee grant the rent to the tenant of the land and to a stranger the rent is extinct but for a moity 34. H. 6. 41. b. If a man hath Issue two daughters and grant a rent Charge to one of them out of his land and dyeth the rent shall be apportioned and if the grantee in this case infeoffeth another of her part of the land yet the moity of the rent temaineth issuing out of her Sisters part because the part of the grantee in the land by the descent was discharged of the rent But in all these Cases where the rent charge is apportioned by act in law yet the Writ or Annuity faileth for if the grantee should bring a Writ of Annuity he must ground it upon the grant by Deed and then must he bring it for the whole 9 Ass 22. 5. R. 2. Annuity 21. Annua nec debitum judex non separat ipsum Also in respect of the reality the rent is apportioned but the personality is indivisible c. If Execution be sued c. upon a Statute Merchant or Staple and after the inheritance of part of those lands descend to the Conusee all the Execution is avoyded for the duty is Personall and cannot be divided by act in Law Pl. Com. 72. 15. E. 4 5. If the father within age purchase part of the land charged and alieneth within age and dyeth the Son recovereth in a Writ Dum fuit infra aetat or entreth in this case the act of the Law is mixt with the act of the party and yet the rent shall be apportioned for after the recovery or entry the Son hath the land by descent fo 150. vide c. A relation or fiction of Law shall never work a wrong or charge to a third person but in fictione juris semper est aequitas lib. 3. fo 29. Butler and Bakers Case â—s if the Feoffee grant a rent charge al feoffer son seme al heires del Baron ' feme recover Dower le rent charge ferra apportion ' el distreinam c. Sect. 225. If there be Lord and Tenant by Fealty and Rent and the Lord by his Deed reciting the Tenure release all his Right in the Land saving the said rent the seigniory remains and he shall have the rent as a rent service and the fealty incident to it c. 12 E. 4. 11. 9 E. 3. 1. If the Donee hold of the Donor by fealty and certain rent and the Donor grant the services to another and the tenant attorn the rent shall passe as rent seck fol. 150. b. If there be Lord and Tenant by fealty and certain rent and the Lord grant the rent in tail or for life saving the fealty and further grant That the grantee may distrain for it albeit the reversion of the rent be a rent service yet the Donee or Grantee shall have it but as a rent seck and shall not distrain for it 7 E. 3. 2 3. adjudg Whereas in an Assize for a rent service all the tenants of the land need not be named but such as did the disseisin yet in Assize for the rent seck which sometimes was a rent service all the tenants must be named as in case of a rent charge albeit he was disseised but by one sole tenant 4 E. 2. Ass 449. 26 H. 8. Dyer 31. But if the Lord of a Manor release the Fealty to his Tenant saving the rent or that a Mesnalty become a rent by Surplusage those that are now seck and sometimes were service are part of the Manor but a rent charge cannot be part of a Manor 31 Ass 23. 22 Ass 53. Sect. 226 c. If there be Lord and Tenant by Fealty and Rent the annual rent which is a profitable service is of higher and more respect in Law than the fealty and therefore by the grant of the rent the Fealty shall pass as incident c. but it is an incident separable and therefore may be by a saving as Littleton hath said separated by it And so when the Tenure is by Fealty
partitions in Law some be by act in Law without Judgement and some be by Judgement and not in a Writ de Partit fac If there be Lord three Coparceners Mesnes and Tenant and one Coparcener purchase the Tenancy this is not onely a partition of the Mesnalty being extinct for a third part but a division of the Seigniory Paramount for now he must make severall Avowries 26 H. 6. 7. If one Coparcener make a Feoffment in fee of her part this is a severance of the Coparcenary and severall Writs of Praecipe shall lie against the other Coparcener and the Feoffee 37 H. 6. 8. So it is if two Coparceners have issue and dye 17 E. 3. 15 16. Et si asc ' des parceners sont enget ou disturbe de sa seisin per ses auters parceners ou plusor al disseisee viendranâ— ass per several pleint sur les parceners recovera mes nemy a tener en severalty mes en common solonque ceo que avant le fist c. Britton fol. 112. a. And this seemeth reasonable for he must have Judgment according to his pleint and that was of a moity and not of any thing in severalty and the Sheriff cannot have any warrant to make any partition in severalty or by Metes and Bounds Lib. 6. fol. 12 12. Morrices Case Sect. 248. Si parceners ne voilont agere a partition dest fr. enter eux donque lun poit aver breve partition fac envers les auters c. le vic en son propter persona alera a les terres c. per le serement de 12 loial homes de son bail c. ilserra partit enter les parties c. There is a book in the Exchequer called Dooms-day dies judicii Sententia ejusdem libri inficiari non potest vel impune declinari ob hoc nos eundem librum judiciarum nominamus Sheriffe is the Reve of the Shire Praefectus Satrapiae Provinciae or Comitatus habet triplicem custodiam 1 Vitae Legis 2. Vitae Reipublicae Vicecomes dicitur quod vicem Comitis suppleat Marculphus saith This Office is Judiciaria Dignitas Lampridius That it is Officium Dignitatis Forter saith Quod Vicecomes est nobilis Officiarius Fortesc c. 24. R. 2. cap. Verum quod modo vocatur Comitatus olim apud Britones temporibus Romanorum in Regno isto Bâ—tan vocabatur consulatus qui modo vocantur Vicecomites tunc temporis vice-consules vocabantur ille verò dicebatur vice-consul qui consule absente ipsius vice supplebat in jure in foro Lambert fol. 129. 12. Bayliff is an Officer concerning the administration of Justice of a certain Province Flet. l. 2. c. 67. Sect. 249 250. Et de la partition que l' vicount ad issint ft. il fer notice la Justices south son seale les seales de chesâ— ' de les 12. c. this c. doth imply That the principal Judgment upon the partition so returned is Ideo consideratum est per Cur ' quod partitio firma stabilis in perpetuum teneatur Lib. 11. fol. 40. Metcalfs Case Partition per agreement per curer parceners poit estre auxibien per parol sans fait come per fait But a partition between joint-tenants is not good without Deed albeit it be of lands and that they be compellable to make partition by the Statute of 31 H. 8. c. 10. and 32 H. 8. c. 32. because they must pursue that act by Writ de Partit fac And a partition between joynt-tenants without Writ remains at the Common Law which could not be done by Parol And where books say That joynt-tenants made partition without Deed it must be intended of Tenants en Common and executed by livery S. 290. 3 H. 4. 1. lib. 6. 12 13. 2 Eliz. Dyer 179. 28 H. 8. Dyer 29. 1 Mar. Dyer 98. Nota between joynt-tenants there is a two fold privity viz. in estate and in possession between tenants in common there is a privity onely in possession but parceners have a threefold privity viz. in estate in person and in possession Sect. 251 c. A rent may be granted for owelty of partition without Deed. So it is of Common of Estovers or a Corody or a Common of Pasture c. albeit they lie in grant c. But if rent be granted out of other lands then descended to the Coparceners then there must be a Deed 1 Mar. Dyer 18. Sect. 253 c. Mes tiel rent eÌ„ rent charge de common droit eroe reserve pur egality de partit Et nota that Reservation here is taken for a Grant I. S. seised of lands in fee hath issue two daughters R and A. Bastard eigne and Mulier puisne and dyeth R. and A. enter and make partition A. and her daughter are concluded for ever 21 E. 3. 34 35. 11 Ass 23. Sect. 256 257 358. 2 parceners prent Barons si parit fait perenter eux * soit egall c. donque il ne poit estre apurs defeater c. Judicicis officium est us res ita tempera rerum Quaerere quaesito tempore tutus eris An unequall partition in the Chancery shall not bind an Infant F.N.B. 256 259 260 c. But it may be avoyded either by Scire sac in the Chancery or by a Writ de partit fac at the Common Law 21 E. 3. 31. A partition made by the Kings Writ de partit fac by the Sheriff by the Oath of 12 men and Judgement thereupon given shall binde the Imfant though his part be unequal causa qua supra so 171. Sect. 259. Si asc ' fait feoffment grant release confirmation obligation ou auter escript ' soit fait per asc ' devant son plein age sc 21 ans ou si asc ' deins tiel age soit Bayliff ou receivor a a sc ' home tout sera pur nient c. Auxi home devant le dit age ne sera my jute en Enquest c. Fait is an instrument consisting on three things viz. Writing Sealing and Delivery comprehending a Bargain or Contract between party and party man or woman Obligation is commonly taken in the Common Law for a Bond containing a penalty with condition for payment of Mony or to do or suffer some act or thing c. And a Bill is most commonly taken for a single Bond without condition f. 172. a. An Infant may binde himself to pay for his necessary Meat Drink Apparel necessary Physick c. and likewise for his good teaâ—â—ing and instruction whereby he may profit himself afterâ—ards But if he binde himself in an Obligation or other Writing with a penalty for the payment of any of these that Obligation shall not binde him 18 E 4. 2. lib. 9. fol. 87. Pinchons case Also other things of necessity shall binde him as a presentation to a Benefice for otherwise the laps shall incur against him And it an Infant be Executor upon paiment
be divers other limitations c. As if a rent charge be granted to A. and B. habendum to them two viz. to A. untill he be married and to B. untill he be advanced to a Benefice they be joynt-tenants in the meane time c. And if A. dye before marriage the rent shall survive but if A. had married the rent should have ceased for a moity sic è converso on the other side If an alien and a subject purchase lands in fee they are joynt-tenants and the survivorship shall hold place Et nullum tempus occurrit regi upon an office found 7 E. 4. 29. 11. H. 4. 26. Sect. 278. Omnis rati-habitio retrotrahitur mandato aequiparatur Nota That seeing Coadjutors Counsellors Commanders c. are all disseisors albeit the disseisor which is tenant dyeth yet the Assize lieth against the Coadjutor c. and tenant of the land though he be no desseisor The Demandant and others in a praecipe did disseise the tenant to the use of the others and the Writ did not abate for the Demandant was a disseisor but gained no tenancy in the land for that he was but a Coadjutor 50. E. 3. 2. A man disseised tenant for life to the use of him in the reversion and after he in the reversion agreeth c. he is a disseisor in fee for by the disseisin the reversion was divested which some say cannot be revested by the agreement of him in the reversion for that it maketh him a wrong doer and therefore no relation of an estate by wrong can help him Sect. 27. 9 Disseisin est properment lou un home enter eu asc ' terres c lou son entre nem pas congeable ousta celuy que ad franktenement c. This description c. is understood onely of such lands c. whereinto an entry may be made and not of Rents Commons c. Every entry is no disseisin unless there be an ouster also of the free hold as an Entry and a Claimer or taking of Profits c. 3 E. 4. 2. 34 Ass 11. 12. Pl. Com. 89. Parson de Honey-lane Now as there be joynt-tenants by Disseisin so are there joynt-tenants by Abatement Intrusion and Vsurpation Sect. 280. Nota que le nature de joyntenancy est que le survivor aūa solement lentier tenancy solunque tiel estate que il ad si le jointure soit continue c. mes auterment est de parceners Although survivorship be proper to joynt-tenants yet it is not proper quarto modo for if a man letteth lands to A. and B during the life of A. if B. dyeth A. shall have all by the survivor but if A. dyeth B. shall have nothing Two or more may have trust or authority committed to them joyntly and yet it shall not survive But with a diversity between a naked Trust c. and a Trust joyned to an estate or interest 2. There is a diversity between Authorities created by the party for private causes and Authority created by Law for execution of Justice Ex gr As if a man devise that his two Executors shall sell his land if one of them dye the survivor shall not sell it but if he had devised his lands to his Executors to be sold there the survivor shall sell it 39. Ass p. 17. 30 H. 8. tit Devise B. 31 Dyer 3 El. 190. Br. tit Cond 190. If a man make a Letter of Atturney to two to doe any act the survivor shall not doe it but if a Venire fac be awarded to four Coroners to impannel and return a Jury and one of them dye yet the other shall execute and return the same If a Charter of Feoffment be made and a Letter of Atturney to four or three joyntly or severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor any of them severally 38 H. 8. Dyer 62 27 H 8. f. 6. But if the Sheriff upon a Capias directed to him make a Warrant to four or three joyntly or severally to arrest the Defendant two of them may arrest him because it is for the execution of Justice which is pro bono publico Pasch 45 Eliz. in Banco Reg. inter King Hobbes Not of that kind of the infidel of Malmsbury Sect. 281 282. Survivor holdeth place regularly as well between joynt-tenants of goods and chattels in possession or in right as of Inheritance or Free hold fo 182. a. Si un obligation soit f◠a plusors pur un debt celuy que survequist avera tout le debt ou duty issent est daverts Covenants Contracts c. Mes Jus accrescendi inter mercatores pro beneficio commercii locum non habet F.N.B. 117. E. 38. E. 3 7. Sect. 283. Terres sont dones a 2. homes a les heires de lour 2. corps engendres en cen case les donees ont joint estre pur lour 2. vies encore ils ont several inheritances entant que ils ne poient aver per nul possibility un heire enter eux engendre sicome home feme point aver c. Note albeit they have severall inheritances in taile and a particular estate for their lives yet the inheritance doth not execute and so break the joynt-tenancy but they are joynt-tenants for life and tenants in common of the inheritance in tail Here a diversity is implyed when the state of inheritance is limited by one Conveyance as in this case it is there are no severall estates to drowne one in another but when the states are divided into severall Conveyances their particular estates are distinct c. and the one drownes the other As if a lease be made to two men for terme of their lives and after the lessor granteth the reversion to them two and to the heirs of their two bodies the juynture is severed and they are tenants in common in possession and it is further implyed that in this Case of Littletons there is no division between the estates for lives and the severall inheritances because they cannot convey away the inheritance after their decease for it is divided onely in supposition of law and to some purposes the inheritance is said to be executed 12 E. 4. 2. b. If a man make a lease for life and after granteth the reversion to the tenant for life and to a stranger and to their heires they are not joynt-tenants of the reversion but the reversion by act of law is executed for the one moity in the tenant for life and for the other moity he holdeth it still for life the reversion of that moity to the grantee 39 H. 6. 2. b. And so it is if a man make a lease to two for their lives and after granteth the reversion to one of them in fee the joynture is severed and the reversion is executed for the one moity and for the other moity there is tenant for life
c. shall not take away the entry c. 17 H. 6. 1. Lestat 32 H 8. c. 33. Sect. 422 426. Pl. 47. Wimbishes case Fo. 231. a. vid. c. Ad ea que frequentius accidunt jura adaptantur The Feoffee of a disseisor is out of the said Statute and remains as at the Common Law M. 4. 5 El. Dyer 219. But if a man make a lease for life and the lessee for life is disseised and the disseisor dye seised within 5 years the lessee for life may enter but if he dye before he doth enter it is said that the entry of him in the reversion is not lawfull because his entry was not lawful at the time of the discent Sect. 386. If a disseisor make a gift in Tail and the donee discontinueth in fee and disseise the discontinuee and dyeth seised this discent shall not take away the entry of the disseisee for the discent of the fee simple is vanished and gone by the Remitter and albeit the issue be in by force of the estate Tail yet the donee dyed not seised of that estate Fol. 238. b. If a disseisor make a gift in Tail and the donee hath issue and dyeth seised now is the entry of the disseisee taken away but if the issue dye without issue the entry of the disseisee is revived and he may enter upon him in the reversion and remainder 9 H. 7. 24. So if there be Grandfather Father and Son and the Son disseise one and infeoff the Grandfather who dyeth seised c. the entry is taken away but if the Father dyeth seised and the land descend to the Son now is the entry of the disseisee revived and he may enter upon the Son who shall take no advantage of the discent because he did wrong unto the disseisee 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyl 34 H. 6. 11. a. per Cur. S. 393 395. 13 E. 3. Br. Ent. cong 127. vide qu. If a disseisor make a lease to an Infant for life and he is disseised and a discent cast the Infant enters the entry of the disseisee is lawfull upon him Of Writs of Entry sur disseisin there be four kindes The 1. is a Writ of Entry in the nature of an Assize 19 H. 6. 56. 9 H. 5. 9. 2. A Writ of Entry sur disseisin in le per Brit. fo 264 c. 〈◊〉 E. 3. 216. 3. A Writ c. en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of Entry sur disseisin of lands c. in which B. had no entry but by A. to whom D. demised the same who unjustly and without Judgement disseised the Demandant These are called gradus degrees which are to be observed or else the Writ is abateable for sicut natura non facit saltum ita nec lex 22 E. 3. 1. b. F.N.B. 192. 4. A Writ of Entry sur disseisin en le post which lieth when after a disseisin the land is removed from hand to hand above the degrees 14 H. 4. 40. vide c. No estate gained by wrong doth make a degree and therefore neither abatement intrusion or disseisin upon disseisin doth make a degree Neither doth every change by lawful Title work a degree as if a Bishop or an Abbot c. disseise one and dye where his successor is in by lawful Title for though the person be altered yet the Right remains where it was viz. in the Church and both of them seised in the same Right c. An faciunt gradum de Abbate in Abbatem sicut de haerede in haeredem Et videtur quod non magis quam in computatione descensus quia etsi alternetur persona non propter hoc alternatur dignitas sed semper manet Br. l. 4. f. 321. If a disseisor by Deed inrolled convey the land to the King and the King by his Charter granteth it over the disseisee cannot have a Writ of enter en le per cui but in le post for the Kings Charter is so high a matter of Record as it maketh no degree 22 E. 3. 7. F.N.B. 191. k. Also an estate of a Tenant by the Curtesie or of the Lord by Escheat or of an execution of an Use by the Statute of 27 H. 8. or by Judgement or Recovery or of any others that come in in the post work no degree 5 E. 2. Entry 66. 7 E. 3. 360. But a Tenancy in Dower by assignment of the heir doth work a degree because she is in by her husband but assignment of Dower by a disseisor worketh no degree but is in the post 36 H. 6. Dower 30. When the degrees are past so as a Writ of Entry in le post doth lie yet by event it may be brought within the degrees again as if the disseisor infeoffe A. who infeoffs B. who infeoffs C. or if the disseisor die seised and the land descend to A. and from him to C. now are the degrees past and yet if C. infeoffe A. or B. now it is brought within the degrees again 44 E. 3 4 5. 5 H. 7. 6. If the disseisor make * a lease for life the remainder in * fee Tenant for life dieth he in the remainder is in the per because he now claimeth immediately from the disseisor and both these estates make but one degree 50 E. 3. 27. Note there be divers other Writs of Entry besides this of entry sur disseisin as a Writ of Entry ad Terme qui praeter ' in casu proviso in confirm ' casu ad com legem sine assensu capituli dum fuit infra aetat ' dum non fuit compos mentis cui in vita sur cui in vita Intrusion cessavit c. and that which hath been said of one may be applied to all Sect. 387. If a disseisor make a lease to a man and his heirs during the life of I. S. and the lessee dieth living I. S. this shall not take away the entry of the disseisee because he that died seised had but a Freehold onely and heirs were added to prevent an Occupant for the heir in that case shall not have his age Pl. 16 El. Com. Banco Lambs Case Dyer 8 El. 253. 7 H. 4. 46. 8 H. 4. 15. 11 H. 4. 42. 17 E. 3. 48. But if the Kings Tenant for life be disseised and the disseisor die seised this descent shall not take away the entry of the lessee for life because the disseisor had but a bare estate of Freehold during the life of the lessee * If the heir of the disseisor die before he enter the entry of the disseisee is taken away and yet in pleading the second heir shall make himself heir to the disseisor c. 24 E. 3. 47. An infant is disseised and after cometh to full age Sect. 388 c. En discents que tollent
was se defendendo c. 2. That in any action upon the case Trespasse Battery or of false imprisonment against any Justice of Peace Mayor or Bayliff of City c. in any his Majesties Courts in Westminster or elswhere concerning any thing by any of them done by reason of any of their Officers aforesaid and all other in their aid or assistance or by their Commandement c. they may plead the generall issue and give the speciall matter for their excuse or justification in evidence 7. Ja. c. 5. 23. H. 8. c. 5. Probationes debent esse evidentes i.e. perspicuae faciles intelligi If the Trespass were done the 4. of May and the Plaintiff alleageth the same to be done the 5. of May or the 1. of May when no trespass was done yet if upon the evidence it falleth out that the trespass was done before the action brought it sufficeth 19. H. 6. 47. 5. E. 4. 5. 21. E. 4. 66. And Littleton saith That the Jury may find the Defendant guilty at another day then the Plaintiff supposeth Note That the Law of England respecteth the effect and substance of the matter and not every nicety of form or circumstance Qui haeret in litera haeret in Cortice apices juris non sunt jura Sect. 487. Fo. 283. b. Note a diversity when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right 50. E. 3. 78. Vide S. 447. But when the right is first and then the possession cometh to the right albeit the possession be defeated as here in Littletons case it is by the heir of the disseisor yet the right of the disseisee remaineth A dyeth seised and the Land descendeth to B. his Son before he enter an estranger abate and dieth seised B. enter against whom the heir of the Abator recovers in an Assize B. may have a Writ of Mortdan and recover the land against him And if the disseisin had been done to A. c. then after the recovery in the Assize B. should have had a Writ of entry in the per because the heir that is in by discent is in the per. Sect. 490. 491. En praecipe quod red If the Tenant alien the land hanging the Writ puis le Demandant release a luy tout son droit c. cel release est bone pur ceo que il est suppose terre tenant per le suit del Demandant uncore il nad riens en la terre al temps de release fait Item si en praecipe c. le tenant vouch le vouchee entry en garr ' si apres le demandant release c. al vouchee co est assets bone pur ceo que apres le vouchee avoit entry en le garr ' il est tenant en ley al demandant c. But if after the vouchee hath entred into Warranty and become Tenant in Law an Ancestor collaterall release to the vouchee with Warranty he shall not plead this against the Demandant for that the release by the estranger is void 10. E. 4. 13. 12. Ass 41. 7. E. 3. 6. 8. H. 7. 5. Dyer 17. El. 341. Sect. 447. Sect. 492. Fol. 285. a. Nota there be two kinds of actions viz. concerning 1. Placita Coronae or Placita Criminalia 2. Placita Communia seu Civilia Of actions concerning Common Pleas quaedam sunt ad rem quaedam in personam quaedam mixtae Vide S. 444. Actio nihil aliud est quà m jus prosequendi in judicio quod sibi debetur Or Action nest auter chose que loial demand de son droit And by the release of all actions causes of action be released but within a submission of all actions to Arbitrement causes of action are not contained lib. 8. 153. Althams Case 35. H. 8. Dyer 57. 5. Mar. 217. 36. H. 6. 8. vide 42. E. 3. 22 23. Note a diversity A man by his own cannot alter the nature of his action and therefore if the lessee for life or years do waste now is an action of Waste given to the lessor wherein he shall recover two things viz. the place wasted and treble damages But by act in Law the nature of the action may be changed as if a man make a lease pur terme daughter vie and the lessee doth waste and then Cesty que vie dieth an action of VVaste shall lie for damages only because the other is determined by act in Law 14. H. 8. 14. 23. H. 8. Br. Waste And again hereupon is another diversity to be observed that in case when an action is well begun and part of the action determined by act in Law and yet the like action for the residue is given there the VVrit shall not abate but proceed But where by the determination of part the like action for the residue remaineth not there the action well commenced shall abate 9. E. 4. 50. But if Tenant pur auter vie bring an Assize and Cesty que vie dieth hanging the VVrit albeit the VVrit were well commenced yet the VVrit shall abate because no Assize can be maintained for damages only Also an action of VVaste must be ad exbaereditatem 2. H. 4. 22. 6. E. 2. breve 807. vide c. If a VVrit of Annuity be brought and the Annuity determineth hanging the VVrit the VVrit faileth for ever because no like action can be maintained for the arrerages onely but for the annuity and arrerages 34. H. 6. 10. 9. E. 4. 39. 14. H. 7. 31. But where damages onely are to be recovered there albeit by act in Law the like action lieth not afterwards yet the action well commenced shall proceed as if a Conspiracy be brought against two and one of them die hanging the VVrit it shall proceed 22. R. 2. breve 888. 18. E. 4. 1. And in an Assize of No. Diss a VVrit of Annuity Qu. Imp. and other mixt actions a release of actions reals is a good plea and so it is of a release of actions personalls 2. H. 4. 13. 9. H. 6. 57. But if three joyntenants be disseised and they arraign an Assize and one of them release to the disseisor all actions personalls this shall bar him but it shall not bar the other Plaintiffs for having regard to them realty shall be preferred omne majus trahit ad se minus dignum 30. H. 6. Barre 59. 45. E. 3. fo 6. So it is in a Writ of Ward brought by two c. Nota diversit In reall actions where damages are not to be recovered by the Common Law as in an Assize c. but are given by the Statute there a release of all actions personalls is no bar as in the Writ of Dower Entry sur disseisin in le per c. Mordane Aiel c. Mert. cap. 1. Dower Gloc. cap. 1. Sect. 493 494. fol. 258. b. A Release of actions personalls is
a good bar in a Qu. imp because it is a mixt action 22. H. 6. 27. b. A disseisor that hath nothing in the land may plead a release of actions personalls because damages are to be recovered against him 11. Ass 9. 18. E. 3. 2. 23 24. And the Tenant in an Assize shall plead a release of actions personalls to the disseisor for that plea proveth that the Plaintiff hath no cause of action against him 13. H. 4. 2. a. If the disseisee release to the disseisor all actions realls and the disseisor maketh a Feoffment in fee and an Assize is brought against them the Feoffee shall not plead the release to the disseisor for that he is not privy to the Release for a release of actions shall only extend to privies If the disseisee release all actions to the disseisor and dye this doth bar him but for his life So note a diversity between a release of right and a release of actions 19. H. 6. 23. a. Sect. 496. Fol. 286. a. If the disseisee release all actions to the heir of the disseisor which is in by discent he hath no remedy to recover the land but yet the disseisee hath a right for that he hath released his actions and not his right If the heir of the disseisor make a Feoffment in fee to two and the disseisee release to one of the Feoffees all actions the survivor shal not plead this Release Note when a man hath severall remedies for one and the self-same thing be it reall personall or mixt albeit he release one of his remedies he may use the other 19. Ass 3. 30. E. 3. 19. 6. 21. H. 7. 23. Sect. 498. Fol. 286. b. If the Plaintiff in an action of Detinue of Charters which concern the inheritance of his land can declare of one Charter in especiall the Defendant shall not wage his Law 41. E. 3. 2. 8. H. 6. 18. 28 29. 10. H. 6. 20. 21. H. 6. 1. 14. H. 6. 4. 14. H. 4. 23 24 27. An action of Detinue for Charters doth sound in the realty for therein Summons and severance lieth and in Detinue of goods a Capias doth lye but for Charters in speciall a Capias lieth not and yet a release of actions personalls in a Writ of Detinue of Charters is a good barre 20. H. 6. 45. 19. E. 3. Severance 14. Sect. 499. Fol. 287. a. In a Writ of Dower the Tenant pleaded that before the Writ purchased A. was seised of the Land c. untill by the Tenant himself he was disseised and that hanging the Writ A. recovered against him c. Judgement of the Writ and adjudged a good plea in which plea the Tenant confessed a disseisin in himself 15. E. 4. 4. b. Sect. 500. Fol. 287. b. Placitorum criminalium alia majora alia minora alia maxima secundum criminum quantitatem sunt enim crimina majora dicuntur capitalia eò quod ultimum inducunt supplicium c. Minora verò quae fustigationem inducunt vel poenam pilloralem vel tumboralem vel carceris inclusionem c. Bract. lib. 3. 101. b. Criminalium quaedam sententialiter mortem inducunt quaedam verò minime Fleta lib. 1. c. 15. Appellum signifieth Accusatio and the Appellant Accusator is peculiarly in legall signification applied to Appeals of three sorts 1. Of wrong to his Ancestor whose heir male he is and that is only of death whereof our Author here speaketh The 2. is of wrong to the husband and is by the wife only of the death of her husband to be prosecuted The 3. is of wrongs done to the Appellants themselves as Robbery Rape and Mayheme The word Apellum is derived of Appeller to call because Appellans vocat reum in judicium Glanv l. 7. c. 9. aestimatio capitis i.e. so much as one paid for the killing of a man Fleta lib. 1. cap. 42. Hoved. fol. 344. You shall not read of any Insurrection or Rebellion before the Conquest when the view of Frankpledge and other ancient Laws of this Realm were in their right use A release of all actions reall and personall cannot barr an Appeal of Death because that release extendeth to common or civill actions and not to actions criminall 21. H. 6 16. Roberia is a felonious taking away of goods de la Robe that is from the person 22. Ass 39. W. 1. c. 20. Sect. 502. Fol. 288. a. En appeale de Mayhem un release de touts maners actions personalls est bone plea c. for that every action wherein damages only are recovered by the Plaintiff is in Law taken for an action personall 21. H. 6. 16. Sect. 503. Fol. 288. b. Before that time that the Outlary appear of Record the Defendant doth not forfeit his goods nor the Plaintiff can be disabled nor any Writ of Error doth lie in that case 28. Ass 49. 12. E. 3. Vtlage 3. M. 4. 5. Eliz. Dyer 222. S. 197. If a man by process upon the Originall be Outlawed there he shall be restored to nothing in the personalty against the Plaintiff But whereby the Outlawry he forfeited all his goods and chattells to the King he shall be restored to them also thereby he shall be restored to the Law and to be of ability to sue c. but if the Plaintiff in a personall action recover any debt c. or damages and the Defendant be Outlawed after Judgment there in a Writ of Error brought by the Defendant upon the principall Judgment a release of all actions personalls is a good plea. And so it is where a Judgment is given in a reall action a release of all actions realls is a good bar in a Writ of Error thereupon And in this speciall case here put by Littleton wherein the Plaintiff is to recover or to be restored to nothing against the party yet for that the Plaintiff in the former action is privy to the Record a release of a Writ of Error to him is sufficient to bar the Plaintiff in the Writ of Error of the Suit and vexation by the Writ of Error And so note that an action reall or personall doth imply a recovery of something in the realty or personalty or a restitution to the same but a Writ implyeth neither of them 1. H. 4. 6. 13. E. 4. 1 2. 26. H. 8. 3. b. 29. Ass 35. 47. E. 3. 6. 35 H. 6. 19. Sect. 504. fol. 289. a. b. A release of all actions reg is no bar of execution for the execution doth begin when the action doth end And therefore the foundation of the first is an Originall Writ and doth determin by the Judgment and Writs of execution are called Judiciall because they are grounded upon the Judgement 13. H. 4. Rel. 53. 19. H. 6. 3. Where a Capias ad Sat. lieth at the Common Law and where it is given by Statute vide Sir William Herberts case lib. 3. fo 11 12. Maximes in the Law concerning Executions Ea quae
the Patron must give his consent But if there be a Corporation aggregate of many as Dean and Chapter Mr. fellowes and Schollars of a Colledge Abbot or prior and Covent c. or any sole corporation that hath the absolute fee as a Bishop with consent of the Deane and Chapter they may by the Common Law make any grant of or out of their possessions without their founder or patron albeit the Abbot or prior c. were presentable and so it is of a Bishop because the whole estate and right of the Land was in them and they may respectively maintaine a writ of right 12 H. 4. 11. 19 E 3. 7. 7. Eliz. Dy. 238. 9. E. 4. 6. 2 H 4. 11. And note a diversity betweene a confirmation of an estate a confirmation of a deed for if the disseisor make a charter feoffment to A. with a Letter of Attorney and before livery the disseisee confirm the estate of A. or the Deed made to A. this is cleerly void though livery be made after But if a Bishop had made a Charter c. and the Deane and Chapter before livery confirm the Deed this is a good confirmation and livery made afterwards is good The like Law is of confirmation of a Deed of grant of a reversion before Attornement Grants made by Parsons Prebends Deane and Chapter c. are restrained by divers acts of Parliament 13. El ca. 10. 1. Eliz. ca. 18. 18. El. ca. 11. 1. Ja. ca. 3. Section 593 and 648. l. 2. fo 46. l. 4. 76. 120. l. 5. 9. 6. 14. li. 6. 17. li. 7. 8. lib. 11. 6. 7. defessus sum c. Sect. 529. and Sect. 531. Fol. 301. a b. Note a diversity where the determination of the rent is expressed in the Deed and when it is implyed in Law For when Tenant for life grant a rent in fee this by Law is determined by his death and yet a confirmation of the grant by him in reversion makes that grant good for ever without words of inlargement or clause of distreâ—â—e which would amount to a new grant and yet if the Tenant for life had granted a rent to another and his heires by expresse words during the life of the grantor and the lessor had confirmed that grant it should determine by the death of Tenant for life 26. Ass p. 38. 45. Ass p. 13. 14. Ass p. 14. Dedi or concessi may amount to a grant a feoffment a gift a Lease a release a confirmation a surrender c. and it is in the Election of the party to use which of these purposes he will Brit. li. 2. f. 59. b. Brook tit confir 20. 14 H. 7. 2 37. H. 6. 17. Dy. 8. Eliz. 4 H. 7. 10. 22 E. 4. 36. 40 E. 341. But a release confirmation or surrender c. cannot amount to a grant c. nor a surrender to a confirmation or to a release c. because these be proper and peculiar manner of conveyances c. Dimifi and this verbe volo will amount to a confirmation 7 E. 3. 9. In ancient statutes and in originall writs as in the writ of entry in casu proviso in consimili casu ad com legem c. this word dimifi is not applyed onely in a Lease for life but to a gift in taile and to a state in fee. 32 E. 3. breve 29. 1. Stat. Gloc. ca. 4. Benignae enim faciendae sunt intepraetationes cartarum propter simplicitatem laicorum ut res magis valcat quam pereat and he to whom such a Deed comprehending dedi c. is made may plead it as a grant as a release or as a confirmation at his Election 14 H. 4. 36. li. 5. fo 15. in Newcomens case If a disseisor make a Lease for life or a gift in taile the remainder to the disseisee in fee the disseisee by his Deed granteth over the remainder the particular tenant attorneth the disseisee shall not enter upon the Tenant for life or in taile for then he should avoid his grant demesne which amounted to a grant of the estate and a confirmation also Sect. 543. Fol. 302. b. If cesty que use and his feoffees after the Statute 1 R 3. and before the Statute 27 H. 18 ca. 10. had joyned in a fâ—offment it shall be the feoffment of the feoffees because the State of the Land was in him 21 H. 7. 34. b. Pl. Com. 59. a. Wimbishes case So it is if the Tenant for life and he in the remainder or reversion in fee joyne in a feoffment by Deed the livery of the freehold shall move from the leffee and the inheritance from him in the reversion or remainder from each of them according to his estate Pl. Com. 140. Brownings case 2 H 5. 7. 13 H. 7. 14. 13 E. 4. 4. a. 27 H. 8. 13. M. 16. and 17 El. 339. But if he in the reversion in fee and Tenant for life joyn in a feoffment per paroll this shall be as some hold first a surrender of the estate of Tenant for life and then the Feoffment of him in the reversion for otherwise if the whole should passe from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat shall be construed most strongly against himself If the disseisor and disseisee joyn in a Charter of feoffment and enter into the Land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor Placitum à placendo quia omnibus placet Fo. 303. a. Ordine placitandi servato servatur jus c. 1. In good order of pleading a man must plead to the jurisdiction of the Court. 2. To the person of the plaintiffe and to the defendant 3. To the Count. 4. To the Writ 5. To the action c. Bract. li. 5. fo 400. Britton fo 41. a. and 122. 40. E. 3. 9. b. The count must be agreable and conform to the writ the barre to the count c. and the judgement to the count Certa debet esse intentio narratio certum fundamentum et certa res quae deducitur in judicium Note three kind of certainties 1. To a Common intent and that is sufficient in a barre which is to defend the party and to excuse him 2. A certaine intent in generall as in Counts replications and other pleadings of the plaintiffe that is to convince the defendant and so in indictments c. 3. A certaine intent in every particular as in Estoppells Bract. l. 2. fo 140. lib. 5. 120 c. Lobs case Where a matter of Record is the foundation or ground of the suit of the plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but a conveiance Pl. Com. 65. a 6. 100. 376. and 410. 8. Ass 29. 5 E. 4. 70 E. 4. 1. Ambiguum placitum interpretari
of the whole Lib. 2. fo 67. Bookers case If either the grantor or grantee dye the Attornment is countermanded but if the Tenant dye he that hath his Estate may Attorn at any time If the Tenant grant over his estate his Assignee may attorn Lib. 4. fo 8. l. 6. fo 57. l. 9. fo 34. 4 H. 6. 29. 18 E. 4. 10. If an Infant hath Lands by purchase or by discent he shall be compelled to Attorn in a per que servitia 42 E 3. Age 33. 18 H. 6. 2. l. 9. fo 84. 85. Coyns case 4. M. Dy. 137. 7 E. 2. Age 140. If an infant be lessee he shall be compelled to Attorn in a quid Juris clamat the Attornment of an Infant to a grant by Deed is good and shall bind him because it is lawfull albeit he be not upon that grant by Deed compellable to Attorne Sect. 567. Fol. 315. b. The grant of the reversion by Deed with the attornment of lessee for years do countervaile in Law a feoffment by livery as to the passing of the freehold and inheritance And Tenant by statute Merchant or Staple or by Elegit must also attorn for the grantee may have a venire facias ad computat or tender the mony c. and discharge the Land and if the reversion be granted by Fine they shall be compelled to attorn in a Quid juris clamat 6 E. 3. 53. 25 E. 3. 53. Br. Attor 48. 32 E 3. scire facias 101. Dy. 1. a. And so the Executors that have the Land untill the debts be paid must attorn upon the grant of the reversion although they have not any certain terme for years Sect. 568. Fo. 316. a. If Tenant in Dower or by the curtesie grant over his or her estate and the heire grant over the reversion the Tenant in Dower or by the Curtesie may attorn because at the time of the grant made they were attendant to the heire in reversion and the grantee cannot be Tenant in Dower or by the Curtesie and if the reversion be granted by Fine the Fine must suppose that the Tenant in Dower or by the Curtesie did hold the land albeit they had formerly granted over their estate and albeit the reversion doth passe by the Fine yet the Quid juris clamat must be brought against him that was Tenant at the time of the note levied and the grantee of the reversion must bring an action of waste against the Assignee of Tenant in Dower or by the Curtesie for they themselves cannot hold of any but of the heire and therefore in respect of the privity they shall attorn and be subject to an action of waste as long as the reversion remaineth in the heire albeit they have granted over their whole estate and note that if the grantee of the reversion doth bring an Action of wast against the Assignee of Tenant by the Curtesie the plaintiffe must rehearse the Statute which proveth that no prohibition of waste in that case lay at the common Law as it did if the heir had brought it against the Tenant by the Curtesie himselfe and therefore some doe hold that if the heir do grant over the reversion that the Attornement of the Assignee of the Tenant by Curtesie or of Tenant in Dower is sufficient because they afterward must be attendant and subject to the Action of waste 10. H. 4 Attornment 16. 11 H. 4. 18. F.N.B. 55 E. Reg. fo 72. 4 E. 3. 26. If the reversion of lessee for life be granted and lessee for life Assigne over his estate the lessee cannot attorne but the attornment of the Assignee is good because it behoveth that the Tenant of the land doe attorne and after the Assignment there is no tenure or attendance c. between the lessee and him in reversion 18 E. 4. 10. b. 26 E. 3. 62. 5 H. 5. 10. Sect. 569 570 571 552 573. Fo. 316. b. No Quid juris clamat lyeth against Tenant in taile but if a man make a gift in taile the remainder in fee and the Seigniory or rent charge issuing out of the land be granted by Fine the Conusee shall maintaine a per que servitia or a Quem redditum and compell him to Attorne for herein his estate of inheritance is no priviledge to him for that a Tenant in fee simple as his Estate was at the Common Law is also compellable in these cases to attorne Lou le reversion est dependant sur lestate del franktenement suffist que le tenant del franktenement attorn sur grant del reversion c. Si lease pur terme dans c. ou done en le taile soit fait reserve un rent per le grant del reversion en tiel case le rent passara pur ceo que tiel rent est incident al reversion nemy è converso If a man let land to another for his life and after he confirme by his Deed the estate of the Tenant for life the remainder to another in fee and the Tenant for life accept the Deed c. Albeit he in remainder in this case hath no remedy to come to the Deed during the life of Tenant for life yet because he is privy in Estate he shall not maintaine an action of waste without shewing the Deed but when the remainder is once executed he shall not need to shew the Deed Vide Pl. Com. Colthirsts case D St. Ch. 20. fol. 93 94. Pl. Com. 149. Throckmortons case 45 E. 3. 14. 15. 11 H. 4. 39. 14 H 4. 31. As in Physick nullum medicamentum est idem omnibus so in Law one forme or president of conveyance will not fit all Cases Sect. 574. Fo. 318. a. If one joyntenant make a Lease for years reserving a rent and dye the survivor shall not have the rent therefore Littleton here addeth materially for the privity that was betwen the Tenant for life and them in the reversion 2 Eliz. Dyer 176. Tenant for life shall not be compelled to attorn in a Quid juris clamat upon the grant of a reversion by Fine holden of the King himselfe without licence For it is a generall rule that when the grant by fine is defeasible there the Tenant shall be compelled to attorne 45 E. 3. 6. b. 13 Eliz. Dy. 188. Lib. 3. fo 86. Justice Windhams case 36 H. 6. 24. As if an Infant levy a Fine this is defeasible by Writ of Errour during his minority and therefore the Tenant shall not be compelled to attorn So if the land be holden in ancient Demesn and he in the reversion levy a Fine of the reversion at the Common Law this is reversible in a Writ of Deceit c. 5 E. 3. 25. 3 E. 3. Ancient Demesn 16. So if an Alienation be in Mortmain the Lord Paramount may defeat it c. 17 E. 3. 7. 22 E 3. 18. So if a Tenant in Tail had levied a Fine it was defeasible by the issue in Tail 24 E 3. 25. b. 37
faire pur ceo que tout le matter est icy transcribe verbatim But herein are two diversities Notable The first is that having regard to the parties to the surrender the estate is absolutely drowned as in this case between the lessee and the second Baron But having regard to strangers who were not parties or privies thereunto lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender the estate surrendred hath in consideration of Law a Continuance As if a reversion be granted with Warranty and Tenant for life surrender the grantee shall not have execution in value against the grantor who is a stranger during the life of Tenant for life for this surrender shall work no prejudice to the grantee who is a stranger 45 E. 3. 13. 5 H. 5. 9. 9 E. 4. 18. So if Tenant for life surrender to him in reversion being within age he shall not have his age for that should be a prejudice to a stranger who is become Demandant in a real action 40 E. 3. 13. 1 H. 6. 1. 24 E. 3. 77. If Tenant for life grant a rent charge and after surrender yet the rent remaineth for to that purpose he cometh in under the Charge 5 H. 5. 8. 26 Ass 38. 7 H. 6. 1. b. If a Bishop be seised of a rent charge in fee the Tenant of the land infeoff the Bishop and his successors the Lord enter for the Mortmain he shall hold it discharged of the rent for the entry for the Mortmain affirmeth the alienation in Mortmain and the Lord claimeth under his estate but if Tenant for life grant a rent in fee and after infeoff the grantee and the lessor enter for the forfeiture the rent is revived for the lessor doth claim above the Feoffment But if I grant the reversion of my Tenant for life to another for term of his life and Tenant for life attorn now is the waste of Tenant for life dishpunishable 48 E. 3. 16. Afterwards I release to the grantee for life and his heirs or grant the reversion to him and his heirs now albeit the Tenant for life be a stranger to it yet because he attorneth to the grantee for life the estate for life which the grantee had shall have no continuance in the eye of Law as to him but he shall be punished for Waste done afterwards The second diversity is That for the benefit of an estranger the estate for life is absolutely determined As if he in the reversion make a lease for years or grant a rent charge c. and then the lessee for life surrender the lease or rent shall commence maintenance So in the case of Littleton first between the lessee and the second husband the state for life is determined And 2. for the benefit of the issue it shall be so adjudged in Law Here note a diversity when it is to the prejudice of a stranger and when it is for his benefit If a man make a lease to A. for life reserving a rent of 40. s. to him and his heirs the remainder to B. for life the lessor grant the reversion in fee to B. A. attorneth B. shall not have the rent for that although the fee simple do drown the remainder for life between them yet as to a stranger it is in esse and therefore B. shall not have the rent but his heir shall have it A Master of an Hospital being a sole Corporation by the consent of his Brethren makes a lease for years of part of the possession of the Hospital afterwards the lessee for years is made Master the term is drowned for a man cannot have a term for years in his own right and a Freehold en auter droit to consist together as if a man lessee for years take a feme lessor to wife But a man may have a Freehold in his own right and a term in auter droit and therefore if a man lessor take the feme lessee to wife the term is not drawned but he is possessed of the term in her right during the Coverture 6 H. 4. 7. Pl. Com. 419. So if the lessee make the lessor his executor the term is not drowned 32 H. 8. Br. Surr. 5. 2. But if it had been a Corporation aggregate of many the making of the lessee Master had not extinguished the term no more then if the lessee had been made one of the Brethren of the Hospital Sect. 637. Fo. 339. a. Nota que un estate tail ne poit este discont mes la ou cestuy que fait discont fuit un foitâ— seisee quia omnis privatio praesuppoâ—it habitum perforce de la tail sinon que foit per reason de garrantie c. for in many cases a Warranty added to a Conveyance is said to make a Discontinuance ab effectu because it taketh away the entry of him that right hath as a Discontinuance doth As if Tenant in Tail be disseised and dyeth the issue in Tail releaseth to the disseisor with Warranty c. 9 E. 4. 19. 12 E. 4. 11. 21 E. 4. 97. Vide Sect. 592 596 597 601 640 658. Sect. 642. Fo. 340. b. Albeit the reversion in this case be executed in the Lord by the Escheat in the life of Tenant in Tail yet because he is not in by the Tenant in Tail but by Escheat it worketh no discontinuance But if it had been executed in the life of Tenant in Tail in the grantee which was in by Tenant in Tail then the Lord by Escheat should have taken advantage by it Vide Sect. 620. lib. 1. fo 136. lib. 2. fo 62 63. Sect. 643 644 645. In whom the fee simple of the Gleab c. is is a question in our Books Some hold that it is in the Patron 8 H. 6. 24 12 H. 8. 8. But that cannot bt for two Reasons 1. For that in the beginning the Land was given ro the Parson and his successors and the Patron is no successor 2. The words of the Writ of Juris utrum be Si sit libera Eleemosyna ecclesiae de D. and not of the Patron Reg. 307. a. 45 E. 3. Eschang 12 H. 8 9. Some others do hold That the fee simple is in the Parson and Ordinary F N B 19. I. But this cannot be for the causes abovesaid and therefore of necessity the fee simple is in abeiance as Littleton saith Upon consideration of all our Books I observe this diversity That a Parson or Vicar for the benefit of the Church and of his successor if in some cases esteemed in Law to have a fee simple qualified but to do any thing to the prejudice ofs successors in many cases the Law adjudgeth him to have in effect but an estate for life Causae Ecclesiae publicis causis aequiparantur summa ratio est quae pro religione facit Bract. lib. 3 f. 226. Et Ecclesia fungisur vice minoris meliorem facere potest
non-tenure or disclaime there the demandant may averre him to be Tenant of the Land as his Writ supposes for the benefit of his damage which otherwise he should lose or pray judgement and entry 13 H. 7. 28. 22 H 6. 44. But where no damages are recoverd as in a Formedon in discent c. there he cannot aver him Tenant but pray his judgement and enter for thereby he hath the effect of his suit frustra fit per plura quod c. 8 E. 3. 434. 24 E 3. 9. 11 H. 4. 16. and 7 H. 6. 17. A general averment is the conclusion of every plea to the Writ or in barre of replication and other pleadings for Counts or Avowries in nature of Counts need not be averred containing matter affirmed ought to be averred hoc paratus est verificare c. Particular averments are as when the life of Tenant for life or Tenant in Tail are averred and there though this word verificare be not vsed but the matter avouched and affirmed it is upon the matter an averment and an averment containeth as well the matter as the forme thereof Sect. 692 Fol. 363. a. Albeit in this case and in the case before the entry of the demandant is his own act and the demandant hath no expresse judgement to recover yet he shall be remitted causa â—â—a supra 36 H. 6 Fo. 29. Sect. 693. Fo. 363. b. Here note a diversity If a man of full age having but a right of action taketh an estate to him he is not remitted But where he hath a right of entry and taketh an estate he by his entry is remitted because his entry is lawful and if the disseisor infeoffe the disseisee and others the disseisee is remitted to the whole for his entry is lawful otherwise it is if his entry were taken away 29. Ass p. 26. 43. Ass 3. 11 H. 7. â—0 3 H. 6. 19. 40 E. 3. 43. If Tenant in Tail be of a manor where unto an advowson is appendant the Tenant in Tail discontinue in Fee discontinuee grant away the Advowson in Fee and dyeth the â—â—e in tail recontinueth the Manor by Recovery he is thereby remitted to the Advowson and he that right hath shall present when the Church becometh void 8 R. 2. Qu. imp 199. 26. H. 8. 4. F.N.B. 36. 35. b. The Patron of a benefice is outlawed and the Church become void an estranger usurpeth and six moneths passe the King doth recover in a qu. imp and remove the incumbent c. Advowson is recontinued to the rightful patron 22. Ass p. 33. Theobald Grinvile and so note a diversity a remitter cannot be properly unlesse there be two Titles but a recontinuance may be where there is but one If the disseisor by Deed Indented make a Lease forlife or a gift in Taile c. yet the Deed Indented shall not suffer the livery made according to the form and effect of the Indenture to work any Remitter to the disseisee but shall estop the disseisee to claim his former estate and if the disseisor upon the feoffment doth reserve any Rent or condition c. the rent or condition is good 13 H. 4. 5. 3 H. 4. 17. 8 H. 4. 8. 12 H. 4. 19. 35. Ass 8. 17. Ass 3. 43. E. 3. 17. Parkers Case 21 H. 6. 2. per Paston Sect. 695. Fol. 364. a. Note a diversity A claime in paiis shall not hinder Remitter otherwise it is a claime of Record because that doth work a conclusion Sect. 696. Fol. 344. b. Here note a notable diversity If two joyntenants or coparceners joyn in a reall action where their entry is not lawful and the one is summoned and severed and the other pursueth and recovereth the moity the other Joyntenant or Coparceners shall enter and take the profits with her because their remedie was one and the same But where two Coparceners and they are disseised and a discent is cast and they have issue and dye if the issue of the one recover her moity the other shall not enter with her because their remedies were severall and yet when both have recovered they are coparceners again 10. H. 6. 10. 19 H. 6. 45. 31 H. 6. Ent. Cong 54. So here in this case that Littleton putteth then two joyntenants have not equall remedy for the Infant hath a right of Entry and the other a right of action and therefore the Infant being remitted to moity the other shall not enter and take the profits with her If A and B. joyntenants in fee be disseised by the Father of A. who dyeth seised his Sonne and heir enter he is remitted to the whole and his companion shall take Advantage thereof Otherwise here in the case of Littleton for that the Adventure is given to the Infant more in in respect of his person than of his right whereof his companion shall take no advantage But if the Grandfather had disseised the Joyntenants and the land had discended to the Father and from him to A. and then A. had dyed the entry of the other should be taken away by the first descent and therefore he should not enter with the heire of A. But here in the case of Littleton if after the discent the other Joyntenant had dyed and the infant survived some say that he should have entred into the whole because he is now in Judgement of of Law solely in by first feoffment and he claimeth not under the discent Vide 35 Ass p. ultimo ** CHAP. XIII Of Warranty Sect. 697. A Communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem A warranty is a convenant reall annexed to Lands or Tenements whereby a man and his heires are bound to warrant the same and either upon voucher or by judgement in a writ of Warrant Cartae to yeeld other Lands and Tenements to the value of those that shall be evicted by a former title or else may be used by way of Rebutter i.e. to repel or barre Bract. l. 2. fo 37. and l. 5. fo 380. c. Glan l. 3. ca. 1. 2. 3. 38. E. 321. 45 E 3. 18. Fol. 365. a. Garronter en un sense signifie a defender son tenant en sa seisin en auter sence signifie que si il ne defendant que le garrant luy soit tenue a eschanges de faire son gree a la vaillaunce Brit. Fo. 197. b. By the Statute of Glocestor foure things are enacted 1. That if a Tenant by the Curtesie alien with warranty and dyeth that this should be no barre to the heir in a Writ of Mordanc without Assets in fee simple and if Lands or Tenements descend to the heir from the Father he shall be barred having regard to the value thereof 2 That if the heir for want of Assets c. doth recover the Lands of his mother by force of this Act and afterwards Assets discend c. 3. That the issue of the Sonne
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a