Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	lease_n	life_n	tail_n	1,422	5	9.7324	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59386	Rights of the kingdom, or, Customs of our ancestors touching the duty, power, election, or succession of our Kings and Parliaments, our true liberty, due allegiance, three estates, their legislative power, original, judicial, and executive, with the militia freely discussed through the British, Saxon, Norman laws and histories, with an occasional discourse of great changes yet expected in the world.	Sadler, John, 1615-1674.	1682 (1682)	Wing S279; ESTC R11835	136,787	326

in affirmance of the Common Law As appeareth not only by Bracton and Fleta but by Glanvil who did write before the Charter and by all the Saxon Laws which were the samplers to King Henry the first But how tender our Law hath always been in matters that concern Estate or Liberty may well appear by all the Executions grantable for Debt or Dammages The Merchant and the Staple Statutes are and were by Statute not by Common Law They seem as sweeping Rain and Storms that drive away the Body Goods and Lands in Fee at time of Recognition or accrewing since but none in Tail but during life of him that was the Cognisor Nor Copyhold or Goods or Leases for a Term of years but only what was in possession at the Execution done They are fore-known and therefore may be well avoided by all such as do not choose their own destructions And there is a tender care in Law not only of exact and punctual Recognitions and recording of them but in case of forfeit upon a Certiorari sued forth from the Chancery and not before return thereof a Capias shall be granted on the Statute Merchant for the Body only if it be a Laic and if Laic be not found and so returned into the Kings Bench or Common Pleas then on pauze of divers months the exigent may be awarded But in Statute Staple on the first Return of Certiorari may the Execution issue forth returnable into the Petty Bag of all it seems the worst in this But the Merchants Court Aequitatem summam desiderat although a kind of Peepoudres as Bracton and the Notes on Fortescue Upon a Recognizance a Capias doth not go before a Scire Facias be Returned into the Chancery Then a Capias or a Fieri Facias or an Elegit at the choyce of Cognisee as in other Common Judgements And of these the fieri facias is the mildest and the oldest by the Common Law It toucheth Goods and Chattels only such as are the Parties Own not lent by or Leased to another For although the Sheriff find them in the Parties Use and full Possession as he thinks yet may he be a Trespasser in taking such and so may run the hazard of an Action ere he be aware Nor did the old Levari facias seize the Land but Corn or that which grew thereon An Elegit hath its Name from his Election or his Choice that sues it out Who so concludes himself from other Executions This did come by Statute not by Common Law and toucheth Half the Fee and all the Goods but yet with Salvo to Contenement he must not lose his Oxen or his Cattle for his Plough For then he cannot live and keep his Family So Tender is our Law for all Estates and Livelihood Nay this Extent must not be made by Sheriffs who may not divide a right but by a Iury of Inquest And so must be Returned and preserved on Record as the first Capias with all mean Processe must or else it shall be nothing worth as may appear at large in the fourth and fifth parts of the great Reports Hoes and Fulwood with divers other Cases And the second of Westminster that giveth this Elegit doth require both Extent of Lands and prize of Goods to be Reasonable that is by Inquest of Twelve and so returned of Record As is cleared in the Commentator See also Littletons Parceners A Capias ad Satisfaciendum taketh the Body but it is by Statute only for it did not lye by Common Law in Debt or Dammages but only where the Original Action was for Forceable Trespass Vi Armis Which is Now crept into every Trespass But of this Sir William Herberts Case in the third part of Reports It may be forbidden again by Statute as it was first granted and that justly too for ought I know if other course be taken for the payment of Just and Reasonable Debts For the Capias as now managed is a great mischief and divers times to the utter ruine of the Debttors whole Family And yet but very little advantage to the Creditor except the Debtor escape and so the Sheriff come to pay the Debt or except he dye in Prison and the Plaintiff get an Elegit for the Debtors Goods at his death or half his Fee-Simple which he had at the time of Judgement or after it For an Action for Debt or Dammages doth but respect the Person and the Law attendeth not what Lands were enjoyed at the Original or before the Judgment But an Action brought against an Heir may aim at Land and so may charge it although he Aliene while the suit dependeth Neither shall I need to add that all these Executions must be sued out For this is required by Law except in the Kings Case within one year and a day after Judgment Yet they may be continued after and by a scire facias be renewd or repealed till the Judgment have Full Execution But this was also given by Statute and to this may the Debter plead although he cannot plead against an Execution Yet it may be suspended by a Writ of Errour and Recognizance according to the Statute of Iames and 3 Caroli And without a Writ of Error after judgement if the Defendant have matter to discharge him of the Execution still the Law is open for him And he may relieve himself by a Writ of Audita Querela And in case of Elegit as soon as the Debt is satisfied the Debtor may enter on his Lands again and if he conceive the Creditor satisfied by casual profits he may bring a scire facias upon which the Creditor may clear how much he hath received of the Debtor's Estate Unto this occasional discourse I shall only add that grand maxime of our Law that Executions ought to be more favourable than any other Process of Law whatever Of which the great Judge upon Littletons Releases and the second of Westminster in Edward the First And for Executions for the Kings Debt's restrained by the great Charter I have little to add to the Comment on the eight chapter of that Charter But the twelfth of Articuli super Chartas hath afforded a Writ commanding the Sheriff to accept of Sureties else an Attachment lieth against him or the party may bring an Action against the Shetiff that refuseth Sureties It is a maxime in Law that a mans House is his Castle so that the Sheriff cannot break it open for an Execution But upon a Writ of Seisin or Possession the Sheriff and other Officers upon suspicion of Treason or Felony may break open an House and so also in common Executions where the King is a party But in all such Cases first the Sheriff must request the door to be opened And the First of Westminster doth also require solemn demand of Beasts driven away into a Castle or Fort which is a kind of vetitum nomium which may be regained By Withernam Which Case I cite the rather because of

his Priviledges was to be free from the Justies of either Bench and of Assize Which is one of the first Records for the antient Benches But it may not be impossible to trace them thorow some Elder times For the Saxon Law so often repeated and confirmed that none should complain to the King but want of Right or against summum jus at Home might in modern Language be translated Thus. The Writ of Right must abide the Baron or Bayliffe For it cannot fall to a Copyhold Steward except the Lords default or consent or the Tenants suit procure a Tolt to lift it up to the County Court Or a Pone place it in the Common Pleas. That such a course was antient may be gathered from the Mirror Asser and others of Alfred Edgar Canute Ethelred and of the Tolt before in King William To which I may add the Writ of Right in the third Book of Reports brought by I. de Beverlace against Walter of Fridastern and by a Tolt removed from the Court Baron to the County and for default of the Baron how it must be falsified we may touch anon it was concluded before Ranulph de Glanvil Sheriff of Yorkshire Glanvil is clear enough for the course of removing to higher Courts and of the Writ de Pace stepping between the Combat on the Writ of Right and Assize Coram justitiis in Banco sedentibus and although this Book intituled Glanvil was not written till about Henry the 2d yet it is plain enough that he speaketh of Antient Custom His words are very considerable The grand Assize saith he is a Royal benefit granted by the Parliament Clementia principis de Concilio procerum populis indultum as being that which saved blood and did oft prevent the Combat on the Writ of Right and of this he speaketh in the third of the same Book as of a very old and antient Custom Secundum jus consuetudinem Regni antiquam A weighty expression from so antient an Author which may possibly lead us higher than the Saxon times For we may find the Duel or Combat among the Gaules from British Druides as among the Germans also whence our Fathers came Nonnunquam etiam armis de principatu contendunt So of the Gauls or British Druids He that was like to know it and of those and Germans Tacitus and Diodorus Siculus before Aventinus Some observe it in the Salique Law and among the Laws of Charlemaign and that the Longobards did bring it into Italy where it was also setled by Law But of our Ancestors combats in another place I know not any Fines upon Record till Richard the First But Stowels Case in Plowden may inform us that they were before the Norman And we need not doubt the Books of Edward the third speaking of Benches settled in Henry the first but I do not remember the phrase of Capitalis Iusticiarius noster till great Charter which repeateth elder Customs Goodwin the famous Earl of Kent among the Saxons had two Sons that in as good an Author as Huntington are stiled Regni Iusticiariis the phrase is common in Hoveden and others of the times of Clarendon Assizes And K. Edgar had a Cosin Ailwin who was totius Angliae Aldermannus which is supposed Lord Chief Iustice by a Learned man besides the best though yet imperfect Glossary But it might denote the Lord High Constable Of which before in William the first And William the 2d found great Odo of Baieux setled L. Ch. Justice of England Iusticiarius totius Angliae So Matth. of Westminster and Huntingdon calleth him Iusticiarius and Princeps and Moderator totius Angliae in Wigornensis He is Custos Angliae And the phrase of Iusticiarius is also in Matth. Paris of William the first Iusticiarii in Banco Regio of after times as also placita de Nova disseissena before Justices in Eyre But he speaketh of placita lethifera the Pleas of Life and Death yea even in Bishops Courts about the Normans coming in But in Polydore we find out 4 Terms with divers other elder Customes ascribed to the first Norman But that which he addeth of the place for these Courts to be at the Kings appointment might be true till the Law fixed the Pleas which may be long before our Charter of Henry 3d. where it is confirmed not created But for the Kings Bench the Return was coram Nobis ubicunque c. and for the Pleas coram Iusticiariis nostris apud Westmon That which Virgil addeth of the Iudges in Westminster and of those higher beyond appeal and of Iustices of Peace setled by the Conqueror as he saith Sheriffs were in every County may be more considered For it may be as much too late as some have thought it too early They which presume to make K. Henries Cubit the first Standard of Winchester must refute the old Saxon Laws of which before For those may seem to deserve as much credit as Malmsbury other marks That he did confirm the Curtesie d' Angletterre I may yeild to the Mirror and other Authors but not that he first began it For the Statute of Kentish Customs and those that treat of Gavel-kind may shew us an Older Tenure by Curtesie there also where the Tenant had no Issue And this may teach us whence the like Custom came into Ireland as also to be Curialitas Scotiae which our master seemeth to forget when he saith Que ne'st use en auter Realm forsque tant solement en Engleterre But his Commentator he lyeth in this and in divers other things In case Entails this English Curtesie is very remarkable in which the Book of Cases have great diversity But those that perswade us there was no Land in Tayles before the 2d of Westminster in King Edward the first which are all that subscribe to Littleton must interpret the Laws of King Alfred much otherwise than I can do For the 37th Chap. of his Laws is to me much clearer for Lands Entail'd then is all the Statute de Donis Conditionalibus One Case of the Courtesie may be considered for the Militia If Land in Capite descend to a Woman who upon Office found intrudeth on the King and taketh an Husband and by him hath Issue and then dieth yet cannot the King eject or detain the man but he shall be Tenant by the Kingdoms Curtesie although he came in upon Intrusion Which seemeth to hint that Our Law did chiefly intend the Kingdoms good defence and service which might be performed by such an intruder rather than the Kings pleasure or his bare Prerogative in this which is thought so great a Prerogative of Tenure in Capite For which the Comments on Magna Charta and the Statute of Prerogative with Littletons Dower and Curtesie are clear enough To Henry the first they also ascribe the Curtesie of saving the wreck from his Exchequer if there were so much as a Cat or a breathing Creature let in the Ship I do not deny him to be