PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is a Covenant reall annexed to the Land by him which either was owner or might have inherited the Land and from whom his heire lineall or collaterall might by possibility have claimed the Land as heire from him that made the warranty In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
although he can have no heire but of his body 39. E. 3. 11. 24. 17. E. 3. 42. 35. As 13. 41. E. 3. 19 An office which concernes the benefit or safety of the commonwealth c. granted to a man which is unexpert and hath no skill or science to exercise or execute the same the grant is merely void and the party disabled by law to take the same pro commodo regis populi Dier 150. An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion No man though neven so skilful c. Is capable of a judiciall office in reversion but must expect untill it fall in Possession l. 11. 2. Sect. 378. The King is capable of an office not to use but to grant A purchase is c. when one cometh to lands by conveiance or title and not by tort as by disseisin c. Note that purchasers of lands tenants leases and hereditaments for good and valuable consideration shall avoid all former fraudulent and convin conveiance estates grants charges and limit of uses of or out of the same Stat. 27 El. cap. 4. 3. b. 13 El c. 5. l. 3. 80. Twines c. States of inheritances of lands are either certain or unmoveable whereof Littl. here speaketh or incertain and moveable as if partition be made between two Co-partners of one and the self same land that the one shall have it the first year and the other the second year alternis vicibus c. 4. 2. l. 1. 87. F. N. B. 62. Between pastura pascuum the legal difference is this that pastura in one signification containeth the ground it selfe called pasture and by that name is to be demanded Pascuum is wheresoever cattel are fed of what nature soever the ground is and cannot be demanded in a praecipe by that name 4. b. many things may pass by a name that by the same name cannot be demanded by a praecipe for that doth require a more perscript form but whatsoever may be demanded by a praecipe may pass by the same name by way of grant Ibid. 5. b. If the feoffor be bound to warranty and so to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such charters as may serve him to deraign the warranty paramount but other evidences which concern the possession and not the title of the land the Feoffee shall have them 6. a. l. 1. 1. 2. There have been eight formal or orderly parts of a deed of feoffment viz. 1. The premises 2. Habendum 3. Tenendum 4. Reddend 5. The clause of warrant 6. The in cujus rei testimonium sigillum c. 7. The date 8. The clause of his testibus The office of the premise of the deed is twofold 1. Rightly to name the feoffor and the feoffee and 2. to comprehend the certainty of the lands to be conveied c. Either by express words or which may by reference be reduced to a certainty for certum est quod cert reddi potest c. Vide libr. The Seal is of the essential part of the deed The date many times antiquity omitted for that the limitation of prescript or time of memory did often in processe of time change and the law was then holden that a deed bearing date before the limited time of prescript was not pleadable and therefore they made their deeds without date to the end they might alledge them within the time of prescription The date was commonly added in the Reign of Ed. 2. 3. 6. a. quae sunt minoris culpae sunt majoris infamiae Reg. he that loseth liberam legem becometh infamous and can be no witness As if a Champion in a writ of right become recreant or coward But oftentimes a man may be challenged to be of a Jury that cannot be challenged to be a witness and therefore though the witness be of the nearest alliance or kinred or of counsel or tenant or servant to either party or any other exception that maketh him not infamous or to want understanding or discretion or a party in interest though it be proved true shall not exclude the witness to be sworn 22 Ass 12. 41. If a witnesse be outlawed in a personal act hee cannot be joyned to the Jury but yet that is no exception against him to exclude him to be sworn as a witnesse to the Jury for that he with others should join in verdict with the Jury in affirmance of the deed the party should be barred of his attaint because there is more then twelve that affirm the verdict But note there must be more then one witnesse that shall be joyned to the enquest Inst 6. b. Max. Witnesses cannot testifie a negative but an affirmative when a trial is by witnesses the affirmative ought to be proved by two or three witnesses as to prove a summons of the Tenant or the challenge of a Juror c. But when the trial is by verdict of 12 men there judgement is not given upon witnesses c. but upon the verdict c. Probatio duplex viva sc per testes mortua par chartas c. presumptio triplex 1. Violenta 2. Probabilis 3. Levis seu temeraria Many time Juries together with other matters are much induced by presumptions In case of a Charter of feoffment if all the witnesses be dead c. Then violent presumption which stands for a proof is continual and quiet possession for ex diuturnitate temporis omnia praesumuntur solenniter esse acta Also the deed may receive credit per collationem sigillorum scripturae c. Glan l. 10. c. 12. A wife cannot be produced either against or for her husband quia sunt duae animae in carne una In some cases women are by law wholly excluded to bear testimony as to prove a man to be a Villain Mulieres ad probationem Status hominis admitti non debent Fleta l. 2. c. 44. In an information upon the statute of usury the party to the usurious contract shall not be admitted to bee a witnesse against the usurper for in effect he should be testis in propria causa and should avoid his own bonds c. Smiths case T. 8. J. in C.B. Brit. 134. He that challengeth a right in the thing in demand cannot be a witness for that he is a party in interest Britton fol. 134. 6. b. Tenementum is a large word not only to passe lands and other inheritances which are holden but also offices rents commons profits apprehender out of lands c. wherein a man hath any franktenement and whereof he is seised ut de libero tenemento But haereditamentum is the largest word of all in that kind for whatsoever may be inherited is an haereditamentum be it corporeal or
incorporeal real or personal or mixt 6. a. If a man by deed give lands to another and to his heirs without more saying this is good ut res magis valeat quam pereat if he put his seal to the deed deliver it and make livery accordingly So it is if A give lands to have and to hold to B and his heirs this is good by construction of the Law but when form and substance concur then is the deed fair and absolutely good fol. 7. a. In ancient charters c. there was never mention made of the delivery of the deed or any livery of seisin indorsed for the witnesses named in the deed were witnesses of both ib. Witnesses are very necessary for the better strengthning of deeds fol. 7. b. Haeres legitimus est quem nuptiae demonstrant and is he to whom Lands Tenemenrs and Hereditaments by the act of God right of bloud do descend of som estate of enheritance for Solus Deus facere potest haeredem non homo haeres ab haerendo nam qui haeres est haeret vel dicitur ab haerendo quia haereditas sibi haeret c. Vide libr. Partus cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter bene debet inter liberos connumerari Si inutilia nostra reddidit ut si membra tortuosa habuerit non tamen is partus monstrosus Bract. l. 5. f. 437. A denizen by the Kings Letters Patents cannot be heir c. But otherwise is it if he be naturaliz'd by Act of Parliament and if one be made denizen the issue that he hath afterwards shall be heir to him An alien cannot he heir c. Propter de sectum subjectionis Fol. 8. a. Where the Sons by no possibility can be heir to the Father the one of them shall not be heir to the other as if an alien cometh into England and hath issue c. l. 7. Calvins Case A man attainted of Treason or Felony can be heir to no man nor any man heir to him propter delictum A man hath issue two sons and after is attaint c. And one of the sons purchase Lands and dieth without issue the other brother shall be his heir for the attainder c. corrupteth the lineal bloud only not the collateral bloud between the brethren which was vested in them before the attainder But if a man after he be attainted have issue c. Autrement est In case where filiatio non potest probari the child may choose his Father A man by the common law cannot be heir to Goods or Chattels for haeres dicitur ab haereditate Haeres astrarius so called ab astre i. e. an harth of an house cum Antecessor restituat haeredi in vita sua haereditatem c. fol. 8. b. Si uxor dicit se esse praegnantem de ipso defuncto cum non sit habeat haeres brevium de ventre inspic nemo est haeres viventis apparens dicitur If a man give land unto two haeredibus omitting suis they have but an estate for life for the uncertainty 10 H. 6. 7. Pl. Com. 28. b. Ceux parolx ses heirs tantsolement font lestate denheritance en touts Feoffments and grants Here Littleton treateth of purchases by natural persons and not of bodies politique or corporate As the heir doth inherit to the ancestor so the successor doth succeed to the predecessor and the executor to the Testat An ancient grant must be expounded as the law was taken at the time of the grant 17 E. 3. 25. b. Sub vocabulis haeredibus suis omnes haeredes propinqui comprehenduntur remoti nati nascituri fo 9 a. Fleta l. 3 c. 8. The law is precise in prescribing certain words to create an estate of inheritance for avoiding of uncertainty the mother of contention and confusion Pl. Com. 163. There bee many words so appropriated as that they cannot be legally expressed by any other words c. Some to estates of lands some to tenures some to persons some to offences some to forms of Originall Writs some to warrant c. Satus dicitur à stando An estate of inheritance granted by the great Seal c. is descendible according to the cours of the common law Hereditas est duplex Corporata viz. Of Lands and Tenements which may pass by Livery by Deed or without Deed. Incorporata as Advowsons Commons c. which cannot pass by livery but by Deed. The Deed of incorporaet inheritances doth equal the livery of corporeate al I. S. habend sibi succes sive haered suis ē fee s. Si. soit per Letters Patents A conveiance by feoffment cleareth all disseisins abatements intrusions and other wrongful or defeasible estates where the entry of the feoffor is lawful which neither fine recovery nor bargain and sale by deed indented and inrolled doth Sometime when an estate of freehold only doth pass improperly it is called a feoffment Done est nosme general plus que nest feoffment car done est general à touts choses moebles nient moebles Feoffment est riens forsque del soil If a man devise lands to a man in perpepetuum or to give and to sell c. A fee simple doth pass by the intent of the devisor Fol. 9. b. A man deviseth land to one sanguini suo that is a fee simple but if it be semini suo it is an estate tail Br. tit tail 21. So that ceux parolx ses heirs tantsolement c. Extend not 1. To last Wills and Testaments 2. Not to a fine sur conusans de droit come ceo c. 3. Nor to certain releases 4. Nor to a recovery 5. Nor to a creation of Nobility by Writ But out of This rule of our Author the Law doth make divers exceptions as 1 If the Son infeoff the Father as fully as the Father infeoffed him 2. In respect of the consideration as if lands be given in frankmarriage generally 3. If a feoffment or grant be made to any corporation aggregate of many persons capable 4. In case of a sole corporation as if a feoffment in fee be made to a Bishop habendum c. In libera elemosina 5. In grants sometimes as if one coparcenor for owelty of partition grant a rent to the other generally c. Ipsae etenim leges cupiunt ut jure regantur 6. By the Forrest Law if an Assart be granted by the King to another habendū tenend sibi in perpetuū he hath a fee simple without this word heirs fol. 10. a. And this rule c. extendeth to the passing of estates of inheritances in exchanges releases or confirmations that enure by way of enlargement of estates warranty bargains and sales by Deed indented and inrolled c. In which this word heirs is also necessary for they do taptamount to a Feoffment or grant ubi eadem ratio ibi idem jus A man may purchase lands to
him and his heirs 1. By Feoffment 2 By Grant 3. By Fine which is a Feoffment of Record 4. By common recovery in nature of a Feoffment of recovery 5. By Exchange 6. By Release to a particular Tenant 7. By confirmation c. which are in nature of Grants c. 9. By bargain and sale by Deed c. Ordained by Statute 10. By devise by custome of some particular place and by Will in Writing generally by authority of Parliament 27 H. 8. ca. 16. 32 H. 8. ca. 2. 34 H. 8. cap. 5. If a disseisin abatement or intrusion be made to the use of another if cesty que use agreeth thereunto in pays by this bare agreement he gaineth a Fee Simple without any livery of seisin c. Sect. 2. Linea recta semper praefertur transversali Proximus excludit propinquum propinquus remotū remotus remotiorem fol. 10. b. Proximum Sumitur duplici sc Jure propinquitatis and he that is thus next c. is mediately inheritable Jure representationis and so one is immediately inheritable and accounted in Law next of bloud A Lease for life is made to A. the remainder to his next of bloud in this case he that is next of bloud and capable by purchase shall have the remainder though he be not legally next to take as heir by discent note the diversity Sect. 3. Maxime so called quia maxima est ejus dignitas certissima autoritas atque quod maximè omnibus probetur Pl. com 27 Lineal ascent is prohibited by the law but not Collateral c. fo 11. a. Littletons proofs and arguments drawn from the common law are first from the maxims rules intendment and reason of the common law 2. Ab autoritate pronūciatis 3. A rescriptis valet argumentum 4. From the form of good pleading 5. From the right entry of judgments 6. A praecedentibus approbatis usu 7. A non usu 8. Ab artificialibus argumentis consequentibus conclusionibus 9. A communi opinione jurisprudentium 10. Ab inconvenienti 11. A divisione vel ab enumeratione partium 12. A Majore ad minus à minore ad majus à simili à pari 13. Ab impossibili 14. A fine 15. Ab utili vel inutili 16. Ex absurdo 17. A natura ordine naturae 18. Ab ordine religionis 19. A communi praesumptione 20. A lectionibus jurisprudentium From Statutes his Arguments and proofs are drawn 1. From the rehearsal or preamble of the Statute 2. By the body of the law diversly interpreted sometimes by other parts of the same statute which is benedicta expositio ex visceribus causae Sometime by reason of the common Law But ever the general words are to be intended of a lawful act and such interpretation must ever be made of all statutes that the innocent may not be damnified c. fol. 11. b. There be divers laws in England As first lex Coronae 2. Lex consuetudo Parliamenti 3. Lex naturae 4. Lex communis Angliae 5. Statute Law 6. Consuetudines 7. Jus belli in republica maximè conservanda sunt jura belli 8. Ecclesiastical or Canon Law in Courts in certain cases 9. Civil Law in certain cases only in Courts Ecclesiastical but in the Courts of the Constable and Marshal and of the Admiralty 10. Lex Forestae 11. The Law of Marque or Reprisal 12. Lex Mercatoria 13. The Laws and Customs of the Isles of Jersey Gernsey and Man 14. The Law and priviledge of the Stannery 15. The Laws of the East West and middle Marches which are now abrogated A man that claimeth as heir in fee simple to any man by discent must make himself heir to him that was last seised of the actual freehold and inheritance where the unckle cannot get an actual possession by entry or otherwise there the Father cannot inherit c. Warranties shall descend to him that is heir at the common law Fol. 12. a. And a warranty shall not go with Tenements whereunto it is annexed to any special heir but to the heir at the common law Sect. 4. None shall inherit any lands as heir but only the bloud of the first purchaser Plow 447. refert à quo fiat perquisitum Fleta l. 6. c. 1. 2. Bract. l. 2. fo 65. 67. Multa transeunt cū versitate quae par se non transeunt vid. libr. fo 12. b. 5 E. 2. Avowry 207. Whensoever lands do descend from the part of the Mother the heirs of the part of the Father shall never inherit è converso 39 E. 3. 29. fol. 13. a. Escheat i.e. cadere excidere vel accidere quod accidit duobus modis aut perfectū sanguinis aut per delictū tenentis atque illud est Per judicium 〈◊〉 modis aut quia suspensus per collū aut quia abjuravit regnū aut quia utlegatus In an appeal of death c. hanging the Process the defendant conveyeth away the land after is outlawed the conveiance is good shall defeat the Lord of his escheat but otherwise is it if a man be indicted of felony c. for in the case of Appeal the Writ containeth no time when the felony was done and therefore an escheat can relate but to the outlawry pronounced but the indictment containeth the Time when the Felony was committed and therefore the escheat upon the outlawry shall relate to that time If lands holden of I. S. be given to a Dean and Chapter Major and Commonalty and to Their successors c. And after such body politick or incorporat is dissolved the donor shall have again the Land for that the cause of the gift or grant faileth and not the Lord by Escheat But no such condition is annexed to the estate in see simple vested in any man in his natural capacity but in case where the donor or feoffor reserveth to him a tenure and then the law doth imply a condition in law by way of escheat fol. 13. b. Sect. 5. Descent is a means whereby one doth derive him title to certain lands as heir to some of his Ancestors Quod prius est dignius est qui prior est tempore potior est jure Sect. 6. Nul aūa trē de fee simp per discent come heir c. Si non que il soit heir dentier sanke The half bloud is no bloud inheritable by descent being not compleat and perfect Fol. 14. a. Sect. 8. Lands c. shall descend to him that can make himself heir to him that was last actually seised of the Freehold of the land c. Fol. 15. a. Whether the seisin of a rent reserv'd upon a seise for life be such an actual seisin of the land in the eldest son as the sister in a writ of right may make her self heir of this land to her brother admitting there be son and daughter by one venter and a son by another venter Vid. lib. Qu. 7 H.
solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
65. 71. In omnibus autem supra omnia decet quemlibet dominum verbis esse veracem in operibus fidelem deum justitiam amantem fraudem peccatum odientem voluntariosque malevolos injuriosos contemnentem apud proximos pietatem vultumque motibilem plenum ipsius enim interest potius consilio quam viribus uti propriove arbitrio non cujuslibet voluntarii juvenis menestralli vel adulatoris sed jurisperitorum virorum fidelium honestorum in pluribus expertorum consilio debet favere Qui bene sibi vult disponere familiae suae scire veram executionem terrarum suarum necessarium erit ut perinde sciat quantitatem suarum facultatum finem annuarum expensarum Quae omnia distinctè scribantur in membranis ut perinde sagacius vitam suam disponat facilius convincat mendacia compostariorum Sect. 76 and 77. If by custome Copyhold may be intailed the same by like custome by surrender may be cut off Some have holden that there was a Formodon in the discender at the common Law 10 E. 2. Formedon 55 c. Si le fignior ousta tiels tenants c. ils nont aut remedy forsque de suer a lour signiors per Petition car auterment ils ne serrent dits tenants a volunt le Seignior c. Mes le Seignior ne voile enfreind le Custome que est reasonable en tiel case Mes Brian H. 21. E. 4. dit que fi tiel tenant per le custome paiant ses services soit eject per se Seignior que il avera action de trns. vers luy Et issint Danby M. 7. Ed. 4. dit que le tenant per le custome eÌ„ cibien inheriter daver son teÌ„r solonque le custome come cesty que ad franktenement al common ley CHAP. X. Tenant per le vergs Sect. 78. CUstome que nest pas encounter reason poit bien estr admit seneschallus is derived of Sein an house or place and Schalc an Officer or Governour some say that Sen is an ancient word for Justice so as Seneschall should signifie Officiarius justitiae In this place it signifieth an Officer of Justice viz. A Keeper of Courts c. Fleta lib. 2. ca. 66. Describeth his Office at large most excellently Providiat sibi Dominus de Scneschallo circumspecto fidels viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio Seneschalciae se cognoscat jura domini sui in omnibus teneri affectet quique sub ballivos domini in suis erroribus ambiguis sciat instruere docere queque egenis parcere qui nec prece vel pretio velit a tramite Justiciae deviare perverse judicare cujus officium est Curias tenere Maneriorum de substractionibus consuetudinum serviciorum reddituum fect ' ad Cur. Mercata Molendina domini ad visus francpledg aliarumque libertatum domino pertinentium inquirat c. Sect. 79. Ballivus Bayliff signifieth a safe Keeper or protector Praefectus or Praepositus Reve signifieth a disposer or director Vide Fleta lib. 2. cap. 67. Where he treateth of the Office of the Bayliff And cap. 69. Of the office of the Reve or reeve c. Ballivus autem Cujuscunque Manerii esse debet in verbo verax in opere diligens fidelis ac pro discreto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat quod sit ita justus quod ob vindictam seu cupiditatem non quaerat versus tenentes domini nec alios c. Praepositus autem tanquam appruator cultor optimus c. Domino vel ejus Seneschallo palam debet presentari cui injungatmr officium illud indilate non ergo fit piger aut somnolentus sed efficaciter continue commoduÌ„ domini adipisci nitatur exarare c. Sect. 80 c. 81. Whatsoever is not against reason may well be admitted and allowed This is not to be understood of every unlearned mans reason but of artificiall and legall reason warranted by authority of Law Lex est summa ratio Fo. 62. a. Sect. 81 82 83 c. Tenant per le Custome c. sont appelles tenants per base tenure pur ceo que ils nont asc ' franktenement per le course del common ley Tiel tenant en asc ' lieux doit repaire measons c. Auxi il ferra fealty Mes tenant a volunt per le Common ley nemy si tiel tenant que est ejus per Lease al Comon ley mor. son heire enter le lessor avera action deâ—trns enuÌ„s luy auterment est de tenant a volunt per le Custome c. Vide Diversitat c. Consuetudo Manerii est observanda But if there be no Custome to the contrary wast either permissive or voluntary of a Copiholder is a forfeiture of his Copihold The doing of fealty by a Copiholder proveth that so long as he observes the custom of the Mannor and payeth his services he hath a fixed estate Vide Cook Report lib. 4. fo 21 22 23 c. Finis Libri primi Liber Secundus CHAP. I. Homage Sect. 85. HOmage est le pluis honourable service et le pluis humble service de reverence que franktenant poit faire a Son Seignior 1. It is most honourable c. For honour plus eÌ„ in honorante quam in honorato 2. It is pluis humble de reverence for the Tenant when he doth his Homage is discinctus nudo capite Ad pedes domini super genua projectus Ambas manus vinctas inter manus domini porrigit per verba omni supplici veneratione plena he saith jeo deveigne vostre home c. Debet quidem tenens * manus suas utrasque ponere inter manus utrasque domini sui per quod significatur ex parte domini protectio defensio warrantia ex parte tenentis reverentia subjectio Fo. 65. a. Homagium ligeum is due to the King onely The King is soveraigne Lord or Lord paramount either mediate or immediate of all and every parcell of land within the Realme for all the Lands c. were originally derived from the Crown 18 E. 3. 35. Item videndum est quis potest homagium facere Sciendum est quod quilibet liber homo tam masculus quâ—m faemina Clericus Laicus Major Minor dum tamen electi in Episcopos post consecrationem hom non faciant quicquid fecerint ante sed tantum fidelitatem Conventus autem hominum non faciet de jure ficut nec Abbas nec Prior eo quod tenent nomine alieno sc nomine Ecclesiarum Mirror cap. 1. S. 2. ca. 2. Sect. 1. 2. Fo. 65. b. * Nil sine prudenti fecit ratione vetustas .. Fo. 65. a. Nûnquam prospere
le gard a son use mes al use del heir Et si Gardian en Socage devie devant asc ' account fait per luy al heire de ceo le heire en sans remedy per ceo que nul bre de accompt gift tenus les execut ' sinon pur le roy tautsolement For albeit in an action of account against a Guardian in socage c. the defendant cannot wage his Law yet in respect of the privity of the matters of account and the discharge resting in the knowledge of the parties thereunto an action of account lieth not c. but that is holpen by Statute Vide c. fo 90. b. Rot. Parl. 50. E. 3. nu 123. The Kings Treasure is Firmamentum belli Ornamentum pacis Nullum tempus occurrit Regi Prerogative extends to all Powers Preheminences and Priviledges which the Law giveth to the Crown Stans Praer 5. 10. Sect. 126 127 128 129. Le snr aūa del heire son tenant pur reliefe tant come le rent amount que il paya per an ouster le rent c. Of corporal service or labour or work of the tenant no relief is due but where the tenant holdeth by such yearly rents or profits which may be paid or delivered Et le snr poit incontinent distreine per reliefe sinon que il soit tiel service que nest donques an esse sicome le tenant tient per un prose devie en yuer c. For Flowers that are fructus fugaces cannot be kept and therefore are not to be delivered till the time of growing otherwise it is of corn c. Lex spectat naturae ordinem non cogit ad impossibilia Impossibile est quod naturae rei repugnat Sect. 130 131 132. Il est reason que le snr ses heires ont asc ' service fait a eux per proū testifier que la terre est tenus de eux fol. 92. b. An Escheat is a casual profit quod accidit domino ex eventu ex insperato Of incidents there be two sorts s Separable as rents incident to Reversions c. Inseparable as Fealty to a Reversion or Tenure Where the Tenure is by Fealty only there is no relief due fol. 93. a. vide lib. Lessee per ans ferra fealty al lessor per ceo que il tiel de luy auterment est de tenant a volunt car il nad asc ' sure estate And because the matter of an oath must be certain therefore tenant at will shall not do fealty CHAP. VI. Frankalmoigne Sect. 133. OF Ecclesiastical persons some be Regular and they live under certain Rules and have vowed three things True Obedience perpetual Chastity and Wilfull Poverty Secular as Bishops Deans and Chapters Archdeacons Prebends Parsons Vicars c. All Ecclesiastical persons may hold in Frankalmoigne be they Secular or Regular but no Lay person c. By the ancient Common Law of England a man could not alien such lands as he had by descent without the consent of his heir yet he might give a part to God in Free-almoigne or with his daughter in free marriage or to his servant in remuneratione servitii fol. 94. b. Glanville l. 7. cap. 1. fo 44 45. acc Lands must be given to a Corporation aggregate of many by deed and they have a Fee simple without these words Successors for the body never dies Otherwise is it of a sole Corporation But yet out of the general rules the case of Frankalmoigne is excepted And there is a diversity when the head and body both are capable as Dean and Chapter and when one as in case of Abbot or Prior and Covent Ancient Grants shall be allowed as the Law was taken when such Grants were made Sect. 134. Decanus is derived of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth Ten for that he is an Ecclesiastical secular Governour and was anciently over ten Prebends or Canons at the least in a Cathedral Church and is head of his Chapter Capitulum est Clericorum congregatio sub uno Decano in Ecclesia Cathedrali And Chapters be twofold viz. the Ancient and the Later The ancient Deans come in in much like sort as Bishops do for they are chosen by the Chapter by a Conge de estier as Bishops be and the King giving his Royal assent they are confirmed by the Bishop but they which are either newly translated or founded are Donative and by the Kings Letters Patents are installed fo 95. a. Ecclesiastical persons have not capacity to take in Succession unlesse they be bodies Politique as Bishops Archdeacons Deans Parsons Vicars c. or lawfully incorporate by the Kings Letters Patents or Prescription Sect. 135. Of Tenures some be Spiritual and some be Temporal and of Spiritual some be incertain as Tenures in Frank-almoigne and some be certain as Tenures by Divine service Again Divine service is twofold either Spiritual as Prayers to God or Temporal as distribution of Alms to poor people Since Littleton wrote the Book of Common Prayer c. is altered yet the Tenure in Frankalmoigne remaineth and such Prayers and Divine service shall be said and celebrated as now is authorized for the change is by generall consent c. of Parliament 2 E. 6. c. 1. 5. 6. c. 1. 1 El. c. 2. whereunto every man is party And as Littleton hath said before in the case of Soccage Sect. 119. The changing of one kinde of Temporal services into other Temporal services altereth neither the name nor the effect of the Tenure so the changing of Spiritual services c. altereth neither the name c. Frankalmoigne est le pluis haute service fuit haec sapientia quondam Publica privatis secernere sacra profanis Tant solement divine spiritual service en destr fait per terres c. tenus en Frankalmoigne Sect. 136. and 137. No distress can be taken for any services that are not put into certainty nor can be reduced into any certainty Oportet quod certa res deducatur in judicium And yet in some cases there may be a certainty in uncertainty as a man may hold of his Lord to shear all the sheep depasturing within his Manor and the Lord may distrain for this uncertainty 7 E. 3. 38. Ordinarius so called Quia habet ordinariam jurisdictionem in jure proprio non per deputationem as a Bishop c. Where the right is Spiritual and the remedy thereof onely by the Ecclesiastical Law the conusans thereof doth appertain to the Ecclesiastical Court fo 96. a. And so where the Common or Statute Law giveth remedy in foro seculari whether the matter be spiritual or temporal the conusance of that cause belongeth to the Kings Temporal Courts only c. fo 96. b. There were within this Realm 118 Monasteries founded by the Kings of England So all Bishops c. which hold of the King by Barony and are Lords of Parliament called by Writ c.
Ante fol. 83. 69. Sect. 138. and 139. Nihil quod est inconveniens est licitum fol. 97. b. It is better saith the Law to suffer a mischief that is peculiar to one then an inconvenience that may prejudice many 42 Ed. 3. 5. 28 E. 3. 395. 20 H. 6. 28. There is no Land that is not holden of some Lord or other by some service Spiritual or Temporal Nihil quod est contra rationem est licitum For Reason is the life of the Law nay the Common Law it self is nothing else but Reason which is to be understood of an artificial perfection of Reason gotten by long study observation and experience and not of every mans natural Reason for Nemo nascitur artifex Neminem oportet esse sapientiorem legibus Si un Abbot c. alien his lands holden in Frankalmoigne to a secular man in fee simple In this case albeit the Alienor held not by fealty nor any other terrene service but only by Spiritual services and those incertain yet the Alience shall hold by the certain service of fealty fol. 98. a. Sect. 140. Il est ordeigne per lestatut Quia empt terrum fait 18 Ed. 1. que nul poit alien ne grant terres c. en fee simple a ten de luy mesme Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibita est potest fieri quilibet potest renunciare juri pro se introducto Praesumitur rex habere omnia jura in scrinio pectoris sui Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata vide libr. quaere fo 99. a. By Prescription the successor of an Abbot may pay relief Sect. 141. Nul poit tenure terres c. en frankalm forsprise del grantor on de ses heires Here or hath the sense of and c. For the heir cannot take any thing in the life of the ancestor neither can the heire take any thing by discent when the ancestor himself is secluded Vide c. As a man cannot grant lands in Taile and reserve a rent to his heirs 15. E. 4. The tenure in frankalmoigne is an incident to the inheritable bloud of the grantor and cannot be transferred or forfeited to any other But it is not an incident inseparable c. For the Lord may release to the Tenant in frankalmoigne and then the tenure is extinct and he shall hold of the Lord Paramount by Fealty As in Littl. S. 139. And if the Seigniory be transferred by act in Law to a stranger thereby the privity is altered and the tenure changed Fo. 99. b. And a Bishop with assent of his Chapter c. may give Lands in Frankalmoigne to hold of them and their successors by licence c. Alwaies the Seigniory neerer to the Land drowns the Seigniory that is more remote c. Sect. 142. Lâ—mesne est tenus de acquiter son Tenant en frankal de Chesc ' manner de service que asc ' Seignior Paramount de luy void demand He is also to aquitt him of improvement of services as if he be distrained for relief aid per file mar c. Also for suit service to a hundred but for suit reall in respect of resiance within any hundred c. it is otherwise There be three kindes of Acquitals 1. An acquitall by Deed. 2. An acquitall by prescription 3. An acquitall by tenure and that is four manner of waies 1. By owelty of service for service acquites service 2. Tenure in Frankalm 3. Tenure in Frankmar 4. Tenure by reason of Dower F. N. B. 135. c. There be six Writs in Law maintainable before any molestation c. As 1. A man may have his Writ of Mesne before he be distreined 2. A Warr. Cartae before he be impleaded 3. A Monstraver before any distresse or vexation 4. An Aud. quer before any execution sued 5. A Curia claudend before any default of inclosure 6. A ne injuste vexes before any distresse or molestation and these be called brevia anticipantia Nota the Plaintiff in a Writ of Mesne may chuse either processe at the common Law or upon the Statute of West 2. And upon processe given by the said Statute viz. Summons Attachment and grand distresse if the Mesne cometh not he shall be fore-judged and the judgement is quod T. le mesne amittat servitia de A le Tenant de tenemtis praedictis quod omisso praedicto T. praefat R. le Seignior Paramount modo sit attendens respond per eadem servit per quae T. tenuit Also if the Tenant be not acquitted after he hath recovered in a Writ of Mesne he shall have a Writ of Distringas ad acquietand Fo. 100. Vide c. F.N.B. 138. If two joyntenants bring a Writ of Mesne and the one is summon'd and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that cannot he be alone And so if there be two joyntenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appears there can be no fore-judger Vide Libr. quaere If the Daughter the Son being in venter sa mere before judged it shall binde the Son that is born afterwards for he had no right at the time of fore-judgement CHAP. VII Homage Auncestrel Sect. 143. c. HOm. Aunc est lou un tenant tient sa terre de SoÌ„ Seigper Homage m. le tenant ses Ancestors que heire il est ont tenus m. la terre del dit Seignior de ses ancestors c. de temps dont memorie ne court per homage on t st a eux homage Tiel Seignior doit garrant son tenant queunt il eÌ„ implede de la terre c. Auxiâ—il doit acquiter le tenant envers touts Seigniors Paramount luy de chesi manner de service Mes si le Seignior navoit recieve pas homage del tenant c. Nede asc ' de ses ancestors il poit disclaimer en le tenancy quaÌ„nt il est vouch issint oust le tenant de son garrantie Sect. 145. Est tanta talis connexio per homagium inter dominum tenentem quod tantum debet dominus tenenti quantum tenens domino praeter solam reverentiam Bract. Fo. 78. Glan li. 9. ca. 4. Brit. Fo. 170. a. Ancient continued inheritance on both parties hath more priviledge and account in Law then inheritances lately or within memorie acquired Fol. 101. a. Warrantus vouchee is either to defend the right against the demandant or to yeeld him other Land c. in value and extendeth to Lands c. of an estate of Freehold or inheritance and not to any Chattell real personall or mixt saving only in case of a wardship granted with warrant for in the other cases concerning Chattels c. The voucher shall have his action of Covenant if
joyntenant or copercener shall distreine for his or her moity 27. E. 3. 88. Concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of rent 22 H. 4. 17. A man against his own grant shall not take advantage of the weakness of his own estate in part vide lib c. Fo. 148. 6. And note a diversity between a rent in grosse and a rent incident to a reversion If a man grant a rent charge out of two acres and after the grantee recovereth one of the acres against the grantor by a Title Paramount the whole rent shall issue out of the other acre But if the Recovery be by a feint Title by Covine then the rent is extinct in the whole because he claimeth under the grantor Doct. Stud. l. 2 c. 17. And yet in some cases a rent charge shall not be wholly extinct where the grantee claimeth from and under the grantor As if B. make a lease of one acre for life to A. and A. is seised of another acre in fee A granteth a rent-charge to B. out of both acres and doth waste in the acre which he holdeth for life B. recovers in waste the whole rent is not extinct but shall be apportioned c. for that Nullus Commodum capere potest de injuria sua propria If the King give two acres of land of equall value to * another in fee fee tail for life or for years reserving a rent of Two shillings and the one acre is evicted by a Title Paramount the rent shall be proportioned F. N. B. 234. b. If an entire service be pro bono publico as Knights service Castlegard c. though the Lord purchase part the service remains but when entire services are for the private benefit of the Lord it is otherwise lib. 6. fo 1 2. Bruertons Case Sed vide lib. c. fo 149. a. Sect. 223. and 224. Reg. it holdeth That quae in partes dividi nequeunt solida à singulis praestantur Vide los reports Bruertons Case lib. 6. Talbots Case l. 8. f. 104. It there be Lord and Tenant by Fealty and Herriot service and the Lord purchase part of the land the Herriot service is extinct and yet it is not annual because it is entire and valuable But otherwise it is of Herriot Custome fo 149. b. If the tenant giveth to the father of the grantee of a rent charge part of the rent in tail and this descend to the grantee the rent charge shalll be apportioned and so by act in law a rent charge may be suspended for one part and in esse for another 30. Ass p. 12 fol. 149. b. And so it is if the father be grantee of a rent and the son purchase part of the land charged the father dyeth and the rent descends to the son the rent shall be apportioned and so it is if the grantee grant the rent to the tenant of the land and to a stranger the rent is extinct but for a moity 34. H. 6. 41. b. If a man hath Issue two daughters and grant a rent Charge to one of them out of his land and dyeth the rent shall be apportioned and if the grantee in this case infeoffeth another of her part of the land yet the moity of the rent temaineth issuing out of her Sisters part because the part of the grantee in the land by the descent was discharged of the rent But in all these Cases where the rent charge is apportioned by act in law yet the Writ or Annuity faileth for if the grantee should bring a Writ of Annuity he must ground it upon the grant by Deed and then must he bring it for the whole 9 Ass 22. 5. R. 2. Annuity 21. Annua nec debitum judex non separat ipsum Also in respect of the reality the rent is apportioned but the personality is indivisible c. If Execution be sued c. upon a Statute Merchant or Staple and after the inheritance of part of those lands descend to the Conusee all the Execution is avoyded for the duty is Personall and cannot be divided by act in Law Pl. Com. 72. 15. E. 4 5. If the father within age purchase part of the land charged and alieneth within age and dyeth the Son recovereth in a Writ Dum fuit infra aetat or entreth in this case the act of the Law is mixt with the act of the party and yet the rent shall be apportioned for after the recovery or entry the Son hath the land by descent fo 150. vide c. A relation or fiction of Law shall never work a wrong or charge to a third person but in fictione juris semper est aequitas lib. 3. fo 29. Butler and Bakers Case â—s if the Feoffee grant a rent charge al feoffer son seme al heires del Baron ' feme recover Dower le rent charge ferra apportion ' el distreinam c. Sect. 225. If there be Lord and Tenant by Fealty and Rent and the Lord by his Deed reciting the Tenure release all his Right in the Land saving the said rent the seigniory remains and he shall have the rent as a rent service and the fealty incident to it c. 12 E. 4. 11. 9 E. 3. 1. If the Donee hold of the Donor by fealty and certain rent and the Donor grant the services to another and the tenant attorn the rent shall passe as rent seck fol. 150. b. If there be Lord and Tenant by fealty and certain rent and the Lord grant the rent in tail or for life saving the fealty and further grant That the grantee may distrain for it albeit the reversion of the rent be a rent service yet the Donee or Grantee shall have it but as a rent seck and shall not distrain for it 7 E. 3. 2 3. adjudg Whereas in an Assize for a rent service all the tenants of the land need not be named but such as did the disseisin yet in Assize for the rent seck which sometimes was a rent service all the tenants must be named as in case of a rent charge albeit he was disseised but by one sole tenant 4 E. 2. Ass 449. 26 H. 8. Dyer 31. But if the Lord of a Manor release the Fealty to his Tenant saving the rent or that a Mesnalty become a rent by Surplusage those that are now seck and sometimes were service are part of the Manor but a rent charge cannot be part of a Manor 31 Ass 23. 22 Ass 53. Sect. 226 c. If there be Lord and Tenant by Fealty and Rent the annual rent which is a profitable service is of higher and more respect in Law than the fealty and therefore by the grant of the rent the Fealty shall pass as incident c. but it is an incident separable and therefore may be by a saving as Littleton hath said separated by it And so when the Tenure is by Fealty
of any debt due to the Testator he may make an Acquittance but in thaâ— case a Release without payment is voyd and generally what soever an Infant is bound to doe by Law the same shall binde him albeit he doth it without sute of Law 2 M. Dyer 104. An action of account doth lie against a Bayliff that hath administration and charge of lands goods c. for the profits which he hath raised or made or might by his industry or care have reasonably raised or made his reasonable charges and expences deducted Brit. fol. 62. 70. 41 E. 3. 39. An Account against a Receiver is when one receiveth money to the use of another to render an account but upon his account he shall not be allowed his expences and charges Except in some cases As if two joynt Merchants occupy their Stock c. in common one of them naming himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Recep ot denariorum ipsius B. ex quacunque causa contractu ad comm unem utilitatem ipsorum A. B. provenient sicut per legem mercatoriam rationabiliter monstrare potuit 43 E. 3. 31. 30 E. 1. Account 127. 10 H. 7. 16. lib. Intrat 17 18 19. F.N.B. 118. So as there be but three kindes of Writs of Account viz. 1. Against one as Guardian 2. Against one as Bayliff And 3. as Receiver F. N. B. 219. d. And to maintain an action of account there must be either a privity in deed by the consent of the party 2 Mar B. Account 89. F. N. B. 117. Pl. Com. 542. 2 H. 4. 12. 4 H. 7. 6 c. or a privity in law ex provisione legis as against a Guardian c. Minor surare no potest Bract. l. 5. f. 340. b. For an infant cannot make his Law of Non-Summons 13 E. 3. Ley 50. and therfore the default shall not prejudice him 2. Mar. Dyer 104. 105. But an infant of the age of 12 yeares shall take the oath of allegiance Vide Sect. 85. 91. An infant cannot upon his oath make his Law in an actioâ— of debt 1. H 7. 25. 15. E. 4. 2. and the husband and wife of full age for the debt of the wife before the converture shall make their Law 9. E. 4. 24. 15 E. 4. 2. Grant is a conveyance of a thing which cannot pass without Deed as advowsons rents c. Lib. 3 f. 63. Lincol. Coll. c. Sect. 260 261. The reversion expectant upon an estate taile is of no account in Law for that it may be cut off by the Tenant in Taile Tres. in fee S. and fee Taile discend al 2. files c. If the youngest daughter alien part of the Lands in Fee simple and dyeth so as a full recompence for the lands entailed descends not to her issue she may waive the taking of any profits thereof and enter into the Land entailed for the issue in taile shall never be barred without a full recompence though there be a warr in Deed or in Law descended Fo 173. a. If a man be seised of three Manors of equall value in Fee and taketh wife and chargeth one of the Manors with a reâ—â— charge and dyeth she may by the provision of the Law take a third part of all the Manor and hold them discharged bâ— if she will accept the entire Manor charged it is holden that she shall hold it so 26. E. 3. Dower 133. 18. H. 6. 17. A partition of lands intailed between perceners if it be equall at the time of the partition shall bind the issues in taile for ever albeit the one doe alien her part Dyer 1. Mar. 98. Sect. 262. When the privity of the estate is destroyed by the Feoff of one parcener upon eviction of a moity by force of an entaile against the other she shall not enter upon the alienee But in the case that Littleton putteth of disseisin of an Infant c. when the privity of the estate remaineth and the part of one is evicted she shall enter and hold in Coparcenary with her other copercener and so it is in the case of an exâ—hange 15. E. 4. 3. a. per. Littleton Lib. 4. 221 c. Bastards c. If the whole estate in part of the pâ—â—pâ—â—ty be evicted that shall avoid the partition in the whole be it of a Manor that is entire or of acres of ground c. that be severall for the partition in that case implyeth for this purpose both a warr and a condition in Law and either of them is entire and giveth an entry in this case into the whole 13. E. 4. 3. 42. Ass 22. Lib. 4. ante c. Also if any estate of freehold be evicted from the Coparcener in all or part of her pâ—â—pâ—â—ty it shall be avoided in the whole vide libr. nota Fo. 170. a ex grat If but part c. be evicted as an estate in taile or for life leaving a reversion in the Copercener Where one Copercener taketh benefit of the condition in Law she defeateth the partition in the whole But when she vouched by force of the warr in Law for prrt the partition shall not be defeated in the whole but she shall recompence for that part Sic nota diversit 5 E. 3. Tit. Voucher 249. Also there is another diversity between a recovery in value by force of the warranty upon the exchange upon the partition for upon the exchange he shall recover a full recompence for all that he loseth but upon the pahtition she shall recouer but the moity or halfe of that which is lost to the end that the losse may be equall There are more and greater privities in case of partition in persons bloud and estates than there is in exchanges 19. H. 6. 26. 18. E. 2. t. aid 171. When the whole Privity between Coparceners is destroyed there ceaseth any recompence to be expected either upon the condition in Law or warranty in Law by force of the partition Fo. 174. a. If one coparcener maketh a Feoffment in Fee and after her Feoffee is impleaded and voucheth the Feoffer she may have aid of her coparcener to deraign a Warrant Paramount but never to recover pro rata against her by force of the warrant in law upon the partition for by her alienation she hath dismissed her self to have any part of the land as Parcener And as parcener she must recover pro rata c. 31. E. 3. 24. 11. H. 4. 22 23. And yet in some case the Feoffee of one coparcener shall have aid c. and therefore if there be two coparceners and they make partition and the one of them infeoffs her Son and Heir apparent and dyeth the Son is impleaded he shall pray in aid c. for that the warranty between the Mother and the Son is by Law adnulled and therefore the Law giveth the Son albeit he be in by Feoffment to pray in aid
54. 39 E. 3. 25 26. Sect. 396 397. Note that Ass mort Antecess non tenet inter conjunctas personas sicut fratres sorores c. for these are privy in blood Brac. l. 4. f. 261 282. 29 Ass 11. F.N.B. 196. b. Albeit the eldest son hath issue and dye and after the yongest son or his heir enter and many discents be cast in his line yet may the heirs of the eldest son enter in respect of the privity of the blood and of the same claim by one Title but otherwise it is if the Feoffee of the yongest son dye seised c. and admit that the yongest son be of the half blood to his brother yet he is of the whole blood to his Father and therefore if he enter by abatement and so gain a fee simple and dye seised it shall not barre his elder brother of his entry But if the eldest son enter and gain an actual possession and seisin then the entry of the yongest is a disseisin Br. ent 27. Si le puisne frere ent apres le mort le pier mor. seisin c. leign frere poit ent sur lissue c. pur ceo que ambiz les freres claime per m. le title auterment eÌ„ ou leigne frere ent c. puis eÌ„ disseisin per le puisne frere que mort seisee c. If the Father make a lease for life and hath issue two Sons and dyeth and the Tenant for life dye and the yongest Son intrude and dye seised this discent shall not take away the entry of the eldest But if the Father had made a lease for years it had been otherwise for that the possession of the lessee for years maketh an actual freehold in the eldest Son Fol. 243. a. 22 E. 4. 4. If two Coparceners be and they severally present to the Ordinary yet the Church is not litigious because they claim all by one Title Doct and St. cap. 30. fol. 117. If upon a Writ ad diem clau extr the yongest Son be found heir the eldest Son hath no remedy by the Common Law because they claimed by one Title but otherwise it is if they claim by several Titles But this is now holpen by the Statute of 2 E. 6. c. 8. If two Parsons be in debate for Tythes which amount to above the fourth part and one man is Patron of both Churches no Judicavit doth lie for that both Incumbents claim by one and the same Patron 2 H. 7. 12. a. There is a great diversity holden in our books where one hath a colour or pretence of right and when he hath none at all 2 E. 2. Bastar 19. 21 E. 3. 34. 22 Ass 85. 11 E. 3. Ass 88. 21 H. 6. 14. 11 E. 3. Age 3. Sect. 400. Sect. 398. When one Coparcener enters generally and taketh the profits this shall be accounted in Law the entry of them both and no devesting of the moity of her sister 21 Ass 19. 21 E. 3. 7. 27. 32. 4 H. 7. 10. 16 H. 7. 4. fo 243. b. If the privity of Coparcenary be once destroyed a dying seised shall take away entry c. 28 Ass 30. Vide S. 710. Sect. 399. Filius natus vel filia nata ex justa uxore appellatur in legibus Angliae filius mulieratus seu filia mulierata Glanvil lib. 2. ca. 2. Bract. 5. ca. 10. Brit. ca. 70. Bastardus dicitur à graeco verbo Bassaris i. Meretrix seu concubina Vide S. 188. Fleta l. 1. c. 5. vide S. 380. Manseribus scortum notho moechus dedit ortum Vt seges è spica sic spurius est ab amica If the husband be within the four Seas and the wife hath issue c. in that case filiatio non potest probari Bract. lib. 4. fo 278 279. 7 H. 4. 9. 43 E. 3. 10. 29 Ass 54. If the issue be born within a moneth or a day after marriage between parties of full lawful age the childe is legitimate 18 E. 4. 28. fo 244. â— It is holden that the mulier be within age at the time of the dying seised of the Bastard that nevertheless he shall be barred because the issue of the bastard is in judgement of Law become lawful heir and the Law doth prefer legitimation before the priviledge of infancy justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur 5 E. 2. Discent Br. 49. 31 Ass 18. 22. Pl. Com. Stowels case 10 E. 3. 2. If a man hath issue a Son being bastard eigne and a daughter and the daughter is married the Father dyeth the son entreth and dyeth seised this shall barre the feme covert 13 E. 1. Bast 28. and the discent in this case of Services Rents Reversions expectant upon estates tail or for life whereupon rents are reserved c. shall binde the right of the mulier but a discent of these shall not drive them that right have to an action 14 E. 2. Bast 26. So if the bastard dye seised and his issue endoweth the wife of the bastard yet is not the entry of the mulier lawful upon the Tenant in Dower for his right was barred by the discent Sir Ri. Ledfords case lib. 8. 101 102. Ass Mortdanc lieth not between the bastard and the mulier in respect of the proximity of blood and the bastard being impleaded or vouched shall have his age 21 E. 3. 34. b. 30 Ass p. 7. 11 E. 3. Age 3. 5 H. 7. 2. Sect. 400. At a Parliament holden 20 H. 3. for that to certifie upon the Kings Writ that the son born before mariage is a Bastard was Contra Com. formaÌ„ Ecclesiae Rogaverunt omnes episcopi magnates ut consentirent quod nati ante Matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones una vocâ— respondent Quod noiunt leges Angl-mutare quae huc usque usitatae sunt approbatae Stat. de Merton cap. 9. Bract. l. 5. fo 410. 417. â—0 Ass pl. 10. Note that the law more respecteth him that hath a colourable title though it be not perfect in Law than him that hath no title at all Vide S. 39. Sect. 401. Est diversity lou Bastard continue la possession touâ— sa vie sans interruption lou le mulier enter interruption le possession de tiel Bastard Reg. none shall enter but the mulier or some other by his commandment M. 38. 39. El. Com. Banco Vide 31 H 8 ent cong Br. 23. Omnis ratibabitio retrotrahitur mandato aequiparatur 4 H 7. ca. Vide Sect. 334. But in the case of the Bastardeigne Gardein en Socage or gardein in Chivalry may enter for they are no strangers If an Infant make a Feoffment in fee an estranger of his own head cannot enter to the
facit reruÌ„ nisi mens sit rea et furiosus solo furore punâ—tur And so it is of an Infant untill he be of the age of 14. Fo 247. b Also if the Father disseise the Grandfather and make a Feoffment in fee c without warranty the Grandfather dyeth albeit the right descend to the Father yet he cannot enter against his own Feoffment but if he die his Son shall enter and avoid the State of the Feoffee 16 Ass 27 21 H 7 31 Stanf. â—6 b 8 E 3 2 Coron 413 414 351 22 E 3 ibid 12 4 2 H. 7 2 3 E 3. enter Cong Statham 12 E 4 8. 39. H â— 4 Abbr ass 89. 39. H. 6. 43. 15. E. Discent 30. If Lands â—e given to two and to the heirs of one of them he that haâ—h the fees shall not have an action of waste upon the Satut of Gloc. against the joynt tenant for life but his heire shall maintaine an action of waste against him Sect. 406 407 408. A Dum fuit infra aetat ' lyeth as well for the Ancestor himselfe after his full age as for his heir And note where an Infant disseisor aliens the lands in fee that if the discent be cast the Infant being within age he may enter at any time either within age â—or after his full age And so it is if an Infant make a feoffment c. he may enter c and so in both cases may his heir 43 E 3 Enter cong vet N B 126 b F N B 192. 45 E 3 21. Sect 40â— fol 2â—8 a. Tenant in Capite makes a Feoffment in fee to the use of the feoffee and his heirs until the feoffor pay 100 l. to him or his heirs the feoffee dyeth his heir within age now hath the King the Wardship of the body and is intituled to the guard of the land But if the feoffor pay the 10â— l. according to the limitation the Wardship is devested both for the body and the land and so it is in case of a Condition for the discent which is the cause of Wardship is utterly defeated and Cessante causa cessat causatum Dyer 13 Eliz fo 298 299 So as there is no difference where the discent is disaffirmed by a Right Paramount as where the estate was never lawful as in the case of an Infant and where the discent is affirmed for a time the estate being lawfull and being after defeated by matter ex post facto by a Title of re-entry Sect. 410. Disseisor ad issue enter en Relâ—gion c. This discent shall not barre the entry of the disseisee for that the discent cometh by the Deed of the Father And the Law respects the original â—ct and that is his entry inâ—o Religion which is his own act whereupon the profession followed whereby the discent happened for Cuiusque rei potissima pars principium est And Origo rei inspici deâ—et Pl. Dame Hales Cases 6 E. 3. 4â— c. But it is said in the case of a bastardeigne and Mulier puisnâ— sâ—ch a discent shall binâ—e the Mulier and such an heiâ— by discent shall have his age to E 3. 55 fo 248. b. Nota if a man be Tenant or Defendant in a real or personall â—ction and hanging the suit the Tenant or Defendant enter into Religion by this the Writ is not abated because it is by his own act And so it is of a Resignation but otherwise it is of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c was the cause thereof Sed in praesumptione legis judicium redditur in invitum â—8 E. 4. 19. 9 E. â— 25. 52. 7 E. 4. 15. Bract. lib. 4. fol. 189. Sect. 411. No discent or dying seised can be of a Chattel A man seised of an Advowsâ—n in â—eâ— grants three Avoidances one after another and after the Church becomes void and the Grantor presents and his Clerk is admitted and instituted and after the Church becomes void again the Grantee may present to the second Avoidance for that he was not put out of possession thereof for as the lessor having the Freehold and Inheritance cannot disseise his lessee for yeâ—rs having but a Chattel that any discent may be cast to take away his entry so in the said case the Grantor hath the Franktenement and the Fee of the Advowson rightfully so as he cannot make any usurpation to gain any estate c. Also in respect of the privity c. the usurpation of the Grantor not put the Grantee out of possession for the two latter Avoidances Hill 18 El. Com. Banco Claim daver terres pur terme d'ans nest pas expulsment de le franktenement del heire que est eins per discent Sect. 412 413. Time of Peace is the time of Law and Right and time of War is the time of Violent Oppression which cannot be resisted by the equal Course of Law Cum silent leges inter arma fo 249. b. Successioâ— of Bodies Politique or Corporate is in the post and the heir of the natural man is in the per 7. E 3. 25 a. 5 E. 3. 13. 3â— A Body Politique is so called because it is to take in Succession framed as to that capacity by Policy and it is also called a Corporation or a body incorporate because the persons are made into a Body and are of capacity to take and grant c. And this body Politique or Incorporate may commence and be established three manner of ways viz. by Prescription by Letters Patents or by Act of Parliament Every Body Politique or Corporate is either Ecclesiastical or Lay Ecclesiastical either Regular as Abbots Priors c. or Secular as Bishops Deans Archdeacons Parsons Vicars c. Lay as May or and Commonalty Bayliffs and Burgesses c. Also every Body Politique or Corporate is either Elective Presentative Collative or Donative and again it is either sole or aggregate of many And this Politique c. Body aggregate of many is by the Civilians called Collegium or Vniversitas Lib. 3. fo 73. Dean and Chapter of Norwich CHAP. VII Continual Claim Sect. 414 c. SI disseisee fait Continual Claim a les tenemenes in la vie le disseisor comment que le disseisor de vie seisee en fee la terre discendist a son heire encore pâ—it le disseisee enter sur la possession le â—erre c. Nul poâ—t faire continnal Claime mes quant il ad title dâ—vant c. S 416. And yet in some cases a Continuall Claim may be made by him that hath Right and cannot enter If Tenant for years Tenant by Statute Staple Merchant or Elegit be ousted and he in the reversion disseised the lessor or he in reversion may enter to the intent to make his Claim and yet his entry as to take any Profits is not lawfull during the Term And the lessor or he in the reversion in that case may enter
Case lib. fo 252 b. But if a disseiser had letten severally three acres to three persons for years there the entry upon of the the lessees in name of all the three acres shall recontinue and revest all the three acres in the disseisee for that the disseisee might have had one Assize against the disseisor because he remained Tenant of the Freehold for all the three acres 7 Ass 18. 12 E. 4. 10 36 H 6. 27. 32 Ass p 1 If I infeoffe one of one acre of ground upon Condition and at another time I infeâ—ffe the same man of another acre in the same county upon Condition also and both the Conditions are broken an entry into one acre in the name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare Title But an entry into one part of the land in the name of all the land subject to one Condition is good although the parcels bee several and in severall Towns And so nâ—â—e a diversity between several rights of entry and several Titles of entry by force of a Condition 11 H. 7. 25. Dyer 16 El. 33â— Ennosme de tout c. dont il ad Title d'entry here in a large sence Title of entry is taken for a Right of entry If I bâ—iâ—g an Assize of two acres if I enter into one hanging the Writ albeit it shall revest that onely acre yet the Writ shall abate 5 H. 7 7. 4 E 4 19. 12 E 9 11. a Sect. 418 Nota A man may make a feoffment of lands in another County and make livery of seisin within the view albeit he might peacably enter and make actual livery and so may he shew the Recognitors in an Assize the view of lands in another County But a man cannot make an entry into lands within the view where he may enter without any fear for it is one thing to invest and another to devest 3â— E 3 11 38 Ass 3 fo 253 a If livery of seisin be made of parcel of the Tenements c. in one Town in the name of all c. All the said Tenements c. pass by force of the said livery c. Agr. à minore ad majus if it be so in a Feoffment passing a new right à multo fortiori it is for the restitution of an ancient right as the worthier and more respected in Law which holdeth Affirmative Vide S. 438. Sect. 419 Fear of imprisonment sufficeth to avoid a Bond or a deed for the Law hath a special regard to the safety and liberty of a man But note a diversity between a Claim or an Entry into Land and the Avoidance of an act or deed for fear of Battery 4 E 4 7. 11 H 4 6 8 Ass 25 vide S 434 10 2 cap 49. 13 H â— Dures 2â— If a man hath Title to enter into any Lands or Tenements if he dares not enter c. for doubt of maiming c. if hee goeth and approach as near to the Tenements as he dare for such doubt and by word claim the lands to be his this entry in Law is as forcible iâ— Law as an entry in Deed and upon such an entry in Law an Assiâ—e doth lie as well as upon an entry in Deed and such an entry in Law shall avoid a Warranty c. vide S 378. 11 H 6 5â— But note a diversity here between an entry in Law and an entry in Deed for that aâ—â—ontinual Claim of the disseisee being an entry in Law shall vest the possession and seisin in him for his advantage but not for his disadvantage And therefore if the dissâ—isee bring an Assize and hanging the Assize he make Continual Claim this shall not abate the Assize but he shall recover damages from the beginning but otherwise it is of an entry in Deed. Vide S 442. Pl. Com. 93. Parson of Hony lanes Case Arg. ab autor ' est fortissimum in lege 38 Ass p 13 Sect 421 422. Where a Continual Claim shall devest an estate in any other person in any lands or tenements there he that maketh the Claim ought to enter into the land or some part thereof But where the Claim is to briâ—g him that maketh it into actual possession there a Claim within the view sufficeth as upon a discent the heir having the Freehold in Law may claim land within the view to bring himselfe into actual possession and in that sense is the opinion of Hull and the Court to be intended 9 H 4 5 c. But yet the entry in to some parcel in the name of the residue is the surest way vide S. 177. 11 H 6. accord with Liâ—tleton 51. At the Common Law upon a fine or fâ—â—ll judgement given in a writ of right the party grieved had a yeare and a day to make his claime So the wife or heire hath a yeare and a day to bring an appeale of death c. After judgement given in a â—eaâ—â— action the plâ—iâ—tiffe within the yeare and day may have habere sac sâ—siâ—am and in an action of debt c. a Capias fieri fac or a Lâ—vari facias A protection shall be allowed but for a year and a day and no longer and in many other casâ— Vid. S. 385. 426. 14. H 4. 36. 7. E. 3. 37. Pl. 356. 357. 367 Brit. fo 45. b. Sect. 423 424. 426. Il covient a luy que fist claime c. de faire un cl ' deins chese ' an jour prochein apres chesc ' claime fait durant la vie son adversarie dâ—â—â—uâ—s a quecunque temps que son Adversary mor. Seisee son â—ntry ne ser toll per nul tiel dis cent Brit. fo 209. Dy. 17. Eli. 345. Si disseisor mor. Seiseâ— dein l'an jour c. per que les tenements discend a son heire â—n ceÌ„ case l'enter le disseisee eÌ„ toll car l'an le jour que aâ—droit le lessee en tiel case ne serre pris de temps de title dent a luy accrue mes tautsolment del temps de claime per luy fait en le maner avantd pur cest causeil serre boâ—e pur tiel disseisee pur faire son claâ—me en auxi breve temps queil puissoit apres le disseisin c. This in case of a disseisor is now holpen by the Statute of 37. H 8. ca. 33. For if the disseisor dye seised within five years after the disseisin though there be no cont claim made it â—â—all not take away the entry of the disseisee but after the five years there must be such continuall claime as was at the Common Law But that Statute extended not to any Feoffee or donee of the disseisor immediate or mediate but they â—maine still at the common Law Vi. S. 385. 422. Sect. 428 429. Item sicome eÌ„ dit en les cases mises lou home ad title dent pur caus dun
part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the act be general yet all necessary incidents are to be supplied and the scope and end of the act to be taken and therefore though he need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
was se defendendo c. 2. That in any action upon the case Trespasse Battery or of false imprisonment against any Justice of Peace Mayor or Bayliff of City c. in any his Majesties Courts in Westminster or elswhere concerning any thing by any of them done by reason of any of their Officers aforesaid and all other in their aid or assistance or by their Commandement c. they may plead the generall issue and give the speciall matter for their excuse or justification in evidence 7. Ja. c. 5. 23. H. 8. c. 5. Probationes debent esse evidentes i.e. perspicuae faciles intelligi If the Trespass were done the 4. of May and the Plaintiff alleageth the same to be done the 5. of May or the 1. of May when no trespass was done yet if upon the evidence it falleth out that the trespass was done before the action brought it sufficeth 19. H. 6. 47. 5. E. 4. 5. 21. E. 4. 66. And Littleton saith That the Jury may find the Defendant guilty at another day then the Plaintiff supposeth Note That the Law of England respecteth the effect and substance of the matter and not every nicety of form or circumstance Qui haeret in litera haeret in Cortice apices juris non sunt jura Sect. 487. Fo. 283. b. Note a diversity when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right 50. E. 3. 78. Vide S. 447. But when the right is first and then the possession cometh to the right albeit the possession be defeated as here in Littletons case it is by the heir of the disseisor yet the right of the disseisee remaineth A dyeth seised and the Land descendeth to B. his Son before he enter an estranger abate and dieth seised B. enter against whom the heir of the Abator recovers in an Assize B. may have a Writ of Mortdan and recover the land against him And if the disseisin had been done to A. c. then after the recovery in the Assize B. should have had a Writ of entry in the per because the heir that is in by discent is in the per. Sect. 490. 491. En praecipe quod red If the Tenant alien the land hanging the Writ puis le Demandant release a luy tout son droit c. cel release est bone pur ceo que il est suppose terre tenant per le suit del Demandant uncore il nad riens en la terre al temps de release fait Item si en praecipe c. le tenant vouch le vouchee entry en garr ' si apres le demandant release c. al vouchee co est assets bone pur ceo que apres le vouchee avoit entry en le garr ' il est tenant en ley al demandant c. But if after the vouchee hath entred into Warranty and become Tenant in Law an Ancestor collaterall release to the vouchee with Warranty he shall not plead this against the Demandant for that the release by the estranger is void 10. E. 4. 13. 12. Ass 41. 7. E. 3. 6. 8. H. 7. 5. Dyer 17. El. 341. Sect. 447. Sect. 492. Fol. 285. a. Nota there be two kinds of actions viz. concerning 1. Placita Coronae or Placita Criminalia 2. Placita Communia seu Civilia Of actions concerning Common Pleas quaedam sunt ad rem quaedam in personam quaedam mixtae Vide S. 444. Actio nihil aliud est quà m jus prosequendi in judicio quod sibi debetur Or Action nest auter chose que loial demand de son droit And by the release of all actions causes of action be released but within a submission of all actions to Arbitrement causes of action are not contained lib. 8. 153. Althams Case 35. H. 8. Dyer 57. 5. Mar. 217. 36. H. 6. 8. vide 42. E. 3. 22 23. Note a diversity A man by his own cannot alter the nature of his action and therefore if the lessee for life or years do waste now is an action of Waste given to the lessor wherein he shall recover two things viz. the place wasted and treble damages But by act in Law the nature of the action may be changed as if a man make a lease pur terme daughter vie and the lessee doth waste and then Cesty que vie dieth an action of VVaste shall lie for damages only because the other is determined by act in Law 14. H. 8. 14. 23. H. 8. Br. Waste And again hereupon is another diversity to be observed that in case when an action is well begun and part of the action determined by act in Law and yet the like action for the residue is given there the VVrit shall not abate but proceed But where by the determination of part the like action for the residue remaineth not there the action well commenced shall abate 9. E. 4. 50. But if Tenant pur auter vie bring an Assize and Cesty que vie dieth hanging the VVrit albeit the VVrit were well commenced yet the VVrit shall abate because no Assize can be maintained for damages only Also an action of VVaste must be ad exbaereditatem 2. H. 4. 22. 6. E. 2. breve 807. vide c. If a VVrit of Annuity be brought and the Annuity determineth hanging the VVrit the VVrit faileth for ever because no like action can be maintained for the arrerages onely but for the annuity and arrerages 34. H. 6. 10. 9. E. 4. 39. 14. H. 7. 31. But where damages onely are to be recovered there albeit by act in Law the like action lieth not afterwards yet the action well commenced shall proceed as if a Conspiracy be brought against two and one of them die hanging the VVrit it shall proceed 22. R. 2. breve 888. 18. E. 4. 1. And in an Assize of No. Diss a VVrit of Annuity Qu. Imp. and other mixt actions a release of actions reals is a good plea and so it is of a release of actions personalls 2. H. 4. 13. 9. H. 6. 57. But if three joyntenants be disseised and they arraign an Assize and one of them release to the disseisor all actions personalls this shall bar him but it shall not bar the other Plaintiffs for having regard to them realty shall be preferred omne majus trahit ad se minus dignum 30. H. 6. Barre 59. 45. E. 3. fo 6. So it is in a Writ of Ward brought by two c. Nota diversit In reall actions where damages are not to be recovered by the Common Law as in an Assize c. but are given by the Statute there a release of all actions personalls is no bar as in the Writ of Dower Entry sur disseisin in le per c. Mordane Aiel c. Mert. cap. 1. Dower Gloc. cap. 1. Sect. 493 494. fol. 258. b. A Release of actions personalls is
estate for yeares be granted in fee and the lessor confirme the estate of the lessee for life he cannot afterwards attorn And so it is if the grantor before Attornment confirm the estate of the lessee for life in Tail c. If a feme sole make a lease for life or yeares reserving a rent and grant the reversion in fee and taketh husband this is a Countermand of the Attornment 11 H. 7. 19. If in the case that our Author here putteth of severall grantees if the Tenant attorn to both of them the Attornment is void because it is not according to the grant If a reversion be granted for life and after it is granted to the same grantee for yeares and the lessee Attorn to both grants it is void for the uncertainty 11 H. 7. 12. A multo fortiori if the Lord by one Deed grant his Seigniory to I. Bishop of London and to his heirs and by another Deed to I. Bishop of London and to his successors and the Tenant Attorne to both grants the Attornment is void for albeit the grantee be but one yet he hath several capacities and the grants are several and the Attorment is not according to either of the grants But if A. grant the reversion of black acre or white acre the lessee attorn to the grant and after the grantee maketh his election this Attornment is good for albeit the state was incertaine yet he Attorneth to the grant in such sort as it was made And so note a diversity between one grant and several grants and observe an Attornment good in expectation which passed by the election subsequent Sect. 553. Fol. 301. a. Note that when a man maketh a feoffment of a Manor the services doe not pass but remain in the feoffor untill the Freeholders do attorn and then the Attornment shall have relation to some purpose and not to other for albeit the Attornment be made many years after this feoffment yet it shal have relation to make it passe out of the feoffor Ab initio even by the livery upon the feoffment but not to charge the Tenants with any mean arrerages or for Waste in the meane time c. Temps E. 2. Attorn 48 E. 3 15. If a reversion of land be granted to an alien by Deed who is made Denizen and then the Attornment is made the King upon Office found shall have the land for as to the state between the parties it passed by the Deed ab initio P. 5 E. 3. Coram Rege Sussex in Thesaur 21 E. 3. 47. If a man plead a feoffment of a Manor he need not plead an Attornment of the Tenants but if it be material it must be denied or pleaded of the other side 34 E. 3. Double Plea 24. 42. Ass p. 6. And upon consideration had of all the Bookes touching this point whether the services of the Freeholders do pass wherein there have been three several opinions viz. some have holden that the services do pass in the right by the livery as parcel of the Manor but not to avow before Attornment as in the case of the Fine And others have holden that they do passe in right and possession to distrain without Attornment 26 E. 3. per que servitia 21. 8 H. 4. 1. b. 12 H. 4. 20 H. 6 7. 35 H 6 9 E. 4. 33. 13 H. 7. 14. a. 1 H. 7. 31. 4 E. 4. Attorn Br. 30. And the third opinion is that in this case the said services passe neither in possession nor in right but until Attornment remaine in the Alienor as Littleton here holdeth and so it was resolved P 15 Eliz. betweene Brasbitch and Barwell vide H. 14. Eliz Rot. 508. in Com B. Sect. 590 591. Fo. 324. Si home fait done en tail ou lease pur terme de vie ou pur terme dans del parcell del demesne d'un Manor c. Savant le reversion a tiel donor ou lessor c. puis il soit disseise del Manor c. le disseisor mor. seise c. son heir evant eins pur discent uncore tiel donor c. distreina pur le rent arere tiel reversion apres tiel disseisin est sever del Manor en fait comit que ne soit sever en droit And so note a diversitie between rents and services parcell of a Manor and rents and Services incident to a reversion parcel of a Manor And the reason of this diversitie is for that as long as the donee in taile lessee for life or lessee for yeares are in possession they preserve the reversion in the donor or lessor and so long as the reversion continue in the donor or lessor so long do the rents and services which are incidents to the reversion belong to the donor or lessor Neither can the donor or lessor be put out of his reversion unlesse the donee or lessee be out of their possession c. But if the donee or lessee make a regresse and regain their estate and possession thereby they doe ipso facto revest the reversion in the donor or lessor And note when a man is seised of a Manor and maketh a gift in taile or Lease for life c. Of parcel of the demesne of the Manor the reversion is part of the Manor and by the grant of the Manor the reversion shall passe with the Attornment of the Donee or lessee But if the Lord make a gift or a Lease for life of the whole Manor except bl acre parcell of the demesne of the Manor and after he grant away his Manor B. acre shall not passe because during the estate taile or Lease for life it is severed from the Manor And so note a diversity that a reversion of part may be parcell of a Manor in possession but a part in possession cannot be parcell of the reversion of a Manor expectant upon any estate of freehold But if a man make a Lease for yeares of a Manor except B. acre and after grant away the Manor B. acre shall passe because the freehold being entire it remaineth parcell of the Manor and one praecipe of the whole Manor shall serve But otherwise it is in case of a gift in taile or Lease for life excepting any part there must be severall Writs of Praecipe because the freehold is severall 18. Ass p. 2. 38 H. 6. 33. Pl. Com. Fulmerstons case 103. lib. 5. 11. 22. 25. 19 E. 2. breve 845. 4 E. 3. briefe 713. Now let 's Attorne to the precedent Sections Sect. 554. Fol. 311. a. No man shall attorne to any grant of any Signiory rent service reversion or remainder but he that is immediately privy to the grantor Sect. 556. Fol. 311. b. Here observe a diversity betweene a rent service and a rent charge or a rent secke And therefore without respect of any privity the disseisor onely in case of a rent charge shall attorne because he is Tenant of the freehold but in case
le Baron soit seisee de cert terre en droit sa feme fait feoffement in fee sur Condition devy c. When the heir in this case hath entred for the Condition broken and hath avoided the feoffment the estate of the heir vanisheth away and presently the estate vesteth in the feme or her heirs without any Entry or Claim by her or them for the heir enters in respect of the Condition upon the reall Contract and not of any right and if the husband himselfe had re-entred the state had vested in his Wife And therefore where Littleton and our Books say That the wife shall enter upon the heir the meaning is That after the re-entry of the heir she may enter 4 H. 6. 2. 9 H 7. 24. b. l. 8. f. 43 44. Whittinghams Case Sect. 633. Fo 337. b. If the husband within age take a wife feme Tenant in Tail generall and the husband make a gift in Tail and dyeth within age in this case the wife may enter as Littleton here holdeth or the heir of the husband in respect of the new reversion descended unto him may enter But if the heir enter presently thereupon his estate vanisheth If husband and wife be both within age and they by deed indented joyn in a Feoffment reserving a rent the husband dyeth the wife may enter or have a Dum fuit infra aetat But if she were of full age she shall not have a Dum fuit infra aetat for the Non-age of her husband albeit they be but one person in Law 14 E. 3. Breve 282. 14 E. 3. Dum fuit c. 6. F. N B. 892. Sect. 634. 2. Joyntenants estant deins age fontun feoffment in fee lun de les infants devy celuy que survesquist poit enter en bentierly c. For that they may joyn in a Writ of Right and therefore the Right shall survive But they cannot joyn in a Dum fuit infra aetat because the Nonage of the one is not the Nonage of the other 21 E 3. 50. 18 E. 2. Breve 831. 6 E. 3. 4. 9 H. 6. 6. 19 H. 6. 6. 39 H. 6. 42. 34 H 6. 31. In this case if one joyntenant had made a Feoffment in fee and dyed the right should not have survived for the joynture was severed for a time If two joyntenants be and the one is of full age and the other within age and both they make a Feoffment in fee and he of full age dyeth The Infant shall enter or have a Dum fuit c. but for the moity Sect. 635. Fol. 337. b. Serroit encounter reason que un feoffment fait per celuy que ne fuit able de faire tiel feoffment greevara ou ledare auter de toller eux de lour entre c. Meliorem facere potest minor condic ' deteriorem nequaquam Bract. fo 14. Brit. f. 88. a. Nota a speciall heir shall take advantage of the infancy of the Ancestor As if Tenant in Tail of an acre of the Custome of Borough English make a Feoffment in fee within age and dyeth the yongest Son shall avoid it for he is privy in blood and claimeth by Discent from the Infant And so note that a cause to enter by reason of infancy is not like to Conditions Warranty and Estoppels which ever descend to the heir at the Common Law Sect. 636. Fol. 338. a. Note there be 3 kinds of Surrender viz. a Surrender properly taken at the Common Law which is a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutuall agreement between them 2. A Surrender by Custom of Lands holden by Coppy or of Customary estate vide Sect. 74. homo com gen ** And 3. A Surrender improperly taken vide S. 550. of a Deed. And so of a Surrender of a Patent and of a rent newly created and of a fee simple to the King 2 El. Dyer 176. 14 H. 7. 3. 27 Ass 37. 49 E. 3. 2. 11 H. 4. 2. 12 H. 4. 21. 13 H. 4. 13. And a Surrendr properly taken is of two sorts viz. 1 A Surrender in Deed by expresse words whereof Littleton here putteth an Example and he putteth his case of a Surrender of an estate in possession for a right cannot be sureendered 2. A surrender in Law which in some cases is of greater force then a Surrender in Deed. As if a man make a lease for years to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may drown but by a surrender in Law it may be drowned As if the Lessee before Michaelmas take a new lease for years either to begin presently or at Michaelmas this is a surrender in Law of the former lease Fortior et aequior est dispositio legis quam hominis 14 H. 8. 15. 50 E. 3. 6. 44 Ass 3. 35 H. 8. Dyer 37. 8 Ass 20. 4 M. Dyer 141. 11 El. Dyer 280. 21 H. 7. 6. 14 H 7. 4. li. 6. fo 69. Sir Moyl Finches Case Also there is a Surrender without Deed whereof Littleon putteth here an Example of an estate for life of lands And also there is a Surrender by Deed and that is of things that lie in grant 16 H. 6. 33. 27 Ass 46. 14 H. 7. 4. 1 H. 6. 1 Pl. Com. 541. And albeit a particular estate be made of lands by Deed yet may it be surrendred without Deed in respect of the nature and quality of the thing demised because the particular might have beene made without Deed. and so on the other side If a man be * Tenant by the Curtesie or Tenant in Dower of an Advowson Rent or other thing that lies in grant albeit the estate begin without Deed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without Deed. And so if a lease for life be made of lands the remainder for life albeit the remainder for life began without Deed yet because remainder and reversions though they be of lands are things that lie in grant they cannot be surrendred without Deed. Qu. fi le fits la feme poit enter c. It is holden of some That after the surrender the issue in Tail during the life of Tenant for life may enter for that having regard to the issue the state for life is drowned and consequently the inheritance gained by the lease is by the acceptance of the surrender vanished and gone as if Tenant in Tail make a lease for life whereby he gaineth a new reversion if Tenant for life surrender to the Tenant in Tail the estate for life being drowned the reversion gained by wrong is vanished c. and he is Tenant in Tail again against the opinion Obiter of Portington 21 H. 6. 53. vide lib. fo 338. b. Mes il nost rien a
non-tenure or disclaime there the demandant may averre him to be Tenant of the Land as his Writ supposes for the benefit of his damage which otherwise he should lose or pray judgement and entry 13 H. 7. 28. 22 H 6. 44. But where no damages are recoverd as in a Formedon in discent c. there he cannot aver him Tenant but pray his judgement and enter for thereby he hath the effect of his suit frustra fit per plura quod c. 8 E. 3. 434. 24 E 3. 9. 11 H. 4. 16. and 7 H. 6. 17. A general averment is the conclusion of every plea to the Writ or in barre of replication and other pleadings for Counts or Avowries in nature of Counts need not be averred containing matter affirmed ought to be averred hoc paratus est verificare c. Particular averments are as when the life of Tenant for life or Tenant in Tail are averred and there though this word verificare be not vsed but the matter avouched and affirmed it is upon the matter an averment and an averment containeth as well the matter as the forme thereof Sect. 692 Fol. 363. a. Albeit in this case and in the case before the entry of the demandant is his own act and the demandant hath no expresse judgement to recover yet he shall be remitted causa â—â—a supra 36 H. 6 Fo. 29. Sect. 693. Fo. 363. b. Here note a diversity If a man of full age having but a right of action taketh an estate to him he is not remitted But where he hath a right of entry and taketh an estate he by his entry is remitted because his entry is lawful and if the disseisor infeoffe the disseisee and others the disseisee is remitted to the whole for his entry is lawful otherwise it is if his entry were taken away 29. Ass p. 26. 43. Ass 3. 11 H. 7. â—0 3 H. 6. 19. 40 E. 3. 43. If Tenant in Tail be of a manor where unto an advowson is appendant the Tenant in Tail discontinue in Fee discontinuee grant away the Advowson in Fee and dyeth the â—â—e in tail recontinueth the Manor by Recovery he is thereby remitted to the Advowson and he that right hath shall present when the Church becometh void 8 R. 2. Qu. imp 199. 26. H. 8. 4. F.N.B. 36. 35. b. The Patron of a benefice is outlawed and the Church become void an estranger usurpeth and six moneths passe the King doth recover in a qu. imp and remove the incumbent c. Advowson is recontinued to the rightful patron 22. Ass p. 33. Theobald Grinvile and so note a diversity a remitter cannot be properly unlesse there be two Titles but a recontinuance may be where there is but one If the disseisor by Deed Indented make a Lease forlife or a gift in Taile c. yet the Deed Indented shall not suffer the livery made according to the form and effect of the Indenture to work any Remitter to the disseisee but shall estop the disseisee to claim his former estate and if the disseisor upon the feoffment doth reserve any Rent or condition c. the rent or condition is good 13 H. 4. 5. 3 H. 4. 17. 8 H. 4. 8. 12 H. 4. 19. 35. Ass 8. 17. Ass 3. 43. E. 3. 17. Parkers Case 21 H. 6. 2. per Paston Sect. 695. Fol. 364. a. Note a diversity A claime in paiis shall not hinder Remitter otherwise it is a claime of Record because that doth work a conclusion Sect. 696. Fol. 344. b. Here note a notable diversity If two joyntenants or coparceners joyn in a reall action where their entry is not lawful and the one is summoned and severed and the other pursueth and recovereth the moity the other Joyntenant or Coparceners shall enter and take the profits with her because their remedie was one and the same But where two Coparceners and they are disseised and a discent is cast and they have issue and dye if the issue of the one recover her moity the other shall not enter with her because their remedies were severall and yet when both have recovered they are coparceners again 10. H. 6. 10. 19 H. 6. 45. 31 H. 6. Ent. Cong 54. So here in this case that Littleton putteth then two joyntenants have not equall remedy for the Infant hath a right of Entry and the other a right of action and therefore the Infant being remitted to moity the other shall not enter and take the profits with her If A and B. joyntenants in fee be disseised by the Father of A. who dyeth seised his Sonne and heir enter he is remitted to the whole and his companion shall take Advantage thereof Otherwise here in the case of Littleton for that the Adventure is given to the Infant more in in respect of his person than of his right whereof his companion shall take no advantage But if the Grandfather had disseised the Joyntenants and the land had discended to the Father and from him to A. and then A. had dyed the entry of the other should be taken away by the first descent and therefore he should not enter with the heire of A. But here in the case of Littleton if after the discent the other Joyntenant had dyed and the infant survived some say that he should have entred into the whole because he is now in Judgement of of Law solely in by first feoffment and he claimeth not under the discent Vide 35 Ass p. ultimo ** CHAP. XIII Of Warranty Sect. 697. A Communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem A warranty is a convenant reall annexed to Lands or Tenements whereby a man and his heires are bound to warrant the same and either upon voucher or by judgement in a writ of Warrant Cartae to yeeld other Lands and Tenements to the value of those that shall be evicted by a former title or else may be used by way of Rebutter i.e. to repel or barre Bract. l. 2. fo 37. and l. 5. fo 380. c. Glan l. 3. ca. 1. 2. 3. 38. E. 321. 45 E 3. 18. Fol. 365. a. Garronter en un sense signifie a defender son tenant en sa seisin en auter sence signifie que si il ne defendant que le garrant luy soit tenue a eschanges de faire son gree a la vaillaunce Brit. Fo. 197. b. By the Statute of Glocestor foure things are enacted 1. That if a Tenant by the Curtesie alien with warranty and dyeth that this should be no barre to the heir in a Writ of Mordanc without Assets in fee simple and if Lands or Tenements descend to the heir from the Father he shall be barred having regard to the value thereof 2 That if the heir for want of Assets c. doth recover the Lands of his mother by force of this Act and afterwards Assets discend c. 3. That the issue of the Sonne
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
assigned over without Deed the wardship of an Advowson cannot be granted without Deed. Causa qua supra Vide Divers CHAP. V. Socage Sect. 117. OMnium rerum ex quibus aliquid exquiritur nihil agricultura melius nihil uberius nihil dulcius nihil libero homine dignius Cicero lib. 1. offic Virg. Lib. 1. Georg. O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima tellus Nullum laborem recusant manus quae ab aratro ad arma transferuntur c. Fortior autem Miles ex confragoso venit sed ille unctus nitidus in primo pulvere deficit Seneca in Epist In the Book of Doomesday Land holden by Knights service was called Taniland and Land holden by Socage was called Reveland Fo. 86. a. Nota that the legall signification of agium in composition termineth service or duty as Homagium the service of the man c. Vide Libr. a woundy mistake fignum pro termino Ex donationibus autem feoda militaria vel magnam serjeantiam non continentibus oritur nobis quoddam nomen generale quod est socagium It is a presumption where homage is due that the land is holden by Knights service Sect. 118. and 119. Home poit tener per fealty tantum est a tener en Socage Car chescun tenure que nest pas in Chivalry est tenure en Socage Here Littleton speaketh of Tenures of common persons for grand Serjeanty is not Knights service and yet is not a Tenure in Socage Vide c. And note That some Tenures in Socage are named à causa and some and the greater part ab effectu Socagium idem est quod servitium Socae Soca idem est quod caruca s un soke ou un carve As carucata terrae a plough land may contain houses mils pasture meadow wood c. as pertaining to the plough so under the service of the Plough all services of tillage or husbandry are included Although the cause whereupon the name of Socage first grew be taken away yet the name remains the same it hath been and is used to distinguish this Tenure from a Tenure by Knights service Nomina si perdas certè distinctio rerum perditur Sect. 120. and 121. Escuage certain is not in rei veritate servit ' scuti which is to be done by the body of a man but it is servitium Crumenae of money which is to be drawn out of the purse and that is in effect a Tenure in Socage If a rent be paid for Castlegard it is clear a Socage Tenure but if a sum in gross or other thing be voluntarily paid or given by the tenant and voluntarily received by the Lord in lieu of Castlegard yet the Tenure by Knights service remaineth vide lib. 4. fo 88. in Lutterels Case Rent service is accompanied with some corporal service as fealty at the least Sect. 122. Sect. 123. If lands holden in Soccage be given to a man and the heirs of his body and he dieth his heir within age the next Cosin of the part of the father albeit he be worthier shall not be preferred before the next Cosin of the part of the mother but such of them as first seiseth the heir shall have his Custody fo 88. a. If A. be Guardian in Soccage of the body and lands of B. within age of 14 years A. shall be Guardian per cause de gard But an Infant c. that is not in the custody of another cannot be Gardian en Soccage because no Writ of Account lieth against an Infant Alium regere non potest qui seipsum regere non novit Bract. lib. 2. fo 88. Minor minorem custodire non debet alios enim presumitur male regere qui seipsum regere nescit Fleta lib. 1. cap. 10. Haeres sokmamii sub custodia capitalium dominorum non erit sed sub custod ' consanguineorum suorum propinquorum hoc est eorum qui conjuncti sunt jure sanguinis non jure successionis ex parte quor ' non descendit haereditas c. Hereby not only an immediate descent but all possibility of descent is excluded Vide lib. fo 88. b. The father Guardian in Soccage must by law be accountable to the son both for his marriage and also for the profits of his lands which he should not if he had the custody c. in this case as father in respect of nature And the act of the law never doth any man wrong sic vide diversitatem c. Guardian in Soccage shall not forfeit his interest by outlawry or attainder of Felony or Treason because he hath nothing to his own use but to the use of the heir Legitima aetas as the Statute of Merlebridge 52 H. 3. speaketh or plena aetas as the Writ of Account doth render it are to be understood secundum subjectam materiam that is of the heir of Soccage land whose lawfull and full age as to Guardianship is 14 years And as to the recitall of the Statute it is evident That an action of Account did lie against Guardian in Soccage at the Common Law Vide lib. fo 89. a. * If the Guardian receive the rents and profits c. and he be robbed without his default or negligence he shall be discharged thereof But otherwise it is of a Carrier for he hath his hire and thereby implicitely undertaketh the safe delivery of the goods delivered to him H. 38. Eliz. inter Woodlief Curteis Note it is necessary for any that receiveth goods to be kept to receive in this special manner viz. To be kept as his own or to keep them at the peril of the owner To be kept and to be safely kept is all one in Law sic vide diverfit ' Pascha 43 Eliz. Southcote and Bennet The Gardian en Socage shall account for the marriage of the heir so for so much as any man bona fide had offered for the marriage unto him Le enfant al age de 18 years poit faire son testament c. Nota Executors could not have an action of Account at the Common Law in respect of the privity of the account but the Statute of Westm. 2. cap. 23. hath given the action of account to Executors the Statute of 25. E. 3. cap. 5. to Executors of Executors and the Statute of 31 E. 3. cap. 11. to Administrators The Gardian en Socage is bounden by Law That the heir be well brought up and that his Evidences be safely kept Sect. 124. and 125. Sed quaere si apres lage de 14 ans c. This quaere came not out of Littletons quiver for it is evident That after the age of 14 years Gardian en Socage shall be charged Bayliff at any time when the heir will either before his age of 21. years or after Gardian en Chivalry ad le gard a son proper use Gardian en Socage nad
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.