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
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.
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
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.
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
of Weyland being abjured the Realm for Felony in the year before Margery de Mose his wife and Richard son of the said Tho. exhibited their Petition of Right into the Parliament Anno 19. E. 1. for the Manor of Sobbir wherein her husband had but an Estate for life joyntly with her and the inheritance in Richard the son by fine The Earl of Glocester Lord of the fee who claiming the land by Escheat had taken the possession thereof alleged Quod non fuit jure consonum quod aliqua foemina intraret in aliquas terras vivente marito suo c. Tamen Coram Consilio Domini R. vocat ' Thesaurar ' Baron Justiciariis de utroque Banco concordat ' est quod praedicta Margeria rehabeat talem seiseinam c. secundum perportum finis praedict ' c. Vide lib. fo 33. a. If the husband had aliened the land of his wife and after had been abjured the Realm for Felony the wife shall have a Cui in vita in his life time 31 E. 1. Cui in vita 31. The wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a feme sole by the Common Law And such a Queen hath many Prerogatives as she shall find no pledges for such is her dignity as she shall not be amerced 18 E. 3. 1 2. The Queen shall pay no Toll N. B. 235. The Writ of Right shall not be directed to the Queen no more than to the King but to her Bayliff F.N.B. 1. F. But a Protection shall be allowed against the Queen but not against the King neither shall the Queen be sued by Petition but by a Praecipe 21 E. 3. 13. 11 H. 4. 76. b. If A. be bound to the Abbot of D.A. is professed a Monk in the same Abbey and after is made Abbot thereof he shall have an action of Debt against his own Executors 4 E. 4. 25. 6 E. 4. 4. 22 H. 6. 5. 45 E. 3. 10. a. 5 H. 7. 25. b. Sect. 201. Excommunicato interdicitur omnis actus legitimus ita quod agere non potest nec aliquem convenire licet ipse ab aliis possit conveniri Excommunicatio nihil aliud est quam Censura à Canone vel judice ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque hominum Bract. lib. 5. fo 415. 426 c. F.N.B. 64. F. None can certifie Excommengment but onely the Bishop or one that hath Ordinary Jurisdiction and is immediate Officer to the Kings Courts As the Archdeacon of R. or the Dean and Chapter in time of vacation The Common Law disallows all acts done in disability of any Subject of this Realm by any forren power as things not authentique wherof the Judges should give allowance 16 E. 3. Sxcom 4. N.B. 64. For the manner of Election of Bishops vide le statute of 25 H. 8. None but the Kings Courts of Record as the Kings Bench c. Justices of Gaol-delivery c. can write to the Bishop to certifie Bastardy Mulierty loyalty of Matrimony c. for it is a rule in Law That none but the King can write to the Bishop to certifie Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bract. l. 3. 106. Jour is the day of appearance of the parties or continuance of the plea. And in all Summons upon the Original there be 15 daies after the Summons before the appearance But if the Original be returned tarde and Sommons alias goeth forth there be nine Returns between the Teste and the Return 8 H. 6. 20. 8 Eliz. Dyer 251. And before the Statute of Articuli super Chart. cap. 15. 28 E. 1. in all Summons and Attachments in plea of Lund there shall be contained the term of 15 daies But by consent other than common dayes may be taken 11 H. 6. 23 The use of the Kings Bench at this day is That if the offence be committed in another county than where the Bench sits and the Indictment be removed by Certiorari there must be 15 daies between every Process and the Return thereof c. Lib. 9. 118 Zanchers Case fo 134. b. vide c. There is dies specialis as in an Assize in the Kings Bench or Common Pleas the Attachment need not be 15 daies before the appearance F. N.B 177. cap. The day of Nisi prius and the day in bank is all one day as to pleading but not to other purposes 21 H. 6. 10. 20. vide qu. fo 135. a. Resummons or Reattachments are Writs that the Demandant or Plaintiff after he hath obtained the Letters of his Absolution may sue out to bring the Tenant or Defendant again into Court to have day to answer unto him and these Writs do lie in all cases when the plea is discontinued or put without day either in this case or in case where the Demandant or Tenant hath his age or for the non venue of the Justices or in case of a protection or Essoign de service le Roy c. Bracton lib. 5. 425. Brit. cap. 74. l. 7. 29 30. Note That in the case of Excommengement the Writ shall not abate but the plea to be put without day untill the plaintiff purchase his Letters of Absolution c. but in the other five cases sc of a Villain c. ante fo 55. a. the Writ shall abate fo 135. b. But in the case of Outlawry the writ shall abate if he obtain not his pardon 44 E. 3. 27. At this day Ideots Madmen c. may sue for the Sutes must be in their name but it shall be followed by others An Ideot shall not appear by Guardian or Prochein amy or Atturney but hee must be ever in person 33 H. 6. 18. F. N. B. 27. G. But an Infant or a minor shall sue by Prochein amy and defend by Guardian 27 H. 8. 11. 20 E. 4. 2. F. N. B. 27. H. Sect. 202 203 204. Si lenfant al age de 14 ans enter en religion est professe le gaodein nad auer remedie quant al gard le corps forsque breve de ravishment de gard enveâ—s le soveraigne del meason l'entry d'asc ' estaut de pleine age que eÌ„ heire lenfant eÌ„ congeable legardein en tiel case nad asc ' remedie pur le terre c. Manumittere idem est quod extra manum vel extra potestatem alterius ponere Every Manumission is an infranchisement but every infranchisement is not a Manumission Mirr cap. 2. Sect. 18. There be two kindes of Manumissions 1. Express when the Villain by deed in express words is manumissed and made free 2. Implyed by doing some act that maketh in judgement of Law the Villain free c. Libertinum ingratum leges civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum judicant
infranchised Kellaway 134. But if the Lord sue his vill by appeal of Felony where he was indicted of the same before this shall not enfranchise the villain and although he be acquited upon the appeal for he shall recover no damages against his Lord. W. 2. c. 12. 22. Ass p. 39. 14 H. 7. 2. Sect. 204. and 210. c. None ought to pay fines for the marriage of their daughters without licence of the Lord c. but villains of blood or freemen holding in Villenage 43 E. 3. 5. Additio probat minoritatem Haereditas inter masculos jure civili est dividendae Fort. c. 40. Haud facile emergunt quorum virtutibus obstat Res angusta domi Horace By the Statute of 31 H. 8. a great part of Kent is made descendable to the eldest son 18 H. 6. c. 1. For In plures quoties rivos deducitur amnis Fit minor aec unda deficiente perit Sect. 211. and 212. There is a speciall kind of Borough of Engl. as it shall descend to the younger son if he be not of the half blood and if he be then to the eldest son 32 E. 3. tit age 81. within the mannor of B. in Comit. Berks there is such a custome that if a man hath divers daughters and no son and dieth the eldest daughter shall onely inherit and if he have no daughter but sisters the eldest sister by the custome shall inherit and sometime the youngest M. 10. Ja. Eliots c. Brit. 187. b. Hor. Imberbis juvenis tandem Custode remoto Gaudet equis Canibusque aprici gramine Campi Cereus in vitium flecti monitoribus asper Vtilium tardus provisor prodigus aeris Sublimis cupidusque amata relinquere pernix Nil homine insirmum tellus animalia nutrit Inter Cuncta magis Home Aliquis non debet esse judex in propria causa 10 E. 3. 23. 2 H. 3. 4. H. 4 H. 4. Salop. Coram Rege Praescription que est encounter reason ne doit est allow quia malus usus abolendus est In consuetudmibus non diuturnicas temporis sed soliditas rationis consideranda est Fo. 141. a. Rex c. pro coÌ„i utilitate terrae Hiberniae pro unitate terrarum provisum est quod omnes leges c. quae in Reg. Angl. tenentur in Hybernia teneantur c Sicut Johannes Rex cum illic esset statuit firmiter mandavit c. Rot. pat 30 H. 3. Vid. lib. 141. b. By an Act of Parliament tent 10 H 7. est enact que touts stat ft. in England devant cela temps ferront in force in Royalme de Ireland CHAP. XII Of Rents Sect. 213. REnt service est lou le tenant tient la terre de son Seignior per service and certain â—ent le Seignior poit distr pur ceo de common right Rent is reserved out of the profits of the Land and is not due till the Tenant or Lessee take the profits for reddere nihil aliud est quam acceptum aut aliquam partem ejusdem restituere seu reddere est quasi retro dare Lib. 10 148. Cluns Case Pl. Com. 138 139 c. Browning c. A rent service cannot be reserved out of any inheritance but such as is manurable whereinto the Lord may enter and take a distresse as in Lands c. Reversions Remainders and as some have said out of the herbage of Lands and reg not out of any inheritance incorporeall or that lie in grant Lib. 5. fo 4. Seignior Mountjoyes c. l. 7. f. 23. Buts c. Pl. com 139. By Act of Law one rent or service may issue out of another 3 H. 6. 21. And though it be out of Lands c. Yet it must be out of an estate that passeth by the conveyance and nor out of a right 10 E. 4 3. b. As if the disseisee release to the disseisor of the Land reserving a rent the reserve is good Fo. 144. a. Non debet esse reservatio de proficuis ipsis quia ea conceduntur sed de redditu novo extra preficua 38 H. 6. 38. a Fol. 142. a. The common Law is the best and most common birth-right that the subject hath for the safeguard of his lands c. 2 H. 4. c. 1. Justice is the daughter of the Law for the Law bringeth her forth A rent service may be reserved without Deed 35 H. 6. 34. Sect. 215 c. Ou home sur un done en Taile ou lease c. voile reserv a lu rent service il covient que le reversion c. Soit en le donor ou lessor c. This is not to be understood only of a reversion immediately expectant upon the gift or Lease for if a man make a gift in taile the remainder in taile reserving a rent and keep the reversion in himselfe this is a rent service Fo. 142. b. Reserver sometimes hath the force of saving or except so as sometimes it serveth to reserve a new thing viz. a Rent 8 E. 4. 48. Sometime to except part of the thing in esse that is granted 35 H 6. 34. In the grant of a reversion the rent may be excepted but not the services If a man make a gift in tail without any reservation the donee shall hold of the donor by the same services that he held over The Law regardeth equity and equality without any provision or reservation on the party B. f. 100. Ipsae etenim leges cupiunt ut jure regaâ—tur But if the Lessor for life or years reserveth nothing he shall have fealty only which is an incident inseparable to the reversion 38 E. 3. 7. Littl. fo 4. Sect 217. and 218. Rent must be reserved to him from whom the state of the Land moveth and not to a stranger 18 E. 2. Ass 381. But some do hold that otherwise it is in the case of the King 35 H. 6. 36 * Note that upon a reservation of a rent upon a feoffment in Fee by Deed Indenture the feoffor shall not have a Writ of annuity because the words of reservation as Reddendo c. are the words of the Feoffor and not of the Feoffee albeit the Feoffee by acceptance of the State is bound thereby 33 E. 3. Annuity 52. 1 H. 4. 5. And it is holden that a reservation upon a Feoffment in Fee made by Deed Poll is good 8 E 4. 8. Auxi si un home SeÌ„i de cert terre grant per unft Poll ou per Indentare un annual rent issuant hors de m. la terre a un auter in Fee ou in fee taile ou per terme de vie c. ovesque clause de distresse c. donques ceo est rent charge si le grant soit sans clause de distresse donques il est r. seck i. e. redditus siccus Also a man may have a rent by prescription 19 E. 3. Title 34. Sect. 219. If a man grant by his Deed a rent charge to another and
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
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
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