these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt 3. Both Littleton and the book in 7 Ed. 3. giveth the tenant power without any excuse to be shewed to finde an able and sufficient man and oftentimes Jura publica ex privato promiscue decidi non debeut Praepostera lectio praepropera praxis are enemies to learning fol. 70. b. Cessante ratione legis cessat ipsa lex If Mayor and Commonalty convey over their Lands holden by Knights service to any natural man and his heirs now Homage-ward c. belong to the Tenure c. Note That every Bishop in England hath a Barony and that Barony is holden of the King in Capite and yet the King can neither have Wardship or relief Nemo militans Deo implicetur ' secularibus negotiis Ferdwit in Saxon ' significat quietanciam murdri in exercitu Worscet signifieth Liberum esse de oneribus armorum fo 71. a. Fleta lib. 1. cap. 42. Miles haec tria curare debeat corpus ut validissimum perniciosissimum habeat arma apta ad subita imperia caetera Deo Imperatori curae esse Livius Sapiens non semper ita uno gradu sed una via non se mutat sed aptat Qui secundos optat eventus dimicet arte non casu In omni conflictu non tam prodest multitudo quam virtus Vegetius Est optimi ducis scire vincere cedere prudenter tempori Multum potest in rebus humanis occasio plurimum in bellicis Polibius Quid tam necessarium est quam tenere semper arma quibus tectus esse possis Vegetius Concerning the point in Law demurred in judgement in the 7 Ed. 3. here mentioned by Littleton The Law accounteth the beginning of the 40 daies after the King entreth into the Forrein Nation for then the Warre beginneth c. Vide c. The knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his own understanding And as the Bucket in the depth is easily drawn to the uppermost part of the water for nullum elementum in suo proprio loco est grave but take it from the water it cannot be drawn up but with great difficulty for albeit the beginnings of this study seem difficult yet when the Professor of the Law can dive into the depth it is delightfull easie and without any heavy burthen so long as he keep himself in his own proper element Justiciari de banco c. Communia placita non sequantur Cur ' nostram sed teneantur in aliquo certo loco Mag. Charta He which demurreth in law Moratur or Demoratur in lege Matters in Law are decided by the Judges and matters in fact by Juries Now as there is no issue upon the fact but when it is joined between the parties so there is no Demurre in law but when it is joyned c Vide quaere fol. 71. b. In some cases a man shall alledge special matter and conclude with a Demurre as in an action of Trespass brought by I. S. for the taking of his Horse the defendant pleads that he himself was possessed of the Horse untill he was by one I.S. dispossessed who gave him to the Plaintiff c. the Plaintiff saith that I. S. named in the Barre and I.S. the Plaintiffe were all one person and not diverse and to the Plea pleaded by the Defendant in the manner he demurres in law and the Court did hold the Plea and Demurrer good for without the matter alledged he could not demurre Now as there may be a demurre upon Counts and Pleas so there may be of Aid Prior Voucher Resceit Waging of Law c. There is a generall Demurre that is shewing no cause and a speciall Demurre which sheweth the cause of his Demurrer Also there is a Demurre upon pleading c. and there is also a Demurre upon Evidence Vide Lib. fol. 72. a. Sect. 97 98. and 99. No escuage was assessed by Parliament since the eighth year of the reign of Edw. 2. fol. 72. b. Quemadmodum incertitudo scutagii facit servitium militare ita certitudo scutagii facit socagium Si home parle generalement descuage il ser entend ' c. descuage noncertaine que est service de Chivaler tiel escuage trait a luy homage fealty car fealty est incident a chesc ' maner de service forsque a le tenant in Frankalmoigne Verba equivoca in dubio posita intelliguntur in digniori potentiori sensu Tenure in capite ex vitermini is a Tenure in Gross and it may be holden of a subject but being spoken generally it is secundum excellentiam intended of the King for he is caput reipublicae fol. 73. a. Escuage can be assessed only by Parliament and not by the King Sect. 101. Les seignieurs poient distrein per Escuage assess per Parlament ou ils en asc ' cases purront au breve le roy direct ' as viconts de in les counties c. de levier tiel Escuage per eux Vide de Regist Writs are the foundations whereupon the whole Law doth depend Fitzherbert in his Preface to his Nat. Br. Breve sicut regula juris rem quae est breviter enarrat non tamen ita breve esse debeat quin rationem vim intentionis contineat Bract. lib. 5. fo 413 c. Of Writs some be Original and some be Judicial Also of Originals Quaedam sunt formata sub suis casibus de cursu de communi consilio totius regni concessa approbata quae quidem nullatenus mutari poterint absque consensu voluntate eorum quaedam sunt Magistralia saepe variantur secundum varietatem casuum factorum quaerelarium As Actions upon the Case which vary c. Item brevium originalium alia sunt realia alia personalia alia mixta Item c. alia sunt patentia sive aperta alia clausa Certain it is that the Original Writs are so artificially and briefly compiled as there is nothing redundant or wanting in them of which one said That it was impossile to comprehend so much matter so perspicuously in fewer words Brevia judicialia saepius variantur secundum varietatem placitorum proponentis respondentis Sect. 102. Mareschallus exercitus in Saxon Marischalk i.e. equitum Magister Marshal is either derived of Mars or of Marc an horse which signifieth in the Saxon tongue a Master or Governor I reade of six kindes of Certificates allowed for Tryals by the Common Law The first whereof Littleton speaketh in time of War out of the Realm by the Marshal c. 2. In time of Peace out of the Realm As if it be alleaged in avoidance of an Outlawry That the Defendant was in Prison at Bourdeaux c. it shall by tryed by the Certificate of the Mayor c. 2
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-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.
succedunt res humanae ubi negliguntur divinae Fol. 64. b. Sex horas somno todidem des legibus aequis Quatuor orabis des Epulisque duas Quod superest ultro sacris largire camenis Sect. 86. and 87. Nota in old Books and Records the Homage which a Bishop Abbot or other man of Religion doth is called fealty for that it wanteth these words cieo deveign vostre home But yet in judgement of Law it is Homage because he saith I do to you homage c. and so of a Woman Argumentum ab inconvenienti plurimum valet in lege Non solum quod licet sed quid est conveniens est considerandum nihil quod est inconveniens ē licitum Sect. 89. and 90. Nul fer homage mes tiel que ad estate in fee simple ou en fee taile en son drt. dem ou en droit dun auter Si un home ad severall tenancies queux il tient de severall seignieurs per homage donques quant il ft. homage a un des seignieurs il dirra en le fine de son homage fait salve la foy que ido doy a nature seignieur le Roy a mes auters seignieurs Non Corporation aggregate of many persons capable shall do homage because that homage must be done in person and a Corporation c. cannot appear in person But an Abbot in nature of a sole Corporation shall do homage because the Covent are all dead persons in law Vide c. fo 66. b. * lib. 4. 11. l. 7. 10. Contra negantem principia non est disputandum A Parson or Vicar of a Church that hath a qualified fee and yet to many intents upon the matter but an estate for life can neither receive homage nor do homage as a Bishop c. that a fee absolute may Tenant per le Curtesie c. ne ferre homage c. per ceo que il adonque nad estate forsque per terme de vie Et Nota. He that cannot receive homage in respect of the weakness of his estate in the Seigniory shall not do homage if he hath a like estate in the tenancy fo 67. a. vide lib. c. Primogenita filia tantum faciet homagium Domino pro se omnibus sororibus suis Quia omnes sorores sunt quasi unus haeres de una haereditate 14 H. 3. tit Praerog 5. Every tenant in common shall do severall services If homage be parcell of a Tenure it is a presumption that the Tenure is by Knights service unless the contrary be proved CHAP. II. Fealty Sect. 91 92 93 and 94. TEnant for years shall do Fealty Littl. fo 29. nu 132. Sciendum est quod non per procuratores nec per literas fieri poterit homagium sed in propria persona tam domini quam tenentis capi debet fieri Bract. lib. 2. fo 8. Mes le Seneschal del Court le Signieur ou Baylife poit purender fealtie pur le Seignieur Item tenant a terme de vie ferre fealty encore il ne ferre homage Sic vide diversitatem The tenant must do fealty in person because he must be sworn unto it and no man can swear by the Common Law by Attorney or Proctor fo 68. 8. Whosoever is above the age of 12 years is to take the Oath of Allegiance and he is to be sworn in the Tourne unless he be within some Leet and then in the Leet CHAP. III. Escuage Sect. 94. SCutagium id est servitium scuti Nomina si nescis perit cognitio rerum Bracton saith Item scutagium dicitur quòd talis praestatio pertinet at scutum quòd assumitur servitium militare fol. 68. b. Every Tenure by Escuage is a Tenure by Knights service Sed non è converso But note here the wisdom of Antiquity Mavult enim princeps domesticos quam stipendiarios bellicis apponere casibus lib. rub Quant le Roy fait royall voiage en escoce c. donque il que tient per un fee de Chivaler c. covient erre oue le Roy per 40. jours bien convenablement array pur le guerre sic de caeteris c. In the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldredi it appeareth That Comitatus to wit an Earldom constat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas Baronia constat ex 13. feodis 3. parte unius feodi militis secundum comput ' praedictam unum feodum militis constat ex terris ad valentiam 20. l. fol. 79. a. A Marquisdome consists of the Revenue of two Baronies which amount to 800 Marks And a Dukedom consists of the Revenues of two Earldoms viz. 800 pounds per annum fol. 79. b. Note That the relief of a Knight and all above him which be Noble is the fourth part of their yearly revenue as of a Knight 5l which is the fourth part of 20l c. Edward the eldest Son of King Edw. 3. called The Black Prince was the first Duke in England after the Conquest and Robert Vere Earl of Oxford in the reign of R. 2. was the first Marquis Et Dominus de Bellomonte was the first Viscount created by King H. 6. A voyage Royal is not only when the King himself goeth to War as Littleton here saith but also when his Lieutenant or Deputy of his Lieutenant goeth He that holdeth by Castle gard or Cornage holdeth by Knights service and yet he shall pay no Escuage because he holdeth not to go with the King to War Sir Richard Rocgesly Knight did hold Lands at Seaton by Seargeanty to be vantrarius Regis the Kings fore Footman when the King went to Gascoigne donec per usus fuit pari solutarum precii 4d. that is untill he had worn out a pair of shooes of the price of four pence And this service being permitted to be performed when the King went to Gascoigne to make war is Knights service See an ancient Record Rot. de finibus Termino Mich. 11. Edw. 2. If the tenant peravaile goeth with the King it excuseth all the means c. For one tenancy shall pay but one Escuage F.N.B. 83 84. Sect. 96. Albeit the Tenure is That he which holdeth by a whole Knights fee ought to be with the King c. to do a corporal service yet he may finde another able man to do it for him But it may be objected That in some particular cases the tenant might finde a man but not when he himself is able without all excuse or impediment To this it is answered That sapiens incipit a fine And the end of this service is for the defence of the Realm and so it be done by an able and sufficient man the end is effected 2. Seeing there are so many just excuses of the tenant it were dangerous and tending to the hindrance of the service if
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
of a grant of a rent service the attornment of the disseisee sufficeth 21 H. 6. 9. b. It was holden by Dyer and Mounson in the Argument of Brace bridges case that if he that hath a rent charge granteth it over for life and the Tenant of the Land attorn thereunto and after he grant the reversion of the rent charge that the grantee for life may attorne alone and that these words of Littleton are to be understood when a rent charge or rent seck is granted in possession and a quid juris clamat in that case did lye against the grantee for life 46 E. 3. 27. 2 H. 6. 9. Vide Littleton Sect 549. and 553. A man maketh a Lease for life and after grants to A. a rent charge out of the reversion A. grants the rent over he in the reversion must Attorne and not the Tenant of the freehold for that the freehold is not charged with the rent for a release made to him by the grantee doth not extinguish the rent and Littleton is to be understood that the Tenant of the freehold must attorne when the freehold is charged Vide fo 312. a. Littleton speaketh of five kindes of inheritances whereto an Attornement is requisite 1. Of a Seignory rent service c. 2. Of a rent charge 3. Of rent seck 4. Of a reversion 5. Of a remainder of Lands For the Tenant shall never need to Attorne but when there is tenure attendance remainder or payment of a rent And therefore if an annuity common of pasture common of estovers be granted for life or years c. the reversion may be granted without any Attornment 21 H. 7. 1. 1 H. 5. 1. 37. Ass 14. 36. Ass p. 3. 31 H. 8. Attorn Br. 59. Sect. 557. Fol. 312. b. In this case of Littleton by this escheat of the remainder the Seigniory is extinct for the fee simple of the Seigniory being extinct there cannot remain a particular estate for life thereof in respect of the tenure and attendance over 3. 3 H. 6. 1. old tenures 107. 15 E. 4. 15. a. per Littleton But otherwise it is of a rent charge in fee for if that be granted for life and after he in the reversion purchase the Land so as the reversion of the rent charge is extinct yet the grantee for life shall enjoy the rent during his life for there is no tenure or attendance in this case Sect. 558 559. Fo. 313. a. Littleton now commeth to speak of Atornments in Law or implyed 3 E. 3. 42. 15 E 3. Attorne 11. If the Lord grant his Signiory to the Tenant of the land and to a stranger and the Tenant accept the Deed this acceptance is a good Attornment to extinguish the one moity and to vest the other moity in the grantee Suspense is when a Seigniory Rent profit apprehend c. by reason of unity of possession of the Rent Seigniory c. of the Land out of which they issue are not in esse for a time and they are said to be extinguished when they are gone for ever and can never be revived that is when one man hath as high and perdurable estate in the one as in the other Sect. 560. 561. Fol. 313. a. b. Note that albeit a grant may enure by way of release and a release to the Tenant for life doth work an absulute extinguishment whereof he in the remainder shall take benefit yet the Law shall never make any construction against the purport of the grant to the prejudice of any or against the meaning of the parties c. Vide lib. c. Sect. 562. Fo. 314. a. Note a diversity when the whole estate in the Seigniory is suspended and when but part of the estate in the Seigniory is suspended but for terme of life and therefore as to all things concerning the right it hath its being but as the possession during the particular estate the grantee shall take no benefit therefore during that time he shall have no rent service Wardship Relief Heriot c. because these belong to the possession but if the Tenant dyeth without heir the Tenancy shall escheat unto the grantee for that it is in the right and yet when the Seigniory is revived by the death of the Tenant there shall be wardship as if the Tenant marry with the Seignioresse and dyeth his heire within age they shall have the wardship of the heire Also in the case that Littleton here putteth albeit the Seigniory be suspended but for life yet some hold that he cannot grant it over because the grantee took it suspended and it was never in esse in him but if the Tenant make a Lease for years or for life to the Lord there the Lord may grant it over because the Seigniory was in esse in him and the fee simple of the Seigniory is not suspended but if the Lord disseise the Tenant or the Tenant infeoffe the Lord upon condition there the whole estate in the Seigniory is suspended and therefore he cannot during the suspension take benefit of any escheat or grant over his Seigniory 34. Ass p. 15. 16 E. 3. vouch 83. 5 E. 3. Twongs case Sect. 563. 564. Fo. 314. Attornment for part cannot be void for that and good it cannot be unlesse it be for the whole 4 E. 3. 55. Malmans case 5 E. 4. 2. 7 H. 4. 10. 35 H. 6. 8. per prisot And payment of any parcell of the services is an agreement in Law to the grant 40 E. 3. 34. Intentio inservire debet legibus non leges intentioni 20 H. 6. Judgement in scire facias pur parcell de le services est bone attorn en ley commit que il est presume quod judicium redditur in invitum 48 E. 3. 24. 37 H. 6 14. per Moyle 17 E. 3. 29. Note that in case of Deed nothing passeth before attornment In the case of the fine the thing granted passeth as to the State but not to distraine c. without Attornment In the case of the King the thing granted doth passe both in estate and in privity to distreine c. without Attornment unlesse it be of Lands or Tenements that are parcell of the Dutchy of Lancaster and lye out of the County Palatine Sect. 565. Fo. 315. b. Note a diversity between money given by way of Attornment and where it is given as parcell of the Rent by way of seisin of the Rent And therefore a payment in name of seisin is more beneficiall for the grantee because this is both an actuall seisin and an Attornment in Law and yet being given before the day in which the Rent is due it shall not be abated out of the Rent 39 H. 6. 3. 26. 5 E. 4. 2. Vide S. 235. 7 H. 4. 2. Attorny Br. 97. Sect. 566. As of an Attornment so a seisin of a rent by the hands of one joynt-tenant is good for al and a seisin of part of the rent is a good seisin
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
although he can have no heire but of his body 39. E. 3. 11. 24. 17. E. 3. 42. 35. As 13. 41. E. 3. 19 An office which concernes the benefit or safety of the commonwealth c. granted to a man which is unexpert and hath no skill or science to exercise or execute the same the grant is merely void and the party disabled by law to take the same pro commodo regis populi Dier 150. An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion No man though neven so skilful c. Is capable of a judiciall office in reversion but must expect untill it fall in Possession l. 11. 2. Sect. 378. The King is capable of an office not to use but to grant A purchase is c. when one cometh to lands by conveiance or title and not by tort as by disseisin c. Note that purchasers of lands tenants leases and hereditaments for good and valuable consideration shall avoid all former fraudulent and convin conveiance estates grants charges and limit of uses of or out of the same Stat. 27 El. cap. 4. 3. b. 13 El c. 5. l. 3. 80. Twines c. States of inheritances of lands are either certain or unmoveable whereof Littl. here speaketh or incertain and moveable as if partition be made between two Co-partners of one and the self same land that the one shall have it the first year and the other the second year alternis vicibus c. 4. 2. l. 1. 87. F. N. B. 62. Between pastura pascuum the legal difference is this that pastura in one signification containeth the ground it selfe called pasture and by that name is to be demanded Pascuum is wheresoever cattel are fed of what nature soever the ground is and cannot be demanded in a praecipe by that name 4. b. many things may pass by a name that by the same name cannot be demanded by a praecipe for that doth require a more perscript form but whatsoever may be demanded by a praecipe may pass by the same name by way of grant Ibid. 5. b. If the feoffor be bound to warranty and so to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such charters as may serve him to deraign the warranty paramount but other evidences which concern the possession and not the title of the land the Feoffee shall have them 6. a. l. 1. 1. 2. There have been eight formal or orderly parts of a deed of feoffment viz. 1. The premises 2. Habendum 3. Tenendum 4. Reddend 5. The clause of warrant 6. The in cujus rei testimonium sigillum c. 7. The date 8. The clause of his testibus The office of the premise of the deed is twofold 1. Rightly to name the feoffor and the feoffee and 2. to comprehend the certainty of the lands to be conveied c. Either by express words or which may by reference be reduced to a certainty for certum est quod cert reddi potest c. Vide libr. The Seal is of the essential part of the deed The date many times antiquity omitted for that the limitation of prescript or time of memory did often in processe of time change and the law was then holden that a deed bearing date before the limited time of prescript was not pleadable and therefore they made their deeds without date to the end they might alledge them within the time of prescription The date was commonly added in the Reign of Ed. 2. 3. 6. a. quae sunt minoris culpae sunt majoris infamiae Reg. he that loseth liberam legem becometh infamous and can be no witness As if a Champion in a writ of right become recreant or coward But oftentimes a man may be challenged to be of a Jury that cannot be challenged to be a witness and therefore though the witness be of the nearest alliance or kinred or of counsel or tenant or servant to either party or any other exception that maketh him not infamous or to want understanding or discretion or a party in interest though it be proved true shall not exclude the witness to be sworn 22 Ass 12. 41. If a witnesse be outlawed in a personal act hee cannot be joyned to the Jury but yet that is no exception against him to exclude him to be sworn as a witnesse to the Jury for that he with others should join in verdict with the Jury in affirmance of the deed the party should be barred of his attaint because there is more then twelve that affirm the verdict But note there must be more then one witnesse that shall be joyned to the enquest Inst 6. b. Max. Witnesses cannot testifie a negative but an affirmative when a trial is by witnesses the affirmative ought to be proved by two or three witnesses as to prove a summons of the Tenant or the challenge of a Juror c. But when the trial is by verdict of 12 men there judgement is not given upon witnesses c. but upon the verdict c. Probatio duplex viva sc per testes mortua par chartas c. presumptio triplex 1. Violenta 2. Probabilis 3. Levis seu temeraria Many time Juries together with other matters are much induced by presumptions In case of a Charter of feoffment if all the witnesses be dead c. Then violent presumption which stands for a proof is continual and quiet possession for ex diuturnitate temporis omnia praesumuntur solenniter esse acta Also the deed may receive credit per collationem sigillorum scripturae c. Glan l. 10. c. 12. A wife cannot be produced either against or for her husband quia sunt duae animae in carne una In some cases women are by law wholly excluded to bear testimony as to prove a man to be a Villain Mulieres ad probationem Status hominis admitti non debent Fleta l. 2. c. 44. In an information upon the statute of usury the party to the usurious contract shall not be admitted to bee a witnesse against the usurper for in effect he should be testis in propria causa and should avoid his own bonds c. Smiths case T. 8. J. in C.B. Brit. 134. He that challengeth a right in the thing in demand cannot be a witness for that he is a party in interest Britton fol. 134. 6. b. Tenementum is a large word not only to passe lands and other inheritances which are holden but also offices rents commons profits apprehender out of lands c. wherein a man hath any franktenement and whereof he is seised ut de libero tenemento But haereditamentum is the largest word of all in that kind for whatsoever may be inherited is an haereditamentum be it corporeal or
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.
5. 34. per Hals Lodington * 35 Ass p. 2. When an entry shall vest or devest an estate there must be several entries into several parcels of land c. but wher the possession is in no man but the freehold in law is in the heir that entreth there the general entry into one part reduceth all into his actual possession Fol. 15. b. Possessio fratris de feodo simplici facit sororem esse haeredem 11 H. 4. 11. l. 3. Ratcliffs case All the lands and possessions whereof the King is seised in Jure Coronae shall secundum jus Coronae attend upon and follow the Crown The quality of the person doth alter the discent Sect. 9. Inheritance is not only intended where a man hath Lands c. By descent of inheritage but also by purchase Fol. 16. a. 7. H. 4. 5. * 6. E. 3. 30. A man may have inheritance in title of Nobility by creation by descent and by praescription By Creation by Writ and by Letters Patents If he be called by Writ to the Parliament he hath a Fee simple in the dignity c. Without any words of inheritance but if he be created by Letters Patents the state of inheritance must be limited by apt words or else the grant is void The creation by Writ is the ancienter by Letters Pattents the surer for he may be sufficiently created by Letters Pattents and made noble albeit he never sit in Parliament Simulier nobilis nupserit ignobili de sinit esse nobilis that is if she gain her Nobility by marriage But if a woman be noble by discent c. It is otherwise Fol. 16. b. l. 4. 118. Actons Case Littleton citeth no Authority but when the Case is rare or may seem doubtfull Prespecua vera non sunt probanda Vide Librū c. Sect. 10. Placitum á placendo quia bene placitare super omnes placet Fol. 17. a. Seised is properly applyed to Freehold possessed to Goods and Chattells Bract. lih 4. f 263. Demain of the hand i.e. manured by the hand or received by the hand Seisitus c. in dominico suo ut de feodo sc de tres c. D◠qūx home poit aver un manuel occupation c. Seisitius ut d◠feodo sc de Advowson c. Vt de feodo is to be understood positively where ut denotat ipsam veritatem non similitudinem rei Idonea persona for the discharge of the Cure should be presented freely c. By the Patron Guardian in Socage shall not present to an Advowson because by the Law he can meddle with nothing that he cannot account for Fol. 17. b. Advocatio is an advowing or taking into protection est jus patronatus 7 E. 3 4. 45 E. 3. 5. Two coparceners one of them shall have a writ of right of Advowson de medietate advocationis for in truth she hath but a right to a moity but where there be two Patrons and two Incumbents in one Church each of them shall have a Writ of Advowson de advocatione medietatis Two fee simples absolute cannot be of one and the self-same land fo 18. a. Sect. 11. And yet the several persons by Act in law a reversion may be in fee simple in one and a fee simple determinable in another by matter ex post facto as if a gift in tail bee made to a Villain and the Lord enter the Lord hath a fee simple qualified and the donor a reversion in fee but if the Lord infeoff the donor now both fee simple are united and he hath but one fee simple in him but one fee simple cannot depend upon another by the grant of the party as if lands be given to A so long as B hath heirs of his body the remainder over in fee the remainder is void Sect. 12 A purchase is always intended by title and most properly by some kind of conveiance for money or some other consideration or freely of gift An heir-loom is called principalium or haereditarium Si un monument soit deface in lesglise le heir del Ancestor poit aver son action c. 9 E. 4. 24. CAP. II. De Fee Tail Sect. 13. TAllium derived of tailler scindere Modus conventio vincont legem Fol. 19. a. Before the statute of West 2. De donis conditionalibus the heir in Tail had no Fee simple absolute at the common law though there were divers discents Annuities and such like inheritances as cannot be intailed within the said Stature remain at the common law If the King before the statute c. had made a gift in tail c. in this case if the Donee had no issue and before the statute had aliened with warranty and died and the warranty had descended upon the King this should no◠have bound the King of his reversion without assets b◠otherwise it was in the case of a common person fol. 19. b. 6 E. 3. 56. 45 Ass p. 6. The King can do no wrong Pl. c. 246. Sect. 14 15. Not only all corporate inheritances which are or may b◠holden but also all inheritances issuing out of any of those inheritances or concerning or annexed to or exercisible within the same though they lie not in tenure may be intailed As Rents Estovers Commons c. Or Uses Offices Dignities which concern lands or certain places c. But if the grant be of an inheritance meer personal or to be exercised about chattels and is not issuing out of land c As the grant of an annuity of the office to be faulconer master of horse c. Such inheritances cannot be intailed because they savor nothing of the reality Fol. 20. a. 7 E. 3. 363. In these cases the grants c. hath a fee conditional and by his grant or release he may bar his heir as he might have done at the common law viz. In grant de personal inheritances Pl. C. Manxels c. Idem semper proximo antecedenti refertur fol. 20 b. These words de son corps are not so strictly required but that they may be expressed by words that amount to as much 5 H. 5. 6. Voluntas donatoris in Charta doni sui manifestè expressa observetur Quer. c. If a man make a charter of feoffment of an acre of land to A. and his heirs and another Deed of the same acre to A and the heirs of his body and deliver seisin according t◠the form and effect of both deeds it shall enure by moities i.e. to have an Estate Tail in the one moity with the Fee Simple expectant and a Fee Simple in the other moity c. Fol. 21. a. 2 H. 6. 25. 45 E. 3. 20. Sect. 17. Robert gave the reversion of lands which Agnes his wife did hold for life to Stephan de la More Habendum post mortem dictae Agnetis in liberum Maritagium cum Johanna filia ejusdem Roberti and it is adjudged that is a good Estate Tail 5 E. 3.
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.
vie and yet the Lessee may assigne it to whom he will or if he hath already an Estate for another mans life without these words then it were good for him to assign his Estate to divers men and their heirs during the life of Ce ' que vie Lit. 167. Dier 253. If a Lease be made to A c. For terme of his owne life and the lives of B. and C the lessee hath but one freehold which hath this limitation during his own life and the lives of two others and here note a diversity between several estates in severall degrees and one Estate with several limitations for in the first an Estate for a mans owne life is higher then for another mans life but in the second it is not l. 5. Rosses case If Tenant for life infeoffe him in the remainder for life this is a surrender and no forfeiture and albeit an Estate for term of a mans own life be but one Freehold yet may severall Freeholds in certain Cases be derived out of the same Vide libr. A. and B. joyntenants A. for life and B. in Fee joyne in a Lease for life A. hath a reversion and shall joyn in an action of Waste Tenant for life and he in the reversion joyne in a Lease for life it is said that they shall joyn in an action of wast and that the lessee for life shall recover the place wasted and he in reversion dammages Fo. 42. a F.N.B. 59. F. 13. H. 7. 15. If a man make a Lease of a Mannor worth 20. l. per annum to another until 100 l. be paid in this case because the annuall profits of the Mannor are incertain he hath an estate for life if livery be made determinable upon the levying of a 100 l. Fol. 42. a. And yet in some Cases a man shall have an incertaine interest in Lands c. and yet neither an Estate for life for years or at will As if a man by his will in writing devise his lands to his executors for payment of debts and untill his debts be paid in this Case the executors have but a chattell and an incertain interest in the land untill his debts be paid for if they should have it for their lives then by their death their estate should cease and the debts unpaid but being a Chattell it shall go to the executors of executors c. And so note a diversity between a devise and a conveiance at the common Law in his life time l. 8. Mannings The Law which abhorreth injury and wrong will never so construe any Act c. as it shall work a wrong whensoever the words of a Deed or of the parties without Deed may have a double intendment and the one standeth with Law and Right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken Fo. 42. b. The Law more respecteth a lesser estate by right than a larger estate by wrong Tenant in taile made a Lease to another for terme of life generally and after released to the Lessâ—e and his heires albeit between the Tenant in Taile and him a Fee simple passed yet after the death of the Lessor the entry of the issue in Tail was lawfull which could not be if it had been a Lease for the life of the Lessee foâ— then by the release it had been a discontinuance executed Sect. 57. Tenant per vie ad franktenement null auter de meind Estate Many that have capacity to take have no ability to infeoffe c. As Aliens borne Tratiors Felons c. Ideots madmen a feme covert an infant a man by dures c. For the feoffement c. of these may be avoided Brit. fo 88. In judgment of Law the King as King cannot be said to be a minor for when the Royall body politique of the King doth meet with the naturall capacity in one person the whole body shall have the quality of the Royall politique c. omne majus trabit ad se quod est minus A Licence for alienation grew by the Statute of the 20. H. 3. 20. Ass pl. 17. by Skipwith vide lib. By the Statute 1 E. 3. ca. 12. 34. Ed. 3. cap. 15. Although the Kings Tenant in chiefe c. do alien all or any part without Licence yet is there not any forfeiture of the same but a reasonable fine therefore to be paid The Statute of 18. E. 1. De quia Emptor c. hath in effect as to the common persons taken away the Statute of Mag. Charta cap. 32. for thereby it is provided Quod liceat unicuique libero homini trans suas c. Seu partem inde ad voluntatem suam vendere ita quod Feoffatus teneat c. de capitali domino Note first that this word liceat proveth that the Tenant could not or at least was in danger to alien parcell of his Tenancy c. upon the said Act of Mag. Charta 2. That upon the Feoffment of the whole the Tenant shall hold of the chief Lord. 3. That the Tenant might enfeoffe one part to hold pro particula of the chief Lord. But this Act the King being not named doth not take away the Kings Fine due to him by the Statute of Mag. Charta Tenant by Statute Merch. Statute Staple or Elegit are said to hold land ut liberum Tenementum untill their debt be paid and yet they have no Freehold but a Chattel c. But ut is similitudinary because they shall by the Statutes have an Ass as the Tenant of the Freehold shall have and yet nullum simile est idem 28. Ass p. 7. w. 2. c. 18. St. Merc. 13. E. 1. 27. E. 3. c. 9. 23. H. 8. c. 6. F.N.B. 178. CHAP. VII Tenant for Term of yeers Sect. 58. THere be three kinds of persons who at this day may make leases for three lives or XXI yeers c. which could not so doe when Littleton wrote viz. 1. Any person seised of an estate tail in his own right 2. Any person seised of an estate in Fee simple in the right of his Church 3. Any husband and wife seised of any estate of inheritance in Fee simple or Fee taile in the right of his wife or joyntly with his wife before the coverture or after And these are made good by the Statute of 32. H. 8. But the Statute of 1. Eliz. 13. El. 18. El. and 1. Reg. Jac. are disabling Vide libr. c. l. 5. fo 6. If two severall Tenants of severall Lands joyne in a lease for years by Deed indenture these be severall leases and severall confirmations of each of them from whom no interest passeth and work not by way of conclusion in any sort because severall interests passe from them Fol. 45. a. Vide quaere Whensoever any interest passeth from the party there can be no estoppell against him H. 44. El. R. 1459. ca. 8. Leases for lives or years are of
65. 71. In omnibus autem supra omnia decet quemlibet dominum verbis esse veracem in operibus fidelem deum justitiam amantem fraudem peccatum odientem voluntariosque malevolos injuriosos contemnentem apud proximos pietatem vultumque motibilem plenum ipsius enim interest potius consilio quam viribus uti propriove arbitrio non cujuslibet voluntarii juvenis menestralli vel adulatoris sed jurisperitorum virorum fidelium honestorum in pluribus expertorum consilio debet favere Qui bene sibi vult disponere familiae suae scire veram executionem terrarum suarum necessarium erit ut perinde sciat quantitatem suarum facultatum finem annuarum expensarum Quae omnia distinctè scribantur in membranis ut perinde sagacius vitam suam disponat facilius convincat mendacia compostariorum Sect. 76 and 77. If by custome Copyhold may be intailed the same by like custome by surrender may be cut off Some have holden that there was a Formodon in the discender at the common Law 10 E. 2. Formedon 55 c. Si le fignior ousta tiels tenants c. ils nont aut remedy forsque de suer a lour signiors per Petition car auterment ils ne serrent dits tenants a volunt le Seignior c. Mes le Seignior ne voile enfreind le Custome que est reasonable en tiel case Mes Brian H. 21. E. 4. dit que fi tiel tenant per le custome paiant ses services soit eject per se Seignior que il avera action de trns. vers luy Et issint Danby M. 7. Ed. 4. dit que le tenant per le custome eÌ„ cibien inheriter daver son teÌ„r solonque le custome come cesty que ad franktenement al common ley CHAP. X. Tenant per le vergs Sect. 78. CUstome que nest pas encounter reason poit bien estr admit seneschallus is derived of Sein an house or place and Schalc an Officer or Governour some say that Sen is an ancient word for Justice so as Seneschall should signifie Officiarius justitiae In this place it signifieth an Officer of Justice viz. A Keeper of Courts c. Fleta lib. 2. ca. 66. Describeth his Office at large most excellently Providiat sibi Dominus de Scneschallo circumspecto fidels viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio Seneschalciae se cognoscat jura domini sui in omnibus teneri affectet quique sub ballivos domini in suis erroribus ambiguis sciat instruere docere queque egenis parcere qui nec prece vel pretio velit a tramite Justiciae deviare perverse judicare cujus officium est Curias tenere Maneriorum de substractionibus consuetudinum serviciorum reddituum fect ' ad Cur. Mercata Molendina domini ad visus francpledg aliarumque libertatum domino pertinentium inquirat c. Sect. 79. Ballivus Bayliff signifieth a safe Keeper or protector Praefectus or Praepositus Reve signifieth a disposer or director Vide Fleta lib. 2. cap. 67. Where he treateth of the Office of the Bayliff And cap. 69. Of the office of the Reve or reeve c. Ballivus autem Cujuscunque Manerii esse debet in verbo verax in opere diligens fidelis ac pro discreto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat quod sit ita justus quod ob vindictam seu cupiditatem non quaerat versus tenentes domini nec alios c. Praepositus autem tanquam appruator cultor optimus c. Domino vel ejus Seneschallo palam debet presentari cui injungatmr officium illud indilate non ergo fit piger aut somnolentus sed efficaciter continue commoduÌ„ domini adipisci nitatur exarare c. Sect. 80 c. 81. Whatsoever is not against reason may well be admitted and allowed This is not to be understood of every unlearned mans reason but of artificiall and legall reason warranted by authority of Law Lex est summa ratio Fo. 62. a. Sect. 81 82 83 c. Tenant per le Custome c. sont appelles tenants per base tenure pur ceo que ils nont asc ' franktenement per le course del common ley Tiel tenant en asc ' lieux doit repaire measons c. Auxi il ferra fealty Mes tenant a volunt per le Common ley nemy si tiel tenant que est ejus per Lease al Comon ley mor. son heire enter le lessor avera action deâ—trns enuÌ„s luy auterment est de tenant a volunt per le Custome c. Vide Diversitat c. Consuetudo Manerii est observanda But if there be no Custome to the contrary wast either permissive or voluntary of a Copiholder is a forfeiture of his Copihold The doing of fealty by a Copiholder proveth that so long as he observes the custom of the Mannor and payeth his services he hath a fixed estate Vide Cook Report lib. 4. fo 21 22 23 c. Finis Libri primi Liber Secundus CHAP. I. Homage Sect. 85. HOmage est le pluis honourable service et le pluis humble service de reverence que franktenant poit faire a Son Seignior 1. It is most honourable c. For honour plus eÌ„ in honorante quam in honorato 2. It is pluis humble de reverence for the Tenant when he doth his Homage is discinctus nudo capite Ad pedes domini super genua projectus Ambas manus vinctas inter manus domini porrigit per verba omni supplici veneratione plena he saith jeo deveigne vostre home c. Debet quidem tenens * manus suas utrasque ponere inter manus utrasque domini sui per quod significatur ex parte domini protectio defensio warrantia ex parte tenentis reverentia subjectio Fo. 65. a. Homagium ligeum is due to the King onely The King is soveraigne Lord or Lord paramount either mediate or immediate of all and every parcell of land within the Realme for all the Lands c. were originally derived from the Crown 18 E. 3. 35. Item videndum est quis potest homagium facere Sciendum est quod quilibet liber homo tam masculus quâ—m faemina Clericus Laicus Major Minor dum tamen electi in Episcopos post consecrationem hom non faciant quicquid fecerint ante sed tantum fidelitatem Conventus autem hominum non faciet de jure ficut nec Abbas nec Prior eo quod tenent nomine alieno sc nomine Ecclesiarum Mirror cap. 1. S. 2. ca. 2. Sect. 1. 2. Fo. 65. b. * Nil sine prudenti fecit ratione vetustas .. Fo. 65. a. Nûnquam prospere
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
Ante fol. 83. 69. Sect. 138. and 139. Nihil quod est inconveniens est licitum fol. 97. b. It is better saith the Law to suffer a mischief that is peculiar to one then an inconvenience that may prejudice many 42 Ed. 3. 5. 28 E. 3. 395. 20 H. 6. 28. There is no Land that is not holden of some Lord or other by some service Spiritual or Temporal Nihil quod est contra rationem est licitum For Reason is the life of the Law nay the Common Law it self is nothing else but Reason which is to be understood of an artificial perfection of Reason gotten by long study observation and experience and not of every mans natural Reason for Nemo nascitur artifex Neminem oportet esse sapientiorem legibus Si un Abbot c. alien his lands holden in Frankalmoigne to a secular man in fee simple In this case albeit the Alienor held not by fealty nor any other terrene service but only by Spiritual services and those incertain yet the Alience shall hold by the certain service of fealty fol. 98. a. Sect. 140. Il est ordeigne per lestatut Quia empt terrum fait 18 Ed. 1. que nul poit alien ne grant terres c. en fee simple a ten de luy mesme Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibita est potest fieri quilibet potest renunciare juri pro se introducto Praesumitur rex habere omnia jura in scrinio pectoris sui Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata vide libr. quaere fo 99. a. By Prescription the successor of an Abbot may pay relief Sect. 141. Nul poit tenure terres c. en frankalm forsprise del grantor on de ses heires Here or hath the sense of and c. For the heir cannot take any thing in the life of the ancestor neither can the heire take any thing by discent when the ancestor himself is secluded Vide c. As a man cannot grant lands in Taile and reserve a rent to his heirs 15. E. 4. The tenure in frankalmoigne is an incident to the inheritable bloud of the grantor and cannot be transferred or forfeited to any other But it is not an incident inseparable c. For the Lord may release to the Tenant in frankalmoigne and then the tenure is extinct and he shall hold of the Lord Paramount by Fealty As in Littl. S. 139. And if the Seigniory be transferred by act in Law to a stranger thereby the privity is altered and the tenure changed Fo. 99. b. And a Bishop with assent of his Chapter c. may give Lands in Frankalmoigne to hold of them and their successors by licence c. Alwaies the Seigniory neerer to the Land drowns the Seigniory that is more remote c. Sect. 142. Lâ—mesne est tenus de acquiter son Tenant en frankal de Chesc ' manner de service que asc ' Seignior Paramount de luy void demand He is also to aquitt him of improvement of services as if he be distrained for relief aid per file mar c. Also for suit service to a hundred but for suit reall in respect of resiance within any hundred c. it is otherwise There be three kindes of Acquitals 1. An acquitall by Deed. 2. An acquitall by prescription 3. An acquitall by tenure and that is four manner of waies 1. By owelty of service for service acquites service 2. Tenure in Frankalm 3. Tenure in Frankmar 4. Tenure by reason of Dower F. N. B. 135. c. There be six Writs in Law maintainable before any molestation c. As 1. A man may have his Writ of Mesne before he be distreined 2. A Warr. Cartae before he be impleaded 3. A Monstraver before any distresse or vexation 4. An Aud. quer before any execution sued 5. A Curia claudend before any default of inclosure 6. A ne injuste vexes before any distresse or molestation and these be called brevia anticipantia Nota the Plaintiff in a Writ of Mesne may chuse either processe at the common Law or upon the Statute of West 2. And upon processe given by the said Statute viz. Summons Attachment and grand distresse if the Mesne cometh not he shall be fore-judged and the judgement is quod T. le mesne amittat servitia de A le Tenant de tenemtis praedictis quod omisso praedicto T. praefat R. le Seignior Paramount modo sit attendens respond per eadem servit per quae T. tenuit Also if the Tenant be not acquitted after he hath recovered in a Writ of Mesne he shall have a Writ of Distringas ad acquietand Fo. 100. Vide c. F.N.B. 138. If two joyntenants bring a Writ of Mesne and the one is summon'd and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that cannot he be alone And so if there be two joyntenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appears there can be no fore-judger Vide Libr. quaere If the Daughter the Son being in venter sa mere before judged it shall binde the Son that is born afterwards for he had no right at the time of fore-judgement CHAP. VII Homage Auncestrel Sect. 143. c. HOm. Aunc est lou un tenant tient sa terre de SoÌ„ Seigper Homage m. le tenant ses Ancestors que heire il est ont tenus m. la terre del dit Seignior de ses ancestors c. de temps dont memorie ne court per homage on t st a eux homage Tiel Seignior doit garrant son tenant queunt il eÌ„ implede de la terre c. Auxiâ—il doit acquiter le tenant envers touts Seigniors Paramount luy de chesi manner de service Mes si le Seignior navoit recieve pas homage del tenant c. Nede asc ' de ses ancestors il poit disclaimer en le tenancy quaÌ„nt il est vouch issint oust le tenant de son garrantie Sect. 145. Est tanta talis connexio per homagium inter dominum tenentem quod tantum debet dominus tenenti quantum tenens domino praeter solam reverentiam Bract. Fo. 78. Glan li. 9. ca. 4. Brit. Fo. 170. a. Ancient continued inheritance on both parties hath more priviledge and account in Law then inheritances lately or within memorie acquired Fol. 101. a. Warrantus vouchee is either to defend the right against the demandant or to yeeld him other Land c. in value and extendeth to Lands c. of an estate of Freehold or inheritance and not to any Chattell real personall or mixt saving only in case of a wardship granted with warrant for in the other cases concerning Chattels c. The voucher shall have his action of Covenant if
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
the Outlawry then may the Outlawry be plead in Bar of the action as in an action of debt detinue c. But in reall actions or in personall where damages be incertain as in trns. of Battery of goods of breaking his cloâ—e c. and are not forfeited by the outlawry their outlawry must be pleaded in disability of the person 9 Eliz. Dyer 262. 7 H. 4. 4. b. l. 5. 109. Foxleyes C. In the reign of King Alfred and after the Conquest no man could have been outlawed but for Felony the punishment whereof was death Mir. c. 1. S. 3. Vtlagatus waiviata capita gerunt Lupina quae ab omnibus impunè poterunt amputari merito enim sine lege perire debent qui secundum legem vivere recusant Fleta lib. 1. cap. 27. But now the Law is changed for avoyding of inhumanity c. Vide 2 Ass Pl. 3. 2 E. 3. tit Coron 148. In Bractons time and somewhat before process of outlawry was ordained to ly in all actions that were qu. vi armis which Bracton calleth delicta for there the King shall have a fine But since by divers Statutes Process of outlawry doth ly in Account Debt Deâ—inue Annuity Covenant Action sur le Case Action sur le Statute De 5 R. 2. and in divers other common or civill actions Bract. lib. 5. fo 421. 8 H. 6. 9. b. 40 E. 3. 5 c. 35 H. 6. 6. 40 E. 3. 2. Sect. 198. If an alien had issue in English before his denization that issue is not inheritable to his Father but if his Father be naturaliz'd by Parliament such issue shall inherit Ligeantia est vinculum fidei ligeantia eÌ„ legis essentia Et est duplex 1 Perpetua ista ligeantia est aut nata aut data 2 Temporanea quae eÌ„ aut localis aut limitata sc denizatio pro vita c. Vide libr fo 129. a. A man may be born out of the realm of England yet within the legeance as in Ireland c. An alien that is in league shall maintain personall action for an alien may trade c. but not reall or mixt actions An alien that is condemned in an information shall have a Writ of error to relieve himself sic c. If an alien be made a Prior or Abbot the Plea of Alien nee shall not disable him to bring any reall or mixt action concerning his house because he is in auter droit 29 E. 3. Br. Denizen 15. Sic vide diversitat In Littletons Case the tenant or defendant shall neither plead alien nee to the Writ or to the action but in disability of the person as in villenage or outlawry and Littleton is to be intended of an Alien in league for if he be an Alien enemy the defendant may conclude to the action Liure de entries Alien 1. Sect. 199. The judgment in a Praemunire is that the defendant shall be from thenceforth out of the Kings protection his lands and tenements goods and chattels forfeited to the King and that his body shall remain in prison at the Kings pleasure And a man might doe to him as to the Kings enemy and a man may lawfully kill an enemy 24 H. 8. Brook Coron 196. But by the Statute 5 Eliz. ca. 1. It is not lawful for any person tn slay any person attaint in praemunire c. Tenant in taile attaint in a praemunire shall forfeit the Land but during his life Vide lestat 16 R. 2. c. 5. There be three things whereby every subject is protect viz. Rex lex rescripta regis The law is the rule but it is mute The King judgeth by his Judges and they are lex loquens The process and the execution which is the life of the Law consisteth in the Kings Writs Rex tuetur legem lex tuetur jus A man attainted of Treason or Felony is disabled to bring any action for he is extra legem positus and accounted in Law civiliter motuus 4 E. 4. 8. There is a generall protection of the King and this extends to all the Kings loyall subjects c. and there is a particular protect by Writ c. And this is of two sorts one to give a man immunity from actions or sutes The second for the safety of his person servants and goods lands c. from unlawfull molestation or wrong The first is of right and by law the second are all of grace saving one for the generall Protection implieth as much Of the first sort some are cum clausula volumus and of these protections There be four kinds viz. 1 Quia profecturus 2 Quia moraturus 3 Quia indebitatus nobis existit of the matter 4 When any sent into the Kings service in war is imprisoned beyond Sea The former two are for staying of suits and actions in generall and for these nine things are to be observed 1 The cause of granting the protect must be expressed c. and it is of two natures the one concerns service of war as the Kings Souldier c. The other wisdome and counsell as the Kings Ambassador pro negotiis regni both these being for the publique good of the Realme private mens actions and suits must be suspended for a convenient time for jura publica anteferenda privatis jura publica ex privatis promiscue decidi non debent A man in execution in salva custodìa shall not be delivered by a protection 5 Mar. 162 Dyer 2 These protections are not allowable onely for men of full age but for men within age and for women as necessary attendants upon the Camp and that in three Cases quia lotrix seu nutrix seu obstetrix 19 H. 6. 51. Vide libr. qu. fo 130. a F. N.B. 28. l. Corpor. aggreg of many are not capable of protect profecturae or moraturae for the Corpor. it is invisible In every action or plea reall or mixt against two c. a protection cast for the one doth put the plea without day for all as in debt c. 9 E. 3. Prot. 80 81. 3 A protect profecturae must not be purchased pendente plito unless it be in a voyage royall But otherwise it is of a protect Moraturae 3 H. 6. prot 2. A protection cannot be cast but when the party hath a day in Court and when if he made default it should save his default c. 4. 6 H. 22. If a man hath a protection and notwithstanding plead a plea yet at another day of continuance after that a protection may be cast so at a day after an exigent but after appearance he cannot cast a protection in that terme untill a new continuance be taken * 22. F. 3. 4. And no protect either Profect or Morat shall endure longer than a year and a day next after the reste or date of it 39. H. 6. 39. * 4. The protection must be to some certaine place out of the Realm of England Lib.
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
the reversion to the grantee Vide Westcotes Case lib. 2. fo 60 61. If lessee for life granteth his estate to him in the reversion and to a stranger the joynture is severed and the reversion executed for the one moity by the act of the Law 7 H. 6. If a man make a lease for life and grant the reversion to two in fee the lessee granteth his estate to one of them they are not joynt-tenants of the reversion for there is an execution of the estate for the one moity and an estate for life the reversion to the other of the other moity Si home voet lesser terre a un auter par fait ou sans fait nient fesant mention que estate il avoit fert livery c. en ceo cas le lesse ad estate pur tinere de sa vie Quaelibet concessio fortissimè contra donatorem interpretanda est Legis autem constructio non facit injuriam Pl. Com. in Throgmortons case If a lease be made to two habendum to the one for life the remainder to the other for life this doth alter the generall intendment of the premises Et semper expressam facit cessare tacitum 30 H. 8. tit Joyntenans Br. 53. Dyer fo 361. Pl. Com. 100. Nota where the grant is impossible to take effect according to the letter there the Law shall make such a construction as the gift by possibility may take effect Benignae faciendae sunt interpretationes cartar propter simplicitatem laicorum ut res magis valeat quam pereat fo 183. b. Cognitio legis est copulata complicata Tunc unumquodque scire dicimur cum primam causam scire putamus scire autem propriè est rem ratione per causam cognoscere Arist 1 Metap Virg. 1. Georg. Felix qui potuit rerum cognoscere causas If a gift be made to two men and the heirs of their two bodies begotten the remainder to them two and their heirs they are joynt-tenants for life tenants in common of the estate taile and joynt-tenants of the fee simple in remainder for they are joynt purchasers of the fee simple and the remainder in fee is a new created estate but the reversion remaining in the Donor or his heirs is a part of his ancient fee simple Dyer 14 Eli. 309. Sect. 284. Lou terre eÌ„ done a. 2. females a les heires de lour 2. corps ingendres It hath been said that the husband c. should be Tenant pur le Curt ' living the other sister 17 E. 3. 51. 78. and that the issue of the one should recover the moity in a Formedon living the other sister 44 E. 3. Taile 13. 7. H. 4. 16. Corbets c. l. 1. fo 8. 84. 6. 4. Mar. Dyer 145. But Littleton hath resolved this doubt Vid. fo 183. a. If a man give lands to two men and one woman and the heires of their three bodies begotten they have severall inheritances For the Law will never intend a possibility upon a possibility Fo. 184. a. Sect. 285. If a fine be levied to two and to the heirs of one of them by force whereof he is seised he that hath Fee dyeth and after the joint-tenant for life dieth and an estranger abates in this case the heir may either suppose the Fee simple executed and have an Ass of Mordanc ou briefe de droit or he may have a scire fac to execute the fine or maintain a Writ of intrusion by which the heir supposeth that the Fee was not executed 11 H. 4. 55. F.N.B. 196. and 219. and he shall term it a remainder and yet when Land is given to two and to the heirs of one of them he in the remainder cannot grant away his Fee simple Sect. 286. 2 Jointenants de terre c. celuy que survesquist claima ad la terre per le survivor nemy ad ne poit de ceo claimer rien per discent de son compagnon c. Mes auterment est de parceners c. and the diversity is for that the Survivor doth claime above the grant c. and the heir by discent under c. If two joyntenants be of a terme and the one of them grant to I.S. that if he pay to him 10. l. deut Mich. that then he shall have his terme the grantor dyeth before the day I.S. payes the summe to his executor at the day yet he shall not have the terme but the survivor shall hold place for it was but in nature of a communication but if he had made a Lease for years to begin at Mich. it should have bound the Survivor 14 Pl. 8. 22. Pl. Com. 263. b. Hales case Ius accrescendi praefertur oneribus alienatio rei praefertur juri accrescendi If one joyntenant in Fee simple be indebted to the King and dieth no extent shall be made upon the land in the hands of the Survivor 40 Ass 36. F. N. B. 149. Pl. Com. 321. If a recovery be had against one joyntenant who dyeth before execution the Survivor shall not avoid this recovery because that the right of the moity is bound by it If one joynt-tenant in Fee take a Lease for years of a stranger per ft. indent and dyeth the Survivor shall not be bound by the conclusion because he claims above it c. If two joynt-tenants be in Fee and the one make a Lease for years reserving a rent and dyeth the surviving Feoffee shall have the reversion by survivor but not the rent because he claimeth in from the first Feoffer which is paramount the rent Dyer M. 2. 3. El. 187. Lib. 1. f. 96. and Lib. 6. fo 78 79. If one joynt-tenant granteth a rent charge out of his part and after release to his joint companion and dieth he shall hold the land charged because he claimeth not by the survivor in as much as the rel ' prevent the same 33 H. 6. 3 a. 9 El. Dyer 263. fo 185. a. But all men agree that if A. B. and C. be joynt-tenants in Fee and A. charge his part and then release to B. and his heires and dye that the charge is good for ever for B. cannot be in from the first Feoffer because he hath a joynt companion at the time of the release made and severall Writs of praec must be brought against them 37 H. 8. tit alienation Br. 31. 10 E. 4. 3. b. Sect. 287 Jus accrescendi prefertur ultimae voluntati Although an inâ—ant est unum indivisible tempore quod non eÌ„ tempus nec pars temporis ad quod tamen partes temp connectuntur and that instans est finis unius temporis principium alterius yet in consideration of Law there is a priority of time in an instant as here the survivor is preferred before the devise which Littleton distinguisheth by these words post mortem per mortem Pl. Com Fulmerstons case Two femes ioynt-tenants of a Lease for years one of
upon condition c. and dye his executors or administrators shall enter for the condition broken for they are privy in right and represent the person of the dead Vide 21 H. 7. 18. a. fo 214. b. c. If cesty que use had made a Lease for yeares c. upon condition the Feoffes should not enter for the condition broken for they are privy in estate but not privy in bloud 27 H. 8. 1. 4. Diversity is in case of a Lease for years where the condition is that the Lease shall cease or be void and where the condition is that the lessor shall reenter for there the grantee as Littleton saith shall never take benefit of the condition And note that where the estate or Lease is ipso facto void by the condition or limitation no acceptance of the rent after can make it to have a continuance otherwise it is of an estate or Lease voidable by entry Pl. 136. Brownings case 5. Diversity between condition in Deed and condition in Law As if a man make a Lease for life there is a condition in Law annexed unto it that if the lessee doth make a greater estate c. that then the lessor may enter of this and the like condition in law which doe give an entry to the Lessor the lessor himselfe and his heires shall not only take benefit of it but also his Assignee and the Lord by escheat every one for the condition in law broken in their own time 6. Diversity is between the judgement of the common Law and the Law at this day by force of the Statute of 32. H. 8. ca. 34. for by the Common Law no grantee or Assignee of a reversion could take advantage of a re-entry by force of a condition But now by the said Statute it is otherwise By which act it is provided that as well every person which shall have any grant of the King of any reversion c. of any Lands c. which pertained to Monasteries c. as also all other persons being Grantees or Assignees c. to or by any other person or persons and their heires executors successors and Assignees shall have like advantage against the Lessees c. by entry for non-payment of the rent or for doing of waste or other forfeiture c. as the said lessors or grantors themselves ought or might have had 26 H. 6. tit entreconge 49. Upon this act divers judgments c. have been given which are necessary to be known 1. That the said Statute is generall that the grantee of the reversion of every common person as well as of the King shall take advantage of condition Pl. 175. 76. Hill and Granges case M. 10. and 11 Eliz. 180. Dyer 2. That the Statute doth extend to grants made by the successors of the King albeit the King be only named in the Act. 3. That where the Statute speaketh of Lessees that the same doth not extend to gifts in Taile 14. El. Dyer 309. Winters case 4. That where the Statute speakes of Grantees and Assignees of the reversion that an Assignee of part of the estate of the reversion may take advantage of the condition As if Lessees for life be c. and the reversion is granted for life c. So if Lessee for years be c. and the reversion c. the grantee for years shall take benefit of the condition in respect of this word execution in the Act. Pl. 69. Kidwellies case 7 E. 3. 54. and Vide Dyer 309. 5. That a grantee of part of the reversion shall not take advantage c. As if the Lease be of three Acres reserving a rens upon condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is entire and against common right lib. 5. fol. 54. Knights Case Winters Case c. 6. That in the Kings case the condition c. is not destroyed c. 7. By act in Law a condition may be apportioned in the case of a common person as if a Lease for years be made of two acres one Burrough English and the other at the common law and the lessor having issue two sons dieth each of them shall enter for the condition broken and likewise a condition shall be apportioned by the act and wrong of the Lessee as in the Chap. of Rents l. 4. f. 120. Dumpers Case 8. If a Lease for life be made reserving a rent upon condition c. the Lessor levies a fine of the reversion he is Grantee or Assignee of the reversion but without atturnment he shall not take advantage of the condition P. 20. El. in Com. Ba. Dukes Case lib. 5. 112. b. Mallories Case 9. Diversity between a condition that is compulsory and a power of a revocation that is voluntary for a man that hath a power of revocation may by his own act extinguish his power c. in part as by levying of a Fine of part and yet the power shall remain for the residue because it is in nature of a limitation and not of a condition P. 39. El. and 40 41 H. Earl of Salisburies case in Court of Wards 14 El. Dy. 39. 10. If the Lessor bargain and sell the reversion by Deed indenture and inroll the Bargainee is not in the Per by the Bargainor and yet he is an Assignee within the Statute So if the Lessor grant the reversion in Fee to the use of A. and his heirs A. is a sufficient Assignee c. because he comes in by the act and limitation of the party albeit he is in the Post and the words of the Statute be To or By and they be Assignee to him although they be not by him but such as come in meerly by act in Law as the Lord of the villain the Lord by Escheat c. shall not take benefit of this Statute 11. If the Lessor bargain and sell the reversion c. Or make a Feoffment in Fee and the Lessee reenter the grantee or Feoffee shall not take advantage c. Without making notice to the Lessee l. 8. f. 92. Frances Case And 12. albeit the whole words of the Statute be for non-payment of the rent or for doing of wast c. yet the Grantees and Assignee shall not take benefit of every forfeiture c. but onely of such conditions as either are incident to the reversion as rent or for the benefit of the State as for not doing of wast for keeping the houses in repair for making of fences scouring of ditches for preserving of woods c. and not for payment of any summe in grosse delivery of corn wood c. So as other forfeiture shall be taken for other forfeitures like to those examples which were there put viz. of payment of rent and not doing of wast which are for the benefit of the reversion Dyer 309. Sect. 348 349. Seign Tenant le tenant
facit reruÌ„ nisi mens sit rea et furiosus solo furore punâ—tur And so it is of an Infant untill he be of the age of 14. Fo 247. b Also if the Father disseise the Grandfather and make a Feoffment in fee c without warranty the Grandfather dyeth albeit the right descend to the Father yet he cannot enter against his own Feoffment but if he die his Son shall enter and avoid the State of the Feoffee 16 Ass 27 21 H 7 31 Stanf. â—6 b 8 E 3 2 Coron 413 414 351 22 E 3 ibid 12 4 2 H. 7 2 3 E 3. enter Cong Statham 12 E 4 8. 39. H â— 4 Abbr ass 89. 39. H. 6. 43. 15. E. Discent 30. If Lands â—e given to two and to the heirs of one of them he that haâ—h the fees shall not have an action of waste upon the Satut of Gloc. against the joynt tenant for life but his heire shall maintaine an action of waste against him Sect. 406 407 408. A Dum fuit infra aetat ' lyeth as well for the Ancestor himselfe after his full age as for his heir And note where an Infant disseisor aliens the lands in fee that if the discent be cast the Infant being within age he may enter at any time either within age â—or after his full age And so it is if an Infant make a feoffment c. he may enter c and so in both cases may his heir 43 E 3 Enter cong vet N B 126 b F N B 192. 45 E 3 21. Sect 40â— fol 2â—8 a. Tenant in Capite makes a Feoffment in fee to the use of the feoffee and his heirs until the feoffor pay 100 l. to him or his heirs the feoffee dyeth his heir within age now hath the King the Wardship of the body and is intituled to the guard of the land But if the feoffor pay the 10â— l. according to the limitation the Wardship is devested both for the body and the land and so it is in case of a Condition for the discent which is the cause of Wardship is utterly defeated and Cessante causa cessat causatum Dyer 13 Eliz fo 298 299 So as there is no difference where the discent is disaffirmed by a Right Paramount as where the estate was never lawful as in the case of an Infant and where the discent is affirmed for a time the estate being lawfull and being after defeated by matter ex post facto by a Title of re-entry Sect. 410. Disseisor ad issue enter en Relâ—gion c. This discent shall not barre the entry of the disseisee for that the discent cometh by the Deed of the Father And the Law respects the original â—ct and that is his entry inâ—o Religion which is his own act whereupon the profession followed whereby the discent happened for Cuiusque rei potissima pars principium est And Origo rei inspici deâ—et Pl. Dame Hales Cases 6 E. 3. 4â— c. But it is said in the case of a bastardeigne and Mulier puisnâ— sâ—ch a discent shall binâ—e the Mulier and such an heiâ— by discent shall have his age to E 3. 55 fo 248. b. Nota if a man be Tenant or Defendant in a real or personall â—ction and hanging the suit the Tenant or Defendant enter into Religion by this the Writ is not abated because it is by his own act And so it is of a Resignation but otherwise it is of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c was the cause thereof Sed in praesumptione legis judicium redditur in invitum â—8 E. 4. 19. 9 E. â— 25. 52. 7 E. 4. 15. Bract. lib. 4. fol. 189. Sect. 411. No discent or dying seised can be of a Chattel A man seised of an Advowsâ—n in â—eâ— grants three Avoidances one after another and after the Church becomes void and the Grantor presents and his Clerk is admitted and instituted and after the Church becomes void again the Grantee may present to the second Avoidance for that he was not put out of possession thereof for as the lessor having the Freehold and Inheritance cannot disseise his lessee for yeâ—rs having but a Chattel that any discent may be cast to take away his entry so in the said case the Grantor hath the Franktenement and the Fee of the Advowson rightfully so as he cannot make any usurpation to gain any estate c. Also in respect of the privity c. the usurpation of the Grantor not put the Grantee out of possession for the two latter Avoidances Hill 18 El. Com. Banco Claim daver terres pur terme d'ans nest pas expulsment de le franktenement del heire que est eins per discent Sect. 412 413. Time of Peace is the time of Law and Right and time of War is the time of Violent Oppression which cannot be resisted by the equal Course of Law Cum silent leges inter arma fo 249. b. Successioâ— of Bodies Politique or Corporate is in the post and the heir of the natural man is in the per 7. E 3. 25 a. 5 E. 3. 13. 3â— A Body Politique is so called because it is to take in Succession framed as to that capacity by Policy and it is also called a Corporation or a body incorporate because the persons are made into a Body and are of capacity to take and grant c. And this body Politique or Incorporate may commence and be established three manner of ways viz. by Prescription by Letters Patents or by Act of Parliament Every Body Politique or Corporate is either Ecclesiastical or Lay Ecclesiastical either Regular as Abbots Priors c. or Secular as Bishops Deans Archdeacons Parsons Vicars c. Lay as May or and Commonalty Bayliffs and Burgesses c. Also every Body Politique or Corporate is either Elective Presentative Collative or Donative and again it is either sole or aggregate of many And this Politique c. Body aggregate of many is by the Civilians called Collegium or Vniversitas Lib. 3. fo 73. Dean and Chapter of Norwich CHAP. VII Continual Claim Sect. 414 c. SI disseisee fait Continual Claim a les tenemenes in la vie le disseisor comment que le disseisor de vie seisee en fee la terre discendist a son heire encore pâ—it le disseisee enter sur la possession le â—erre c. Nul poâ—t faire continnal Claime mes quant il ad title dâ—vant c. S 416. And yet in some cases a Continuall Claim may be made by him that hath Right and cannot enter If Tenant for years Tenant by Statute Staple Merchant or Elegit be ousted and he in the reversion disseised the lessor or he in reversion may enter to the intent to make his Claim and yet his entry as to take any Profits is not lawfull during the Term And the lessor or he in the reversion in that case may enter
law by summoners and vâ—iors and the land taken into the Kings hand by the Pernor Fleta l. 6. ca. 67 24. W. 2 ca. 48 4 E. 2. discent 51. Defalta is legally taken for non appearance in Court There be divers causes allowed by law for saving a mans default 1 By imprisonment 2. Per inundationem aquarum 3. Per tempestatem 4. Per pontem fractum 5. Per navigium substractum per fraudem petentis non enim debet quis se periculis infortuniis gratis exponere vel subjacere 6. Per minorem aetatem 7 Per defensionem summonitionis per legem 8. per mortem Attornati si tenens in temopre non novit 9 Si petens essionatus sit 10. Si placitum mittatur sine die 11. per breve de warr Dici 3 H. 6. 46. 38. E 3. 5. 12. H. 4. 13. 5 H 7. 3. F.N. B. 17. 4 H 5. challeng 153. Br. Saver defendant 45. Legally records are restrained to the Rolls of such only as are Courts of Record and not the Rolls of inferior nor of any other Courts which proceed not secundum legem consuetudinem Angl. Pl. 79. b. m. â— and 8. Dy. 242. 17 E 349 11. H 4. 26. b 2 H 6. 34 error Br. 73. 7 H 7. 4 19 Ass 7. l. 4. fo 52. Rawlins case Brit. cap. 17. l. 6. fo 11. Ientlemans case and 30. 45. lib 7. fo 30. l. 8. fo 60 b and 67. a. fo 260. a. During the term wherein any judiciall act is done the Record remaineth in the breast of the Iudges of the Court and in their remembrance and therefore the roll is alterable during that terme as the Iudges shall direct but when that terme is past then the Record is in the Roll admits no alteration averment or proofe to the contrary 7 H 6 2â— 19 H 6 6 If the Tenant or defendant be in prison hee shall upon motion by order of the Court be brought to the barre and either answer according to Law or else the same being Recorded the law shall proceed against him and he shal take no advantage of his imprisonment 18 El. Dy. 353. 3. m. Dy 12â— Pl. 232. Seignior Barkleyes case 16. H 7 11. b. 22. H 8 Record Br. 65 39. H 6 4 3 El. Dy. 187. lib. 6 fo 15. Edens case If a man in prison shall not be bound by a recovery by default for want of answer in Court of Record in a reall action which is matter of record à multo fort a discent in the Country which is a matter of deed shall not for want of claime bind him that is in prison Quod in minori valer valebit in majori quod in majori non valet nec valebit in minori 7 H 6 18 8 H 6 16. V.S. 418. A man in prison by processe of Law to be kept in salva arota custodia but yet Carcer ad homines custodiendâ—s non ad puniendos dari debet Sect. 439. If a man be upon the Sea aof England he is within the Kingdome of England c. And yet a tum mare is out of the jurisdiction of the Common Law and within the jurisdiction of the Lord Admiral 6 R 2 Protection 46. V. S. 1 8. 440 441. 677. And note Littleton saith not beyond the Sea or extra 4 Maria for a man revera may be infra 4. maria and yet out of the realme of England But infra 4. Maria or extra is taken by construction to be within the realm of England or dominions of the same 3 R. 3. continuall claim 13. 4. E 3. 46. If a man be out of the realm and a recovery is had against him in a praecipe by default it seemeth that he shall not avoid the recovery or by that meanes a man might be infinitly delayed of his freehold and inheritance whereof the Law hath so speciall regard and few or none go over but it is either of their own free will or by suit for what cause soever and he is not in that case without his ordinary remedy either by his writ of higher nature or by a quod ei deforcrat But outlawry in a personall action shall be avoided in that case quia de minimis non curat lex and otherwise hee should be without remedy V. S. 437. and note the diversity between that case of the imprisonment and this of being beyond Sea Fo. 260 b nota c Sect. 440. Excusatur quis quod clameum non opposuerit ut si â—ote tempore litigii fuit ultra mare quacunque occasione Veâ—us constans opinio Brac. l. 5 f 436. and 163. Brit fo 21 216. 26 H 8 c 18 5 and 6 E. 6 ca 11. By certifitate a thing done beyond Sea may be tryed F.N. B 196 29 Ass 11. l 7 f. 26 27. Calvins case Stat. 25 E 3 de proditionibus doth declare that it is treason by the common Law to adhere to the enemies of the King within the realme or without if he be thereof proveablement attaint of overt fact and that he shall forfeit all his lands c. Certain it is that for necessity sake the adherence without the realme must be alledged in some place within England and if upon evidence they shall find any adherency out of the realme they shall find the delinquent guilty 5 R 2 Tryall 54. 35 H. 8 ca 2 fo 261 b. * Dyer 360 contr * When part of the act especially the originall is done in England and parâ— out of the realme that part that is to be performed out oâ— the realme if issue be taken thereupon shall be tried heâ— by twelve men and those twelve shall come out of the plaâ—â— where the writ is brought for example it was convenantâ—â— by Indenture by charter party that a ship should Sail froâ— Blackney haven in Norf. to Muttrel in Spaine and there remaâ—â— by câ—rtain dayes 48 E 3 3 11 H 7 16 1 R 3 4. In an action of Covenant brought upon this Charteâ— party the Indenture was alleged to be made at Thetford Norfolk and upon pleading the issue was joyned whethâ—â— the said ship remained at Muttrel c. and it was adjudgâ— That this issue should be tryed at Thetford where the actiâ—â— was brought because there the Contract took his Originall c. P 28 El Constant Hughin Ban R l 6 fo 47 Dowdales Case An Obligttion made beyond the Seas may be sued here in England in what place the Plaintiff will 2 E 2 Oblig 15 Whether Bourdeaux in France be in Islington or no is not traversable Vide fo 261. b. If a man be disseised before he go over Sea or cometh into the Realm again before the discent the discent shall take away his entry Sect 441 By the Statute of 4 H 7 cap 34 five years after Proclamations made upon the Fine are given to him that right hath to make his claim or pursue his action where the Common Law gave him but a
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
estate for yeares be granted in fee and the lessor confirme the estate of the lessee for life he cannot afterwards attorn And so it is if the grantor before Attornment confirm the estate of the lessee for life in Tail c. If a feme sole make a lease for life or yeares reserving a rent and grant the reversion in fee and taketh husband this is a Countermand of the Attornment 11 H. 7. 19. If in the case that our Author here putteth of severall grantees if the Tenant attorn to both of them the Attornment is void because it is not according to the grant If a reversion be granted for life and after it is granted to the same grantee for yeares and the lessee Attorn to both grants it is void for the uncertainty 11 H. 7. 12. A multo fortiori if the Lord by one Deed grant his Seigniory to I. Bishop of London and to his heirs and by another Deed to I. Bishop of London and to his successors and the Tenant Attorne to both grants the Attornment is void for albeit the grantee be but one yet he hath several capacities and the grants are several and the Attorment is not according to either of the grants But if A. grant the reversion of black acre or white acre the lessee attorn to the grant and after the grantee maketh his election this Attornment is good for albeit the state was incertaine yet he Attorneth to the grant in such sort as it was made And so note a diversity between one grant and several grants and observe an Attornment good in expectation which passed by the election subsequent Sect. 553. Fol. 301. a. Note that when a man maketh a feoffment of a Manor the services doe not pass but remain in the feoffor untill the Freeholders do attorn and then the Attornment shall have relation to some purpose and not to other for albeit the Attornment be made many years after this feoffment yet it shal have relation to make it passe out of the feoffor Ab initio even by the livery upon the feoffment but not to charge the Tenants with any mean arrerages or for Waste in the meane time c. Temps E. 2. Attorn 48 E. 3 15. If a reversion of land be granted to an alien by Deed who is made Denizen and then the Attornment is made the King upon Office found shall have the land for as to the state between the parties it passed by the Deed ab initio P. 5 E. 3. Coram Rege Sussex in Thesaur 21 E. 3. 47. If a man plead a feoffment of a Manor he need not plead an Attornment of the Tenants but if it be material it must be denied or pleaded of the other side 34 E. 3. Double Plea 24. 42. Ass p. 6. And upon consideration had of all the Bookes touching this point whether the services of the Freeholders do pass wherein there have been three several opinions viz. some have holden that the services do pass in the right by the livery as parcel of the Manor but not to avow before Attornment as in the case of the Fine And others have holden that they do passe in right and possession to distrain without Attornment 26 E. 3. per que servitia 21. 8 H. 4. 1. b. 12 H. 4. 20 H. 6 7. 35 H 6 9 E. 4. 33. 13 H. 7. 14. a. 1 H. 7. 31. 4 E. 4. Attorn Br. 30. And the third opinion is that in this case the said services passe neither in possession nor in right but until Attornment remaine in the Alienor as Littleton here holdeth and so it was resolved P 15 Eliz. betweene Brasbitch and Barwell vide H. 14. Eliz Rot. 508. in Com B. Sect. 590 591. Fo. 324. Si home fait done en tail ou lease pur terme de vie ou pur terme dans del parcell del demesne d'un Manor c. Savant le reversion a tiel donor ou lessor c. puis il soit disseise del Manor c. le disseisor mor. seise c. son heir evant eins pur discent uncore tiel donor c. distreina pur le rent arere tiel reversion apres tiel disseisin est sever del Manor en fait comit que ne soit sever en droit And so note a diversitie between rents and services parcell of a Manor and rents and Services incident to a reversion parcel of a Manor And the reason of this diversitie is for that as long as the donee in taile lessee for life or lessee for yeares are in possession they preserve the reversion in the donor or lessor and so long as the reversion continue in the donor or lessor so long do the rents and services which are incidents to the reversion belong to the donor or lessor Neither can the donor or lessor be put out of his reversion unlesse the donee or lessee be out of their possession c. But if the donee or lessee make a regresse and regain their estate and possession thereby they doe ipso facto revest the reversion in the donor or lessor And note when a man is seised of a Manor and maketh a gift in taile or Lease for life c. Of parcel of the demesne of the Manor the reversion is part of the Manor and by the grant of the Manor the reversion shall passe with the Attornment of the Donee or lessee But if the Lord make a gift or a Lease for life of the whole Manor except bl acre parcell of the demesne of the Manor and after he grant away his Manor B. acre shall not passe because during the estate taile or Lease for life it is severed from the Manor And so note a diversity that a reversion of part may be parcell of a Manor in possession but a part in possession cannot be parcell of the reversion of a Manor expectant upon any estate of freehold But if a man make a Lease for yeares of a Manor except B. acre and after grant away the Manor B. acre shall passe because the freehold being entire it remaineth parcell of the Manor and one praecipe of the whole Manor shall serve But otherwise it is in case of a gift in taile or Lease for life excepting any part there must be severall Writs of Praecipe because the freehold is severall 18. Ass p. 2. 38 H. 6. 33. Pl. Com. Fulmerstons case 103. lib. 5. 11. 22. 25. 19 E. 2. breve 845. 4 E. 3. briefe 713. Now let 's Attorne to the precedent Sections Sect. 554. Fol. 311. a. No man shall attorne to any grant of any Signiory rent service reversion or remainder but he that is immediately privy to the grantor Sect. 556. Fol. 311. b. Here observe a diversity betweene a rent service and a rent charge or a rent secke And therefore without respect of any privity the disseisor onely in case of a rent charge shall attorne because he is Tenant of the freehold but in case
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
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
wrote A lineal Warranty and Assets was a barre to the estate Tail when Littleton wrote 26 H. 8. c. 13. 33 H. 8. c. 20. 5 E. 6. c. 11. St. pl. Cor. 18. A Common Recovery with a voucher over and a Judgement to recover in value was a barre of the estate Tail when Littleton wrote 12 E 4. 19. Taltarums Case And of Common Recoveries there be two sorts viz. one with a single Voucher and another with a double Voucher and that is more common and more safe there may be more Vouchers over Vid. Sect. 690. vide l. 3. f. 5. Cuppledicks case and fo 94 97 106. vide post ** If the King had made a gift in Tail and the donee had suffered a Common Recovery this should have barred the estate Tail in Littletons time but not the reversion or remainder in the King And so if such a donee had levied a Fine with proclamation after the Statute of 4 H. 7. this had barred the estate Tail although the reversion was in the King 38 H. 8. Tail Br. 41. Pl. Com. fo 555. 29 H. 8. Dyer 52 ** Com. Recoveries c. Vide l. 1. f. 62. Capels case l. 2. f. 16. 52 74 77. l. 6. f 41 32. l. 10. f. 37. Mary Portingtons case But since Littleton wrote a Common Recovery had against Tenant in Tail of the Kings gift c. is no barre c. by the Statute of 34 H. 8. c. 20. And where the words of the Statute be Whereof the reversion or remainder at the time of such recovery had shall be in the King these ten things are to be observed upon the construction of that Act. 1. That the estate Tail must be created by a King and not by any Subject 2. The King must have the reversion at the time of the Recovery 3. The reversion or remainder cannot be barred but where the estate Tail in possession is barred l. 8. f. 77 78. Seignieur Staffords case 4. If a Subject make a gift in Tail the remainder to the King in fee the estate Tail may be barred by a Common Recovery causa patet l. 2. f. 52. Cholâ—leys case 5 So it is if the King had the remainder by discent 6. The word Reversion in the body of the Act hath reference to these words given or granted and Remainder hath reference to these words otherwise provided As if the King in consideration of money or of Assurance of Land or for other considerations by way of provision procure a Subject by Deed indented and inrolled to make a gift in Tail to one of his Servants and Subjects for recompence of service or other consideration the remainder to the King in fee and all this appear of Record this is a good provision within the Statute and the Tenant in Tail cannot by a Common Recovery barre the estate Tail So it is if the remainder be limited to the King in Tail bus if he be limited for years or for life it is otherwise Lib. 2. fol. 16. Wisemans case 7. Where a Common Recovery cannot barre the estate Tail by force of the said Statute there a Fine levied in Fee in Tail for lives for years with proclamation according to the Statute shall not barre the estate Tail or the issue in Tail where the reversion or remainder is in the King by reason of these words in the said act The said Recovery or any other thing or things hereafter to be had done or suffered by or against any such Tenant in Tail to the contrary notwithstanding which words include a Fine levied by such a donee and restraineth the same P. 31. Eliz. Rot. 1645. Notleys case B. C. 8. But where a Common Recovery shall barre the estate Tail notwithstanding that Statute there a Fine with proclamation shall barre the same also 9. Where the said latter words of the Statute be Had done or suffered by or against any such Tenant in Tail the sense and construction is where Tenant in Tail is party or privy to the Act be it by doing or suffering that which should work the barre and not by meer permission he being a stranger to the Act. 10. Albeit the Preamble of the Statute extends onely to gifts in Tail made by the Kings of England before the Act viz. hath given and granted c. and the body of the Act referreth to the Preamble viz. that no such fained Recovery hereafter to be had against such Tenant in Tail so as this word such may seem to couple the body and the Preamble together yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth That the makers of the Act intended to extend it to future gifts and so is the Law taken at this day A Recovery in a Writ of Right against Tenant in Tail without a Voucher is no barre of any gift in Tail If Tenant in Tail the remainder over in fee cesse and the Lord recover in a Cessavit this shall not barre the estate Tail for the issue shall recover in a Formedon neither were either of these barres when Littleton wrote 33. E. 3. Judgement 252. 3 H 6. 55. 10 H. 6. 5. 14 E. 4. 5. b. 15 E. 4. 8. F.N.B. 134. b. Pl. Com. 237. 28 E. 3. 95. F.N.B. 28. I. Sect. 702. Fol. 373. b. Nemo praesumitur alienam posteritatem suae praetulisse If a man that is innocent be accused of Felony and it be found that he fled for the Felony he shall forfeit all his goods and chattels debts and duties 3 E. 3. Corone Staf. But yet the general Rule is Quod stabitur praesumptioni donec probetur in contrarium Bract. l. 1. c. 9. It hath been attempted in Parliament that a Statute might be made That no man should be barred by a Warranty collateral but where assets descended from the same Ancestor but it never took effect for that it should weaken common assurances Rot. Parliament 50 E. 3. num 77. Sect. 710 711 712. If husband and wife tenants in especial Tail have issue a daughter and the wife dye the husband by a second wife hath issue another daughter and discontinueth in fee and dyeth a collateral Ancestor of the daughters releaseth to the discontinuee with Warranty and dyeth the Warranty descendeth upon both daughters yet the issue in Tail shall be barred of the whole for in judgement of Law the entire Warranty descendeth upon both of them 5 E. 2. garr 78. l. 8. fo 41. Sims case Here note That when one Coparcener doth generally enter into the whole this doth not devest the estate which descended by Law to the other unlesse she that doth enter claimeth the whole and taketh the profits of the whole Vide Sect. 398. Otherwise it is after the parceners be actually seised the taking of the whole profits or any claim made by the one cannot put the other out of possession without an actual putting out of disseisin And
Leafes for three lives or 21 years who may now make them 66 Lease when it shall begin 58 Livery quotuplex quomodo 60 where not necessary in a thing corporeal 61 287 Livery to whom to be made ib. where not necessary 62 Legis Intentiones 94 Lex est Ratio Artificialis 106 Ligeantia quid quotuplex 134 Ley gager 178 Livery must pass in a present Freehold or not at all 221 222 Logick its use in Law 246 Laches of an infant what it effects 260 Of a Feme where binding where not 261 Livery deins view 270 Livery to one absent cannot be sans fait 403 Lyen personal differs from the Lyen real 448 M Mortmain what its effect 2 Maxime why so called 10 Messuagium what it doth involve in the Law 67 Manerium unde 79 Moratur in lege quid est propter quod quotuplex quomodo 89 Marriage tendred and refused the penalty what 95 Monasteriorum quot 105 Mesne 108 Mayhem quid 132 Manumissio quid quomodo efficitur 143 quotuplex ib. Mesualty revived 160 Mesualty extinct ib. Moyety who hath and who hath not how disposable 193 Mortgage duplici sensu 207 Mulieratus filius barred 206 Modo forma when in pleading they are material 309 Mise what 323 Mortmain an affirmation of the alienation where 372 Manutenentia unde 417 Statuto against it explained 418 N Name Christian and Surname when necessary 3 Nobility the inheritance in it how many ways 14 Nonsuit when 145 Nonsuit regularly no barre ib. where it is a barre ib. Nonsuit before appearance not peremptory why 146 Non Compos mentis who shall plead it 262 Nemo potest c. 339 Nobilities suppressed 436 Nonage tryed by inspection 437 O Office granted when void 3 Office who is capable of it ib. Occupant who against whom of what how prevented 53 54 Ordinarius unde ejus authoritas 105 Obligatio quid 177 Offices forfeited by Non-user where 243 where not ib. Office relinquished what it effects ib. Origo Rei c 274 Omnis Ratihabitio c. 275 where it disableth 317 Officium Ordinarii 379 Officium Judicis de fine levando 439 P Plea of Extra Feodum hors de son Fee the difference 1 Purchase who have capacity 2 for what purpose ib. Purchase by what name good 3 Praecipe of land by what name 4 Probatio quotuplex 6 Praesumptio quotuplex ib. Presumption when it moves a Jury ib. Possibility sur possibility not intended 179 Purchase by ten Conveyances what they are 10 Proximum duplici modo ib. Purchases first regarded 11 Professio fratris where 13 Placitum unde 14 Prerogative what 102 Parsons Ecclesiastical 103 Parliamenti jurisdictio membra alia incidentia 114 Praescriptio quid à quibus 118 ejus incidentia 118 de quibus praescribatur 119 Parliamenti Actor ' differ 120 Prescription how pleadable 124 Praemunire the judgment 135 Protectio quibus efficitur ib. Protectio quotuplex ib. observanda quae 136 137 quam diu durat 272 Professio quod consequentia 139 140 Protestatio quid 128 Pleas where tryable 129 Proprietas cui quotuplex 15◠Parceners who 170 many One Heir 171 they have but one Freehold in respect of a strangers Praecipe ib. Parcenary vel Arithmetica vel Geometrica proportione 172 Partition when good ib. 179 quotifariam 173 when by Writ how returned 175 who are bound 176 Privities differenced 175 Partitione fac by the Stat. 32 H. 8. against whom 181 Parceners by Custome who 182 Per quae servitia who may have it 269 Prisoner not bound where 275 276 how kept 277 Privity where requireable in a Release 293 Privity quadruplex 294 Purpraestura quid 303 Principles in Law not to be changed 310 Placitum unde quomodo 334 335 336 Placitum ambiguum 335 Possession not lost of things that lie in grant 337 Privation and Translation all one with death where 362 Parson his estate to several respects 374 Parson what actions he may have 374 what he cannot have 374 Parson cannot make discontinuance ib. Parson shall have ayd of whom ib. Parsons Ecclesiastical what estates they may make at this day 375 376 Parson may charge the Land how 378 Plenary what c. 379 Presentation revocable by the King 380 Praecipe lyeth against one that hath but a Freehold in Law 402 Praecipe where damages are to be recovered no Tenure no Pleas 406 Q Quarentina what to whom of what 27 Quia Emptores terrar ' its effect 56 Que estate where in what and how pleadable 125 Queen her Prerogative 141 Quaestio Juris per quos c. 128 Quaestio facti per quos c. ibid. Quis Juris clamat where it lieth and what is effected by it 354 Quod ei deforceat where what it is 395 Quare impedit where it lieth 380 R Rent out of what it may bee reserved and out of what not 58 Reservation differs from Exception how 59 Remanere its signification 61 Relief how much paid 87 97 what it is the remedy for it 97 Relief in Soccage quanti 101 de quibus praestationibus ibid. Ransom quid 132 Retraxit quid quotuplex 145 Retraxit a Barre ibid. Rem what quotuplex 148 out of what 149 Reservation of what and to whom 149 150 Void where 215 216 Rents and Annuity differ ib. Remedium duplex 153 Rents extinct and suspended where 156 157 improved ibid. incident to the reversion 350 Release of a Seigniory 159 160 Reversion its incidents 160 Remedies favoured in Law 161 Redisseisin joyntenancy is a generall plea 162 against whom it lieth ibid. Rents what are disseisins of them 166 167 168 Rent granted sans fait 175 Rescous when it may be made 166 167 Release its severall operations in Law 197 by what words it enureth 207 Rent accepted will not make good a void estate 217 Revocation of uses 247 348 Records what they are 276 Roll alterable ibid. Relaxatio quotuplex ratione subjecti objecti 281 Release in Law ib. what 282 284 290 Release to enlarge an estate requires privity 296 Right favored in Law 298 Release of Right and Action differ 299 300 Release to two disseisors who operateth c. 300 301 Right and Title diverse 301 Release to mesualty suspended 307 Release good to a Tenant in Law 313 Release of actions personals how far it extends or reals onely or both their several extents in barre 315 316 317 Robbery what 317 Remainder good though the particular estate be destroyed where 327 Remainder without a particular estate where 328 Right of Advowson at the Common Law 379 Remitter quid quomodo 383 Remitter to Privity is Remitter to Accessory 386 Remitter to Tenant in Tail 390 Remitters favored in Law 394 and differ from Descent ib. Remitter to them in Remainder 395 Remitter works no Remitter till it falls in possession 402 Recovery by a faint Action worketh a Remitter 404 Remitter and Recontinuance differ 408