felony ib Removing of the prisoner out of the Kings bench to the Countrey 78 A man takes the Church and will not abjure ib Church serves for forty dayeâ— 79 Abjuration and day to doe it ib Sanctuary pro vita hominis ib Grant or prescription to have Sanctuary for debt good and where not 80 Church suspended ib Church and Sanctuary ib Abjuration discharges felony ib Abjure for petty larceny ib Judgement of life and member is felony ib Corporations Fail of the name of corporat ex parte quer ex parte def diversity ib Quere 81 Abbie extinct ib Quere ib Creation and gift in one patent ib Patent to two intents ib Costes 71 Costes in a Quare impedit 72 Penalty given by Statute ibid Nonsuit ib Defendant shall have costs by Statute ib Covenant 72 Covenant without words of Covenant for him his heirs and execut ib Coverture 73 Deed inrolled by a feme cover by the common Law and by custom diversity 73 London ib Count 73 Count against the tenant and prayee in aid 73 Court Baron 74 T is no Mannor without Suitors ib Where Steward or under Steward may let by copy and ècontta ib Quere ib Customs 74 Custom per tot Angliam and Custom in a City or County Diversity 74 Damages 76 Damages abridged and increased upon inquest of office ib Contra upon issue tried betwixt parties ib Costes ib Where attaint lies where not Default Default after réceit 76 Demurrer 77 Demur upon office ib For what tenure livery due to the King ib Misrecital of a Statute 77 Denizen See Tit Alien 77 Denizen and Alien ib King cannot alter his Law by his Patent ib Escheat ib Deputie 78 Office assigned over 78 Detinu Debt 78 Debt upon Indent of Covenant in which are words obligat ib Where payment is a good plea in Debt without acquittance or writing ècont Shewing of deed ib Once barred upon an obligation t is for ever ib Debt for release ib Devise 80 Testament by a feme covert by assent of the husband ib Countermandable after her death ib Devise by the husband to the wife ib Estate for life by intent and devise good by implication ib Devise to a common person in London and devise in Mort. in London Diversity 81 Where survivor shal not hold place in a devise ib In feodo simplici ib Where all the executors shal sel and where one may ib Quere ib Devise that his executors shal sel post mortem I. S. 82 Devise that the Feoffees shal make an estate where he hath no Feoffees ib Sale of Land by executors after disseism recovery 82 Fine levied or discent 83. Title of entry and right of entry diversity ib Where the property is devised and where the occupation diversity ib Devise the occupation ib Devise that every one shal be heir to the other ib Words to make a remainder 84 Devise to do at his pleasure ib Where the heir may waive a devise and ècontra Discent ib Diversity ib Devise tols a discent and no remitter 85 waive devise ib Divorce 85 Acts executed before the divorce ib Diversity ib Cui ante divorcium ib Discent 86 Remainder to the right heirs ib None can be heir to a man attaint ib Gavelkind ib Diversity ib Casus Sir John Hussey 87 Ouster l' main ib Heirs males name of purchase ib Treason 88 Diversity where the ancestor hath some estate where not ib Remainder 89 Remainder ib Remainder ib Remainder in abeyance 90 Remainder Heredibus Mascul de corp rectis hered Diversity ib Discent to an heir in ventre mirs ib Recovery against Tenant in tail the reversion in the King ib The King tenant in tail cannot discontinue by grant by patent 91 So t was determined in the case of the Lord Barkley ib Discontinuance of proces 92 Diversity betwixt discontinuance and parol saus jour ib Dismes Tythes 92 Lay man shal pay Tythes for spiritual land otherwise of a man spiritual ib Disseisor 93 Lease of land of another man ib Commander is a disseisor ib Distress Pound overt ib Pound breach ib Done Gift 94 What passes by words omnia terras tenementa ib Gift of a Chattel by the King ib What passes by grant of omnia bona ib Dower 95 Dower of a rent reserved upon a lease for years and for life ib Judgement cesset executio ib What Joynture shal be a bar of Dower and what not ib Devise by the husband to the wife ib Dum non fuit compos mentis 96 Fine levied before a Judge off non saue memory and a gift of an office by him diversity ib Ejectione Custod 96 Ejectione custod of a rent before seisin ib Contra of land ib Enquest 97 Where a Peer of the Realm is party Knight shal be in the Jury ib Quere ib Enquest taken de bene esse ib Enquest recharged after Verdict ib Entre Congeable Lawfull Entry 97 Land given habend to the grantee and â—eâ—â—ditâ—pro termino no vita ib Where he in reversion shal falsifie recovery had against tenant for life where not 98 Aid prayer of a stranger is cause of forfeiture ib Entry Lawfull where not ib Recovery against Cestuy que use in tail ib Recovery against Cestuy que use in tail 99 And the entry of the feoffes tolled ib Use in tail ib Quere 100 Equity ib Exposition of a Statute ib Fine by ten in tail in use or possession ib Casus Wimbish ib Recovery void 101 Averment ib Recovery upon a true title falsified ib Covin ib Entry or distrain upon the Patentee of the King contras upon the King ib Who shal travsere an office ib Entry by a purchasor of a reversion for condition ib Equity ib Error 103 Teste misordred in a writ ib Escape First Sheriff suffers the escape and retakes and the second Sheriff suffers him to escape again ib Escheat 104 Foundership escheated or forfeited ib Heir ib Writ of escheat where the Tenant died not seised ib Right of entryâ— escheat ib Acceptance ib Disseisor 10 Diversity ib Acceptance ib Alience ib Essoigne Essoign upon the vJew or voucher ib Error ib Diversity ib Estates Casus Sir T. Lovel heredib mascul by Patent of the King and in grant of a common person diversity 106 Estate in fee during the life of I. S. ib Grant or Feoffment and devise diversity ib Diversity ib Tail executed by reason of an immediate remainder 107 Deviâ—ee shal have fee without words heredibus or imperpetuum ib Estoppel Prescription gon by acceptance of a grant ib Who shal plead a Record for estoppel ib Privity 108 Respit of homage by 2. ib Livery ib Partition ib Lease confessed and avoided ib A man makes a fine upon an indictment of extortion or trespass and after pleads not guilty 109 The entry in making a Fine ib Protestation ib Estoppel by pardon pleaded ib Quamdiu lease for years of his own land shall be an estoppel ib Stranger 110
such will is made and some of the Executors refuse and the other prove the Testament those or he which proves the Testament may sell by the Statute B. devise 29. 31. where t is expressed that t was doubted at Common Law if the sale by one executor were good or not B. Devise 31. And by some where a man wills that the Land shall be sold post mortem I. S. by his Executors and makes four Executors and dies and after two of the Executors dies and after I. S. dies there the two Executors that survive may sel for the time is not com til now 30. H. 8. B. Devise 31. T was said that Baldwin Shelley and Montague Justices determined for Law That where a man hath Feoffees to his use before the Statute of uses made 27. H. 8. and after the same Statute and also after the Statute of 32. H. 8. of Wills he wills that his Feoffees shall make an estate to W. N. and his heirs of his body and dies that this is a good Will and devise ratione intentionis c. 38. H. 8. B. Devise 48. the end If a man devises his land to be sold by his Executors and dies the heir enters and after is deseised yet the Executors may sell and the Vendee may enter B. Devise 36. Entre congeable 134. the same Law if the heir suffer a Recovery or levies a Fine And the same law by some where a man disseises the heir dies seised and his heir enters the Executors shall sell and by the vendee may enter for he hath no right nor no action is given to him for he hath but a Title of entry by the sale and therefore he may enter for otherwise he hath not any remedy by Hales Justice 1. E. 6. B. Devise 36. Agreed for good Law that the occupation of a Chattel may be devised by way of Remainder but if the thing it self were devised to use the Remainder is void for a gift or devise of a Chattel for an hour is for ever and the donee or devisee may give sel and dispose it the remainder depending upon it is void Time H. 8. B Devise 13. the middle Where a man devises that W. O. shal have the occupation of his plate for term of his life and if he dies that it shal remain to I. S. this is a good remainder For the first hath but the occupation the other after him shal have the property 2. E. 6. B. Devise 13. the end Note if a man hath issue 3. sons and devises his Lands S. one part to the two of his Sons in Tail and another part to the third son in Tail and that none of them sell any part but that every one shal be heir to the other dies that in this case if one dies without issue his part shall not revert to the eldest son but shall remain to the other son for these words That every one shall be heir to the other implies a Remainder because that t is a Will which shal be intended and adjudged according to the intent of the Devisor 7. E. 6. B. devise 38. Done 44. A man Devises his Land to another for to give sell or to do with it at his pleasure this is a Fee-simple for his intent shall be taken to give a Fee-simple 7. E. 6. B. Devise 38. Note by Bromley Chief Justice and others where a man Devises his land to a stranger for Term of years the Remainder to his son in Fee and dies the son may waive the Devise and claim by discent and yet he shall not avoid the Term No more then where a man Leases for years and dies the Lease is good and yet the dying seised is good also to toll the entry B. devise 41. And B. seems where the Father devises to his son and heir in Fee that the heir may waive the Devise and take himself to the discent â— Discent 4. Contrary where the Father Devises to his son in Tail the remainder to a stranger in Fee there the Heir shall not claim in Fee nor waive the Devise for the loss and prejudice of him in remainder in Fee 2. M. 1. B. Devise 41. Tenant in Tail of Land Devisable discontinues in Fee and retakes in Fee and Devises to a stranger in Fee and dies the issue in Tail is remitted for nothing is discended to him by reason of the Devise which Tolls the discent except that the Devisee waives it 4. M. 1. B. Devise 49. Remitter 52. Divorce What divorce may Bastardize the issue what not See Title Bastardie Note for Law That where the husband and wife are divorced where shee is an Inheritrix yet mean acts executed shall not be reversed by the divorce as waste receit of Rents taking of Ward presentment to a Benefice gift of goods of the wife otherwise of inheritance as if the husband had discontinued or charged the land of his wife cui ante Divorcium lies The same of a release of the husband or Manumission of villains or the like And if the husband and wife purchase joyntly and are disseised the husband releases and after are divorced the wife shall have the Moytie though there were not Moyties before the divorce for the divorce converts it into Moyties 32. H. 8. B. Deraignment 18. Discent If Land be given for Term of life the Remainder to the right heirs of W. N. which W. N. is attainted of Felony and dies and after the Tenant for life dies the Remainder shall not take effect nor none shall have the Land for he hath not heir ratione attincturae And though all be a name of purchase yet none can take it but he which is heir B. Discent 59. Done 42. And where Land in Gavelkinde is given to one for life or in tail the Remainder to the right heirs of W. N. who hath issue 4. sons and dies and after the Tenant for life or the Donee dies the eldest son shal have the land for he is right heir at Common Law this is a name of purchase which shall be ordered by the Common Law But otherwise of discents to heires in Gavil kinde for then it shall goe to all the sons 37. H. 8. B. Discent Done 42. Nosme 6. Note that Sir John Hussey Knight enfeoffed certain persons in fee to the use of Anne his wife for terme of her life and after to the use of the heirs males of his body and for default of such issue to the use of the heires males of the body of Sir William Hussey his father and for default of such issue to the use of his right heires and after had issue William Hussey the elder and after Sir John was attainted of Treason 29. H. 8. and put to execution and after Anne died and the said William Hussey the son prayed an Ouster l'main of the King And by Whorewood the Kings Attorney he
makes a Feoffment before the Statute of execution of Uses to the use of himself for term of his life the remainder to W. in Taile the Remainder to the right Heires of the Feoffor the Feoffor dyes and W. dyes without issue the right Heir of the Feoffor within Age he shall be in Ward for the Fee discended for the use of the Fee-simple was never out of the Feoffor And the same Law where a man gives in Taile the Remainder to the right Heires of the Donor the Fee is not out of him Otherwise where a man makes a Feoffment in Fee upon condition to re-infeoffe him and the Feoffee gives to the Feoffor for life the Remainder over in Taile the Remainder to the right Heirs of the Feoffor for there the Fee and the use of it was out of the Feoffor therefore he hath there a remainder and not a reversion 32. H. 8. B. Garde 93. Where a man holds certain land of the King in Soccage in Capite the King shall not have livery of more then the Soccage land The same where he holds of the King in Knights service and not in Capite the King shall not have more in ward but onely that which is holden of him immediately 32. H. 8. B. Garde 97. Note by all the Justices of England that a Lord in Knights service by nonage of the Heir shall not ouste the grantee of Wreck or de proxima presentatione nor the termors which are in by the father of the Heirs B Grants 85. Garde 66. Lease 31. in finibus So of a Lease for term of life 35. H. 8. B. Garde 61 the end A man dyes seised of lands holden in Knights service his brother and Heir within age the Lords seises the ward the wife of the Tenant privily with childe with a son and after the wife is delivered the brother is out of ward But if the Infant dye the brother yet within age there the brother shall be in ward again And the same Law where a daughter is heire and after a son is born the daughter is out of ward And if the son dies without issue the daughter within age she shall be in ward again so see that one and the same person may be twice in ward by two several ancestors But where the Lord seises the son for ward for land to him descended from his Father and grants the marriage of him to another and after other land holden in Knights service holden of the same Lord descends to the same son from his mother there B. seems that the Lord shall not have the ward again because he had him and granted his marriage before and the body is an intire thing 35. H. 8. B. Garde 119. 'T is granted by all the Justices that the King shal not ouste the termor of his tenant because he hath the heir of his tenant in ward by office found for him nor execution upon a Statute Merchant made against his tenant nor a rent charge granted by his tenant nor a grant de prox presentatione of an Advouson Time H. 8. B. Garde 44. If the son and heire of the Kings tenant or of another Lord be made a Knight in the life of his Father and after the Father dies the heir shall be in ward for otherwise the Ancestor may procure his son within age to be made a Knight by collusion to the intent to defraud the Lord of Ward which shal not be suffered And so it fell out of the Lord Anth. Brown of Surrey who was made Knight in the time of his Father who died the son within age and t was holden he should be in ward notwithstanding he was a Knight wherefore he agreed with the King for his marriage Otherwise B. seemes where hee is in ward and is made Knight in ward this shall put him out of ward and by him the Stat. which is Postquam haeres fuerit in custodiam cum ad aetatem pervenerit S. 21 annorum habeat hereditat suam sine relevio sine Fine Ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradict is intended where he is made Knight within age being in ward after the death of the Ancestor and not where he is made Knight in the life of the Ancestor 2. E. 6. B. Garde 42. 72. 'T was agreed for Law in the Common Bench that if the Lord hath not been seized of homage within time of memory but hath been seised of rent it suffices to have a Writ of Ward and to count that he died in his homage for there is seisin of something though it bee not of the intire services And for this cause and also for that the seizin is not traversable but the Tenure therefore the action lies without Seisin of the Homage 6. E. 6. B. Garde 122. the end T was holden by the Justices of both benches That where a man holds by Rent and Knights Service and the Lord and his ancestors have been alwaies seised of the Rent but not of the homage escuage nor of Ward yet if a Ward fall he shall have the ward of the heir for the seisin of the Rent suffices to be seised of the Tenure as to this purpose Yet otherwise B. seems to make avowry 7. E. 6. B. Avowry 96. the end Garde 69. Where a use vests in the heir as heir of his Father where the Father was dead before Whether the heir shall be in ward or not Quaere See Tit. Feoffments to uses 3. M. 1. Note that t was declared by the Doctors of the Civil Law That where an heir or other is married infra annos nubiles and after disassents at the age of discretion or after before assent to the Marriage that this suffices and the party may marry to another without divorce or witnessing of it before the Ordinary but the Ordinary may punish it per arbitrium judicis but the second espousals is good as wel by the Law of the Kingdom as by the Law of the Church 5. M. 1. B. Garde 124. Ward and marriage is by the Common Law and the Father shall have the Ward of his son or daughter and heir apparent before the King or other Lord and Soccage Tenure by 20 years and Knight service after B. Garde 120. the end If an estate be made to many and the heirs of one of them and he which hath the Fee dies his heir within age he shall be in Ward by the Statute of Wills notwithstanding the others survive which are Tenants by the Common Law Casus B. Garde 100. Garranties Warranties If the husband wife alien land of which she is dowable there to have collateral warranty t is good to have the Warranty of the Wife against her and her heirs and then if she hath issue by the husband and she and the
barre the demandant by which the demandant recovers and the tenant over in value that this land recovered in value shall not go to me in reversion after the death of the tenant for life nor the reversion of the land recovered in value shall not be in me in the life of tenant for life and so 't is holden at this day 25. H. 8. B. Recovery in value 33. Note by some where a writ of entry in the Post is brought against a husband and wife where the wifis tenant in taile and they vouch overe and so the demandant recovers against the husband and wife and they over in value if the wife tenant in taile dyes and the husband survives this shall not bind the issue in taile for the recompence shall go to the survivor and then it shall not bind the issue in taile Yet B. seems that this opinion is not law for the recompence shall go as the first land which was recovered should go And voucher by husband and wife shall be intended for the interest of the wife 25. H. 8. B. Recovery in value 27. the end Tenant for life the remainder over or tenant in taile the remainder over is impleaded by a writ of entry in the Post and he vouches a stranger the demandant recovers against the tenant and the tenant over in value this shall bind him in remainder by Monntague Just. and others for the recompence shall go to him in remainder But yet in the case of the Lord Zouch and Stowell in the Chancery the law was determined otherwise by all the Justices B. seems the reason because that when he vouches a stranger the recompence shall not go to him in remainder contrary if he vouches the donor or his heir who is privy But after this day many put inâ—ure to bind the remainder 27. H. 8. B. Recovery in value 28. Recovery against Feoffees seised to use in tailes See Tit Feoffements to uses 'T is held that where tenant for life is the remainder over in tail or for life and the tenant for life is impleaded and vouches him in remainder who vouches over one who hath title of Formedon and so the recovery passes by voucher there the issue of him who hath title of Formedon may bring his Formedon and recover against the tenant for life for the recompence supposed shall not go to the tenant for life and therefore he may recover for his ancestor warranted but the remainder and not the estate for terme of life and therefore the tenant for life cannot bind him by the recovery for he did not warrant to him And therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder and they to joyn and vouch him who hath title of Formedon and so to passe the recovery for there the recompence shall go to both 30. H. 8. B. Recovery in value 30. 'T was agreed that if tenant in taile the reversion to the King suffers a recovery this shall bind him and his issue but not the King by the common law See now the Statute of thereof that it shall not bind the issue 33. H. 8. B. Recovery in value 31. Taile 41. the end Relation Where an office found for the King shall relate where not See Tit. Intrusion Of the Relation of an Act of Parliament See Tit. Parliament Note that the attainder of Treason by Act of Parliament shall not have elder relation then to the first day of the Parliament except it be by speciall words that he shall forfeit his lands that he had such a day and after 35. H. 8. B. Relation 43. 'T is held for good Law that by attainder of felony by verdict a man shall forfeit all his lands that he had the day of his felony done or ever after for this shall have relation to the Act contra upon an attainder by out lawry For B. seems there that he shall not forfeit but those which he had the time of the outlawry pronounced or after for outlawry hath not relation as a verdict hath Time H. 8. B. Relation 42. the end Relation of an Inrolment See Tit. Faitz inrol Releases Husband and wife purchase in fee and after they lease for years by Indenture and after the husband releases to the lessee and his heirs this is no discontinuance and yet this gives a freehold to the lessee during the life of the husband Per plures without doubt 29. H. 8. B. Releases 81. G. Chancery was possessed of an Indenture and lost it and I. S. found it to whom the said G. C. released all actions and demands and after the said I. S. gave the same Indentrue to John Tison and after the said G. C. brought in action of detinue against the said I. T. who pleaded that the said I. S. found the Indenture and that the said G. C. released to the said I. S. all actions and demandes and after the said I. S. gave the said Indenture to the said I. T. Judgment if action And t' was agreed in the common Bench the case being of land demanded ibidem that this is a good barre and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land and of the property of the chattell which he had before And it was moved in the Kings bench and they were of the same opinion and said that the reason is because that entry in land and seisure of goods are demandes in Law 34. H. 8. B. Releases 90. Relief See Tit. Debt Remainder See Tit. Discent Remitter No Remitter against an Act of Parliament See Tit. Parliament Note a Per curiam if Tenant in Taile makes a Feoffement to his use in Fee before the statute of uses made 27. H. 8. and dyes before the said Statâ—te his heir within age and after the Statute is made before the full age of the heir by which the heir is in possession by the Statute he shall not be remitted by it Contrary of a discent after the Satute for this shall be a remitter 34. H. 8. B. Remitter 49 If a man hath a Tittle of entry and not a right of entry as by escheat mortâ—maine assent by a woman to a ravishoâ—â— and the like and takes an estate of thâ— terretenant he shall not be remited for he hath but a Tittle And a maâ— cannot be remitted but in respect oâ— a right before as where a man is diâ—seised and takes an estate of the disseisor he is remitted for he had a right of entry before And the same Law where a man decaies his Tenements or converts Land from tillage into pasture against the Statute and makes an estate for life to his Lord he shall have no other estate for he had but a Title of entry and not a right of entry Quaere for Non adjudicatur 34. H. 8. B.
Tenancy and pleads no wrong and the other takes the Tenancy without that that the other hath any thing and pleads in Bar there the Plaintiff shall be compelled to chuse his Tenant at his peril as well as if both had pleaded in Bar and accepted the Tenancy severally and if it be found that he mis-elects his Tenant the Writ shall abate but he shall not be barred And there when the Demandant elects his Tenant and he pleads there they shall be at issue before that the Tenancy shall be inquired and then the Tenancy shall be Inquired first and after the other issue 6. E. 6. B. Assise 384. Assurances Note that Tenant in Tail who levies a Fine with Proclamation shall be bound and his Heirs of his body also after the Proclamation made and not before so that if the Tenant in Tail die before all the Proclamations made this shall not binde the issue in Tail and the Proclamation cannot be made in shorter time then in four Terms B. Fine Levies 109. assurances 6. But Tenant in Tail who is not party to the Fine shal not be so bound after the Proclamations but that he shall have five years to make his claim and if he fails of them and dies his issue shall have other five years by the equity of the Statute of W. 2. Quod non habeat potestatem alienandi Yet t is said if the first Issue neglect the five years by which he is barrable and dies his issue shall not have other five years for if the issue be once baâ—rable by the Fine the Tail is by this bound for ever Quaere And the Statute saies That it shall binde parties and pâ—iâ—â—es and therefore where Tenant in Tail is party to the Fine with Proclamation and his issue claims Performam doni the issue is privy for he cannot convey to himself as heir in tail but as of the body of his Father which is privity But a Fine with Proclamation may be confessed and avoided and then it shall not binde for the Statute is intended De finibus ritè levatis And therefore he may say that the parties to the Fine had nothing tempore finis c. For if none of the Parties had nothing tempore finis then t is a Fine by conclusion betwixt the parties but all strangers may avoid it by the averment as afore B. Fines Levies 109. And by the Statute of 32. H. 8. Fine with Proclamation by Cestui que use in Tail shall binde him and his heirs after Proclamation made and a Fine with Proclamation the Reversion or Remainder in the King and the Conusor dies the Proclamation made t is no Bar nor discontinuance because that the Reversion or Remainder in the King cannot be discontinued therefore there the issue in Tail may enter after the death of the Tenant in Tail B. Bar 97. Assurances 6. And B. seems that neither the Statute of 32. H. 8. nor 4. H. 7. shall not binde the issue in Tail nor the Reversion to the King by Fine with Proclamation though that the Proclamation be made and yet the Statute of 4. H. 7. wils that after Proclamation made it shall be a final end and shall conclude as well privies as strangers except infants Fem Coverts and the like c And the issue in Tail is privy Yet B. thinks that the intent of the Statute was not that the issue in Tail the Reversion to the King should be bound for by him after this Statute this was taken to be no discontinuance and therefore it seems to him that it shall not binde the Issue in Tail the Reversion in the King B. Fines Levies 121. Yet Quaere for the Statute of 32. H. 8. which wils that the heir in Tail shall be barred by Fine with Proclamation after the Proclamation made hath an exception of those of which the Reversion or Remainder is in the King so that it shall not binde such issue in Tail B. assurances 6. the end But otherwise t is of a recovery and Execution had by writ of entry in the Post with voucher by the Common Law for though that the Reversion or Remainder be in the King such recovery shall binde and was a bar against the Tenant in Tail and his issue presently but not against the King But at this day by the Statute of 34. 35. H. 8. Recovery against Tenant in Tail the Remainder or Reversion in the King shall not binde the issue in Tail but that he may enter after the Death of Tenant in Tail 30. H. 8. B. Bar 97. the end Assurances 6. Note That for assurance of land that the heir should not sell t was devised That a man should make a Feoffment in Fee to two to the use of himself for Term of life without impeachment of wast and after to the use of his son and his heirs until the son should assent and conclude to alien it or any part of it or to charge or incumber it and after imediately upon such consent and conclusion to the use of A. and his heirs until as afore and then c. to the use of B. and his Heirs until c and so of more c. and by such assent and conclusion by the Statute of uses Anno 27. H. 8. c. 10. the other shall be in possession c. 38. H. 8. B. Assurances 1. Where men enter into an arbitrement and every one is bound to the other in an obligation or other such Covenants and are bound to perform it and t is awarded that every one should release to the other all actions the like there it ought to be expressed all actions before such a day which shall be before the date of the Obligation for otherwise the Obligation of the award or the last Obligations to perform the Covenants shall be also released Regulae B. Assurances 4. Attaint Caveatur in every action triable by Jury of the quantity of the land as where a man demands 200. acres where they are but a hundred sixty or the like and the title is for the demand there if the Jury finde that he deseised him of 200 acres or the like this is matter of Attaint And so where they finde him gulty in trespass or the like of more trespasses then he did or of excessive dammage and the like 24. H. 8. B. Attaint 96. Quaere by B. if an Attaint doth not lie upon a Verdict in an appeal of Maihem at this day by the Statute of 23. H. 8. cap. 4. For this year t was doubted 38. H. 8. B. Attaint 10. the end Assise is brought against Tenant by Statute Merchant and against the Conusor Tenant of the Free-hold and the Assise acquits the Tenant by Statute Merchant and attaints the other of disseisen the Tenant by Statute Merchant shall not have an Attaint nor the Lord where Land is recovered against him and the heir where he hath the heir in Ward nor the
shall have it for this name heires males of the body is but a name of purchase and Sir W. H. shall not have it as heir to Sir John but as purchaser B. Nosme 1. Livery 1. Discent 1. As if land is given to a man and his heires males of his body and he hath issue 2 sons the eldest hath issue a daughter and the father and the eldest son dies the younger brother shal have the land and yet he is not heir to his father And the same Law where land is given to a man and to his heirs females of his body and he hath a son and daughter and dies the daughter shall have the land and not the son B. Nosme 1. 40. And so where Tenant in tail is attainted of Treason before the Statute of 26. H. 8. his son shall have the land for he doth not claim onely as heir but by the Statute and per formam doni B. Nosme 1. Yet some were of a contrary opinion and took a Diversity where the gift is to the father himself and where t is to the heires of his body by remainder B. Nosme 1. 40. And therefore in 9. H. 6. if lands are given for term of life the remainder to the heires females of the body of I. S. who is dead and hath issue a son and daughter and after the Tenant for life dies the daughter shal not have the land for she is not heir for by Hare Master of the Rolls an antient apprentice there is a difference betwixt a gift in possession to a man and his heires females c. and a gift to a stranger the remainder to the heirs females of another for there he ought to be heir indeed when the remainder falls or otherwise the rem ' is void for ever B. Done 61. for though that the case holds place in the two cases put by Whorewood this is because that the gift was once vested which was in the father and therefore good law there otherwise in the principall case where the rem ' is not vested Yet by some the opinion of Whorewood is the better for where land is given to a man and his wife for term of life the rem ' to the heires males of the body of the man this remainder cannot be vested in the life of the wife for t is not a tail in the man by reason of the estate of the wife yet if he hath issue 2 sons and the eldest hath issue a daughter and dies the father and mother dies the younger son shall have the land as heir male and yet he is not heir indeed The same Law if such gift were the rem ' to the heirs females of the body of the man who hath a son and daughter and dies the daughter shall have the land though she is not heir The same Law where land is given to W. N. for life the remainder to I. S. for life the remainder to the heires males of the body of the said W. N. who hath 2 sons the eldest hath issue a daughter and dies W. N. and I. S. die the younger son shall have the land as heir male yet he is not heir indeed but his Neece is heir to his father for t is not matter of the first vesting nor of the remainder for where the first estate for term of life is executed the remainder over ut supra the remainder may depend in abeyance quousque c. ut supra But otherwise of a remainder to the right heires for none can have that but he which shall be heir indeed B. Nosme 40. and therefore t was agreed that the 2 remainders to the right heires of Sir John Hussey was forfeited by the attainder 37. H. 8. B Nosme If land discends to the daughter within age and after she is disseised the disseisor dies and his heir enters and after a son is born he born shal avoid the discent for he claims not as heir to his sister nor was he in esse at the time of the discent Lecture B. Discent 40. Discontinuance of Possession Recovery against Tenant in tail the reversion or remainder in the King in fee shall binde the Tenant in tail and the issue in tail but not the King But now by the Statute it shall not binde the issue in tail but that he may enter 32. H. 8. B. Discontinuance of possession 32. Note that t was agreed in the case betwixt the King and Anthony Lee Knight if the King Tenant in tail of the gift of another makes a lease for years or for life and hath issue and dies the issue may make another grant without reciting them for they are void by the death of the King Tenant in tail who granted and the heir of the King shall avoid it so that this shall not binde but during the life of the grantor for a grant without warranty or livery is no discontinuance and the King upon his grant doth not make livery And also every discontinuance is a wrong which the King cannot do the same law if he had granted in fee t is no discontinuance B. Patents 101. Discontinuance of Possession 35. Tail 39. Leases 61. And so see that the King may be Tenant in tail for when a man gives to the King in tail he cannot have a greater estate then the donor will depart with to him 38. H. 8. B. Tail 39. Release no Discontinuance See Tit. Releases Discontinuance of Proces Note that a Discontinuance puts the party to a new originall but where the Parol is without day this may be revived by a re-summons or re-attachment for the originall remains Regulae B. Discontinuance of proces 43. Dismes Tythes T was said that if a Parson demise his Glebe to a lay man there he shall pay Tythes contrary of the Parson himself that reserves them in his proper hands And that land first discharged of Tythes shall be ever discharged of them Yet if he which hath purchased a Mannor and Rectory which is discharged of Tythes Leases part of his demeanes the lessor shall have Tythes of that because that he hath the Parsonage 32. H. 8. B Dismes 17. Disseisor T was said for Law if A. leases the land of I. N. to me for years rendring rent the lessee enters and payes the rent to the lessor the lessor is a disseisor for countervails a commandment to enter and he which commands is a disseisor which note by his void lease 23. H. 8. B. Disseis ' 77. Distress Where land shall be charged with 2 distresses by Dower of part and so of partition See Tit. Avowry Note for Law that he which distrains beasts may put them into a close house if he will feed them for the distress in pound overt is but to the intent that the owner may feed them 33. H. 8. B. Distress 66. T was agreed for Law by the Justices that if a man distrain without
there were but one in the Deed then it shall be referred to the one only But in a Devise 't was said by some that the words afore are a Fee-simple Contrary in a Gift and Feoffment for the one shall bee taken by intendment the other not 31 H 8. B Estates 4. A man gives land to a Husband and Wife for terme of their Lives diutius eorum vivent the remainer to the Heirs of their bodies this is a taile executed by reason of the immediate remainer notwithstanding the words of the Statute quod voluntas Donatoris in omnibus observetur by all the Justices 35 H 8. B Estates 78. By opinion in the kings Bench If a man deviseth his Land to W N solvend ten pound to his Executors and dies the Devisee hath a Fee-simple by reason of the payment without words Heredibus or in perpetuum and this shall be intended the intent of the Devisor The same Law if a man sell his Land to W N for twenty pound this shall be intended a sale in Fee-simple without words Heirs for Conscience c. est equum bonum which is a ground in every Law 4 Ed 6. B. Estates 78. Estoppell If a man hath Liberties Rent Common or the like by prescription and after takes a grant thereof of the King by Patent or of another by Deede this determines his prescription by conclusion B Prescription 102. Estoppell 210. for Writing shall determine Contracts and matter in Fait 33 H 8. B Prescrip 102. 'T was agreed that a stranger to a Fine or Recovery shall not pleade it for Estoppell contra If hee claim the same Land under the Fine or Record by those which were parties or claims the same Estate or part of it and that this estate continues for then he is privy in the Per 36 H 8. B Estoppell 216. the end If two joyn-Tenants are which hold of the King in chiefe and the one releases to the other in Fee and after both respit Homage in the Exchequor by this he which released hath gained the moity by conclusion as it shall be where two joyne in suite of livery out of the hands of the King where the one hath nothing by the opinion of some And the same of Partition by two where the one hath nothing 37 H 8. B Estoppell 218 Note that a man which Leases by Deede poll for yeeres or by Parol may avoid this Lease to say That hee had nothing in the Land tempore dimissionis Contrary Upon a Lease by Indenture for this is an Estoppell 38 H 8. B. Estoppell 8. If a man Indicted of Extortion or Trespasse puts himself upon the grace of the King and makes a Fine and after the party sues him for it by Bill or Writ and he pleades Not Guilty hee shall have the Plea and the making the Fine to the King shall not estop him for there the Entry is quod petit se admitti per Finem and doth not confesse it precisely and therefore no Estoppell Yet B seemes to make the Fine by protestation that hee is not guilty and then 't is all cleere Time H 8. Estoppell 82. A man pleads a Pardon of the King in the Exchequer for alienation without License where the Land is not holden of the King in capite This is an Estoppell to him to say after that He doth not hold in capite 7 Ed 6. B Estoppell 222. By Hales and Montague If a man Leases to N his own Land by Deed intended the Indenture is no Estoppell but during the Lease and not after Casus B Estoppell 221. Estranger A is bound to B in a 100. l. and B makes a Defesance to W S That if W S payes 40. l. that the Obligation shall be void This is worth nothing per opinionem because that A that should plead it is a Stranger to the Deed But where two are bound to me and I make a Defesance to one this shall serve the other to plead if he can shew it as in Trespas against two a release to one shall serve the other if he can shew it 34 H 8. B Estranger al fait 21. Estray If a man takes Beasts as an Estray and keeps them three quarters of a yeer and after they stray from him and another happens on them the first Lord which kept them for three quarters cannot take them again because that he had no property in them till hee had kept them a yeer and a day and Proclamation passed in the two next Market Towns and two Market dayes the one in the one Town and the other in the other for the possession of the second Seizor is good against him who hath no property 33 H 8. B Estray 11. Executions Note by Fitz and the Court If a man recover in a Writ of Annuity he shall have a Fierifacias of the Arrearages incurred within the yeer and a Scire fac after as soon as the Annuity is Arrear and never a Writ of Annuity again for 't is executory and the same Law of an Action and Judgement upon composition which is executory de tempore in tempus and the like And in every Scire fac in which he recovers after the first Judgement he shall have execution of the Arrearages within the yeer by Fiere fac for every one is founded upon the Judgement 23 H 8. B Executions 119. Scirefac 213. By the whole Court in the Common-Bench If two are bound in an Obligation conjunctim divisim the Obligee impleads the one and hath execution of his body and after impleads the other and condemns him hee may have execution against him also for the taking of the body is a good execution but 't is no satisfaction and therefore hee may take the other also But if the one satisfie the Plaintiff hee shall not have execution after and therefore this Order That the Plaintiff upon an Obligation shall have but one execution is intended such execution which is a satisfaction and where both are impleaded by one originall by severall Precipes c. 29 H 8. B Execution 132. Scire fac upon recovery of Debt and Damages the Defendant said that once the Plaintiff sued a Capias ad satisfaciend by which the Sheriff had took his body Judgement c. And there 't is said That a Capias ad satisfaciend is not of Record before the retorn of it therefore no Plea Yet B seems the Plea good by the taking of the Body though no Writ bee returned 37 H 8. B Executions 6. Executors 'T was noted by Fitz and others That in an Action of Debt against an Executor 34 H 6. upon an Obligation of his Testators who pleaded not his Deed and found against him the Judgement by the Record was That the Plaintiff should recover of the dead if hee hath any and for that the book at large fol. 24. is reported further in these
a Formedon And the best opinion that an Abbot Mayor and Commonalty nor other Corporations shall not bee seised to a use for their capacitie is only to take to their own use And also if the Abbot execute an estate the successor shall have a writ of Entry sine assensu capituli and those that are in the â—ost as by Escheate Mortmain Perâ—uisite of Villeine Recovery Dower by the courtesie and the like are seised to their own use and to another use And also the Stat of 1 R 3. is That all Gifts Feoffments Grants of cestuy que use shall be good against all c. saving to all persons their rights and interests in tayl as if this Stat had not been made and therefore Tenant in tayl shall not bee seized to a use And 't was agreed by the Court That the words in the end of the Stat of 1 R 3. saving such right and interest to the Tenant in tayl c. is taken Tenant in tayl in possession and not Tenant in tayl in use for cestuy que use in tayl hath no right nor interest And also here there is a Tenure betwixt the Donors and the Donees which is a consideration that the Tenant in tayl shall be seized to his own use And the same Law of Tenant for term of yeers and Tenant for life their fealty is due and where a rent is reserved there though a use be expressed to the use of the Donor or Lessor yet this is a consideration that the Donee or Lessee shall have it to his own use And the same Law where a man sells his Land for 20. l. by Indenture and executes an Estate to his own use this is a void limitation of the use for the Law by the consideration of money makes the Land to bee in the Vendee Et opinio fuit That a use was at Common-Law before the Stat of Quia emptores terrarum but uses were not common before the same Stat For upon every Feofment before this Stat there was a Tenure betwixt the Feoffors and the Feoffee which was consideration that the Feoffee shall be seized to his own use but after this Stat the Feoffee shall hold de capitali domino and there is no consideration betwixt the Feoffor and the Feoffee without mony paid or other especiall matter declared for which the Feoffee shall be seized to his own use For where the Stat of Marlebr is that a Feofment by the father Tenant in chivalry made to his son by covin shall not toll the Lords Ward c. In these Cases the Feoffor after such Feofment takes the profits of the Land all his life And the same Law by Shelley of a Feofment made by a Woman to a Man to marry her the Woman takes â—he profits after the esponsalls Quaere â—nde for this is an expresse consideration in it self And by Norwich If a man deliver money to I S to buy land for him and he buyes it for himself to his own use this is to the use of the buyer and to the use of him who delivered the mony and there is no other remedy but an action of deceipt 14 H 8. B Feofments to uses 40. Note if a Feofment be made to the use of W N for term of his life after to the use of I S and his Heirs their cestuy que use in remainer or reversion may sell the remain or reversion in the life of W N but hee cannot make a Feoffment till after his â—eath 25 H 8. B Froffments to uses 44. 'T is holden that if the Feoffees seised to the use of an Estate taile or other use are impleaded and suffer the common recovery against them upon bargaine this shall bind the Feoffees and their Heirs and cestuy que use and his Heirs where the buyer and recoveror hath not conusance of the first use And by Fitz it shall binde though they had notice of the use for the Feoffees have the Feesimple Et per plures if cestuy que use in tailâ— be vouched in a recovery and so the recovery passes it shall bind the taitâ— in use s cestuy que use and his Heirs and otherwise not And this B seem to be by the Stat which excepts tenant in taile which is intended tenant iâ— taile in possession and not cestuy que use in taile for cestuy que use in taiâ—â— is not tenant in taile 29 H 8. B Recovery in value 20. Feoffments to uses 56. Feoffees in use make a lease for yeers rendring rent to another who hath notice of the first use yet the Lease shall be only to the use of the Lessee himselfe And the same Law per plures though no rent be reserved And if a man makes a Feofment and annexes a Schedule to the Deed conteyning the use hee cannot change the use after and so if hee expresses the use in the Deed of Feofment but otherwise where hee declares the use by words of his Will s I will that my Feoffees shall bee seized to such a use there he may change this use because by Will c. And that if a Feofment be made to the use of the Feoffor in tail after he execute an estate to him in â—ee the use of the Estate taile is determined 30 H 8. B Feofments to uses 47. If A Covenants with B That when A shall be Enfeoffed by B of three acres of Land in D that then â—he said A and his Heirs and all others seized of the Land of the said in S shall be thereof seised to the use of the said B and his Heirs there if A makes a Feofment of his Land in S and after B Enfeofs A of the said three acres in D there the Feoffees of A shall bee seised to the use of B notwithstanding they had not notice of the use for the Land is and was â—ound with the use aforesaid to whose hands soever it shall come and 't is not like where a Feoffe in use sells the Land to one who had not notice of the first use for in this first Case the use had not being till the Feofment be made of the three acres and then the use doth commence 30 H 8 B Feoffments to uses 50. 'T was doubted if a Recovery had against cestuy que use in taile shall binde the Heir in taile But by Hales Just By such Recovery the entry of the Feoffees seised to the use of the Estate taile is taken away but after the death of cestuy que use who suffered the Recovery the Feoffees may have a writ of right or writ of entry ad terminum qui preteriit in the post or the like And by some there is no use in taile but 't is a fee-simple conditionaâ— at common Law as 't was of the taile before the Stat of W 2. And this Stat makes no mention but of gifts in taile which
marriage takes not effect by which the State is executed in the Heir of C by the Statute of uses made 27 H 8. notwithstanding that C was dead before the refusall of the marriage for now the use and possession vests in the Heirs of C for that the Indentures and Covenants shall have relation to the making of the Indentures for these Indentures binde the Land with the use which Indentures were in the life of C But by B quaere if the Heir of C shall bee in Ward to the Lord for hee is Heir and yet a Purchasor as it seemes 3 M 1. B Feofments to uses 59. Gift of Land for yeeres or of a Lease for yeeres to a use is good notwithstanding the Statute for the Statute is intended to avoide gifts of Chattells to uses for to defraude Creditors only and so is the preamble and intent of this Statute 3 M 1. B Feofments to uses 60. Fines levies Fines levied Note That 't was Covenanted that A shall make to B his wife daughter of I K a joynture by Fine and the Writ was brought by I K against A and B his wife and they offered to acknowledg to I to the intent that I should render to them for life of B and because B the wife was within age therefore shee was drawne out and rejected And then because that none can take the first estate by the Fine but those who shall be named in the Writ of Covenant but every Stranger may take a remainder therefore the Writ was made betweene I and A only by which A acknowledged the Tenements to bee the right of I ut illa que c. and I granted and rendred it to the said A for terme of his life without impeachment of Waste the remainder to the said B his wife for terme of her life the remainder to the said A and his Heirs 30 H 8. B Fines Levies 108. Fine with proclamation to bind Tenant in tail and his issue the time for to make proclamation c. See Tit Assurances If cestuy que use for term of life levies a Fine with Proclamation there none need to enter nor make claim within the five years because that 't is but a Grant of his Estate which is lawfull and no forfeiture for hee hath nothing in the Land nor hee cannot make a forfeiture of the use The same Law of a Fine levyed by Tenant for life in possession Yet B doubts thereof and thinks otherwise if hee levy it in Fee B Feoffments to uses 48. Fines levies 107. Et per plures if it be levyed by cestuy que use in tail it shall bind him and his Heirs but not cestuy que use in the reversion nor the Feoffees after the death of the Conusor for the Statute of 1 R 3. is That it shall bind him and his heirs and Feoffees clayming onely to the same which is not so here Quaere inde for B seems by the same Statute that tayl in possession is remedied by this Statute but not tayl in use for this seems to him to remain at Common-Law as a Fee-simple in use conditionall for 't is not a Gift of the Land yet quaere for by him by the equity of the Statute of W 2. of tayles devises in tayl are taken yet this is in nature of a Gift yet not at this day by the Statute of 32 H 8. fine with Proclamation by cestuy que use in tayl shall bind the tayl after Proclamation 30 H 8. B Fines levyed 107. the end Note That a Deed inrolled in London binds as a Fine at Common-Law but not as a Fine with Proclamation and there need not livery of Seisin upon such Deed And this is a discontinuance without livery because that by the custome there which is reserved by divers Parliaments it shall bind as a Fine 31 H 8. B Fines Levies 110. 'T was granted for Law where two are of the same name as if there bee two R B and the one levies a Fine of the others Land there the other shall avoid it by Plea s to say that there are two of the name and that the other R Blevied the Fine and not this R B 33 H 8. B Fines levies 115. the end Note that if the Writ of Dedimus potestatem to levie a Fine doth not beare teste after the writ of Covenant 't is Error for the Dedimus potestatem saies cum Breve nostrum de conventione pendet betwixt A B and C D c. 35 H 8. B Pines Levies 116. Note that 't was devised to have a Lease for yeeres to binde Tenant in taile that the tenant in taile and the Lessee should acknowledge the tenements to bee the right of one A a stranger and that A should grant and render by the same Fine to the Lessee for sixtie yeeres the remainder to the Lessor and his Heirs and 't was with Proclamation which shall binde the taile after proclamation made And so see that the Devise after will not serve for taile but for Fee simple for hee which takes by Fine shall not bee concluded if hee bee an Infant or Feme covert or the issue in tail of the Conusor And in this case no rent can bee reserved for A was a stranger to the Land by which the Lessee granted ten pound of rent and extra terra illa with a clause of distresse during the yeeres or terme aforesaid to the Lessor 36 H 8. B. Fines Levies 118. Lease may be made by Fine for term of yeeres rendring rent and first the lessee to acknowledg the tenements to be the right of the Lessor come ceo c. and then the other grant and render to him for terme of sixtie yeeres rendring therefore yeerely ten pound per annum c. And with Clause of Distresse Time H 8. B Fines Levies 106. Note by Fitz Just That a Fine levyed by A and B his wife where the name of the wife is M shall binde her by estoppell and the tenant may plead that shee by the name of B levyed the Fine and so 't was in ure by him and 't was pleaded according Time H 8. B Fines Levies 117. Note by Bromeley chiefe Justice and others That a Writ of Error was brought in the Kings bench because a Fine was acknowledged by Dedimus potestatem before one who was not a Judge Abbot Knight nor Sargeant and for this cause 't is refused to admit any which is taken by such for the Statute de finibus Attorn gives power to none except to Justices Abbot and Knight quaere by B if a Sarjeant at Law bee not taken as a Justice by the equitie of the Statute Time H 8. B Fines Levies 120. 'T was granted that a Fine may be levyed in a Hamlet for if a Scire fac lyes upon a Fine in a Hamlet as it appears 8 E 4. that it doth therefore a Fine is well levyed there
contra formam collationis And if he aliens sine assensu Decani Capituli then lies the Writ de inâ— gressu sine assensu Capituli 36 H. 8 B. Licenses 21. Lieu Place Place is not material in actions transitory See Tit. Attaint Where a Recognizance is acknowledged in London before a Justice of thâ— Common Bench and certified in bancoâ— and there ingrossed a Scire facias shalâ— be brought there directed to the Sherifâ— of London and not to the Sheriff oâ— Middlesex where the Bench is by all the Prothonotaries of the Common Bench. 4 M. 1. B. Lieu 85. Limitations Note that it seems cleer that the new Limitation and also the ancient Limitation extends to Copie-hold as well as to Free-hold for the Statute is that he shall not make prescription title nor claim c. And those who claim by Copie make prescription title and claim c. And also the plaints are in natura forma Brevis Domini Regis ad communem Legem c. And those Writs which now are brought at Common Law are ruled by the new Limitation and therefore the plaints of Copie-hold shall be of the same nature and form 6 E. 6. B. Limitations 2. Livery Note if the King hath a Ward because of Ward and the first Ward comes to full age and sues Livery the other Ward being within age there the Ward shall not sue Livery but ouster le maine for now the Seigniory of his Land is revived by the Livery so that he holds not of the King as afore but of his immediate Lord. But if the Ward because of Ward had been of full age before the first Ward he should sue Liveryâ— 25 H. 8. B. Livery 47. Where a woman out of Ward by Marriage shall sue Livery at fourteen yeers See Tit. Garde He which holds Land within the County Palatine of Lancaster of the King in Knight service ut de Ducato Lancastr shall sue Livery Contra of him who holds Land which lies out of the County Palatine of the King in Knight-service c. 28 H. 8. B. Livery 55. Note that general Livery cannot be but upon Office found but special Livery may be without Office and without probation of age but there he shall be bound to a rate and sum certain to be paid to the King B. Livery 56. And by B. ibidem 31. this cannot be claimed by the Common Law as general Livery may but is at the will of the King 28 H. 8. If the King purchases a Mannor of which I. S. held in Knight service the tenant shall hold as he held before and he shall not render Livery nor primer seisin for he holds not in Capite but holds ut de manerio And if his heir be in Ward by reason of that he shall have an ouster le maine at full age â—nd 't is said if the King after grant the â—annor to W. N. in fee excepting the â—â—rvices of I. S. now I. S. holds of the King â—sof the person of the King and yet he â—â—all not hold in Capite but shall hold 〈◊〉 he held before for the act of the King â—hall not prejudice the tenant But if the â—ing give Land to me in fee tenend miâ—i heredibus meis of the King c. â—nd expresses no certain services I shall â—old in Capite for 't is of the person of â—â—e King And note that tenure in Caâ—ite is of the person of the King 29 H. â— B. Livery 57. Tenures 61. Extent of livery is the value of the â—and by half a year But if he intrudes â—nd enters without livery he shall pay the â—early value by experience of the Exâ—hequer And where cestuy and use 〈◊〉 attainted of Treason and 't is enacted â—y Parliamen That he shall forfeit his â—and in possession and in use that â—here the King is but a purchaser and â—herefore those who hold of him that was â—ttainted shall not sue livery Quaere â—f it be enacted that he shall forfeit it â—o the King his heirs and successors Eâ—contra if he had been sole seised and â—ad been attainted by the Common Law â—or there the King hath the Land as King and there those who held â— shall sue livery And yet the Statute â— Si quis temerit de nobis de aliqua 〈◊〉 chaeta ut de honore Wallingford Boseâ— c. non faciet aliud servivum quaâ— fecit preantea And therefore this â— intended of a common escheat And aâ— so some Honours are in Capite as paâ— of Peverel and others 29 H. 8. â— Livery 58. The Kings tenant leases for years anâ— dies the heir shall sue livery notwithâ—standing the Lease indures And thâ— same where the Father declares his wiâ— of the Land for yeers and dies 30 H 8. B. Livery 59. If a man holds of the King before thâ— Statute of uses and infeoffs others 〈◊〉 his for term of life the rem ' over in taiâ— the rem ' to his right heirs and dies anâ— after the tenant in tail dies without issueâ— the heir of the Feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir anâ— if he hath it by descent he shall sue livery And the same Law and for the samâ— reason if at this day a man gives in tailâ— the rem ' to his right heirs Otherwise B. 2. seems where a man makes a Feoffment in fee in possession and dismisses â—â—mself of all and retakes for term of 〈◊〉 the rem ' in tail the rem ' to his â—â—ght heirs and dies and after the teâ—ant in tail dies without issue there the â—â—eir who is right heir is a purchaser â—nd if the King seises he shall sue â—ister le main and shall not be comâ—elled to sue livery But if the tenant 〈◊〉 tail had dyed without issue in the life â—f tenant for life and after the tenant â—or life dies there his heir shall sue livery for the fee simple was vested in the tenant â—or life by extinguishment of the mean â—em ' and therefore the fee simple descends And note livery is that the King â—hall have the value of the land by half â— year And ouster le main is a Writ â—o ouste the King of the Land without aâ—y profit given to the King 32 H. 8. B. Livery 61. Where a man holds certain Land of the King in Soccage in Capite the King shall â—ot have liberty of more then the Soccage-Land 32 H. 8. B. Garde 97. He which holds of the King in Knight service and not in Capite shall not sue livery because he holds not in Capite and there when the heir comes to full age he shall have an ouster le main for none can enter upon the King But if he be of full age at the time of the death of his ancestor then he shall render relief to the
King and goe quite as if he had holden of a common person Contra of Tenure in Capite 32 H. 8. B. Livery 62. Note that the heir of him who holds of the King in Capite in Soccage shall not render primer seisin to the King for all his Lands but onely for those Lands holden in Soccage in Capite Contrary of him who holds in Knight service in Capite by the experience of the Exchequer And the heir which sues Livery shall have in every County a several livery And note that livery is where the heir hath been in Ward and comes to full age he shall have livery extra manus Regis And primer seisinâ— is where the heir is of full age at the time of the death of his ancestor or where his tenant holds in Soccage in Capite and dies there the King shall have primer seisin of the Land which amounts to the like charge to the heir as the livery is 38 H. 8. B. Livery 60. Note that a man cannot sue livery in the Chancery for Land in Wales Nor in a County Palatine by experience Time H. 8. B. Livery 63. If the heir of cestuy que use be of full age at the time of the death of his ancestor the King shall not have primer seisin for 't is not given by the Stat. but onely the ward of Land and body And if a will were declared by cestuy que use which is not performed during the nonage of the heir there the King shall not have the Land but the heir at full age shall prove his age and shall goe quite by experience in the Exchequer Casus B. Livery 77. the middle Mainprise IF a man be arrested in London and finds sureties to the Plaintiff there and after is dismissed in banco by Writ of priviledge and after a Procedendo comes in the same suit to the court of London this shall not revive the first mainprise or suretiship for once dismissed and always dismissed And 't is said that after a man hath found mainprise to a Bill in the Kings Bench and after is at issue or demurrer and after is awarded to replead and to make a new declaration the Mainprise is by this discharged Contrary where they manuceperunt usque ad finem pliti and where the original remains 32 H. 8. B. Mainprise 96. If a man be convicted of Felony and remains in prison and after the King pardons him there the Justices of Goal-delivery may bail him till the next Sessions oâ— Goal-delivery so that he may then comâ— with his Pardon and plead it 2 E. 6. B Mainprise 94. Maintenance Note by all where Tenant in Tayl oâ— for term of Life is impleaded he in remâ— or reversion may maintain and give of his proper money to maintain for safeguard of his interest for 't was agreed that he who hath an interest in the Land may maintain to save it 1 E. 6. B. Maintenance 53. Note that upon the Statute of buying Titles and to maintain that a man shalâ— not buy Land except the vendor hath been in possession c. by a yeer before 't was agreed by Mountague chief Justice and by all of Serjeants Inne in Fleet-street that if a man morgages his Land and redeems it he may sell his Land infra unum annum prox c. without danger of the State aforesaid for so is the intendment of the Statute for the ancient Statutes are That none shall maintain and yet a â—an may maintain his Cousin and so of â—e like for 't is not intended but of unâ—wful maintenance and so of a pretenâ—d Title and not of that which is clear â—itle 6 E. 6. B. Maintenance 38. Mannor A man cannot make a Mannor at this â—ay notwithstanding that he gives Land 〈◊〉 many severally in Tayl to hold of him 〈◊〉 Services and suit of his Court for he â—ay make a Tenure but not a Court for â— Court cannot be but by continuance cuâ—â— contrarium memoria hominum non â—â—sist it And 't is said for Law that if a â—annor be and all the Free-tenures esâ—eat to the Lord but one or if he purâ—hases all but one there after this the Mannor is extinct for there cannot be a Mannor except there be a Court-Baron 〈◊〉 it And a Court-Baron cannot be â—olden but before Suitors and not before 〈◊〉 Suitor therefore one Free-holder â—â—ely cannot make a Mannor 33 H. 8. â— Comprise 31. Mannor 5. Misnosmer Misnamer A Statute was acknowledged by man in the name of I. S. de D. in Coâ— E. Butcher and he was taken upon Prâ—cess and said in avoydance of the Statutâ— that he was always dwelling at S. aâ—â— not at D. and was a Husbandman and nâ— a Butcher and that I. S. of D. acknowledged the Statute without this that he the same person that acknowledged iâ— which Plea was refused for a great inconvenience that might fall upon it 36 H. B. Misnosmer 34. the end Monstrans de faits Shewing of Deeds See that he which pleads a Deed Record or which declares upon a Deed Record it behoves him to shew it Oyer of those is always to be had by 〈◊〉 which is charged by it Regulae Monstrans 165. Oyer de Recordes 1â— the end Mortdauncestor By the best opinion in the Commâ—â— Bench if two purchase jointly to them â— to the heires of one and he which hath the Fee dies and after the other dies the heir of the first shall not have a Mortdauncestor and B. seems the reason to be because the Fee was not executed in Possession by reason of the survivor of the other and t is in effect now but the discent of a reversion and the wife of him who had the Fee shall not have Dower and yet he might have forfeited the Fee simple or given it by Feoffement but not by grant of the Reversion 12. E. 4. 2. and joyn the Mise in a Writ of Right for he in Reversion and the Tenant for life may do it Quaere if he may release it 29. H. 8. B. Mortdauncestor 59. Mortmain Lord and Tenant the Tenant leases for life to I S. the remainder to an Abbot and his successors the Lord need not to make claim till the Tenant for life be dead for if he will wave the Remainder t is not Mortmain But of a grant of a Reversion with Attornment t is otherwise And if the Tenant makes a Feoffment in Fee to the use of A. for life and after to the use of an Abbot and his successors there t is not Mortmain till the Tenant for life in use dies and he in Remainder takes the profits Note that appropriation of an advowson without licence is Mortmain 25. H 8. B. Mortmain 37. If a man leases to an Abbot and his successors or to another Religious person for a 100 years and so from a 100. years to a 100 years untill 300 years be incurred this is one Lease
H. 8. B. Statute Merchant 42. T was said for Law that if the Conusee upon a Statute staple dies and â—is executors sue execution in the name â—f the Testator as if he were in life â—nd the Sheriff takes the body in the â—ame of the Testator c. yet this is â—ot execution for the executors but â—hey may after have execution in their â—wn name for the first execution in â—he name of him that was dead before â—he Teste of the Writ was void and â—he body cannot remain to satisfie him who was dead before Nor the Sheâ—iff cannot deliver the land nor goods â—o him who is dead juxta formam breâ—is And by B. in the book of Enâ—ies the executors of the Conusee shall have execution upon a Statute Merchant without Scire Facias and this upon surmise as it seems to him And if the Conusor be retorned dead yet execution shall proceed of his Lands and Tenements without Scire Fac ' against his heir And the extenâ— and Liberate shall be served imediatly Yet by B. no remedy appears there for the goods of the Conusor when the conusor is dead to have any execution of them 36. H. 8. B. Statute Merchant 43 T is said if a Writ of execution with extendi facias issues upon a Statute Merchant that the Writ ought to be retorned and the land upon thiâ— delivered to the Conusee by Liberate inde Time H. 8. B. Statute Merchant 32. the end Supercedias T was holden for Law thâ—â—â— a writ of attaint a man shall â—ot have a Supercedias for to â—isturb execution for the â—erdict shall be intended true â—ntill t is reversed c. And â—â—at the Register which gives 〈◊〉 Supercedias there is not Law Contrary upon a Writ 〈◊〉 Error for it may be intenâ—ed that Error is for the suit â—f the Defendant c. 33. H. B. Supercedias 24. Sureties Where Sureties in Londonâ—â—all â—â—all remain after the action â—emoved è contra See Tit. â—â—ocedendo Affirmatur pro lege that â—uretie of the Peace is discharged by the death of the King for t is to observe tâ— peace of that King and when he dead t is not his peace 1 M. 1. Surety 20. Surrender Tenant for term of life surrenders him in reversion out of the land which he agrees the free hold by thâ— is in him presently and he is Tenaâ— to the action by precipe quod reddâ— without entry but he shall not haâ— Trespass without Entry 31. H. 8. â— Surrender 50. Where tail shall be extinct by suâ—â—render of Letters Patents where noâ— see Tit Patents Note in the Case of Culpeper twâ— said that the King himself cannot râ—â—cord or receive a surrender of land 〈◊〉 Letters Patents made to him extrâ— curiam but this ought to be beforâ— his Chancellor or other Justice to thâ— authorized 2. E. 6. B. Surrender 53. thâ— end If a man leases for years the remainder over for years and after the firâ— Termor grants his interest to the Leâ—sor this is no surrender by reason 〈◊〉 〈◊〉 mean interest of the term in reâ—â—inder And a Termor makes his essor his Executor and dies this is no â—â—rrender for he hath this to another 〈◊〉 contra whorewood inde 2. E. 6. B. â—â—rrender 52. Note where a man leases land for 〈◊〉 of years the remainder over for 〈◊〉 the remainder over in fee or reâ—â—rving the reversion there he in remainder for term of life may surrenâ—er to him in reversion or to him in remainder in Fee and the estate for â—erm of years is no impediment for â—â—ough it cannot give the possession of 〈◊〉 land yet it gives the possession of 〈◊〉 free hold which is in the thing â—hich was surrendred 3. M. 1. B. Surrender 55. Suitor T was said for Law in the Star-Chamber betwixt Brown Justice and â—ion Grocer of London that a Court 〈◊〉 may be holden before two suiâ—â—rs for the plurall number suffices â—ime H. 8. B. Suit 17. Tail REcovery upon voucher against Tenant in tail is a bar by reason of the recompence in value And a recovery bâ— writ of entry in the post by single voucher doth give but the estate which the tenant in tail hath in possession temporâ— recuperationis so that if it were in oâ— another estate then the tail there the tail is not bound against the heir But the double voucher is to make the tenant in tail to discontinue and to bring the writ of entry against the feoffee and then the feoffee shall vouch the tenanâ— in tail and he shal vouch over and so shal lose and this shal binde all interests and tails that the vouchee had 23. H 8. B. Tail 32. Tenant in tail hath issue and asiens with warranty and leaves assets dies the issue cannot recover by Formedon for the warranty and assets is a barr And if the issue aliens the assets yet he shall not have a Formedon But if he hath issue and dies there the issue of the issue shal have a Formedon because that the assets is not discended to him Yet is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement and aliens the assets and dies his issue shall not have a Formedon because that his father was barred by judgement B. Tail 33. And if the tenant in tail hath issue two sons by divers venters and discontinues and dies and an ancestor collateral of the eldest son releases with warranty and dies without issue and the eldest son dies without issue before 〈◊〉 Formedon brought the younger son may recover by Formedon for he is not heir to the warrantor and his brother was not barred by judgement Yet B. doubts thereof for it seems to him that the discent of the Collateral warranty extincts the tail But if the eldest had been barred by judgement then clearly the younger is gon also 24. H. 8. B. Tail 33. Formedon 18. Tenant in tail the reversion to the King suffers a recovery operaturâ—y â—y it See Tit. Discontinuance de possession Recovery in value If the King gives lands in tail by his Letters Patents and after the donee surrenders his letters patents to the K. the Tail by this is not extinct 35. H. 8 B. Tail 38. The King Tenant in Tail cannot discontinue by grant by Patent See Tit. Discontinuance de Possession Tenant at Will Note for Law that there is no Tenant by sufferance but he that first enters by authority and lawfully as where a man leases for years or for term of anothers life and holds over his term after the term expired or after the death of cestuy que vie And Tenant at will is where a man leases his land to another at will for he who enters of his own head is a Disseisor Time H. 8. B. Tenant per copy 15. the end Tenant by Copy Note that t was said for Law
SOME NEW CASES OF THE Years and time of King Hen. 8. Edw. 6. and Qu Mary Written out of the Great Abridgement Composed by Sir ROBERT BROOK KNIGHT c. There dispersed in the Titles but here collected under years And now Translated into English by JOHN MARCH of Grays-Inn Barrister All which said Cases are by the Translator Methodised and reduced Alphabetically under their proper Heads and Titles With an exact Table of the principall Matter contained therein London Printed by T. N. for Richard Best and John Place and are to be sold at Grays-Inn gate and Furnivals Inn-gate in Holborn 1651. To the READER READER WHEN I considered what great care our Parliament had taken of the publick good in enacting our Laws to be translateâ— into English theâ—â— which certainly nothing more equall that the people might in some measure instruct themselves in that to which they are bound to obedience and of which by the Law it selfe they cannot nor must not plead ignorance And when I had likewise considered the excellent and most usefull Law that is contained in this little volume called Petty Brock I thought it a labour servicable to the publick to Translate it which I here present you in your own Language make use of it and you will finde Magnum in parvo great benefit in this little work and I doubt not give him thanks for it who is ambitious of nothing more then to be yours and the Common-wealths most Faithfull Servant Jo MARCH THE TABLE Abridgment page 1 DAmages increased after issue and verdict upon it page 1 Costs ibid Acceptance Lease of a Tennant for life is void by his death 1 Void and voidable Lease diversity 2 Acceptance by the issue in Taile of the second Lessee ibid Privity ibid Diversity ibid Apportionment ibid Acceptance by him in remainder ibid Acceptance by the successor of a Bishop ibid Payment at another place 3 Action Popular 3 Within the yeer ibid Action upon the Case 3 Mill 4 Where an Action upon the Case lies where not diversity ibid Delivery of goods traversed in detinue ibid Negat Pregnans ibid Action upon the Case for calling a man perjured ibid Action upon the Case for caling him perjured and justification in it ibid Of his own wrong 5 Bar in an Action upon the Case by Law wager in det ibid Plea to avoid double charge ib Travers ibid Action upon the Case upon finding of goods 6 Evidence ibid Action upon the Case upon a devenerunt to the hands of the defendant ibid Evidence ib Place in an Action upon the Case Assumpsit is not local 7 Place in det is not traversable ib Action upon the Case against executors ib Not guilty a good plea in an Action upon the Case and where not 8 Hiis similia in an Action upon the Case ib Action upon the Case upon trover ib The conversion to use traversed ib Evidence ib Action upon the Case for not payment of marriage money 9 Action upon the Statute His freehold no plea in an Action upon the statute ib Upon the statute of 5. R. 2. his freehold ib Avowing upon the statute and by common Law 10 Diversity ib Disclaimer ib His freehold is an Action upon the statute of 5. R. 2. ib Disseisor ib Accompt 10 Account against disseisors ib Privity necessary ib Account against a GardJan ib Pleading ib Adjournment 11 Cause and place of Adjournment ib Demurrer ib Dubious verdict ib Forreign Plea ib Certificate ib Administrators ibid Administration committed pending the writ ib Who shall commit administration vacate ib Episcopatu ib Relation ib Power and interest certain diversity 12 Who shall be said proximo de sanguine to take letters of administration by the statute ib Civil Law the law is since adjudged otherwise 13 See Ratcliffes Case my Lord Cook ib Land which is a Chattel shall by office 14 Age 14 Arreares of rent â—orâ— of Annuity and damage ib Diversity ib Scire fac against the heir ib Thing real and thing personal diversity ib Avowry ib Costs ib Where debt lies and where a scire fac 15 Diversity ib Where the King shall have his age where not ib Age of a parson prebend c. 10 Alienations ibid Where the heir within age shall be in ward where not ib Alienation by Tenant in Fee and by Tenant in taile diversity ib Relation of an office diversity 17 Fine for alenation intrusion licence to alien inmortmaine ib Variance from the licence ib Fine levyed ib Averment ib Two Joyntenants the one releases to the other diversity 18 Fine upon release upon conuâ—ance of his right c. diversity ib Estoppel ib Licence to Alien for life ib Burgage tenure ib Devise is an Alienation ib Alien see Tit. Denizen 18 Alien 19 Alien purchase ib Office ib Information ib The King shall have a Lease for yeers 20 Purchased by an Alien ib Amendment ibid Variance amended after judgment ib Amendment after a writ of error came to the common Bench ib In what thing the King shall amend his declaration in another term 21 Appeal ibid Not guilty in an appeal ib Se defendendum ib Evidence ib Justifie ib Indictment before the Coroners and before othe Justices ib Diversity 22 Appeal for Homicide ib Woman intiuled to an Appeal of death of her husband loses it by marriage ib Quarentine ib Coroner and his power ib Apportionment 23 Contract Apportion ib Approportionment by the common Law upon purchase ib Quaere ib Where a rent service shal be apportioned where not see before ib Recovery or discent of parcel 24 Rent Charge ib Arbitrement ib Pleading of a Condition in Barr ib Replication ib See Tit. Conditions ib Assets in their hands see Tit. Extinguishment 25 Demurr upon Evidence ib Legacies shall not be paid before Debts ib Assets per Discent Assets by Discent Judgement upon Assets found false plea ib Assigne 26 Assignee charged with the Covenant of his Grantor ib Audita quer ib Assise 26 Baily examined in Assise ib Attachment shall not be de bones alterius quam ten ib Of what things an Attachment ought to be 27 Election of his Tenant ib Assurances 27 Fine with proclamation to bind Tenant in tail and his issue 28 The Law is now otherwise see the Case of Fines in my Lord Coke ib Five years for the issue in tail to claim ib Equity ib Quaere ib 4. Hen. 7. cap. 24. ib Rast. Fine 8. ib Privity ib Fâ—ne confessed and avoided ib Intendment 29 Averment ib Fine by Conclusion ib Stranger ib Fiâ—e with proclamation by the tenant in tail the reversion or remainder to the King and common Recovery ib Diversity ib See my Lord Cokes first book ib Quere 30 Common recovery by the common Law and after the Statute diversity ib Assurance that the heir should not sell 31 To except the last obligation ib Attaint 32 False quantity in demands ib Attaint upon an Appeal of Maihew ib Ataint for termor ib
of the Countrey by Cerciorari to the Chancery and may be sent to the Justices of the Kings Bench by Mittimus and then they shall proceed upon it 36. H. 8. B. Certiorari 20. the end Certificate of the Bishop 'T was holden that if the Bishop certifies that such a person paid not his Tenths according to the form of the Statute which wills That ipso facto the Benefice shall be void that in this case a man shall not have an averment contrary to the certificate Time H. 8. B. Certificate devesque 31. the end Challenge Note by the Exchequer and both Benches where the parties are at issue in a plea of land where the land lies in three or four hundreds there if the Juror hath land in any of the hundreds or dwells in any of the hundreds it suffices 4. M. 1. b. Challenge 216. In Treason t is a good challenge to witnesses to say that he was one of his accusers b. Corone 219. And note that by the Statute of 33. H. 8. a peremptory challenge is ousted in case of high Treason yet by the said Statute Queen Mary t is enacted That all tryals of Treason shall be according to the order of the Common Law and not otherwise And therefore it seems that he may have a challenge peremptory as at Common Law S. 35. Jurors 4. M. 1. B. Challenge 217. Trials 151. the end Where a Grant of the Bishop or charge by him with the assent of the Dean and Chapter shall binde the successor and where not See Tit. Confirmation Charters of Pardon Note if a man be attained of murther or Felony by Outlawry or otherwise and the King pardons him all Felonies Murthers and Executions eorundem and Outlawries and Waivings and Sectam pacis And a pardon and release of all Forfeitures of Lands and Tenements and of Goods and Chattels shall serve but for the life and for the land if no Office be thereof found But it shall not serve for the goods without restitution or gift For the King is intitled to them by the Outlawry without Office but the King is not intituled to the Land till Office found And if an Office be found after yet the pardon shall serve for it shall have relation to the judgement then the mean pardon serves well contrary where an Office is found before the pardon granted for then the King is seised by the Office and there a release or pardon cannot give it but there ought to be a Gift or Grant 29. H. 8. B. Charters of Pardon 52. Note if alienation without licence be pardoned by Act of Parliament the party may enter without Ouster l'main or amoveas manum Otherwise by another pardon by letters Pattents 29. H. 8. B. Charters of Pardon 53. If intrusion by the heir post mortem antecessoris be found by Office and after the King pardons it by act of Parliament or by letters Pattents yet the heir shall sue Livery for this is not restored to him by a pardon but if the pardon were granted before Office found and at the making of the pardon the heir is of full age he shall retain the land and the Office found after the pardon shall not hurt him 30. H. 8. B. Charters of Pardon 54. Chattels If Lessee for years devise his Term or other his Chattel or Goods by Testament to one for term of his life the Remainder over to another and dies and the Devisee enters and aliens not the Term nor gives or sels the Chattel and dies there he in Remainder shall have it but if the first Devisee had aliened given or sold it there he in the Remainder had been without remedie for it B. Chattels 23. Done 57. And so B. seems if they be forfeit in his life he in remainder hath no remedy 33. H. 8. B Done 57. the end Choice in Action Thing in Action Note where the Statute of 31. H. 8. gives to the King the possessions of Abbies and all rights of Entries Actions Conditions and the like which the Abbies might have had and that he shall be in possession without office and that he shall be adjudged in actual and real possession of them in such plight and sort as they were at the time of making of the Statute Yet if an Abbot were disseised of 4 acres of land the King cannot grant it over before entry made by him in it because t is a thing in action real and not like to a thing in action personal or mixt as debt ward and the like by some And some è contra by reason of these words That the King shall be in possession Yet by B. this seems that he shall be in such possession as the Abbot was S. of a thing of which the Abbot had possession the King hath of this actual possession of such of which the Abbot had but a cause of entry or right in action of these the King shall be vested of a Title of entry and Title of action But the thing to which he hath such cause of entry or of action is not for this in him in possession and therefore cannot pass from the King by general words but B. seems if the King recites the diseisen and how the right and action thereof is given to him by the Statute and grants it specially that t is good 33. H. 8. B. Choice in Action 14. 'T was said for Law That the King may grant a thing in action which is personal as debt and dammages and the like or a thing mixt as the ward of body but not a thing real as an action of land and the like as Rights Entries Actions and the like which Abbots might have And that the King shall have these by the Statute of dissolution of Abbies 31. H. 8. These things in action the King cannot grant Yet by B. see if there be not words in this Statute to put the King in possession though the Abbot were put to his action 33. H. 8. B. Pattents 98. Clergy No man shall have his Clergy but where his life is in jeopardie and therefore not in petty larceny And the Bishop is Ordinary all Priests Abbots and others inferior to him which demand Clergy or have Clergy and if the Bishop hath his Clergy the Metropolitan shall keep him as his Ordinary and if the Metropolitan offend and hath his Clergy the King shall have him and keep him the same is of Laps Reading B. Clergy 19. Corone 183. Note That at this day Bigamus shall have his Clergy by the Statute but a man attainted of Heresie shall not otherwise of a man excommunicated and a Jew nor Turk shall not have their Clergy and a Greek and Roman who use not our letters shall have their Clergy and shall stay till a book of letters of their countrey comes B. Clergie 20. And if a man who is captus oculis prayes his Clergy he shall have it if he
cause the owner may make rescous but if he impounds them the owner cannnot justifie the breaking of the pound and taking them out for they are in Custodia Legis 4. E 6 B. Distress 74. Rescous 12. the end Done Gift Devisee for life of a Chattell the remainder over he for life gives the Chattell whether this shall barr the remainder See Tit. Chattells T is said for Law that if a man gives omnia terras tenementa sua in D by this leases for years do not pass for these words lands and tenements shall be intended free hold at least 37. H. 8. B. Done 41. The difference betwixt a gift in Remainder Heredibus masculis de corpore rectis Heredibus See Tit. Discent T was granted by Shelly Justice and others that if the King give a Chattell without deed and the donee takes it by his commandment t is good 2. E. 6. B. Done 16. the middle If a man gives or grants omnia bona sua leases for years nor award shall not pass for they are Chattels reals And B. seems that a grant of Prox ' present Ecclesiae unica vice is a Chattell non bona for bona are goods moveable living and dead but not Chattels 4. E. 6. B. Grants 51. Done 43 Dower A woman shall not be endowed of a rent reserved upon a lease of her husband for term of life for the rent is not an inheritance and t is determinable upon the death of the Lessee and yet the heir shall have it for t is incident to the reversion And where a man seised in fee leases for years rendring rent and afterwards takes wife and dies the wife shall have dower of the land but shall not have execution during the term of years for elder title c. and she cannot be indowed of the rent for the cause aforesaid 1. E. 6. B Dower 89. Note by the Justices by the Statute where a man makes his wife joynt purchaser with him after the coverture of any estate of free-hold except it be to him and his wife and their heires in see simple this is barr of Dower if she agree to the joynture post mortem viri otherwise of fee simple for such joynture is not spoken in the Statute Nor a devise of land by the husband to the wife by testament is no barr to Dower for this is a benevolence and not a joynture 6. E. 6. B. Dower 69 Dum non fuit compos mentis Note that if a Judge or Justice be of non sane memory yet the Fines Judgements other records which are before him shal be good But otherwise of the gift of an office or the like by him for this is matter in fact and the others are matters of record for matters in fact may be avoided by non sane memory otherwise of matter of record 1. M. 1. B. Dum non fuit compos mentis 7. Ejectione Custod T Was said that a man shall have a Writ de Ejectione custodie of a rent and this before seisin of it for seisin in Law shall be thereof adjudged by reason that he cannot receive it before the rent day Yet otherwise of land for there he may enter 23 H 8 B. Quare ejecit infra terminum 5. Enquest Note betwixt the King and the Bishop of Rochester for Treason the Bishop shall not have Knights in his Jury where Knights ought to be returned when a Peer of the Realm as a Bishop and the like is party yet quaere if it were challenged 27. H. 8. B. Enquest 100. T was holden in the common Bench by the Prothonatories if a protection be cast at the day of Nisi prius and the Justices take the Jury de bene esse and at the day in bank the protection is allowed now though the first â—aking is void yet the Inquest shall not be recharged by resummons for when the Inquest is once sworn and give verdict they shall never be sworn again upon this issue 2. M. 1. B. Enquest 86. Entre congeable lawfull Entry Tenant for term of life aliens to B. to have to him and his heires for term of life of Tenant for term of life this is no forfeiture for all is but the limitation of the estate B. Forfeiture of lands 87. And if Tenant for terme of life suffers a recovery he in reversion cannot enter but is put to his Writ of Entrie ad terminum qui preteriit or Writ of Right and shall falsifie the recovery in it if he hath cause And if he will have it sure the Tenant for life ought to pray in aid of him in reversion and if he joynes in aid and both vouch over then well upon recovery had c. as betwixt Corbet and Clifford in the Countie of Buck ' this year But if Tenant for life be impleaded and prayes in aid of a stranger he in Reversion may enter for this is a forfeiture But if he doth not enter till the other hath recovered then he cannot enter but is put to his writ of Entrie ad terminum qui preteriit vel ingres ad communem legem and shall falsifie the recovery there 24. H. 8. B. Entrecongeable 115. Fauxifier 44. Forfeiture of Lands 87. the end Cestuy que use in tail suffers a recovery against him upon a faint title before the Statute of Uses and dies the Feoffees cannot falsifie it in an assise by way of entry but shall have a writ of entry ad terminum qui preteriit or a writ of right and shall falsifie it by this action B. Entre congeable 123. Fauxifier 49. And if he Leuies a fine with proclamation and dies if a stranger of his own head enters in name of the Feoffees or to their use within the 5 years this shall avoid the â—ine though the Feoffees did not command him for by this the freehold is in them till they disagree or till another enters 31. H 8. B. Entre congeable 123. the end T was doubted if a recovery had against cestuy que use in tail shall binde the heire in tail But by Hales Just. by such recovery the entry of the Feoffees seised to the use of the estate taile is taken away but after the death cestuy que use who suffered the recovery the Feoffees may have a writ of right or writ of entrie ad terminum qui preteriit in the post or the like And by some there is no use in tail but t is a fee simple conditional at the common Law as t was of a tail before the Statute of W. 2. And this Statute makes not mention but of gifts in tail which is tails in possession And therfore quaere if the tail in use cannot be taken by the equity of it yet t was doubted if the issues and the Feoffees shall be bound after the death of cestuy que use who suffered the recovery by reason of those words in the
is taile in possession and therefore quaere if the taile in use cannot be taken by the equity of it yeâ— 't was doubted if the issues and the Feoffees shall be bound after the death of cestuy que use who suffered the Recovery by reason of those words in the Stat of 1 R 3. which will that the Recovery shall bee good against the Vendor and his Heirs clayming only as Heir and against all others clayming only to the use of the Vendor and his Heirs and this is intended by some of a Fee simple And in the case aforesaid the issue in taile claymeth as Heir in taile in use B Feofments to uses 56 the middle yet see the Stat of 32 H 8. That 〈◊〉 Fine with Proclamation levyed or to be levyed by tenant in taile in possession Reversion Remainer or in Use after Proclamation had shall binde â—hose tenants of those tayles and their Heirs for ever And see that the same â—tat is as well for the time past â—s to come 30 H 8. B. Feofments to uses 57. If Covenants and Agreements are â—onteined in Indentures and not uses â—nd 't is Covenanted by the Indentures â—hat A shall recover against B his Land in D to the use of the recoveror â—nd his Heirs and to the uses of the Covenants and Agreements in the Indentures there if he recovers the reâ—overy shall be to the use of the recoveror and his Heirs and not to the uses of the Covenants and Agreements in the Indentures where no uses are in the Indentures But otherwise if uses are conteined in the Indentures â—nd 't is Covenanted That A shall recover to the use of A and his Heirs and to the uses in the Indenture there the recovery shall goe according and shall be executed by the Stat 32 H 8. B Feoffments to uses 58. 'T was agreed by all the Justices upon great deliberation in the case of Mantel Esq of the County of North who was attainted with the Lord Dacres of the South for the death of a man which see Tit Corone that where he at his marriage 31 H 8. after the Stat of uses made 27 H 8. Covenanted That for a 100. l. and in consideration of marriage that hee and his Heirs and all persons seized of his Lands and Tenements in H shall bee thereof seized to the use of his wife for term of her life and after to the Heirs of his body by her ingendred that this shall change the use well enough and very good And by this the Land was saved and was not forforfeited 34 H 8. B Feoffments to uses 16. the end A man purchases Land and causes an Estate to bee made to him and his wife and to three others in Fee this shall bee taken to the use of the husband only and not to the use of the wife without speciall matter to induce it And so see a Woman may be seized to the use of her husband and by him such Feofment was 3 H 7. and intended as aforesaid 34 H 8. B Feoffments to uses 51. A man makes a Feofment in Fee to his use for term of life that after his decease I N shall take the profits this makes a use in I N contrary if he saies that after his death his Feoffees shall take the profits and deliver them to I N this doth not make a use in I N for he hath them not but by the hands of the Feoffees 36 H 8. B Feoffments to uses 52. A man cannot sell Land to I S to the use of the Vendor nor let Land to him rendring rent habend to the use of the Lessor for this is contrary to Law and Reason for he hath recompence for it And by Hales a man cannot change a use by a covenant which is executed before as to covenant to bee seised to the use of W S because that W S is his Cosin or because that W S before gave to him twenty pound except the twenty pound was given to have the same Land But otherwise of a consideration present or future for the same purpose as for one hundred pounds paid for the the Land tempore commentionis or to bee paid at a future day or for to marry his daughter or the like 36 H 8. B Feoffments to uses 54. Note a Recovery was suffered by Graseley of the County of Stafford by advice of Fitz Serjeant and others and he was only cestuy que use in tail and after he died without issue and his brother recovered the Land in the Chancery for at this time 't was taken that a Recovery against cestuy que use in taile should not serve but for term of his life by which 't is not but a grant of his estate Time H 8. B Feoffments to uses 48. the end By Fitz Just if the Feoffees to the use of an Estate taile sell the Land to him that hath notice of the first use yet the buyer shall not be seised to the first use but to his own use by reason of the bargaine and sale for the Feoffees have the Fee simple and therefore their sale is good Time H 8. B Feoffments to uses 57. the middle Note per plures If a man makes a Feofment in Fee before the Stat of uses or after this Stat to the use of W and his Heirs till A pay fourty pound to the said W and then to the use of the said A and his Heirs and after comes the Stat of uses and executes the Estate in W and after A paies to W the 40. l. there A is seised in Fee if he enters yet by some A shall not be seized in Fee by the said payment except that the Feoffees enter B doubts thereof and therefore it seems to him best to enter in the name of the Feoffees and in his name and then the one way or the other the entry shall be good and shall make A to bee seised in Fee and also see by B that a man at this day may make a Feoffment to a use and that the use shall change from one to another by act ex post facto by circumstance as well as it should before the said Statute 6 E 6. B Feofments to uses 30. 'T was holden per plures in the Chancery if a Recovery bee had in which cestuy que use in taile is vouched and the demandant recovers then this shall bind the issue Time E 6. B Feofments to uses 56. the end If a Covenant bee by Indenture that the sonne of A shall marry the daughter of C for which C gives to A a hundred pound and for this A covenants with C That if the marriage takes not effect that A and his Heirs shall bee seised of a hundred and fiftie acres in D to the use of C and his Heirs quo usque A his Heirs or Executors repaies the hundred pound and after C hath issue within age and dies and after the
6 E 6. B Fines Levies 93. Note that 't was agreed by the Justices that a Fine may be well levyed in a Hamlet and this notwithstanding all the houses are decayed but one The same of a Writ of Dower And the same Law of that which hath been a Ville and no wis decaid yet the name of the Ville remains as old Salisbury which hath at this day Burgesses of Parliament and the like 7 E 6. B Fines Levies 91. Forcible Entry Hee which hath been seized peaceably by three yeeres may retaine with force But if a Disseizor hath continued possession three yeers peaceably and after the Disseisee re-enters as he may lawfully and after the Disseisor re-enters hee cannot deteine with force because that the first disseisin is determined by the entry of the Disseisee and the Disseisee by this remitted and this Entry is a new Disseisin But if a man hath beene seised by good and just Title by three yeeres and after is disseised by wrong and after hee re-enters hee may retaine with force for he is remitted and in by his first Title by which hee first continued peaceably by three yeeres per quosdam for it seemes to them by the Proviso in the end of the Statute that this is good Lawe in the last Case and stands well with the Statute yet by some this is not Law therefore quaere 23 H 8. B Forcible entry 22. Forfeiture of Marriage 'T was said if a man brings a Writ of Intrusion maritagio non satisfac for the single value and makes mention in the Writ of tender of marriage to the Heir and that hee refused c. that the tender is not traversable Time H 8. B Forfeiture of Marriage 7. Intrusion 23. in finibus Forfeiture de Terre c. Forfeiture of Land c. What shall be a forfeiture of the Estate of Tenant for life what not See Tit Entry Congeable Richard Fermor of L was attainted in Premunire and his Lands forfeited in Fee in perpetuum and not only for term of life And so see 't is not only a forfeiture for life as in an attaint for the one is by Statute the other by the Common-Law 34 H 8 B Praemunire 19. the end Forfeiture 101. Note If a man bee attainted of Treason by Parliament by this his Lands and goods are forfeited without words of forfeiture of Lands or Goods in the Act 35 H 8. B Forfeiture 99. Foundership cannot Escheate nor be forfeited by attaindor of Felony or Treason See Tit Escheate Note by Hales Justice cleerly that â— Cleark convict shall lose his goods â— E 6. B Forfeiture 113. Formedon 'T is said that if the issue in taile bee â—arred by Judgement by reason of warranty and assets discended and afâ—er hee aliens the assets and hath issue â—nd dies the issue of the issue shall not â—ave a Formedon of the first Land tayâ—ed but if such thing happens before â—ee bee barred by Judgement the issue of the issue shall have a Formedon Time H 8. B. Formedon 18. Note If the Feoffees are infeoffed â—o the use of the Feoffor for terme of â—ife and after to the use of A in taile before the Statute of 27 H 8. of uses and after the Estates in uses are veâ—ted in possession by the same Statute and after the tenant for life dies and â—he tenant in tayle enters and disconâ—inues and dies and the issue brings a Formedon upon this matter hee shall â—uppose the Feoffor to be Donor and â—ot the Feoffees and the Writ shall â—ee generall quod dedit c. but the Declaration shall bee speciall and declare the whole matter That the Feoffor was seised in fee and enfeoffed thâ— Feoffees to uses ut supra and shew the Execution of the Estates by thâ— Statute of uses made 27 H 8. briefly and not at large and the seisin c. and the death of tenant for life and tenant in taile quod post mortem c. discend jus c. 2 E 6. B Formedon 49. Formedon upon a gift in Fee to thâ— use of the Feoffor and the Heirs of hiâ— body which is executed by the Statute of uses 27 H 8. and after thâ— Feoffor aliens and dies his issue shalâ— have a Formedon that the Feoffees 〈◊〉 derunt tenement predict to the father of the Demandant discendâ— jus c. for it cannot bee supposeâ— that the Feoffor gave to cestuy que usâ— which was himselfe for a man cannot give to himselfe and hee shaâ— make a speciall Declaration upon thâ— Feoffment to the use of the taile But where A makes a Feoffment in Fee to three to the use of a Stranger and the Heirs of his body which is exempteâ— by the Statute aforesaid and after who was cestuy que use aliens in feeâ— and dyes there his issue shall have a Formedon and shall say that the Feoffor gave to his father and not the Feoffees gave and shall make a speciall Declaration 7 E 6. B. Formedon 46. Generall Briefe 14. Note by Bromeley chief Justice That the Demandant in the case 2 E 6. before may declare generallly if he will and if the Tenant pleads ne dona pas the Demandant may reply and shew the speciall matter as appears there and conclude so he gave c. and good 1 M 1. B Formedon 49. the end Forme Note that Wood was put before Pasture in a Plaint of Assize and exception thereof taken and yet good though it be contrary to the Register Time E 6. B Faux Latin Forme 66. Franke-marriage Note that 't was said for Law that Land cannot bee given in Frank-marriage with a man who is Cosin to the Donor but it ought to be with a woman who is Cosin to the Donor Time H 8. B. Frank-marrige 10. Note 't is said for Law that a Gift in Frank-marriage the remainder to I N in Fee is not Frank-marriage for warranty and acquittall is incident to Frank-marriage by reason of the Reversion in the Donor which cannot be where the Donor puts the remainder and Fee to a Stranger upon the same Gift Time H 8. B Frank-marriage 11. Garde Warde IF the Kings Tenant Alien in Fee without licence and dyes his Heire within age the King shall not have the Ward because that nothing is discended to him and that the alienation is good save the Trespass to the King which is but a Fine by Seisure 26 H. 8. B Alienations 29. Garde 85. If the King hath an heir in Ward which is a Woman and marries her before the age of Fourteen years there she shall be out of Ward at Fourteen years and then may sue Livery for the Two years to make Sixteen years are not given but to tender to her marriage therefore when shee is married sooner shee shall be out of custody at Fourteen years 28. H. 8. B. Garde 86. Livery 54. A man
jâ—â—â—dicial jurisdiction and another is 〈◊〉 that these are sufficient causes to eleâ— new ones wherefore they did so 〈◊〉 the Kings Writ out of the Chancer comprising this matter which was aâ—â—mitted and accepted in the Commoâ— House of Parliament 38. H. 8. B. Parâ—â—â—ament 7. Parnour Taker of the profits An Office is found after the death Cestuy que use that he died seised and the heir is in ward of the King and after a Recovery is had against the Heir during the Possession of the King as against the Pernour of the profits before the Statute of Uses 27. H. 8. the Feoffees traverse the office or sue an Ouster l'main this Recovery shall binde the heir but the Recoverer cannot enter during the Possession of the King 29. H. 8. B. Pernour 32 A man cannot aver another Pernour of the Profits of other things which are not in demand B Pernour 4. the middle Patents The King gives Land to I S. Et heredibus masculis suis the grant is void See Tit Estates If the King Licences his Tenant to alien his Mannor of D and he aliens it except one acre the licence shall not serve it for the King is not assertained of his Tenant of all And if I have a Licence to impark 200 acres and do it according and after increase by other 10 acres there this is not a Park 23. H. 8. B. Patents 76. If the King grants omnia terras tenementa sua in D. this is a good grant these general words 30. H. 8 B. Patents 95. The King gave to the Earl of Rutland in Tail and after intended to give to him in Fee simple and to extinct the Tail and t was doubted that the surrender of the Letters Patents of the Tail and the cancelling of them and of the Inrollment and Bill assigned will not extinct the Tail for the Tail executed may be averred without shewing the Patent And a Formedon lies after the Tail executep without shewing the Patent And t was taken that t was not a good surety for the King for his services to give the reversion to to hold the reversion by such services when it vests and to except the first services during the Tail for when the reversion is gone the Rent and Services reserved upon the Tail are gone as wel in case of the King as a common person And therefore the devise was that the King by a new Patent reciting the first Patent shall give the Reversion and the first Rent and Services to have in Fee to hold by such Services and rendring such Rent and by this the King shall have the new Tenur presently and the Grantee shal not be charged with double Services and Rents during the Tail and t was agreed for Law that if a man loses his Letters Patents he shall have a Constat of the Letters Patents out of the Inrolment and Bill assigned which remains in the Chancery And therefore B. seems that the Inrolment shall not be cancelled B. Patents 97 And t was agreed by Whorewood the Kings Attorney optimos legis peritos that if Tenant in Tail of the Gift of the King surrenders his Letters Patents this shal not extinct the Tail for the Inrolment remains of Record out of which the issue in Tail may have a Constat and recover the Land wherefore they made the Devise aforesaid viz that the King shall grant to the said Earl Tenant in Tail the Fee simple also and then a Recovery against him will barr the Tail Otherwise the Reversion being in the King B. Surrenders 51. And t is said for Law if the King gives in Fee or in Tail or for life the Patentee Leases for years or grants Leases or gives part of the Land or of the Interest to another and after surrenders his Patent by which t is cancelled this shall not prejudice the third person that he shall lose his interest by it for he may have a Constat out of the enrolment which shall serve him Quaere inde because a Statute is made of it And Quaere if the Common Law shall not serve for it appears in the book of Entries fo that a man pleaded a Constat 32. H. 8. B. Pattents 79. the end Surrender 51. What thing in action the King may grant what not See Tit. Choise in action If the King grant a Balywick or sheriffwick to I. S. absque compotoreddend the word absque compot is worth nothing for t is contrary to the Nature of the thing granted 36. H. 8. B. pattents 99. If Conusance of plea be granted by the King he ought to shew where as in Guild-hall or the like and before whom as before his Steward c. And the King may grant Toll Fair Market and the like but not to have Assise of Fresh force nor Toll traverse nor Through Toll nor that the Land shall be Devisable Borrough-English Gavelkinde nor the like for these are by Custom which cannot commence at this day by grant for the King cannot make a Law by his grant and that by grant of Conusance of pleas he shall not hold plea of an assise nor of a certificate of assise And t is said for Law That a false consideration in Letters patents shal not avoid them as where the King for ten pound to him paid gave such Land and the ten pound is not paid the patent is not void shall not be repealed Contrary of a patent granted upon a false surmise as to falsifie that the land came to the King by attainder of I. S. which is not true or the like Quaere the diversity 37. H. 8. B. patents 100. Where the King Tenant in Tail cannot discontinue or charge by grant by patent See Tit. Discontinuance de possession Note that t was agreed That where the King grants Land which is in Lease for tearm of years of one who was attainted or of an Abby and the like that the grant is good without recital of the Lease of him who was attainted or of the Abby for he shall not recite any Lease but Leases of Record Time H. 8. B. patents 93. T was granted in the case of Thomas Inglefield Knight where the King Receits quod oum A. B. tenet manerium de B. protermino vitae suae de concessione nostra c. Sciatis nos concessisse C. S. reversionem manerii predict c. Habendum c. that this is a good Grant Therefor B. seems that if the King mis-recites the date of the first Letters Patents or the like yet if he well recites the estate and the thing and the name of the Lessee that then the Grant of the Reversion is good For where the King takes notice of his Tenant for term of life and of his estate and grants the Reversion he is not deceived in his Grant for he takes upon him notice of the former Interest for life and then the date of