in tail to A. the remainder to his right heirs A. dyeth without issue the Collaterall heir of A. shall have a writ of right of the seisin of A. 4. E. 3. 16. 17. And so note a diversity between a seisin to cause posses fratris c. for there is required a more actuall seisin and a seisin to maintain a writ of right 40. E. 3. 8. 42. E. 3. 20. 37. Ass 4. 14. E. 4. 24. 7. H 5. 4. 11. H. 4. 11. Sect. 483. 484. Note a diversity where the issue taken goeth to the point of the writ or action there modo and forma are but words of form as in Littletons case of the writ of entry in casu proviso and so is the c. well explained in this Section But otherwise it is when a collaterall point in pleading is traversed as if a feoffment be alleadged by two and this is traversed modo and forma and it is found the feoffment of one there modo and forma is materiall So if a feoffment be pleaded by deed and it is traversed absque hoc quod feoffavit modo forma upon this collaterall issue modo forma are so essentiall as the Jury cannot find a feoffment without deed 9. H. 6. 1. 40 E. 3. 35. 21. E. 3. 4. 22. F.N.B. 205. 206. g. 40. E. 3. 5. 32. H. 8. issue Br. 80. 12. E. 4. 4. Here is another diversity to be observed that albeit the issue be upon a collaterall point yet if by the finding of part of the issue it shall appear to the Court that no such action lieth for the plaintiffe no more then if the whole had been found there modo forma are but words of forme as here in the case which Littleton putteth of the Lord and Tenant appeareth 10. E. 4. 7. 8. E. 4. 15. 20. and 21. E. 4. 3. Merlbr cap. 3. If the matter of the issue be found it is sufficient and this rule holds in criminall causes Pl. Com. 101. v. 6. E. 3. 41. b. 9. H. 7. 3. 13. H. 7. 14. 8. E. 3. 70. 8. Ass 29. 39. 5. H. 4. 22. 7. H. 4. 11. Pl. Com. 92. 3. Mar. Dyer 115. 116. 40. E. 3. 35. 31. E. 3. account 58. 28. Ass 48. The lessee covenants with the lessor not to cut downe any trees c. and binds himself in a bond of 40. l. for performance of covenants the lessee cuts down ten trees the lessor brings an action of debt upon the bond and assigneth a breach that the lessee cutteth down twenty trees whereupon issue is joyned and the Jury find that the lessee cut down ten judgment shall be given for the Plaintiff for sufficient matter of the issue is found for the Plaintiff Sect. 485. 486. An assault battery or taking of goods c. alledged in another county cannot be traversed without speciall cause of justification which extendeth to some certain place as if a Constable of a Town in another county arrest the body of a man that breaketh the peace there he may traverse the county but he must not rest there but all other places saving in the Town whereof he is Constable And so it is of taking of goods the Defendant justifies for damage feisant in another county he must as before traverse But where the cause of the justification is not restrained to a certain place that is so locall as it cannot be alledged in any other Town c. then albeit the action be brought in a forraigne county yet he must alledge his justification in the county where the action is brought In an action upon the case the Plaintiff declared for speaking of slanderous words which are transitory and laid the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the counties of England saving in London and traversed the speaking of the words in London the Plaintiff in his Declaration denied the concord whereupon the Defendant demurres and Judgment c. for the Plaintiff Tr. 30. El. Kings Bench. Inglebert and Jones Com. Pleas. Pasche 38. El. Rot. 1656. It is an ancient Principle in Law That for transitory causes of action the Plaintiff might alledge the fame in what place or County he would It is better that it be turned to a default then the Law should be changed or any innovation made 2. H. 4. 18. 38. E. 3. 1. A man did grant a rent that the grantee should hold the distress against gages and pledges and yet he shall gage delivery for otherwise by this new invention all Replevins shall be taken away 4. E. 3. cap. 5. 4. H. 4. cap. 2. Where the Jury is bound to find as well locall things in many cases as transitory in other Counties Vide lib. 6. fol. 46. Dowdales Case 3. E. 3. Ass 446. 14. H. 4 35. 5. H. 5. 2. 37. H. 6. 2. 7. E. 4. 45. 18. E. 4. 1. 13. H. 7. 17. 2 Mar. Br. att 104. 20. El. Dyer 171. 19. H. 6. 48. 28. H. 8. Dyer 29. 12. H. 8. 1. Reg. by the Common Law if the Defendant hath cause of justification or excuse then can he not plead Not guilty for then upon the evidence it shall be found against him for that he confesseth the battery and upon that issue cannot justifie it but he must plead the speciall matter and confesse and justifie the battery If in battery the Defendant may justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall issue and so of the like In trespasse of breaking his close upon Not guilty he cannot give in evidence that the beasts came through the Plaintiffs hedge which he ought to keep nor upon the generall issue justifie by reason of a rent charge common c. 25. H. 8. Br. In Detinue the Defendant pleaded non detinet he cannot give in evidence that the goods were pawned to him for money and that it is not paid but must plead it but he may give in evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods 22. H. 6. 33. 20. El. Dyer 276. 2. M. Dyer 212. If two men be bound in a bond joyntly and the one is sued alone he may plead matter in abatement of the Writ but he cannot plead Non est factum for it is his Deed though it be not his sole deed lib. 5. fo 119. Whelpdales case vide c. fo 283. a. Reg. whensoever a man doth any thing by force of a Warrant or Authority he must plead it But all that hath been said must be under two cautions 1. That whensoever a man cannot have advantage of the speciall matter by way of pleading there he shall take advantage of it in the evidence For example the Rule of Law is That a man cannot justifie in the killing or death of a man and therefore he shall be received to give the especiall matter in evidence as that it
12 years or more be vide c. Reg. Orig. 132. 3 H. 5. tit Vtlawry Statham Sect. 187 c Lex Angliae nunquam matris sed semper patris conditionem imitari partum judica Surculus totum alimentum aÌ„ stipite capit poma tamen edit sua Fortescue c. 42. Si mulier serva copulata sit libero c. quod partus habebit hereditatem mater nullum dotem quia mortuo vito libero redit iu pristinum statum servitutis nifi haeres ei dotem secerit de gratiaâ— Bract lib. 4. fo 298. b. A child was born after the father deceased per undecim dies post ultimum tempus legitimum sc nine moneths or forty weeks mulieribus constitutum and it was adjudged Quod dici non debet filius c. Trin. 18. E. 1. Rot. 61. Beaf coram Rege Un villeine n'avar action envers son seigneiur mes en special cases c. il poit aver action c. sicome appeal de mort son pere c. Auxi un Niefe avant un appeale de Rape en vâ—rs sa seignieur W. 1. c. 13. W. 2. cap. 35. Sect. 191 and 192. The Villain shall have an action as Executor against his Lord and it is no plea for the Lord to say that the Plaintiff is his villain for he shall not be enfranchised by the user of this action because he hath it by a gift in Law to the use of the Testator and not to his own use Note Damages recovered by the Executor in an action of Trespass shall be assets and yet they were never in the Testator 21 E. 4. 4. b. 1 H. 4. 6. Not onely tenant in tail and tenant for life of a Villain shall have the perquisite of the Villain in fee but tenant for years and tenant at will also shall have it in fee for the law respecteth not the quantity of the estate but the law respecteth the quality for in what right he hath the Villain in the same right he shall have the perquisite c. For if a man hath a Villain in the right of his wife and after he is intitled to be tenant by the Curtesie in his own right he shall have the perquisite to him and his heires vide lib. c. fo 124. b. Protestation is an exclusion of a Conclusion that a party to an action may by pleading incur or it is a safegard to the party which keepeth him from being concluded by the plea he is to make if the issue be found for him but in this case without a Protestation albeit the issue be found for the Lord the Villain shall be en franchised S. 192 Pl. c. 276. in Greysbrooks Case Sect. 193. Three things be favored in Law Life Liberty Dower Tryal is to find out by due examination the truth of the point in issue or question between the parties whereupon Judgement may be given Quaestio juris shall be tryed by the Judges either upon a Demur speciall Verdict or Exception for cuilibet in sua arte perito est credendum quod quisque norit in hoc se exerceat ad quaestionem juris non respondeant juratores But quaestio facti shall be tryed by the Verdict of Twelve men fo 125. a vide c. If the Jury cometh out of a wrong place or returned by a wrong Officer and give a Verdict Judgement ought not to be given upon such a Verdict qu. c. Every 〈◊〉 must come out of the Neighborhood of a Castle Manor Town or Hamlet or place known out of a Castle c. as some Forrests c. for that the inhabitants c. may have the better and more certain knowledge of the fact 3 E. 3. 73. 20. H. 6. 30 7. H. 4. 27. Every plea concerning the person of the Plaintiff c. shall be tryed where the Writ is brought Where the matter alleged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common Law In an action against two the one pleads to the Writ the other to the action the plea to the Writ shall be first tryed for if that shall be found all the whole Writ shall abate and make an end of the business 8 E. 4. 24. In a plea personall against divers Defendants the one Defendant pleads in barre to parcell c. and the other pleads a plea which goeth to the whole sc to both Defendants this last plea shall be first tryed for in a personall action the discharge of one is the discharge of both but in a plea reall it is otherwise 15 E. 4. 25. b. c. vide lib. c fo 125. b. 9. H. 6. 46. Where an issue is joyned for part and a Demurre for the residue the Court may direct the tryall of the issue or judge the Demurre first c. l. 5. 36 b. Omnis consensus tollit errorem fol. 1126. a. * Issue exitus a single certain and materiall point issuing out of the allegations or pleas of the Plantiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold A speciall Issue as here in the case of Littleton or generall as in Trespas Not guilty in Assise nul tort nul disseisin c. And as an Issue naturall cometh of two severall persons so an Issue legal issueth out of two severall Allegations of adverse parties vide Sect. 414. An Issue being taken generally referreth to the Count and not to the Writ 7. E. 3. 34. vide c. A speciall Issue must be taken in one certain materiall point which may be best understood and best tryed 20 E. 3. Issue 31. 22. E. 4â— 28. An Issue shall not be taken upon a Negative pregnant which implieth another sufficient matter but upon that which is single and simple as Ne dona pas par left imply a gift by Parol therefore the Issue must be Ne dona pas mo do forma 21. H. 6. 9 b. 16. E. 4 5. An Issue joyned upon an Absque hoc c. ought to have an Affirmatâ—ve after it Two Affirmatives shall not make an Issue unless it be left the Issue should not be tryed 18. Eliz Dyer 253. 22. H. 6. 19. 11. H 4. 79. Some Issues be good upon matter Affirmative and Negative albeit the Affirmative and Negative be not in precise words as in Debt upon a lease for yeares the Defendant pleads that the Plaintiff had nothing at the time of the lease made the Plaintiff replies that he was seised in fee c. this is a good Issue 2 H. 7. 4. 5. H. 7. 12. 26. H. 8. in formedon Where the Issue is joyned of the part of the Defendant the entry is de hoc ponit se super patriam but if it be of the part of the Plaintiff he entry is hoc petit quod inquiratur per patriam 26 H. 8. 3. 18 Eliz. Dyer 353. There be
year and a day but this Statute extends onely to Fines and not to Non-claim upon a judgement in a Writ of Right and therefore the Statute of â—â— E 3 16 which ousteth Non-claim onely to Fines levied extendeth not to a judgement in a Writ of Right to this day and therefore the Common Law in that case remaineth c. viz that claim must be made within a year and a day after judgement Also if a Fine be levied without Proclamations or without so many as the Law requireth then the Statute of Non-claim doth extend to such a Fine l 3 fo 44 c. Case del fines l 1. fo 96 Shelleys Case l 2 f 93 Binghams Case l 8 f 100 Lechfords Case l 91 f 139 c. Beaumands Case l 10. f â—9 b Lampots Case 99 a l 9 f 105 Margaret Podgers Case l 5. f 124 Saffins Case l 1â— 96 Seymors Case l 8 f 72. Greysleys Case l 11 â—65 7â— 78. Pl. Com. Smith and Stapl. Case Stows Case and Howels Case Bract. 435 Brit. 216 fo 262 a Finis finem litibus imponit A feme covert also they in reversion or remainder expectant upon any estate of Freehold are holpen by the Statute of 4 H 7 vide lib. fo â—62 b Sect. 442. In a Writ of entry sur disseisin against one supposing that he had not entry but by I. S. who disseised him the Tenant said that I.S. dyed seised and the land descended to him and prayed his age the Plaintiff counterpleaded his age for that he arraigned an Assize against S. who dyed hanging the Assize and he was ousted of his age for that the bringing of the Assize amounted to a Claim 24 E 3. 25. 9 E 2. Age 1â—1 If Tenant in Dower alien in fee with Warranty and the heir in the reversion bring a Writ of entry in Casu proviso c and hanging the plea the Tenant dyeth the heir shall not be rebutted or barred by this Warranty for that the Praecipe did amount to a continuall Claim 3 E 3. Garr 62. Fleta l. 6 c. 52 Bract. l. 5 fo 436 Fo. 263 a. Nota c. If the goods of Villain before any seisure c. be distrained the Lord may have a Replevin and the very bringing of the Writ doth amount to a Claim of the goods and vesteth the property in the Lord 33 E 3 Repl. 43 â—2 E 3 18. b 9 H â— 25. Nemo debet rem suam sine facto aut defectu suo emittere Sect. 443. If an usurpation be had to a Church in time of vacation this shall not prejudice the Successor to put him out of possession but that at the next avoidance he shall present F. N. B. 34 M.W. 2 c 5. imp excus c. When there is no Dean or Mayor the Chapter or Commonalty in that case cannot make claim because they have neither ability nor capacity to take or to sue any action But during the vacation of the Abathy of D. if a lease for life or a gift in Tail be made the remainder to the Abbot of D. and his Successors this remainder is good if there be aâ— Abbot made during the particular estate 2 H 7 13. 40 As 26. 34 E â— Garr 29. Qu. de dubiis c. Inter cuncta leges percunctabere doctos Hor. As Collatio peperit artes so Collatio perficit artes Crescente scientia cresunt simul dubitationes Autortias Philosophorum Medicorum Poetarum sunt in causis allegandae tenendae fo 264. a. CHAP. VIII Of Releases Sect. 444 REleases are of two sorts viz. a Release of all the right which a man hath either in lands and tenements or in goods and chattels Or there is a Release of actions real of or in lands or tenements or personal of or in goods or chattels or mixt partly in the realty partly in the personalty vide S 4â—2 Remis Relax quiet clamasse are proper words of Releases and be much of one effect besides there is Renunciare Acquietare and there be many other words of Release as if the lessor grants to the lessee for life that he shall be discharged of the rent vide S 532. Express Releases must of necessity be by Deed. Releases in Law are sometime by Deed and sometime without Deed. As if the Lord dissease the Tenant and make a Feoffment in fee by Deed or without Deed this is a Release of the Seigniory And so it is if the disseisee disseise the heir of the disseisor and make a Feoffment c this is a Release in Law of the right And the same Law is of a right in action 27 H 8. 29. Vse 34 H 6. 44. Attaint 3 E 3. 38. 21 E 4. 21. Pl. Com. de la mere If the Obligee make the Obligor his executor this is a release in law of the action but the duty remains for the which the executor may retain so much goods c. 8 E 4. 3. 21 E 4. 2. If the feme Obligee take the Obligor to husband this is a Release in Law So it is if there be two femes Obligees and the one take the debtor to husband 11 H 7. 4 â—0 H 7. 29 8 E 4. 3. If an Infant make the debtor his executor this is a good Release in Law of the action But if a feme execuâ—rix take the Debtor to husband this is no Release in Law for that should be a wrong to the dead and in Law work a Devastavit which an act of Law shall never work M. 30 31 Eâ— adjudged Note a diversity between a Release in Deed and a Release in Law â— for if the heir of the disseisor make a lease for life his right is gone for ever But if the disseisee doth disseise the heir of the disseisor and make a lease for life by this Release in Law the right is released but during the life of the lessee for a Release in Law shall be expounded more favorably according to the intent of the parties then a Release in Deed which is the act of the party and shall be taken most strongly against himself 30 E 3. 24 32 E 3. sc fac 102. Ius includeth not onely a right but also any Title or Claim either by force of a Condition Mortmain c. for the which no action is given by Law but onely an entry Sect. 446 fol. 265. a. Null droit passa per un release forsque le droit que le relesior ad al temps del release fait Note a man may have a present right though it take effect in possession but in futuro As he that hath a right to a reversion or remainder and such a right he that hath it may presently release Brit. fo 101. The Baron makes a lease for life and dieth the Release made by the wife of her Dower to him in reversion is good albeit she hath no cause of action against him in present 16 E 3. Bar. 245. Hoes Case 5.
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
in Curia nostra rite acta sunt debitae executioni demandari debent parum est latam esse sententiam nisi mandetur executioni Executio juris non habet injuriam Executio est fructus finis legis Juris effectus in executione coufistit Prosecutio legis est gravis vexatio executio legis coronat opus Boni judicis est judicium fine dilatione mendare executioni Favorabiliores sunt executiones aliis processibus quibuscunque When Littleton wrote by force of certain Acts of Parliament execution mtght be had of lands besides by force of the Elegit upon Statute Merchant Statute Staple and Recognizances taken in some Court of Record and since he wrote upon a Recognizance or Bond taken by force of the Statute 23. H. 8. before one of the Chief Justices or the Mayor of the Staple and Recorder of London out of Term which hath the effect of a Statute Staple 11. E. 1. Stat. de Acton Burnel 13. E. 1. de Mercat 27. E. 3. c. 22. 23. H. 8. cap. 6. 25. E. 3. 53. vide 32. H. 8. c. 5. a profitable Statute concerning executions of Lands Tenements c. Sed opus est interprete Vide fo 289. lib. 4. fo 66. Fulwoods Case If a man have a Judgement given against him for debt or damage or be bound in a Recognizance and dyeth his heir within age or having two daughters and the one within age no execution shall be sued of the Lands by Elegit during the minority albeit the heir is not specially bound but charged as Terre-tenant 15. E. 3. Age 95. 24. E. 3. 28. 29 Ass 37. 29. E. 3. 50. 47. Ass 4. 47. E. 3. 7. lib 3. f. 13. Brook Age 33. And so against an heir within age no execution shall be sued upon a Statute Merchant or Staple nor upon the obligation or recognizance upon the Statute 23. H. 8. for it is excepted in the processe against the heir Neither if the heir within age endow his mother shall execution be sued against her during his minority Temps E. 1. 402. 417. fo 290. a. Vide le statute 13. Eliz. cap. 5. made against fraudulent Feoffments gifts grants c. Judgements and Executions as well of lands and tenements as of goods and chattells to delay hinder or defraud Creditors and others of their just and lawfull Actions Suits Debts Damages Penalties Forfeitures Heriots Mortuaries and Releases Sed opus est c. Lib. 3. fo 80. c. Troyns Case l. 5. f 67. Gooches Case l. 6. f. 18. Pakemans Case l. 10. f. 56. the Chancellor of Oxfords Case See the Statute of 3. H. 7. c. 4. 50. E. 3. c. 6. M. 12. 13. Eliz Dyer 295. 18. Eliz. 451. Dyer Elegit is a judicial Writ and is given by the Statute either upon a recovery for debt or damages or upon a Recognizance in any Court The words of the writ be Elegit sibi liberari c. By this Writ the Sheriff shall deliver to the Plaintiff Omnia catalla debitoris exceptis bobus afris Carucae medietatem terrae And this must be done by an Enquest to be taken by the Sheriff W. 2. c. 18. W. 2. c. 18. Fieri fac is a Writ mentioned in the said Statute but is a Writ of Execution at the Common Law and is called a Fieri fac because the words of the Writ directed to the Sheriff be quod fieri fac de bonis catallis c. But note that a Capias ad satisfac is not mentioned in the said Statute because no Capias ad satisfac did lie at the Common Law upon a Judgement for debt c. or damages but only when the originall action was Qu. vi armis c. but later Statutes have given a Capias ad satisfac where debt c. or damages are recovered Lib. 3. fo 11. Sir William Herberts Case And note that these three Writs of Execution ought to be sued out within the year and the day after Judgment but if the Plaintiff sueth out any of them within the year he may continue the same after the year untill he hath execution And to none of these Writs of executions the Defendant can plead but if he hath any matter since the Judgment to discharge him of execution as a release of all executions c. he may have an Audita querela and relieve himself that way Sect. 505. Fol. 290. b. Scire fac is a judiciall Writ and properly lieth after the year and day after Judgment given But because the Defendant may thereupon plead this Scire fac is accounted in Law to be in nature of an action and therefore a release of all actions is a good bar of the same and so is a release of executions c. 19. H. 6. 3. 4. 18. E. 4. 7. This Writ was given in this case by the Statute of W. 2. c. 45. for at the Common Law if the Plaintiff had surceased to sue execution by fieri fac or levari fac a year and a day he had been driven to his new Originall 8. E. 3. 297 298. 18 E. 3. 33. l. 3. 12. Note that every Writ whereunto the Defendant may plead be it Originall or Judiciall is in Law an action Sect. 507. Fol. 291. a. Note a diversity between a release of all actions and a release of all suits If a man release all suits all execution is gone for no man can have execution without prayer and suit but the King only 26. H. 6. Exec. 4 l. 8. f. 153. Ed. Althams case Brook tit Rel. 87. So if the body of a man be taken in execution and the Plaintiff release all actions yet shall he remain in execution but if he release all debts or duties it is otherwise 26. H. 6. Exec. 7. If A. be accountable to B. and B. release him all his duties this is no bar in an action of account for what shall fall out upon the account is incertain but duties do extend to all things due that is certain and therefore dischargeth Judgments in personall actions and executions also 20. H. 6. per Paston Sect. 508 509 510 511. Fol. 291. b. 292. a. There be two kinds of Demands or Claims Pl. Com. Stiles Case 359 c. 1. Express or in deed as in all reall actions 2. Implyed or in Law as 1. In all actions personall 2. In actions of Appeals 3. Of execution 4. Of Title or right of Entry either by force of a condition or by any former Right 5. Of a rent service rent charge common of pasture c. verte fol. All which Littleton here and in the two next Sections following putteth but for example for by the release of all Demands other things also be released as rents seck all mixt actions a Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons and profit appender Conditions before they be broken or performed or after Annuities
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue